You are on page 1of 152

REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J.

SABIO; ALBANO; FERIA/NOCHE) 1


indeed an action amounts to grave abuse of discretion amounting to


CIVIL PROCEDURE (RULES 1-39)
excess or lack of jurisdiction

PRELIMINARIES *IS THE POLITICAL QUESTION DOCTRINE BLURRED?


• Yes. It no longer applies as the SC can determine.
• In theory, it may exist but in practice, it is the SC which
WHAT IS REMEDIAL LAW? determines the existence of a political question.
• Branch of law which prescribes the method of enforcing rights
or obtaining redress for their invasion Justice Sabio: it gives the SC power which makes it representative of
• This is also known as adjective law the people when the same should be lodged with the Congress or
President. Under the old constitution, you need 2/3 vote to nullify an
HOW DO YOU CLASSIFY LAW ACCORDING TO ITS NATURE? action by the executive or legislature. But now, even a minimum of 5
1. Substantive law can nullify. Seven members can constitute a quorum and 5 is a
2. Procedural law majority. Problem with the framers of the Constitution, they had in
mind Marcos but this is starting on the wrong foot. Marcos is a thing
WHAT IS SUBSTANTIVE LAW? of the past and there is only one Marcos.
• Law that creates, defines and regulates rights
WHO PROMULGATED THE RULES OF COURT?
WHAT IS PROCEDURAL LAW? • The Supreme Court promulgated the rules in accordance with
• Law that defines the method or proceedings in the the mandate provided for in the Constitution
enforcement of the rights and duties defined in substantive law
WHAT ARE THE LIMITATIONS TO THE RULE-MAKING POWER OF THE
WHAT IS PROCEDURE? SC?
• Method of conducting a judicial proceeding 1. The rules shall be uniform for all courts of the same grade
• It includes whatever is embraced in the technical terms 2. They shall not diminish, increase or modify substantive rights
pleadings, practice and evidence
• Means by which the power or authority of a court to hear and ARE THE RULES OF COURT CONSIDERED LAW?
decide a class of cases is put to action • Yes
• They have the force and effect of law
WHAT IS JUDICIAL POWER?
• The judicial power shall be vested in one Supreme Court and IS THE RULES OF COURT APPLICABLE TO ALL CASES?
in such lower courts as may be established by law. • Yes, as a rule
• Judicial power includes the duty of the courts of justice to • The rules can apply to cases filed after the effectivity of the
settle actual controversies involving rights which are legally same or even to pending cases, except if their applicability
demandable and enforceable, and to determine whether or not would not be feasible as it may impair vested rights
there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or CAN THE RULES OF COURT BE GIVEN RETROACTIVE EFFECT?
instrumentality of the Government. • Yes
• It can be given retroactive effect as there is no vested right in
NOTE: Judicial power is vested in the SC but according to the 1987 the matter of procedure
Constitution, judicial power doesn’t only include the settlement of • Neypes case (2007) was applied retroactively to a pending
actual disputes but the SC is also vested with the power to inquire if case

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 2


WHAT IS THE DIFFERENCE BETWEEN RELIEF AND REMEDY? a. Court had jurisdiction over the subject matter to rule
• Relief is found in the prayer of the pleading; it is what you seek and errors that may have been committed in deciding
as a redress for the wrong done against you the case are merely errors of judgment
• Remedy is a means when one can achieve a relief one is b. Remedy is to appeal
seeking
HOW IS JURISDICTION DETERMINED?
• Determined by the allegations in the complaint
JURISDICTION
HOW IS JURISDICTION CONFERRED?
WHAT IS JURISDICTION? • It is conferred by law
• Power to determine and decide cases • There is no such thing as conferment by implication
• It is the power with which the courts are invested with the
power of administering justice, that is, for hearing and MAY JURISDICTION BE DERIVED BY IMPLICATION?
deciding cases • No
• The courts that exercise jurisdiction are expressly designated
DISTINGUISH JURISDICTION FROM VENUE.
JURISDICTION VENUE WHAT IS MEANT BY “EXERCISE OF JURISDICTION”?
Authority to hear and determine a Place where the case is to be tried • Court having jurisdiction assumes jurisdiction and proceeds
case and heard with trial
Matter of substantive law Matter of procedural law • If there is jurisdiction over the person and the subject matter,
Establishes a relation between the Relation between plaintiff and the resolution of all other questions arising in the case is but
court and the subject matter defendant; or petitioner and an exercise of jurisdiction
respondent
Fixed by law and cannot be May be conferred by the act or WHAT IS MEANT BY “EQUITY JURISDICTION”?
conferred by the parties agreement of the parties • It is a situation where the court is called upon to decide a
particular situation and release the parties from their
WILL THE COURT ACQUIRE JURISDICTION IF ONE FAILS TO correlative obligations but if it would result in adverse
EXHAUST ADMINISTRATIVE REMEDIES? consequences to the parties and the public, the court would go
• Yes beyond its powers to avoid negative consequences in the
• Failure to exhaust administrative remedies is not a release of the parties
jurisdictional requirement
WHAT ARE THE LIMITATIONS TO EQUITY JURISDICTION?
WHAT IS THE DIFFERENCE BETWEEN ERROR OF JUDGMENT AND 1. Equitable reasons will not control against any well-settled rule
ERROR OF JURISDICTION? of law or public policy
1. Error of jurisdiction— 2. The court has no power to make contracts for the power or
a. When the court doesn’t acquire jurisdiction over the extend the life of a contract
subject matter and renders a decision, then there is
error of jurisdiction WHAT IS MEANT BY “ADHERENCE OF JURISDICTION”?
b. Void or voidable • Once jurisdiction is vested and assumed by the court, there it
c. Remedy is the filing of a petition for prohibition or will remain until termination of the case, except when the law
certiorari provides otherwise
2. Error of judgment—
WHEN IS JURISDICTION DETERMINED?

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 3


• At the filing of the complaint, the applicable statute should be upon the claim asserted therein, a matter only resolved after
applied and as a result of the trial
• Neither can the jurisdiction of the court be made to depend
SITUATION: IN AN ADOPTION CASE, THE WIFE ALONE FILED THE upon the defenses made by the defendant in his answer or
PETITION WITHOUT JOINING THE HUSBAND. IT WAS GRANTED, motion to dismiss—if this was the case, then the question of
BUT THAT UNDER THE CHILD AND YOUTH WELFARE CODE. WHEN jurisdiction would always depend on the defendant
THE FAMILY CODE TOOK EFFECT, THEY WENT TO THE COURT
SEEKING NULLIFICATION OF ADOPTION ON THE GROUND THAT HOW IS JURISDICTION OVER THE SUBJECT MATTER CONFERRED?
UNDER THE SAME, THEY SHOULD HAVE ADOPTED JOINTLY. THEY • It is conferred by law
ALLEGED THE LAW TO BE A REMEDIAL STATUTE AND COULD BE • It doesn’t depend on the objection or the acts or omissions of
APPLIED RETROACTIVELY. DECIDE. the parties or anyone of them
• Contention is not correct
• The wife’s right to file the case herself already vested upon her MAY JURISDICTION OVER THE SUBJECT MATTER BE WAIVED? IS
filing thereof and cannot be prejudiced or impaired by the THE RULE ABSOLUTE? WHY?
enactment of a new law • As a rule, jurisdiction over the subject matter is not waivable
• Jurisdiction is determined by the statute in force at the time of • Exception is in cases of estoppel to question or raise
the commencement of the action jurisdiction

WHAT ARE THE ELEMENTS OF JURISDICTION IN CIVIL CASES? HOW IS JURISDICTION OVER THE PERSON OF THE PLAINTIFF
1. Jurisdiction over subject matter ACQUIRED?
2. Jurisdiction over the person • Jurisdiction over the person of the plaintiff is acquired by the
3. Jurisdiction over the res filing of the initiatory pleading like a complaint

DISTINGUISH JURISDICTION OVER THE SUBJECT MATTER AND HOW IS JURISDICTION OVER THE PERSON OF THE DEFENDANT
JURISDICTION OVER THE PERSON. ACQUIRED?
JURISDICTION OVER THE JURISDICTION OVER THE • As a rule, jurisdiction over the person of the defendant is
SUBJECT MATTER PERSON acquired by the proper service of summons or by his voluntary
Doesn’t depend upon the consent May be conferred by consent appearance in court and his submission to the authority of the
or omissions of the parties to the expressly or impliedly given, or it court
action or any of them may, by an objection, be
prevented from attaching or being HOW IS JURISDICTION OVER THE PERSON OF THE PLAINTIFF
removed after it is attached ACQUIRED IN A SCA FOR MANDAMUS ACQUIRED?
Nothing can change the Sometimes made to depend • Jurisdiction is acquired over the person of the plaintiff in a
jurisdiction of the court over it, or indirectly at least on the party’s special civil action for mandamus by the commencement or
dictate when it shall be removed. volition filing of the action and the payment of docket fees

Matter of legislation which none HOW IS JURISDICTION OVER THE PERSON OF A DEFENDANT IN
but the legislature can change. ACTION FOR UNLAWFUL DETAINER ACQUIRED?
• Jurisdiction is acquired over the person of the defendant in an
HOW IS JURISDICTION OVER THE SUBJECT MATTER DETERMINED? action for unlawful detainer by the proper service of summons
• It is determined upon the allegations made in the complaint, on him or by his voluntary appearance
irrespective of whether the plaintiff is entitled or not, to recover

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 4


HOW IS JURISDICTION OVER THE PERSON OF A NON-RESIDENT SUPPOSE ON ITS FACE, THE COURT HAS JURISDICTION OVER THE
DEFENDANT NOT FOUND IN THE PHILIPPINES ACQUIRED? SUBJECT MATTER, AND LATER ON, IT IS PROVEN THAT THE COURT
• Jurisdiction cannot be acquired over the person of a non- HAS NO JURISDICTION. WHAT SHOULD THE COURT DO?
resident defendant who is not found in the Philippines • It should try and decide the case and in so doing, if the
• May be acquired however over the res (status) with leave of evidence shows lack of jurisdiction, the court should dismiss it
court, by effecting service of summons out of the Philippines
by personal service of summons, or by publication in a CRIMINAL JURISDICTION
newspaper of general circulation in such places and for such • Authority to hear and try a particular offense and impose the
terms as the court may order, in which case, a copy of punishment for it
summons and order of the court shall be sent by registered
mail to the last known address of the defendant, or in any ELEMENTS OF CRIMINAL JURISDICTION
other manner the court may deem sufficient. 1. Nature of the offense and the penalty attached thereto
• It may also be acquired by voluntary appearance by the 2. Fact that the offense has been committed within the territorial
defendant jurisdiction of the court

WHAT IS THE PURPOSE OF THE SERVICE OF SUMMONS? WHAT ARE THE REQUIREMENTS OF CRIMINAL JURISDICTION?
• It is intended to give notice to the defendant that an action has 1. Territorial jurisdiction
been commenced against him 2. Jurisdiction over the subject matter
• The defendant is put on guard as to the demands of the 3. Jurisdiction over the accused
plaintiff
WHAT DETERMINES JURISDICTION OVER THE SUBJECT MATTER IN
HOW IS JURISDICTION OVER THE RES ACQUIRED? A CRIMINAL CASE?
• It is acquired by the seizure of the thing under legal process • It is determined by the allegations of the complaint or
whereby it is brought into actual custody of law, or it may information in accordance with the law in force at the time of
result from the institution of a legal proceeding wherein the the institution of the action, not at the time of the commission
power of the court over the thing is recognized and made • It is also determined by the penalty provided by law for the
effective offense

WHEN A COMPLAINT WAS FILED, THE DOCKET FEE WAS NOT PAID. WHAT ARE THE ELEMENTS OF JURISDICTION OVER SUBJECT
IT WAS CONTENDED THAT SINCE THE DOCKET AND OTHER MATTER?
LAWFUL FEES WERE NOT PAID, THE TRIAL COURT DID NOT 1. Nature of the offense
ACQUIRE JURISDICTION OVER THE SUBJECT MATTER OF THE 2. Authority of the court to impose the penalty imposable given
CASE. IS THE CONTENTION CORRECT? the allegation in the information
• Yes 3. Territorial jurisdiction of the court imposing the penalty
• It is a well-settled rule that the court acquires jurisdiction over
any case only upon the payment of the prescribed docket fee HOW IS JURISDICTION OVER THE PERSON OF THE ACCUSED
ACQUIRED?
WHAT SHOULD THE COURT DO IF THE COMPLAINT ON ITS FACE 1. Upon the lawful arrest of the accused
DOESN’T CONFER JURISDICTION UPON THE COURT? 2. Upon his voluntary appearance or submission to the court
• It should dismiss it because its only jurisdiction is to dismiss it
and it cannot defer any action WHEN IS THERE A LAWFUL ARREST?

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 5


1. When, in his presence, the person to be arrested has


committed, is actually committing, or is attempting to commit IS IT POSSIBLE TO CURE THE LACK OF JURISDICTION OF A COURT
an offense; OVER A CASE?
2. When an offense has just been committed and he has probable • Generally, no
cause to believe based on personal knowledge of facts or • However, in Bandoy v. CA, the lack of notice to vacate was
circumstances that the person to be arrested has committed cured by evidence when the plaintiff showed a copy of the
it; same
3. When the person to be arrested is a prisoner who has escaped
from a penal establishment or place where he is serving final IS IT POSSIBLE TO DIVEST A COURT OF JURISDICTION ALREADY
judgment or is temporarily confined while his case is pending, VESTED?
or has escaped while being transferred from one confinement • Generally, no
to another • But if there is a law that expressly divests the court of its
4. Hot pursuit jurisdiction then the court may be divested

WHAT DOES IT MEAN WHEN A PERSON VOLUNTARILY SUBMITS WHAT ARE THE INSTANCES WHEN A COURT MAY LOSE
HIMSELF TO THE COURT? JURISDICTION EVEN IF IT HAS BEEN ATTACHED TO IT?
• He cannot anymore question the jurisdiction of the court over 1. When a subsequent law provides a prohibition for the
his person continued exercise of jurisdiction
2. Where the law penalizing an act which is punishable is
WHEN CAN A PERSON QUESTION THE LEGALITY OF HIS ARREST? repealed by a subsequent law
• An accused may question the legality of his arrest before he 3. When the accused is deprived of his constitutional right such
enters his plea as where the court fails to provide counsel for the accused who
is unable to obtain one and doesn’t intelligently waive his
CAN JURISDICTION OVER THE PERSON BE WAIVED IN CRIMINAL constitutional right
CASES? 4. Where the statute expressly provides or is construed to the
• Yes effect that it intended to operate as to actions pending before
• Unlike jurisdiction over the offense which is conferred by the its enactment
Constitution or by law, jurisdiction over the person may be 5. When the proceedings in the court acquiring jurisdiction is
waived terminated, abandoned or declared void
• For example, any objection to the procedure leading to the 6. Once appeal has been perfected
arrest must be opportunely raised before the accused enters 7. When the law is curative
his plea, or it is deemed waived
MAY A COURT ACT ON A CASE PENDING BEFORE IT TO THE
HOW IS THE PRINCIPLE OF ESTOPPEL APPLICABLE IN EXCLUSION OF OTHER COURTS? WHAT IS THE DOCTRINE OF
QUESTIONING JURISDICTION? JUDICIAL STABILITY?
• The operation of the principle of estoppel on the question of • Yes, based on the doctrine of judicial stability
jurisdiction seemingly depends upon whether the lower court • Should one branch be permitted to equally assert, assume or
actually had jurisdiction retain jurisdiction over a case in controversy over which
• If it had no jurisdiction, but the case was tried and decided another coordinate or co-equal branch has already assumed
upon the theory that it had jurisdiction, the parties are not jurisdiction, then, that would be sanctioning undue
barred on appeal from assailing such jurisdiction for the same interference by one branch over the other. With that, judicial
must exist as a matter of law, and may not be conferred by stability would be a useless precept in a well-ordered
consent of the parties or by estoppel administration of justice

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 6


3. Exclusive original jurisdiction over cases of forcible entry and


HOW MAY A COURT ACQUIRE JURISDICTION OVER A CASE? unlawful detainer: Provided, That when, in such cases, the
• The courts acquire jurisdiction over the subject matter upon defendant raises the question of ownership in his pleadings
the filing of the case and docket fees paid and the question of possession cannot be resolved without
• Failure to pay docket fees doesn’t automatically cause the deciding the issue of ownership, the issue of ownership shall
dismissal of the case for lack of jurisdiction, the plaintiff would be resolved only to determine the issue of possession.
be given appropriate time to pay the same 4. Exclusive original jurisdiction in all civil actions which involve
title to, or possession of, real property, or any interest therein
JURISDICTION OF THE DIFFERENT COURTS where the assessed value of the property or interest therein
does not exceed Twenty thousand pesos (P20,000.00) or, in
MUNICIPAL TRIAL COURTS civil actions in Metro Manila, where such assessed value does
not exceed Fifty thousand pesos (P50,000.00) exclusive of
APPELLATE JURISDICTION interest, damages of whatever kind, attorney's fees, litigation
• None expenses and costs: Provided, That value of such property
• MTC is the lowest court in the judicial hierarchy shall be determined by the assessed value of the adjacent lots.
5. Inclusion and exclusion of voters
ORIGINAL AND CONCURRENT
• None also SITUATION: A PROPERTY VALUED AT P30,000 IS SITUATED IN
MALOLOS, BULACAN. A FILED AN ACTION FOR OWNERSHIP OF THE
WHAT IS THE ORIGINAL AND EXCLUSIVE JURISDICTION OF THE SAME PARCEL OF LAND. OF WHICH COURT SHOULD THE CASE BE
MTC OVER CIVIL CASES? FILED?
1. Exclusive original jurisdiction over civil actions and probate • It should be filed in the RTC of Malolos as the value of the land
proceedings, testate and intestate, including the grant of exceeded P20,000—above the jurisdiction of the MTC which is
provisional remedies in proper cases, where the value of the limited to the amount of P30,000
personal property, estate, or amount of the demand does not • Note that with the expanded jurisdiction of the MTC, it can
exceed P300,000 or, in Metro Manila where such personal take cognizance of cases on ownership, title, and possession of
property, estate, or amount of the demand does not exceed real property—within limits of P20,000 outside of Metro
P400,000 exclusive of interest damages of whatever kind, Manila and P50,000 within Metro Manila
attorney's fees, litigation expenses, and costs, the amount of
which must be specifically alleged: Provided, That where there WHAT IS THE JURISDICTION OF THE MUNICIPAL TRIAL COURTS IN
are several claims or causes of action between the same or CRIMINAL CASES?
different parties, embodied in the same complaint, the amount 1. Exclusive original jurisdiction over all violations of city or
of the demand shall be the totality of the claims in all the municipal ordinances committed within their respective
causes of action, irrespective of whether the causes of action territorial jurisdiction
arose out of the same or different transactions; 2. Exclusive original jurisdiction over all offenses punishable with
2. Admiralty and maritime cases where the demand or claim imprisonment not exceeding 6 years, regardless of the fine or
doesn’t exceed P300,000 or in Metro Manila, where such other accessory penalties and civil liability
demand doesn’t exceed P400,000. Where there are several 3. Offenses involving damage to property through criminal
claims or causes of action between the same or different negligence
parties, embodied in the same complaint, the amount of the 4. In cases where the only penalty provided by law is a fine, it has
demand shall be the totality of the claims in all cases in all the exclusive jurisdiction over offenses punishable by a fine not
causes of action irrespective of whether the causes of action exceeding P4000
arose out of the same or different transactions

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 7


5. In election offenses, cases involving failure to register or failure actions for forcible entry into and unlawful detainer of lands or
to vote buildings, original jurisdiction over which is conferred upon
6. Special jurisdiction to hear and decide petitioners for a writ of Metropolitan Trial Courts, Municipal Trial Courts, and
habeas corpus or application for bail in the province or city Municipal Circuit Trial Courts;
where the RTC judge is absent 3. In all actions in admiralty and maritime jurisdiction where he
7. Cases involving BP 22—Bouncing Checks Law demand or claim exceeds three hundred thousand pesos
(P300,000.00) or , in Metro Manila, where such demand or
DOES THE MTC HAVE JURISDICTION IF THE PENALTY INVOLVES 6 claim exceeds four hundred thousand pesos (400,000.00);
YEARS IMPRISONMENT AND A FINE OF P10,000? 4. In all matters of probate, both testate and intestate, where the
• Yes, the limit of P4000 for fines applies if fine is the only gross value of the estate exceeds three hundred thousand
imposable penalty pesos (P300,000.00) or, in probate matters in Metro Manila,
where such gross value exceeds four hundred thousand pesos
SITUATION: A WAS DRIVING HIS CAR AND HE BUMPED HIS CAR (400,000.00);
ACCIDENTALLY WITH THE CAR OWNED BY B. WHERE SHOULD B 5. In all cases not within the exclusive jurisdiction of any court,
FILE HIS CASE? tribunal, person or body exercising jurisdiction or any court,
• It depends on what case will be filed. If the case is for damage tribunal, person or body exercising judicial or quasi-judicial
to property through reckless imprudence, the case should be functions;
filed with the MTC as this court has original and exclusive 6. In all other cases in which the demand, exclusive of interest,
jurisdiction damages of whatever kind, attorney's fees, litigation expenses,
and costs or the value of the property in controversy exceeds
SITUATION: GIVEN THE ABOVE, WHAT IF THE CASE FILED WAS three hundred thousand pesos (300,000.00) or, in such other
DAMAGE TO PROPERTY AND SERIOUS PHYSICAL INJURIES? abovementioned items exceeds four hundred thousand pesos
WHERE SHOULD THE CASE BE FILED? (200,000.00). (as amended by R.A. No. 7691*)
• The MTC has jurisdiction as the imposable penalty is less than
6 years imprisonment WHAT IS THE JURISDICTION OF REGIONAL TRIAL COURTS IN
CRIMINAL CASES?
SITUATION: GIVEN THE ABOVE, WHAT IF THE CASE FILED WAS 1. Exclusive original jurisdiction in criminal cases not within the
DAMAGE TO PROPERTY THROUGH RECKLESS IMPRUDENCE exclusive jurisdiction of any court, tribunal or body, except
RESULTING TO HOMICIDE, WHICH COURT HAS JURISDICTION? those falling under the exclusive and concurrent jurisdiction of
• The RTC, as the penalty involves a penalty of more than 6 the Sandiganbayan
years imprisonment
All criminal cases where the penalty is higher than 6 years,
REGIONAL TRIAL COURTS including government-related cases wherein the accused in not
one of those falling under the jurisdiction of the
WHAT IS THE ORIGINAL AND EXCLUSIVE JURISDICTION OF THE Sandiganbayan is within the jurisdiction of the RTC.
REGIONAL TRIAL COURT IN CIVIL CASES?
1. In all civil actions in which the subject of the litigation is 2. Other laws which specifically lodge jurisdiction in the RTC
incapable of pecuniary estimation; a. Laws on written defamation or libel
2. In all civil actions which involve the title to, or possession of, b. Decree on Intellectual Property
real property, or any interest therein, where the assessed value c. Dangerous Drugs Cases except where the offenders
of the property involved exceeds Twenty thousand pesos are below 16 years and there are Juvenile and
(P20,000.00) or for civil actions in Metro Manila, where such Domestic Relations Courts in the province
the value exceeds Fifty thousand pesos (50,000.00) except

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 8


3. Appellate jurisdiction over all cases decided by MTCs in their ORIGINAL AND CONCURRENT WITH THE SUPREME COURT AND
respective territorial jurisdiction REGIONAL TRIAL COURT
4. In areas where there are no family courts, the cases falling 1. Petitions for habeas corpus and quo warranto
under the jurisdiction of family courts shall be adjudicated by 2. Petitions for the issuance of writs of certiorari, prohibition and
the RTC mandamus against lower courts or bodies

WHAT IS THE ORIGINAL AND CONCURRENT JURISDICTION OF THE APPELLATE JURISDICTION


RTC WITH THE SUPREME COURT? 1. Ordinary appeal
• Actions affecting ambassadors and other public ministers and a. From RTC: Rule 45
consuls b. From RTC: constitutional, tax, and jurisdiction
c. Appeal from decisions or orders from the Family
WHAT IS THE ORIGINAL AND CONCURRENT JURISDICTION OF THE courts
RTC WITH THE SUPREME COURT AND COURT OF APPEALS 2. Appeal by petition for review
• In the issuance of writs of certiorari, prohibition, mandamus, NB:
quo warranto, habeas corpus and injunction which may be 1. If it’s questions of facts, questions of facts and law, questions
enforced in any part of their respective regions of law—go to the Court of Appeals under Rule 43
2. RTC in exercise of its original jurisdiction—depends on the
WHAT IS THE RTC’S APPELLATE JURISDICTION? questions raised
• Regional Trial Courts shall exercise appellate jurisdiction over a. If it is questions of law then go straight to the
all cases decided by Metropolitan Trial Courts, Municipal Trial Supreme Court
Courts, and Municipal Circuit Trial Courts in their respective b. If it is a mix of questions of law and fact—then go first
territorial jurisdictions. to the CA

COURT OF APPEALS WHERE WILL YOU FILE FOR ANNULMENT OF JUDGMENT/FINAL


ORDER OF THE MTC BASED ON EXTRINSIC FRAUD OR LACK OF
ORIGINAL AND EXCLUSIVE JURISDICTION?
• Actions for annulment of judgments of the RTC on the ground • You will file it with the RTC
of extrinsic fraud and lack of jurisdiction • Why? Because the RTC is the court which has jurisdiction over
all cases not within the exclusive jurisdiction of any court,
ORIGINAL AND CONCURRENT WITH THE SUPREME COURT AND tribunal, person or body exercising jurisdiction or any court,
SANDIGANBAYAN tribunal, person or body exercising judicial or quasi-judicial
• Original jurisdiction to issue writs of mandamus, prohibition, functions
certiorari, habeas corpus, and quo warranto, and auxiliary
writs or processes, whether or not in aid of its appellate SUPREME COURT
jurisdiction
ORIGINAL AND EXCLUSIVE
WHEN MAY THE SANDIGANBAYAN NOT ENTERTAIN PETITIONS FOR • Petitions for the issuances of writs of certiorari, prohibition,
CERTIORARI? and mandamus against the following—
• Sandiganbayan may not entertain petition for certiorari if o Court of Appeals
respondent is quasi-judicial body—it should only be filed with o Commission on Elections
the Court of Appeals o Commission on Audit
o Sandiganbayan

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 9


• Exercise original jurisdiction over cases affecting a. Officials of the executive branch occupying the
ambassadors, other public ministers and consuls, and over positions of regional director or higher, otherwise
petitions for certiorari, prohibition, mandamus, quo warranto, classified as Grade 27 and higher, of the
and habeas corpus. Compensation and Position Classification Act
b. Members of Congress and officials thereof classified
WHAT IS THE MINIMUM APPELLATE JURISDICTION OF THE SC? as Grade 27 or higher
1. 1.All cases in which the constitutionality or validity of any c. Members of the Judiciary without prejudice to the
treaty, international or executive agreement, law, presidential provisions of the Constitution
decree, proclamation, order, instruction, ordinance, or d. Chairmen and members of the Constitutional
regulation is in question. Commissions without prejudice to the provisions of
2. All cases involving the legality of any tax, impost, assessment, the Constitution
or toll, or any penalty imposed in relation thereto. e. All other national and local officials classified as Grade
3. All cases in which the jurisdiction of any lower court is in issue. 27 or higher
4. All criminal cases in which the penalty imposed is reclusion 4. Other offenses and felonies committed by public officials and
perpetua or higher. (Clue: when a man marries a woman, what employees mentioned in Section 4 (a) of RA 7975 as amended
is the penalty suffered by the man?) 5. Civil and criminal cases filed pursuant to and in connection
5. All cases in which only an error or question of law is involved. with EO 1,2 14 and 14-A

APPELLATE JURISDICTION MAY A PRIVATE INDIVIDUAL BE CHARGED IN THE


1. From the RTC—in its exercise of original jurisdiction, involving SANDIGANBAYAN?
questions of law • Generally, no
2. From the CA—in its exercise of its original and exclusive • But when a private individual is charged as a co-accused to a
jurisdiction, as well as its exercise of appellate jurisdiction public officer, the Sandiganbayan may exercise jurisdiction
over his person
APPEAL (AN EXERCISE ON APPEAL)
BARANGAY CONCILIATION (RA 7160)
ORDINARY APPEAL
• For example you file with the RTC in its original jurisdiction WHAT IS THE KATARUNGANG PAMBARANGAY LAW?
and you lose • This law provides for the settlement of disputes between
• You appeal to the CA on the questions of fact individual residents of the same municipality or city, through
mediation, arbitration or conciliation, before the Katarungang
PETITION FOR REVIEW Pambarangay
• Second time to appeal to a higher court • Compliance therewith is a condition precedent to the filing of a
complaint or information in court or before the fiscal’s office,
SANDIGANBAYAN and its absence is a ground for dismissal of the complaint for
prematurity or absence of cause of action
WHAT IS THE JURISDICTION OF THE SANDIGANBAYAN?
1. Offenses under the Anti-graft and corrupt practices act WHAT IS THE CONSEQUENCE FOR FAILURE TO COMPLY WITH THE
2. RA 1379 K.B LAW?
3. Chapter 2, Section 2, Title 7, Revised Penal Code, where one • The case may be dismissed due to lack of cause of action
or more the principal accused are occupying the following • If this is denied by the MTC (the motion to dismiss), it is
positions in government, whether in a permanent, acting, or appealable to the RTC and not through certiorari
interim capacity at the time of the commission of the offense:

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 10


WHO MAY BE SUBJECTED TO THE K. BARANGAY? 2. Where a person has been otherwise deprived of personal
• Only natural persons liberty calling for habeas corpus proceedings
3. Where actions are coupled with provisional remedies
WHAT ARE THE CASES OVER WHICH THE LUPON CAN TAKE 4. Where the action may be barred by the statute of limitations
COGNIZANCE OF?
• All disputes WHEN ARE AMICABLE SETTLEMENTS NOT ALLOWED?
1. Where one party is the government or any subdivision or
WHAT IS THE EFFECT OF THE FILING BEFORE THE LUPON instrumentality thereof
BARANGAY TO THE RUNNING OF PRESCRIPTION? 2. Where one party is a public officer or employee and the
• It would interrupt the running of the prescriptive period but it dispute relates to the performance of his official functions
should not be for more than 60 days 3. Offenses punishable by imprisonment exceeding 1 year or fine
• Sixty days counted from the time when the Lupon Secretary exceeding P5000
certifies that no conciliation or settlement was reached or 4. Offenses where there is no private offended party
upon repudiation of the parties of the agreement 5. Where the dispute involves real properties located in different
cities or municipalities
CAN THE OFFENDED PARTY GO DIRECTLY TO COURT TO FILE A 6. Disputes involving parties who reside in different barangays,
CRIMINAL ACTION? cities or municipalities
• No. General rule is that before a complaint is filed in court, 7. Other cases which the President may determine in the interest
there should have been a confrontation between the parties of justice or upon the recommendation of the Secretary of
before the Lupon Chairman. The Lupon secretary should Justice
certify that no conciliation or settlement was reached attested 8. Any complaint by or against corporations, partnerships,
to by the Lupon Chairman. associations or juridical entities.
• The complaint may also be filed if the settlement is repudiated 9. Disputes where urgent legal action is necessary to prevent
by the parties injustice from being committed or further continued—
• Note: Lupon Tagapamayapa • A criminal case where the accused is under police
detention or custody
WHAT IS THE PROCEDURE IN THE KATARUNGAN PAMBARANGAY • A petition for habeas corpus by a person illegally
LAW? deprived of his liberty or detained or one acting on his
1. While the dispute is under mediation conciliation or behalf
arbitration, the prescriptive periods for offenses and cause of • Actions coupled with provisional remedies
action under existing laws shall be interrupted upon filing of • Where the action is barred by the statute of limitations
the complaint with the Punong Barangay 10. Labor disputes or controversies arising from employer-
2. Prescriptive periods shall resume upon receipt by the employee relationship
complainant of the complaint or the certificate of repudiation 11. Where the dispute arises from the Comprehensive Agrarian
or of the certification to file action filed by the Lupon or Reform Law
Pangkat secretary 12. Actions to annul judgment upon a compromise which can be
3. Provided however, that such interruption shall not exceed 60 filed directly with the court
days from the filing of the complaint with the Punong
Barangay WHAT IS THE DIFFERENCE BETWEEN THE INSTANCES WHEN
PARTIES MAY GO DIRECTLY TO COURT AND WHEN AMICABLE
WHAT ARE THE EXCEPTIONS TO THE RULE? SETTLEMENTS ARE NOT ALLOWED?
1. Where the accused is under detention • The difference is that when the amicable settlements are not
allowed, the parties may still go to the Lupon Tagapamayapa.

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 11


It is the Lupon that will say that it has no jurisdiction to settle manner within the authority of the lupon may complain, orally
the dispute, on the other hand, in the other instance, the or in writing, to the lupon chairman of the barangay
parties may go directly to the court without going to the Lupon
WHAT SHALL THE LUPON CHAIRMAN DO UPON RECEIPT OF THE
WHAT IS THE RULE ON VENUE UNDER THE LAW GOVERNING COMPLAINT?
BARANGAY CONCILIATION? • He shall within the next working day, summon the
1. Disputes involving persons of the same barangay shall be respondents, with notice to the complainant for them and their
brought for amicable settlement before the lupon of the same witnesses to appear before him for a mediation of their
barangay conflicting interests
2. Those involving actual residents of different barangays within • If he fails within his mediation effort within 15 day from the
the same city or municipality shall be brought in the barangay first meeting of the parties, he shall forthwith set a date for the
where the respondent or any of the respondents actually constitution of the pangkat
resides, at the election of the complainant
3. All disputes involving real property or any interest therein shall IS THERE ANY PRESCRIBED PERIOD FOR THE PANGKAT TO
be brought in the barangay where the real property or the RESOLVE THE DISPUTE?
larger portion thereof is situated • Yes
4. Those arising at the workplace where the contending parties • The pangkat shall arrive at a decision within 15 days from the
are employed or the institution where such parties are day it convenes
enrolled, where the workplace or institution is located • This period shall at the discretion of the pangkat be extensible
for another period which shall not exceed 15 days except in
WHERE SHOULD ONE RAISE OBJECTIONS TO VENUE UNDER clearly meritorious cases
BARANGAY CONCILIATION?
• It shall be raised in the mediation proceedings before the DOES THE LAW PRESCRIBE ANY FORM FOR THE SETTLEMENT OF
punong barangay otherwise the same shall be deemed waived ANY DISPUTE?
• Yes
SUPPOSED THERE ARE QUESTIONS THAT CONFRONT THE PUNONG • All amicable settlements shall be in writing, in a language or
BARANGAY ON OBJECTIONS TO VENUE, WHAT WILL HE DO? dialect known to the parties, signed by them and attested to
• Any legal question which may confront the punong barangay in by the lupon chairman, as the case may be
resolving questions to venue may be submitted to the • When the parties to the dispute do not use the same language
Secretary of Justice or his duly designated representative or dialect, the settlement shall be written in the language or
whose ruling thereon dialect known to them

IS THE NATURE OF NON-REFERRAL OF A CASE TO THE BARANGAY ARE THE PROCEEDINGS BEFORE THE LUPON OR PANGKAT OPEN
WHEN THE LAW REQUIRES IT JURISDICTIONAL? TO THE PUBLIC?
• No, it may be deemed waived if not raised seasonably in a • Yes, all proceedings for settlement shall be public and
motion to dismiss informal, but the lupon chairman or pangkat may motu proprio
or upon request of any party, exclude the public from the
WHAT KIND OF RESIDENCE IS REQUIRED BY THE LAW? proceedings, in the interest of privacy, decency or public
• Must be more or less permanent morals

WHO MAY FILE COMPLAINT? HOW IS IT FILED WITH THE LUPON? WHAT IS THE REQUIREMENT OF THE LAW WITH RESPECT TO THE
• Upon payment of the appropriate filing fee, any individual who APPEARANCE OF THE PARTIES BEFORE THE LUPON OR PANGKAT?
has a cause of action against another individual involving any

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 12


• The law requires that in all katarungang pambarangay WITHIN WHAT PERIOD SHOULD A PARTY REPUDIATE THE
proceedings, the parties must appear in person without the SETTLEMENT AND HOW?
assistance of counsel or representative, except for minors or • Any party to the dispute may within a period of 10 days from
incompetents who may be assisted by their next of kin who are the date of the settlement repudiate the same by filing with the
not lawyers lupon chairman to the effect sworn before him, where the
• Failure of plaintiff to appear causes dismissal of the case consent is vitiated by fraud, violence or intimidation

SITUATION: PERSON INVOLVED IS A MINOR AND HIS GUARDIAN IS WHAT IS THE EFFECT OF SUCH REPUDIATION?
A LAWYER. MAY THE LAWYER-GUARDIAN APPEAR ON BEHALF OF • Such will be sufficient basis for the issuance of certification for
THE MINOR? filing of the complaint
• No, the guardian should not be a lawyer
PART ONE: CIVIL PROCEDURE
WHAT IS THE EFFECT OF AN AMICABLE SETTLEMENT?
• It shall have the force and effect of a final judgment of a court
upon the expiration of 10 days from the date thereof, unless
GENERAL PROVISIONS
such repudiation has been made or a petition to nullify the
award has been filed before the proper city or municipal court
HOW ARE THE RULES OF COURT INTERPRETED?
WHY IS AN AMICABLE SETTLEMENT CONSIDERED AS HAVING THE • It shall be liberally construed in order to promote their object
FORCE AND EFFECT OF A FINAL JUDGMENT? and assist the parties in obtaining just, speedy and
• Because it needs to be enforced by execution inexpensive determination of every action and proceeding
• It is enforceable; final judgment of the court is enforceable
WHEN LIBERAL INTERPRETATION OF THE RULES MAY APPLY?
WHEN DOES THE AMICABLE SETTLEMENT BECOME FINAL? 1. Where a rigid application will result in manifest failure or
• After the period of 10 days absent any repudiation from either miscarriage of justice, especially if a party successfully shows
of the parties that the alleged defect in the questioned final and executory
judgment is not apparent on its face or from the recitals
HOW MAY BE THE AMICABLE SETTLEMENT BE EXECUTED? contained therein
• It may be enforced by execution by the lupon within 6 months 2. Where the interest of substantial justice will be served
from the date of the settlement 3. Where the resolution of the motion is addressed solely to the
• After the lapse of such time, the settlement may be enforced sound and judicious discretion of the court
by action in an appropriate court: the MTC is the appropriate 4. Where the injustice to the adverse party is not commensurate
court (the cases referred to in the lupon is cognizable under with the degree of the thoughtlessness in not complying with
original and exclusive jurisdiction of the MTC) the procedure

HOW SHOULD THE 6-MONTHS PERIOD BE COMPUTED? DOES THE RULE OF LIBERAL CONSTRUCTION OF THE RULES OF
• If the obligation is due and demandable on the same date as COURT ABSOLUTE?
of the settlement, then the 6-month period should be counted • No
from the date of the settlement, otherwise, if the obligation to • It cannot be invoked anytime
be enforced is due and demandable on a date other than the • The person must justify why he wasn’t able to comply with the
date of the settlement, the 6-month period should be counted requirement provided by the rule
from the date the obligation becomes due and demandable

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 13


• You can only invoke liberal construction if you have justified An action by which a An application to
failure to comply with the rules party sues another for establish the status or
the enforcement or right of a party or a
WHAT IS THE APPLICABILITY OF THE RULES? protection of a right, or particular fact, or any
• Generally applicable to all except when the law otherwise the prevention or remedy other than an
provides redress of a wrong ordinary suit in a court
• Applicable to all civil actions of justice
It is a formal demand
WHAT ARE THE INSTANCES WHEN LIBERAL CONSTRUCTION IS NOT of one’s legal rights in Generally commenced
APPLICABLE? a court of justice in the through application,
1. Issues on jurisdiction manner prescribed by petition, or special form
2. Rules on pre-trial with respect to issues defined in the pre-trial the court of by the law of pleading
order
3. Compliance with requirements for substituted service of Publication usually
summons necessary to acquire
4. Motions for postponement jurisdiction
5. Observance of reglementary periods It is absolute rule that
6. Motions for new trial or relief from judgment there is an adversarial It is a general rule that
7. Rules on motions in general party there is no adverse
a. 3-day notice party (exception: in
b. Notice of hearing General jurisdiction cases of habeas corpus
c. Proof of service proceedings)
8. Motion for summary judgment or judgment on the pleadings Usually constitute
9. Executions pending appeal actions in personam,
10. Granting of provisional remedies except alimony pendente lite wherein the decision of Constitute actions in
11. Motions that will suspend or abate the proceedings the court would only rem—wherein these
bind the parties in the proceedings bind the
WHAT IS A CIVIL ACTION? case whole world once they
 An action by which a party sues another for the enforcement or are concluded
protection of a right, or the prevention or redress of a wrong Issues determined by
the pleadings Issues determined by
WHAT ARE SPECIAL CIVIL ACTIONS? law
• Actions governed by different set of rules There is a prescriptive
period involved There is no prescriptive
WHAT ARE SPECIAL PROCEEDINGS? period involved
• Remedy by which a party seeks to establish a status, right or There can be an award
particular fact for damages No award of damages

DIFFERENTIATE SPECIAL PROCEEDINGS WITH ORDINARY CIVIL Generally, no default in


ACTIONS. special proceedings
ACTION SPECIAL PROCEEDING GRANTING OF Filing of an action Granted through the
filing of motion or

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 14


REMEDY application • Failure to state cause of action is subject to a motion to


dismiss
• No hearing necessary when it comes to failure to state cause
WHAT IS AN ACTION? of action—either no obligation, no legal right, or no act or
• It is a formal demand of one’s rights in a court of justice in omission
accordance with the definite established rules • Lack of cause of action is a matter of defense
o Proof of privity of contract needed
HOW DO YOU COMMENCE A CIVIL ACTION? o Hearing usually needed but sometimes, not needed
• It is commenced by the filing of the original complaint in court
• In case of an additional defendant, action is commenced with WHAT IS RIGHT OF ACTION?
regard to him on the dated of the filing of such later pleading, • It is the right to commence and prosecute an action to obtain
irrespective of whether the motion for its admission, if the relief sought
necessary, is denied by the court.
DIFFERENCE BETWEEN CAUSE OF ACTION AND RIGHT OF ACTION.
AT WHAT INSTANCES IS THE RULES OF COURT NOT APPLICABLE? CAUSE OF ACTION RIGHT OF ACTION
(NAIL the ICE) Refers to the delict or wrong Refers to the right of the plaintiff
1. Election cases committed by the defendants to institute the action
2. Land registration Determined by the pleadings Determined by substantive law
3. Cadastral Not affected by statute of Affected
4. Naturalization limitations, estoppel or other
5. Insolvency proceedings circumstances
6. And other cases not herein provided for
WHAT ARE THE ELEMENTS OF RIGHT OF ACTION?
RULE 2: CAUSE OF ACTION 1. Existence of cause of action
2. Performance of all conditions precedent for the filing of the
action
UPON WHICH SHOULD AN ORDINARY CIVIL ACTION BE BASED? a. Lupong barangay
• Every ordinary civil action should be based upon a cause of b. Attachment of certification or verification
action c. Certificate for non-forum shopping
d. Demand
WHAT IS A CAUSE OF ACTION? e. Earnest efforts to compromise
• It is the act or omission by which a party violates a right of 3. The right to maintain and bring must belong to the person
another instituting the action (proper party)

WHAT ARE THE ELEMENTS OF A CAUSE OF ACTION? WHAT IS A REAL ACTION?


1. Legal right of the victim • A real action is an action affecting title to, or for recovery of
2. Obligation of the defendant possession, or for partition, or condemnation of, or foreclosure
3. Act or omission on the part of the defendant of mortgage on real property
• Other actions are personal actions
DIFFERENCE BETWEEN LACK OF CAUSE OF ACTION AND FAILURE
TO STATE A CAUSE OF ACTION. DIFFERENCE BETWEEN REAL AND PERSONAL ACTIONS.
• Absence of any elements, there is failure to state a cause of
action

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 15


• Real actions are based on privity of real estates while personal (usually in the
actions are based on privity of contracts or recovery of sum of form of
money publication)
OBJECT OF Possession or The thing itself Personal
ON WHICH IS A PERSONAL ACTION BASED? THE ACTION title to real interest in a
• Privity of contract property real property
• Interest or right over personal property EXAMPLES Acion publiciana, Land
acion registration
ON WHICH IS A REAL ACTION BASED? reinvidicatoria, cases (torrens
• Privity between real estates ejectment cases, title)
partition, etc.
DISTINGUISH ACTIONS IN PERSONAM, IN REM, QUASI IN REM.
IN PERSONAM IN REM QUASI IN REM WHAT AND HOW ARE THE DIFFERENT TESTS TO DETERMINE THE
Claim against some The object is to bar An individual is NATURE OF AN ACTION?
particular person, indifferently all who named as defendant 1. Ultimate objective test—if the ultimate objective is to recover
with a judgment might be minded to and the purpose of real property then it is a real action
which is generally in make an objection of the proceeding is to 2. Allegations and prayer test—the allegations of facts and relief
theory at least, binds any sort against the subject his interest prayed for may be determinative of the nature of the action
his body, or to bar right sought to be therein to the
some individual claim established, and if obligation or lien WHAT WILL TOLL THE RUNNING OF THE PRESCRIPTIVE PERIODS?
or objection so that anyone in the world burdening the • The twin requirements of filing of the complaint and the
only certain persons has a right to be property payment of the appropriate docket fees
are entitled to be heard on the strength
heard on defense of alleging facts WHAT SHOULD THE COURT DO IF THE ACTION IS NOT
which if true show an ACCOMPANIED BY THE PAYMENT OF DOCKET FEES?
inconsistent interest • Where the filing of initiatory pleading is not accompanied by
Examples: an action the payment of the docket fee, the court may allow payment of
for support (binds the fee within a reasonable time but in no case beyond the
only a specific applicable prescribed or reglementary period
person)
WHAT IS MEANT BY THE PRESCRIPTIVE PERIOD REFERRED TO IN
DISTINGUISH REAL ACTIONS, IN REM, AND QUASI IN REM. JURISPRUDENCE?
REAL ACTIONS IN REM QUASI IN • It means the period within which a specified action must be
REM filed
BINDING Binding upon the Binding on the Binding upon
UPON WHOM? parties involved whole world a particular WHAT IS THE RULE RE: AWARDED DAMAGES IN JUDGMENT BUT
or even third person with WHICH WERE NOT SPECIFIED IN THE PLEADINGS?
parties, if any respect to a • Damages arising after the filing of the complaint or similar
particular real pleadings as to which the additional filing fee should be paid
property shall constitute a lien on the judgment
NOTICE Needed to bind
REQUIREMENT the whole world

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 16


WHEN IS THERE A NEED TO PAY DOCKET FEES IF THERE IS A proscribed and any attempt to prove extraneous
COUNTERCLAIM? circumstances is not allowed
• If such is a compulsory counterclaim, then there is no need to
pay WHAT IS THE TEST FOR SUFFICIENCY OF COMPLAINT?
• If such is permissive, then there is need to pay • Test is whether or not, admitting the facts alleged, the court
can render a valid judgment upon the same in accordance with
DISCUSS THE PAYMENT OF DOCKET FEES IN CASE OF APPEAL. the prayer in the complaint
• In an appeal from the MTC to the RTC, non-payment doesn’t
automatically result to dismissal of the appeal. Period is given WHAT IS MEANT BY SUBJECT MATTER OF THE ACTION?
to the appellant to pay the appropriate docket fees. • It means the physical facts, the things, real or personal, the
• In an appeal to the CA and SC, the non-payment of docket fees money, land and chattels, and the like, in relation to which the
automatically causes the dismissal of the appeal suit is being prosecuted.

IS THE PAYMENT OF DOCKET FEES JURISDICTIONAL IN NATURE? UPON WHICH IS A CAUSE OF ACTION DETERMINED?
• Yes • A cause of action is determined by the facts alleged therein
• The difference only lies with the rules aforementioned and not by the defenses alleged

WITH RESPECT TO REAL PROPERTY, HOW MUCH DOCKET FEES IN A SINGLE CAUSE OF ACTION, HOW MANY SUITS MAY A PERSON
SHOULD BE PAID? FILE?
• Value of the real property • He can only file one suit for a single cause of action
• Amount of damages sought
WHAT IS THE CONCEPT ON SPLITTING OF CAUSES OF ACTION?
IN THE AWARD OF DAMAGES NOT INCLUDED IN PRAYER, WHAT • It is the practice of dividing one cause of action into different
HAPPENS TO THE DOCKET FEES? parts and making each part the subject of a separate
• The payment of docket fees shall constitute as a lien on the complaint
award or judgment rendered by the court
• It is the duty of the clerk of court to collect docket fees WHAT IS THE EFFECT OF SPLITTING A SINGLE CAUSE OF ACTION?
• The filing of the first may be pleaded in abatement of the other
WHEN A MOTION TO DISMISS A COMPLAINT ON THE GROUND OF or others and a judgment on the merits in any one is available
FAILURE TO STATE A CAUSE OF ACTION IS FILED, THE COURT as a bar to the others
CONSIDERS ONLY THE MATTERS ASSERTED IN THE COMPLAINT.
IS THIS RULE ABSOLUTE? WHAT IS THE TEST IN DETERMINING WHETHER OR NOT A CAUSE
• No, the test of the sufficiency of the facts to constitute a cause OF ACTION IS SINGLE?
of action is whether admitting the facts alleged, the court can • If there is only one delict or wrong, there is a single cause of
render a valid judgment upon the same in accordance with the action, even if there are several rights violated and all of those
prayer of the complaint rights violated must be prayed for in one complaint but the
single delict or wrong must be violative of one contract or
WHAT DETERMINES EXISTENCE OF CAUSE OF ACTION? transaction, for if there are separate and distinct contracts or
• Only allegations in the complaint may properly be considered transactions between the parties, violation of each contract or
in ascertaining the existence of a cause of action transaction would constitute a separate cause of action
• Lack of cause of action must appear on the face of the
complaint and its existence may be determined only by the IS THE RULE AGAINST SPLITTING OF ACTIONS ABSOLUTE?
allegations of the complaint. Consideration of other facts is

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 17


• No, because if by their nature, the reliefs sought for are 4. Where the claims in all causes of action are principally for
cognizable by different tribunals, then there would be no recovery of money, the aggregate amount shall be the test of
splitting of causes of actions if they are filed in different courts jurisdiction

WHY IS SPLITTING OF CAUSE OF ACTION PROHIBITED? WHEN IS THERE PERMISSIVE JOINDER OF PARTIES?
• It is intended to prevent repeated litigation between the same • All persons in whom or against whom any right to relief in
parties in regard to the same object of controversy and to respect to or arising out of the same transaction or series of
protect the defendant against unnecessary vexation, as well as transactions is alleged to exist, whether jointly, severally, or in
to avoid the costs incidental to numerous suits the alternative, may, except as otherwise provided in these
Rules, join as plaintiffs or be joined as defendants in one
WHAT ARE EXAMPLES OF SITUATIONS WHERE CAUSES OF ACTION complaint, where any question of law or fact common to all
MAY BE FILED IN SEPARATE TRIBUNALS WITHOUT NECESSARILY such plaintiffs or to all such defendants may arise in the action
VIOLATING THE RULE AGAINST SPLITTING OF ACTIONS? • But the court may make such orders as may be just to prevent
1. If there is an action to establish filiation as an illegitimate any plaintiff or defendant from being embarrassed or put to
child, a separate action for partition can be filed. They are expense in connection with any proceedings in which he may
cognizable by different tribunals. have no interest.
2. Action for having unlawfully stopped payment of a check paid
as partial payment of a parcel of land cannot be pleaded in WHAT ARE THE REQUISITES FOR PERMISSIVE JOINDER OF
abatement by the defendant in an action for foreclosure of PARTIES?
mortgage for the balance guaranteed. 1. Right to relief with respect to or arising out of the same
transaction or series of transactions
WHAT IS THE EFFECT IF THE DEFENDANT FILES AN ANSWER AND 2. Common question of law or fact in the action
FILES ANOTHER COMPLAINT INVOKING THE COUNTERCLAIM HE
INTERPOSED IN HIS ANSWER? WHEN IS JOINDER OF PARTIES COMPULSORY?
• He cannot do it without violating the prohibition against • Parties in interest without whom no final determination can be
splitting of causes of action had of an action shall be joined either as plaintiffs or
defendants.
MAY A PERSON ALLEGE SEVERAL CAUSES OF ACTION IN ONE
PLEADING? DISTINGUISH BETWEEN INDISPENSIBLE PARTY AND NECESSARY
• Yes PARTY.
INDISPENSIBLE PARTY NECESSARY PARTY
WHAT ARE THE LIMITATIONS? One whose interest will be One whose interest in the
1. The party joining the causes of action shall comply with the affected by the court’s action in controversy and subject matter is
rules on joinder of parties the litigation and without whom distinct and divisible from the
2. The joinder shall not include special civil actions or actions no final determination of the case interest of the other parties and
governed by special rules can be had will not necessarily be prejudiced
3. Where the causes of action are between the same parties but by a judgment which does
pertain to different venues or jurisdiction, the joinder may be complete justice to the parties in
allowed in the RTC provided one of the causes of action falls court
within the jurisdiction of the said court, and the venue lies Should be joined under any and Should be joined whenever
therein all conditions, his presence being possible since it would merely
sine que non in the exercise of permit complete relief between

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 18


judicial power him and those already parties to action, irrespective of whether the causes of action arose out
the action of the same or different transactions

WHAT IS JOINDER OF CAUSES OF ACTION? WHEN IS THE TOTALITY RULE APPLICABLE?


• It is the uniting of two or more demands or rights of action in 1. In actions where the jurisdiction of the court is dependent on
a complaint the amount involved, the test of jurisdiction shall be the
• The question of the joinder of causes of action involves in aggregate sum of all the money demands, exclusive of
particular cases a preliminary inquiry as to whether two or interests and costs, irrespective of whether or not the separate
more causes of action are alleged claims are owned by or due to different parties. If any demand
is for damages in a civil action, the amount thereof must be
HOW DO YOU DETERMINE WHETHER MORE THAN ONE CAUSE OF alleged.
ACTION IS ALLEGED? 2. Cases were there are two or more plaintiffs having separate
1. Whether more than one primary right or subject of controversy causes of action against two or more defendants joined in a
is present complaint. (should arise of the same transaction or contract
2. Whether recovery on one ground would bar recovery on the and there is a common question of law or fact)
other
3. Whether the same evidence would support the other different HOW DOES THE TOTALITY RULE APPLY WITH RESPECT TO SEVERAL
counts and whether separate actions could be maintained for PLAINTIFFS AGAINST SINGLE DEFENDANT IN A SINGLE
separate relief COMPLAINT OR SINGLE PLAINTIFF AGAINST SEVERAL
4. Whether more than one primary distinct right or subject of DEFENDANTS IN A SINGLE COMPLAINT?
controversy is alleged for enforcement or adjudication • The totality rule applies as long as the same arose from a
single transaction or contract and there should be a common
DOES A PARTY STILL HAVE A SINGLE CAUSE OF ACTION question of law or fact
NOTWITHSTANDING DIFFERENT REMEDIES?
• Yes, the mere fact that the plaintiff prays for multiple reliefs MAY SPECIAL CIVIL ACTIONS BE FILED IN A SINGLE COMPLAINT?
doesn’t indicate that he has stated more than one cause of • No, because the rules expressly provide that while a party may
action assert many causes of action in one pleading, it likewise
• The prayer may be an aid in interpreting the petition and in imposes a limitation that a joinder shall not include special
determining whether or not more than one cause of action is civil actions
pleaded
SUPPOSING X, Y AND Z HAVE DIFFERENT CAUSES OF ACTION
MAY A PLAINTIFF FILE A SUIT AGAINST A DEFENDANT AND JOIN AGAINST A. MAY THEY FILE A SINGLE COMPLAINT?
SEVERAL CAUSES OF ACTION? • Yes because the totality rule applies to cases where two or
• Yes, the jurisdictional test is determined by the total demand more plaintiffs have different causes of actions against a single
of all causes of action irrespective of whether or not the causes defendant—provided that the same has arisen from the same
of action arose out of the same or different transactions transaction and contract and it involves the same questions of
law or fact
WHAT IS THE TOTALITY RULE?
• Where there are several claims and causes of action between WHAT IS THE EFFECT OF FAILURE TO OBJECT TO THE MISJOINDER
the same or different parties embodied in the same complaint, OF CAUSES OF ACTION?
the amount of demand shall be the total claims in all causes of • If there is no objection, it is deemed a waiver and it will be
adjudicated with the other causes of action

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 19


WHAT IS THE EFFECT OF A MISJOINDER OF CAUSES OF ACTION? SITUATION: IN P’S CASE AGAINST A, B AND C, WHICH AROSE FROM
• The effect is their separation and it is the duty of the court to DIFFERENT PROMISSORY NOTES ISSUED BY EACH DEBTOR, CAN
order their separation THE ACTION BE DONE?
• A misjoinder of causes of action is not a ground for dismissal • Yes, the totality rule covers situations wherein a single plaintiff
of an action. A misjoined cause of action may on motion of a has different causes of action against several defendants as
party or on the court’s initiative, be severed and proceeded long as it involves common questions of law or fact
with separately. • In this case, there is a question on liability on the promissory
notes issued by the three debtors
MAY THE COURT ORDER THE JOINDER OF ACTIONS?
• No SITUATION: IN P’S CASE AGAINST A, B AND C, TO WHICH COURT
SHOULD P FILE HIS CASE?
HOW MAY CAUSES OF ACTION BE JOINED? • The RTC, following the totality rule: aggregate sum to be
• They may be joined cumulatively or alternatively collected

HOW DO YOU CHARACTERIZE JOINDER OF CAUSES OF ACTION? IN P’S CASE AGAINST A FOR SEVERAL CAUSES OF ACTION, TO
• It is merely permissive WHICH COURT SHOULD P FILE HIS CASE?
• The MTC, following the totality rule, the aggregate amount is
HOW IS IDENTITY OF CAUSE OF ACTION DETERMINED? within the jurisdiction of the MTC
• To determine identity of cause of action, it must be
ascertained whether the same evidence which is necessary to SITUATION: P FILED A CASE AGAINST A FOR COLLECTION OF DEBT
sustain the second cause of action would have been sufficient OF P300,000. P ALSO FILED FOR REPLEVIN OF CAR COSTING
to authorize a recovery in the first P600,000. WHICH COURT HAS JURISDICTION?
• The MTC
A PARTY MUST PLEAD ALL CAUSES OF ACTION AS HE MAY HAVE • The totality rules doesn’t apply and the main action is the
AGAINST AN OPPOSING PARTY. IF EVER, THE CLAIMS ARE SUMS collection of P300,000 which is within jurisdiction of the MTC
OF MONEY, THE AGGREGATE AMOUNT OF THE CLAIMS SHALL BE
THE TEST OF JURISDICTION. WHAT DOES THIS RULE MEAN? SITUATION: P FILED A CASE AGAINST X TO COMPLY WITH
• This rule means that the different causes of action which are OBLIGATION OR PAY P300,000 FOR DAMAGES. WHICH COURT HAS
joined accrued in favor of the same plaintiffs and against the JURISDICTION?
same defendants and that no misjoinder of parties is involved • The MTC
• The issue of whether the claims should be lumped together is • Specific performance is incapable of pecuniary estimation per
determined by the totality rule se but in this case, it is no longer incapable of estimation as an
amount was given—P300,000—as such, this would be the
SITUATION: P FILED A CASE AGAINST A FOR P100,000; B FOR basis and thus, should fall under the MTC’s jurisdiction
P300,000; AND C FOR P200,000. CAN THIS BE DONE?
• Yes, this is an application of joinder of parties SITUATION: P FILED A CASE AGAINST X FOR REPLEVIN OF CAR
WORTH P300,000 AND UNPAID CAR RENTAL OF P150,000. CAN
SITUATION: P FILED A CASE AGAINST A FOR P100,000; P200,000; THIS ACTION PROSPER? WHICH COURT HAS JURISDICTION?
AND P50,000. CAN THIS BE DONE? • Yes, this can prosper
• Yes, this is an application of joinder of causes of action • MTC has jurisdiction, the controlling value is the P300,000
and the amount of P150,000 shouldn’t be taken into account
as it is not only incidental but also, the totality rule doesn’t
apply

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 20


2. When the suit is against a government officer or agency


SITUATION: P FILED A CASE AGAINST X FOR A LOAN OF MONEY OF without juridical personality
P200,000 AND ACCION PUBLICIANA OF A PROPERTY WORTH 3. When the suit against the officers or agents of government will
P60,000. CAN THIS BE DONE? AND IF IT CAN, WHAT COURT HAS involve financial liability of the government
JURISDICTION?
• It can be done, joinder of causes of action applies as there is HOW IS CONSENT GIVEN?
only a single defendant • Expressly or impliedly
• The RTC has jurisdiction because given different causes of
action, as long as one of the causes of action falls under the HOW IS CONSENT IMPLIEDLY GIVEN?
RTC’s jurisdiction, the RTC can take cognizance of the case 1. When the state enters into a private contract
2. When the state enters into a business operation unless it does
WHAT IS THE REASON FOR ALLOWING THE RTC TO TAKE so only as a necessary incident of its prime government
COGNIZANCE OF A CASE INVOLVING SEVERAL CAUSES OF ACTION? function
• The RTC has general jurisdiction while the MTC is of limited 3. When the state sues a private party unless the suit is entered
jurisdiction into only to resist a claim
4. When there is failure to abide by what the law or contract
requires
RULE 3: PARTIES TO AN ACTION
WHAT DOES THE TERM PLAINTIFF REFER TO?
WHO MAY BE PARTIES TO A CIVIL ACTION? • It may refer to the claiming party, the counter-claimant, cross-
1. Natural persons claimant, or the third/fourth-party plaintiff
2. Juridical persons • Not limited to the party who filed the initial action
3. Entities authorized by law
WHAT DOES THE TERM DEFENDANT REFER TO?
SPEAKING OF ONLY NATURAL AND JURIDICAL PERSONS BEING • It may refer to the original defending party, the defendant in
AUTHORIZED TO BE PARTIES TO A CIVIL ACTION, CAN AN the counter-claim, the cross-defendant, and the third-/fourth-
ORGANIZATION WITHOUT JURIDICAL PERSONALITY SUE? party defendant
• No, but its individual members can sue
WHO IS A REAL PARTY IN INTEREST?
DOES THE ABOVEMENTIONED ADMIT OF ANY EXCEPTIONS? IF YES, • He is the party who will be benefited or injured by the
WHAT ARE THESE? judgment or the party entitled to the avails of the suit
1. Class suit: when the parties are so numerous that it will be
impracticable to bring them all in court, in which case, one or UNDER WHOSE NAME SHOULD AN ACTION BE PROSECUTED AND
more may represent the parties DEFENDED?
2. When two or more persons associated in a business, transact • Every action must be prosecuted and defended in the name of
such business under a common name, in which case they may the real party in interest
be sued by such common name
3. In case of co-ownership, any one of the co-owners may file an WHAT IS THE REASON BEHIND THE RULE THAT ALL PARTIES
action for ejectment SHOULD BE IMPLEADED?
• It is intended to bring before the court parties rightfully
WHAT IS A SUIT AGAINST THE STATE? interested in the litigation so that only real controversies
1. When the suit is against the Republic of the Philippines

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 21


WHAT IS THE PURPOSE OF THE RULE ON REAL PARTY-IN-


INTEREST? WHO ARE NECESSARY PARTIES?
1. To prevent the prosecution of actions by persons without any • Persons who are not indispensible but who ought to be joined
right, title or interest in the case as a party if complete relief is to be accorded as to those
2. To require that the actual party entitled to legal relief be the already parties, or for a complete determination or settlement
one to prosecute the action of the claim subject of the action
3. To avoid multiplicity of suits
4. To discourage litigation and keep it within certain bounds, DISTINGUISH PROPER PARTY AND INDISPENSIBLE PARTY
pursuant to sound public policy INDISPENSIBLE PARTY PROPER PARTY
An indispensible party must be A proper party must be joined if
WHAT IS THE MEANING OF “INTEREST”? joined in order there may be final possible to have an adjudication
• This means material, actual and personal interest in the issues to determination of an action of the whole controversy and
be affected by the decree or judgment of the case, as avoid multiplicity of suits
distinguished from mere curiosity about the question involved
or incidental interest IF A NECESSARY PARTY IS NOT IMPLEADED IN A SUIT WHAT
• Real interest is the presence of substantial interest as SHOULD BE DONE?
distinguished from mere expectancy or mere contingency • Whenever in a pleading a necessary party is not included, the
interest pleader must state the reason why he is omitted
• If the court finds claim to be unmeritorious, it may order the
DIFFERENCE BETWEEN REAL PARTY IN INTEREST AND LOCUS inclusion of the necessary party if jurisdiction over his person
STANDI. may be obtained
REAL PARTY IN INTEREST LOCUS STANDI
Applies to private litigants Refers to standing involving IS IT A FATAL DEFECT TO A CASE WHEREIN AN INDISPENSIBLE
constitutional issues PARTY IS NOT IMPLEADED?
• It is not fatal as the indispensible party may be impleaded in
IS THE RULE THAT A PERSON WHO IS NOT A PARTY TO A the case at any stage of the proceedings
CONTRACT IS NOT A REAL PARTY-IN-INTEREST ABSOLUTE? • The presence of the indispensible party is sine que non to the
• No exercise of judicial power
• As an exception, parties who haven’t taken part in the contract • In case of judgment rendered, this can be assailed as void
may show that they have a real interest affected by its
performance or annulment CAN THE NON-JOINDER OF INDISPENSIBLE PARTIES BE A GROUND
• Contracts pour atrui are part of the exception FOR MOTION TO DISMISS?
• They must show however that there was clear and deliberate • No as a party may be impleaded at any stage of the
conferment of favor upon a third person and not merely an proceedings
incident benefit
WHAT SHOULD THE COURT DO IF AN INDISPENSIBLE PARTY IS
WHO ARE PROPER PARTIES? NOT IMPLEADED IN A SUIT?
• Persons who are not indispensible but who ought to be parties • If an indispensible party hasn’t been joined or impleaded, it is
if complete relief is to be accorded as between those already the duty of the court to stop the trial and order the inclusion of
parties, haven’t been made parties and are subject to the such party
jurisdiction of the court as to both service of process and • If not joined, the remedy is dismissal of the action if despite
venue the order of the court to amend and implead such party, the

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 22


plaintiff fails to amend (failure to comply with the lawful order


of the court) Joint Solidary
X is the
Bank debtors: A, debtors of
B and C ABC: X, Y, Z debtor of Z
WHAT IS THE REASON FOR SUCH DISMISSAL FOR FAILURE TO
IMPLEAD INDISPENSIBLE PARTY?
• There can be no final determination of the case without an
indispensible party CAN THE BANK SUE A, B, C, X, Y, Z?
• No
WHAT IS THE EFFECT IF THE COURT PROCEEDED WITHOUT THE • Only with respect to A, B, and C as there is no privity of
INCLUSION OF AN INDISPENSIBLE PARTY? contract between the bank and X, Y, and Z
• Absence of indispensible party renders all subsequent acts of
the court void for want of authority to act, the rule applies to WHAT KIND OF PARTIES ARE A, B, AND C?
all parties joined and to parties not joined • Either one of them is the indispensible party while the other
two will become necessary parties for the complete
WHAT ARE THE TWO TESTS TO DETERMINE IF A PARTY IS determination of the case
INDISPENSIBLE OR NOT?
1. Can relief be afforded to the plaintiff without the presence of IF A, B AND C IS SUED, WHAT IS THE RECOURSE OF THE THREE?
the other party? • There is recourse is to file a third-party complaint against X, Y
2. Can the case be decided on the merits without prejudicing the and Z
rights of the other parties?
WHAT KIND OF PARTIES ARE X, Y AND Z?
IS THE RULE ON IMPLEADING ALL INDISPENSIBLE PARTIES • Either one of them can be an indispensible party and the rest
ABSOLUTE? will neither be indispensible nor necessary for the full
• No determination of the case
• While it is true that an action may not be entertained or should • Solidary obligation involved
be dismissed if an indispensible party is not joined, yet, the
rule is not true where it appears that the naming of the party IF X, Y AND Z ARE SUED, WHAT IS THE RECOURSE OF Z?
would be a mere formality • The recourse of Z is to file a separate action against X on the
basis of latter’s debt to Z
WHAT IS THE EFFECT IF THE PLEADER FAILS TO COMPLY WITH THE • A cross-claim may be resorted to later on if X failed to
ORDER OF THE COURT TO IMPLEAD NECESSARY PARTY? contribute after judgment was rendered ordering payment
• The effect of such failure if without justifiable cause is that, the
claim is deemed waived NOTES ON PERMISSIVE JOINDER OF CAUSES OF ACTION AND OF
PARTIES:
WILL THE NON-INCLUSION PREVENT THE PROSECUTION OF THE • Permissive joinder of parties: causes of action has the same
ACTION? application of law (e.g money obligation)
• No, but the judgment is without prejudice to the rights of the • Permissive joinder causes of action: same defendant
necessary party o There could be differences in the causes of action
• Application of the totality rule: which court has jurisdiction?
o Total amount of being claimed
o If P300,000 or P400,000, then MTC; otherwise, RTC.
o For causes of action: should be the same—all about
money claims

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 23


• Determining jurisdiction with different causes of action 3. When there is separation of property as agreed upon in
o If both within MTC, then MTC marriage settlements
o If there is difference in jurisdiction, the court with 4. If administration of property has been lodged on her
higher jurisdiction should take jurisdiction (RTC has 5. When the litigation is between husband and wife
general jurisdiction) 6. If the suit concerns her paraphernal property
o Take into consideration the main action 7. When the suit concerns civil liability arising from a criminal
o Regarding specific performance, generally incapable offense
of pecuniary estimation but if there is amount 8. If the litigation is incidental to the profession, business or
involved, then base jurisdiction on this occupation in which she is engaged
• Non-joinder of parties is not a ground to dismiss a case; but 9. In any civil action referred to in Articles 25 to 35 of the CC
take into consideration what type of party is involved 10. In an action upon a quasi-delict
o In indispensible parties, the remedy is certiorari in
questioning jurisdiction over the subject matter WHAT IS THE EFFECT IF THEY SHOULD SUE JOINTLY BUT THE WIFE
o Solidary obligation: either one of the parties is an ONLY SUED ALONE?
indispensible party to the exclusion of the others • It is merely a procedural defect and it may be corrected by
o Joint obligation: either one may be an indispensible amendment of the complaint
party and the others would be a necessary party • It is not a jurisdictional defect
• In not impleading a necessary party, the plaintiff should
explain why he is not impleaded. If court is not convinced, the WHAT IS THE REMEDY AGAINST AN UNWILLING PLAINTIFF?
court may order the person impleaded. If the court order is • An unwilling plaintiff may be joined as a co-defendant
not followed, the case is dismissable for failure to comply with
the order of the court. WHAT IS AN EXAMPLE OF AN UNWILLING PLAINTIFF?
• Condition for necessary party to be made liable: the court may • A and B are co-creditors of X who defaulted in payment. A is
acquire jurisdiction over his person unwilling to file an action against X.

MAY AN ACTION IN THE NAME OF AN AGENT BE FILED? WHAT IS THE REASON FOR IMPLEADING AS CO-DEFENDANT AN
• No as he is not the real party-in-interest UNWILLING PLAINTIFF?
• So that the court may acquire jurisdiction over the person of
WHAT IS THE REMEDY AVAILABLE IN CASE AN ACTION WAS FILED the unwilling plaintiff
IN THE AGENT’S NAME?
• The remedy is substitution IS IT POSSIBLE TO JOIN PARTIES-DEFENDANTS ALTERNATIVELY?
• Yes where the plaintiff is uncertain against which of the several
WHEN MUST THE HUSBAND AND WIFE SUE OR BE SUED JOINTLY? defendants he is entitled to relief, he may join any or all of
• In the exercise of rights as co-administrators of the absolute them as defendants in the alternative, although a right to relief
community of property or conjugal partnership against one may be inconsistent with a right to relief against
the other
WHEN CAN THE HUSBAND AND WIFE BE SUED ALONE?
• When the law so provides, like when he/she exercises her HOW MAY AN UNKNOWN DEFENDANT BE JOINED AS A PARTY?
rights over his/her separate properties • Whenever the identity or name of the defendant is unknown, he
may be sued as the unknown owner, heir or devisee, or by
WHEN MAY A MARRIED WOMAN BE SUED ALONE? such other designation as the case may require, but when his
1. When they are judicially separated identity or true name is discovered, the pleading may be
2. If they have been separate in fact for at least a year amended accordingly

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 24


• Failure of the plaintiff to make the substitution for defendant


HOW MAY ONE ACQUIRE JURISDICTION OVER AN UNKNOWN after order by the court doesn’t tantamount to failure to
DEFENDANT? prosecute
• Through the publication of summons in a newspaper of
general circulation WHAT IS THE EFFECT OF DEATH OF A PARTY TO THE JUDGMENT?
• If the action survived, the validity of judgment is not affected
WHAT ARE THE REQUISITES OF A CLASS SUIT? as the same is binding and enforceable upon the successors-
1. Subject of controversy is of common or general interest to in-interest of the deceased litigant by title subsequent to the
many persons commencement of the action
2. Persons are so numerous that it is impractical to bring them
all to court WHAT HAPPENS IF THE LEGAL REPRESENTATIVE FAILS TO
3. Parties actually before the court are sufficiently numerous and APPEAR?
representative so that all interests concerned are fully • The court may order the opposing party within a given period
protected to procure the appointment of an executor or administrator
who shall immediately appear for the estate of the deceased
CAN THERE BE A CLASS SUIT IN RECOVERY OF PROPERTY?
• None, there can be no class suit in actions for recovery of WHAT ARE THE ACTIONS THAT SURVIVE THE DEATH OF A
property against several persons occupying different portions LITIGANT?
of property 1. Action to recover real or personal property or interest therein
in an estate
WHAT IS THE FIRST EFFECT OF A DEATH OF A PARTY IN A CASE? 2. Action to enforce lien on the properties
• Death of a client terminates client-attorney relationship 3. Action to recover damages for injury to property, real or
personal
WHAT IS ITS EFFECT ON THE ACTION?
• It may or may not survive depending upon the nature of the FOR THE ACTIONS THAT SURVIVE THE DEATH OF LITIGANT, TO
action and the damage sued for WHOM AGAINST SHOULD THE ACTIONS BE FILED?
• The executor or administrator
WHAT IS THE DUTY OF THE COURT IN CASE IT RECEIVES NOTICE
OF DEATH OF A PARTY? WHAT IS ONE’S REMEDY IF THE ACTION INVOLVED DOES NOT
• It is the duty of the court after notice and the claim is not SURVIVE AFTER DEATH OF THE LITIGANT?
hereby extinguished, to order upon proper notice, the legal • Remedy is to file a claim against the probate court involved
representatives of the decedent to appear within 30 days or
such time as it may grant WHAT ARE THE EFFECTS OF THE DEATH OF THE DEFENDANT IN
CASE OF PENDENCY OF ACTION AGAINST HIM?
IN CASE OF DEFENDANT’S DEATH IN A SUIT, WHO IS OBLIGED TO 1. Action still pending appeal, continue the appeal and after final
INFORM THE COURT OF SUCH EVENTUALITY? WHAT IS THE EFFECT judgment, a claim in administrative proceedings within the
IF THE COUNSEL FAILS TO DO SO? time limit
• It is the duty of his counsel to inform the court within thirty 2. If death occurred prior to the levy, judgment is not enforceable
(30) days after such death of the fact thereof, and to give the by writ of execution. Remedy is to file claim in probate court.
name and address of his legal representative or 3. Action for foreclosure of mortgage survives. It can be enforced
representatives against administrator without need of filing claim with probate
court

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 25


4. Breach of contract must be dismissed while a tort action may • The court may make such order as may be just to prevent any
remain plaintiff or defendant from being embarrassed or put to
5. Action for ejectment survives the death of the lessee. Issue of expense in connection with any proceedings in which he may
illegality of possession is still alive and upon its resolution have no interest
depends the corollary issue of amount of rentals to be
recovered. WHEN IS JOINDER OF PARTIES COMPULSORY?
• It is compulsory if no final determination can be had of the
WHAT IS THE EFFECT OF DEATH OF ACCUSED DURING PENDENCY action
OF APPEAL OF CONVICTION?
• His criminal liability as well as his civil liability arising solely WHAT ARE THE RULES IN MATTERS OF RIGHTS OF A FOREIGN
from the offense charged is extinguished CORPORATION TO BE A PARTY IN AN ACTION IN THE PHILIPPINES?
• It doesn’t affect civil liability not arising from the criminal 1. If it is legally engaged in business in the Philippines, it may
offense as the same may subsist provided that it is the sue and be sued in the Philippines
administrator who is impleaded in the action 2. If it is illegally engaged in business, it cannot sue but it can be
sued
IN A SUIT BETWEEN MEMBERS OF THE SAME FAMILY, WHAT 3. A foreign corporation not engaged in business may sue in our
FUNDAMENTAL REQUIREMENTS MUST BE COMPLIED WITH? courts on a single isolated transaction but cannot be sued
• In cases of suits between members of the same family,
allegations of earnest efforts toward a compromise is a MAY A CASE BE DISMISSED ON THE GROUND OF MISJOINDER OR
condition precedent to the filing of such suits NON-JOINDER OF PARTIES?
• No, neither are grounds for dismissal of a case—parties may
WHAT IS THE REMEDY FOR NON-COMPLIANCE WITH EARNEST be dropped or joined by order of the court on motion of either
EFFORTS TO COMPROMISE? party or on its own initiative at any stage of the action
• The case may be dismissed for lack of cause of action
• It is not a jurisdictional defect however HOW MAY TWO OR MORE PERSONS NOT ORGANIZED AS AN ENTITY
WITH JURIDICAL PERSONALITY BE SUED?
WHAT IS THE BASIS FOR PERMISSIVE JOINDER OF PARTIES? • They may be sued under the name by which they are generally
• It is the equity rule relating to multifariousness or commonly known
• Based on trial convenience and is designed to permit the
joinder of plaintiffs and defendants whenever there is a WHAT SHOULD THE ANSWER INDICATE TO THE AFOREMENTIONED?
common question of law and fact • The names and addresses of the persons comprising said
entity must all be revealed
IS JOINDER OF PARTIES PERMISSIVE?
• As a general rule, yes CAN THERE BE ALTERNATIVE DEFENDANTS IN THE CASE OF THE
AFOREMENTIONED?
WHEN IS JOINDER OF PARTIES PERMISSIVE? • Yes but one cannot sue a partner who is a limited partner
1. There is a general right in favor of or against the parties joined because his limited liability
in respect to or arising out of the same transaction or series of
transactions HOW WILL SUMMONS BE SERVED UPON THEM?
2. There is a question of law or fact common to all parties • It may be served upon anyone of them, or upon the person in
charge of the office or place of business maintained under
WHAT SHOULD THE COURT DO IF IT IS FOUND OUT THAT THE such name
PARTIES SO JOINED DO NOT HAVE INTEREST IN THE SUIT?

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 26


HOW SHALL JUDGMENT BE RENDERED AGAINST THEM? days after the successor takes office or such time as may be
• The judgment shall set out their individual or proper names if granted by the court, it is satisfactorily shown to the court by
known any party that there is a substantial need for continuing or
maintaining it and that the successor adopts or continues or
HOW MAY ASSOCIATES BE JOINED AS DEFENDANTS? threatens to adopt or continue to adopt or continue the action
• When two or more persons, associated in any business, of his predecessor.
transact any business under a common name, whether it • Before a substitution is made, the party or officer to be
comprises names of such persons or not, the associates may affected, unless expressly assenting thereto, shall be given
be sued by such common name reasonable notice of the application therefor and accorded an
opportunity to be heard.

IN A CORPORATION BY ESTOPPEL, HOW WOULD THE MEMBERS OF REVIEW: EFFECT OF DEATH, RESIGNATION OR REMOVAL OF PUBLIC
THE CORPORATION BE HELD LIABLE? OFFICER DURING PENDENCY OF ACTION AGAINST HIM IN HIS
• They are held liable as general partners wherein the liability OFFICIAL CAPACITY
can be charged even against their own personal and real 1. Public officer is a party to an action in his official capacity
properties, in excess of what they have actually contributed to 2. During pendency, he dies, resigns or otherwise is removed
the corporation by estoppel from office
3. Action may be continued or maintained if within 30 days after
DISTINGUISH DE FACTO CORPORATION AND CORPORATION BY successor takes office or after such time as the court may
ESTOPPEL. grant there is satisfactory showing that there is substantial
DE FACTO CORPORATION CORPORATION BY ESTOPPEL need to continue or maintain it
Simple defect in the registration Serious defect or no registration 4. Successor adopts or continues the action
of the corporation at all 5. Reasonable notice of application to the successor
Quo warranto proceeding must be May be done through collateral
instituted to attack the personality attack IF AN INCUMBENT OFFICER FILES A COMPLAINT BUT THE
of the corporation (by which SUCCESSOR DOESN’T MANIFEST HIS INTEREST TO CONTINUE,
authority?) WHAT SHOULD THE COURT DO?
• If the successor failed to pursue the appeal or the action, the
Must be direct attack same should be dismissed

AN ESTATE OF A DECEASED PERSON IS AN EXAMPLE OF AN WHAT HAPPENS TO A SUIT IF A PARTY BECOMES INCOMPETENT?
ENTITY WITHOUT JURIDICAL PERSONALITY. CAN IT SUE AND BE • If the party becomes incompetent or incapacitated, the court
SUED? may upon motion with notice, may allow the action to be
• It cannot sue but can be sued continued by or against his representatives
• It can only sue through its administrator or executor
WHAT IS THE EFFECT OF TRANSFER OF INTEREST?
WHAT IS THE EFFECT OF THE DEATH OR SEPARATION OF AN • In case of any transfer of interest, the action may be continued
OFFICER OF THE PHILIPPINES IF HE IS A PARTY TO A SUIT? by or against the original party, unless the court upon motion
• When a public officer is a party in an action in his official directs the person to whom the interest is transferred to be
capacity and during its pendency dies, resigns, or otherwise substituted in the action or joined with the original party.
ceases to hold office, the action may be continued and
maintained by or against his successor if, within thirty (30) CAN AN ACTION BE CONTINUED UPON TRANSFER OF INTEREST?

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 27


• Yes, the action may be continued by or against the original • A party may be authorized to litigate his action, claim or
party defense as an indigent if the court, upon an ex parte
• Unless the court upon motion directs the person to whom the application and hearing, is satisfied that the party is one who
interest is transferred to be substituted in the action or joined has no money or property sufficient and available for food,
with the original party shelter and basic necessities for himself and his family.

WHO IS THE REAL PARTY-IN-INTEREST IN CASE OF TRANSFER OF MAY THE ORDER GRANTING A PARTY THE RIGHT TO LITIGATE AS
INTEREST? AN INDIGENT BE CONTESTED?
• The transferee • Yes, any adverse party may contest the grant of such authority
at any time before judgment is rendered by the trial court
WHAT HAPPENS IF THE DEFENDANT IN AN ACTION FOR MONEY • If the court should determine after hearing that the party
CLAIMS DIES DURING PENDENCY OF THE ACTION? declared as an indigent is in fact a person with sufficient
• An action shall not be dismissed but shall instead be allowed income or property, the proper docket and other lawful fees
to continue until entry of final judgment shall be assessed and collected by the clerk of court. If
• A favorable judgment obtained by the plaintiff therein shall be payment is not made within the time fixed by the court,
enforced in the manner especially provided in these Rules for execution shall issue or the payment thereof, without prejudice
prosecuting claims against the estate of a deceased person to such other sanctions as the court may impose.

WHAT IS THE REASON FOR THE SUBSTITUTION? DIFFERENCE BETWEEN (1) CASE FILED AGAINST THE DEBTOR WHO
• The rule on substitution of parties was crafted to protect every HAS DIED DURING THE PENDENCY AND JUDGMENT WAS
party’s right to due process RENDERED AND (2) CAUSE OF ACTION AGAINST DEBTOR WHO HAS
• The estate of the deceased party shall continue to be properly DIED BEFORE ANY PROCEEDINGS WERE INSTITUTED.
represented in the suit through the duly appointed legal • In the first instance, there was already a case filed and during
representative the pendency, the debtor died. The final judgment was
rendered. Therefore, this judgment should just be presented
WHAT IS THE EFFECT OF NO PROPER SUBSTITUTION? against the estate to claim payment. It has been properly
• The judgment and proceedings are void if there is no litigated.
appearance of legal representative of the deceased • In the second instance, there is a cause of action against a
• The court has acquired no jurisdiction over the persons of the debtor who died before any formal action has been filed. This
legal representatives or the heirs upon whom the judgment is does not enjoy any preference and treated as an ordinary debt.
binding
SITUATION: B WAS DRIVING A CAR AND WAS BUMPED BY
IS THE RULE ABSOLUTE? ANOTHER, CAUSING B PHYSICAL INJURIES, WHILE THE OTHER
• No, a formal substitution is not necessary if the heirs or legal PERSON DIED. WHERE CAN B FILE THE CASE?
representatives voluntarily appeared and participated in the • At the onset, there is no substitution as no case has been filed
case and present evidence in defense of the deceased yet when the defendant died.
• The recourse is to go after the estate of the deceased
WHAT IS THE NATURE OF SUBSTITUTION BY HEIRS? defendant
• The rule on substitution by heirs is not a matter of jurisdiction
but a requirement of due process
RULE 4: VENUE OF ACTIONS
WHEN MAY A PARTY BE ALLOWED TO LITIGATE AS AN INDIGENT?
Section 1. Venue of real actions. Actions affecting title to or

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 28


possession of real property, or interest therein, shall be commenced 1. All other actions may be commenced and tried where the
and tried in the proper court which has jurisdiction over the area plaintiff or any of the principal plaintiffs resides, or
wherein the real property involved, or a portion thereof, is situated. 2. Where the defendant or any of the principal defendants
resides, or
Forcible entry and detainer actions shall be commenced and tried in 3. In the case of a non-resident defendant where he may be
the municipal trial court of the municipality or city wherein the real found, at the election of the plaintiff
property involved, or a portion thereof, is situated. (1[a], 2[a]a)
WHAT ARE THE EXCEPTIONS TO RULE?
Section 2. Venue of personal actions. All other actions may be 1. In those cases where a specific rule or law provides otherwise
commenced and tried where the plaintiff or any of the principal a. In the case of a non-resident defendant not found in
plaintiffs resides, or where the defendant or any of the principal the Philippines, and the action affects the personal
defendants resides, or in the case of a non-resident defendant where he status of the plaintiff, or any property of said
may be found, at the election of the plaintiff. (2[b]a) defendant located in the Philippines, the action may
be commenced and tried in the court of the place
Section 3. Venue of actions against nonresidents. If any of the where the plaintiff resides, or where the property or
defendants does not reside and is not found in the Philippines, and the any portion thereof is situated or found.
action affects the personal status of the plaintiff, or any property of b. Defendant cannot be found
said defendant located in the Philippines, the action may be 2. Where the parties have validly agreed in writing before the
commenced and tried in the court of the place where the plaintiff filing of the action on the exclusive venue thereof.
resides, or where the property or any portion thereof is situated or
found. (2[c]a) WHAT IF THE VENUE IS NOT CLEARLY EXCLUSIVE?
• Then it is merely an added venue
Section 4. When Rule not applicable. This Rule shall not apply.
WHAT IS THE RULE FOR ACTIONS IN REM AND QUASI IN REM
(a) In those cases where a specific rule or law provides otherwise; or WITH RESPECT TO A NON-RESIDENT DEFENDANT?
• In case of property of non-resident defendant who cannot be
(b) Where the parties have validly agreed in writing before the filing of served summons, any judgment would be limited to the res
the action on the exclusive venue thereof. (3a, 5a) and no deficiency judgment may be obtained as the court’s
jurisdiction is limited to the res
WHAT IS VENUE?
• The place where an action must be instituted and tried IS AN ACTION FOR REVIVAL OF JUDGMENT OVER REALTY AN
• Place of trial or geographical location in which an action or ACTION IN REM OR IN PERSONAM? WHERE IS THE PROPER
proceeding should be brought and not to the jurisdiction of the VENUE FOR THE ACTION?
court • The action is a real action being an action for revival of
judgment over realty and the venue is with the RTC of the
WHERE IS THE VENUE FOR REAL ACTIONS? place where the realty is located
• Actions affecting title to or possession of real property, or
interest therein, shall be commenced and tried in the proper WHAT KIND OF ACTION IS A CANCELLATION OF MORTGAGE?
court which has jurisdiction over the area wherein the real • It is a personal action
property involved, or a portion thereof, is situated.
WHAT KIND OF ACTION IS A FORECLOSURE OF MORTGAGE?
WHERE IS THE VENUE FOR PERSONAL ACTIONS? • It is real action
• It involves the title to or possession of real property

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 29


TO WHICH ACTIONS DOES THE RULE STATING THAT IF AN ACTION


WHAT KIND OF ACTION IS ONE WHICH COMPELS MORTGAGEE TO IS FILED AT A WRONG VENUE, A MOTION TO DISMISS MUST BE
ACCEPT PAYMENT AND CANCEL THE MORTGAGE? FILED ON THE GROUND OF IMPROPER VENUE, OTHERWISE IT IS
• It is a personal action, absent any foreclosure as the same DEEMED WAIVED, APPLICABLE?
does not involve any question on the possession and title to • To both personal and real actions
property
WITHIN WHAT PERIOD SHOULD ONE FILE A MOTION TO DISMISS
WHAT ARE SAMPLES OF REAL ACTIONS? ON THE GROUND OF IMPROPER VENUE?
1. Judicial foreclosure of real estate mortgage • It is made within the time for pleading on the ground of
2. Actions to annul real estate mortgage improper venue
• If the same is not invoked and the defendant answers, the
WHAT IS THE RULE ON VENUE WITH RESPECT TO NON-RESIDENT objection is deemed waived
DEFENDANTS?
• If any of the defendants does not reside and is not found in the MAY THE COURT MOTU PROPRIO DISMISS A COMPLAINT ON THE
Philippines, and the action affects the personal status of the GROUND OF IMPROPER VENUE?
plaintiff, or any property of said defendant located in the • No, the court cannot preempt the defendant’s prerogative to
Philippines, the action may be commenced and tried in the object to the improper laying of the venue by motu proprio
court of the place where the plaintiff resides, or where the dismissing the case
property or any portion thereof is situated or found.
MAY AN ACTION BE FILED AGAINST A CORPORATION IN PLACES
IS THE RULE ON VENUE PERTAINING TO REAL ACTIONS WHERE IT REMAINS IT BRANCHES?
ABSOLUTE? • No, an action cannot be filed against a corporation in any
• No, they shall not apply— place where th corporation maintains its branch offices
o In those cases where a specific rule or law provides
otherwise SUPPOSE THE AGREEMENT ON VENUE IS EXCLUSIVE, MAY ONE
o Where the parties validly agreed in writing before the FILE A CASE IN ANY OTHER PLACE?
filing of action on the exclusive venue thereof • No, as the agreement on an exclusive venue is compulsory

THE PARTIES STIPULATED IN THE CONTRACT THAT “ALL SUITS WHAT’S THE VENUE FOR LIBEL CASES?
ARISING FROM THIS CONTRACT SHALL BE FILED IN THE PROPER • Venue is the RTC of the province or city where the libelous
COURTS OF QUEZON CITY”. IS THIS STIPULATION EXCLUSIVE? article was printed and first published when the complainant is
• No, if the parties intended that the place specified is exclusive, a public officer
they must employ a categorical and suitable limiting and
categorical language, that they wish the venue of all actions WHEN SHOULD VENUE BE RAISED IN AN ACTION?
between them to be laid only and exclusively at a definite 1. In a motion to dismiss filed within the time before the filing of
place, otherwise it is permissive the answer
2. In the answer in an affirmative defense over which in the
HOW SHOULD VENUE STIPULATIONS BE CONSTRUED? discretion of the court, a preliminary hearing is to be held as if
• Venue stipulations should be construed as merely permissive a motion to dismiss had been filed.
and that stipulations should be adopted which most serves the Otherwise it is deemed waived.
parties’ convenience
RULE 5: UNIFORM PROCEDURE IN TRIAL COURTS

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 30


Section 1. Uniform procedure. The procedure in the Municipal Trial WHAT ARE THE CIVIL CASES THAT ARE GOVERNED BY THE RULES
Courts shall be the same as in the Regional Trial Courts, except (a) ON SUMMARY PROCEDURE?
where a particular provision expressly or impliedly applies only to 1. All cases of forcible entry and unlawful detainer, irrespective of
either of said courts, or (b) in civil cases governed by the Rule on the amount of damages or unpaid rentals sought to be
Summary Procedure. (n) recovered. Where attorney's fees are awarded, the same shall
not exceed twenty thousand pesos (P20,000.00).
Section 2. Meaning of terms. The term "Municipal Trial Courts" as 2. All other civil cases, except probate proceedings, where the
used in these Rules shall include Metropolitan Trial Courts, Municipal total amount of the plaintiff's claim does not exceed P100,000
Trial Courts in Cities, Municipal Trial Courts, and Municipal Circuit or P200,000 exclusive of interest and costs
Trial Courts. (1a)
WHAT ARE THE CRIMINAL CASES THAT ARE GOVERNED BY THE
ARE THE RULES OF PROCEDURE IN THE MUNICIPAL AND RULES ON SUMMARY PROCEDURE?
REGIONAL TRIAL COURTS THE SAME? IS THE RULE ABSOLUTE? 1. Violations of traffic laws, rules and regulations;
• Yes 2. Violations of the rental law;
3. Violations of municipal or city ordinances;
WHAT ARE THE EXCEPTIONS? 4. All other criminal cases where the penalty prescribed by law
1. Where a particular provision expressly or impliedly applies for the offense charged is imprisonment not exceeding six
only to either said courts months, or a fine not exceeding (P1,000.00), or both,
a. If an appeal is taken from an order of the lower court irrespective of other imposable penalties, accessory or
dismissing the case without a trial on the merits, the otherwise, or of the civil liability arising therefrom:
RTC may affirm or reverse it, as the case may be. In
case of affirmance and the ground of dismissal is lack Provided, however, that in offenses involving damage to
of jurisdiction over the subject matter, the RTC, if it property through criminal negligence, this Rule shall govern
has jurisdiction thereover, shall try the case on the where the imposable fine does not exceed ten thousand pesos
merits as if the case was originally filed with it. in (P10,000.00).
case of reversal, the case shall be remanded for
further proceedings. WHAT RULE GOVERNS THE DISPOSITION OF CASES FOR
VIOLATIONS OF BP 22?
If the case was tried on the merits by the lower court • The rules on summary procedure
without jurisdiction over the subject matter, the RTC
on appeal shall not dismiss the case if it has original IN WHAT CASES DO THE RULES ON SUMMARY PROCEDURE NOT
jurisdiction thereof but shall decide the case in APPLY?
accordance with the preceding section, without • This Rule shall not apply to a civil case where the plaintiffs
prejudice to the admission of amended pleadings and cause of action is pleaded in the same complaint with another
additional evidence in the interest of justice. cause of action subject to the ordinary procedure; nor to a
criminal case where the offense charged is necessarily related
b. Forcible entry and unlawful detainer cases as to another criminal case subject to the ordinary procedure
governed by the Rules on Summary Procedure
WHAT SHOULD THE COURT DO UPON THE FILING OF A COMPLAINT
2. In civil cases governed by the Rules on Summary Procedure IN AN INFERIOR COURT?

RULES ON SUMMARY PROCEDURE

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 31


• Upon filing of a civil or criminal case, the court shall issue an warranted by the facts alleged in the complaint and limited to
order declaring whether the case is governed by the rules on what is prayed for therein
summary procedure • The court may in its discretion reduce the amount of damages
and attorney's fees claimed for being excessive or otherwise
WHAT ARE THE PLEADINGS ALLOWED UNDER THE RULES? unconscionable. This is without prejudice to the applicability of
1. Complaint Section 4, Rule 15 of the Rules of Court, if there are two or
2. Compulsory counterclaim more defendants
3. Cross-claim pleaded in the answer
4. Answers thereto MAY DEFENSES BE WAIVED UNDER THE RULES ON SUMMARY
PROCEDURE?
WHAT IS THE BASIC REQUIREMENT FOR ALL PLEADINGS FILED • Affirmative and negative defense are deemed waived if not
UNDER THE RULES? pleaded in the answer, except lack of jurisdiction over the
• It must be verified subject matter
• Cross claims and compulsory counterclaims are deemed
WHAT IS THE EFFECT OF NON-COMPLIANCE WITH THE barred if not pleaded
REQUIREMENT OF VERIFICATION? o Only those within the court’s jurisdiction are deemed
• None. It is merely a formal defect that may amended and barred
cured.
IN THE CASE WHERE AN ANSWER IS FILED OUT OF TIME, MAY THE
AFTER A COMPLAINT IS FILED, MAY THE COURT DISMISS IT COURT RENDER JUDGMENT BASED ON THE COMPLAINT?
OUTRIGHT? • Yes, it may on the basis of the allegations set forth in the
• The court can dismiss the complaint outright on any ground complaint.
apparent therefrom for the dismissal of a civil action after the
examination of the complaint and the evidence attached IN AN ANSWER WITH AFFIRMATIVE DEFENSES, UNDER THE RULES,
MAY A PRELIMINARY HEARING BE HELD ON THESE DEFENSES?
WITHIN WHAT PERIOD SHOULD AN ANSWER BE FILED UNDER THE • The rules doesn’t prohibit the filing of an answer with
RULES? affirmative defenses
• Within ten (10) days from service of summons, the defendant • However, trial courts are enjoined from conducting a
shall file his answer to the complaint and serve a copy thereof preliminary hearing on such affirmative defenses to prevent
on the plaintiff. Affirmative and negative defenses not pleaded unnecessary delay in disposing the case on the merits
therein shall be deemed waived, except for lack of jurisdiction • Adjudication can be done on the basis of affidavits and other
over the subject matter. evidence
• Cross-claims and compulsory counterclaims not asserted in
the answer shall be considered barred. The answer to WHAT ARE THE RULES WITH RESPECT TO NON-APPEARANCE OF
counterclaims or cross-claims shall be filed and served within PARTIES IN THE PRELIMINARY CONFERENCE?
ten (10) days from service of the answer in which they are 1. Not later than thirty (30) days after the last answer is filed, a
pleaded. preliminary conference shall be held. The rules on pre-trial in
ordinary cases shall be applicable to the preliminary
CAN THE COURT RENDER JUDGMENT IF THERE IS FAILURE TO conference unless inconsistent with the provisions of this Rule.
ANSWER? WHAT IS THE EFFECT OF FAILURE TO ANSWER? 2. The failure of the plaintiff to appear in the preliminary
• Yes, should the defendant fail to answer the complaint within conference shall be a cause for the dismissal of his complaint.
the period above provided, the court, motu proprio, or on The defendant who appears in the absence of the plaintiff shall
motion of the plaintiff, shall render judgment as may be be entitled to judgment on his counterclaim in accordance with

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 32


Section 6 hereof. All cross-claims shall be dismissed. and other evidence together with their position papers setting
3. If a sole defendant shall fail to appear, the plaintiff shall be forth the law and facts relied by them
entitled to judgment in accordance with Section 6 hereof. This
Rule shall not apply where one of two or more defendants sued WITHIN WHAT PERIOD SHOULD THE COURT DECIDE THE CASE?
under a common cause of action who had pleaded a common • Within thirty (30) days after receipt of the last affidavits and
defense shall appear at the preliminary conference. position papers, or the expiration of the period for filing the
same, the court shall render judgment.
WHAT SHOULD BE CONTAINED IN AN ORDER AFTER THE
PRELIMINARY CONFERENCE? WHAT DOES THE COURT DO IN CASE OF A NEED FOR
1. Whether the parties have arrived at an amicable settlement, CLARIFICATIONS? HOW DOES THIS AFFECT THE RENDERING OF
and if so, the terms thereof; JUDGMENT?
2. The stipulations or admissions entered into by the parties;. • Should the court find it necessary to clarify certain material
3. Whether, on the basis of the pleadings and the stipulations facts, it may, during the said period, issue an order specifying
and admissions made by the parties, judgment may be the matters to be clarified, and require the parties to submit
rendered without the need of further proceedings, in which affidavits or other evidence on the said matters within ten (10)
event the judgment shall be rendered within thirty (30) days days from receipt of said order.
from issuance of the order; • Judgment shall be rendered within fifteen (15) days after the
4. A clear specification of material facts which remain receipt of the last clarificatory affidavits, or the expiration of
controverted; and the period for filing the same.
5. Such other matters intended to expedite the disposition of the • The court shall not resort to the clarificatory procedure to gain
case. time for the rendition of the judgment.

WHAT IS THE IMPORTANCE OF THE ORDER ISSUED BY A COURT IN WHAT HAPPENS IF THE PARTIES FAIL TO SUBMIT CLARIFICATORY
A CASE GOVERNED BY THE RULES SETTING FORTH THE ISSUES OF AFFIDAVITS?
THE CASE? • The clarificatory procedure shall not apply
• After the preliminary conference, the MTC should issue an
order clearly and distinctly setting forth the issues of the case HOW ARE CRIMINAL CASES FILED UNDER THE RULES?
and other matters taken up in the conference. The order is an • The filing of criminal cases falling within the scope of this Rule
important part of the proceeding because it is a receipt to the shall be either by complaint or by information: Provided,
parties that begins the 10-day period wherein to submit the however, that in Metropolitan Manila and in Chartered Cities.
affidavits and other evidence such cases shall be commenced only by information, except
• Without such order, the 10-day period to submit affidavits and when the offense cannot be prosecuted de oficio.
position papers doesn’t commence to run hence any judgment • The complaint or information shall be accompanied by the
rendered by the court without such order is violative of due affidavits of the compliant and of his witnesses in such number
process as it denies the parties’ opportunity to submit the of copies as there are accused plus two (2) copies for the
affidavits and position papers court's files.If this requirement is not complied with within five
(5) days from date of filing, the case may be dismissed.
AFTER THE PRE-TRIAL CONFERENCE, WHAT SHOULD THE COURT
DO? WHAT CAN THE COURT DO UPON FILING OF THE COMPLAINT?
• Within 5 days after the termination of the pre-trial, the court 1. If commenced by compliant. — On the basis of the compliant
shall issue a pre-trial order and within 10 days from receipt of and the affidavits and other evidence accompanying the same,
the order, the parties shall submit their affidavits of witnesses the court may dismiss the case outright for being patently
without basis or merit and order the release of the amused if

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 33


in custody. • Except in rebuttal or surrebuttal, no witness shall be allowed


2. If commenced by information. — When the case is to testify unless his affidavit was previously submitted to the
commenced by information, or is not dismissed pursuant to court in accordance with Section 12 hereof.
the next preceding paragraph, the court shall issue an order
which, together with copies of the affidavits and other evidence AFTER THE SUBMISSION OF AFFIDAVITS, MAY ONE SUBMIT
submitted by the prosecution, shall require the accused to ADDITIONAL ONES?
submit his counter-affidavit and the affidavits of his witnesses • Yes, he shall so manifest during the preliminary conference,
as well as any evidence in his behalf, serving copies thereof on stating the purpose thereof
the complainant or prosecutor not later than ten (10) days • If allowed by the court, the additional affidavits of the
from receipt of said order. The prosecution may file reply prosecution or the counter-affidavits of the defense shall be
affidavits within ten (10) days after receipt of the counter- submitted to the court and served on the adverse party not
affidavits of the defense later than three (3) days after the termination of the
preliminary conference.
WHAT MATTERS ARE TAKEN UP IN A PRELIMINARY CONFERENCE • If the additional affidavits are presented by the prosecution,
IN CRIMINAL CASES UNDER THE RULES? the accused may file his counter-affidavits and serve the same
1. A stipulation of facts may be entered into on the prosecution within three (3) days from such service.
2. The propriety of allowing the accused to enter a plea of guilty
to a lesser offense may be considered MAY THE ACCUSED BE ORDERED ARRESTED UPON FILING OF THE
3. Or such other matters may be taken up to clarify the issues INFORMATION?
and to ensure a speedy disposition of the case. • No, unless it is for non-appearance whenever required

ARE ADMISSIONS OF THE ACCUSED DURING THE PRELIMINARY MAY A PERSON TESTIFY WITHOUT SUBMITTING HIS AFFIDAVIT?
CONFERENCE ADMISSIBLE AGAINST HIM? • Yes, even if a witness has not priorly submitted his/her
• It depends affidavit, he may be called to testify in connection with a
• No admission by the accused shall be used against him unless specific factual matter relevant to the issue
reduced to writing and signed by the accused and his counsel.
A CASE IS GOVERNED BY THE RULES ON SUMMARY PROCEDURE.
WHAT IS THE EFFECT OF REFUSAL OR FAILURE TO STIPULATE BY WHAT SHOULD BE DONE IF THERE WAS NO REFFERAL TO THE
THE ACCUSED? LUPON BEFORE THE FILING?
• A refusal or failure to stipulate shall not prejudice the accused • Cases requiring referral to the Lupon for conciliation under the
provisions of Presidential Decree No. 1508 where there is no
MAY A COURT PROPERLY ALLOW CROSS-EXAMINATION OF A showing of compliance with such requirement, shall be
WITNESS WHO SUBMITTED AN AFFIDAVIT BUT FAILED TO BE dismissed without prejudice and may be revived only after
PRESENT FOR DIRECT EXAMINATION? such requirement shall have been complied with. This
• Yes, the affidavits submitted by witnesses constitute direct provision shall not apply to criminal cases where the accused
examinations was arrested without a warrant.

WHAT IS THE EFFECT IF A WITNESS WHO SUBMITTED AN WHAT ARE THE PROHIBITED PLEADINGS AND MOTIONS UNDER
AFFIDAVIT FAILS TO APPEAR? THE RULES?
• Should the affiant fail to testify, his affidavit shall not be 1. Motion to dismiss the complaint or to quash the complaint or
considered as competent evidence for the party presenting the information except on the ground of lack of jurisdiction over
affidavit, but the adverse party may utilize the same for any the subject matter, or failure to comply with the preceding
admissible purpose. section;

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 34


2. Motion for a bill of particulars;


RULE 6: PROCEDURE IN THE REGIONAL TRIAL COURT
3. Motion for new trial, or for reconsideration of a judgment, or
KINDS OF PLEADINGS
for opening of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file pleadings, affidavits or any Section 1. Pleadings defined. Pleadings are the written statements of
other paper; the respective claims and defenses of the parties submitted to the
6. Memoranda; court for appropriate judgment. (1a)
7. Petition for certiorari, mandamus, or prohibition against any
interlocutory order issued by the court; Section 2. Pleadings allowed. The claims of a party are asserted in a
8. Motion to declare the defendant in default; complaint, counterclaim, cross-claim, third (fourth, etc.)-party
9. Dilatory motions for postponement; complaint, or complaint-in-intervention.
10. Reply;
11. Third party complaints; The defenses of a party are alleged in the answer to the pleading
12. Interventions. asserting a claim against him.

UNDER WHAT CIRCUMSTANCE IS A MOTION TO DISMISS ALLOWED? An answer may be responded to by a reply. (n)
• After an answer has been filed
Section 3. Complaint. The complaint is the pleading alleging the
IS IT PROPER TO REFER AN EJECTMENT CASE TO THE LUPON IF plaintiff's cause or causes of action. The names and residences of the
THERE WAS NONE? plaintiff and defendant must be stated in the complaint. (3a)
• No, the case should have been dismissed instead
• Referral subverts the very nature of the Rule and defeats its Section 4. Answer. An answer is a pleading in which a defending party
objective of expediting the resolution thereof sets forth his defenses. (4a)

WHAT IS THE EFFECT ON THE RUNNING OF THE PERIOD TO Section 5. Defenses. Defenses may either be negative or affirmative.
ANSWER IF INSTEAD OF FILING ONE, THE DEFENDANT FILED A
PROHIBITED PLEADING? (a) A negative defense is the specific denial of the material fact or facts
• It doesn’t stay the running of the period alleged in the pleading of the claimant essential to his cause or causes
of action.
IS THE RULES APPLICABLE ON APPEAL?
• No (b) An affirmative defense is an allegation of a new matter which, while
hypothetically admitting the material allegations in the pleading of the
A JUDGMENT BY THE MTC GOVERNED BY THE RULES WAS UPHELD claimant, would nevertheless prevent or bar recovery by him. The
BY THE RTC. WHAT REQUIREMENT MUST BE MET BEFORE SUCH affirmative defenses include fraud, statute of limitations, release,
JUDGMENT BECOMES IMMEDIATELY EXECUTORY? payment, illegality, statute of frauds, estoppel, former recovery,
• The judgment or order by the RTC should first be served on discharge in bankruptcy, and any other matter by way of confession
the losing party before the same is considered immediately and avoidance. (5a)
executory under the Rules
• The rules contemplate the filing of a motion for execution on Section 6. Counterclaim. A counterclaim is any claim which a
the part of the prevailing party which like an ordinary action defending party may have against an opposing party. (6a)
must be set for hearing
Section 7. Compulsory counterclaim. A compulsory counterclaim is
one which, being cognizable by the regular courts of justice, arises out

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 35


of or is connected with the transaction or occurrence constituting the Section 13. Answer to third (fourth, etc.) party complaint. A third
subject matter of the opposing party's claim and does not require for (fourth, etc.) party defendant may allege in his answer his defenses,
its adjudication the presence of third parties of whom the court cannot counterclaims or cross-claims, including such defenses that the third
acquire jurisdiction. Such a counterclaim must be within the (fourth, etc.) party plaintiff may have against the original plaintiff's
jurisdiction of the court both as to the amount and the nature thereof, claim. In proper cases, he may also assert a counterclaim against the
except that in an original action before the Regional Trial Court, the original plaintiff in respect of the latter's claim against the third-party
counter-claim may be considered compulsory regardless of the plaintiff. (n)
amount. (n)
A IS A CREDITOR, WITH B AS A DEBTOR, EVINCED BY A
Section 8. Cross-claim. A cross-claim is any claim by one party PROMISSORY NOTE PAYABLE ON SEPTEMBER 18, 2009. A WROTE
against a co-party arising out of the transaction or occurrence that is B A DEMAND LETTER, DEMANDING PAYMENT WITHIN 15 DAYS
the subject matter either of the original action or of a counterclaim FROM RECEIPT OF LETTER. A MONTH HAS PASSED AND NO
therein. Such cross-claim may include a claim that the party against PAYMENT WAS MADE. WHAT IS THE RECOURSE OF A?
whom it is asserted is or may be liable to the cross-claimant for all or • The recourse of A is to file an action for payment of the debt
part of a claim asserted in the action against the cross-claimant. (7) due
• The demand letter is a condition precedent for a cause of
Section 9. Counter-counterclaims and counter-crossclaims. A action to arise—B was already in default upon failure to pay
counter-claim may be asserted against an original counter-claimant. his debt obligation

A cross-claim may also be filed against an original cross-claimant. (n) IN THE ABOVE CASE, WHAT WOULD THE TITLE OF THE CASE?
• Payment of sum of money
Section 10. Reply. A reply is a pleading, the office or function of which
is to deny, or allege facts in denial or avoidance of new matters alleged A COMPLAINT WAS FILED FOR THE ABOVE CASE. WHAT WOULD
by way of defense in the answer and thereby join or make issue as to THE COMPLAINT CONTAIN?
such new matters. If a party does not file such reply, all the new • Names of the parties and their respective addresses: so that
matters alleged in the answer are deemed controverted. the court can acquire jurisdiction over their persons
• The facts the cause of action is based:
If the plaintiff wishes to interpose any claims arising out of the new o On 25 December 2008, debtor borrowed from plaintiff
matters so alleged, such claims shall be set forth in an amended or Revil the amount of P600,000 evidenced by a
supplemental complaint. (11) promissory note, wherein debt is payable on 18
September 2009, stated as follows: “I promise to pay
Section 11. Third, (fourth, etc.) party complaint. A third (fourth, etc.) Jo Kristine Revil the sum of P600,000 on or before 18
party complaint is a claim that a defending party may, with leave of September 2009”.
court, file against a person not a party to the action, called the third o On 18 September 2009, debtor failed to pay.
(fourth, etc.) party defendant for contribution, indemnity, subrogation o On 19 September 2009, plaintiff sent debtor a
or any other relief, in respect of his opponent's claim. (12a) demand letter demanding from the latter payment
within 15 days from receipt of the same.
Section 12. Bringing new parties. When the presence of parties other o Still, the debtor failed to pay.
than those to the original action is required for the granting of • Prayer or relief
complete relief in the determination of a counterclaim or cross-claim, • Verification and certification of the complainant
the court shall order them to be brought in as defendants, if o He has read the complaint and to the best of his
jurisdiction over them can be obtained. (14) knowledge and information, the same is true and
correct

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 36


o Certification against non-forum shopping allegations of the complaint to be


 No other action involving the same issue has true, yet the matters set out in the Burden of proof upon the plaintiff
been filed against the defendant answer, deny or take away the asserting his cause of action
 That he has no knowledge of a pending case plaintiff’s right of action
 If there is a pending case, then state status of
the case Burden of proof upon the party
 If it comes to her knowledge that a case is who asserts the affirmative
subsequently filed, she will inform the court defense
within 5 days
WHAT ARE INCLUDED IN AFFIRMATIVE DEFENSES?
THE COMPLAINT IS PREPARED. WHERE SHALL IT BE FILED? 1. Fraud
• Regional Trial Court in Makati where the defendant resides or 2. Statute of limitations
in Taguig, where the plaintiff resides 3. Release
• In the office of the executive judge 4. Payment
5. Illegality
AFTER THE FILING OF THE COMPLAINT, WHAT WILL BE DONE? 6. Statute of frauds
• The clerk of court shall raffle the case 7. Estoppel
8. Former recovery
AFTER THE RAFFLING OF THE CASE, WHAT WILL HAPPEN? 9. Discharge in bankruptcy
• The clerk of court shall issue summons, attaching thereto the 10. And all other matters by way of confession and avoidance
copy of the complaint, ordering the defendant to answer within
15 days from receipt WHAT IS A NEGATIVE DEFENSE?
• A negative defense is the specific denial of the material fact or
A MOTION TO DISMISS WAS FILED WITHIN 10 DAYS FROM RECEIPT facts alleged in the pleading of the claimant essential to his
AND THE COURT DENIED. WHAT SHALL HAPPEN? cause or causes of action
• The defendant will have the opportunity to answer within the
remaining days, not less than 5 days, to the complaint WHAT ARE THE KINDS OF SPECIFIC DENIALS?
1. Where a defendant specifies each material allegations, the
STILL ON THE ABOVE CASE SCENARIO, B IS THE DEFENDANT. HOW truth of which he doesn’t admit, and sets forth the substance
WOULD HE COUCH HIS ANSWER? of the matters upon which he relies to support his denial
• He could state his negative or affirmative defenses 2. Where a defendant is without knowledge or information
sufficient to form a belief as to the truth of the material
WHAT ARE THE KINDS OF DEFENSES? averments in the complaint
1. Affirmative
2. Negative HOW IS SPECIFIC DENIAL MADE (SEE RULE 8)?
• A defendant must specify each material allegation of fact the
DIFFERENCE BETWEEN AFFIRMATIVE AND NEGATIVE DEFENSES. truth of which he does not admit and, whenever practicable,
AFFIRMATIVE DEFENSE NEGATIVE DEFENSE shall set forth the substance of the matters upon which he
Nature of confession and Nature of pleas in specific denial relies to support his denial. Where a defendant desires to deny
avoidance of material facts alleged in the only a part of an averment, he shall specify so much of it as is
complaint essential to the true and material and shall deny only the remainder. Where a
They import that admitting the plaintiff’s cause of action defendant is without knowledge or information sufficient to

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 37


form a belief as to the truth of a material averment made to WHAT ARE DEEMED WAIVED WHEN A SPECIFIC DENIAL IS NOT
the complaint, he shall so state, and this shall have the effect MADE UNDER OATH?
of a denial. 1. Genuineness
2. Due execution
WHAT IS MEANT BY “DEFENDANT IS WITHOUT KNOWLEDGE OR
INFORMATION SUFFICIENT TO FORM A BELIEF AS TO THE TRUTH MEANING OF GENUINENESS AND DUE EXECUTION
OF A MATERIAL AVERMENT MADE IN THE COMPLAINT” • The party whose signature the document bears admits that he
• This must be availed of with sincerity and in good faith, signed it or that it was signed by another for him with his
certainly neither for the purpose of confusing the adverse party authority
as to what allegations of the complaint are really put in issue • That at the time it was signed, it was in words and figures
nor for the purpose of delay exactly as set out in the pleading of the party relying upon it
• This defense is not applicable where the fact as to which want • That the document was delivered, and that any formal
of knowledge is asserted is, to the knowledge of the court, so requisites required by law, such as a seal, an
plainly and necessarily within the defendant’s knowledge that acknowledgement, or revenue stamp, which it lacks, are
his averment of ignorance must be palpably untrue waived by him
• If there is something in the allegations you can neither admit
nor deny, then just deny it and it will be considered as a GENUINENESS DUE EXECUTION
specific denial The instrument is not spurious, If signed by agent, it was with
counterfeit, or of different import authority from the principal…
HOW DO YOU CONTEST ACTIONABLE DOCUMENTS? on its face from the one executed
• When an action or defense is founded upon a written Where the name of the
instrument, copied in or attached to the corresponding corporation is signed to the
pleading as provided in the preceding section, the genuineness document which is the basis of
and due execution of the instrument shall be deemed admitted the action, that the officer
unless the adverse party, under oath specifically denies them, executing the contract had
and sets forth what he claims to be the facts, but the authority to bind the corporation
requirement of an oath does not apply when the adverse party and that the corporation had the
does not appear to be a party to the instrument or when capacity to enter the contract
compliance with an order for an inspection of the original
instrument is refused.
WHEN IS THE PROVISION NOT APPLICABLE (WHEN OATH IS NOT
REQUIRED IN A SPECIFIC DENIAL)
HOW WOULD ONE RAISE A NEGATIVE DEFENSE WITH RESPECT TO
1. When adverse party doesn’t appear to be a party to the
THE AFOREMENTIONED CASE SCENARIO?
instrument
• A promissory note is an actionable document and a specific
2. When compliance with an order for the inspection of the
denial of which should be one under oath
original instruments is refused
• It can be that defendant specifically denies under oath the
genuineness and due execution of the promissory note
• Inasmuch as it is sufficient to attach a copy of the instrument
to or copy it in the pleading, it may be necessary for the
WHAT IS NOT DEEMED WAIVED WHEN A SPECIFIC DENIAL IS NOT
adverse party to examine the original in order to verify the
MADE UNDER OATH?
genuineness of the signature and other details
• Anything relating to vitiation of consent and freedom to
contract

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 38


SPECIFIC DENIAL UNDER OATH MUST BE BASED ON PERSONAL 2. To prevent a document from being admitted as to its
KNOWLEDGE genuineness and due execution in case the answer interposes
• It is necessary that the genuineness and due execution of the an actionable document
instrument shall be specifically denied before an issue is
raised upon this point WHEN REPLY IS NOT NECESSARY?
• This means that the defendant must declare under oath that • It is not necessary to file a reply if the only purpose is to deny
he didn’t sign the document or that it is otherwise false or the new matters alleged in the answer because even if he
fabricated doesn’t make a reply, all the new matters will be deemed
controverted
IN SERVING OF THE ANSWER, HOW SHOULD THIS BE DONE?
• The service of the answer is a service of pleadings WHEN REPLY IS IMPROPER?
• Personal service is favored but in case this cannot be done, • A reply to a counterclaim or crossclaim is improper
then resort to other matters may be resorted to provided there • An answer thereto must be filed instead within 10 days from
is a written explanation by the defendant why personal service receipt thereof
was not done
WHAT HAPPENS IF A REPLY IS NOT FILED?
WHY IS IT THE CASE THAT IN SERVICE OF THE RESPONSIVE • All new matters alleged in the answer are deemed controverted
PLEADING, IT IS PERSONALLY DONE BY THE DEFENDANT AND NOT • Controverted? It means that the new matters are deemed
BY THE COURT? opposed to or disputed by the plaintiff
• The service by the clerk of court of summons is important for
purposes of acquiring jurisdiction over the person of the GOING BACK TO THE ABOVEMENTIONED CASE SCENARIO, THE
defendant AFFIRMATIVE DEFENSE WAS PAYMENT AND RECEIPT WAS
ATTACHED. DOES THE PLAINTIFF NEED TO FILE A REPLY?
WHAT IS THE CONSEQUENCE OF NON-PROOF OF SERVICE? • No because a specific denial is not needed for a non-actionable
• The pleading filed shall be deemed as not being filed and as a document like a receipt
mere scrap of paper • And besides, without specific denial of the same, the matters
alleged in the answer are deemed controverted
TO WHOM A COPY OF THE ANSWER BE SERVED?
• The plaintiff and a copy shall likewise be served to the court WHAT IF A COUNTERCLAIM IS INCLUDED IN THE ANSWER, WHAT
SHOULD THE PLAINTIFF FILE?
WHAT OPTIONS ARE AVAILABLE TO THE PLAINTIFF UPON RECEIPT? • An answer as a counterclaim is an initiatory pleading and
• He may file a Reply within 10 days failure to answer to the same may merit default

WHAT IS A REPLY?
• A reply is a pleading, the office or function of which is to deny WHAT IS THE PRACTICE OF MAKING PLEADINGS?
or allege facts, in denial or avoidance of the new matter • It is the practice of using forms
alleged by way of defense in the answer and thereby join or
make issue as to such new matters WHAT ARE PLEADINGS?
• They are the written statements of the respective claims and
WHAT ARE THE PURPOSES OF A REPLY? defenses of the parties submitted to the court for appropriate
1. To set up affirmative defenses on the counterclaim judgment

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 39


WHAT ARE THE MAIN PURPOSES OF PLEADINGS?


1. To define the issues and foundation of proof to be submitted WHAT ARE THE CONTENTS OF A COMPLAINT?
during the trial 1. Alleging the causes of action
2. To apprise the court of the rival claims of the parties 2. Names and addresses of the plaintiff and defendant
3. Evidentiary facts and conclusions of law should be excluded
WHAT IS THE MINIMUM REQUIREMENT IN MATTERS OF 4. Relief prayed for
ALLEGATIONS IN THE COMPLAINT?
• The complaint must contain a concise statement of the WHAT IS AN ANSWER?
ultimate facts constituting the plaintiff’s cause of action • It is the pleading in which a defending party sets forth his
defenses
WHAT ARE THE ULTIMATE FACTS?
• Ultimate facts are the important and substantial facts which DISTINCTION BETWEEN COMPLAINT AND ANSWER.
either directly form the basis of the plaintiff’s primary right or COMPLAINT ANSWER
duty, or directly make up the wrongful acts or omissions by Initiatory pleading Responsive pleading
the defendant Contains the ultimate facts Contains defenses, evidentiary
• They are the principal, determinative, and constitutive facts facts and provisions of law
upon the existence of which, the entire cause of action rests
DISTINGUISH AFFIRMATIVE DEFENSES AND ALTERNATIVE
WHAT ARE EVIDENTIARY FACTS? DEFENSES.
• They are the details or probative matters or particulars of AFFIRMATIVE DEFENSES ALTERNATIVE DEFENSES
evidence by which the material facts or elements are Nature of confession and A party may set forth two or more
established avoidance statements of a defense
alternatively or hypothetically,
ARE DOCUMENTS ATTACHED TO THE PLEADINGS, PARTS OF THE They import that admitting the either in one cause of action or
SAME? allegations of the complaint to be defense or in separate causes of
• Yes, such that when they are attached, there is no need to true, yet the matters set out in the action or defenses.
introduce them in evidence answer, deny or take away the
plaintiff’s right of action When two or more statements are
IS THE RELIEF PRAYED FOR IN THE COMPLAINT PART OF THE made in the alternative and one of
CAUSE OF ACTION? Burden of proof upon the party them if made independently
• No, the plaintiff is entitled to a relief as the facts warrant who asserts the affirmative would be sufficient, the pleading
although they are not specifically demanded defense is not made insufficient by the
insufficiency of one or more of the
WHERE ARE CLAIMS OF PARTIES ASSERTED? alternative statements
• They are asserted in the complaint, counterclaim, cross-claim,
third-/fourth-party complaint, or complaint in intervention DISTINGUISH CAPACITY TO SUE AND PERSONALITY TO SUE.
CAPACITY TO SUE PERSONALITY TO SUE
WHERE ARE THE DEFENSES ALLEGED?
Person cannot sue due to a Pertains to being a real party-in-
• They are alleged in the answer to the pleadings asserting a disqualification given by law interest or an indispensible party
claim against him
Lack of authority to sue
HOW MAY AN ANSWER BE RESPONDED TO?
• May be responded to by a reply

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 40


REVIEW: JURIDICAL PERSONALITY VS. CAPACITY TO ACT 2. It doesn’t require for its adjudication the presence of third
JURIDICAL PERSONALITY CAPACITY TO ACT parties of whom the court cannot acquire jurisdiction
Attained by a person upon birth Capacity to enter into contracts 3. It must be within the jurisdiction of the court and is cognizable
and produce legal effects by the regular courts of justice
Capacity to be bound by legal
relations WHAT ARE THE TESTS IN DETERMINING WHETHER A
COUNTERCLAIM COMPULSORY IN NATURE?
WHAT IS A COUNTERCLAIM? 1. Are the issues of fact or law raised by the claim and
• A counterclaim is any claim which a defending party may have counterclaim largely the same?
against an opposing party 2. Would res judicata bar a subsequent suit on defendant’s
• It is in itself a claim or cause of action interposed in an answer claims absent the compulsory counterclaim rule?
3. Will substantially the same evidence support or refute
SHOULD A COUNTERCLAIM DEFEAT OR DIMINISH THE RECOVERY plaintiff’s claim as well as the defendant’s counterclaim?
SOUGHT BY THE OTHER PARTY? 4. Is there any logical relation between the claim and
• No, but it may claim relief exceeding in amount or different in counterclaim?
kind from that sought by the opposing party’s claim
WHAT IS THE COMPELLING TEST OF COMPULSORINESS IN
WHAT IS THE NATURE AND CONCEPT OF A COMPULSORY DETERMINING THE NATURE OF A COUNTERCLAIM?
COUNTERCLAIM? • Test which requires a logical relationship between the claim
• It is one which being cognizable by the regular courts of and counterclaim that is, where conducting separate trials of
justice, arises out of or is connected with the transaction or the respective claims of the parties would entail a substantial
occurrence constituting the subject matter of the opposing duplication of effort and time by the parties and the court
party’s claim and doesn’t require for its adjudication, the
presence of third parties of whom the court cannot acquire WHAT IS THE EFFECT WHERE A COUNTERCLAIM IS FILED BEYOND
jurisdiction. THE JURISDICTION OF THE MTC?
• Such counterclaim must be within the court’s jurisdiction, both 1. If a counterclaim is beyond the jurisdiction of the MTC, it need
as to the amount and the nature thereof, except that in an not set up but even if it is set up, it is done so only by way of
original action before the RTC, the counterclaim may be defense
considered compulsory regardless of the amount 2. There is a waiver of the excess amount where the counterclaim
is filed in the MTC
MAY THE RTC ENTERTAIN A COUNTERCLAIM BELOW ITS 3. The rules of jurisdiction in an independent action applies to
JURISDICTION? counterclaims
• Yes provided that it arises out of the same transaction or
occurrence constituting the subject matter of the opposing MAY A PARTY FILE A MOTION TO DISMISS AND SET UP A
party’s claim COMPULSORY COUNTERCLAIM AT THE SAME TIME? WHY?
• No, the filing of a motion to dismiss and the setting up of a
WHAT ARE THE REQUIREMENTS OF A COMPULSORY compulsory counterclaim are incompatible remedies. He must
COUNTERCLAIM? choose only one remedy. If he decides to file a motion to
1. It arises out of or is necessarily connected with the transaction dismiss, he loses his compulsory counterclaim. If he decides
or occurrence that is the subject matter of the opposing to file a compulsory counterclaim, he may still plead his
party’s claim ground for dismissal as an affirmative defense in his answer.

WHAT IS A PERMISSIVE COUNTERCLAIM?

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 41


• It is a permissive counterclaim when it doesn’t arise out of nor WHAT IS THE EFFECT OF DISMISSAL OF THE MAIN ACTION TO THE
it is necessarily connected with the subject matter of the CROSS-CLAIM?
opposing party’s claim • The cross-claim should be dismissed too as there is no more
• It is not barred even if not set-up in the action leg for the cross-claim to stand on as it should arise from the
main action
WHAT ARE THE REQUIREMENTS OF A PERMISSIVE
COUNTERCLAIM? MAY A CROSSCLAIM BE FILED AFTER THE DECLARATION OF
1. It doesn’t require for its adjudication the presence of third DEFAULT OF DEFENDANT?
parties of whom the court cannot acquire jurisdiction • No more because the filing of the cross-claim would
2. It must be within the jurisdiction of the court wherein the case necessarily cause the setting aside of the order of default as
is pending and is cognizable by the regular courts of justice the cross-claimant would then re-obtain his standing in court
3. It doesn’t arise out of the same transaction or series of as a party litigant
transactions subject of the complaint
ARE THERE INSTANCES WHEN FAILURE TO ANSWER A
MAY A COUNTERCLAIM BE FILED AGAINST AN ORIGINAL COUNTER- COUNTERCLAIM WOULD NOT RESULT IN DEFAULT OF THE NON-
CLAIMANT? ANSWERING PARTY?
• Yes, a counterclaim may be asserted against an original • Yes, some of them are:
counter-claimant. A cross-claim may also be filed against an 1. When the answer would merely repeat the material
original cross-claimant allegations in the complaint
2. Failure to answer complaint in intervention
WHAT IS A CROSS-CLAIM AND WHAT DOES IT INCLUDE? 3. In condemnation proceedings
• A cross-claim is any claim by one party against a co-party 4. Where the issues raised in the counterclaim are
arising out of the transaction or occurrence that is the subject inseparable from those in the complaint
matter either of the original action or of a counterclaim therein 5. Where the counterclaim is compulsory
• Such cross-claim may include a claim that the party against
whom it is asserted is or may be liable to the cross-claimant WHAT IS A THIRD-PARTY COMPLAINT?
for all or part of a claim asserted in the action against the • Claim that a defending party may with leave of court file
cross-claimant against a person not a party to the action, called the third-
party defendant for contribution, indemnity, subrogation or
WHAT IS THE PURPOSE OF A CROSS-CLAIM? any other relief, in respect to his opponent’s claim
• It is intended to settle in a single proceedings all the claims of
the different parties in a case against each other in order to WHEN MAY A THIRD-PARTY COMPLAINT BE DISALLOWED?
avoid multiplicity of suits 1. When the resolution of the main case would be delayed as
when the third-party defendant cannot be located
IS FILING OF A CROSS-CLAIM A MATTER OF RIGHT? WHY? 2. When there are extraneous matters that would be raised
• No as it is subject to the following limitations 3. When the main action is for declaratory relief
o It must arise out of the subject matter of the
complaint TESTS TO DETERMINE PROPRIERTY OF A THIRD-PARTY
o It can be filed against a co-party COMPLAINT
o It is proper only where the cross-claimant stands to be 1. Whether it arises out of the same transaction on which the
prejudiced by the filing of the action against him plaintiff’s claim is based, or the third-party’s claim, although
arising out of another or different contract or transaction, is
connected with the plaintiff’s claim

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 42


2. Whether the plaintiff could have joined him originally as


RULE 7: PARTS OF A PLEADING
defendant—but this could only be applied if there could be
asserted against the defendant as the third-party defendant,
jointly and severally, or in the alternative, any right to relief Section 1. Caption. The caption sets forth the name of the court, the
arising out of the same transaction title of the action, and the docket number if assigned.
3. The abovementioned is not always applicable. Another rule is
that a third-party complaint is proper if he would be liable to The title of the action indicates the names of the parties. They shall all
the plaintiff or to the defendant for all or part of the plaintiff’s be named in the original complaint or petition; but in subsequent
claim against the original defendant, although the liability pleadings, it shall be sufficient if the name of the first party on each
might have arose from a different transaction. side be stated with an appropriate indication when there are other
4. Whether the third-party defendant may assert any defenses parties.
which the third-party plaintiff has or may have to the plaintiff’s
claim. If he may properly assert such defenses, then he would Their respective participation in the case shall be indicated. (1a, 2a)
be a proper third-party defendant. Otherwise, he is not and
the claim against him cannot be considered a third-party Section 2. The body. The body of the pleading sets fourth its
complaint. designation, the allegations of the party's claims or defenses, the relief
5. A defendant cannot file a third-party complaint in a different prayed for, and the date of the pleading. (n)
capacity in which he is being sued. Otherwise, his claim
against the third-party defendant would not be in respect to (a) Paragraphs. The allegations in the body of a pleading shall be
the plaintiff’s claim. divided into paragraphs so numbered to be readily identified, each of
which shall contain a statement of a single set of circumstances so far
NOTE: as that can be done with convenience. A paragraph may be referred to
1. Indemnity by its number in all succeeding pleadings. (3a)
2. Contribution
3. Subrogation (b) Headings. When two or more causes of action are joined the
statement of the first shall be prefaced by the words "first cause of
LEAVE OF COURT, HOW OBTAINED? action,'' of the second by "second cause of action", and so on for the
• By motion under rule 15 others.

NOTE: OTHER IMPORTANT THINGS When one or more paragraphs in the answer are addressed to one of
• Allowance of third-party complaint is discretionary several causes of action in the complaint, they shall be prefaced by the
• Summons on third-party defendant is necessary words "answer to the first cause of action" or "answer to the second
• Original claimant may amend pleading cause of action" and so on; and when one or more paragraphs of the
• If the original complaint is dismissed, the third-party answer are addressed to several causes of action, they shall be
complaint shall also be dismissed prefaced by words to that effect. (4)

HOW MAY NEW PARTIES BE IMPLEADED AND FOR WHAT PURPOSE? (c) Relief. The pleading shall specify the relief sought, but it may add a
• When the presence of parties other than those to the original general prayer for such further or other relief as may be deemed just or
action is required for the granting of complete relief in the equitable. (3a, R6)
determination of a counterclaim or cross-claim, the court shall
order them to be brought in as defendants, if jurisdiction over (d) Date. Every pleading shall be dated. (n)
them can be obtained
Section 3. Signature and address. Every pleading must be signed by

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 43


the party or counsel representing him, stating in either case his Failure to comply with the foregoing requirements shall not be curable
address which should not be a post office box. by mere amendment of the complaint or other initiatory pleading but
shall be cause for the dismissal of the case without prejudice, unless
The signature of counsel constitutes a certificate by him that he has otherwise provided, upon motion and after hearing. The submission of
read the pleading; that to the best of his knowledge, information, and a false certification or non-compliance with any of the undertakings
belief there is good ground to support it; and that it is not interposed therein shall constitute indirect contempt of court, without prejudice to
for delay. the corresponding administrative and criminal actions. If the acts of
the party or his counsel clearly constitute willful and deliberate forum
An unsigned pleading produces no legal effect. However, the court shopping, the same shall be ground for summary dismissal with
may, in its discretion, allow such deficiency to be remedied if it shall prejudice and shall constitute direct contempt, as well as a cause for
appear that the same was due to mere inadvertence and not intended administrative sanctions. (n)
for delay. Counsel who deliberately files an unsigned pleading, or signs
a pleading in violation of this Rule, or alleges scandalous or indecent HOW ARE ALLEGATIONS BY EXPRESS REFERENCE MADE?
matter therein, or fails promptly report to the court a change of his • Each cause of action must contain all of the essential facts
address, shall be subject to appropriate disciplinary action. (5a) necessary to constitute a cause of action, but where a
complaint contains two or more causes of action, allegations
Section 4. Verification. Except when otherwise specifically required by contained in one cause may be incorporated in the other by
law or rule, pleadings need not be under oath, verified or accompanied express reference without the necessity of rewriting the same
by affidavit .(5a) in the second cause

A pleading is verified by an affidavit that the affiant has read the WHAT SHALL THE CAPTION OF THE PLEADING CONTAIN?
pleading and that the allegations therein are true and correct of his • Each pleading shall contain a caption setting forth the name of
knowledge and belief. the court, the title of the action, the file number if assigned
and a designation of the pleading
A pleading required to be verified which contains a verification based
on "information and belief", or upon "knowledge, information and WHAT MATTERS MUST BE SET FORTH IN THE BODY OF A
belief", or lacks a proper verification, shall be treated as an unsigned PLEADING?
pleading. (6a) • The body of the pleading sets fourth its designation, the
allegations of the party's claims or defenses, the relief prayed
Section 5. Certification against forum shopping. The plaintiff or for, and the date of the pleading
principal party shall certify under oath in the complaint or other
initiatory pleading asserting a claim for relief, or in a sworn WHAT IS THE EFFECT OF AN UNSIGNED PLEADING? IS THE RULE
certification annexed thereto and simultaneously filed therewith: (a) ABSOLUTE?
that he has not theretofore commenced any action or filed any claim • An unsigned pleading produces no legal effect. However, the
involving the same issues in any court, tribunal or quasi-judicial agency court may, in its discretion, allow such deficiency to be
and, to the best of his knowledge, no such other action or claim is remedied if it shall appear that the same was due to mere
pending therein; (b) if there is such other pending action or claim, a inadvertence and not intended for delay.
complete statement of the present status thereof; and (c) if he should • Counsel who deliberately files an unsigned pleading, or signs a
thereafter learn that the same or similar action or claim has been filed pleading in violation of this Rule, or alleges scandalous or
or is pending, he shall report that fact within five (5) days therefrom to indecent matter therein, or fails promptly report to the court a
the court wherein his aforesaid complaint or initiatory pleading has change of his address, shall be subject to appropriate
been filed. disciplinary action.

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 44


WHAT IS VERIFICATION AND HOW IS IT DONE? relief, or in a sworn certification annexed thereto and
• A pleading is verified by an affidavit that the affiant has read simultaneously filed therewith:
the pleading and that the allegations therein are true and (a) that he has not theretofore commenced any action or
correct of his knowledge and belief filed any claim involving the same issues in any court,
• A pleading required to be verified which contains a verification tribunal or quasi-judicial agency and, to the best of
based on "information and belief", or upon "knowledge, his knowledge, no such other action or claim is
information and belief", or lacks a proper verification, shall be pending therein;
treated as an unsigned pleading. (b) if there is such other pending action or claim, a
• It is a statement under oath made by a party attesting to complete statement of the present status thereof; and
causing preparation of the complaint and that he has read and (c) if he should thereafter learn that the same or similar
understood the same to be correct and true action or claim has been filed or is pending, he shall
report that fact within five (5) days therefrom to the
WHAT IS THE EFFECT OF AN UNVERIFIED PLEADING? court wherein his aforesaid complaint or initiatory
• Shall be treated as an unsigned pleading pleading has been filed.

WHAT ARE THE THREE WAYS OF COMMITTING FORUM SHOPPING? CAN THE SUBSEQUENT FILING OF A CERTIFICATE CURE THE
1. Filing multiple cases based on the same cause of action and DEFECT?
with the same prayer, the previous case not having been • No
resolved yet o The filing of a belated certificate did not cure the
2. Filing multiple cases based on the same cause of action and defect considering that it wasn’t filed simultaneously
with the same prayer, the previous having been solved with with the petition
finality o They failed to show justifiable cause for their failure to
3. Filing multiple cases based on the same cause of action but simultaneously include a certification
different prayers where the ground for the dismissal of the o An SPA is not a substitute for a certification for non-
other is litis pendentia or res judicata forum shopping

WHEN IS A CERTIFICATION AGAINST NON-FORUM SHOPPING WHEN IS A CERTIFICATE OF NON-FORUM SHOPPING NOT
REQUIRED? REQUIRED?
• In initiatory pleadings 1. When it is a motion for extension
• Certification not required with respect to permissive 2. In criminal cases and distinct causes of action
counterclaims
WHAT SHOULD BE CONTAINED IN THE SWORN STATEMENT?
WHAT IS THE EFFECT OF FORUM SHOPPING? 1. That he has not theretofore commenced any action or filed any
• If the forum shopping is not willful and deliberate, then the claim involving the same issues in any court, tribunal or quasi-
subsequent actions shall be dismissed without prejudice judicial agency and, to the best of his knowledge, no such
• If the forum shopping is willful and deliberate, then all actions other action or claim is pending therein;
shall be dismissed with prejudice 2. If there is such other pending action or claim, a complete
statement of the present status thereof; and
HOW IS FORUM SHOPPING PREVENTED BY THE RULES? 3. If he should thereafter learn that the same or similar action or
• By requiring the execution of a certificate of non-forum claim has been filed or is pending, he shall report that fact
shopping within five (5) days therefrom to the court wherein his
• The plaintiff or principal party shall certify under oath in the aforesaid complaint or initiatory pleading has been filed.
complaint or other initiatory pleading asserting a claim for

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 45


WHAT IS THE TEST TO DETERMINE FORUM-SHOPPING? • He can by virtue of a board resolution authorizing A to
• Identity of parties represent the corporation
• Rights or causes of action
• Reliefs sought THE CORPORATION DID NOT WIN THE CASE IN THE RTC AND
APPEALED THE CASE TO THE CA. DOES A NEED TO BE
WHAT IS THE RECOURSE WHEN THE PLAINTIFF FAILS TO ATTACH A AUTHORIZED BY ANOTHER BOARD RESOLUTION?
CERTIFICATE AGAINST NON-FORUM SHOPPING? • Yes, another board resolution is required authorizing A to
• The court cannot motu proprio dismiss the complaint for represent the corporation in appeal
failure to attach the certificate against non-forum shopping
• The adverse party must first file a motion to dismiss the DOES SPOUSES NEED TO SIGN THE CERTIFICATE OF NON-FORUM
complaint SHOPPING JOINTLY?
• No, the signature of one is sufficient with respect to conjugal
WHAT IS THE REASON WHY THE COURT CANNOT DISMISS partnership
OUTRIGHT THE COMPLAINT FOR FAILURE TO ATTACH THE
CERTIFICATION AGAINST NON-FORUM SHOPPING? WHY IS IT AS A RULE THAT THE PLAINTIFFS ARE AUTHORIZED TO
• Attachment of the certificate against non-forum shopping is SIGN THE CERTIFICATE OF NON-FORUM SHOPPING?
non-jurisdictional in nature • Based on personal knowledge

WHAT ARE THE EXCEPTIONS TO THIS RULE?


RULE 8: MANNER OF MAKING ALLEGATIONS IN PLEADINGS
• If the acts of the party or his counsel clearly constitute willful
and deliberate forum shopping, the same shall be ground for
summary dismissal with prejudice and shall constitute direct Section 1. In general. Every pleading shall contain in a methodical
contempt, as well as a cause for administrative sanctions. and logical form, a plain, concise and direct statement of the ultimate
facts on which the party pleading relies for his claim or defense, as the
WHO MUST SIGN THE CERTIFICATE AGAINST NON-FORUM case may be, omitting the statement of mere evidentiary facts. (1)
SHOPPING?
• The plaintiff or principal party If a defense relied on is based on law, the pertinent provisions thereof
and their applicability to him shall be clearly and concisely stated. (n)
A, B, C AND D ARE PARTIES-PLAINTIFFS. ARE THEY ALL REQUIRED
BY THE RULES TO SIGN THE CERTIFICATE? Section 2. Alternative causes of action or defenses. A party may set
• General rule is no forth two or more statements of a claim or defense alternatively or
• Exception is with respect to co-owners of property—acts of hypothetically, either in one cause of action or defense or in separate
administration v. acts of dominion causes of action or defenses. When two or more statements are made
in the alternative and one of them if made independently would be
IN A CASE FOR EJECTMENT, IT IS AN ACT OF ADMINISTRATION. sufficient, the pleading is not made insufficient by the insufficiency of
ARE ALL CO-OWNERS NEEDED TO INSTITUTE THE ACTION? one or more of the alternative statements. (2)
• No, either one may institute the action alone, ejectment being
an act of administration Section 3. Conditions precedent. In any pleading a general averment
of the performance or occurrence of all conditions precedent shall be
A WAS THE LAWYER OF THE CORPORATION. CAN A BE THE PARTY sufficient. (3)
TO INSTITUTE AN ACTION AGAINST ANOTHER IN BEHALF OF THE
CORPORATION? Section 4. Capacity. Facts showing the capacity of a party to sue or be
sued or the authority of a party to sue or be sued in a representative

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 46


capacity or the legal existence of an organized association of person part of an averment, he shall specify so much of it as is true and
that is made a party, must be averred. A party desiring to raise an material and shall deny only the remainder. Where a defendant is
issue as to the legal existence of any party or the capacity of any party without knowledge or information sufficient to form a belief as to the
to sue or be sued in a representative capacity, shall do so by specific truth of a material averment made to the complaint, he shall so state,
denial, which shall include such supporting particulars as are and this shall have the effect of a denial. (10a)
peculiarly within the pleader's knowledge. (4)
Section 11. Allegations not specifically denied deemed admitted.
Section 5. Fraud, mistake, condition of the mind. In all averments of Material averment in the complaint, other than those as to the amount
fraud or mistake the circumstances constituting fraud or mistake must of unliquidated damages, shall be deemed admitted when not
be stated with particularity. Malice, intent, knowledge, or other specifically denied. Allegations of usury in a complaint to recover
condition of the mind of a person may be averred generally.(5a) usurious interest are deemed admitted if not denied under oath. (1a,
R9)
Section 6. Judgment. In pleading a judgment or decision of a
domestic or foreign court, judicial or quasi-judicial tribunal, or of a Section 12. Striking out of pleading or matter contained therein.
board or officer, it is sufficient to aver the judgment or decision without Upon motion made by a party before responding to a pleading or, if no
setting forth matter showing jurisdiction to render it. (6) responsive pleading is permitted by these Rules, upon motion made by
a party within twenty (20) days after the service of the pleading upon
Section 7. Action or defense based on document. Whenever an action him, or upon the court's own initiative at any time, the court may order
or defense is based upon a written instrument or document, the any pleading to be stricken out or that any sham or false, redundant,
substance of such instrument or document shall be set forth in the immaterial, impertinent, or scandalous matter be stricken out
pleading, and the original or a copy thereof shall be attached to the therefrom. (5, R9)
pleading as an exhibit, which shall be deemed to be a part of the
pleading, or said copy may with like effect be set forth in the pleading. WHAT SHALL BE CONTAINED IN EVERY PLEADING?
(7) • Every pleading shall contain in a methodological and logical
form, a plain, concise and direct statement of the ultimate
Section 8. How to contest such documents. When an action or facts on which the party relies for his claim and defense, as
defense is founded upon a written instrument, copied in or attached to the case may be, containing the statement of mere evidentiary
the corresponding pleading as provided in the preceding section, the facts
genuineness and due execution of the instrument shall be deemed
admitted unless the adverse party, under oath specifically denies them, IF THE DEFENSE OF A PARTY IS BASED ON LAW HOW SHOULD HE
and sets forth what he claims to be the facts, but the requirement of an ALLEGE THE SAME?
oath does not apply when the adverse party does not appear to be a • If a defense relied on is based on law, the pertinent provision
party to the instrument or when compliance with an order for an thereof and their applicability to him shall be clearly and
inspection of the original instrument is refused. (8a) concisely stated

Section 9. Official document or act. In pleading an official document MAY A PARTY INTERPOSE ALTERNATIVE CAUSES OR DEFENSES IN
or official act, it is sufficient to aver that the document was issued or ONE CAUSE?
the act done in compliance with law. (9) • Yes he may
• A party may set forth two or more statements of a claim or
Section 10. Specific denial. A defendant must specify each material defense alternatively or hypothetically, either in one cause of
allegation of fact the truth of which he does not admit and, whenever action or defense or in separate causes of action or defenses.
practicable, shall set forth the substance of the matters upon which he When two or more statements are made in the alternative and
relies to support his denial. Where a defendant desires to deny only a one of them if made independently would be sufficient, the

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 47


pleading is not made insufficient by the insufficiency of one or • Whenever an action or defense is based upon a written
more of the alternative statements instrument or document, the substance of such instrument or
document shall be set forth in the pleading, and the original or
HOW MAY CONDITIONS PRECEDENT BE PLEADED? a copy thereof shall be attached to the pleading as an exhibit,
• In any pleading, a general averment of the performance or which shall be deemed to be a part of the pleading, or said
occurrence of all conditions precedent shall be sufficient copy may with like effect be set forth in the pleading.

MUST THE CAPACITY OF A PERSON TO SUE OR BE SUED BE WHAT IS AN ACTIONABLE DOCUMENT?


AVERRED? • It is that document or instrument which is the basis of a cause
• Yes, facts showing the capacity of a party to sue and be sued of action or defense, and not merely evidentiary thereon
or the authority of a party to sue or be sued in a representative
capacity or the legal existence of an organized association of HOW MAY THE GENUINENESS OF A DOCUMENT BE CONTESTED?
persons that is made a party, must be averred • When an action or defense is founded upon a written
instrument, copied in or attached to the corresponding
HOW MAY A PERSON RAISING THE ISSUE OF THE LEGAL pleading as provided in the preceding section, the genuineness
EXISTENCE OF ANY PARTY OR HIS CAPACITY AVER THE SAME? and due execution of the instrument shall be deemed admitted
1. He must aver it by specific denial which shall include such unless the adverse party, under oath specifically denies them,
particulars as are peculiarly within his knowledge and sets forth what he claims to be the facts, but the
2. Motion to dismiss requirement of an oath does not apply when the adverse party
3. Filing of a motion for a bill of particulars does not appear to be a party to the instrument or when
compliance with an order for an inspection of the original
HOW SHOULD FRAUD, MISTAKE, OR CONDITION OF MIND BE instrument is refused.
AVERRED?
• They must be pleaded or averred with particularity WHAT IS THE EFFECT IF THE DEFENDANT FAILS TO DENY UNDER
OATH THE GENUINENESS AND DUE EXECUTION OF AN
HOW MAY MALICE, INTENT, KNOWLEDGE OR OTHER CONDITION OF ACTIONABLE DOCUMENT?
MIND BE AVERRED? • It is deemed admitted or conclusively established
• They can be averred generally • It is not necessary to formally offer it in evidence and it may
even be the basis of judgment on the pleadings because of the
HOW MAY A JUDGMENT BE AVERRED? fact that the complaint was based on affidavit and
• In pleading a judgment or decision of a domestic or foreign memorandum of quitclaim and was not denied under oath
court, judicial or quasi-judicial tribunal, or of a board or
officer, it is sufficient to aver the judgment or decision without WHAT IS MEANT BY ADMISSION OF THE GENUINENESS AND DUE
setting forth matter showing jurisdiction to render EXECUTION OF AN INSTRUMENT?
• By the admission of the genuineness and due execution of an
HOW MAY AN OFFICIAL DOCUMENT OR ACT BE AVERRED? instrument, is meant that the party whose signature it bears
• In pleading an official document or official act it is sufficient to admits that he signed it or that it was signed by another for
aver that the document was issued or the act done in him with his authority, that at the time it was signed, it was in
compliance with law words and figures exactly as set out in the pleadings of the
party relying upon it, that the document was delivered and that
HOW MAY AN ACTIONABLE DOCUMENT BE PLEADED AS BASIS FOR any formal requisites required by law, such as seal, an
THE CAUSE OF ACTION OF THE PLAINTIFF OR DEFENSE? acknowledgement, or revenue stamps which it lacks are
waived.

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 48


• The defense of forgery or that it was unauthorized are cut-off


by admission of genuineness and due execution WHAT IS THE LIMITATION TO THE AFOREMENTIONED DENIAL?
• It must be resorted to in good faith and with sincerity,
IS THIS RULE ABSOLUTE? WHY? certainty, and not for the purpose of delay
• No, because it admits of the following exceptions— • It doesn’t apply where the fact as to which want of knowledge
o When the adverse party doesn’t appear to be a party is asserted, is so plainly and necessarily within the defendant’s
to the instrument knowledge that his averment of ignorance must be palpably
o When compliance to an order of inspection of the untrue
original document is refused
o When the document is not the basis of the action or IS IT ENOUGH FOR A PARTY TO SIMPLY STATE THAT HE HAS NO
defense KNOWLEDGE?
• No, he should positively state how it was that he was
WHAT IS THE PURPOSE FOR THE NEED OF A SPECIFIC DENIAL supposedly ignorant of the facts alleged
UNDER OATH OF THE GENUINENESS AND DUE EXECUTION OF AN • An unexplained denial of information within the control of the
ACTIONABLE DOCUMENT? pleader, or is readily accessible to him, is evasive and is
• To enable the adverse party to know beforehand whether he insufficient to constitute an effective denial
will have to meet the issue of genuineness or due execution
during the trial WHAT CAN BE DONE IN CASE OF CONFLICT BETWEEN THE
ALLEGATIONS IN THE COMPLAINT AND THE DOCUMENTS
WHAT IS MEANT BY ADMISSION OF DUE EXECUTION OF AN ATTACHED THERETO?
INSTRUMENT? • The court shouldn’t dismiss the complaint
• It means that he signed it voluntarily or that it was signed by • The defendant should be made to answer the issue and an
another for him with his authority opportunity to be given to the plaintiff to reconcile any
apparent conflict between the allegations in the complaint and
WHAT SHOULD ONE PARTY DO TO DENY A MATERIAL ALLEGATION the document attached to support the same, and to give the
OF FACT? defendant ample opportunity to refute and to show that said
• A defendant must specify each material allegation of fact the conflict is real, material and decisive
truth of which he does not admit and, whenever practicable,
shall set forth the substance of the matters upon which he WHAT IS A NEGATIVE PREGNANT?
relies to support his denial. • It is an admission in avoidance
• It is a form of negative expression which carries with it an
WHAT SHOULD ONE PARTY DO IF HE WISHES TO DENY ONLY A affirmation or at least an implication of some kind favorable to
PART OF A MATERIAL FACT? the adverse party and is a denial pregnant with an admission
• Where a defendant desires to deny only a part of an averment, of the substantial facts alleged in the pleading. Where a fact is
he shall specify so much of it as is true and material and shall alleged with qualifying or modifying language and the words of
deny only the remainder. the allegation as so qualified or modified are literally denied,
the qualifying circumstances are denied while the fact itself is
WHAT SHOULD A PARTY DO IF HE HAS NO KNOWLEDGE OF SUCH admitted
MATERIAL FACT AND WHAT IS THE EFFECT?
• When the defendant is without knowledge and information WHAT IS THE EFFECT IF THERE ARE ALLEGATIONS IN THE
sufficient to form a belief as to the truth of a material PLEADINGS THAT ARE NOT SPECIFICALLY DENIED?
averment made in the complaint, he shall so state, and this
shall have the effect of a denial

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 49


• If there are material averments in the complaint other those as


to the amount of unliquidated damages, these shall be (b) Relief from order of default. A party declared in default may at
deemed admitted when not specifically denied any time after notice thereof and before judgment file a motion under
oath to set aside the order of default upon proper showing that his
HOW MAY A SHAM, OR FALSE, FRAUDULENT, REDUNDANT, failure to answer was due to fraud, accident, mistake or excusable
IMMATERIAL, IMPERTINENT OR SCANDALOUS MATTER BE negligence and that he has a meritorious defense. In such case, the
STRICKEN OUT FROM A PLEADING? order of default may be set aside on such terms and conditions as the
• Upon motion made by a party before responding to a pleading judge may impose in the interest of justice. (3a, R18)
or, if no responsive pleading is permitted by these Rules, upon
motion made by a party within twenty (20) days after the (c) Effect of partial default. When a pleading asserting a claim
service of the pleading upon him, or upon the court's own states a common cause of action against several defending parties,
initiative at any time, the court may order any pleading to be some of whom answer and the others fail to do so, the court shall try
stricken out or that any sham or false, redundant, immaterial, the case against all upon the answers thus filed and render judgment
impertinent, or scandalous matter be stricken out therefrom upon the evidence presented. (4a, R18).

(d) Extent of relief to be awarded. A judgment rendered against a


RULE 9: EFFECT OF FAILURE TO PLEAD
party in default shall not exceed the amount or be different in kind
from that prayed for nor award unliquidated damages. (5a, R18).
Section 1. Defenses and objections not pleaded. Defenses and
objections not pleaded either in a motion to dismiss or in the answer (e) Where no defaults allowed. If the defending party in an action
are deemed waived. However, when it appears from the pleadings or for annulment or declaration of nullity of marriage or for legal
the evidence on record that the court has no jurisdiction over the separation fails to answer, the court shall order the prosecuting
subject matter, that there is another action pending between the same attorney to investigate whether or not a collusion between the parties
parties for the same cause, or that the action is barred by a prior exists, and if there is no collusion, to intervene for the State in order to
judgment or by statute of limitations, the court shall dismiss the claim. see to it that the evidence submitted is not fabricated. (6a, R18)
(2a)
WHAT IS THE OMNIBUS MOTION RULE?
Section 2. Compulsory counterclaim, or cross-claim, not set up • Defenses and objections not pleaded either in a motion to
barred. A compulsory counterclaim, or a cross-claim, not set up shall dismiss or in the answer are deemed waived.
be barred. (4a) • In connection with summons, in case summons wasn’t
properly served on you. You want to question jurisdiction of
Section 3. Default; declaration of. If the defending party fails to court over your person. You file by special appearance a
answer within the time allowed therefor, the court shall, upon motion of motion to dismiss. The first ground you’ll mention is that
the claiming party with notice to the defending party, and proof of such there is no jurisdiction over your person. Under the omnibus
failure, declare the defending party in default. Thereupon, the court motion rule, you can add other grounds. The inclusion of
shall proceed to render judgment granting the claimant such relief as these grounds will not be considered as a voluntary
his pleading may warrant, unless the court in its discretion requires the appearance. This is only compliance with the rules that you
claimant to submit evidence. Such reception of evidence may be have to mention every ground.
delegated to the clerk of court. (1a, R18)
WHAT ARE THE EXCEPTIONS TO THE OMNIBUS MOTION RULE?
(a) Effect of order of default. A party in default shall be entitled to 1. Lack of jurisdiction over the subject matter
notice of subsequent proceedings but not to take part in the trial. (2a, • Jurisdiction over the person must be reasonably
R18) raised. Voluntary appearance shall be deemed a

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 50


waiver of this defense. The assertion however of *REVIEW: DIFFERENCE BETWEEN LACK OF CAUSE OF ACTION AND
affirmative defenses shall not be construed as an FAILURE TO STATE A CAUSE OF ACTION.
estoppel or as a waiver of such defense. • Absence of any elements, there is failure to state a cause of
• Where the court itself clearly has no jurisdiction over action
the subject matter or the nature of the action, the • Failure to state cause of action is subject to a motion to
invocation of this defense may be done at any time. it dismiss
is neither for the courts nor the parties to violate or • No hearing necessary when it comes to failure to state cause
disregard that rule, let alone confer that jurisdiction, of action—either no obligation, no legal right, or no act or
the matter being legislative in character. Barring omission
highly meritorious and exceptional circumstances, • Lack of cause of action is a matter of defense
such as hereinbefore exemplified, neither estoppel nor o Proof of privity of contract needed
waiver shall apply o Hearing usually needed but sometimes, not needed
2. Pendency of another action between the same parties for the
same cause or litis pendentia IN A DEFENDANT’S ANSWER TO THE COMPLAINT, HE ALLEGED
3. Bar by prior judgment or res judicata THAT THERE HAS BEEN PREVIOUS JUDGMENT ALREADY. MUST
4. Statute of limitations or prescription THE COURT CONDUCT A HEARING?
• Not anymore if the defendant was able to attach the previous
WHAT SHOULD BE DONE IF ANY OF THE AFOREMENTIONED judgment render which clearly shows there has been a final
GROUNDS ARE PRESENT? determination and judgment with respect to the cause of
• If these grounds appear from the pleadings or the evidence on action
record, the court shall dismiss the claim • The previous judgment constitutes evidence
• The former rule limited the exceptions to failure to state a
cause of action and lack of jurisdiction over the subject matter WHAT IS THE EFFECT IF THERE ARE DEFENSES OR OBJECTIONS
• The waiver under this section isn’t irrevocable and relief may THAT ARE NOT PLEADED EITHER IN A MOTION TO DISMISS OR IN
be obtained from the consequences of such waiver by THE ANSWER? ARE THERE EXCEPTIONS?
amendment with section 3 and 5 of Rule 10 • They are deemed waived
• Exceptions are the following—
WITH RESPECT TO A MOTION TO DISMISS FOR FAILURE TO STATE o When it appears from the pleadings or the pieces of
CAUSE OF ACTION, CAN IT BE FILED AFTER THE ANSWER HAS evidence on record that the court has no jurisdiction
BEEN FILED? over the subject matter
• Yes, motion to dismiss for failure to state a cause of action o There is another action pending between the parties
may be made after the answer has been filed, or at any stage for the same cause
of the proceedings when the motion is based upon a plaintiff’s o The action is barred by the statute of limitations
failure to state a cause of action
• The failure to state a cause of action may however be cured WHAT IS MEANT BY “ANOTHER ACTION” AS CONTEMPLATED IN
under Section 5 of Rule 10 SECTION 1?
• It means that there are two pending actions between the
WHAT GROUNDS MAY THE COURT USE TO MOTU PROPRIO DISMISS parties and the rules doesn’t qualify on whether it should be
A COMPLAINT? the first or the latter instituted action
1. Lack of jurisdiction over subject matter
2. Failure to state cause of action WHEN IS A PERSON DECLARED IN DEFAULT?
1. Defending party fails to file responsive pleading on time

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 51


2. Defending party fails to furnish a copy of the responsive


pleading to the other party IN CASE OF DEFAULT, THE COURT SHALL PROCEED TO RECEIVE
3. Failure of a party to file an answer to written interrogatories, a THE PLAINTIFF’S EVIDENCE AND RENDER JUDGMENT GRANTING
judgment of default against the defendant HIM SUCH RELIEF AS THE COMPLAINT AND FACTS PROVEN MAY
WARRANT. THE RELIEFS GRANTED SHALL NOT EXCEED THE
MAY THE COURT DECLARE A DEFENDANT IN DEFAULT IF AN AMOUNT AND BE DIFFERENT IN KIND FROM THAT PRAYED FOR.
ANSWER WAS FILED OUT OF TIME? WHAT IS THE REASON FOR THIS RULE?
• The court should admit the answer instead of declaring the • A declaration of default is not an admission of the truth or
defendant in default validity of the plaintiff’s claim
• To admit or reject an answer filed beyond the prescribed
period is addressed to the sound discretion of the court WHAT IS THE EFFECT OF AN ANSWER TO THE COMPLAINT BY ONE
• The rules authorize the court to accept answer although filed OF THE DEFENDANTS ON THE OTHERS WHO DIDN’T ANSWER THE
late when it provides so upon motion and on such terms as COMPLAINT?
may be just, the court may extend the time to plead provided • When a pleading asserting a claim states a common cause of
in the Rules action against several defending parties, some of whom
answer and the others fail to do so, the court shall try the case
WHAT IS THE BETTER POLICY WITH RESPECT TO DEFAULTS? against all upon the answers thus filed and render judgment
• Default orders should be avoided even if there is late filing of upon the evidence presented
answer • This doesn’t apply where there is no common cause of action
• A declaration of default should not issue unless the claiming such as an action for damages arising from a quasi-delict and
party asked for it as the court may not motu proprio declare a contract
party in default—there must be a motion for a declaration of
default by the plaintiff with proof of failure by the defendant to WHAT ARE ONE’S REMEDIES AGAINST AN ORDER OF DEFAULT?
file his responsive pleading despite due notice 1. From notice of order of default, but before judgment
a. Motion to set aside order of default based on fraud,
MAY A PARTY BE DECLARED IN DEFAULT WITHOUT FURNISHING accident, mistake or excusable negligence
HIM A COPY OF THE MOTION TO DECLARE HIM IN DEFAULT? b. In a proper case, petition for certiorari
• No, there is no more ex parte motion to declare a party in 2. If there is already judgment
default a. Motion for new trial under Rule 37
i. Fraud, accident, mistake or excusable
HOW IS THE DEFENDANT DECLARED IN DEFAULT? negligence which ordinary prudence could not
1. Motion from plaintiff to declare in default the defendant with have guarded against and by reason of which
notice to the latter such aggrieved party has probably been
2. Order of the court declaring the defendant in default with impaired in his rights; or
notice to the parties ii. Newly discovered evidence, which he could
not, with reasonable diligence, have
WHAT IS THE EFFECT OF DEFAULT? discovered and produced at the trial, and
1. Defendant loses standing in court which if presented would probably alter the
2. Party in default entitled to notice of proceedings but not to result.
participate therein b. Appeal under Rule 41
3. Plaintiff can have defendant declared in default and present c. Motion for reconsideration under Rule 37
evidence ex parte—can be before clerk of court i. Damages awarded are excessive
4. Defendant is entitled to appeal

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 52


ii. Insufficient evidence to justify the decision or • He must show that his failure to answer due to fraud, accident,
final order mistake or excusable negligence and that he has a meritorious
iii. The decision or final order is contrary to law defense. In such case, the order of default may be set aside on
3. If the judgment is already final such terms and conditions as the judge may impose in the
a. Petition for relief from judgment interest of justice.
b. In proper cases, petition for certiorari
c. Petition for annulment or nullity of judgment may also IN WHAT INSTANCES MAY A DECLARATION OF DEFAULT BE NOT
be filed—from MTC to RTC; from RTC to CA PROPER?
1. In actions for annulment of marriage
CAN ONE RESORT TO CERTIORARI AS A REMEDY AGAINST A 2. In actions for declaration of nullity of marriage
DEFAULT ORDER? 3. In cases of action for legal separation
• It depends
• Certiorari will not lie if the default order is valid but if the order WHAT SHOULD THE TRIAL COURT DO IN CASE OF THE
was improvidently issued, that is the defendant was declared AFOREMENTIONED CASES?
in default without a motion, or without having served summons • The court shall order the prosecuting attorney to investigate
or even if he has been served, before the reglementary period whether or not there was collusion between the parties and if
to answer, certiorari is available as a remedy there is no collusion, to intervene for the State in order to see
to it that the evidence submitted is not fabricated
MAY ONE FILE AN APPEAL FOR THE ORDER DECLARING HIM IN
DEFAULT? X FILED A CASE AGAINST A, B, C AND D FOR COLLECTION OF
• No as the same constitutes an interlocutory order MONEY. A AND B WERE THE ONLY ONES WHO FILED AN ANSWER.
WHAT IS THE CONSEQUENCE OF SUCH ACTION?
AT WHAT INSTANCE MAY A PLAINTIFF BE DECLARED IN DEFAULT? • X can file a motion to declare in partial default with respect to
• Yes if he fails to answer to a permissive counterclaim C and D
interposed by the defendant • The case shall proceed and the court shall try the case against
all upon the answers thus filed and render judgment upon the
IS A PARTY ENTITLED TO NOTICE ON SUBSEQUENT evidence presented, in this case, the answers filed by A and B
PROCEEDINGS? would be used against C and D as well if they raise common
• Yes but he may not take part in the trial defenses

MAY A PARTY DECLARED IN DEFAULT FILE A MOTION TO SET AT WHAT INSTANCE WHEN COMMON DEFENSES WILL NOT APPLY
ASIDE ORDER OF DEFAULT? WITH RESPECT TO THE RULE ON PARTIAL DEFAULT?
• Yes and it may be filed at any time after notice thereof and • It cannot apply when there is personal defenses such as
before judgment forgery, duress, force or intimidation—these shall not be
• The motion must be under oath applicable to the others who were in default

MAY A PARTY DECLARED IN DEFAULT FILE A MOTION TO SET WHAT IS THE EFFECT ON THE JUDGMENT IN CASE OF DEFAULT?
ASIDE JUDGMENT BY DEFAULT? • Judgment cannot go beyond what was prayed for by the
• No, his remedy is to appeal the judgment plaintiff and no unliquidated damages can be awarded as the
other party was not given any opportunity to controvert the
WHAT MUST A PARTY IN DEFAULT IN HIS MOTION STATE WHEN HE amount of the same and consequently, there is denial of due
MOVES TO SET ASIDE AN ORDER OF DEFAULT? process

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 53


IN THE CASE OF BREACH OF CONTRACT OF CARRIAGE, WHO IS THE


criminal action
INDISPENSIBLE PARTY?
• It is the bus owner as he is the one with privity of contract with
the passengers of the bus
X (death) and Y
(serious physical Options for heirs of
X and Y quasi-delict
injuries) IN ADDITION TO THE ABOVEMENTIONED FACTS, E IS THE INSURER
OF THE BUS, F IS THE INSURER OF C, G IS THE INSURER OF D. Z IS
bumped the car of F is the insurer of breach of contract THE PASSENGER OF D. CAN Z PROCEED AGAINST THE BUS
Bus driver and bus
owner (E is insurer C C of carriage DRIVER CORRECTLY?
of bus driver/
owner) • Yes, Z can on the basis of privity of contract

Z is passenger of D Z is the debtor of C


IN CASE Z FILES A CASE AGAINST THE BUS DRIVER, WHAT IS THE
bumped the car of REMEDY AVAILABLE TO HIM?
D
• The bus driver can file a third-party complaint against C by
G is insurer of D alleging negligence on the latter’s part that caused the
accident
• The bus driver can file a fourth-party complaint against the
SITUATION: BUS OWNER AND BUS DRIVER HAD X AND Y AS insurer for indemnification
PASSENGERS. THE BUS BUMPED THE CAR OF C AS WELL AS THE
CAR OF D. THIS CAUSED THE DEATH OF X AND SERIOUS PHYSICAL SUPPOSING Z FILED AN ACTION AGAINST C AND THE BUS DRIVER.
INJURIES OF Y. WHAT CASES COULD BE FILED AGAINST THE BUS WHAT ACTIONS CAN C TAKE?
OWNER AND BUS DRIVER? • C can file a cross-claim against the bus driver by averring that
1. Criminal case it was the driver who was negligent
2. Quasi-delict • C can also file a third-party complaint against F (his insurer)
3. Breach of contract of carriage for indemnification and not against E as there is no privity of
contract between C and E
IN CASE CRIMINAL ACTION IS INSTITUTED, WHO IS THE • C can also file a third-party complaint against D for being a
INDISPENSIBLE PARTY? negligent driver
• The bus driver is the only indispensible party and the bus • C can also interpose a permissive counterclaim against Z for
owner may only be impleaded as party in case subsidiary the collection of debt
liability arises
• Take note, that in instituting the criminal action, a civil action CAN C FILE A COUNTERCLAIM IN HIS ANSWER AGAINST Z?
is instituted given exceptions provided by law—e.g • Yes, but it is a permissive counterclaim as it didn’t arise from
reservations, etc. the same transaction

HOW ABOUT IN CASE OF QUASI-DELICT, WHO IS THE SUPPOSING C WILL FILE CASE AGAINST THE BUS DRIVER FOR
INDISPENSIBLE PARTY? DAMAGE CAUSED TO HIS CAR. WHERE SHOULD THE ACTION BE
• Both the bus owner and driver are indispensible parties FILED?
• The defense the owner can interposed is diligence of a good • The MTC has exclusive original jurisdiction over cases of
father to his family in the selection, training and supervision of damage to property through criminal negligence
the employee—in this case, the bus driver
C WILL FILE THE CASE WITH THE MTC. WHAT REMEDY CAN THE
BUS DRIVER AVAIL OF?

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 54


• Third-party complaint against the insurer E for indemnification • If it will create confusion to the court (pandemonium in the
courtroom)
CAN D AND Z FILE A CASE AGAINST C TOGETHER—D FOR DAMAGE
TO HIS CAR AND Z FOR SLIGHT PHYSICAL INJURIES?
RULE 10: AMENDED AND SUPPLEMENTAL PLEADINGS
• Yes, based on permissive joinder of parties
o Arising from the same transaction or series of
transactions Section 1. Amendments in general. Pleadings may be amended by
o Common question of law or fact adding or striking out an allegation or the name of any party, or by
correcting a mistake in the name of a party or a mistaken or
WHICH COURT HAS JURISDICTION IN CASE D AND Z JOINTLY FILED inadequate allegation or description in any other respect, so that the
THEIR CASE AGAINST C? actual merits of the controversy may speedily be determined, without
• The MTC has jurisdiction—both cases are within the regard to technicalities, and in the most expeditious and inexpensive
jurisdiction of the MTC manner. (1)

WHAT IS THE RECOURSE OR REMEDY OF C IN CASE D AND Z Section 2. Amendments as a matter of right. A party may amend his
JOINTLY FILE A CASE AGAINST HIM? pleading once as a matter of right at any time before a responsive
• C can file a third-party complaint against the bus driver pleading is served or, in the case of a reply, at any time within ten (10)
• C can also file a fourth-party complaint against the insurer F days after it is served. (2a)
• C can also file a permissive counterclaim against Z for the
latter’s debt Section 3. Amendments by leave of court. Except as provided in the
next preceding section, substantial amendments may be made only
SUPPOSING Z’S DEBT AMOUNTS TO P500,000. WILL THE upon leave of court. But such leave may be refused if it appears to the
PERMISSIVE COUNTERCLAIM BE ALLOWED? court that the motion was made with intent to delay. Orders of the
• It is limited to that amount within the jurisdiction of the MTC— court upon the matters provided in this section shall be made upon
P300,000 if outside Metro Manila or P400,000 if insider Metro motion filed in court, and after notice to the adverse party, and an
Manila opportunity to be heard. (3a)

WHAT IS A PERMISSIVE COUNTERCLAIM? Section 4. Formal amendments. A defect in the designation of the
• It is something which doesn’t arise from the same transaction parties and other clearly clerical or typographical errors may be
or series of transaction originally involved in the action filed summarily corrected by the court at any stage of the action, at its
initiative or on motion, provided no prejudice is caused thereby to the
WHAT IS REQUIRED FOR FILING THIRD-/FOURTH-PARTY adverse party. (4a)
COMPLAINT?
• Leave of court must be obtained first Section 5. Amendment to conform to or authorize presentation of
evidence. When issues not raised by the pleadings are tried with the
WHY IS LEAVE OF COURT REQUIRED? express or implied consent of the parties they shall be treated in all
• For the court to appropriately send summons to the third- respects as if they had been raised in the pleadings. Such amendment
/fourth-party defendants and acquire jurisdiction over their of the pleadings as may be necessary to cause them to conform to the
persons evidence and to raise these issues may be made upon motion of any
party at any time, even after judgment; but failure to amend does not
WHAT REASONS MAY THE COURT USE IN DENIAL OF THE FILING OF effect the result of the trial of these issues. If evidence is objected to at
A THIRD-/FOURTH-PARTY COMPLAINT? the trial on the ground that it is not within the issues made by the
• If the third-/fourth-party complaints are only filed for delay pleadings, the court may allow the pleadings to be amended and shall

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 55


do so with liberality if the presentation of the merits of the action and


the ends of substantial justice will be subserved thereby. The court
may grant a continuance to enable the amendment to be made. (5a) designation of
parties (plaintiff/
defendant)
Section 6. Supplemental pleadings. Upon motion of a party the court What is a formal
may, upon reasonable notice and upon such terms as are just, permit amendment?
clerical or
him to serve a supplemental pleading setting forth transactions, typographical
errors
occurrences or events which have happened since the date of the
Formal
pleading sought to be supplemented. The adverse party may plead
thereto within ten (10) days from notice of the order admitting the motu propio
supplemental pleading. (6a) How can this be
made?

Section 7. Filing of amended pleadings. When any pleading is motion of the party
himself
amended, a new copy of the entire pleading, incorporating the
amendments, which shall be indicated by appropriate marks, shall be
filed. (7a) Amendments adding or striking
an allegation
What is substantial
Section 8. Effect of amended pleadings. An amended pleading amendment? mistaken or
inadequate
supersedes the pleading that it amends. However, admissions in allegation or
superseded pleadings may be received in evidence against the pleader, description in any
other manner
and claims or defenses alleged therein not incorporated in the
amended pleading shall be deemed waived. (n) before service of
the responsive
pleading
Substantial How can this be
made?
when not as a
matter of right?
with leave of court
if a matter of right: D
mailed his responsive
pleading to P. Amended
before copy was served.
Can plaintiff still
amend? yes.

WHEN IS AMENDMENT A MATTER OF RIGHT?


• A plaintiff may amend his complaint once as a matter of right
at any time before the answer
• There being no responsive pleading to a reply, a reply may be
amended within 10 days after it is served, without regard as to
whether the action has been placed in the trial calendar
• Defendant has the right to amend his answer before the reply
is served on him

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 56


NOTE: AN ANSWER IS A RESPONSIVE PLEADING, A MOTION TO CAN A PLAINTIFF AMEND HIS COMPLAINT WITHOUT LEAVE OF
DISMISS IS NOT COURT BY ADDING OR MODIFYING HIS CAUSE OF ACTION AFTER
• A plaintiff may amend his complaint as a matter of right after THE FILING OF AN ANSWER?
the filing of motion to dismiss by the defendant but before the • A plaintiff cannot after defendant’s answer, amend his
service of an answer complaint by changing the cause of action or adding a new one
• There is no need for the court to allow the admission of an without previously obtaining a leave of court
amended complaint that is filed after the defendant files a
motion to dismiss but before the service of an answer MAY PLAINTIFF’S CAPACITY TO SUE BE RAISED BY AMENDMENT
AFTER ALL HAVE RESTED THEIR CASES?
WHEN IS ANOTHER SUMMONS MUST BE SERVED ON DEFENDANT? • Yes, lack of plaintiff’s capacity to sue may be raised by
• If new causes of action are alleged in the amended complaint amendment after both parties had already rested their cases
filed before the defendant has appeared in court, another
summons must be served on the defendant with the amended MAY A CAUSE OF ACTION WHICH HAS NOT YET ACCRUED BE
complaint CURED BY AMENDED OR SUPPLEMENTAL PLEADINGS?
• No, a cause of action which hasn’t yet accrued cannot be
WHEN IS ANOTHER SUMMONS UNNECESSARY WITH RESPECT TO cured by amended or supplemental pleadings
AMENDMENT?
• If the defendant has already appeared in court, a new WHAT IS THE RECOURSE WITH RESPECT TO OBLIGATIONS
summons isn’t necessary, and the defendant may be served a PAYABLE IN INSTALLMENTS WITH AN ACCELERATION CLAUSE?
copy of the amended complaint either by personal service, by • In an obligation payable in installments with an acceleration
mail or by substituted service clause, inasmuch as the cause of action exists with respect to
all the installments due and unpaid at the time of filing of the
ARE AMENDMENTS TO PLEADINGS LIBERALLY ALLOWED? complaint, a supplemental complaint may be filed for the
• Yes, amendments to pleadings liberally allowed in the subsequent accruing installments
furtherance of justice
MAY A COMPLAINT STATING NO CAUSE OF ACTION BE CURED BY
WHAT IS THE NATURE OF THE RIGHT TO AMEND PLEADINGS? AMENDMENT?
• The granting of leave to file amended pleadings is a matter • Yes, if in fact a cause of action exists but the statement thereof
peculiarly within the sound discretion of the trial court is defective for failure to allege essential facts
• But the rule allowing amendments to pleadings is subject to
the general but not inflexible limitation that the cause of action HOW ARE FORMAL AMENDMENTS MAY BE CORRECTED?
or defense shall not be substantially changed or the theory of 1. Motu propio
the case altered to the prejudice of the other party 2. On motion

WHAT CAN BE DONE TO AN ANSWER CONTAINING A GENERAL MAY A COMPLAINT BE AMENDED BY SUBSTITUTING THE REAL
DENIAL? PARTY IN INTEREST AS PARTY PLAINTIFF AFTER SUBMITTING THE
• An answer containing a general denial may be amended so as CASE TO THE SC FOR DECISION?
to contain a specific denial • Yes, complaint may be amended by substituting the real party
• This amendment is to be reckoned within 15-day period; within in interest as party plaintiff after the case has been submitted
the 15-day period, as a matter of right and if beyond this to the SC for decision on the merits
period, leave of court is necessary • Amendment to cure defect of party plaintiff may be made in
the SC even after the final decision is rendered

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 57


WHAT PROCEDURE IS REQUIRED IF AMENDMENT IS SOUGHT • No because the original complaint can still be amended as a
AFTER DISMISSAL? matter of right
• There must be motion for leave to admit amended pleading if • It supercedes the original pleading
it is filed after the dismissal of the complaint but before the
finality of the order of dismissal WHAT IS ONE’S REMEDY IF AMENDMENT IS NOT ALLOWED WHEN IT
IS STILL A MATTER OF RIGHT?
WHAT HAPPENS WHEN ISSUES NOT RAISED IN THE PLEADINGS • Mandamus is the remedy considering that it is a matter of
WERE TRIED WITH THE EXPRESS OR IMPLIED CONSENT OF THE right
LITIGANT PARTIES?
• When issues not raised by the pleadings are tried with the WHAT HAPPENS WHEN THE EVIDENCE PRESENTED IS
express or implied consent of the parties they shall be treated INCOMPATIBLE WITH THE ISSUES RAISED IN THE PLEADINGS AND
in all respects as if they had been raised in the pleadings. THERE IS NO OBJECTION?
• Amendment is not necessary
WHEN MAY THE COURT REFUSE TO GRANT LEAVE TO AMEND A • Such amendment of the pleadings as may be necessary to
PLEADING? cause them to conform to the evidence and to raise these
• Leave to amend a pleading may be refused if the motion was issues may be made upon motion of any party at any time,
made with intent to delay even after judgment; but failure to amend does not effect the
result of the trial of these issues
WHEN MAY SUBSTANTIAL AMENDMENTS BE MADE?
• May be made only through leave of court even if the WHAT IF THE AMENDMENT OF PLEADINGS IS OBJECTED TO?
amendment substantially alters the cause of action or defense • If evidence is objected to at the trial on the ground that it is
not within the issues made by the pleadings, the court may
WHEN IS AMENDMENT A MATTER OF PRIVILEGE? allow the pleadings to be amended and shall do so with
• Substantial amendment is a matter of privilege after the case liberality if the presentation of the merits of the action and the
is set for hearing and hence, needs leave of court ends of substantial justice will be subserved thereby. The court
may grant a continuance to enable the amendment to be
MAY A COMPLAINT BE AMENDED AFTER THE CASE HAS BEEN made.
RESTED?
• Yes, an amendment to question capacity to sue even after the DISTINCTION BETWEEN AMENDED AND SUPPLEMENTAL
case is rested is proper PLEADINGS.
AMENDED PLEADINGS SUPPLEMENTAL PLEADINGS
WHEN IS AMENDMENT TO CHANGE THE THEORY BE ALLOWED? Proper in order to allege facts Proper in order to allege facts
• It must be allowed even if it changes the theory and if it will which occurred prior to the filing which occurred after the filing of
negate the defendant’s liability of the original pleadings, but for the original pleadings
which reason, such as oversight,
MAY THERE BE AMENDMENT TO CONFER JURISDICTION? inadvertence, or subsequent
• As a rule, no, if on the face of the complaint the court has no discovery, were not alleged
jurisdiction, amendment shouldn’t be allowed, for the court is therein
powerless to act on the admission to amend or the amended Designed to include matters Are designed to cover matters
complaint occurring before the filing of the subsequently occurring but
bill but either overlooked or not pertaining to the original cause
SUPPOSE THERE WAS NO ANSWER OR MOTION TO DISMISS HAS known at the time
YET TO BE FILED, WOULD YOUR ANSWER BE THE SAME?

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 58


therein not incorporated in the amended pleading shall be


IS THE FILING OF A SUPPLEMENTAL ANSWER AFTER JUDGMENT deemed waived.
ALLOWABLE?
• Yes, it should be allowed where the defendant invokes therein
RULE 11: WHEN TO FILE RESPONSIVE PLEADINGS
a fact, which, although known to him at the time he submitted
his answer, he justifiably cannot then assert because of the
danger involved. Consequently, a new trial was in order. Section 1. Answer to the complaint. The defendant shall file his
• A supplemental answer cannot be filed after judgment has answer to the complaint within fifteen (15) days after service of
become final summons, unless a different period is fixed by the court. (la)

ISN’T THERE A SHORTER PERIOD GIVEN WITH THE TEN-DAY Section 2. Answer of a defendant foreign private juridical entity.
PERIOD TO FILE A RESPONSIVE PLEADING? Where the defendant is a foreign private juridical entity and service of
• No because the 10-day period is counted from the date of summons is made on the government official designated by law to
notice of the order admitting the supplemental pleading and receive the same, the answer shall be filed within thirty (30) days after
not upon the filing of said pleading receipt of summons by such entity. (2a)
• In the matter of right, no responsive pleading has been
prepared yet—everything would be out of scratch but with Section 3. Answer to amended complaint. When the plaintiff files an
respect to an amended answer, you already have something to amended complaint as a matter of right, the defendant shall answer
work on the same within fifteen (15) days after being served with a copy
thereof.
WHY IS THE 15-DAY PERIOD TO FILE ANSWER RECKONED FROM
SERVICE? Where its filing is not a matter of right, the defendant shall answer the
• Because you have already been summoned and copies of the amended complaint within ten (l0) days from notice of the order
complaint has been previously attached admitting the same. An answer earlier filed may serve as the answer to
the amended complaint if no new answer is filed.
WHY DOES THE RULES ONLY PROVIDE A 10-DAY PERIOD WITH
RESPECT TO FILING AN ANSWER TO AN AMENDED COMPLAINT? This Rule shall apply to the answer to an amended counterclaim,
• Because upon notice of the court allowing the amended amended cross-claim, amended third (fourth, etc.)party complaint, and
complaint, the defendant was already served a copy of the amended complaint-in-intervention. (3a)
same
Section 4. Answer to counterclaim or cross-claim. A counterclaim or
HOW IS AMENDED PLEADING FILED? cross-claim must be answered within ten (10) days from service. (4)
• When any pleading is amended, a new copy of the entire
pleading, incorporating the amendments, which shall be Section 5. Answer to third (fourth, etc.)-party complaint. The time to
indicated by appropriate marks, shall be filed. answer a third (fourth, etc.)party complaint shall be governed by the
same rule as the answer to the complaint. (5a)
WHAT IS THE EFFECT OF FILING AN AMENDED PLEADING?
• An amended pleading supersedes the pleading that it amends. Section 6. Reply. A reply may be filed within ten (10) days from
service of the pleading responded to. (6)
MAY ADMISSIONS IN SUPERCEDED PLEADINGS BE RECEIVED IN
EVIDENCE AGAINST THE PLEADER? Section 7. Answer to supplemental complaint. A supplemental
• Yes, admissions in superseded pleadings may be received in complaint may be answered within ten (10) days from notice of the
evidence against the pleader, and claims or defenses alleged order admitting the same, unless a different period is fixed by the

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 59


court. The answer to the complaint shall serve as the answer to the counted from the 20th of
supplemental complaint if no new or supplemental answer is filed. (n) November and not the 11th.
Answer to amended complaint It depends.
Section 8. Existing counterclaim or cross-claim. A compulsory (also applicable to answer to an
counterclaim or a cross-claim that a defending party has at the time he amended counterclaim, If it is a matter of right, the
files his answer shall be contained therein. (8a, R6) crossclaim, 3rd party complaint, defendant shall answer the same
compliant-in-intervention) within fifteen (15) days after being
Section 9. Counterclaim or cross-claim arising after answer. A served with a copy thereof.
counterclaim or a cross-claim which either matured or was acquired by
a party after serving his pleading may, with the permission of the court, When it is not a matter of right,
be presented as a counterclaim or a cross-claim by supplemental the defendant shall answer the
pleading before judgment. (9, R6) amended complaint within ten (l0)
days from notice of the order
Section 10. Omitted counterclaim or cross-claim. When a pleader admitting the same.
fails to set up a counterclaim or a cross-claim through oversight,
inadvertence, or excusable neglect, or when justice requires, he may, An answer earlier filed may serve
by leave of court, set up the counterclaim or cross-claim by as the answer to the amended
amendment before judgment. (3, R9) complaint if no new answer is
filed.
Section 11. Extension of time to plead. Upon motion and on such
terms as may be just, the court may extend the time to plead provided Reply Within 10 days from the service of
in these Rules. the pleading to be responded to
Answer to supplemental Within 10 days from the notice of
The court may also, upon like terms, allow an answer or other pleading complaint order admitting the same
to be filed after the time fixed by these Rules. (7) Existing counterclaim or The same time with filing of his
crossclaim answer
PLEADING TO BE FILED WHEN TO FILE Counterclaim or crossclaim May, with the permission of the
Answer to the complaint; answer Within 15 days from service of arising or maturing after filing of court, be presented as a
to a third party complaint summons an answer counterclaim or a cross-claim by
Answer by foreign juridical entity If it is made on the government supplemental pleading before
official designated by law to judgment
receive the same, the answer shall
be filed within thirty (30) days WHO ARE THE GOVERNMENT OFFICIALS DESIGNATED BY LAW TO
after receipt of summons by such RECEIVE SUMMONS?
entity. 1. Foreign corporation—SEC
2. Foreign banking corporation—Bangko Sentral Deputy Governor
*For example—in case of a foreign In-Charge of the supervising and examining departments
insurance company, summons should there be no Philippine agent designed to receive such
was served to the Insurance 3. Foreign insurance company—Insurance Commissioner
commission on November 11.
The company received it by the IS AN ANSWER NECESSARY WITH RESPECT TO A COMPULSORY
20th. The 30-days should be COUNTERCLAIM THAT MERELY REITERATES SPECIAL DEFENSES

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 60


WHICH ARE DEEMED CONTROVERTED WITHOUT NEED OF REPLY, still from the original due date of the pleading. (The court is in
OR RAISES ISSUES WHICH ARE AUTOMATICALLY JOINED BY THE actuality just affirming your motion)
ALLEGATIONS OF THE COMPLAINT? 5. What if in case the court shall deny the motion for extension of
• No, a compulsory counterclaim that merely reiterates special time? You assumed that you can file the pleading during the
defenses which are deemed controverted even without a reply, expected extended period. What will happen is that your
or raises issues which are deemed automatically joined by the opponent capitalizes on this. What is important is that the
allegations of the complaint, need not be answered. motion is filed already and is in the records of the court. You
• However, a compulsory counterclaim which raises issues not can bank on this and use it to indulge the court not to strike
covered by the complaint should be answered within 10 days out the motion.
from service thereof; otherwise, the plaintiff may be declared 6. In filing the motion for extension of time to plead, there is no
in default. mention in the rules on how long the time will be. You need to
indicate the number of days and it shall be discretionary on
MAY THE DEFENDANT BE DECLARED IN DEFAULT IN CASE NO the part of the court on whether to grant that number of days
ANSWER WAS FILED TO THE AMENDED COMPLAINT? or not. The rules will usually specify the number of days to be
• No, the answer previously filed with serve as the answer to the granted in motions for extension with respect to higher courts.
amended complaint if no answer was filed
RULE 12: BILL OF PARTICULARS
WHY IS IT THERE IS A DIFFERENCE BETWEEN PERIOD TO ANSWER
A COUNTERCLAIM (10 DAYS) AND THIRD-PARTY COMPLAINT (15
DAYS)? Section 1. When applied for; purpose. Before responding to a
• With respect to third-/fourth-party complaints, there is no pleading, a party may move for a definite statement or for a bill of
summons that has been served upon the third-/fourth-party particulars of any matter which is not averted with sufficient
defendants yet—they are complete strangers to the case and definiteness or particularity to enable him properly to prepare his
the court needs to acquire jurisdiction over them responsive pleading. If the pleading is a reply, the motion must be filed
• With respect to the counterclaim, they are already parties to within ten (10) days from service thereof. Such motion shall point out
the case the defects complained of, the paragraphs wherein they are contained,
and the details desired. (1a)
NOTES:
1. A motion for extension of time to plead must be filed before Section 2. Action by the court. Upon the filing of the motion, the clerk
the expiration of the time sought to be extended of court must immediately bring it to the attention of the court which
2. If the last day of the period for filing a pleading falls on a may either deny or grant it outright, or allow the parties the
Saturday, Sunday or holiday, any extension of time to file the opportunity to be heard. (n)
same should be counted from the expiration of the period
regardless of the fact that said date is a Saturday, Sunday, or Section 3. Compliance with order. If the motion is granted, either in
a holiday. whole or in part, the compliance therewith must be effected within ten
3. In case the date the pleading is due falls on a Sunday. You file (10) days from notice of the order, unless a different period is fixed by
a motion for extension on a Friday. How will the period be the court. The bill of particulars or a more definite statement ordered
counted? From the original deadline, in this case Sunday. The by the court may be filed either in a separate or in an amended
15-day period will be counted from Sunday and not when the pleading, serving a copy thereof on the adverse party. (n)
motion for extension has been filed.
4. In case you file a motion for extension of time to plead and the Section 4. Effect of non-compliance. If the order is not obeyed, or in
court acts on the motion for a long time, the period will run case of insufficient compliance therewith, the court may order the

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 61


striking out of the pleading or the portions thereof to which the order • It interrupts the period within which to file an answer
was directed or make such other order as it deems just. (1[c]a) • After service of the bill of particulars or of a more definite
pleading, or after notice of denial of his motion, the moving
Section 5. Stay of period to file responsive pleading. After service of party may file his responsive pleading within the period to
the bill of particulars or of a more definite pleading, or after notice of which he was entitled at the time of filing his motion, which
denial of his motion, the moving party may file his responsive pleading shall not be less than five (5) days in any event.
within the period to which he was entitled at the time of filing his
motion, which shall not be less than five (5) days in any event. (1[b]a) WHAT SHOULD THE CLERK OF COURT DO UPON FILING OF A BILL
OF PARTICULARS?
Section 6. Bill a part of pleading. A bill of particulars becomes part of • The clerk of court must immediately bring it to the attention of
the pleading for which it is intended. (1[a]a) the court which may either deny or grant it outright, or allow
the parties the opportunity to be heard
WHAT IS A BILL OF PARTICULARS?
• Definite statement to clarify matters which are indefinite, WHAT IS THE COURT’S RECOURSE UPON FILING OF A MOTION FOR
vague or not particular A BILL OF PARTICULARS?
1. Deny the motion
WITHIN WHAT TIME SHOULD A MOTION FOR BILL OF PARTICULARS 2. Grant the motion
BE FILED? 3. Set opportunity for hearing
• Before responding to a pleading or if there is no required
responsive pleading, within 10 days after the service of the WHAT SHOULD A PARTY DO IF A MOTION FOR A BILL OF
pleading upon him, a party may move for a more definite PARTICULARS IS GRANTED?
statement or for a bill of particulars of any matter which is not • Compliance therewith must be effected within 10 days from
averred with sufficient definiteness or particularity to enable notice of order unless a different date is fixed by court
him properly to prepare his responsive pleading
• Such motion shall point out the defects complained of and the HOW SHOULD THE BILL OF PARTICULARS BE FILED?
details desired • It may be filed either in a separate or in an amended pleading,
serving a copy thereof on the adverse party
IS A COMPLAINT CONSIDERED COMPLETE NOTWITHSTANDING
VAGUE ALLEGATIONS? WHAT IS THE REMEDY? WHAT IS THE EFFECT OF NON-COMPLIANCE WITH THE ORDER TO
• Yes, a complaint is complete given that the cause of action FILE A BILL OF PARTICULARS?
was defined in the same and notwithstanding vague and • If the order is not obeyed, or in case of insufficient compliance
indefinite allegations therewith, the court may order the striking out of the pleading
• The remedy for this to file a motion for a bill of particulars or the portions thereof to which the order was directed or
make such other order as it deems just.
WHAT IS THE PURPOSE OF A BILL OF PARTICULARS?
• To properly afford the party not only a chance to prepare a WHEN WILL A MOTION FOR A BILL OF PARTICULARS BE DENIED?
responsive pleading but also to prepare an intelligent answer • When the pleading questioned is not vague, indefinite and is
particular
IS A BILL OF PARTICULARS A PART OF THE PLEADING IF ALLOWED? • Or when the motion was merely dilatory and used only to seek
WHAT IS ITS RELATIONSHIP WITH THE OTHER PLEADINGS? evidence for his favor
• Yes, it becomes part of the pleadings once accepted

WHAT IS THE EFFECT OF FILING A BILL OF PARTICULARS?

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 62


office, then by leaving the copy, between the hours of eight in the
RULE 13: FILING AND SERVICE OF PLEADINGS, JUDGMENTS, AND
morning and six in the evening, at the party's or counsel's residence, if
OTHER PAPERS
known, with a person of sufficient age and discretion then residing
therein. (4a)
Section 1. Coverage. This Rule shall govern the filing of all pleadings
and other papers, as well as the service thereof, except those for which Section 7. Service by mail. Service by registered mail shall be made
a different mode of service is prescribed. (n) by depositing the copy in the post office in a sealed envelope, plainly
addressed to the party or his counsel at his office, if known, otherwise
Section 2. Filing and service, defined. Filing is the act of presenting at his residence, if known, with postage fully prepaid, and with
the pleading or other paper to the clerk of court. instructions to the postmaster to return the mail to the sender after ten
(10) days if undelivered. If no registry service is available in the locality
Service is the act of providing a party with a copy of the pleading or of either the senders or the addressee, service may be done by
paper concerned. If any party has appeared by counsel, service upon ordinary mail. (5a; Bar Matter No. 803, 17 February 1998)
him shall be made upon his counsel or one of them, unless service
upon the party himself is ordered by the court. Where one counsel Section 8. Substituted service. If service of pleadings, motions,
appears for several parties, he shall only be entitled to one copy of any notices, resolutions, orders and other papers cannot be made under
paper served upon him by the opposite side. (2a) the two preceding sections, the office and place of residence of the
party or his counsel being unknown, service may be made by delivering
Section 3. Manner of filing. The filing of pleadings, appearances, the copy to the clerk of court, with proof of failure of both personal
motions, notices, orders, judgments and all other papers shall be made service and service by mail. The service is complete at the time of such
by presenting the original copies thereof, plainly indicated as such, delivery. (6a)
personally to the clerk of court or by sending them by registered mail.
In the first case, the clerk of court shall endorse on the pleading the Section 9. Service of judgments, final orders, or resolutions.
date and hour of filing. In the second case, the date of the mailing of Judgments, final orders or resolutions shall be served either personally
motions, pleadings, or any other papers or payments or deposits, as or by registered mail. When a party summoned by publication has
shown by the post office stamp on the envelope or the registry receipt, failed to appear in the action, judgments, final orders or resolutions
shall be considered as the date of their filing, payment, or deposit in against him shall be served upon him also by publication at the
court. The envelope shall be attached to the record of the case. (1a) expense of the prevailing party. (7a)

Section 4. Papers required to be filed and served. Every judgment, Section 10. Completeness of service. Personal service is complete
resolution, order, pleading subsequent to the complaint, written upon actual delivery. Service by ordinary mail is complete upon the
motion, notice, appearance, demand, offer of judgment or similar expiration of ten (10) days after mailing, unless the court otherwise
papers shall be filed with the court, and served upon the parties provides. Service by registered mail is complete upon actual receipt by
affected. (2a) the addressee, or after five (5) days from the date he received the first
notice of the postmaster, whichever date is earlier. (8a)
Section 5. Modes of service. Service of pleadings motions, notices,
orders, judgments and other papers shall be made either personally or Section 11. Priorities in modes of service and filing. Whenever
by mail. (3a) practicable, the service and filing of pleadings and other papers shall
be done personally. Except with respect to papers emanating from the
Section 6. Personal service. Service of the papers may be made by court, a resort to other modes must be accompanied by a written
delivering personally a copy to the party or his counsel, or by leaving it explanation why the service or filing was not done personally. A
in his office with his clerk or with a person having charge thereof. If no violation of this Rule may be cause to consider the paper as not filed.
person is found in his office, or his office is not known, or he has no (n)

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 63


SERVICE OF SERVICE OF SUMMONS


Section 12. Proof of filing. The filing of a pleading or paper shall be PLEADINGS
proved by its existence in the record of the case. If it is not in the DEFINITION Act of providing a party Act by which the court,
record, but is claimed to have been filed personally, the filing shall be with a copy of a through the clerk of
proved by the written or stamped acknowledgment of its filing by the pleading or other paper court, acquires
clerk of court on a copy of the same; if filed by registered mail, by the to the clerk of court jurisdiction over the
registry receipt and by the affidavit of the person who did the mailing, person of the defendant
containing a full statement of the date and place of depositing the mail HOW MADE? May be made through May be made through
in the post office in a sealed envelope addressed to the court, with personal service, personal service,
postage fully prepaid, and with instructions to the postmaster to return service through substituted service,
the mail to the sender after ten (10) days if not delivered. (n) registered mail or other service by publication,
matters or extraterritorial service
Section 13. Proof of Service. Proof of personal service shall consist of
a written admission of the party served, or the official return of the *caveat: there must be
server, or the affidavit of the party serving, containing a full statement explanation that is
of the date, place and manner of service. If the service is by ordinary satisfactory
mail, proof thereof shall consist of an affidavit of the person mailing of (e.g lack of available
facts showing compliance with section 7 of this Rule. If service is made time; lack of personnel)
by registered mail, proof shall be made by such affidavit and the WHO Act of the parties in Act of the court through
registry receipt issued by the mailing office. The registry return card EFFECTUATES? serving to the other the clerk of court
shall be filed immediately upon its receipt by the sender, or in lieu party-litigant
thereof the unclaimed letter together with the certified or sworn copy of *the CA doesn’t issue
the notice given by the postmaster to the addressee. (10a) summons but instead,
issues an order and
Section 14. Notice of lis pendens. In an action affecting the title or upon service of this
the right of possession of real property, the plaintiff and the defendant, order, the CA acquires
when affirmative relief is claimed in his answer, may record in the jurisdiction (thus, it is
office of the registry of deeds of the province in which the property is only in the lower court
situated notice of the pendency of the action. Said notice shall contain that issues the
the names of the parties and the object of the action or defense, and a summons)
description of the property in that province affected thereby. Only from PURPOSE To give copy to the To acquire jurisdiction
the time of filing such notice for record shall a purchaser, or other party
encumbrancer of the property affected thereby, be deemed to have
constructive notice of the pendency of the action, and only of its There must be proof of
pendency against the parties designated by their real names. service
(return receipt)
The notice of lis pendens hereinabove mentioned may be cancelled TO WHOM To the counsel of the To the person of the
only upon order of the court, after proper showing that the notice is for SERVED? party generally (if the defendant—purpose is
the purpose of molesting the adverse party, or that it is not necessary party has counsel, it to acquire jurisdiction
to protect the rights of the rights of the party who caused it to be must be served upon and besides, there is no
recorded. (24a, R-14) the counsel unless more counsel yet
there is a directive
DISTINGUISH SERVICE OF PLEADINGS AND SERVICE OF SUMMONS.

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 64


from the court allowing • If any party has appeared by counsel, service upon him shall
service upon the party be made upon his counsel or one of them, unless service upon
himself) the party himself is ordered by the court.

Two (2) instances when WHAT IS THE REASON WHY IT SHOULD BE SERVED UPON THE
service to the party is COUNSEL GENERALLY?
allowed: • The rules presume that the party alone may not be versed in
1. When there is the rules
directive of the court
2. When there is an HOW IS SERVICE MADE IF COUNSEL REPRESENTS MANY PARTIES?
uncounselled party • Where one counsel appears for several parties, he shall only be
entitled to one copy of any paper served upon him by the
DISTINGUISH FILING AND SERVICE. opposite side.
FILING SERVICE
Filing is the act of presenting the Service is the act of providing a WHAT ARE THE PAPERS TO BE FILED AND SERVED? UPON WHOM
pleading or other paper to the party with a copy of the pleading MAY THEY BE FILED AND SERVED?
clerk of court. or paper concerned. 1. Every judgment,
2. Resolution,
WHY IS IT IN RULE 13, IT IS CALLED “FILING AND SERVICE” WHILE 3. Order,
WITH RESPECT TO RULE 14 OR THE RULE ON SUMMONS, IT IS 4. Pleading subsequent to the complaint,
ONLY “SERVICE”? 5. Written motion,
• For service of summons, the court already has copies of the a. Only those which can be decided ex parte by the court
pleadings concerned is excused from being served
• While in filing and service of other pleadings, the court is given 6. Notice,
for the first time copies of the pleadings concerned 7. Appearance,
• You need to serve first before filing—otherwise, it is deemed 8. Demand, offer of judgment or similar papers
that the pleading has not been filed yet
• In service of summons, it started with the filing of the HOW IS PERSONAL SERVICE MADE?
complaint by the plaintiff which is consequently followed by 1. By delivering personally a copy to the party or his counsel, or
the service to the defendant of the copy of the complaint and 2. By leaving it in his office with his clerk or with a person having
summons charge thereof
3. If no person is found in his office, or his office is not known, or
HOW ARE PLEADINGS, ETC. FILED? he has no office, then by leaving the copy, between the hours
• The filing of pleadings, appearances, motions, notices, orders, of eight in the morning and six in the evening, at the party's or
judgments and all other papers shall be made by presenting counsel's residence, if known, with a person of sufficient age
the original copies thereof, plainly indicated as such, and discretion then residing therein
personally to the clerk of court or by sending them by *Still considered personal as service to counsel is equivalent to service
registered mail. to the party

HOW IS SERVICE UPON PARTY MADE IF HE IS REPRESENTED BY A THE PLEADING SHALL BE SERVED IN THE ADDRESS OF THE
COUNSEL? COUNSEL. WHAT IS THE LEGAL ADDRESS OF THE COUNSEL?
• It shall be served upon the legal address indicated by the
counsel in his pleadings

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 65


the time of such delivery. of business with some competent


THE LEGAL ADDRESS INDICATED BY COUNSEL IS IN QUEZON CITY person in charge thereof.
AND IT WAS SUBSEQUENTLY KNOWN THAT HE HOLDS OFFICE IN
MAKATI. MUST THE OTHER PARTY SERVE HIS PLEADINGS IN HOW ARE FINAL ORDERS AND JUDGMENTS SERVED?
MAKATI? IS HE OBLIGED TO USE HIS ACTUAL KNOWLEDGE IN • Judgments, final orders or resolutions shall be served either
SERVING HIS ADVERSE COUNSEL? personally or by registered mail. When a party summoned by
• No, what the rule provides is the legal address indicated in the publication has failed to appear in the action, judgments, final
records and it is not the responsibility of the court or the orders or resolutions against him shall be served upon him
counsel to chase the other counsel wherever he may be found also by publication at the expense of the prevailing party

WHAT KIND OF MAIL IS REQUIRED IF SERVICE IS MADE BY MAIL? WHEN IS PERSONAL SERVICE COMPLETED?
• It should be registered mail if it exists in the locality • It is completed upon actual receipt of the other party
• The date of mailing is the date of filing or service
WHEN IS SERVICE BY REGISTERED MAIL COMPLETE?
IF IT IS SERVED BY ORDINARY MAIL, WHAT IS THE DATE OF FILING 1. Service by registered mail is complete upon actual receipt by
AND SERVICE? the addressee (registry return card), or
• The date of filing if by ordinary mail is the date of receipt of 2. After five (5) days from the date he received the first notice of
the party or his attorney the postmaster, whichever date is earlier
a. If this was denied, then it is incumbent upon the
IF SERVICE COULDN’T BE MADE PERSONALLY OR BY MAIL, WHAT person who served to prove service upon the adverse
MODE OF SERVICE SHALL BE RESORTED TO? WHAT IS party
SUBSTITUTED SERVICE OF PLEADINGS?
• It should be made by delivering the copy to the clerk of court, WHAT IS THE EXCEPTION TO THE ABOVE RULE?
with proof of failure of both modes of service, whether • When there was failure to claim from the post office within 5
personal or by mail. The service is complete at the time of days from the date of first notice of the postmaster, service
such delivery. shall take effect at the expiration of such time

DISTINGUISH SUBSTITUTED SERVICE OF PLEADINGS AND WHAT IS THE PRESUMPTION IF A MAIL MATTER IS SENT THROUGH
SUBSTITUTED SERVICE OF SUMMONS. REGISTERED MAIL?
SUBSTITUTED SERVICE OF SUBSTITUTED SERVICE OF • There exists the presumption that it was received through
PLEADINGS SUMMONS regular course of mail.
If service of pleadings, motions, If, for justifiable causes, the • The facts to be proved in order to raise this presumption are—
notices, resolutions, orders and defendant cannot be served within o The letter was properly addressed with postage
other papers cannot be made a reasonable time as provided in prepaid
under the two preceding sections, the preceding section, service o That it was mailed
the office and place of residence may be effected (a) by leaving • Presumption is disputable however and a direct denial of
of the party or his counsel being copies of the summons at the receipt thereof shifts the burden upon the party favored by the
unknown, service may be made by defendant's residence with some presumption to prove that the mailed letter was indeed
delivering the copy to the clerk of person of suitable age and received by the addressee
court, with proof of failure of both discretion then residing therein,
personal service and service by or (b) by leaving the copies at WHAT IS THE BEST EVIDENCE THAT NOTICE WAS SENT TO THE
mail. The service is complete at defendant's office or regular place ADDRESSEE BY THE POSTMASTER?

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 66


• A certification from the postmaster who should certify not only • If the service is by ordinary mail, proof thereof shall consist of
that notice was issued or sent but also as to how where and to an affidavit of the person mailing of facts showing compliance
whom the delivery thereof was made with section 7 of this Rule—document sealed in an envelope
• The mailman can likewise testify that the notice was duly and addressed to the counsel of the other party
received by the other party
HOW IS SERVICE BY REGISTERED MAIL PROVED?
WHEN IS SERVICE BY ORDINARY MAIL COMPLETE? • If service is made by registered mail, proof shall be made by
• It is complete upon the expiration of 10 days after mailing, such affidavit and the registry receipt issued by the mailing
unless the court otherwise provides office.
• The registry return card shall be filed immediately upon its
WHAT IS THE RULE ON PRIORITY IN MODES OF SERVICE AND receipt by the sender, or in lieu thereof the unclaimed letter
FILING OF PLEADINGS AND OTHER PAPERS? together with the certified or sworn copy of the notice given by
• Whenever practicable, the service and filing of pleadings and the postmaster to the addressee.
other papers shall be done personally. Except with respect to
papers emanating from the court, a resort to other modes IS FORMAL NOTICE ALWAYS NECESSARY?
must be accompanied by a written explanation why the service • No because formal notice may be substituted by actual notice
or filing was not done personally. A violation of this Rule may of any decision, etc. or it can be by substantial compliance as
be cause to consider the paper as not filed. when a copy of a decision was obtained by counsel or when the
petitioner acquired knowledge of the writ of execution
WHAT ARE THE MEANS OF PROVING THE FILING OF PLEADINGS containing a literal copy of the judgment
AND OTHER PAPERS?
1. The filing of a pleading or paper shall be proved by its CHECKLIST: ACCORDING TO JUDGE BONIFACIO REGARDING
existence in the record of the case. SERVICE AND FILING OF PLEADINGS?
2. If it is not in the record, but is claimed to have been filed How to serve and file pleadings?
personally, the filing shall be proved by the written or stamped When is it complete?
acknowledgment of its filing by the clerk of court on a copy of How do you proof service and filing of pleadings?
the same.
3. If filed by registered mail, by the registry receipt and by the
affidavit of the person who did the mailing, containing a full WHAT IS LIS PENDENS?
statement of the date and place of depositing the mail in the • A pending suit or a pending litigation and the doctrine of lis
post office in a sealed envelope addressed to the court, with pendens has been defined as the jurisdiction, power and
postage fully prepaid, and with instructions to the postmaster control which a court acquires over property involved in a suit,
to return the mail to the sender after ten (10) days if not pending the continuance of the action and final judgment
delivered therein
• A notice of lis pendens is an announcement to the world that a
HOW IS PERSONAL SERVICE PROVED? particular real property is in litigation, serving as a warning
• Proof of personal service shall consist of a written admission that one who acquires an interest over said property does so at
of the party served, or the official return of the server, or the his own risk, or that he gambles as a result of the litigation
affidavit of the party serving, containing a full statement of the over said property
date, place and manner of service. • Note: it is in rem

HOW IS SERVICE BY ORDINARY MAIL PROVED? WHAT IS THE PURPOSE OF NOTICE OF LIS PENDENS?

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 67


1. Keeps the subject matter of litigation within the power of the • One may record in the office of the registry of deeds of the
court until the entry of final judgment so as to prevent the province in which the property is situated notice of the
defeat of the latter by successive alienations pendency of the action. Said notice shall contain the names of
2. Binds a purchaser of the land subject of the litigation to the the parties and the object of the action or defense, and a
judgment or decree that will be promulgated thereon whether description of the property in that province affected thereby.
such a purchaser is a bona fide purchaser or not
3. Doesn’t create a non-existent right or lien WHAT IS THE EFFECT OF THE RECORDING OF THE NOTICE OF LIS
PENDENS?
WHEN IS NOTICE OF LIS PENDENS NECESSARY? • From the filing of the notice of lis pendens, any purchaser or
1. Action to recover possession of real estate encumbrancer of the property affected thereby, shall be bound
2. Action to quiet title or be deemed to have constructive notice of the same
3. Action to remove clouds thereon • Will be bound by the judgment of the court
4. Action for partition
5. Any other proceedings of any kind in court directly affecting SITUATION: THE LAND AREA IS 500 SQUARE METERS. THE
title to land or the use or occupation thereof or the building EXTENT OF WHAT IS OWNED IS 200 SQUARE METERS. THE TITLE
thereon OWNER MOVED FOR THE NOTICE OF LIS PENDENS ON THE
GROUND THAT HE WAS ONLY HOLDING 200 SQUARE METERS AND
WHAT ARE THE LEGAL BASES FOR LIS PENDENS? THIS WAS GRANTED BY THE COURT. VALID?
1. Rule 13 of the Rules of Court • No, the lis pendens is beyond the claim of the title holder
2. PD 1529 • It will be inappropriate to cancel as the lis pendens doesn’t
depend on the size of what is being claimed, but rather, on the
WHAT ARE THE GROUNDS TO CANCEL THE NOTICE OF LIS interest of the title
PENDENS?
1. If the annotation was for the purpose of molesting the title of
RULE 14: SUMMONS
the adverse party
2. When the annotation is not necessary to protect the title of the
party who caused it to be recorded Section 1. Clerk to issue summons. Upon the filing of the complaint
and the payment of the requisite legal fees, the clerk of court shall
IN ANNOTATING A NOTICE OF LIS PENDENS, IS THERE A NEED TO forthwith issue the corresponding summons to the defendants. (1a)
SHOW THAT HE OWNS THE LAND?
• No, for purposes of annotating a notice of lis pendens, there is Section 2. Contents. The summons shall be directed to the defendant,
nothing in the rules which requires that the party seeking signed by the clerk of court under seal and contain (a) the name of the
annotation to show that the land belongs to him court and the names of the parties to the action; (b) a direction that
the defendant answer within the time fixed by these Rules; (c) a notice
WHEN IS NOTICE OF LIS PENDENS AVAILABLE? that unless the defendant so answers plaintiff will take judgment by
• It is available in an action affecting the title or the right of default and may be granted the relief applied for.
possession of real property
A copy of the complaint and order for appointment of guardian ad
WHEN IT IS AVAILABLE? litem if any, shall be attached to the original and each copy of the
• It is available upon filing of the complaint or filing of the summons. (3a)
answer or any time afterwards
Section 3. By whom served. The summons may be served by the
HOW IS NOTICE OF LIS PENDENS MADE? sheriff, his deputy, or other proper court officer, or for justifiable

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 68


reasons by any suitable person authorized by the court issuing the Section 10. Service upon minors and incompetents. When the
summons. (5a) defendant is a minor, insane or otherwise an incompetent, service shall
be made upon him personally and on his legal guardian if he has one,
Section 4. Return. When the service has been completed, the server or if none his guardian ad litem whose appointment shall be applied for
shall, within five (5) days therefrom, serve a copy of the return, by the plaintiff. In the case of a minor, service may also be made on his
personally or by registered mail, to the plaintiff's counsel, and shall father or mother. (l0a, 11a)
return the summons to the clerk, who issued it, accompanied by proof
of service. (6a) Section 11. Service upon domestic private juridical entity. When the
defendant is a corporation, partnership or association organized under
Section 5. Issuance of alias summons. If a summons is returned the laws of the Philippines with a juridical personality, service may be
without being served on any or all of the defendants, the server shall made on the president, managing partner, general manager, corporate
also serve a copy of the return on the plaintiff's counsel, stating the secretary, treasurer, or in-house counsel. (13a)
reasons for the failure of service, within five (5) days therefrom. In such
a case, or if the summons has been lost, the clerk, on demand of the Section 12. Service upon foreign private juridical entities. When the
plaintiff, may issue an alias summons. (4a) defendant is a foreign private juridical entity which has transacted
business in the Philippines, service may be made on its resident agent
Section 6. Service in person on defendant. Whenever practicable, the designated in accordance with law for that purpose, or, if there be no
summons shall be served by handling a copy thereof to the defendant such agent, on the government official designated by law to that effect,
in person, or, if he refuses to receive and sign for it, by tendering it to or on any of its officers or agents within the Philippines. (14a)
him. (7a)
Section 13. Service upon public corporations. When the defendant is
Section 7. Substituted service. If, for justifiable causes, the defendant the Republic of the Philippines, service may be effected on the Solicitor
cannot be served within a reasonable time as provided in the preceding General; in case of a province, city or municipality, or like public
section, service may be effected (a) by leaving copies of the summons corporations, service may be effected on its executive head, or on such
at the defendant's residence with some person of suitable age and other officer or officers as the law or the court may direct. (15)
discretion then residing therein, or (b) by leaving the copies at
defendant's office or regular place of business with some competent Section 14. Service upon defendant whose identity or whereabouts
person in charge thereof. (8a) are unknown. In any action where the defendant is designated as an
unknown owner, or the like, or whenever his whereabouts are unknown
Section 8. Service upon entity without juridical personality. When and cannot be ascertained by diligent inquiry, service may, by leave of
persons associated in an entity without juridical personality are sued court, be effected upon him by publication in a newspaper of general
under the name by which they are generally or commonly known, circulation and in such places and for such time as the court may
service may be effected upon all the defendants by serving upon any order. (16a)
one of them, or upon the person in charge of the office or place of
business maintained in such name. But such service shall not bind Section 15. Extraterritorial service. When the defendant does not
individually any person whose connection with the entity has, upon due reside and is not found in the Philippines, and the action affects the
notice, been severed before the action was brought. (9a) personal status of the plaintiff or relates to, or the subject of which is,
property within the Philippines, in which the defendant has or claims a
Section 9. Service upon prisoners. When the defendant is a prisoner lien or interest, actual or contingent, or in which the relief demanded
confined in a jail or institution, service shall be effected upon him by consists, wholly or in part, in excluding the defendant from any interest
the officer having the management of such jail or institution who is therein, or the property of the defendant has been attached within the
deemed deputized as a special sheriff for said purpose. (12a) Philippines, service may, by leave of court, be effected out of the
Philippines by personal service as under section 6; or by publication in

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 69


a newspaper of general circulation in such places and for such time as 1. It shall be directed to the defendant
the court may order, in which case a copy of the summons and order of 2. Signed by the clerk of court under seal
the court shall be sent by registered mail to the last known address of 3. Contains the name of the court
the defendant, or in any other manner the court may deem sufficient. 4. Contains the names of the parties to the action
Any order granting such leave shall specify a reasonable time, which 5. Contains a direction that the defendant answer within the time
shall not be less than sixty (60) days after notice, within which the fixed by the rules
defendant must answer. (17a) 6. Contains a notice that unless the defendant so answers
plaintiff will take judgment by default and may be granted the
Section 16. Residents temporarily out of the Philippines. When any relief applied for
action is commenced against a defendant who ordinarily resides within 7. Copy of the complaint shall be attached to the summons
the Philippines, but who is temporarily out of it, service may, by leave
of court, be also effected out of the Philippines, as under the preceding WHEN IS SUMMONS PROPERLY ISSUED?
section. (18a) • Upon filing of the complaint and payment of the appropriate
legal fees (summons fee), the court through the clerk of court
Section 17. Leave of court. Any application to the court under this can issue the summons
Rule for leave to effect service in any manner for which leave of court is
necessary shall be made by motion in writing, supported by affidavit of A FILED A COMPLAINT WHEREIN THE DOCKET FEES COSTS
the plaintiff or some person on his behalf, setting forth the grounds for P20,000. A CAN ONLY PAY P10,000. CAN THE COURT ISSUE THE
the application. (19) SUMMONS?
• The court may give the plaintiff time to pay the whole of the
Section 18. Proof of service. The proof of service of a summons shall docket fees within the prescriptive period and served the
be made in writing by the server and shall set forth the manner, place, summons thereafter
and date of service; shall specify any papers which have been served
with the process and the name of the person who received the same; PAYMENT OF DOCKET FEES IS JURISDICTIONAL AND IF YOU FILED
and shall be sworn to when made by a person other than a sheriff or A COMPLAINT WITHOUT PAYMENT OF DOCKET FEES, WHAT
his deputy. (20) HAPPENS TO THE CASE?
• It doesn’t toll the running of the prescriptive period—it is the
Section 19. Proof of service by publication. If the service has been filing of the complaint and payment of docket fees which tolls
made by publication, service may be proved by the affidavit of the the running of the prescriptive period
printer, his foreman or principal clerk, or of the editor, business or
advertising manager, to which affidavit a copy of the publication shall WHAT IS THE CONSEQUENCE OF NOT PAYING THE DOCKET FEES
be attached and by an affidavit showing the deposit of a copy of the WITHIN THE PRESCRIBED PERIOD?
summons and order for publication in the post office, postage prepaid, • The action prescribes and the complaint cannot prosper
directed to the defendant by registered mail to his last known address. anymore
(21)
FOLLOWING THE SERVICE OF SUMMONS, WHAT DOES THE
Section 20. Voluntary appearance. The defendant's voluntary PRESENT RULES PROVIDE?
appearance in the action shall be equivalent to service of summons. • It is incumbent upon the parties to file a motion to set the case
The inclusion in a motion to dismiss of other grounds aside from lack for pre-trial, otherwise, the court shall take no action and the
of jurisdiction over the person of the defendant shall not be deemed a case may even be dismissed
voluntary appearance. (23a)
IF AN ADDITIONAL DEFENDANT IS JOINED, SUMMONS MUST BE
WHAT ARE THE CONTENTS OF A SUMMONS? SERVED UPON HIM. WHAT ARE THE EXCEPTIONS?

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 70


1. Where it is sought to bring in the administrator of a deceased


party defendant in substitution of the deceased WHAT IS THE PURPOSE OF THE RETURN?
2. Where upon the decease of an original defendant, his infant • It is to enable the plaintiff to know and start counting
heirs are made parties • Answer within 15 days
3. In cases of substitution of the deceased by legal
representatives or heirs under Rule 3 HOW CAN AN ALIAS SUMMONS BE ISSUED?
• When the original summons is lost
IF THE COMPLAINT IS AMENDED, DOES THE COURT NEED TO • Failure to serve the original summons
ISSUE SUMMONS ANEW? • The plaintiff would have to file a motion for issuance of alias
• It depends on whether previously, the court has acquired summons and this should be addressed to the clerk of court
jurisdiction over the defendant
• If there is are additional causes of action or amended cause of WHAT PERSONAL SERVICE ON DEFENDANT MEANS?
action, not necessary to serve new summons • Actual delivery or tender of the summons to the defendant
personally
WHEN IS SERVICE OF NEW SUMMONS WITH AMENDED COMPLAINT • So it naturally means that service of summons to a dead
NECESSARY? person is void
1. If new causes of action are alleged in amended complaint filed • This service is the primary requirement
before the defendant has appeared in court, another summons
must be served on the defendant with the amended complaint SUMMONS WAS SERVED TO THE DEFENDANT. INSTEAD OF FILING
2. Where the defendant defaults as to the original complaint, and AN ANSWER, A MOTION TO DISMISS FOR LACK OF JURISDICTION
an amended complaint is filed while such default exists, to OVER PERSON. HOW COULD THIS BE PROPERLY MADE WITHOUT
sustain a judgment upon the amended complaint as to any VOLUNTARY APPEARANCE AND SURRENDER OF PERSON TO
new matter therein alleged, it should be served upon the JURISDICTION OF COURT?
defendant with the same formalities as to the original • This is done by the filing of what is called a SPECIAL
complaint and summons APPEARANCE
• Special entry of appearance to submit motion to dismiss and
WHAT ARE THE EXCEPTIONS TO THE ABOVEMENTIONED RULE? without surrendering person to the court
1. When jurisdiction had already been acquired over the
defendants who had appeared in court and filed a motion to DEFENDANT SAW A COPY OF THE COMPLAINT FILED AGAINST HIM
dismiss IN COURT. IS THERE A NEED TO SERVE SUMMONS?
2. When defect in the summons is deemed waived • Yes, actual knowledge is not a mode of service of summons

WHO SHALL SERVE THE SUMMONS? DEFENDANT, SEEING A COPY OF THE COMPLAINT, WAS NOT
• The summons may be served by the sheriff, his deputy, or SERVED ANY SUMMONS. HOWEVER, HE FILED A PLEADING ASKING
other proper court officer, or for justifiable reasons by any FOR AFFIRMATIVE RELIEFS. DOES THE COURT ACQUIRE
suitable person authorized by the court issuing the summons. JURISDICTION OVER HIS PERSON?
• Yes, notwithstanding the lack of summons, this was cured
AFTER SUMMONS HAS BEEN SERVED, WHAT NEEDS TO BE DONE? when he voluntarily filed the pleading
• When the service has been completed, the server shall, within • However, no jurisdiction over his person is acquired if the
five (5) days therefrom, serve a copy of the return, personally pleading filed indicated that the party was appearing on a
or by registered mail, to the plaintiff's counsel, and shall return special appearance
the summons to the clerk, who issued it, accompanied by
proof of service. WHAT ARE THE REQUISITES FOR SUBSTITUTED SERVICE?

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 71


1. It is only when the defendant cannot be served personally • All efforts must have been exerted to effectuate personal
within a reasonable time that substituted service may be made service and there is impossibility to personally serve within a
2. Impossibility of prompt service reasonable time and there is impossibility of prompt service

HOW IS SUBSTITUTED SERVICE MADE? WHAT MUST A PROCESS SERVER PROVE IN HIS RETURN IN
1. By leaving copies of the summons at the defendant's residence IMPOSSIBILITY TO SERVE SUMMONS PERSONALLY?
with some person of suitable age and discretion then residing • You should not only say you exerted efforts to locate the
therein, or defendant but how you earnestly tried to locate the defendant,
2. By leaving the copies at defendant's office or principal place of and that there is impossibility of personal service within a
business with some competent person in charge thereof. reasonable time…
• If there is no justifiable reason to undergo substituted service,
SUBSTITUTED SERVICE OF SUMMONS UPON DEFENDANT then there is invalid service of summons and the case may be
TEMPORARILY ABSENT FROM THE PHILIPPINES, IS THIS VALID? dismissed
• Summons in a suit in personam against a resident of the • Keyword: earnest efforts!
Philippines who is temporarily absent therefrom may be validly
effected by substituted service under this present section HOW IS SUMMONS SERVED TO THOSE ENTITIES WITHOUT
JURIDICAL PERSONALITY?
WHAT IS THE DIFFERENCE BETWEEN SUBSTITUTED SERVICE OF • When persons associated in an entity without juridical
PLEADINGS AND SERVICE OF SUMMONS? personality are sued under the name by which they are
• In substituted service of pleadings, it must be served to the generally or commonly known, service may be effected upon
clerk of court while in service of summons, it can be done in all the defendants by serving upon any one of them, or upon
two ways—either by serving it in the residence of the the person in charge of the office or place of business
defendant or place of business maintained in such name
• In substituted service of pleadings, it is resorted to if personal • But such service shall not bind individually any person whose
service or service through registered mail is unavailable connection with the entity has, upon due notice, been severed
before the action was brought (this notice must be prior to the
WHY IS THERE NO SERVICE OF SUMMONS THROUGH REGISTERED service of summons)
MAIL?
• It is not allowed—only two ways to serve summons HOW IS SUMMONS SERVED UPON PRISONERS?
• When the defendant is a prisoner confined in a jail or
PROCESS SERVER MADE A RETURN. HE MENTIONED THAT HE institution, service shall be effected upon him by the officer
TRIED TO PERSONALLY SERVE MR. X THE SUMMONS AS EARLY AS having the management of such jail or institution who is
8 AM AND WAITED UNTIL 12NN. THE PROCESS SERVER WENT deemed deputized as a special sheriff for said purpose.
INTO LUNCH BREAK AND CAME BACK AT 2PM AND WAITED UNTIL
6PM BUT STILL MR. X CANNOT BE FOUND. THE NEXT DAY, HE HOW IS SUMMONS SERVED UPON MINORS AND INCOMPETENTS?
SERVED THE SUMMONS IN THE RESIDENCE WITH A PERSON OF • When the defendant is a minor, insane or otherwise an
SUITABLE AGE AND DISCRETION RESIDING THEREIN. VALID? incompetent, service shall be made upon him personally and
• It is incomplete on his legal guardian if he has one, or if none his guardian ad
• “I, Mr. Y, process server of this honorable court, served Mr. X litem whose appointment shall be applied for by the plaintiff.
through substituted service as he cannot be served personally • In the case of a minor, service may also be made on his father
within a reasonable time and there is impossibility of prompt or mother.
service”.

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 72


WHAT IS THE EFFECT IF THE PLAINTIFF REFUSES OR FAILS TO which are occasional, incidental, and casual, not of a character
APPLY WITH THE COURT AN APPOINTMENT OF A GUARDIAN AD to indicate the purpose to engage in business doesn't
LITEM FOR THE MINOR? constitute the doing or engaging in business contemplated in
• There would be an invalid service of summons over the minor law
and consequently no jurisdiction over the person can be • Instead, there must be continuity of conduct and intention to
acquired establish a continuous business

HOW IS SUMMONS SERVED TO A DOMESTIC PRIVATE JURIDICAL TO WHOM SERVICE MAY BE MADE?
ENTITY? 1. Resident agent
• When the defendant is a corporation, partnership or 2. To the government official designated by law to that effect
association organized under the laws of the Philippines with a 3. Or any of its officers or agents within the Philippines
juridical personality, service may be made on the president,
managing partner, general manager, corporate secretary, HOW IS SUMMONS SERVED UPON PUBLIC CORPORATIONS?
treasurer, or in-house counsel. • When the defendant is the Republic of the Philippines, service
may be effected on the Solicitor General; in case of a province,
IS STRICT COMPLIANCE WITH THE RULE ON SERVICE OF SUMMONS city or municipality, or like public corporations, service may be
UPON PRIVATE JURIDICAL ENTITIES REQUIRED? effected on its executive head, or on such other officer or
• Yes officers as the law or the court may direct.
• In service of summons to a domestic corporation, the list of
officers is exclusive HOW IS SUMMONS SERVED UPON A DEFENDANT WHOSE IDENTITY
• It could only be served to either the president, managing OR WHEREABOUTS IS UNKNOWN?
partner, general manager, corporate secretary, treasurer, or • In any action where the defendant is designated as an
in-house counsel unknown owner, or the like, or whenever his whereabouts are
• Note however that service can be done outside the principal unknown and cannot be ascertained by diligent inquiry, service
place of business of the corporation may, by leave of court, be effected upon him by publication in
• Note also that in case of substituted service, the summons a newspaper of general circulation and in such places and for
should be tried to serve to all of the above officers before such time as the court may order.
substituted service can be actually permitted to be done (ika
nga, if you are the process server, hanapin mo muna bawat isa at WHAT IS EXTRATERRITORIAL SERVICE OF SUMMONS?
halughugin mo sila bago mo masabi na dapat substituted service • When the defendant does not reside and is not found in the
na lang ) Philippines, and the action affects the personal status of the
plaintiff or relates to, or the subject of which is, property within
HOW IS SUMMONS SERVED UPON FOREIGN JURIDICAL ENTITIES? the Philippines, in which the defendant has or claims a lien or
• When the defendant is a foreign private juridical entity which interest, actual or contingent, or in which the relief demanded
has transacted business in the Philippines, service may be consists, wholly or in part, in excluding the defendant from any
made on its resident agent designated in accordance with law interest therein, or the property of the defendant has been
for that purpose, or, if there be no such agent, on the attached within the Philippines
government official designated by law to that effect, or on any
of its officers or agents within the Philippines. IN WHAT ACTIONS IS EXTRATERRITORIAL SERVICE ALLOWED FOR
NON-RESIDENT DEFENDANTS?
WHAT CONSTITUTES DOING BUSINESS? • In the case of non-resident defendants who are not found in
• One single business transaction doesn't constitute doing the Philippines, extraterritorial service of summons is allowed
business within the meaning of the law, and that transactions only in an action in rem and quasi in rem, that is, when the

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 73


action affects the personal status of the plaintiff, or any o Exclude defendant from any property or interest
property of the defendant located in the Philippines therein

IS PUBLICATION REQUIRED WITH RESPECT TO EXTRATERRITORIAL AN ACTION WAS FILED FOR ANNULMENT OF MARRIAGE AND
SERVICE? SUPPORT. DEFENDANT IS CURRENTLY LIVING IN JAPAN. WILL
• Yes, publication in newspaper of general circulation and THE ACTIONS SUBSIST?
registered mail to last known address • The action for support will not be enforceable and it will be
invalid.
HOW IS SUMMONS SERVED UPON RESIDENT DEFENDANTS IN AN • An action for support is a personal action
ACTION IN PERSONAM? • The only action that would be subsisting will be the action for
• If defendant cannot be personally served, substituted service is annulment of marriage. It is an action in rem and affects the
needed to acquire jurisdiction over the person of the defendant personal status of both parties.
who refuses to voluntarily submit himself to the authority of
the court HOW DO YOU USUALLY CONVERT AN ACTION IN PERSONAM TO AN
ACTION IN REM?
HOW IS SERVICE OF SUMMONS EFFECTED IN AN ACTION IN REM • Do preliminary attachment
OR QUASI IN REM?
• If the action is in rem or quasi in rem on the other hand, WHAT IS THE RES?
jurisdiction over the person of the defendant isn’t essential for • Property wherein defendant may have an interest
giving the court jurisdiction so long as the court acquires • Attachment of property in the Philippines—there is no
jurisdiction over the property qualification between real and personal property
• Section 15 is not for the purpose of vesting jurisdiction over **all cases pertained to real property and there is no reason for the
the person of the defendant but for complying with the prohibition of personal property to be attached since your only purpose
requirement of fair play or due process is for you to publish in newspaper of general circulation and not to
acquire jurisdiction
HOW IS SERVICE OF SUMMONS EFFECTED ON A NON-RESIDENT
WHO IS NOT FOUND IN THE PHILIPPINES? WHAT IS REQUIRED IN OBTAINING A LEAVE OF COURT?
1. By personal service • Any application to the court under this Rule for leave to effect
2. By publication in a newspaper of general circulation in such service in any manner for which leave of court is necessary
places and for such time as the court may order, in which case shall be made by motion in writing, supported by affidavit of
a copy of the summons and order of the court should be sent the plaintiff or some person on his behalf, setting forth the
by registered mail to the last known address of the defendant grounds for the application.
3. By any other manner which the court may deem sufficient
HOW IS PROOF OF SERVICE MADE?
A CASE WAS FILED FOR COLLECTION OF MONEY AGAINST A • The proof of service of a summons shall be made in writing by
PERSON WHO MIGRATED TO CANADA. WHAT IS THE RECOURSE OF the server and shall set forth the manner, place, and date of
PLAINTIFF? service; shall specify any papers which have been served with
• The action cannot prosper—an action in personam the process and the name of the person who received the
• The court cannot have jurisdiction over the person same; and shall be sworn to when made by a person other
• What is the recourse? Convert the action into an action in rem than a sheriff or his deputy.
or quasi in rem. Then you can do extraterritorial service.
o Affects personal status HOW IS PROOF OF SERVICE BY PUBLICATION MADE?
o Subject is property or any lien or any interest

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 74


• If the service has been made by publication, service may be hearing which must not be later than ten (10) days after the filing of
proved by the affidavit of the printer, his foreman or principal the motion. (5a)
clerk, or of the editor, business or advertising manager, to
which affidavit a copy of the publication shall be attached and Section 6. Proof of service necessary. No written motion set for
by an affidavit showing the deposit of a copy of the summons hearing shall be acted upon by the court without proof of service
and order for publication in the post office, postage prepaid, thereof. (6a)
directed to the defendant by registered mail to his last known
address. Section 7. Motion day. Except for motions requiring immediate action,
all motions shall be scheduled for hearing on Friday afternoons, or if
WHAT IS THE RELEVANCE OF THE DEFENDANT’S VOLUNTARY Friday is a non-working day, in the afternoon of the next working day.
APPEARANCE TO THE SERVICE OF SUMMONS UPON HIS PERSON? (7a)
• The defendant's voluntary appearance in the action shall be
equivalent to service of summons. The inclusion in a motion to Section 8. Omnibus motion. Subject to the provisions of section 1 of
dismiss of other grounds aside from lack of jurisdiction over Rule 9, a motion attacking a pleading, order, judgment, or proceeding
the person of the defendant shall not be deemed a voluntary shall include all objections then available, and all objections not so
appearance. included shall be deemed waived. (8a)

Section 9. Motion for leave. A motion for leave to file a pleading or


RULE 15: MOTIONS
motion shall be accompanied by the pleading or motion sought to be
admitted. (n)
Section 1. Motion defined. A motion is an application for relief other
than by a pleading. (1a) Section 10. Form. The Rules applicable to pleadings shall apply to
written motions so far as concerns caption, designation, signature, and
Section 2. Motions must be in writings. All motions shall be in writing other matters of form. (9a)
except those made in open court or in the course of a hearing or trial.
(2a) HOW MAY AN ORDER BY A COURT BE APPLIED FOR?
• By motion, every application for an order not included in a
Section 3. Contents. A motion shall state the relief sought to be judgment may be called a motion
obtained and the grounds upon which it is based, and if required by
these Rules or necessary to prove facts alleged therein, shall be STATE THE FORM OF MOTIONS. IS THE RULE ABSOLUTE?
accompanied by supporting affidavits and other papers. (3a) • All motions shall be in writing except those made in open court
or in the course of a hearing or trial
Section 4. Hearing of motion. Except for motions which the court may
act upon without prejudicing the rights of the adverse party, every WHAT SHOULD THE MOTION CONTAIN?
written motion shall be set for hearing by the applicant. • A motion shall state the relief sought to be obtained and the
grounds upon which it is based, and if required by these Rules
Every written motion required to be heard and the notice of the hearing or necessary to prove facts alleged therein, shall be
thereof shall be served in such a manner as to ensure its receipt by the accompanied by supporting affidavits and other papers
other party at least three (3) days before the date of hearing, unless
the court for good cause sets the hearing on shorter notice. (4a) WHEN IS NOTICE OF A MOTION REQUIRED?
• Notice of motion is required where a party has a right to resist
Section 5. Notice of hearing. The notice of hearing shall be addressed the right sought by the motion and principles of natural justice
to all parties concerned, and shall specify the time and date of the

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 75


demand that his rights be not affected without an opportunity the action is barred by the statute of limitations, the court
to be heard shall dismiss the claim

STATE THE NATURE OF THE REQUIREMENT OF NOTICE WHEN A MR WHAT IS THE EFFECT IF THE COURT HEARD A MOTION WITHOUT
IS FILED. COMPLYING WITH THE 3-DAY NOTICE RULE?
• The requirement of notice in connection with Section 2, Rule • The court committed grave abuse of discretion in proceeding
37 of the Rules is mandatory to hear the motion
• Absence the mandatory requirement renders the motion a
worthless piece of paper which the clerk of court has no right WHAT SHOULD ACCOMPANY THE MOTION TO ADMIT THE
to receive and which the court has no authority to act upon PLEADING?
• It should be accompanied by the pleading sought to be
MAY A MOTION BE HEARD ON A SHORTER NOTICE? admitted
• Yes, the court on good cause may hear a motion on a shorter
period especially on matters which the court can originally act WHAT IS THE EFFECT OF PROPER SERVICE AND FILING OF
upon on its motion MOTION?
• The running of the prescriptive period shall be tolled or
WHAT IS THE PURPOSE OF THE 3-DAY NOTICE RULE? suspended
• The purpose of the 3-day notice rule on litigated motions is to
apprise the other party of the same and to prevent surprises WHAT IS THE EFFECT OF IMPROPER SERVICE AND FILING?
• The running of the prescriptive period shall continue and shall
WHAT SHOULD THE NOTICE OF MOTION CONTAIN? not be suspended
• It shall contain a direction to the parties concerned and shall
state the time and place for the hearing of the motion. WHAT IS THE BASIC PREMISE IN FILING A MOTION VIS-À-VIS 3-DAY
NOTICE RULE?
MAY THE COURT ACT ON A MOTION ABSENT ANY PROOF OF • Will it be prejudicial to the other party
SERVICE? • Is it a litigated motion
• No, the under the rules, no motion shall be acted upon by the
court without proof of service of the notice thereof, except WHAT IS THE NOTICE OF HEARING IN THE MOTION?
when the court is satisfied that the rights of the adverse party • It sets the time and date of the hearing on the motion
or parties are not affected • Before, it was addressed to the clerk of court—the clerk shall
set it for hearing and will inform the parties consequently
WHAT IS THE OMNIBUS MOTION RULE? • Now, the notice shall be addressed to the adverse party and
• A motion attacking a pleading or a proceeding shall include all shall state when the motion shall be heard
objections then available and all objections not so included
shall be deemed waived WHAT ARE THE TWO (2) CONSIDERATIONS WITH RESPECT TO
MOTION FOR POSTPONEMENT?
IS THE OMNIBUS MOTION RULE ABSOLUTE? WHAT ARE THE 1. Whether the reason for the motion is satisfactory and
EXCEPTIONS? reasonable
• No because if it appears from the pleadings and the evidence 2. Whether the movant has meritorious claims
on the record that the court has no jurisdiction over the
subject matter, that there is a pending action between the WHAT IS THE CONSEQUENCE IF THE TWO (2) CONSIDERATIONS
same parties and involving the same cause of action or that MENTIONED ABOVE IS PRESENT IN THE FILING OF MOTION FOR
POSTPONEMENT AND THE COURT DENIED THE MOTION?

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 76


• There is a finding of grave abuse of discretion Section 3. Resolution of Motion. After the hearing, the court may
dismiss the action or claim, deny the motion, or order the amendment
of the pleading.
RULE 16: MOTION TO DISMISS
The court shall not defer the resolution of the motion for the reason
Section 1. Grounds. Within the time for but before filing the answer to that the ground relied upon is not indubitable.
the complaint or pleading asserting a claim, a motion to dismiss may
be made on any of the following grounds: In every case, the resolution shall state clearly and distinctly the
reasons therefor. (3a)
(a) That the court has no jurisdiction over the person of the defending
party; Section 4. Time to plead. If the motion is denied, the movant shall file
his answer within the balance of the period prescribed by Rule 11 to
(b) That the court has no jurisdiction over the subject matter of the which he was entitled at the time of serving his motion, but not less
claim; than five (5) days in any event, computed from his receipt of the notice
of the denial. If the pleading is ordered to be amended, he shall file his
(c) That venue is improperly laid; answer within the period prescribed by Rule 11 counted from service of
the amended pleading, unless the court provides a longer period. (4a)
(d) That the plaintiff has no legal capacity to sue;
Section 5. Effect of dismissal. Subject to the right of appeal, an order
(e) That there is another action pending between the same parties for granting a motion to dismiss based on paragraphs (f), (h) and (i) of
the same cause; section 1 hereof shall bar the refiling of the same action or claim. (n)

(f) That the cause of action is barred by a prior judgment or by the Section 6. Pleading grounds as affirmative defenses. If no motion to
statute of limitations; dismiss has been filed, any of the grounds for dismissal provided for in
this Rule may be pleaded as an affirmative defense in the answer and,
(g) That the pleading asserting the claim states no cause of action; in the discretion of the court, a preliminary hearing may be had
thereon as if a motion to dismiss had been filed. (5a)
(h) That the claim or demand set forth in the plaintiff's pleading has
been paid, waived, abandoned, or otherwise extinguished; The dismissal of the complaint under this section shall be without
prejudice to the prosecution in the same or separate action of a
(i) That the claim on which the action is founded is enforceable under counterclaim pleaded in the answer. (n)
the provisions of the statute of frauds; and
WHAT ARE THE GROUNDS FOR MOTION TO DISMISS?
(j) That a condition precedent for filing the claim has not been 1. That the court has no jurisdiction over the person of the
complied with. (1a) defending party;
2. That the court has no jurisdiction over the subject matter of
Section 2. Hearing of motion. At the hearing of the motion, the parties the claim;
shall submit their arguments on the questions of law and their 3. That venue is improperly laid;
evidence on the questions of fact involved except those not available at 4. That the plaintiff has no legal capacity to sue;
that time. Should the case go to trial, the evidence presented during 5. That there is another action pending between the same parties
the hearing shall automatically be part of the evidence of the party for the same cause;
presenting the same. (n) 6. That the cause of action is barred by a prior judgment or by
the statute of limitations;

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 77


7. That the pleading asserting the claim states no cause of • Yes, because there is a waiver involved
action;
8. That the claim or demand set forth in the plaintiff's pleading DISTINGUISH MOTION TO DISMISS ON THE GROUND OF FAILURE
has been paid, waived, abandoned, or otherwise extinguished; TO STATE CAUSE OF ACTION AND LACK TO STATE CAUSE OF
9. That the claim on which the action is founded is enforceable ACTION.
under the provisions of the statute of frauds; and FAILURE TO STATE CAUSE OF LACK OF CAUSE OF ACTION
10. That a condition precedent for filing the claim has not been ACTION
complied with Where the complaint doesn’t The evidence doesn’t sustain the
allege cause of action under Rule cause of action alleged, and is
TWO MOTIONS WERE FILED—FIRST WAS A MOTION TO DISMISS 16 before a responsive pleading is raised as a demurrer to evidence
AND THE OTHER, A MOTION FOR A BILL OF PARTICULARS. WHAT filed and can be determined only under Rule 33 after the plaintiff
IS THE EFFECT OF THE DENIAL OF THE MOTION TO DISMISS? from the allegations in the has rested his case and can be
• Upon the denial of the motion to dismiss, the reglementary initiatory pleading and not from resolved only on the basis of the
period within which to file an answer remains suspended until evidentiary matters and other evidence he has presented to
the action for the bill of particulars is denied or is granted, matters aliunde support his claim
until the bill is served on him This doesn’t concern with the Evidentiary in nature
truth or falsity of the allegations
WHAT IS ONE’S REMEDY IF HIS MOTION TO DISMISS BASED ON and has found the evidence
LACK OF JURISDICTION IS DENIED? wanting
• He should answer and proceed to trial Test in dismissal: whether the
• The denial of the motion to dismiss is an interlocutory order material allegations assuming
and doesn’t adjudicate completely the case them to be true, state ultimate
• If there is grave abuse of discretion, he may file a petition for facts which constitute a plaintiff’s
certiorari under Rule 65 cause of action such that, plaintiff
• Appeal is not available being an interlocutory order is entitled to favorable judgment
as a matter of law.
WHAT IS THE EFFECT OF A MOTION TO DISMISS ON THE GROUND No hearing necessary and no
OF FAILURE TO STATE CAUSE OF ACTION? other evidence to be admitted
• The defendant hypothetically admits the allegations of the aside from what is averred in the
complaint. The test of sufficiency of the facts found in a complaint
complaint as constituting a cause of action is whether or not
admitting the facts alleged, the court can render judgment WHAT ARE THE LIMITATIONS TO THE RULE THAT FACTS AVERRED
upon the same in accordance with the prayer thereof. The IN THE COMPLAINT ARE HYPOTHETICALLY ADMITTED UPON
hypothetical admission extends to the relevant and material MOTION TO DISMISS BASED ON LACK OF CAUSE OF ACTION?
facts well pleaded in the complaint and inferences fairly • This is limited to the relevant and material facts well pleaded
deducible therefrom. Hence, if allegations in the complaint in the complaint and inferences fairly deducible therefrom
furnish sufficient basis by which the complaint can be • This admission doesn’t extend to conclusions of law nor
maintained, the same should not be dismissed regardless of allegations of fact, the falsity of which is subject to judicial
the defense by the defendant. notice
• The defendant is likewise not precluded from raising denial of
CAN THE MOVANT REITERATE HIS HYPOTHETICAL ADMISSIONS IN the allegations in his answer
HIS ANSWER IF HIS MOTION TO DISMISS BASED ON FAILURE TO
STATE CAUSE OF ACTION?

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 78


IF FAILURE TO STATE CAUSE OF ACTION IS NOT AVERRED IN A 4. There is identity of parties, cause of action and subject matter
MOTION TO DISMISS, MAY IT BE RAISED IN ANY OTHER MOTION?
• Yes, in a motion for judgment on the pleadings or at the trial WHEN IS PRESCRIPTION OF ACTIONS INTERRUPTED?
on the merits 1. When the action is filed in court
2. When there is extrajudicial demand
WHAT IS A MOTION FOR JUDGMENT ON THE PLEADINGS? 3. When there is written acknowledgment of the debt by the
• Where an answer fails to tender an issue, or otherwise admits debtor
the material allegations of the adverse party's pleading, the
court may; on motion of that party, direct judgment on such WHAT ARE SOME FACTORS IN DETERMINING WHICH CASE SHOULD
pleading. However, in actions for declaration of nullity or BE DISMISSED ON THE GROUND OF PENDENCY OF ANOTHER
annulment of marriage or for legal separation, the material ACTION?
facts alleged in the complaint shall always be proved. 1. The date of filing—with preference generally given to the first
action filed to be retained
WHAT IS THE DIFFERENCE BETWEEN JUDGMENT ON THE 2. Whether the action sought to be dismissed was filed to merely
PLEADINGS AND SUMMARY JUDGMENT? preempt the latter action or to anticipate its filing and lay the
• In motions for summary judgment, the answer tenders an issue basis for its dismissal
but after admissions, affidavits, and depositions, it is found 3. Whether the action is the appropriate vehicle for litigating the
that there is no genuine issue presented issues between the parties
• In a motion for judgment on the pleadings, the answer doesn't
tender an issue at all WHAT IS THE EFFECT OF AN EXTRAJUDICIAL DEMAND BY
CREDITOR?
WHICH DETERMINES VENUE? • The period of prescription begins to run again, there is a
• The plaintiff renewal of the entire period
• In no case, generally does the defendant determine venue
WHAT IS THE EFFECT OF ACKNOWLEDGMENT OF DEBT?
AT WHAT INSTANCE DOES THE DEFENDANT DETERMINE VENUE? • If made prior to the expiration of the period, it renews the
• In agrarian cases, when the defendant in his answer to a period
complaint regarding ejectment alleges tenancy—in which case, • If made after the expiration, it reinstates the period
the case should be dismissed and filed accordingly with the
agrarian court MAY THE COURT DISMISS AN ACTION IF THE DEFENSE OF
PRESCRIPTION WAS RAISED FOR THE FIRST TIME ON APPEAL AND
WHAT ARE THE FUNDAMENTAL REQUISITES OF LIS PENDENS? IS APPARENT ON THE RECORDS?
1. Same parties or interests • Yes, what is essential only is that the facts demonstrating the
2. Same rights asserted or reliefs prayed for lapse of the prescriptive period be otherwise sufficiently and
3. Reliefs founded on same facts satisfactorily apparent on the record, either in the averments
4. The identity is such that either way the pending case is of the plaintiff’s complaint or otherwise established by the
decided, it would constitute a bar to the present case evidence

WHAT ARE THE REQUISITES OF RES JUDICATA? WHAT IS THE GROUND FOR MOTION TO DISMISS FOR FAILURE TO
1. Former judgment or order that is final and executory EXERCISE EARNEST EFFORTS TO COMPROMISE?
2. The order or judgment was rendered by a court of competent • Lack of cause of action or lack of condition precedent
jurisdiction
3. The judgment or order is on the merits

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 79


WHAT IS THE GROUND FOR MOTION TO DISMISS FOR FAILURE TO CAN A PLAINTIFF FILE A MOTION TO DISMISS ON A
UNDERGO BARANGAY CONCILIATION? COUNTERCLAIM?
• Lack of cause of action or lack of condition precedent • It is because the counterclaim can be considered as an
independent complaint against the plaintiff
WHAT IS THE NATURE OF IRREGULARITY IF THE MOTION TO
DISMISS IS GRANTED WITHOUT NOTICE OF HEARING? WHAT ACTIONS MAY THE COURT DO IF A MOTION TO DISMISS IS
• The order granting motion to dismiss is merely an irregularity FILED?
in the proceedings and cannot deprive the competent court of • It may deny or grant the motion or allow amendment of
jurisdiction over the case pleading, or may defer the hearing and determination of the
motion until the trial if the ground alleged herein doesn’t
MAY THE COURT DISMISS A COMPLAINT ABSENT ANY ANSWER OR appear to be indubitable
MOTION TO DISMISS?
• Yes, the court may dismiss for want of jurisdiction WHAT IS THE NATURE OF AN ORDER GRANTING A MOTION TO
DISMISS?
MAY ONE FILE A MOTION TO DISMISS UPON FILING OF AN • It is a final order because it disposes of the case on the merits,
ANSWER? hence it is appealable
• As a general rule, no
• Exceptions— WITHIN WHAT TIME SHOULD A PARTY FILE AN ANSWER IF HIS
o Where the ground raised is lack of jurisdiction of the MOTION TO DISMISS IS FILED?
court over the subject matter • If the motion is denied, the movant shall file his answer within
o Complaint doesn’t state cause of action the balance of the period prescribed by Rule 11 to which he
o Prescription was entitled at the time of serving his motion, but not less
o Where the evidence that would constitute a ground for than five (5) days in any event, computed from his receipt of
dismissal was only discovered during the trial the notice of the denial. If the pleading is ordered to be
amended, he shall file his answer within the period prescribed
MAY A PARTY WHO HAS BEEN DECLARED IN DEFAULT FILE A by Rule 11 counted from service of the amended pleading,
MOTION TO DISMISS? unless the court provides a longer period.
• No, the right to file a motion to dismiss is not among the
rights accorded to a defendant who was declared in default WHICH OF THE TWO MOTIONS SHOULD THE COURT ACT UPON
FIRST—MOTION TO DECLARE DEFENDANT IN DEFAULT OR MOTION
IF A MOTION TO DISMISS IS FILED, WHAT SHALL THE PARTIES TO DISMISS FOR LACK OF JURISDICTION?
PRESENT AT THE HEARING OF THE CASE? • If both are pending incidents, the court should act first on the
• At the hearing of the motion, the parties shall submit their motion to dismiss on the ground for lack of jurisdiction
arguments on the questions of law and their evidence on the because if the court finds that it has no jurisdiction, it would
questions of fact involved except those not available at that be useless to proceed, as every proceeding conducted would
time. be void.
• The only jurisdiction of the court then is to dismiss the action
WHAT WILL HAPPEN TO EVIDENCE PRESENTED ON THE HEARING
FOR THE MOTION TO DISMISS? IF A MOTION TO DISMISS IS DENIED, WHAT IS THE APPROPRIATE
• Should the case go to trial, the evidence presented during the REMEDY?
hearing shall automatically be part of the evidence of the party • The denial of a motion to dismiss is interlocutory, hence the
presenting the same remedy is to answer, proceed to trial and await judgment
before interposing an appeal

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 80


• The denial should be raised as an error of the trial court on


appeal
RULE 17: DISMISSAL OF ACTIONS
IS A PETITION FOR CERTIORARI PROPER FOR DENIAL OF MOTION
TO DISMISS? Section 1. Dismissal upon notice by plaintiff. A complaint may be
• It is not the proper remedy for it is not intended to correct dismissed by the plaintiff by filing a notice of dismissal at any time
every controversial interlocutory ruling—it is only intended to before service of the answer or of a motion for summary judgment.
correct grave abuse of discretion or a whimsical exercise of Upon such notice being filed, the court shall issue an order confirming
judgment equivalent to lack of jurisdiction the dismissal. Unless otherwise stated in the notice, the dismissal is
without prejudice, except that a notice operates as an adjudication
WHAT IS THE EFFECT IF A CASE IS DISMISSED ON THE GROUNDS upon the merits when filed by a plaintiff who has once dismissed in a
OF BAR BY PRIOR JUDGMENT, OR BY STATUTE OF LIMITATIONS, competent court an action based on or including the same claim. (1a)
OR PAYMENT, WAIVER, ABANDONMENT, OR EXTINGUISHMENT OF
THE CLAIM OR UNENFORCEABILITY OF THE CAUSE OF ACTION Section 2. Dismissal upon motion of plaintiff. Except as provided in
UNDER THE STATUTE OF FRAUDS? the preceding section, a complaint shall not be dismissed at the
• It shall be a bar to refilling of the action plaintiff's instance save upon approval of the court and upon such
terms and conditions as the court deems proper. If a counterclaim has
CAN A COUNTERCLAIM PROCEED WHEN A DEFENDANT FILES IT been pleaded by a defendant prior to the service upon him of the
WITH AN ANSWER WITH AFFIRMATIVE DEFENSES INSTEAD OF plaintiffs motion for dismissal, the dismissal shall be limited to the
FILING A MOTION TO DISMISS? complaint. The dismissal shall be without prejudice to the right of the
• Yes, it shall be without prejudice to the prosecution of the defendant to prosecute his counterclaim in a separate action unless
same or separate action of a counterclaim pleaded in the within fifteen (15) days from notice of the motion he manifests his
answer preference to have his counterclaim resolved in the same action.
Unless otherwise specified in the order, a dismissal under this
WHAT SHALL THE COURT DO UPON FILING OF AN ANSWER WITH paragraph shall be without prejudice. A class suit shall not be
AFFIRMATIVE DEFENSES? dismissed or compromised without the approval of the court. (2a)
• The court shall set a preliminary hearing on the affirmative
defenses Section 3. Dismissal due to fault of plaintiff. If, for no justifiable
• Not needed when the ground is res judicata cause, the plaintiff fails to appear on the date of the presentation of his
evidence in chief on the complaint, or to prosecute his action for an
MAY THE COURT DEFER RESOLUTION ON A MOTION TO DISMISS? unreasonable length of time, or to comply with these Rules or any
• No, under the rules, deferment of the resolution is not order of the court, the complaint may be dismissed upon motion of the
permitted defendant or upon the court's own motion, without prejudice to the
• The court may either admit, deny or order the amendment of right of the defendant to prosecute his counterclaim in the same or in a
the pleadings separate action. This dismissal shall have the effect of an adjudication
upon the merits, unless otherwise declared by the court. (3a)
UPON GRANTING OF MOTION TO DISMISS, WHAT INSTANCES BAR
THE FILING OF ANOTHER COMPLAINT? Section 4. Dismissal of counterclaim, cross-claim, or third-party
1. Res judicata complaint. The provisions of this Rule shall apply to the dismissal of
2. Litis pendentia any counterclaim, cross-claim, or third-party complaint. A voluntary
3. Payment or extinguishment of obligation dismissal by the claimant by notice as in section 1 of this Rule, shall be
4. Prescription made before a responsive pleading or a motion for summary judgment
5. Unenforceable because of statute of frauds

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 81


is served or, if there is none, before the introduction of evidence at the • No a class suit shall not be dismissed or compromised without
trial or hearing. (4a) the approval of the court

WHEN MAY A PARTY TO AN ACTION DISMISS THE SAME WITHOUT WHAT IS THE EFFECT OF THE ORDER OF DISMISSAL OF AN ACTION
ORDER OF COURT? FOR FAILURE TO PROSECUTE BY PLAINTIFF?
• A complaint may be dismissed by the plaintiff by filing a notice • It is without prejudice to the right of the defendant to
of dismissal at any time before service of the answer or of a prosecute his counterclaim in the same or in a separate action
motion for summary judgment. • This dismissal shall have the effect of an adjudication upon the
merits, unless otherwise declared by the court
WHAT ARE THE TWO INSTANCES WHICH AN ACTION MAY BE
DISMISSED UPON THE PLAINTIFF’S INSTANCE? WHAT SHOULD THE COURT DO IF THE PLAINTIFF FAILS TO
1. Dismissal is a matter of right by filing a notice of dismissal at PROSECUTE THE ACTION AND STATE THE NATURE OF DISMISSAL?
any time before service of an answer or of a motion for • If, for no justifiable cause, the plaintiff fails to appear on the
summary judgment has been served on him by the defendant date of the presentation of his evidence in chief on the
2. Dismissal is discretionary on the court when the motion for complaint, or to prosecute his action for an unreasonable
dismissal of the action is filed by the plaintiff at any stage of length of time, or to comply with these Rules or any order of
the proceedings other than before service of an answer or of the court, the complaint may be dismissed upon motion of the
motion for summary judgment defendant or upon the court's own motion.
• This dismissal shall have the effect of an adjudication upon the
IF THE PLAINTIFF DISMISSES THE CASE BEFORE AN ANSWER IS merits, unless otherwise declared by the court.
FILED, WHAT SHOULD THE COURT DO?
• No other action except to accept and record the causative WHAT IS ONE’S REMEDY IF A CASE IS DISMISSED FOR FAILURE TO
document PROSECUTE?
• It will merely issue an order confirming the dismissal • The aggrieved party should file a notice of appeal and not a
petition for review on certiorari
WHEN IS DISMISSAL BY THE PLAINTIFF CONSIDERED
ADJUDICATION ON THE MERITS? WHAT IS THE NATURE OF THE DISMISSALL OF A COMPLAINT IF THE
• Unless otherwise stated in the notice, the dismissal is without ORDER IS SILENT AS TO ITS NATURE?
prejudice, except that a notice operates as an adjudication • If the order of dismissal by the court has no statement as to its
upon the merits when filed by a plaintiff who has once nature, it is without prejudice for under the Rules, unless
dismissed in a competent court an action based on or otherwise stated in the order, a dismissal shall be without
including the same claim. prejudice

WHAT IS THE TWO-DISMISSAL RULE? WHAT ARE THE GROUNDS FOR DISMISSAL OF AN ACTION?
• It is a situation where the same complaint had twice been 1. Failure to prosecute for unreasonable length of time
dismissed by the plaintiff without court order by the mere act 2. Failure to appear on trial
of serving notice of dismissal 3. Failure to comply with the rules
• In this case, the second case constitutes adjudication on the 4. Failure to comply with the order of the court
merits
UNDER WHAT CIRCUMSTANCES MAY THE COURT DISMISS THE
MAY A CLASS SUIT BE DISMISSED WITHOUT APPROVAL OF THE CASE MOTU PROPIO?
COURT? 1. Failure to prosecute for unreasonable length of time
2. Failure to appear on trial

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 82


3. Failure to comply with the rules Section 2. Nature and purpose. The pre-trial is mandatory. The court
4. Failure to comply with the order of the court shall consider:
5. Lack of jurisdiction
(a) The possibility of an amicable settlement or of a submission to
WHAT IS THE TEST FOR FAILURE TO PROSECUTE? alternative modes of dispute resolution;
• Whether there is want of due diligence on the part of the
plaintiff in failing to proceed with reasonable promptitude (b) The simplification of the issues;

WHAT SHOULD A COURT DO IF THERE IS A MANIFESTATION OF (c) The necessity or desirability of amendments to the pleadings;
WILLINGNESS TO DISCUSS A SETTLEMENT?
• The court should suspend the proceedings and determine if: (d) The possibility of obtaining stipulations or admissions of facts and
o If willing to discuss a possible compromise is of documents to avoid unnecessary proof;
expressed by one or both parties
o If it appears that one of the parties before the (e) The limitation of the number of witnesses;
commencement of the action offered to discuss a
compromise but the other refused the offer (f) The advisability of a preliminary reference of issues to a
• If despite efforts exerted by the court no settlement is reached, commissioner;
only then should the action continue as if no suspension had
taken place (g) The propriety of rendering judgment on the pleadings, or summary
judgment, or of dismissing the action should a valid ground therefor be
MAY A PERSON MOVE FOR THE DISMISSAL OF AN ACTION EVEN found to exist;
BEFORE THE COURT ACQUIRED JURISDICTION OVER HIS PERSON?
• Yes (h) The advisability or necessity of suspending the proceedings; and

DUE TO THE CONTINUOUS FAILURE OF THE PARTIES TO APPEAR (i) Such other matters as may aid in the prompt disposition of the
AT THE TRIAL, THE COURT ORDERED THE DISMISSAL WITHOUT action. (1a, R20)
ANY QUALIFICATION. WHAT IS THE NATURE OF SUCH DISMISSAL?
• When the action is dismissed for failure to prosecute and the Section 3. Notice of pre-trial. The notice of pre-trial shall be served on
dismissal is without qualification, the same is with prejudice counsel, or on the party who has no counsel. The counsel served with
and has the effect of an adjudication on the merits such notice is charged with the duty of notifying the party represented
by him. (n)
WHAT IS THE REMEDY IF THE COURT DISMISSES THE CASE BASED
ON ANY OF THE AFOREMENTIONED GROUNDS, I.E FAILURE TO Section 4. Appearance of parties. It shall be the duty of the parties
PROSECUTE, ETC.? and their counsel to appear at the pre-trial. The non-appearance of a
• Appeal is the remedy party may be excused only if a valid cause is shown therefor or if a
representative shall appear in his behalf fully authorized in writing to
enter into an amicable settlement, to submit to alternative modes of
RULE 18: PRE-TRIAL
dispute resolution, and to enter into stipulations or admissions of facts
and of documents. (n)
Section 1. When conducted. After the last pleading has been served
and filed, if shall be the duty of the plaintiff to promptly move ex parte Section 5. Effect of failure to appear. The failure of the plaintiff to
that the case be set for pre-trial (5a, R20) appear when so required pursuant to the next preceding section shall
be cause for dismissal of the action. The dismissal shall be with

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 83


prejudice, unless other-wise ordered by the court. A similar failure on • After the last pleading has been served and filed, it shall be the
the part of the defendant shall be cause to allow the plaintiff to present duty of the plaintiff to promptly move ex parte that the case be
his evidence ex parte and the court to render judgment on the basis set for pre-trial
thereof. (2a, R20)
IS THE SAME TRUE FOR CRIMINAL CASES, MEANING, IS IT THE
Section 6. Pre-trial brief. The parties shall file with the court and DUTY OF THE PROSECUTION TO SET THE CASE FOR PRE-TRIAL?
serve on the adverse party, in such manner as shall ensure their receipt • No, it is the duty of the court to set the case for pre-trial after
thereof at least three (3) days before the date of the pre-trial, their the arraignment
respective pre-trial briefs which shall contain, among others:
WHAT IS THE NATURE OF A PRE-TRIAL?
(a) A statement of their willingness to enter into amicable settlement or • Mandatory
alternative modes of dispute resolution, indicating the desired terms
thereof; WHAT SHALL THE COURT CONSIDER DURING PRE-TRIAL?
1. The possibility of an amicable settlement or of a submission
(b) A summary of admitted facts and proposed stipulation of facts; to alternative modes of dispute resolution;
2. The simplification of the issues;
(c) The issues to be tried or resolved; 3. The necessity or desirability of amendments to the
pleadings;
(d) The documents or exhibits to be presented stating the purpose 4. The possibility of obtaining stipulations or admissions of
thereof; facts and of documents to avoid unnecessary proof;
5. The limitation of the number of witnesses;
(e) A manifestation of their having availed or their intention to avail 6. The advisability of a preliminary reference of issues to a
themselves of discovery procedures or referral to commissioners; and commissioner;
7. The propriety of rendering judgment on the pleadings, or
(f) The number and names of the witnesses, and the substance of their summary judgment, or of dismissing the action should a
respective testimonies. valid ground therefor be found to exist;
8. The advisability or necessity of suspending the proceedings;
Failure to file the pre-trial brief shall have the same effect as failure to and
appear at the pre-trial. (n) 9. Such other matters as may aid in the prompt disposition of the
action.
Section 7. Record of pre-trial. The proceedings in the pre-trial shall be
recorded. Upon the termination thereof, the court shall issue an order UPON WHOM SHOULD NOTICE OF PRE-TRIAL BE SERVED?
which shall recite in detail the matters taken up in the conference, the • The notice of pre-trial shall be served on counsel, or on the
action taken thereon, the amendments allowed to the pleadings, and party who has no counsel
the agreements or admissions made by the parties as to any of the • It is indicated therein that the counsel should inform the party
matters considered. Should the action proceed to trial, the order shall, regarding the pre-trial
explicitly define and limit the issues to be tried. The contents of the
order shall control the subsequent course of the action, unless WHAT IS THE DUTY OF THE PARTIES AND COUNSEL DURING PRE-
modified before trial to prevent manifest injustice. (5a, R20) TRIAL?
• It shall be the duty of the parties and their counsel to appear
WHAT IS THE DUTY OF THE PLAINTIFF AFTER THE FILING OF THE at the pre-trial
LAST PLEADING?
WHAT IS THE EFFECT OF A PARTY’S FAILURE TO APPEAR?

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 84


• If the plaintiff fails to appear, the same shall be a cause for 5. A manifestation of their having availed or their intention to
dismissal of action with prejudice, unless otherwise ordered by avail themselves of discovery procedures or referral to
the court commissioners; and
• If the defendant fails to appear, it shall be cause to allow the 6. The number and names of the witnesses, and the substance of
plaintiff to present his evidence ex parte and the court shall their respective testimonies.
render judgment on the basis thereof
WHAT IS THE EFFECT OF FAILURE TO FILE PRE-TRIAL BRIEF?
CAN A PARTY’S NON-APPEARANCE BE EXCUSED? • It shall have the same effect as failure to appear during trial
• Yes, for any valid cause shown or if a representative shall
appear in his behalf authorized in writing to enter into an WHAT IS THE SIGNIFICANCE OF THE PRE-MARKING OF
amicable settlement, to submit to alternative modes of dispute DOCUMENTARY EVIDENCE?
resolution and to enter into stipulations of facts and of • No evidence shall be allowed to be presented and offered
documents during the trial in support of a party's evidence-in-chief other
than those that had been earlier identified and pre-marked
WHAT ARE THE THREE (3) THINGS IN CONSIDERATION THAT during the pre-trial, except if allowed by the court for good
COUNSEL MUST BE AUTHORIZED TO DO? cause shown
1. Enter into an amicable settlement • Rule is not absolute and subject to the exception of good
2. To submit to alternative modes of dispute resolution cause shown to be determined by the court’s discretion
3. To enter into stipulations of facts and of documents
*This should include an explanation on non-appearance of party N.B: Abuse of discretion alone does not merit the filing a petition
*Absence of authorization for either of the three shall render for certiorari. It should be grave abuse that is tantamount to lack or
authorization invalid and may not be considered in excusing a party’s excess of jurisdiction.
non-appearance

WHEN MUST ONE FILE HIS PRE-TRIAL BRIEF? WHAT SHALL THE COURT DO UPON TERMINATION OF PRE-TRIAL?
• At least 3 days before the pre-trial, filed and served to the • It shall issue a pre-trial order which shall contain the
other party following—
o Recital in detail of the matters taken up in the
WHAT IS THE CONSEQUENCE OF FILING THE PRE-TRIAL BRIEF BUT conference
FAILING TO SERVE A COPY TO THE ADVERSE PARTY? o The action taken thereon
• It is tantamount to failure to appear o The amendments allowed to the pleadings
o Agreements or admissions made by the parties as to
STATE THE CONTENTS OF A PRE-TRIAL BRIEF? any of the matters considered
1. A statement of their willingness to enter into amicable o Explicitly defined and limited issues to be tried.
settlement or alternative modes of dispute resolution,
indicating the desired terms thereof; WHAT SHALL CONTROL THE COURSE OF THE ACTION AFTER THE
2. A summary of admitted facts and proposed stipulation of PRE-TRIAL?
facts; • The pre-trial order shall control the course of the action but
3. The issues to be tried or resolved; this rule is not absolute—significance of the pre-trial order in
4. The documents or exhibits to be presented stating the purpose the proceedings
thereof; • In the interest of justice, issues that may arise during the trial
but which may not have been taken up during the pre-trial can
still be taken up

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 85


conference. If the plaintiff fails to file said motion within the


WHAT IS THE MOST IMPORTANT WITNESS RULE? given period, the Branch COC shall issue a notice of pre-trial.
• The court during pre-trial must determine the most important
witnesses to be heard and limit the number of witnesses 2. The parties shall submit, at least three (3) days before the pre-trial,
pre-trial briefs containing the following:
WHAT IS THE ONE DAY EXAMINATION OF WITNESS RULE? a. A statement of their willingness to enter into an amicable
• A witness has to be fully examined in one (1) day only, shall be settlement indicating the desired terms thereof or to submit
strictly adhered to subject to the courts' discretion during trial the case to any of the alternative modes of dispute resolution;
on whether or not to extend the direct and/or cross-
examination for justifiable reasons. b. A summary of admitted facts and proposed stipulation of
• On the last hearing day allotted for each party, he is required facts;
to make his formal offer of evidence after the presentation of
his last witness and the opposing party is required to c. The issues to be tried or resolved;
immediately interpose his objection thereto.
d. The documents or exhibits to be presented, stating the
A.M. No. 03-1-09-SC purpose thereof. (No evidence shall be allowed to be
RE: PROPOSED RULE ON GUIDELINES TO BE OBSERVED BY TRIAL presented and offered during the trial in support of a party's
COURT JUDGES AND CLERKS OF COURT IN THE CONDUCT OF PRE- evidence-in-chief other than those that had been earlier
TRIAL AND USE OF DEPOSITION-DISCOVERY MEASURES identified and pre-marked during the pre-trial, except if
allowed by the court for good cause shown);
I. PRE-TRIAL
e. A manifestation of their having availed or their intention to
A. Civil Cases avail themselves of discovery procedures or referral to
commissioners; and
1. Within one day from receipt of the complaint:
1.1 Summons shall be prepared and shall contain a reminder f. The number and names of the witnesses, the substance of
to defendant to observe restraint in filing a motion to dismiss their testimonies, and the approximate number of hours that
and instead allege the grounds thereof as defenses in the will be required by the parties for the presentation of their
Answer, in conformity with IBP-OCA Memorandum on Policy respective witnesses.
Guidelines dated March 12, 2002. A copy of the summons is
hereto attached as Annex "A;" and A copy of the Notice of Pre-trial Conference is hereto attached as
Annex "B."
1.2 The court shall issue an order requiring the parties to avail
of interrogatories to parties under Rule 25 and request for The rule on the contents of the pre-trial brief must strictly be complied
admission by adverse party under Rule 26 or at their with.
discretion make use of depositions under Rule 23 or other
measures under Rules 27 and 28 within five days from the The parties are bound by the representations and statements in their
filing of the answer.; A copy of the order shall be served upon respective pre-trial briefs.
the defendant together with the summons and upon the
plaintiff. 3. At the start of the pre-trial conference, the judge shall immediately
refer the parties and/or their counsel if authorized by their clients to
Within five (5) days from date of filing of the reply, the plaintiff the PMC mediation unit for purposes of mediation if available. If
must promptly move ex parte that the case be set for pre-trial mediation fails, the judge will schedule the continuance of the pre-trial

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 86


conference. Before the continuance, the Judge may refer the case to If not successful, the court shall confer with the party and his counsel
the Branch COC for a preliminary conference to assist the parties in separately.
reaching a settlement, to mark the documents or exhibits to be
presented by the parties and copies thereof to be attached to If the manner of compromise is not acceptable, the judge shall confer
the records after comparison and to consider such other matters with the parties without their counsel for the same purpose of
as may aid in its prompt disposition. settlement.

During the preliminary conference, the Branch COC shall also ascertain 5. If all efforts to settle fail, the trial judge shall:
from the parties the undisputed facts and admissions on the a. Adopt the minutes of preliminary conference as part of the
genuineness and due execution of the documents marked as exhibits. pre-trial proceedings and confirm markings of exhibits or
The proceedings during .the preliminary conference shall be recorded substituted photocopies and admissions on the genuineness
in the "Minutes of Preliminary Conference" to be signed by both parties and due execution of documents;
and/or counsel, the form of which is hereto attached as Annex. "C".
b. Inquire if there are cases arising out of the same facts
The minutes of preliminary conference and the exhibits shall be pending before other courts and order its consolidation if
attached by the Branch COC to the case record before the pre-trial. warranted;

4. Before the continuation of the pre-trial conference, the judge must c. Inquire if the pleadings are in order. If not, order the
study all the pleadings of the case, and determine the issues thereof amendments if necessary;
and the respective positions of the parties thereon to enable him to
intelligently steer the parties toward a possible amicable settlement of d. Inquire if interlocutory issues are involved and resolve the
the case, or, at the very least, to help reduce and limit the issues. The same;
judge should not allow the termination of pre-trial simply because of
the manifestation of the parties that they cannot settle the case. He e. Consider the adding or dropping of parties;
should expose the parties to the advantages of pre-trial. He must also
be mindful that there are other important aspects of the pre-trial that f. Scrutinize every single allegation of the complaint, answer
ought to be taken up to expedite the disposition of the case. and other pleadings and attachments thereto and the contents
of documents and all other evidence identified and pre-marked
The Judge with all tact, patience, impartiality and with due regard to during pre-trial in determining further admissions of facts and
the rights of the parties shall endeavor to persuade them to arrive at a documents. To obtain admissions, the Court shall ask the
settlement of the dispute. The court shall initially ask the parties and parties to submit the depositions taken under Rule 23, the
their lawyers if an amicable settlement of the case is possible. If not, answers to written interrogatories under Rule 25 and the
the judge may confer with the parties with the opposing counsel to answers to request for admissions by the adverse party under
consider the following: Rule 26. It may also require the production of documents or
things requested by a party under Rule 27 and the results of
a. Given the evidence of the plaintiff presented in his pre-trial the physical and mental examination of persons under Rule
brief to support his claim, what manner of compromise is 28;
considered acceptable to the defendant at the present stage?
g. Define and simplify the factual and legal issues arising from
b. Given the evidence of the defendant described in his pre- the pleadings. Uncontroverted issues and frivolous claims or
trial brief to support his defense, what manner of compromise defenses should be eliminated. For each factual issue, the
is considered acceptable to the plaintiff at the present stage? parties/counsel shall state all the evidence to support their
positions thereon. For each legal issue, parties/counsel shall

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 87


state the applicable law and jurisprudence supporting their l. Require the parties and/or counsel to submit to the Branch
respective positions thereon. If only legal issues are presented, COC the names, addresses and contact numbers of the
the judge shall require the parties to submit their respective witnesses to be summoned by subpoena;
memoranda and the court can proceed to render judgment;
m. Order the delegation of the reception of evidence to the
h. Determine the propriety of rendering a summary judgment Branch COC under Rule 30; and
dismissing the case based on the disclosures made at the pre-
trial or a judgment based on the pleadings, evidence identified n. Refer the case to a trial by commissioner under Rule 32.
and admissions made during pre-trial.
During the pre-trial, the judge shall be the one to ask questions on
i. Ask parties to agree on the specific trial dates for continuous issues raised therein and all questions or comments by counsel or
trial in accordance with Circular No. 1-89 dated January 19, parties must be directed to the judge to avoid hostilities between the
1989; adhere to the case flow chart determined by the court, parties.
which shall contain the different stages of the proceedings up
to the promulgation of the decision and use the time frame for 6. The trial judge shall schedule the pre-trial in the afternoon sessions
each stage in setting the trial dates. The One-Day Examination and set as many pre-trial conferences as may be necessary.
of Witness Rule, that is, a witness has to be fully examined in
one (1) day only, shall be strictly adhered to subject to the 7. All proceedings during the pre-trial shall be recorded. The minutes
courts' discretion during trial on whether or not to extend the of each pre-trial conference shall contain matters taken up therein
direct and/or cross-examination for justifiable reasons. On the more particularly admissions of facts and exhibits and shall be signed
last hearing day allotted for each party, he is required to make by the parties and their counsel.
his formal offer of evidence after the presentation of his last
witness and the opposing party is required to immediately 8. The judge shall issue the required Pre-Trial Order within ten (10)
interpose his objection thereto. Thereafter, the Judge shall days after the termination of the pre-trial. Said Order shall bind the
make the ruling on the offer of evidence in open court. parties, limit the trial to matters not disposed of and control the course
However the judge has the discretion to allow the offer of of the action during the trial. A sample Pre-Trial Order is hereto
evidence in writing in conformity with Section 35, Rule 132; attached as Annex "D."

j. Determine the most important witnesses to be heard and However, the Court may opt to dictate the Pre-Trial Order in open court
limit the number of witnesses (Most Important Witness Rule). in the presence of the parties and their counsel and with the use of a
The facts to be proven by each witness and the approximate computer, shall have the same immediately finalized and printed. Once
number of hours per witness shall be fixed; finished, the parties and/or their counsel shall sign the same to
manifest their conformity thereto.
k. At his discretion, order the parties to use the affidavits of
witnesses as direct testimonies subject to the right to object to 9. The court shall endeavor to make the parties agree to an equitable
inadmissible portions thereof and to the right of cross- compromise or settlement at any stage of the proceedings before
examination by the other party. The affidavits shall be based rendition of judgment.
on personal knowledge, shall set forth facts as would be
admissible in evidence, and shall show affirmatively that the ***
affiant is competent to testify to the matters stated therein.
The affidavits shall be in question and answer form, and shall
RULE 19: INTERVENTION
comply with the rules on admissibility of evidence;

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 88


Section 1. Who may intervene. A person who has a legal interest in intervention will unduly delay or prejudice the adjudication of
the matter in litigation, or in the success of either of the parties, or an the rights of the original parties and whether or not the
interest against both, or is so situated as to be adversely affected by a intervenor’s rights may be fully protected n a separate
distribution or other disposition of property in the custody of the court proceeding
or of an officer thereof may, with leave of court, be allowed to intervene
in the action. The court shall consider whether or not the intervention WHEN SHOULD ONE FILE HIS MOTION TO INTERVENE?
will unduly delay or prejudice the adjudication of the rights of the • The motion to intervene may be filed at any time before
original parties, and whether or not the intervenor's rights may be fully rendition of judgment by the trial court. A copy of the pleading-
protected in a separate proceeding. (2[a], [b]a, R12) in-intervention shall be attached to the motion and served on
the original parties.
Section 2. Time to intervene. The motion to intervene may be filed at
any time before rendition of judgment by the trial court. A copy of the MAY INTERVENTION BE MADE AFTER TRIAL?
pleading-in-intervention shall be attached to the motion and served on • Yes, and it is only after trial and decision that intervention can
the original parties. (n) no longer be allowed

Section 3. Pleadings-in-intervention. The intervenor shall file a MAY INTERVENTION BE MADE AFTER A COMPROMISE AGREEMENT
complaint-in-intervention if he asserts a claim against either or all of WAS ENTERED INTO BY THE PARTIES?
the original parties, or an answer-in-intervention if he unites with the • Yes, in a case where the court allowed the petitioners who were
defending party in resisting a claim against the latter. (2[c]a, R12) the alleged surviving spouse and legitimate child to intervene
in the action for partition
Section 4. Answer to complaint-in-intervention. The answer to the
complaint-in-intervention shall be filed within fifteen (15) days from WHAT PLEADINGS SHALL BE FILED BY THE INTERVENOR?
notice of the order admitting the same, unless a different period is • If he seeks to assert a claim, he must file a compliant-in-
fixed by the court. (2[d]a, R12) intervention against either or all of the parties or an answer-in-
intervention if he unites with the defendant in resisting a claim
WHO MAY INTERVENE IN AN ACTION? against the original parties
• A person who has a legal interest in the matter in litigation, or
in the success of either of the parties, or an interest against WITHIN WHAT PERIOD SHOULD AN ANSWER BE MADE IF A
both, or is so situated as to be adversely affected by a COMPLAINT-IN-INTERVENTION IS FILED?
distribution or other disposition of property in the custody of • The answer to the complaint-in-intervention shall be filed
the court or of an officer thereof may, with leave of court, be within fifteen (15) days from notice of the order admitting the
allowed to intervene in the action. same, unless a different period is fixed by the court.
• The court shall consider whether or not the intervention will
unduly delay or prejudice the adjudication of the rights of the WHAT IS THE EFFECT OF THE DISMISSAL OF AN ACTION IN
original parties, and whether or not the intervenor's rights may RELATION TO THE MOTION IN INTERVENTION?
be fully protected in a separate proceeding. • The motion for intervention should be denied
• Intervention is merely a collateral to the principal action and
WHAT SHOULD A NON-PARTY DO IF HE HAS AN INTEREST IN not an independent proceeding. With the final dismissal of the
PROPERTY SUBJECT OF LITIGATION? WHY? action, the complaint-in-intervention can no longer be acted
• He should file a motion for leave to intervene attaching the upon.
complaint-in-intervention
• The granting or denial of such motion is a matter of discretion WHAT IS THE NATURE OF AN ACTION TO INTERVENE?
of the court which shall consider whether or not the • It is not an independent action but rather, it is a supplemental

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 89


to an existing litigation cases, election cases, special civil actions, and those so required by
law. (1a, R22)
CAN THERE BE INTERVENTION IN A PROBATE OF A WILL?
• Yes, provided the intervenor has an interest in the estate or will Section 2. Assignment of cases. The assignment of cases to the
or property or that the intervenor would be benefited by the different branches of a court shall be done exclusively by raffle. The
estate assignment shall be done in open session of which adequate notice
shall be given so as to afford interested parties the opportunity to be
MAY INTERVENTION BE ALLOWED ON APPEAL? present. (7a, R22)
• As a general rule, no but it may be allowed if the intervenor is
an indispensible party WHAT MATTERS ARE REQUIRED BY THE RULES TO BE KEPT BY THE
CLERK OF COURT?
UNDER WHAT SCENARIO MAY A MOTION TO INTERVENE BE • The clerk of court under the supervision of the judge, shall
DENIED? keep a calendar of cases for pre-trial, trial, those whose trials
• If the right sought to be alleged can be protected in a separate were adjourned or postponed, and those with motions to set
proceeding for hearing

WHAT IS THE REMEDY IF THE MOTION TO INTERVENE IS DENIED? WHAT CASES SHALL THE COURT GIVE PREFERENCE TO?
• Remedy is appeal • The court shall give preference to habeas corpus cases,
• Mandamus will not lie except in case of grave abuse of election cases, special civil actions and those required by law
discretion
HOW ARE CASES ASSIGNED TO DIFFERENT BRANCES OF THE
WHAT IS THE EFFECT OF DENIAL OF INTERVENTION? COURT?
• The intervenor is not entitled to notice because he did not • The assignment of cases to the different branches of a court
become a party shall be done exclusively by raffle. The assignment shall be
done in open session of which adequate notice shall be given
IS A DENIAL RES JUDICATA? so as to afford interested parties the opportunity to be
• No, it is not a decision on the merits present.

WHAT IS THE EFFECT IF A COMPLAINT-IN-INTERVENTION IS NOT


RULE 21: SUBPOENA
ANSWERED?
• There can be no default as the parties already have standing in
court Section 1. Subpoena and subpoena duces tecum. Subpoena is a
process directed to a person requiring him to attend and to testify at
WHAT IS THE REMEDY IF THE MOTION IS GRANTED? the hearing or the trial of an action, or at any investigation conducted
• The order is interlocutory and as such, anyone who objects the by competent authority, or for the taking of his deposition. It may also
require him to bring with him any books, documents, or other things
under his control, in which case it is called a subpoena duces tecum.
RULE 20: CALENDAR OF CASES
(1a, R23)

Section 1. Calendar of cases. The clerk of court, under the direct Section 2. By whom issued. The subpoena may be issued by
supervision of the judge, shall keep a calendar of cases for pre-trial, for
trial, those whose trials were adjourned or postponed, and those with (a) the court before whom the witness is required to attend;
motions to set for hearing. Preference shall be given to habeas corpus

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 90


(b) the court of the place where the deposition is to be taken; court. (5a, R23)

(c) the officer or body authorized by law to do so in connection with Section 6. Service. Service of a subpoena shall be made in the same
investigations conducted by said officer or body; or manner as personal or substituted service of summons. The original
shall be exhibited and a copy thereof delivered to the person on whom
(d) any Justice of the Supreme Court or of the Court of Appeals in any it is served, tendering to him the fees for one day's attendance and the
case or investigation pending within the Philippines. kilometrage allowed by these Rules, except that, when a subpoena is
issued by or on behalf of the Republic of the Philippines or an officer or
When application for a subpoena to a prisoner is made, the judge or agency thereof, the tender need not be made. The service must be
officer shall examine and study carefully such application to determine made so as to allow the witness a reasonable time for preparation and
whether the same is made for a valid purpose. travel to the place of attendance. If the subpoena is duces tecum, the
reasonable cost of producing the books, documents or things
No prisoner sentenced to death, reclusion perpetua or life demanded shall also be tendered. (6a, R23)
imprisonment and who is confined in any penal institution shall be
brought outside the said penal institution for appearance or attendance Section 7. Personal appearance in court. A person present in court
in any court unless authorized by the Supreme Court (2a, R23) before a judicial officer may be required to testify as if he were in
attendance upon a subpoena is sued by such court or officer. (10, R23)
Section 3. Form and contents. A subpoena shall state the name of the
court and the title of the action or investigation, shall be directed to the Section 8. Compelling attendance. In case of failure of a witness to
person whose attendance is required, and in the case of a subpoena attend, the court or judge issuing the subpoena, upon proof of the
duces tecum, it shall also contain a reasonable description of the service thereof and of the failure of the witness, may issue a warrant to
books, documents or things demanded which must appear to the court the sheriff of the province, or his deputy, to arrest the witness and
prima facie relevant. (3a, R23) bring him before the court or officer where his attendance is required,
and the cost of such warrant and seizure of such witness shall be paid
Section 4. Quashing a subpoena. The court may quash a subpoena by the witness if the court issuing it shall determine that his failure to
duces tecum upon motion promptly made and, in any event, at or answer the subpoena was willful and without just excuse. (11, R23)
before the time specified therein if it is unreasonable and oppressive,
or the relevancy of the books, documents or things does not appear, or Section 9. Contempt. Failure by any person without adequate cause to
if the person in whose behalf the subpoena is issued fails to advance obey a subpoena served upon him shall be deemed a contempt of the
the reasonable cost of the production thereof. court from which the subpoena is issued. If the subpoena was not
issued by a court, the disobedience thereto shall be punished in
The court may quash a subpoena ad testificandum on the ground that accordance with the applicable law or Rule. (12a R23)
the witness is not bound thereby. In either case, the subpoena may be
quashed on the ground that the witness fees and kilometrage allowed Section 10. Exceptions. The provisions of sections 8 and 9 of this Rule
by these Rules were not tendered when the subpoena was served. (4a, shall not apply to a witness who resides more than one hundred (100)
R23) kilometers from his residence to the place where he is to testify by the
ordinary course of travel, or to a detention prisoner if no permission of
Section 5. Subpoena for depositions. Proof of service of a notice to the court in which his case is pending was obtained. (9a, R23)
take a deposition, as provided in sections 15 and 25 of Rule 23, shall
constitute sufficient authorization for the issuance of subpoenas for the WHAT IS A SUBPOENA?
persons named in said notice by the clerk of the court of the place in • It is a process directed to a person requiring him to attend and
which the deposition is to be taken. The clerk shall not, however, issue to testify at the hearing or the trial of an action, or at any
a subpoena duces tecum to any such person without an order of the investigation conducted under the laws of the Philippines, for

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 91


the taking of his deposition. to the court prima facie relevant.


• This may also require him to bring with him any books,
documents, or other things under his control, in which case, it UNDER WHAT CIRCUMSTANCES MAY AN APPLICATION FOR A
is called a subpoena duces tecum SUBPOENA DUCES TECUM BE QUASHED?
• The court may quash a subpoena duces tecum upon motion
WHAT IS A SUBPOENA AD TESTIFICANDUM? promptly made and, in any event, at or before the time
• It is a subpoena requiring one to testify specified therein if it is unreasonable and oppressive, or the
relevancy of the books, documents or things does not appear,
WHAT IS A SUBPOENA DUCES TECUM? or if the person in whose behalf the subpoena is issued fails to
• It is a process by which the court, at the instance of the party, advance the reasonable cost of the production thereof.
commands a witness who has in his possession or control
some document or paper that is pertinent to the issues of a UNDER WHAT CIRCUMSTANCES MAY AN APPLICATION FOR A
pending controversy to produce it during trial SUBPOENA AD TESTIFICANDUM BE QUASHED?
• The court may quash a subpoena ad testificandum on the
WHO MAY ISSUE A SUBPOENA? ground that the witness is not bound thereby. In either case,
1. The court before whom the witness is required to attend; the subpoena may be quashed on the ground that the witness
2. The court of the place where the deposition is to be taken; fees and kilometrage allowed by these Rules were not tendered
3. The officer or body authorized by law to do so in connection when the subpoena was served.
with investigations conducted by said officer or body; or
4. Any justice of the Supreme Court or of the Court of Appeals in WHEN MAY THE COURT QUASH A SUBPOENA AD TESTIFICANDUM?
any case or investigation pending within the Philippines. • It may be quashed on the ground that the witness is not bound
thereby
WHAT SHALL THE COURT DO IF THERE IS AN APPLICATION FOR
SUBPOENA FOR A PRISONER? WHO SHALL SERVE A SUBPOENA?
• When application for a subpoena to a prisoner is made, the • Service of a subpoena shall be made by the sheriff, by his
judge or officer shall examine and study carefully such deputy or by any other person specially authorized, who is not
application to determine whether the same is made for a valid a party and is not less than 18 years of age
purpose.
HOW IS A SUBPOENA SERVED?
WHAT TYPE OF PRISONER, AS A GENERAL RULE, IS NOT ALLOWED • Service of a subpoena shall be made in the same manner as
TO BE BROUGHT TO THE COURT FOR APPEARNCE? personal or substituted service of summons.
• No prisoner sentenced to death, reclusion perpetua or life • The original shall be exhibited and a copy thereof delivered to
imprisonment and who is confined in any penal institution the person on whom it is served, tendering to him the fees for
shall be brought outside the said penal institution for one day's attendance and the kilometrage allowed by these
appearance or attendance in any court unless authorized by Rules, except that, when a subpoena is issued by or on behalf
the Supreme Court of the Republic of the Philippines or an officer or agency
thereof, the tender need not be made.
WHAT ARE THE CONTENTS OF A SUBPOENA? • The service must be made so as to allow the witness a
• A subpoena shall state the name of the court and the title of reasonable time for preparation and travel to the place of
the action or investigation, shall be directed to the person attendance.
whose attendance is required, and in the case of a subpoena • If the subpoena is duces tecum, the reasonable cost of
duces tecum, it shall also contain a reasonable description of producing the books, documents or things demanded shall
the books, documents or things demanded which must appear also be tendered.

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 92


law or Rule.
HOW SHALL A SUBPOENA BE SERVED UPON A WITNESS WHO IS
BEING CONCEALED? WHEN MAY A WITNESS BE NOT BOUND BY A SUBPOENA?
• If it is shown by affidavit that a witness is concealed in a • It shall not apply to a witness who resides more than one
building or vessel so as to prevent the service upon him of a hundred (100) kilometers from his residence to the place
subpoena and that his testimony or the thing demanded from where he is to testify by the ordinary course of travel, or to a
him are material, the court or judge issuing the subpoena may detention prisoner if no permission of the court in which his
issue an order authorizing the sheriff or his deputy or specially case is pending was obtained.
authorized to serve it, to break into the building or vessel
where the witness is concealed for the purpose of effecting the WHEN IS THE EXCEPTION MENTIONED ABOVE APPLICABLE?
service • It is only applicable in civil cases and not criminal cases

HOW MAY A SUBPOENA BE SERVED UPON A PRISONER WHO IS TO SUPPOSE THE SUBPOENA WAS NOT ISSUED BY THE COURT, HOW
BE A WITNESS? SHALL DISOBEDIENCE BE PUNISHED?
• If the witness required to attend is a prisoner, the subpoena • It shall be punished in accordance with the applicable law or
shall be served upon the officer having the management of the rules
jail, who in turn shall serve it upon the prisoner
WHEN MAY A PERSON BE REQUIRED TO TESTIFY
MAY TRIAL BE CONDUCTED IN THE PREMISES OF THE NATIONAL NOTWITHSTANDING THE NON-ISSUANCE OF SUBPOENA?
BILIBID PRISON? • In case of failure of a witness to attend, the court or judge
• Yes, in case of prisoners sentenced to death or life issuing the subpoena, upon proof of the service thereof and of
imprisonment and the judge is from Metro Manila, Rizal, the failure of the witness, may issue a warrant to the sheriff of
Cavite, Bulacan and Laguna the province, or his deputy, to arrest the witness and bring him
before the court or officer where his attendance is required,
WHAT IS THE RECOURSE IF A PERSON FAILS TO APPEAR EVEN and the cost of such warrant and seizure of such witness shall
WITH A DULY ISSUED SUBPOENA? be paid by the witness if the court issuing it shall determine
• In case of failure of a witness to attend, the court or judge that his failure to answer the subpoena was willful and without
issuing the subpoena, upon proof of the service thereof and of just excuse.
the failure of the witness, may issue a warrant to the sheriff of
the province, or his deputy, to arrest the witness and bring him
RULE 22: COMPUTATION OF TIME
before the court or officer where his attendance is required,
and the cost of such warrant and seizure of such witness shall
be paid by the witness if the court issuing it shall determine Section 1. How to compute time. In computing any period of time
that his failure to answer the subpoena was willful and without prescribed or allowed by these Rules, or by order of the court, or by
just excuse. any applicable statute, the day of the act or event from which the
designated period of time begins to run is to be excluded and the date
WHEN MAY ONE BE CITED IN CONTEMPT IN RELATION TO A of performance included. If the last day of the period, as thus
SUBPOENA? computed, falls on a Saturday a Sunday, or a legal holiday in the place
• Failure by any person without adequate cause to obey a where the court sits, the time shall not run until the next working day.
subpoena served upon him shall be deemed a contempt of the (a)
court from which the subpoena is issued.
• If the subpoena was not issued by a court, the disobedience Section 2. Effect of interruption. Should an act be done which
thereto shall be punished in accordance with the applicable effectively interrupts the running of the period, the allowable period

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 93


after such interruption shall start to run on the day after notice of the defense of any other party, including the existence, description, nature,
cessation of the cause thereof. custody, condition, and location of any books, documents, or other
tangible things and the identity and location of persons having
The day of the act that caused the interruption shall be excluded in the knowledge of relevant facts. (2, R24)
computation of the period. (n)
Section 3. Examination and cross-examination. Examination and
STATE HOW TIME OR PERIOD SHALL BE COMPUTED IN THE FILING cross-examination of deponents may proceed as permitted at the trial
OF PLEADINGS. under sections 3 to 18 of Rule 132. (3a, R24)
• In computing any period of time prescribed or allowed by
these Rules, or by order of the court, or by any applicable Section 4. Use of depositions. At the trial or upon the hearing of a
statute, the day of the act or event from which the designated motion or an interlocutory proceeding, any part or all of a deposition,
period of time begins to run is to be excluded and the date of so far as admissible under the rules of evidence, may be used against
performance included. any party who was present or represented at the taking of the
• If the last day of the period, as thus computed, falls on a deposition or who had due notice thereof, in accordance with any one
Saturday a Sunday, or a legal holiday in the place where the of the following provisions;
court sits, the time shall not run until the next working day.
(a) Any deposition may be used by any party for the purpose of
WHAT IS THE EFFECT OF AN INTERRUPTION? contradicting or impeaching the testimony of deponent as a witness;
• Should an act be done which effectively interrupts the running
of the period, the allowable period after such interruption shall (b) The deposition of a party or of any one who at the time of taking the
start to run on the day after notice of the cessation of the deposition was an officer, director, or managing agent of a public or
cause thereof. private corporation, partnership, or association which is a party may be
• The day of the act that caused the interruption shall be used by an adverse party for any purpose;
excluded in the computation of the period.
(c) The deposition of a witness, whether or not a party, may be used by
any party for any purpose if the court finds: (1) that the witness is
RULE 23: DEPOSITIONS PENDING ACTION
dead, or (2) that the witness resides at a distance more than one
hundred (100) kilometers from the place of trial or hearing, or is out of
Section 1. Depositions pending action, when may be taken. By leave the Philippines, unless it appears that his absence was procured by the
of court after jurisdiction has been obtained over any defendant or over party offering the deposition, or (3) that the witness is unable to attend
property which is the subject of the action, or without such leave after or testify because of age, sickness, infirmity, or imprisonment, or (4)
an answer has been served, the testimony of any person, whether a that the party offering the deposition has been unable to procure the
party or not, may be taken, at the instance of any party, by deposition attendance of the witness by subpoena; or (5) upon application and
upon oral examination or written interrogatories. The attendance of notice, that such exceptional circumstances exist as to make it
witnesses may be compelled by the use of a subpoena as provided in desirable, in the interest of justice and with due regard to the
Rule 21. Depositions shall be taken only in accordance with these importance of presenting the testimony of witnesses orally in open
Rules. The deposition of a person confined in prison may be taken only court, to allow the deposition to be used; and
by leave of court on such terms as the court prescribes. (1a, R24)
(d) If only part of a deposition is offered in evidence by a party, the
Section 2. Scope of examination. Unless otherwise ordered by the adverse party may require him to introduce all of it which is relevant to
court as provided by section 16 or 18 of this Rule, the deponent may the part introduced, and any party may introduce any other parts. (4a,
be examined regarding any matter, not privileged, which is relevant to R24)
the subject of the pending action, whether relating to the claim or

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 94


Section 5. Effect of substitution of parties. Substitution of parties rogatory shall be issued only when necessary or convenient, on
does not affect the right to use depositions previously taken; and, when application and notice, and on such terms, and with such direction as
an action has been dismissed and another action involving the same are just and appropriate. Officers may be designated in notices or
subject is afterward brought between the same parties or their commissions either by name or descriptive title and letters rogatory
representatives or successors in interest, all depositions lawfully taken may be addressed to the appropriate judicial authority in the foreign
and duly filed in the former action may be used in the latter as if country. (12a, R24)
originally taken therefor. (5, R24)
Section 13. Disqualification by interest. No deposition shall be taken
Section 6. Objections to admissibility. Subject to the provisions of before a person who is a relative within the sixth degree of
section 29 of this Rule, objection may be made at the trial or hearing, consanguinity or affinity, or employee or counsel of any of the parties,
to receiving in evidence any deposition or part thereof for any reason or who is a relative within the same degree, or employee of such
which would require the exclusion of the evidence if the witness were counsel; or who is financially interested in the action. (13a, R24)
then present and testifying (6, R24)
Section 14. Stipulations regarding taking of depositions. If the
Section 7. Effect of taking depositions. A party shall not be deemed to parties so stipulate in writing, depositions may be taken before any
make a person his own witness for any purpose by taking his person authorized to administer oaths, at any time or place, in
deposition. (7, R24) accordance with these Rules and when so taken may be used like other
depositions. (14a, R24)
Section 8. Effect of using depositions. The introduction in evidence of
the deposition or any part thereof for any purpose other than that of Section 15. Deposition upon oral examination; notice; time and place.
contradicting or impeaching the deponent makes the deponent the A party desiring to take the deposition of any person upon oral
witness of the party introducing the deposition, but this shall not apply examination shall give reasonable notice in writing, to every other party
to the use by an adverse party of a deposition as described in to the action. The notice shall state the time and place for taking the
paragraph (b) of section 4 of this Rule. (8, R24) deposition and the name and address of each person to be examined,
if known, and if the name is not known, a general description sufficient
Section 9. Rebutting deposition. At the trial or hearing any party may to identify him or the particular class or group to which he belongs. On
rebut any relevant evidence contained in a deposition whether motion of any party upon whom the notice is served, the court may for
introduced by him or by any other party. (9, R24) cause shown enlarge or shorten the time. (15, R24)

Section 10. Persons before whom depositions may be taken within Section 16. Orders for the protection of parties and deponents. After
the Philippines. Within the Philippines depositions may be taken notice is served for taking a deposition by oral examination, upon
before any judge, notary public, or the person referred to in section 14 motion seasonably made by any party or by the person to be examined
hereof. (10a, R24) and for good cause shown, the court in which the action is pending
may make an order that the deposition shall not be taken, or that it
Section 11. Persons before whom depositions may be taken in foreign may be taken only at some designated place other than that stated in
countries. In a foreign state or country, depositions may be taken (a) the notice, or that it may be taken only on written interrogatories, or
on notice before a secretary of embassy or legation, consul general, that certain matters shall not be inquired into, or that the scope of the
consul, vice-consul, or consular agent of the Republic of the examination shall be held with no one present except the parties to the
Philippines, (b) before such person or officer as may be appointed by action and their officers or counsel, or that after being sealed the
commission or under letters rogatory; or (c) the person referred to in deposition shall be opened only by order of the court, or that secret
section 14 hereof. (11a, R24) processes, developments, or research need not be disclosed, or that
the parties shall simultaneously file specified documents or
Section 12. Commission or letters rogatory. A commission or letters information enclosed in sealed envelopes to be opened as directed by

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 95


the court or the court may make any other order which justice requires the reasons given by the witness for making them. The deposition shall
to protect the party or witness from annoyance, embarrassment, or then be signed by the witness, unless the parties by stipulation waive
oppression. (16a, R24) the signing or the witness is ill or cannot be found or refuses to sign. If
the deposition is not signed by the witness, the officer shall sign it and
Section 17. Record of examination, oath; objections. The officer state on the record the fact of the waiver or of the illness or absence of
before whom the deposition is to be taken shall put the witness on oath the witness or the fact of the refusal to sign together with the reason be
and shall personally, or by some one acting under his direction and in given therefor, if any, and the deposition may then be used as fully as
his presence, record the testimony of the witness. The testimony shall though signed, unless on a motion to suppress under section 29 (f) of
be taken stenographically unless the parties agree otherwise. All this Rule, the court holds that the reasons given for the refusal to sign
objections made at the time of the examination to the qualifications of require rejection of the deposition in whole or in part. (19a, R24)
the officer taking the deposition, or to the manner of talking it, or to
the evidence presented, or to the conduct of any party, and any other Section 20. Certification, and filing by officer. The officer shall certify
objection to the proceedings, shall be noted by the officer upon the on the deposition that the witness was duly sworn to by him and that
deposition. Evidence objected to shall be taken subject to the the deposition is a true record of the testimony given by the witness.
objections. In lieu of participating in the oral examination, parties He shall then securely seal the deposition in an envelope indorsed with
served with notice of taking a deposition may transmit written the title of the action and marked "Deposition of (here insert the name
interrogatories to the officers, who shall propound them to the witness of witness)" and shall promptly file it with the court in which the action
and record the answers verbatim. (17, R24) is pending or send it by registered mail to the clerk thereof for filing.
(20, R24)
Section 18. Motion to terminate or limit examination. At any time
during the taking of the deposition, on motion or petition of any party Section 21. Notice of filing. The officer taking the deposition shall give
or of the deponent, and upon a showing that the examination is being prompt notice of its filing to all the parties. (21, R24)
conducted in bad faith or in such manner as unreasonably to annoy,
embarrass, or oppress the deponent or party, the court in which the Section 22. Furnishing copies. Upon payment of reasonable charges
action is pending or the Regional Trial Court of the place where the therefor, the officer shall furnish a copy of the deposition to any party
deposition is being taken may order the officer conducting the or to the deponent. (22, R24)
examination to cease forthwith from taking the deposition, or may limit
the scope and manner of the taking of the deposition, as provided in Section 23. Failure to attend of party giving notice. If the party giving
section 16 of this Rule. If the order made terminates the examination, the notice of the taking of a deposition fails to attend and proceed
it shall be resumed thereafter only upon the order of the court in which therewith and another attends in person or by counsel pursuant to the
the action is pending. Upon demand of the objecting party or notice, the court may order the party giving the notice to pay such
deponent, the taking of the deposition shall be suspended for the time other party the amount of the reasonable expenses incurred by him
necessary to make a notice for an order. In granting or refusing such and his counsel in so attending, including reasonable attorney's fees.
order, the court may impose upon either party or upon the witness the (23a, R24)
requirement to pay such costs or expenses as the court may deem
reasonable. (18a, R24) Section 24. Failure of party giving notice to serve subpoena. If the
party giving the notice of the taking of a deposition of a witness fails to
Section 19. Submission to witness; changes; signing. When the serve a subpoena upon him and the witness because of such failure
testimony is fully transcribed, the deposition shall be submitted to the does not attend, and if another party attends in person or by counsel
witness for examination and shall be read to or by him, unless such because he expects the deposition of that witness to be taken, the
examination and reading are waived by the witness and by the parties. court may order the party giving the notice to pay to such other party
Any changes in form or substance which the witness desires to make the amount of the reasonable expenses incurred by him and his
shall be entered upon the deposition by the officer with a statement of counsel in so attending, including reasonable attorney's fees. (24a,

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 96


R24)
(b) As to disqualification of officer. Objection to taking a deposition
Section 25. Deposition upon written interrogatories; service of notice because of disqualification of the officer before whom it is to be taken
and of interrogatories. A party desiring to take the deposition of any is waived unless made before the taking of the deposition begins or as
person upon written interrogatories shall serve them upon every other soon thereafter as the disqualification becomes known or could be
party with a notice stating the name and address of the person who is discovered with reasonable diligence.
to answer them and the name or descriptive title and address of the
officer before whom the deposition is to be taken. Within ten (10) days (c) As to competency or relevancy of evidence. Objections to the
thereafter, a party so served may serve cross-interrogatories upon the competency of witness or the competency, relevancy, or materiality of
party proposing to take the deposition. Within five (5) days thereafter, testimony are not waived by failure to make them before or during the
the latter may serve re-direct interrogatories upon a party who has taking of the deposition, unless the ground, of the objection is one
served cross-interrogatories. Within three (3) days after being served which might have been obviated or removed if presented at that time.
with re-direct interrogatories, a party may serve recross-interrogatories
upon the party proposing to take the deposition. (25, R24) (d) As to oral examination and other particulars. Errors and
irregularities occurring at the oral examination in the manner of taking
Section 26. Officers to take responses and prepare record. A copy of the deposition in the form of the questions or answers, in the oath or
the notice and copies of all interrogatories served shall be delivered by affirmation, or in the conduct of the parties and errors of any kind
the party taking the deposition to the officer designated in the notice, which might be obviated, removed, or cured if promptly prosecuted,
who shall proceed promptly, in the manner provided by sections 17, 19 are waived unless reasonable objection thereto is made at the taking of
and 20 of this Rule, to take the testimony of the witness in response to the deposition.
the interrogatories and to prepare, certify, and file or mail the
deposition, attaching thereto the copy of the notice and the (e) As to form of written interrogatories. Objections to the form of
interrogatories received by him. (26, R24) written interrogatories submitted under sections 25 and 26 of this Rule
are waived unless served in writing upon the party propounding them
Section 27. Notice of filing and furnishing copies. When a deposition within the time allowed for serving succeeding cross or other
upon interrogatories is filed, the officer taking it shall promptly give interrogatories and within three (3) days after service of the last
notice thereof to all the parties, and may furnish copies to them or to interrogatories authorized.
the deponent upon payment of reasonable charges therefor. (27, R24)
(f) As to manner of preparation. Errors and irregularities in the manner
Section 28. Order for the protection of parties and deponents. After in which the testimony is transcribed or the deposition is prepared,
the service of the interrogatories and prior to the taking of the signed, certified, sealed, indorsed, transmitted, filed, or otherwise
testimony of the deponent, the court in which the action is pending, on dealt with by the officer under sections 17, 19, 20 and 26 of this Rule
motion promptly made by a party or a deponent, and for good cause are waived unless a motion to suppress the deposition or some part
shown, may make any order specified in sections 15, 16 and 18 of this thereof is made with reasonable promptness after such defect is, or
Rule which is appropriate and just or an order that the deposition shall with due diligence might have been, ascertained. (29a, R24)
not be taken before the officer designated in the notice or that it shall
not be taken except upon oral examination. (28a, R24) WHAT IS THE IMPORTANCE OF THE RULES OF DISCOVERY?
• They shorten the period of litigation and speed up adjudication
Section 29. Effect of errors and irregularities in depositions.
WHAT IS THE JUDICIAL POLICY RE: DEPOSITIONS?
(a) As to notice. All errors and irregularities in the notice for taking a • It should be allowed absent any showing of any prejudice to
deposition are waived unless written objection is promptly served upon any party
the party giving the notice.

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 97


WHAT ARE SOME OF THE BASIC PURPOSES OF THE RULES ON


DISCOVERY? WHAT MAY BE COVERED BY DEPOSITION?
1. To enable a party to obtain knowledge of material facts within • Any matter relating to the claim or defense of any party to the
the knowledge of the adverse party or of a third parties action
through depositions
2. To obtain knowledge of material facts or admissions from the WHAT ARE THE LIMITATIONS TO A DEPOSITION’S COVERAGE?
adverse party through written interrogatories 1. The deponent may not be examined regarding any privileged
3. To obtain admission from the adverse party regarding the manner
genuineness of relevant documents or relevant matters of fact 2. The deponent may only be examined regarding any matter
through requests for admissions which is relevant to the subject of the pending action
4. To inspect relevant documents or objects and lands or other 3. The court may issue orders to protect the parties and
property in the possession or control of the adverse party deponents or limit the examination
5. To determine the physical or mental condition of a party when
such is in controversy WHERE MAY A DEPOSITION BE USED?
1. At the trial
WHAT ARE THE KINDS OF DISCOVERIES? 2. At the hearing of the motion
1. Deposition bene esse or deposition pending action 3. At the hearing of an interlocutory proceeding
2. Deposition in perpetua rei memoriam or one taken prior to the
institution of any action AGAINST WHOM MAY A DEPOSITION BE USED?
1. Person who was present at the time of the taking
WHAT ARE THE MODES OF DISCOVERY PROVIDED BY THE RULES? 2. Person who was represented at the time of the taking
1. Depositions pending action 3. Person was notified of the taking
2. Interrogatories to parties
3. Request for admission GIVE AN OUTLINE ON HOW A DEPOSITION MAY BE USED.
4. Production or inspection of documents or things A deposition may be used according to the following:
5. Physical and mental examination of persons 1. For the purpose of contradicting or impeaching the testimony
of the deponent as a witness
WHAT IS MEANT BY DEPOSITION? 2. The deposition of a party or any one who has at the time of
• It is the written testimony of a witness given in the course of a taking of the deposition was an officer, director or managing
judicial proceeding, in advance of a trial or hearing, upon oral agent of a public or private corporation, partnership or
examination or in response to written interrogatories, and association which is a party may be used by an adverse party
where an opportunity is given for cross-examination for any purpose
3. The deposition of a witness whether or not a party, may be
WHEN MAY A PARTY TAKE A DEPOSITION OF ANOTHER? used by any party for any purpose if the court finds
1. By leave of court after jurisdiction has been obtained over the a. That the witness is dead
defendant or over property which is the subject of the action b. That the witness is out of the province at a greater
2. Without leave of court after an answer has been served distance than 50 km. from the place of trial or
3. By leave of court when the deposition of a person is confined hearing, or is out of the Philippines, unless it appears
in prison is to be taken that his absence was procured by the party offering
the deposition
WHO MAY TAKE A DEPOSITION AND HOW SHALL IT BE DONE? c. That the witness is unable to testify or attend because
• Any party to an action may take a deposition of another by oral of age, sickness, infirmity or imprisonment
examination or written interrogatories

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 98


d. That the party offering the deposition has been unable • Exceptions:
to procure the attendance of the witness by the o When the deposition is introduced to contradict or
subpoena impeach the deponent
e. Upon application and notice, that such exceptional o When the deponent is the adverse party, or one who at
circumstances exist as to make it desirable in the the time of taking the deposition was an officer,
interest of justice and with due regard to the director or managing agent of a public or private
importance of presenting the testimony of witnesses corporation, partnership, association which is an
orally in open court, to allow the deposition to be used adverse party
4. If only part of the deposition is offered in evidence by a party,
the adverse party may require him to introduce all of it, which BEFORE WHAT OFFICERS MAY A DEPOSITION BE TAKEN?
is relevant to the part introduced, and any part may introduce • Before any judge, or municipal judge or notary public
any other part
BEFORE ANY PERSON MAY A DEPOSITION BE TAKEN IN A FOREIGN
WHAT IS THE RULE WITH RESPECT TO SUBSTITUTION OF PARTIES COUNTRY?
TO ADMISSION OF DEPOSITIONS? 1. A secretary of embassy or legation
• It doesn’t affect the right to use depositions previously taken 2. Consul general
3. A consul
MAY A DEPOSITION PREVIOUSLY TAKEN FOR A CASE WHICH WAS 4. Vice-consul
DISMISSED BE USED IN A SUBSEQUENT ACTION INVOLVING THE 5. A consular agent of the Philippines
SAME PARTIES? 6. Any person or officer as may appointed by commission or
• Yes letters rogatory
• The rules provide that when an action has been dismissed and
another action is afterwards brought between the same parties HOW CAN DEPOSITIONS IN FOREIGN COUNTRIES BE TAKEN?
or their representatives or successors in interest, all 1. On notice before a secretary of embassy or legation, consul
depositions lawfully taken and filed in the former action may general, consul, vice-consul, or consular agent of the
be used in the latter as if originally taken therein Philippines
2. Before such person appointed by commission or letters
IF THERE ARE ANY OBJECTIONS TO DEPOSITIONS, WHEN MAY A rogatory
PARTY INTERPOSE HIS OBJECTION? 3. Before any person authorized to administer oaths as stipulated
• He should interpose it at the trial or hearing but errors or in writing by the parties
irregularities of any kind which might have been obviated,
cured or removed if promptly presented are waived, unless WHAT IS THE DIFFERENCE BETWEEN A COMMISSION AND LETTERS
reasonable objection thereto is made at the taking of the ROGATORY?
deposition • Commission is one issued by a competent court or tribunal,
directed to a magistrate by his official designation or to an
IS A PARTY WHO TOOK THE DEPOSITION OF ANOTHER OBLIGATED individual by name, authorizing him to take the depositions of
TO MAKE HIM A WITNESS? the witnesses named therein
• No, a party shall not be deemed to make a person his own • Letters rogatory on the other hand is a request to a foreign
witness for any purpose by taking his deposition court to give its aid, backed by its power, to secure the desired
• He may or may not use the deposition information

WHAT IS THE EFFECT OF TAKING A DEPOSITION AND USING IT? WHEN IS LEAVE OF COURT NECESSARY FOR DEPOSITIONS TAKEN
• Effect of making the deponent a witness ABROAD?

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 99


• If the deposition to be taken is where there is no secretary of or refusing such order, the court may impose upon either party
embassy or legation, consul general, consul, vice-consul, or or upon the witness the requirement to pay such costs or
consular agent of the Philippines, it may only be taken before expenses as the court may deem reasonable.
one who was issued a commission or letters rogatory
OUTLINE MANNER OF TAKING DEPOSITION BY ORAL
WHAT ORDERS MAY THE COURT ISSUE FOR THE PROTECTION OF EXAMINATION.
THE PARTIES DURING A DEPOSITION? 1. The officer before whom the deposition is to be taken shall put
1. May make an order that the deposition shall not be taken, the witness on oath
2. May be taken only at some designated place other than that 2. Officer shall personally, or by some one acting under his
stated in the notice direction and in his presence, record the testimony of the
3. May be taken only on written interrogatories witness
4. That certain matters shall not be inquired into 3. The testimony shall be taken stenographically unless the
5. That the scope of the examination shall be held with no one parties agree otherwise.
present except the parties to the action and their officers or 4. The following shall be noted by the officer taking the
counsel deposition:
6. That after being sealed the deposition shall be opened only by a. All objections made at the time of the examination to
order of the court the qualifications of the officer taking the deposition,
7. That secret processes, developments, or research need not be b. Objections to the manner of taking it,
disclosed c. Objections to the evidence presented,
8. That the parties shall simultaneously file specified documents d. Objections to the conduct of any party,
or information enclosed in sealed envelopes to be opened as e. And any other objection to the proceedings.
directed by the court 5. Evidence objected to shall be taken subject to the objections.
9. The court may make any other order which justice requires to
protect the party or witness from annoyance, embarrassment, OUTLINE WHAT THE OFFICER WHO TOOK THE DEPOSITION SHALL
or oppression. DO AFTER TAKING THE DEPOSITION OF A PERSON.
1. The deposition shall be submitted to the witness for
WHEN AND HOW MAY THE COURT TERMINATE OR LIMIT THE examination
TAKING OF DEPOSITIONS? 2. Deposition shall be read to or by him, unless such examination
• At any time during the taking of the deposition, on motion or and reading are waived by the witness and by the parties.
petition of any party or of the deponent, and upon a showing 3. Any changes in form or substance which the witness desires to
that the examination is being conducted in bad faith or in such make shall be entered upon the deposition by the officer with a
manner as unreasonably to annoy, embarrass, or oppress the statement of the reasons given by the witness for making
deponent or party, the court in which the action is pending or them.
the Regional Trial Court of the place where the deposition is 4. The deposition shall then be signed by the witness, unless the
being taken may order the officer conducting the examination parties by stipulation waive the signing or the witness is ill or
to cease forthwith from taking the deposition, or may limit the cannot be found or refuses to sign.
scope and manner of the taking of the deposition, as provided 5. If the deposition is not signed by the witness, the officer shall
in section 16 of this Rule. sign it and state on the record the fact of the waiver or of the
• If the order made terminates the examination, it shall be illness or absence of the witness or the fact of the refusal to
resumed thereafter only upon the order of the court in which sign together with the reason be given therefore.
the action is pending. Upon demand of the objecting party or 6. The officer shall certify on the deposition that the witness was
deponent, the taking of the deposition shall be suspended for duly sworn to by him and that the deposition is a true record
the time necessary to make a notice for an order. In granting of the testimony given by the witness. He shall then securely

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 100


seal the deposition in an envelope indorsed with the title of the 9. The deposition shall then be signed by the witness, unless the
action and marked "Deposition of (here insert the name of parties by stipulation waive the signing or the witness is ill or
witness)" and shall promptly file it with the court in which the cannot be found or refuses to sign.
action is pending or send it by registered mail to the clerk 10. If the deposition is not signed by the witness, the officer shall
thereof for filing. sign it and state on the record the fact of the waiver or of the
7. The officer taking the deposition shall give prompt notice of its illness or absence of the witness or the fact of the refusal to
filing to all the parties. sign together with the reason be given therefore.
11. The officer shall certify on the deposition that the witness was
OUTLINE PROCEDURE FOR TAKING DEPOSITIONS UPON WRITTEN duly sworn to by him and that the deposition is a true record
INTERROGATORIES. of the testimony given by the witness. He shall then securely
1. A party desiring to take the deposition of any person upon seal the deposition in an envelope indorsed with the title of the
written interrogatories shall serve them upon every other party action and marked "Deposition of (here insert the name of
with a notice stating the name and address of the person who witness)" and shall promptly file it with the court in which the
is to answer them and the name or descriptive title and action is pending or send it by registered mail to the clerk
address of the officer before whom the deposition is to be thereof for filing.
taken. 12. The officer taking the deposition shall give prompt notice of its
2. Within ten (10) days thereafter, a party so served may serve filing to all the parties.
cross-interrogatories upon the party proposing to take the
deposition. IS THE MANNER OF TAKING DEPOSITIONS IN RULE 23 EXCLUSIVE?
3. Within five (5) days thereafter, the latter may serve re-direct • No, the parties may stipulate in writing on another or different
interrogatories upon a party who has served cross- procedure
interrogatories.
4. Within three (3) days after being served with re-direct IN WHAT CASES MAY A COURT DISALLOW A DEPOSITION?
interrogatories, a party may serve recross-interrogatories upon • If it is conducted in bad faith or in such manner as to annoy,
the party proposing to take the deposition. embarrass, or oppress the person who is the subject of the
5. The officer before whom the deposition is to be taken shall put inquiry, or when the injury touches upon the irrelevant or
the witness on oath and shall personally, or by some one encroaches upon the recognized domains of privilege
acting under his direction and in his presence, record the
testimony of the witness. IS THE AVAILABILITY OF WITNESS A GROUND TO DENY THE
6. The officer before whom the deposition is to be taken shall put DEPOSITION?
the witness on oath and shall personally, or by some one • No, the availability of a witness doesn’t constitute good cause
acting under his direction and in his presence, record the to justify the court’s denial of a deposition
testimony of the witness.
7. When the testimony of the witness is fully transcribed, it shall MAY A DEPOSITION BE ADMISSIBLE AS EVIDENCE IF THE WITNESS
be submitted to the witness for examination and reading, IS AVAILABLE TO TESTIFY?
unless such examination and reading are waived by the • No, depositions offered during the trial to prove the facts set
witness therein in lieu of actual oral testimony of the deponent in open
8. Any changes in form or substance which the witness desires to court may be opposed and excluded on the ground of hearsay
make shall be entered upon the deposition by the officer with a
statement of the reasons given by the witness for making WHAT ARE THE EXCEPTIONS TO THE RULE?
them. 1. That the witness is dead
2. That the witness is out of the province at a greater distance
than 50 km. from the place of trial or hearing, or is out of the

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 101


Philippines, unless it appears that his absence was procured 6. As to manner of preparation. Errors and irregularities in the
by the party offering the deposition manner in which the testimony is transcribed or the deposition
3. That the witness is unable to testify or attend because of age, is prepared, signed, certified, sealed, indorsed, transmitted,
sickness, infirmity or imprisonment filed, or otherwise dealt with by the officer under sections 17,
4. That the party offering the deposition has been unable to 19, 20 and 26 of this Rule are waived unless a motion to
procure the attendance of the witness by the subpoena suppress the deposition or some part thereof is made with
5. Upon application and notice, that such exceptional reasonable promptness after such defect is, or with due
circumstances exist as to make it desirable in the interest of diligence might have been, ascertained.
justice and with due regard to the importance of presenting
the testimony of witnesses orally in open court, to allow the
RULE 24: DEPOSITIONS BEFORE ACTION OR PENDING APPEAL
deposition to be used

WHAT ARE THE EFFECTS OF ERRORS IN DEPOSITIONS? Section 1. Depositions before action; petition. A person who desires
1. As to notice. All errors and irregularities in the notice for to perpetuate his own testimony or that of another person regarding
taking a deposition are waived unless written objection is any matter that may be cognizable in any court of the Philippines may
promptly served upon the party giving the notice. file a verified petition in the court of the place of the residence of any
2. As to disqualification of officer. Objection to taking a expected adverse party. (1a R134)
deposition because of disqualification of the officer before
whom it is to be taken is waived unless made before the taking Section 2. Contents of petition. The petition shall be entitled in the
of the deposition begins or as soon thereafter as the name of the petitioner and shall show: (a) that the petitioner expects to
disqualification becomes known or could be discovered with be a party to an action in a court of the Philippines but is presently
reasonable diligence. unable to bring it or cause it to be brought; (b) the subject matter of
3. As to competency or relevancy of evidence. Objections to the the expected action and his interest therein; (c) the facts which he
competency of witness or the competency, relevancy, or desires to establish by the proposed testimony and his reasons for
materiality of testimony are not waived by failure to make desiring to perpetuate it; (d) the names or a description of the persons
them before or during the taking of the deposition, unless the he expects will be adverse parties and their addresses so far as known;
ground, of the objection is one which might have been obviated and (e) the names and addresses of the persons to be examined and
or removed if presented at that time. the substance of the testimony which he expects to elicit from each,
4. As to oral examination and other particulars. Errors and and shall ask for an order authorizing the petitioner to take the
irregularities occurring at the oral examination in the manner depositions of the persons to be examined named in the petition for
of taking the deposition in the form of the questions or the purpose of perpetuating their testimony. (2, R134)
answers, in the oath or affirmation, or in the conduct of the
parties and errors of any kind which might be obviated, Section 3. Notice and service. The petitioner shall serve a notice upon
removed, or cured if promptly prosecuted, are waived unless each person named in the petition as an expected adverse party,
reasonable objection thereto is made at the taking of the together with a copy of the petition, stating that the petitioner will
deposition. apply to the court, at a time and place named therein, for the order
5. As to form of written interrogatories. Objections to the form of described in the petition. At least twenty (20) days before the date of
written interrogatories submitted under sections 25 and 26 of the hearing, the court shall cause notice thereof to be served on the
this Rule are waived unless served in writing upon the party parties and prospective deponents in the manner provided for service
propounding them within the time allowed for serving of summons. (3a, R134)
succeeding cross or other interrogatories and within three (3)
days after service of the last interrogatories authorized. Section 4. Order and examination. If the court is satisfied that the
perpetuation of the testimony may prevent a failure or delay of justice,

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 102


it shall make an order designating or describing the persons whose • The petition shall be entitled in the name of the petitioner and
deposition may be taken and specifying the subject matter of the shall show: (a) that the petitioner expects to be a party to an
examination and whether the depositions shall be taken upon oral action in a court of the Philippines but is presently unable to
examination or written interrogatories. The depositions may be taken in bring it or cause it to be brought; (b) the subject matter of the
accordance with Rule 23 before the hearing. (4a, R134) expected action and his interest therein; (c) the facts which he
desires to establish by the proposed testimony and his reasons
Section 5. Reference to court. For the purpose of applying Rule 23 to for desiring to perpetuate it; (d) the names or a description of
depositions for perpetuating testimony, each reference therein to the the persons he expects will be adverse parties and their
court in which the action is pending shall be deemed to refer to the addresses so far as known; and (e) the names and addresses
court in which the petition for such deposition was filed. (5a, R134) of the persons to be examined and the substance of the
testimony which he expects to elicit from each, and shall ask
Section 6. Use of deposition. If a deposition to perpetuate testimony for an order authorizing the petitioner to take the depositions
is taken under this Rule, or if, although not so taken, it would be of the persons to be examined named in the petition for the
admissible in evidence, it may be used in any action involving the same purpose of perpetuating their testimony.
subject matter sub-sequently brought in accordance with the provisions
of sections 4 and 5 of Rule 23. (6a, R134) WHAT SHALL BE DONE AFTER THE FILING OF THE PETITION?
• The petitioner shall serve a notice upon each person named in
Section 7. Depositions pending appeal. If an appeal has been taken the petition as an expected adverse party, together with a copy
from a judgment of a court, including the Court of Appeals in proper of the petition, stating that the petitioner will apply to the
cases, or before the taking of an appeal if the time therefor has not court, at a time and place named therein, for the order
expired, the court in which the judgment was rendered may allow the described in the petition. At least twenty (20) days before the
taking of depositions of witnesses to perpetuate their testimony for in date of the hearing, the court shall cause notice thereof to be
the event of further proceedings in the said court. In such case the served on the parties and prospective deponents in the
party who desires to perpetuate the testimony may make a motion in manner provided for service of summons
the said court for leave to take the depositions, upon the same notice
and service thereof as if the action was pending therein. The motion WHAT SHALL THE COURT DO IF IT IS SATISFIED THAT THE
shall state (a) the names and addresses of the persons to be examined PERPETUATION OF TESTIMONY IS JUSTIFIED?
and the substance of the testimony which he expects to elicit from • If the court is satisfied that the perpetuation of the testimony
each, and (b) the reason for perpetuating their testimony. If the court may prevent a failure or delay of justice, it shall make an order
finds that the perpetuation of the testimony is proper to avoid a failure designating or describing the persons whose deposition may
or delay of justice, it may make an order allowing the deposition to be be taken and specifying the subject matter of the examination
taken, and thereupon the depositions may be taken and used in the and whether the depositions shall be taken upon oral
same manner and under the same conditions as are prescribed in examination or written interrogatories. The depositions may be
these Rules for depositions taken in pending actions. (7a, R134) taken in accordance with Rule 23 before the hearing.

WHO MAY PETITION FOR PERPETUATION OF HIS TESTIMONY? MAY A DEPOSITION TO PERPETUATE TESTIMONY LAWFULLY
• A person who desires to perpetuate his own testimony or that TAKEN AND ADMITTED BE USED IN ANOTHER ACTION INVOLVING
of another person regarding any matter that may be THE SAME PARTIES?
cognizable in any court of the Philippines may file a verified • If a deposition to perpetuate testimony is taken under this
petition in the court of the place of the residence of any Rule, or if, although not so taken, it would be admissible in
expected adverse party. evidence, it may be used in any action involving the same
subject matter subsequently brought in accordance with the
WHAT SHOULD BE THE CONTENTS OF THE PETITION? provisions of sections 4 and 5 of Rule 23.

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 103


a time as is practicable. (3a)


HOW IS A DEPOSITION PENDING APPEAL MADE?
• In such case the party who desires to perpetuate the testimony Section 4. Number of interrogatories. No party may, without leave of
may make a motion in the said court for leave to take the court, serve more than one set of interrogatories to be answered by the
depositions, upon the same notice and service thereof as if the same party. (4)
action was pending therein.
• The motion shall state (a) the names and addresses of the Section 5. Scope and use of interrogatories. Interrogatories may
persons to be examined and the substance of the testimony relate to any matters that can be inquired into under section 2 of Rule
which he expects to elicit from each, and (b) the reason for 23, and the answers may be used for the same purposes provided in
perpetuating their testimony. section 4 of the same Rule. (5a)

WHAT SHALL THE COURT DO IF IT IS SATISFIED THAT A Section 6. Effect of failure to serve written interrogatories. Unless
DEPOSITION PENDING APPEAL IS JUSTIFIED? thereafter allowed by the court for good cause shown and to prevent a
• If the court finds that the perpetuation of the testimony is failure of justice, a party not served with written interrogatories may
proper to avoid a failure or delay of justice, it may make an not be compelled by the adverse party to give testimony in open court,
order allowing the deposition to be taken, and thereupon the or to give a deposition pending appeal. (n)
depositions may be taken and used in the same manner and
under the same conditions as are prescribed in these Rules for WHEN MAY WRITTEN INTERROGATORIES BE SERVED UPON AN
depositions taken in pending actions. ADVERSE PARTY?
1. Upon leave of court after jurisdiction has been obtained over
the defendant or over property which is the subject matter of
RULE 25: INTERROGATORIES TO PARTIES
the action
2. Without leave of court, after answer has been served
Section 1. Interrogatories to parties; service thereof. Under the same
conditions specified in section 1 of Rule 23, any party desiring to elicit WHO SHALL ANSWER THE WRITTEN INTERROGATORIES?
material and relevant facts from any adverse parties shall file and serve 1. The adverse party served
upon the latter written interrogatories to be answered by the party 2. If the party served is a public or private corporation or a
served or, if the party served is a public or private corporation or a partnership or association, by any officer thereof competent to
partnership or association, by any officer thereof competent to testify testify
in its behalf. (1a)
HOW SHALL WRITTEN INTERROGATORIES BE ANSWERED?
Section 2. Answer to interrogatories. The interrogatories shall be 1. The interrogatories shall be answered fully in writing and shall
answered fully in writing and shall be signed and sworn to by the be signed and sworn to by the person making them.
person making them. The party upon whom the interrogatories have 2. The party upon whom the interrogatories have been served
been served shall file and serve a copy of the answers on the party shall file and serve a copy of the answers on the party
submitting the interrogatories within fifteen (15) days after service submitting the interrogatories within fifteen (15) days after
thereof unless the court on motion and for good cause shown, extends service thereof unless the court on motion and for good cause
or shortens the time. (2a) shown, extends or shortens the time.

Section 3. Objections to interrogatories. Objections to any WHEN SHALL OBJECTIONS BE MADE?


interrogatories may be presented to the court within ten (10) days after • Objections to any interrogatories may be presented to the
service thereof, with notice as in case of a motion; and answers shall court within ten (10) days after service thereof, with notice as
be deferred until the objections are resolved, which shall be at as early in case of a motion; and answers shall be deferred until the

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 104


objections are resolved, which shall be at as early a time as is Section 3. Effect of admission. Any admission made by a party
practicable. pursuant to such request is for the purpose of the pending action only
and shall not constitute an admission by him for any other purpose nor
WHAT IS THE SCOPE OF THE INTERROGATIONS TO A PARTY? may the same be used against him in any other proceeding. (3)
• Interrogatories may relate to any matters that can be inquired
into under section 2 of Rule 23, and the answers may be used Section 4. Withdrawal. The court may allow the party making an
for the same purposes provided in section 4 of the same Rule admission under the Rule, whether express or implied, to withdraw or
amend it upon such terms as may be just. (4)
WHAT IS THE EFFECT IF A PARTY IS NOT SERVED WITH WRITTEN
INTERROGATORIES? Section 5. Effect of failure to file and serve request for admission.
• Unless thereafter allowed by the court for good cause shown Unless otherwise allowed by the court for good cause shown and to
and to prevent a failure of justice, a party not served with prevent a failure of justice a party who fails to file and serve a request
written interrogatories may not be compelled by the adverse for admission on the adverse party of material and relevant facts at
party to give testimony in open court, or to give a deposition issue which are, or ought to be, within the personal knowledge of the
pending appeal latter, shall not be permitted to present evidence on such facts. (n)

AT WHAT STAGE OF THE PROCEEDINGS MAY A PARTY SERVE UPON


RULE 26: ADMISSION BY ADVERSE PARTY
THE OTHER A WRITTEN REQUEST FOR ADMISSION?
• A written request for admission may be served upon the party
Section 1. Request for admission. At any time after issues have been at any time after the issues have been joined
joined, a party may file and serve upon any other party a written
request for the admission by the latter of the genuineness of any STATE THE FACTS AN ADVERSE PARTY MAY BE REQUIRED TO
material and relevant document described in and exhibited with the ADMIT.
request or of the truth of any material and relevant matter of fact set 1. The truth of any relevant matters of fact set forth in the
forth in the request. Copies of the documents shall be delivered with request
the request unless copy have already been furnished. (1a) 2. The genuineness of any relevant documents described in and
exhibited with the request
Section 2. Implied admission. Each of the matters of which an
admission is requested shall be deemed admitted unless, within a WHAT IS THE PURPOSE OF ADMISSIONS?
period designated in the request, which shall not be less than fifteen • To expedite trial and relieve the parties of the costs of proving
(15) days after service thereof, or within such further time as the court facts that will not be disputed on trial and the truth of which
may allow on motion, the party to whom the request is directed files can be ascertained by reasonable inquiry
and serves upon the party requesting the admission a sworn statement
either denying specifically the matters of which an admission is AT WHAT TIME MUST A REPLY BE FILED?
requested or setting forth in detail the reasons why he cannot truthfully • It shall be served upon the party making the request within the
either admit or deny those matters. period designated in the request, which shall not be less than
15 days after service thereof or within such further time as the
Objections to any request for admission shall be submitted to the court court may allow on motion
by the party requested within the period for and prior to the filing of his
sworn statement as contemplated in the preceding paragraph and his IN WHAT FORM SHALL THE REPLY BE MADE?
compliance therewith shall be deferred until such objections are • It is a sworn statement either denying specifically the matters
resolved, which resolution shall be made as early as practicable. (2a) of which an admission is requested or setting forth in detail
the reasons why he cannot truthfully either admit or deny

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 105


those matters. action and which are in his possession, custody or control, or (b) order
any party to permit entry upon designated land or other property in his
WHAT IS THE CONSEQUENCE IF A PARTY REFUSES TO MAKE A possession or control for the purpose of inspecting, measuring,
REPLY? surveying, or photographing the property or any designated relevant
• Each of the matter requested shall be deemed admitted object or operation thereon. The order shall specify the time, place and
manner of making the inspection and taking copies and photographs,
IN WHAT PROCEEDINGS MAY THE ADMISSION BE USED? and may prescribe such terms and conditions as are just. (1a)
• Any admission made by a party pursuant to such request is for
the purpose of the pending action only and shall not constitute WHAT ARE THE REQUIREMENTS FOR THE PRODUCTION OR
an admission by him for any other purpose nor may the same INSPECTION OF DOCUMENTS OR THINGS?
be used against him in any other proceeding 1. Motion must be filed by the party showing good cause
2. Notice of the motion must be given to the other parties
MAY ADMISSIONS MADE BE WITHDRAWN OR AMENDED? 3. Motion sufficiently describes the document or thing sought
• Yes 4. Document or thing contains material evidence to the action
5. Document or thing must not be privileged
UPON WHOM SHALL THE REQUEST FOR INTERROGATORIES BE 6. It must be in the possession of the adverse party or under his
SERVED? control
• The party himself directly, otherwise, he is not deemed to have
admitted the genuineness of any relevant document described WHICH COURT CAN ORDER THE PRODUCTION AND INSPECTION?
therein and exhibited with the request or relevant matters of • Where the action is pending
fact set forth therein on account of failure to answer the
request for admission
RULE 28: PHYSICAL AND MENTAL EXAMINATION OF PERSONS
WHAT IS THE EFFECT OF FAILURE TO FILE AND SERVE THE
REQUEST FOR ADMISSION? Section 1. When examination may be ordered. In an action in which
• Unless otherwise allowed by the court for good cause shown the mental or physical condition of a party is in controversy, the court
and to prevent a failure of justice a party who fails to file and in which the action is pending may in its discretion order him to submit
serve a request for admission on the adverse party of material to a physical or mental examination by a physician. (1)
and relevant facts at issue which are, or ought to be, within the
personal knowledge of the latter, shall not be permitted to Section 2. Order for examination. The order for examination may be
present evidence on such facts made only on motion for good cause shown and upon notice to the
party to be examined and to all other parties, and shall specify the
time, place, manner, conditions and scope of the examination and the
RULE 27: PRODUCTION OR INSPECTION OF DOCUMENTS OR
person or persons by whom it is to be made. (2)
THINGS
Section 3. Report of findings. If requested by the party examined, the
Section 1. Motion for production or inspection; order. Upon motion of party causing the examination to be made shall deliver to him a copy of
any party showing good cause therefor, the court in which an action is a detailed written report of the examining physician setting out his
pending may (a) order any party to produce and permit the inspection findings and conclusions. After such request and delivery, the party
and copying or photographing, by or on behalf of the moving party, of causing the examination to be made shall be entitled upon request to
any designated documents, papers, books, accounts, letters, receive from the party examined a like report of any examination,
photographs, objects or tangible things, not privileged, which previously or thereafter made, of the same mental or physical
constitute or contain evidence material to any matter involved in the condition. If the party examined refuses to deliver such report, the

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 106


court on motion and notice may make an order requiring delivery on examined waives any privilege he may have in that action or
such terms as are just, and if a physician fails or refuses to make such any other involving the same controversy, regarding the
a report the court may exclude his testimony if offered at the trial. (3a) testimony of every other person who has examined or may
thereafter examine him in respect of the same mental or
Section 4. Waiver of privilege. By requesting and obtaining a report of physical examination.
the examination so ordered or by taking the deposition of the
examiner, the party examined waives any privilege he may have in that
RULE 29: REFUSAL TO COMPLY WITH MODES OF DISCOVERY
action or any other involving the same controversy, regarding the
testimony of every other person who has examined or may thereafter
examine him in respect of the same mental or physical examination. Section 1. Refusal to answer. If a party or other deponent refuses to
(4) answer any question upon oral examination, the examination may be
completed on other matters or adjourned as the proponent of the
WHAT ARE THE REQUIREMENTS FOR PHYSICAL AND MENTAL question may prefer. The proponent may thereafter apply to the proper
EXAMINATION OF PERSONS? court of the place where the deposition is being taken, for an order to
1. Mental or physical condition of person in controversy compel an answer. The same procedure may be availed of when a
2. Motion showing good cause must be filed party or a witness refuses to answer any interrogatory submitted under
3. Notice of the motion must be given to the party to be Rules 23 or 25.
examined and to all other parties
If the application is granted, the court shall require the refusing party
WHAT COURT SHALL HAVE THE POWER TO ISSUE AN ORDER FOR or deponent to answer the question or interrogatory and if it also finds
THE PHYSICAL OR MENTAL EXAMINATION OF A PARTY? that the refusal to answer was without substantial justification, it may
• The court where the action is pending shall specify the time, require the refusing party or deponent or the counsel advising the
manner and conditions and scope of examination, and the refusal, or both of them, to pay the proponent the amount of the
persons by whom it is to be made reasonable expenses incurred in obtaining the order, including
attorney's fees.
WHAT ARE THE RULES RE: RIGHTS OF THE PARTIES ON THE
REPORT? If the application is denied and the court finds that it was filed without
1. If requested by the party examined, the party causing the substantial justification, the court may require the proponent or the
examination to be made shall deliver to him a copy of a counsel advising the filing of the application, or both of them, to pay to
detailed written report of the examining physician setting out the refusing party or deponent the amount of the reasonable expenses
his findings and conclusions. incurred in opposing the application, including attorney's fees. (1a)
2. After such request and delivery, the party causing the
examination to be made shall be entitled upon request to Section 2. Contempt of court. If a party or other witness refuses to be
receive from the party examined a like report of any sworn or refuses to answer any question after being directed to do so
examination, previously or thereafter made, of the same by the court of the place in which the deposition is being taken, the
mental or physical condition. refusal may be considered a contempt of that court. (2a)
3. If the party examined refuses to deliver such report, the court
on motion and notice may make an order requiring delivery on Section 3. Other consequences. If any party or an officer or managing
such terms as are just agent of a party refuses to obey an order made under section 1 of this
4. If a physician fails or refuses to make such a report the court Rule requiring him to answer designated questions, or an order under
may exclude his testimony if offered at the trial. Rule 27 to produce any document or other thing for inspection,
5. By requesting and obtaining a report of the examination so copying, or photographing or to permit it to be done, or to permit entry
ordered or by taking the deposition of the examiner, the party upon land or other property or an order made under Rule 28 requiring

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 107


him to submit to a physical or mental examination, the court may motion and notice, may strike out all or any part of any pleading of that
make such orders in regard to the refusal as are just, and among party, or dismiss the action or proceeding or any part thereof, or enter
others the following: a judgment by default against that party, and in its discretion, order
him to pay reasonable expenses incurred by the other, including
(a) An order that the matters regarding which the questions were attorney's fees. (5)
asked, or the character or description of the thing or land, or the
contents of the paper, or the physical or mental condition of the party, Section 6. Expenses against the Republic of the Philippines.
or any other designated facts shall be taken to be established for the Expenses and attorney's fees are not to be imposed upon the Republic
purposes of the action in accordance with the claim of the party of the Philippines under this Rule. (6)
obtaining the order;
RULE 30: TRIAL
(b) An order refusing to allow the disobedient party to support or
oppose designated claims or defenses or prohibiting him from
introducing in evidence designated documents or things or items of Section 1. Notice of Trial. Upon entry of a case in the trial calendar,
testimony, or from introducing evidence of physical or mental the clerk shall notify the parties of the date of its trial in such manner
condition; as shall ensure his receipt of that notice at least five (5) days before
such date. (2a, R22)
(c) An order striking out pleadings or parts thereof, or staying further
proceedings until the order is obeyed, or dismissing the action or Section 2. Adjournments and postponements. A court may adjourn a
proceeding or any part thereof, or rendering a judgment by default trial from day to day, and to any stated time, as the expeditious and
against the disobedient party; and convenient transaction of business may require, but shall have no
power to adjourn a trial for a longer period than one month for each
(d) In lieu of any of the foregoing orders or in addition thereto, an order adjournment nor more than three months in all, except when
directing the arrest of any party or agent of a party for disobeying any authorized in writing by the Court Administrator, Supreme Court. (3a,
of such orders except an order to submit to a physical or mental R22)
examination. (3a)
Section 3. Requisites of motion to postpone trial for absence of
Section 4. Expenses on refusal to admit. If a party after being served evidence. A motion to postpone a trial on the ground of absence of
with a request under Rule 26 to admit the genuineness of any evidence can be granted only upon affidavit showing the materiality or
document or the truth of any matter of fact serves a sworn denial relevancy of such evidence, and that due diligence has been used to
thereof and if the party requesting the admissions thereafter proves the procure it. But if the adverse party admits the facts to be given in
genuineness of such document or the truth of any such matter of fact, evidence, even if he objects or reserves the right to object to their
he may apply to the court for an order requiring the other party to pay admissibility, the trial shall not be postponed. (4a, R22; Bar Matter No.
him the reasonable expenses incurred in making such proof, including 803, 21 July 1998)
attorney's fees. Unless the court finds that there were good reasons for
the denial or that admissions sought were of no substantial Section 4. Requisites of motion to postpone trial for illness of party
importance, such order shall be issued. (4a) or counsel. A motion to postpone a trial on the ground of illness of a
party or counsel may be granted if it appears upon affidavit or sworn
Section 5. Failure of party to attend or serve answers. If a party or an certification that the presence of such party or counsel at the trial is
officer or managing agent of a party wilfully fails to appear before the indispensable and that the character of his illness is such as to render
officer who is to take his deposition, after being served with a proper his non-attendance excusable. (5a, R22)
notice, or fails to serve answers to interrogatories submitted under
Rule 25 after proper service of such interrogatories, the court on Section 5. Order of trial. Subject to the provisions of section 2 of Rule

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 108


31, and unless the court for special reasons otherwise directs, the trial stenographic notes. (3a, R30)
shall be limited to the issues stated in the pre-trial order and shall
proceed as follows: Section 8. Suspension of actions. The suspension of actions shall be
governed by the provisions of the Civil Code. (n)
(a) The plaintiff shall adduce evidence in support of his complaint;
Section 9. Judge to receive evidence; delegation to clerk of court.
(b) The defendant shall then adduce evidence in support of his defense, The judge of the court where the case is pending shall personally
counterclaim, cross-claim and third-party complaints; receive the evidence to be adduced by the parties. However, in default
or ex parte hearings, and in any case where the parties agree in
(c) The third-party defendant if any, shall adduce evidence of his writing, the court may delegate the reception of evidence to its clerk of
defense, counterclaim, cross-claim and fourth-party complaint; court who is a member of the bar. The clerk of court shall have no
power to rule on objections to any question or to the admission of
(d) The fourth-party, and so forth, if any, shall adduce evidence of the exhibits, which objections shall be resolved by the court upon
material facts pleaded by them; submission of his report and the transcripts within ten (10) days from
termination of the hearing. (n)
(e) The parties against whom any counterclaim or cross-claim has been
pleaded, shall adduce evidence in support of their defense, in the order WHAT IS TRIAL?
to be prescribed by the court; • It is an examination before a competent tribunal of the facts or
laws put to issue in a case for the purpose of determining the
(f) The parties may then respectively adduce rebutting evidence only, issue
unless the court, for good reasons and in the furtherance of justice,
permits them to adduce evidence upon their original case; and WHAT IS THE ORDER OF TRIAL?
1. After the clerk of court has placed in the trial calendar, the
(g) Upon admission of the evidence, the case shall be deemed case shall be set for trial and notice will be given at least 5
submitted for decision, unless the court directs the parties to argue or days from notice to prepare
to submit their respective memoranda or any further pleadings. 2. The plaintiff shall present evidence in support of his
complaint—the plaintiff shall present in the stage allotted for
If several defendants or third-party defendants, and so forth, having him
separate defenses appear by different counsel, the court shall 3. The defendant shall adduce evidence with respect to defense,
determine the relative order of presentation of their evidence. (1a, R30) counterclaim, cross-claim and third-party complaints
4. The third-party defendant, if any, shall adduce evidence in
Section 6. Agreed statement of facts. The parties to any action may support of his defense, counterclaim, cross-claim, and fourth-
agree, in writing, upon the facts involved in the litigation, and submit party complaint, if any
the case for judgment on the facts agreed upon, without the 5. The fourth-party defendant, if any, shall adduce evidence of
introduction of evidence. the material facts pleaded by them
6. The parties against whom any counterclaim or cross-claim has
If the parties agree only on some of the facts in issue, the trial shall be been pleaded, shall adduce evidence in support of their
held as to the disputed facts in such order as the court shall prescribe. defense, in the order prescribed by the court
(2a, R30) 7. The parties may then produce rebutting evidence unless the
court in furtherance of justice and for good reasons, permits
Section 7. Statement of judge. During the hearing or trial of a case them to adduce evidence upon their original case
any statement made by the judge with reference to the case, or to any 8. Upon admission of the evidence, the case shall be deemed
of the parties, witnesses or counsel, shall be made of record in the submitted for decision

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 109


III. The Clerk of Court, under the direct supervision of the Judge, must
WHAT IS THE EFFECT IF THERE IS AN AGREED STATEMENT OF comply with Rule 20 of the 1997 Rules of Civil Procedure regarding the
FACTS BY THE PARTIES? calendar of cases.
• The parties to any action may agree, in writing, upon the facts
involved in the litigation, and submit the case for judgment on IV. There should be strict adherence to the policy on avoiding
the facts agreed upon, without the introduction of evidence. postponements and needles delay.
• If the parties agree only on some of the facts in issue, the trial
shall be held as to the disputed facts in such order as the Sections 2, 3 and 4 of Rule 30, 1997 Rules on Civil Procedure on
court shall prescribe. adjournments and postponements and on the requisites of a motion to
postpone trial for absence of evidence or for illness or a party or
ADMINISTRATIVE CIRCULAR NO. 3-99 January 15, 1999 counsel should be faithfully observed.
STRICT OBSERVANCE OF SESSION HOURS OF TRIAL COURTS AND
EFFECTIVE MANAGEMENT OF CASES TO ENSURE THEIR SPEEDY Lawyers as officers of the court, are enjoined to cooperate with judges
DISPOSITION to ensure swift disposition of cases.

To insure speedy disposition of cases, the following guidelines must be V. The mandatory continuous trial system in civil cases contemplated
faithfully observed: in Administrative Circular No. 4, dated 22 September 1988, and the
guidelines provided for in Circular No. 1-89, dated 19 January 1989,
I. The session hours of all Regional Trial Courts, Metropolitan Trial must be effectively implemented. For expediency, these guidelines in
Courts, Municipal Trial Courts in Cities, Municipal Trial Courts and civil cases are hereunder restated with modifications, taking into
Municipal Circuit Trial Courts shall be from 8:30 A.M. to noon and from account the relevant provisions of the 1997 Rules of Civil Procedure:
2:00 P.M. to 4:30 P.M. from Monday to Friday. The hours in the
morning shall be devoted to the conduct of trial, while the hours in the A. Pre-Trial
afternoon shall be utilized for (1) the conduct of pre-trial conferences;
(2) writing of decisions, resolutions, or orders; or (3) the continuation 1. Within five (5) days after the last pleading joining the issues has
of trial on the merits, whenever rendered necessary, as may be been filed and served, the plaintiff must move ex parte that the case be
required by the Rules of Court, statutes, or circular in specified cases. set for pre-trial conference.

However, in multi-sala courts in places where there are few practicing 2. The parties shall submit, at least three (3) days before the
lawyers, the schedule may be modified upon request of the Integrated conference, pre-trial briefs containing the following:
Bar of the Philippines such that one-half of the branches may hold their
trial in the morning and the other half in the afternoon. a. A statement of their willingness to enter into an amicable settlement
indicating the desired terms thereof, or to submit the case to any of
Except those requiring immediate action, all motions should be the alternative modes of dispute resolution;
scheduled for hearing on Friday afternoons, or if Friday is a non-
working day, in the afternoon of the next business day. The b. A summary of admitted facts and proposed stipulation of facts;
unauthorized practice of some judges of entertaining motions or
setting them for hearing on any other day or time must be immediately c. The issues to be tried or resolved;
stopped.
d. The number and names of the witnesses to be presented, an
II. Judges must be punctual at all times. abstract of their testimonies, and the appropriate number of hours that
will be required by the parties for the presentation of their respective
evidence;

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 110


e. If trial is necessary, the judge shall fix the trial dates required to
e. Copies of all documents intended to be presented with a statement complete presentation of evidence by both parties within ninety (90)
of the purposes of their offer; days from the date of initial hearing.

f. A manifestation of their having availed or their intention to avail 5. After the pre-trial conference, the judge should not fail to prepare
themselves of any discovery procedure, or of the need of referral of any and issue the requisite pre-trial order, which shall embody the matters
issues to commissioners; mentioned in Sec. 7, Rule 18 of the 1997 Rules of Civil Procedure.

g. Applicable laws and jurisprudence; 6. Failure of the plaintiff to appear at the pre-trial shall be a cause for
dismissal of the action. A similar failure of the defendant shall be a
h. The available trial dates of counsel for complete presentation of cause to allow the plaintiff to present his evidence ex-parte and the
evidence, which must be within a period of three months from the first court to render judgement on the basis thereof.
day of trial.
7. Failure to file pre-trial briefs shall have the same effect as failure to
3. Before the pre-trial conference, the judge must study the pleadings appear at the pre-trial.
of every case, and determine the issues thereof and the respective
positions of the parties thereon to enable him to intelligently steer the 8. The judge should encourage the effective use of pre-trial discovery
parties toward a possible amicable settlement of the case or, at the procedures (Administrative Circular No. 1 dated 28 January 1988, 2.1)
very least, to help reduce and limit the issues. The judge should avoid
the undesirable practice of terminating the pre-trial as soon as the B. Trial
parties have indicated that they cannot settle the controversy. He must
be mindful that there are other important aspects of the pre-trial that 1. Unless the docket of the court requires otherwise, not more than
ought to be taken up to expedite the disposition of the case. four (4) cases shall be scheduled for trial daily.

4. At the pre-trial conference, the following shall be done: 2. The Presiding Judge shall make arrangements with the prosecutor
and the Public Attorneys Office (PAO) so that a relief prosecutor and a
a. The judge will all tact, patience and impartiality shall endeavor to PAO attorney are always available in case the regular prosecutor or
persuade the parties to arrive at a settlement of the dispute; if no (PAO) attorneys are absent.
amicable settlement is reached, then he must effectively direct the
parties toward the achievement of the other objectives or goals of pre- 3. Contingency measures must likewise be taken for any unexpected
trial set forth in Section 2, Rule 18, 1997 Rules of Civil Procedure. absence of the stenographer and other support staff assisting in the
trial.
b. If warranted by the disclosures at the pre-trial, the judge may either
forthwith dismiss the action, or determine the propriety of rendering a 4. The issuance and service of subpoenae shall be done in accordance
judgement on the pleadings or a summary judgement. with Administrative Circular No. 4 dated 22 September 1988.

c. The judge shall define the factual issues arising from the pleadings 5. The judge shall conduct trial with utmost dispatch, with judicious
and endeavor to cull the material issues. exercise of the courts power to control trial proceedings to avoid delay.

d. If only legal issues are presented, the judge shall require the parties 6. The judge must take notes of the material and relevant testimonies
to submit their respective memoranda and thereafter render judgment. of witnesses to facilitate his decision-making.

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 111


7. The trial shall be terminated within ninety (90) days from initial
hearing. Appropriate disciplinary sanctions may be imposed on the Section 1. Consolidation. When actions involving a common question
judge and the lawyers for failure to comply with this requirement due of law or fact are pending before the court, it may order a joint hearing
to causes attributable to them. or trial of any or all the matters in issue in the actions; it may order all
the actions consolidated, and it may make such orders concerning
8. Each party is bound to complete the presentation of his evidence proceedings therein as may tend to avoid unnecessary costs or delay.
within the dates assigned to him. After the lapse of said dates, the (1)
party is deemed to have completed the presentation of evidence.
However, upon verified motion based on compelling reasons, the judge Section 2. Separate trials. The court, in furtherance of convenience or
may allow a party additional trial dates in the afternoon; provided that to avoid prejudice, may order a separate trial of any claim, cross-claim,
said extension will not go beyond the three-month limit computed from counterclaim, or third-party complaint, or of any separate issue or of
the first trial date except when authorized in writing by the Court any number of claims, cross-claims, counterclaims, third-party
Administrator, Supreme Court. complaints or issues. (2a)

VI. All trial judges must strictly comply with Circular No. 38-98, WHAT ARE THE MODES OF CONSOLIDATING ACTIONS?
entitled "Implementing the Provisions of Republic Act No. 8493" ("An 1. Recasting the cases already instituted, conducting only one
Act to Ensure a Speedy Trial of All Cases Before the Sandiganbayan, hearing and rendering only one decision
Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court in 2. The existing cases are consolidated, only one hearing is held
Cities, Municipal Trial Court, and Municipal Circuit Trial Court, and only one decision is rendered
Appropriating Funds Therefor, and for Other Purposes") issued by the 3. Without recasting or consolidating the cases, the principal one
Honorable Chief Justice Andres R. Narvasa on 11 August 1998 and is heard, the hearing on the others being suspended until
which took effect on 15 September 1998. judgment has been rendered on the first case

VII. WHEN IS CONSOLIDATION PROPER?


• When actions involving a common question of law or fact are
1. As a constant reminder of what cases must be decided or resolved, pending before the court
the judge must keep a calendar of cases submitted for decision, noting • A joint hearing becomes a matter of duty if two or more cases
therein the exact day, month and year when the 90-day period is are tried before the same judge or even if filed with the
expire. As soon as a case is submitted for decision, it must be noted in different branches of the same court of first instance, provided
the calendar of the judge; moreover, the records shall be duly collated one of the cases hasn't been partially tried
with the exhibits and the transcripts of stenographic notes, as well as o However, the fact that one case has already been
the trial notes of the judge, and placed in the judge's chamber. partially tried should not justify the refusal of the trial
judge in consolidating the same with the other case if
2. In criminal cases, the judge will do well to announce in open court at the evidence already submitted to the said judge in
the termination of the trial the date of the promulgation of the decision, the first case could be submitted as part of the
which should be set within 90 days from the submission of the case for evidence in the second case, without further need of
decision. re-taking the testimonies of the witnesses, if both
cases involve the same parties, the same subject
3. All Judges must scrupulously observe the period prescribed in matter and the same issues
Section 15, Article VIII of the Constitution.
WITHIN WHAT PERIOD SHOULD THE ACTIONS BE CONSOLIDATED?
• There is no period because it can be done even for the first
RULE 31: CONSOLIDATION OR SEVERANCE
time on appeal

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 112


question involved therein;


AT WHAT CIRCUMSTANCES MAY THE COURT ORDER A SEPARATE
TRIAL OF ANY CLAIM? (b) When the taking of an account is necessary for the information of
• The court, in furtherance of convenience or to avoid prejudice, the court before judgment, or for carrying a judgment or order into
may order a separate trial of any claim, cross-claim, effect.
counterclaim, or third-party complaint, or of any separate
issue or of any number of claims, cross-claims, counterclaims, (c) When a question of fact, other than upon the pleadings, arises upon
third-party complaints or issues. motion or otherwise, in any stage of a case, or for carrying a judgment
• In view of the liberal provisions of the Rules of Court regarding or order into effect. (2a, R33)
joinder of causes of action and permissive joinder of parties, a
single action may involve several actions, some of which only Section 3. Order of reference; powers of the commissioner. When a
affect certain parties thereto reference is made, the clerk shall forthwith furnish the commissioner
with a copy of the order of reference. The order may specify or limit the
CONSOLIDATION DISTINGUISHED FROM SEVERANCE powers of the commissioner, and may direct him to report only upon
• Consolidation—involves separate actions having a common particular issues, or to do or perform particular acts, or to receive and
question of law or fact which may be jointly tried report evidence only and may fix the date for beginning and closing the
• Severance—contemplates a single action having a number of hearings and for the filing of his report. Subject to other specifications
claims, counterclaims, cross-claims, third party complaints, or and limitations stated in the order, the commissioner has and shall
issues which may be separately tried exercise the power to regulate the proceedings in every hearing before
him and to do all acts and take all measures necessary or proper for
ASSUMPTION: THERE WAS PROPER JOINDER OF PLAINTIFFS AND the efficient performance of his duties under the order. He may issue
PROPER JOINDER OF DEFENDANTS. HOW IS THIS CONNECTED subpoenas and subpoenas duces tecum, swear witnesses, and unless
WITH CONSOLIDATION? otherwise provided in the order of reference, he may rule upon the
• The parties in the consolidated cases can be different. admissibility of evidence. The trial or hearing before him shall proceed
• There could be the same questions of facts and laws involved. in all respects as it would if held before the court. (3a, R33)
• This should happen in the same court
Section 4. Oath of commissioner. Before entering upon his duties the
commissioner shall be sworn to a faithful and honest performance
RULE 32: TRIAL BY COMMISSIONER
thereof. (14, R33)

Section 1. Reference by consent. By written consent of both parties, Section 5. Proceedings before commissioner. Upon receipt of the
the court may order any or all of the issues in a case to be referred to a order of reference and unless otherwise provided therein, the
commissioner to be agreed upon by the parties or to be appointed by commissioner shall forthwith set a time and place for the first meeting
the court. As used in these Rules, the word "commissioner" includes a of the parties or their counsel to be held within ten (10) days after the
referee, an auditor and an examiner. (1a, R33) date of the order of reference and shall notify the parties or their
counsel. (5a, R33)
Section 2. Reference ordered on motion. When the parties do not
consent, the court may, upon the application of either or of its own Section 6. Failure of parties to appear before commissioner. If a
motion, direct a reference to a commissioner in the following cases: party fails to appear at the time and place appointed, the
commissioner may proceed ex parte or, in his discretion, adjourn the
(a) When the trial of an issue of fact requires the examination of a long proceedings to a future day, giving notice to the absent party or his
account on either side, in which case the commissioner may be counsel of the adjournment. (6a, R33)
directed to hear and report upon the whole issue or any specific

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 113


Section 7. Refusal of witness. The refusal of a witness to obey a apportioned, as justice requires. (13, R33)
subpoena issued by the commissioner or to give evidence before him,
shall be deemed a contempt of the court which appointed the WHAT IS THE EFFECT OF REFERENCE WITHOUT CONSENT?
commissioner. (7a R33) • An irregularity in the appointment of a commissioner must be
reasonably raised in the trial court where the defect could still
Section 8. Commissioner shall avoid delays. It is the duty of the be rendered, either before the parties proceed with the hearing
commissioner to proceed with all reasonable diligence. Either party, on or before the court hands down the ruling
notice to the parties and commissioner, may apply to the court for an • It is a procedural point that can be waived by consent of the
order requiring the commissioner to expedite the proceedings and to parties, express or implied
make his report. (8a, R33) • If the errors in procedure are not prejudicial to the parties
because there is no proof that the commissioner committed
Section 9. Report of commissioner. Upon the completion of the trial any mistake or abuse in the performance of the task entrusted
or hearing or proceeding before the commissioner, he shall file with the to him, the holding of a new trial by reason thereof alone isn’t
court his report in writing upon the matters submitted to him by the justified
order of reference. When his powers are not specified or limited, he
shall set forth his findings of fact and conclusions of law in his report. HOW IS REFERENCE MADE WITH CONSENT OF BOTH PARTIES?
He shall attach thereto all exhibits, affidavits, depositions, papers and  Any or all of the issues in a case to be agreed upon by the
the transcript, if any, of the testimonial evidence presented before him. parties
(9a, R33)  This still leaves room for the judge because it is still him that
has to make the final decision and furthermore, it is only the
Section 10. Notice to parties of the filing of report. Upon the filing of factual issues that is tackled by the commissioner
the report, the parties shall be notified by the clerk, and they shall be
allowed ten (10) days within which to signify grounds of objections to WHAT ARE THE SPECIAL CIVIL ACTIONS & SPECIAL PROCEEDINGS
the findings of the report, if they so desire. Objections to the report IN WHICH COMMISSIONERS ARE APPOINTED?
based upon grounds which were available to the parties during the 1. Eminent domain
proceedings before the commissioner, other than objections to the 2. Partition of real estate
findings and conclusions therein, set forth, shall not be considered by 3. Trial of contested claims
the court unless they were made before the commissioner. (10, R33)
IN WHAT CASES CAN THE COURT APPOINT A COMMISSIONER,
Section 11. Hearing upon report. Upon the expiration of the period of EITHER MOTU PROPIO AT THE MOTION OF EITHER PARTY?
ten (10) days referred to in the preceding section, the report shall be 1. When the trial of an issue of fact requires the examination of a
set for hearing, after which the court shall issue an order adopting, long account on either side, in which case the commissioner
modifying, or rejecting the report in whole or in part, or recommitting it may be directed to hear and report upon the whole issue or
with instructions, or requiring the parties to present further evidence any specific question involved therein;
before the commissioner or the court. (11a, R33) 2. When the taking of an account is necessary for the information
of the court before judgment, or for carrying a judgment or
Section 12. Stipulations as to findings. When the parties stipulate order into effect.
that a commissioner's findings of fact shall be final, only questions of 3. When a question of fact, other than upon the pleadings, arises
law shall thereafter be considered. (12a, R33) upon motion or otherwise, in any stage of a case, or for
carrying a judgment or order into effect.
Section 13. Compensation of commissioner. The court shall allow the NOTE: the above issues that the judge himself can also do but to
commissioner such reasonable compensation as the circumstances of expedite the process, there is a reference to a commissioner
the case warrant, to be taxed as costs against the defeated party, or

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 114


HOW ARE QUESTIONS OF FACT ARISING UPON MOTION RESOLVED? 2. The commissioner takes his oath
• Evidence on motion is presented by evidence by affidavits or 3. Proceedings before the commissioner—he shall receive
dispositions or by oral testimony evidence with respect to the issues given to him
4. He will file his report with the clerk of court
BY WHAT MODE CAN THERE BE TRIAL BY COMMISSIONER? 5. Upon receipt of the report, the clerk of court shall attach it to
1. Reference by consent the records of the case
2. Motion to refer to commissioner—one of the parties object to a 6. The clerk of the court shall notify the parties about the filing of
reference the commissioner’s report
3. Reference by motu propio 7. Within 10 days, the parties are allowed to object to any finding
of the commissioner
WHAT MAY THE ORDER OF REFERENCE SPECIFY? 8. After the lapse of the 10 days, the report shall be set for
1. May specify or limit the powers of the commissioner hearing, after which, the court shall adopt, modify, or reject
2. May direct him to report only upon particular issues the report in whole or in part, or recommitting it with
3. May direct him to do or perform particular acts instructions, or require parties to present further evidence
4. To receive and report evidence only before the commissioner or the court
5. May fix the date for beginning and closing the hearings and for 9. When the parties then stipulate that the findings of fact shall
the filing of his report be final, only questions of law shall thereafter be considered

WHAT ARE POWERS TO BE EXERCISED BY THE COMMISSIONER?


RULE 33: DEMURRER TO EVIDENCE
1. The power to regulate the proceedings in every hearing before
him
2. Power to do all acts and take all measures necessary or proper Section 1. Demurrer to evidence. After the plaintiff has completed the
for the efficient performance of his duties under the order presentation of his evidence, the defendant may move for dismissal on
3. He may issue subpoenas and subpoenas duces tecum, the ground that upon the facts and the law the plaintiff has shown no
4. He may swear witnesses right to relief. If his motion is denied he shall have the right to present
5. Unless otherwise provided in the order of reference, he may evidence. If the motion is granted but on appeal the order of dismissal
rule upon the admissibility of evidence is reversed he shall be deemed to have waived the right to present
6. The trial or hearing before him shall proceed in all respects as evidence. (1a, R35)
it would if held before the court
WHAT IS A DEMURRER TO EVIDENCE?
WHAT IS THE UNDERLYING PRINCIPLE REGARDING THE POWER OF • It is a motion to dismiss the case filed by the defense after the
THE COMMISSIONER? prosecution rests on the ground of insufficiency of the
• His powers are an extension of the judge’s power evidence of the prosecution
• The proceedings before him is an extension of the trial • It has been said that a motion to dismiss under the Rules of
proceedings Court takes place of a demurrer, which pleading raised
questions of law as to sufficiency of the pleading apparent on
WHAT IS THE EFFECT OF FAILURE TO NOTIFY PARTIES? the face thereof
• The failure to grant the parties in due form the opportunity to • In the same manner as a demurrer, a motion to dismiss
object to the report may in some instances constitute a grave presents squarely before the court a question as to the
error in violation of the substantial rights of the parties sufficiency of the facts alleged therein to constitute a cause of
action
SUMMARY OF PROCEEDINGS BEFORE A COMMISSIONER
1. Order of reference is given to the commissioner WHEN CAN THE DEFENDANT FILE A DEMURRER TO EVIDENCE?

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 115


• After the plaintiff has finished presentation of evidence

WHAT CAN THE DEFENDANT DO AFTER THE PRESENTATION OF


EVIDENCE OF THE PLAINTIFF?
1. He can file a demurrer to evidence on the basis that the facts
and law presented by the plaintiff has not shown any right to
relief
Affirming
2. The defendant may present evidence on his own behalf unless
he has waived the same
Plaintiff
Granted appeals CA/SC
IS THERE A NEED TO FILE A MOTION FOR LEAVE OF COURT?
The
• No. The rules don't require. plaintiff
Demurrer Reversing
wins the
case
WHAT IS THE REMEDY OF THE ACCUSED IF THE DEMURRER TO Defense
EVIDENCE IS DENIED? will
Denied
present
• As a general rule, there can be no appeal or certiorari on the evidence
denial of the demurrer to evidence, since it is an interlocutory
order which doesn’t pass judgment on the merits of the case

WHAT WOULD HAPPEN IF THE MOTION IS GRANTED BUT ON


APPEAL, THE ORDER OF DISMISSAL IS REVERSED?
• He shall be deemed to have waived the right to present
evidence
WHY IS THE DEFENDANT PENALIZED WHEN ON APPEAL, THE
DEMURRER IS REVERSED?
• This is to discourage the filing of demurrer to evidence
• If you have strong evidence for your defense, then present it

WHAT HAPPENS TO THE COUNTERCLAIMS WHEN THERE IS


DEMURRER TO EVIDENCE?
• The dismissal of the complaint is the only one affected and the
other claims shall proceed

DIFFERENCE BETWEEN DEMURRER IN EVIDENCE IN CIVIL AND


CRIMINAL CASES.
CRIMINAL CASES CIVIL CASES
LEAVE OF COURT With or without leave No need for leave of
of court court
GRANT OF No appeal as there Appealable
DEMURRER TO will be double
EVIDENCE jeopardy
DENIAL OF It depends if there Defense will be able
DEMURRER OF was leave or without to present its

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 116


EVIDENCE leave of court: evidence JUDGMENT ON THE SUMMARY


PLEADINGS JUDGMENT
If without leave, TENDER OF ISSUE The answer doesn’t The answer tenders
defense may not tender an issue at all an issue but after
present evidence any admissions,
longer affidavits, and
depositions, it is
If with leave, then he found there is no
can file genuine issue
presented (it might
have been fictitious,
RULE 34: JUDGMENT ON THE PLEADINGS
sham, etc.)
REQUIREMENT FOR At least 3 days before At least 10 day notice
Section 1. Judgment on the pleadings. Where an answer fails to FILING OF MOTION intended time for before the intended
tender an issue, or otherwise admits the material allegations of the hearing time for hearing
adverse party's pleading, the court may; on motion of that party, direct REMEDY IF Appeal Appeal
judgment on such pleading. However, in actions for declaration of GRANTED
nullity or annulment of marriage or for legal separation, the material GRANT/DENIAL Whether there is no As to whether after
facts alleged in the complaint shall always be proved. (1a, R19) genuine factual issue the presentment of
affidavits,
WHEN CAN A MOTION FOR JUDGMENT ON THE PLEADINGS BE admissions, and
FILED? depositions, there is
1. When the answer hasn't tendered an issue any genuine issue
2. When the answer admits the material allegations of the presented
adverse party’s pleading APPLICABILITY Not allowed in To all cases except in
a. This happens when there are general denials in the annulment and legal annulment and legal
answer separation cases as separation cases, and
well as in the case of in the case of
WHEN IS JUDGMENT ON THE PLEADINGS NOT ALLOWED? unliquidated unliquidated
1. When the answer has tendered an issue damages damages
2. With respect to unliquidated damages
3. When the answer does not admit the material allegations of the
adverse party’s pleading RULE 35: SUMMARY JUDGMENTS
4. When it is an action for declaration of nullity or annulment of
marriage or for legal separation Section 1. Summary judgment for claimant. A party seeking to
recover upon a claim, counterclaim, or cross-claim or to obtain a
NOTE: Judgment on the pleadings is the fastest way to terminate declaratory relief may, at any time after the pleading in answer thereto
proceedings compared to demurrer to evidence and summary has been served, move with supporting affidavits, depositions or
judgments. admissions for a summary judgment in his favor upon all or any part
thereof. (1a, R34)
WHAT IS THE DIFFERENCE BETWEEN A JUDGMENT ON THE
PLEADINGS AND A SUMMARY JUDGMENT? Section 2. Summary judgment for defending party. A party against

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 117


whom a claim, counterclaim, or cross-claim is asserted or a contempt. (6a, R34)


declaratory relief is sought may, at any time, move with supporting
affidavits, depositions or admissions for a summary judgment in his WHEN MAY CLAIMANT MOVE FOR A SUMMARY JUDGMENT?
favor as to all or any part thereof. (2a, R34) • A party seeking to recover upon a claim, counterclaim, or
cross-claim or to obtain a declaratory relief may, at any time
Section 3. Motion and proceedings thereon. The motion shall be after the pleading in answer thereto has been served, move
served at least ten (10) days before the time specified for the hearing. with supporting affidavits, depositions or admissions for a
The adverse party may serve opposing affidavits, depositions, or summary judgment in his favor upon all or any part thereof.
admissions at least three (3) days before the hearing. After the hearing,
the judgment sought shall be rendered forthwith if the pleadings, WHEN MAY DEFENDING PARTY MOVE FOR SUMMARY JUDGMENT?
supporting affidavits, depositions, and admissions on file, show that, • A party against whom a claim, counterclaim, or cross-claim is
except as to the amount of damages, there is no genuine issue as to asserted or a declaratory relief is sought may, at any time,
any material fact and that the moving party is entitled to a judgment as move with supporting affidavits, depositions or admissions for
a matter of law. (3a, R34) a summary judgment in his favor as to all or any part thereof.

Section 4. Case not fully adjudicated on motion. If on motion under UPON WHICH MAY A SUMMARY JUDGMENT BE RENDERED IN
this Rule, judgment is not rendered upon the whole case or for all the FAVOR OF EITHER PARTY?
reliefs sought and a trial is necessary, the court at the hearing of the • Based on supporting affidavits, depositions or admissions
motion, by examining the pleadings and the evidence before it and by
interrogating counsel shall ascertain what material facts exist without WHEN MAY SUMMARY JUDGMENT BE RESORTED TO?
substantial controversy and what are actually and in good faith • When there are no questions of fact in issue and the material
controverted. It shall thereupon make an order specifying the facts that allegations are not disputed
appear without substantial controversy, including the extent to which • Where the defense interposed by defendant is not a valid
the amount of damages or other relief is not in controversy, and defense
directing such further proceedings in the action as are just. The facts
so specified shall be deemed established, and the trial shall be WHAT IS THE BASIS FOR FILING FOR SUMMARY JUDGMENT?
conducted on the controverted facts accordingly. (4a, R34) • If the pleadings, supporting affidavits, depositions, and
admissions on file, show that, except as to the amount of
Section 5. Form of affidavits and supporting papers. Supporting and damages, there is no genuine issue as to any material fact and
opposing affidavits shall be made on personal knowledge, shall set that the moving party is entitled to a judgment as a matter of
forth such facts as would be admissible in evidence, and shall show law
affirmatively that the affiant is competent to testify to the matters • In other words, there is lack of any genuine factual issue
stated therein. Certified true copies of all papers or parts thereof
referred to in the affidavit shall be attached thereto or served WHAT ARE THE REQUISITES FOR A SUMMARY JUDGMENT?
therewith. (5a, R34) 1. There must be no genuine issue as to any material fact except
as to damages
Section 6. Affidavits in bad faith. Should it appear to its satisfaction 2. The party presenting the motion for summary judgment must
at any time that any of the affidavits presented pursuant to this Rule be entitled to judgment as a matter of law
are presented in bad faith, or solely for the purpose of delay, the court
shall forthwith order the offending party or counsel to pay to the other WHAT IS THE EXTENT OF THE COURT’S POWER RE: MOTION FOR
party the amount of the reasonable expenses which the filing of the SUMMARY JUDGMENT?
affidavits caused him to incur including attorney's fees, it may, after • The court is merely expected to act chiefly on the basis of what
hearing further adjudge the offending party or counsel guilty of is in the records of the case and that hearing contemplated is

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 118


not de riguer as the purpose is merely to determine whether controversy, and directing such further proceedings in the
the issues are genuine or not, and not to receive evidence on action as are just. The facts so specified shall be deemed
the issues set up on the pleadings established, and the trial shall be conducted on the
controverted facts accordingly.
WHEN SHALL THE MOTION FOR SUMMARY JUDGMENT BE FILED
AND WHAT IS THE PROCEDURE FOR FILING? WHAT IS THE EFFECT OF A PARTIAL SUMMARY JUDGMENT?
• The motion shall be served at least ten (10) days before the • It is deemed interlocutory and not final judgment
time specified for the hearing. The adverse party may serve
opposing affidavits, depositions, or admissions at least three AFTER SUMMARY JUDGMENT, WHAT SHOULD THE COURT DO?
(3) days before the hearing. • Assess the amount of damages
• After the hearing, the judgment sought shall be rendered
forthwith if the pleadings, supporting affidavits, depositions, HOW SHOULD AFFIDAVITS BE FORMED?
and admissions on file, show that, except as to the amount of • Supporting and opposing affidavits shall be made on personal
damages, there is no genuine issue as to any material fact and knowledge, shall set forth such facts as would be admissible in
that the moving party is entitled to a judgment as a matter of evidence, and shall show affirmatively that the affiant is
law. competent to testify to the matters stated therein. Certified
true copies of all papers or parts thereof referred to in the
WHAT IS A GENUINE ISSUE? affidavit shall be attached thereto or served therewith.
• An issue of facts which call for the presentation of evidence as
distinguished from an issue which is fictitious, contrived or set WHAT IS THE CONSEQUENCE OF FILING AN AFFIDAVIT IN BAD
up in bad faith and patently unsubstantial so as not to FAITH?
constitute a genuine issue for trial • Should it appear to its satisfaction at any time that any of the
affidavits presented pursuant to this Rule are presented in bad
WHEN MAY SUMMARY JUDGMENT BE GRANTED OR DENIED? faith, or solely for the purpose of delay, the court shall
• After the hearing, the judgment sought shall be rendered forthwith order the offending party or counsel to pay to the
forthwith if the pleadings, supporting affidavits, depositions, other party the amount of the reasonable expenses which the
and admissions on file, show that, except as to the amount of filing of the affidavits caused him to incur including attorney's
damages, there is no genuine issue as to any material fact and fees, it may, after hearing further adjudge the offending party
that the moving party is entitled to a judgment as a matter of or counsel guilty of contempt
law.
AT WHAT CASES IS SUMMARY JUDGMENT NOT APPLICABLE?
WHAT IS DONE IF THE CASE IS NOT ADJUDICATED IN FULL UPON • In legal separation and annulment cases
MOTION?
• If on motion under this Rule, judgment is not rendered upon WHAT IS THE REMEDY FOR A GRANT OF SUMMARY JUDGMENT?
the whole case or for all the reliefs sought and a trial is • Appeal—summary judgment is a final judgment
necessary, the court at the hearing of the motion, by
examining the pleadings and the evidence before it and by CAN THERE BE SUMMARY JUDGMENT IF THERE EXISTS A THIRD-
interrogating counsel shall ascertain what material facts exist PARTY COMPLAINT?
without substantial controversy and what are actually and in • Yes because the same can proceed separately from the
good faith controverted. principal action anyway
• It shall thereupon make an order specifying the facts that
appear without substantial controversy, including the extent to
RULE 36: JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF
which the amount of damages or other relief is not in

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 119


entity without juridical personality, the judgment shall set out their
Section 1. Rendition of judgments and final orders. A judgment or individual or proper names, if known. (6a)
final order determining the merits of the case shall be in writing
personally and directly prepared by the judge, stating clearly and WHAT IS THE FORM OF A FINAL ORDER/JUDGMENT DETERMINING
distinctly the facts and the law on which it is based, signed by him, and THE MERITS OF A CASE?
filed with the clerk of the court. (1a) 1. It shall be in writing
2. It shall be personally and directly prepared by the judge
Section 2. Entry of judgments and final orders. If no appeal or motion 3. It must state clearly and distinctly the facts and the law on
for new trial or reconsideration is filed within the time provided in these which it is based
Rules, the judgment or final order shall forthwith be entered by the 4. It must be signed by the judge
clerk in the book of entries of judgments. The date of finality of the 5. It must be filed with the clerk of the court
judgment or final order shall be deemed to be the date of its entry. The
record shall contain the dispositive part of the judgment or final order WHAT CONSTITUTES THE RENDITION OF JUDGMENT?
and shall be signed by the clerk, within a certificate that such judgment • It is the filing with the clerk of court and not the signing of the
or final order has become final and executory. (2a, 10, R51) same, which constitutes the rendition or promulgation of
judgment
Section 3. Judgment for or against one or more of several parties.
Judgment may be given for or against one or more of several plaintiffs WHAT IS A JUDGMENT?
and for or against one or more of several defendants. When justice so • It is the final consideration and determination by a court of the
demands, the court may require the parties on each side to file rights of the parties as those rights which presently exist, upon
adversary pleadings as between themselves and determine their matters submitted in an action or proceeding
ultimate rights and obligations. (3)
WHAT IS AN OBITER DICTUM?
Section 4. Several judgments. In an action against several defendants, • It is an opinion expressed by a court upon some questions of
the court may, when a several judgment is proper, render judgment law which are not necessary to the decision of a case before it
against one or more of them, leaving the action to proceed against the
others. (4) WHAT IS THE DIFFERENCE BETWEEN ERROR IN JUDGMENT AND
ERROR IN JURISDICTION?
Section 5. Separate judgments. When more than one claim for relief is • An error in judgment is one which the court may commit in its
presented in an action, the court, at any stage, upon a determination of exercise of jurisdiction and which error is reversible by appeal,
the issues material to a particular claim and all counterclaims arising while error in jurisdiction is judgment rendered by a court,
out of the transaction or occurrence which is the subject matter of the tribunal, officer or board without or in excess of jurisdiction, or
claim, may render a separate judgment disposing of such claim. The with grave abuse of discretion which is tantamount to lack or
judgment shall terminate the action with respect to the claim so excess of jurisdiction, and which error is correctable through a
disposed of and the action shall proceed as to the remaining claims. In writ of certiorari
case a separate judgment is rendered the court by order may stay its
enforcement until the rendition of a subsequent judgment or WHAT ARE THE ESSENTIAL REQUISITES OF A VALID JUDGMENT?
judgments and may prescribe such conditions as may be necessary to 1. The court must have jurisdiction over the subject matter
secure the benefit thereof to the party in whose favor the judgment is 2. The court must have jurisdiction over the person of the
rendered. (5a) defendant or the res
3. The court must have jurisdiction over the issues
Section 6. Judgment against entity without juridical personality. 4. The court must render judgment after the hearing
When judgment is rendered against two or more persons sued as an

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 120


WHY IS THERE A NEEED TO MAKE FINDINGS OF FACT IN A announced, made known to the public or delivered to the clerk
JUDGMENT? of court for filing, coupled with notice to the parties or their
• A decision that doesn’t clearly and distinctly state the facts counsel
and the law on which it is based leaves the parties in the dark
as to how it was reached and especially prejudicial to the WHY IS THERE A NEED OF NOTICE OF THE JUDGMENT TO THE
losing party, who is unable to pinpoint the errors in the PARTIES?
judgment • This is so because there can be no binding judgment or order,
whether final or not, unless notice thereof is duly served on
WHAT IS THE EFFECT IF A JUDGMENT DOES NOT GIVE THE FACTS them by any of the modes prescribed to them by law
AND LAW UPON WHICH IT IS BASED?
• It is void WHAT IS THE REQUIREMENT FOR THE VALIDITY OF MEMORANDUM
DECISIONS?
WHAT IS THE MEANING OF STARE DECISIS ET NON QUIETA • The memorandum decision actually embodies the findings of
MOVERA? fact and conclusions of law of the lower court in an annex
• It means that once a case is decided by the SC which is the attached to and made an indispensible part of the decision
final arbiter of any justiciable controversy one way or another, • It cannot incorporate the findings of facts and conclusions of
then another case involving exactly the same point at issue law of the lower court by remote reference
should be decided in the same manner, unless otherwise
modified by the Supreme Court MAY A COURT RENDER A CONDITIONAL JUDGMENT?
• Adherence to precedence (jurisprudence set by the SC) but for • No, it must be rendered in its totality, resolving all interlocking
this to apply it must involve same issues issues in order to render justice to all concerned and to end
the litigation once and for all
WHAT ARE FINDINGS OF FACTS?
• They are statements of facts and not conclusions of law WHAT IS A SIN PERJUICIO JUDGMENT? IS IT BINDING?
• It is one that makes reservation in favor of some parties as to
WHAT IS THE TEST TO DETERMINE IF AN ORDER IS the right to do something in a separate and further
INTERLOCUTORY OR FINAL? proceedings
• Does it leave something else to be done by the trial court on • It is not a binding one
the case? If it does, then it is interlocutory. If it does not, then
it is final. MAY THE COURT RESERVE THE RIGHT OF A PARTY TO FILE
ANOTHER ACTION?
IS THE REQUIREMENT THAT THERE SHOULD BE FINDINGS OF • As a rule, no, except if the court is granted the power to give
FACTS APPLICABLE TO ALL DECISIONS OR ORDERS? an order or judgment without prejudice
• No, it does not apply to those which are interlocutory
WHAT IS THE EFFECT OF A JUDGMENT BASED ON A COMPROMISE
ARE THE REQUIREMENTS APPLICABLE BEFORE THE DEPARTMENT AGREEMENT?
OF LABOR AND EMPLOYMENT? • It has the force of law and is conclusive upon the parties
• No, the rules set forth herein are not applicable since the • It is not subject to appeal but the parties may amend or
proceedings before the DOLE are non-technical and non- modify the compromise agreement if there is the existence of
litigious palpable mistake, fraud, force or intimidation. Otherwise, it
cannot be modified or amended by the parties.
WHAT IS THE PROMULGATION OF THE DECISION?
• It is the process by which a decision is published, officially WHEN IS AN ERROR CLERICAL?

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 121


• If it doesn’t involve the exercise of judicial function modifications in order to harmonize the dispositions with the
prevailing circumstances
WHAT IS THE PERIOD TO RECKON WITH IN DETERMINING THE
DATE OF ENTRY OF JUDGMENT OR FINAL ORDER? STATE THE WHAT IS THE RULE ON IMMUTABILITY OF JUDGMENT?
PURPOSE OF THE RULE. • It simply means that a final judgment cannot be changed,
• The date of finality of the judgment or final order shall be modified, even if the purpose is to correct perceived erroneous
deemed to be the date of its entry conclusions of the facts and of law

WHY IS THERE A NEED FOR THE ENTRY OF JUDGMENT? WHAT ARE THE EXCEPTIONS TO IMMUTABILITY OF JUDGMENT?
• In order that there would be a reckoning point for the 1. Correction of clerical errors
reglementary period of 5 years to execute the same or 6 2. Making of nonc pro tunc entries which cause no prejudice to
months to file a petition for relief from judgment any party
3. Where the judgment is void
MAY A THIRD PERSON WHO IS NOT PRIVY TO A CASE JOIN A
COMPROMISE? MAY A COURT CLARIFY ITS JUDGMENT?
• Yes, he may submit to the jurisdiction of the court in order to • Yes, even if it has become final, it may clarify an ambiguity in
join the compromise and if there is a breach, he can be sued the judgment
• It may resort to the pleadings, court’s findings of facts and
WHAT IS THE EFFECT IF A JUDGMENT IS VOID? conclusions of law
• It is in legal effect no judgment by which no rights are
divested, from which no rights can be obtained, which neither MAY A JUDGMENT BE RENDERED FOR OR AGAINST ONE OR MORE
builds nor bars anyone and under which all acts are performed OF SEVERAL PARTIES AND IF SO, WHAT MAY THE COURT DO?
and all claims flowing out are void • Judgment may be for or against one or more of several
plaintiffs, and for or against one or more several defendants
WHAT IS THE EXCEPTION TO THE RULE THAT IF A DECISION IS
VOID, IT HAS NO LEGAL EFFECT AT ALL? WHAT IS ONE’S REMEDY WITH RESPECT TO A SEVERAL JUDGMENT
• Doctrine of operative facts (SEPARATE JUDGMENT)?
• To appeal if he disagrees
WHAT IS A MITTIMUS? • If he doesn’t appeal, it would become final and executory
• It is the final process of carrying into effect the decision of the
appellate court and the transmittal to the court a quo MAY A COURT RENDER A SEVERAL JUDGMENT?
• It is predicated upon the finality of the judgment • When more than one claim for relief is presented in an action,
the court, at any stage, upon a determination of the issues
MAY THE COURT CHANGE THE JUDGMENT? material to a particular claim and all counterclaims arising out
• Yes, before the lapse of the period to appeal, the judge can of the transaction or occurrence which is the subject matter of
change the judgment, or even make a new one the claim, may render a separate judgment disposing of such
• But once it becomes final, only clerical errors can be corrected claim
• Before it becomes final, the power to amend a judgment is
inherent in the court IF A JUDGMENT IS RENDERED AT ANY STAGE OF THE
PROCEEDINGS, MUST IT BE ENFORCED RIGHT AWAY?
IS THE RULE THAT THE JUDGMENT CANNOT BE CHANGED OR • Not necessary
MODIFIED AFTER IT HAS BECOMES FINAL, ABSOLUTE? • In case a separate judgment is rendered the court by order
• No, if there has been a supervening event, there can be may stay its enforcement until the rendition of a subsequent

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 122


judgment or judgments and may prescribe such conditions as or grounds therefor, a written notice of which shall be served by the
may be necessary to secure the benefit thereof to the party in movant on the adverse party.
whose favor the judgment is rendered
A motion for new trial shall be proved in the manner provided for proof
SITUATION: A COMMON CAUSE OF ACTION WAS BROUGHT of motion. A motion for the cause mentioned in paragraph (a) of the
AGAINST SPOUSES A AND B FOR SUM OF MONEY. JUDGMENT WAS preceding section shall be supported by affidavits of merits which may
RENDERED AGAINST A BY PARTIAL JUDGMENT. IS THE JUDGMENT be rebutted by affidavits. A motion for the cause mentioned in
A SEVERAL JUDGMENT? paragraph (b) shall be supported by affidavits of the witnesses by
• There is no several judgment as there was a single cause of whom such evidence is expected to be given, or by duly authenticated
action documents which are proposed to be introduced in evidence.
• A several judgment is proper only when the liability of each
party is clearly separable and distinct from that of his co- A motion for reconsideration shall point out a specifically the findings
parties, such that the claims against each of them could have or conclusions of the judgment or final order which are not supported
been the subject of separate suits, and judgment for or against by the evidence or which are contrary to law making express reference
will not necessarily affect the other to the testimonial or documentary evidence or to the provisions of law
• Where a common cause of action exists against the alleged to be contrary to such findings or conclusions.
defendants, as in actions against solidary debtors, a several
judgment is not proper. A pro forma motion for new trial or reconsideration shall not toll the
reglementary period of appeal. (2a)
RULE 37: NEW TRIAL OR RECONSIDERATIONS
Section 3. Action upon motion for new trial or reconsideration. The
trial court may set aside the judgment or final order and grant a new
Section 1. Grounds of and period for filing motion for new trial or trial, upon such terms as may be just, or may deny the motion. If the
reconsideration. Within the period for taking an appeal, the aggrieved court finds that excessive damages have been awarded or that the
party may move the trial court to set aside the judgment or final order judgment or final order is contrary to the evidence or law, it may
and grant a new trial for one or more of the following causes materially amend such judgment or final order accordingly. (3a)
affecting the substantial rights of said party:
Section 4. Resolution of motion. A motion for new trial or
(a) Fraud, accident, mistake or excusable negligence which ordinary reconsideration shall be resolved within thirty (30) days from the time
prudence could not have guarded against and by reason of which such it is submitted for resolution. (n)
aggrieved party has probably been impaired in his rights; or
Section 5. Second motion for new trial. A motion for new trial shall
(b) Newly discovered evidence, which he could not, with reasonable include all grounds then available and those not so included shall be
diligence, have discovered and produced at the trial, and which if deemed waived. A second motion for new trial, based on a ground not
presented would probably alter the result. existing nor available when the first motion was made, may be filed
within the time herein provided excluding the time during which the
Within the same period, the aggrieved party may also move for first motion had been pending.
reconsideration upon the grounds that the damages awarded are
excessive, that the evidence is insufficient to justify the decision or final No party shall be allowed a second motion for reconsideration of a
order, or that the decision or final order is contrary to law. (1a) judgment or final order (4a, 4, IRG)

Section 2. Contents of motion for new trial or reconsideration and Section 6. Effect of granting of motion for new trial. If a new trial is
notice thereof. The motion shall be made in writing stating the ground granted in accordance with the provisions of this Rules the original

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 123


judgment or final order shall be vacated, and the action shall stand for WHAT IS THE PURPOSE FOR THE GRANTING OF A MOTION FOR
trial de novo; but the recorded evidence taken upon the former trial, RECONSIDERATION?
insofar as the same is material and competent to establish the issues, • It is to give the court the opportunity to reexamine the issues
shall be used at the new trial without retaking the same. (5a) of fact as the errors may be brought before it and to enable
the court to correct such errors
Section 7. Partial new trial or reconsideration. If the grounds for a
motion under this Rule appear to the court to affect the issues as to MAY A MOTION FOR NEW TRIAL BE TREATED AS A PETITION FOR
only a part, or less than an of the matter in controversy, or only one, or RELIEF OF JUDGMENT?
less than all, of the parties to it, the court may order a new trial or • Yes, if the judgment has become final
grant reconsideration as to such issues if severable without interfering
with the judgment or final order upon the rest. (6a) MAY A PETITION FOR RELIEF BE CONSIDERED AS A MOTION FOR
NEW TRIAL?
Section 8. Effect of order for partial new trial. When less than all of • Yes, if the judgment is not yet final
the issues are ordered retried, the court may either enter a judgment
or final order as to the rest, or stay the enforcement of such judgment DIFFERENCE BETWEEN MOTION TO REOPEN TRIAL AND MOTION
or final order until after the new trial. (7a) FOR NEW TRIAL.
MOTION TO REOPEN TRIAL MOTION FOR NEW TRIAL
Section 9. Remedy against order denying a motion for new trial or Available after either or both Proper after rendition of a
reconsideration. An order denying a motion for new trial or parties have rested their case but judgment
reconsideration is not appealed, the remedy being an appeal from the before judgment
judgment or final order. (n) A motion to reopen is not It is recognized by the Rules
governed by the Rules
WHAT ARE THE GROUNDS FOR A MOTION FOR NEW TRIAL?
1. Fraud, accident, mistake or excusable negligence which DIFFERENCE BETWEEN MOTION FOR NEW TRIAL AND PETITION
ordinary prudence could not have guarded against and by FOR RELIEF OF JUDGMENT.
reason of which such aggrieved party has probably been MOTION FOR NEW TRIAL PETITION FOR RELIEF OF
impaired in his rights; or JUDGMENT
2. Newly discovered evidence, which he could not, with Fraud, accident, mistake and Fraud, accident, mistake and
reasonable diligence, have discovered and produced at the excusable negligence excusable negligence
trial, and which if presented would probably alter the result. Before finality of judgment After finality of judgment and
before expiration of 60-day, 6-
WHAT ARE THE GROUNDS FOR A MOTION FOR RECONSIDERATION months period
OF A FINAL ORDER OR JUDGMENT?
1. Damages awarded are excessive WHERE MAY A PARTY MOVE FOR AN EXTENSION OF TIME TO FILE A
2. Insufficient evidence to justify the decision or final order MOTION FOR NEW TRIAL OR RECONSIDERATION?
3. The decision or final order is contrary to law • The Supreme Court only
WITHIN WHAT PERIOD SHOULD A MOTION FOR NEW TRIAL BE WHAT ARE THE DIFFERENT FORMS OF ATTACKING A JUDGMENT?
FILED? 1. Direct attack: an attack of a judgment in an action or
• A motion for new trial should be filed within the period for proceeding to annul judgment, this being the main object
taking an appeal, hence, it should be filed before finality of a. Before finality
judgment i. Motion for new trial or reconsideration

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 124


ii. Appeal WHAT IS THE BERRY RULE WITH RESPECT TO NEWLY-DISCOVERED


b. After finality EVIDENCE (AS ENUNCIATED IN CUSTODIO V. SB, 8 MARCH 2005)?
i. Petition for relief of judgment 1. That the evidence has come to his knowledge since the trial
ii. Annulment of judgment 2. That it was not owing to want of due diligence that it did not
iii. Certiorari come sooner
iv. Quo warranto 3. That it is so material that it would produce a different verdict,
2. Collateral attack: is made when there is another action to if the new trial were granted
obtain a different relief. 4. That it is not cumulative only
5. That the affidavit of the witness himself should be produced, or
WHEN MAY FRAUD BE A GROUND FOR NEW TRIAL RELIEF FROM its absence accounted for
JUDGMENT OR ANNULMENT OF JUDGMENT? 6. That new trial would not be granted if purpose is to impeach
• Extrinsic fraud: fraud committed by the prevailing party the character or credit of a witness
outside of the trial of the case which prevents a party from
having a day in court or from presenting all his cases in court WHAT IS THE QUESTION IN RESOLVING A MOTION FOR NEW TRIAL
ON THE GROUND OF NEWLY-DISCOVERED EVIDENCE?
WHEN IS ACCIDENT A GROUND FOR NEW TRIAL? • Whether evidence is indeed newly discovered which could not
• When there is an actual surprise incident preventing one from have been discovered by due diligence
attending trial
WHAT IS THE REASON WHY 2ND MOTION FOR RECONSIDERATION IS
WHEN IS MISTAKE A GROUND FOR NEW TRIAL? NOT ALLOWED?
• It must be an unintentional act, omission, or error arising from • It is against public policy that demands that at the risk of
ignorance, surprise, imposition of misplaced confidence occasional errors, judgments of courts must become final at
• Result of ignorance of fact or law which has misled a person to some definitive date fixed by law
commit that which, if he had not been in error, he could not
have done it AT WHAT INSTANCE IS A 2ND MOTION FOR RECONSIDERATION
• Clarification though, this pertains to mistake of fact and not of ALLOWABLE?
law • Interlocutory orders

WHEN IS THERE EXCUSABLE NEGLECT? AT WHAT INSTANCES IS THERE A PRO-FORMA MOTION FOR
• When there is failure to take the proper steps at the proper RECONSIDERATION/NEW TRIAL?
time, not in consequence of a party’s own carelessness, 1. Only a reiteration of the evidence presented during trial
inattention, or willful disregard of the process or unavoidable 2. The grounds were already existing prior to the filing of the
hindrance on the care and vigilance of counsel or on promises motion for reconsideration or new trial
made by the other party
WHAT IS THE EFFECT OF A PRO-FORMA MOTION?
WHAT ARE THE REQUISITES FOR NEWLY-DISCOVERED EVIDENCE? • It doesn’t suspend the running of the period granted by law for
1. Evidence discovered after the trial perfecting an appeal
2. Such evidence could not have been discovered or produced
during the trial WHAT IS THE RULE IF NEWLY DISCOVERED EVIDENCE IS A
3. That it is material, not merely cumulative, collaborative or WITNESS?
impeaching, and is of such weight that, if admitted, will • He should submit an affidavit on what he would testify to if
probably change the judgment allowed and the court may decide on the materiality of the
same

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 125


WHAT IS THE RULE IF NEWLY DISCOVERED EVIDENCE IS A WHAT IS THE RECKONING POINT OF PERIOD TO APPEAL?
DOCUMENT? • Notice of judgment and not of rendition of judgment
• An authenticated copy or the original document must be
produced and let the court decide A DECISION WAS RENDERED AND MOTION FOR NEW TRIAL DULY
FILED. A NEW DECISION WAS THEN RENDERED. WHAT IS THE
WHAT IS THE REMEDY IN CASE OF DENIAL OF MOTION OF EFFECT ON PERIOD TO APPEAL?
RECONSIDERATION? • It shall commence from the new judgment, notwithstanding if
• The aggrieved party should appeal the judgment the new judgment just reinstated the old one

MAY A PARTY APPEAL FROM THE JUDGMENT AND AT THE SAME WHAT IS THE EFFECT IF THE COURT DENIED MOTION FOR NEW
TIME FILE A PETITION FOR CERTIORARI AGAINST THE ORDER TRIAL ON THE BASIS OF F-A-M-E?
DENYING THE MOTION FOR NEW TRIAL? • It shall preclude the filing of a petition for relief of judgment
• Yes, it is possible because the appeal is directed against the
judgment while the certiorari is directed against the order THE RULE IS THAT UPON FILING OF MOTION FOR NEW TRIAL, IT
denying the motion for new trial SUSPENDS THE PERIOD OF FINALITY OF THE JUDGMENT. DOES
THIS RULE APPLY TO THE 80-DAY PERIOD UNDER RULE 38?
WHAT IS AN AFFIDAVIT OF MERIT? • No, it would be an error for a court to subtract from the 60-day
• It is one which recites the nature and character of the fraud, period the tie when the MR or motion for new trial was pending
accident, mistake or excusable negligence on which the motion because under the Rules, the periods fixed by Rule 38 are
is based and movant’s good and substantial cause of action or mandatory and non-extendible, and are not subject to any
defense and the evidence he intends to present if the motion is condition or contingency, as the rule itself was devised to meet
granted a condition or contingency

WHAT ARE THE INSTANCES WHEN AFFIDAVITS OF MERIT IS NOT WHAT SHOULD A MOTION FOR RECONSIDERATION POINT OUT?
NECESSARY? • A motion for reconsideration shall point out a specifically the
1. When the party was deprived of his day in court through no findings or conclusions of the judgment or final order which
fault or negligence on his part are not supported by the evidence or which are contrary to law
2. When the judgment by default was rendered before the period making express reference to the testimonial or documentary
to answer expired evidence or to the provisions of law alleged to be contrary to
3. When the jurisdiction of the court is in question such findings or conclusions.

WHAT IS THE CONSEQUENCE OF FAILING TO FILE AN AFFIDAVIT OF HOW SHALL A MOTION FOR NEW TRIAL BASED ON AWARD OF
MERIT? EXCESSIVE DAMAGES BE PROVED?
• The motion shall be treated as pro forma • It shall point out a specifically the findings or conclusions of
the judgment or final order which are not supported by the
WHAT SHOULD BE THE FORM OF A MOTION FOR NEW TRIAL? evidence or which are contrary to law making express
• It shall be in writing stating the ground or grounds therefore, a reference to the testimonial or documentary evidence or to the
written notice of which shall be served by the movant on the provisions of law alleged to be contrary to such findings or
adverse party conclusions.

WHAT IS THE EFFECT OF FILING A MOTION FOR NEW TRIALL? WHAT MAY THE COURT DO UPON THE FILING OF A MOTION FOR
• It shall suspend the running of period for appeal NEW TRIAL?
• The trial court may set aside the judgment or final order and

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 126


grant a new trial, upon such terms as may be just, or may


RULE 38: RELIEF FROM JUDGMENTS, ORDERS, OR OTHER
deny the motion. If the court finds that excessive damages
PROCEEDINGS
have been awarded or that the judgment or final order is
contrary to the evidence or law, it may amend such judgment
or final order accordingly. Section 1. Petition for relief from judgment, order, or other
proceedings. When a judgment or final order is entered, or any other
WHAT IS THE EFFECT IF NEW TRIAL IS GRANTED? proceeding is thereafter taken against a party in any court through
• If a new trial is granted in accordance with the provisions of fraud, accident, mistake, or excusable negligence, he may file a
this Rules the original judgment or final order shall be vacated, petition in such court and in the same case praying that the judgment,
and the action shall stand for trial de novo; but the recorded order or proceeding be set aside. (2a)
evidence taken upon the former trial, insofar as the same is
material and competent to establish the issues, shall be used Section 2. Petition for relief from denial of appeal. When a judgment
at the new trial without retaking the same. or final order is rendered by any court in a case, and a party thereto,
by fraud, accident, mistake, or excusable negligence, has been
WITHIN WHAT PERIOD SHOULD THE COURT DECIDE ON THE prevented from taking an appeal, he may file a petition in such court
MOTION FOR NEW TRIAL OR RECONSIDERATION? and in the same case praying that the appeal be given due course. (1a)
• It shall be resolved within 30 days from its submission for
resolution Section 3. Time for filing petition; contents and verification. A
petition provided for in either of the preceding sections of this Rule
WITHIN WHAT TIME SHOULD A SECOND MOTION FOR NEW TRIAL must be verified, filed within sixty (60) days after the petitioner learns
BE FILED? of the judgment, final order, or other proceeding to be set aside, and
• A second motion for new trial, based on a ground not existing not more than six (6) months after such judgment or final order was
nor available when the first motion was made, may be filed entered, or such proceeding was taken, and must be accompanied with
within the time herein provided excluding the time during affidavits showing the fraud, accident, mistake, or excusable
which the first motion had been pending. negligence relied upon, and the facts constituting the petitioner's good
and substantial cause of action or defense, as the case may be. (3)
MAY THERE BE PARTIAL NEW TRIALS?
• Yes Section 4. Order to file an answer. If the petition is sufficient in form
• If the grounds for a motion under this Rule appear to the court and substance to justify relief, the court in which it is filed, shall issue
to affect the issues as to only a part, or less than an of the an order requiring the adverse parties to answer the same within fifteen
matter in controversy, or only one, or less than all, of the (15) days from the receipt thereof. The order shall be served in such
parties to it, the court may order a new trial or grant manner as the court may direct, together with copies of the petition
reconsideration as to such issues if severable without and the accompanying affidavits. (4a)
interfering with the judgment or final order upon the rest.
Section 5. Preliminary injunction pending proceedings. The court in
MAY ONE FILE A MOTION FOR NEW TRIAL WITH THE SUPREME which the petition is filed may grant such preliminary injunction as may
COURT? be necessary for the preservation of the rights of the parties, upon the
• Yes, before finality of judgment filing by the petitioner of a bond in favor of the adverse party,
conditioned that if the petition is dismissed or the petitioner fails on
WHAT IS THE REMEDY OF A PARTY IN DEFAULT IF JUDGMENT HAS the trial of the case upon its merits, he will pay the adverse party all
BEEN RENDERED? damages and costs that may be awarded to him by reason of the
• It is a motion for new trial issuance of such injunction or the other proceedings following the
petition, but such injunction shall not operate to discharge or

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 127


extinguish any lien which the adverse party may have acquired upon, IS A PETITION FOR RELIEF AVAILABLE FOR DENIAL OF APPEAL?
the property, of the petitioner. (5a) • Yes
• When a judgment or final order is rendered by any court in a
Section 6. Proceedings after answer is filed. After the filing of the case, and a party thereto, by fraud, accident, mistake, or
answer or the expiration of the period therefor, the court shall hear the excusable negligence, has been prevented from taking an
petition and if after such hearing, it finds that the allegations thereof appeal, he may file a petition in such court and in the same
are not true, the petition shall be dismissed; but if it finds said case praying that the appeal be given due course.
allegations to be true, it shall set aside the judgment or final order or
other proceeding complained of upon such terms as may be just. WHAT IS THE DISTINCTION BETWEEN THE PETITIONS UNDER
Thereafter the case shall stand as if such judgment, final order or other SECTION 1 AND 2?
proceeding had never been rendered, issued or taken. The court shall • In section 1, it pertains to setting aside the judgment or final
then proceed to hear and determine the case as if a timely motion for a order while in section 2, it pertains to praying that the appeal
new trial or reconsideration had been granted by it. (6a) be given due course

Section 7. Procedure where the denial of an appeal is set aside. WHAT IS THE REMEDY IN CASE THERE WAS AN ERRONEOUS
Where the denial of an appeal is set aside, the lower court shall be INTERPRETATION OF THE RULES WHICH IS NOT FAME?
required to give due course to the appeal and to elevate the record of • The remedy is mandamus
the appealed case as if a timely and proper appeal had been made.
(7a) MAY A PETITION FOR RELIEF FROM JUDGMENT SUBSTITUTE
APPEAL?
WITH WHAT COURT SHOULD A PETITION FOR RELIEF OF • No
JUDGMENT BE FILED?
• It may be filed with the same court that rendered judgment WHAT IS THE RECKONING POINT OF THE 6-MONTH PERIOD?
• When a judgment or final order is entered, or any other • It is reckoned from the date of entry of judgment
proceeding is thereafter taken against a party in any court
through fraud, accident, mistake, or excusable negligence, he WHEN IS JUDGMENT ENTERED?
may file a petition in such court and in the same case praying • A judgment is entered on the date it becomes final and
that the judgment, order or proceeding be set aside executory

WHAT IS THE CONCEPT OF A PETITION FOR RELIEF OF JUDGMENT? MAY A PETITION FOR RELIEF FROM JUDGMENT BE FILED FROM
• It is an equitable remedy and is allowed only under exceptional SERVICE OF THE WRIT OF EXECUTION?
circumstances and only if fraud, accident, mistake or • Yes, it may be taken from the service of the writ of execution
excusable neglect is present
• Where the defendant has any other remedy such as motion for WHEN IS JUDGMENT BASED ON COMPROMISE ENTERED?
new trial or appeal, he cannot avail himself of this remedy • It is entered immediately since it is final and executory

IS A PETITION FOR RELIEF OF JUDGMENT OR FINAL ORDER WHAT SHALL THE COURT DO UPON FILING OF THE PETITION
AVAILABLE TO A PROCEEDING TAKEN AFTER ENTRY OF JUDGMENT WHICH IS SUFFICIENT IN FORM AND SUBSTANCE?
OR ORDER? • If the petition is sufficient in form and substance to justify
• Yes it is applicable to a proceeding taken after the entry of relief, the court in which it is filed, shall issue an order
judgment or order such as an order of execution requiring the adverse parties to answer the same within fifteen
• The reckoning point of the 6-months period would be the (15) days from the receipt thereof. The order shall be served in
service of writ of execution such manner as the court may direct, together with copies of

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 128


the petition and the accompanying affidavits. b. If it is dismissed, it is final and appealable but the
petitioner may resort to Rule 65 if there is grave abuse
WHAT MAY THE COURT DO TO PRESERVE THE RIGHTS OF A PARTY of discretion
DURING THE PENDENCY OF THE PROCEEDINGS UPON FILING OF 3. A motion to dismiss may be filed if not filed in the proper court
PETITION FOR RELIEF FROM JUDGMENT? or filed beyond the 60-day period from discovery or 6 months
• The court in which the petition is filed may grant such from entry rule
preliminary injunction as may be necessary for the
preservation of the rights of the parties, upon the filing by the WHAT HAPPENS IF DENIAL OF APPEAL IS SET ASIDE?
petitioner of a bond in favor of the adverse party, conditioned • Where the denial of an appeal is set aside, the lower court shall
that if the petition is dismissed or the petitioner fails on the be required to give due course to the appeal and to elevate the
trial of the case upon its merits, he will pay the adverse party record of the appealed case as if a timely and proper appeal
all damages and costs that may be awarded to him by reason had been made.
of the issuance of such injunction or the other proceedings
following the petition, but such injunction shall not operate to WHAT IS ONE’S REMEDY IF PETITION FOR RELIEF FROM JUDGMENT
discharge or extinguish any lien which the adverse party may IS DENIED?
have acquired upon, the property, of the petitioner. • It may only be assailed before the SC via a special civil action
under Rule 65 and not through a petition for review on
MAY THE COURT ISSUE A WRIT OF EXECUTION DURING PENDENCY certiorari under Rule 45
OF A PETITION FOR RELIEF FROM JUDGMENT?
• No, it is improper to issue a writ of execution while the petition
RULE 39: EXECUTION, SATISFACTION AND EFFECT OF
for relief from judgment is pending
JUDGMENTS
• Execution of judgment would be premature

WHAT SHALL THE COURT DO IF THE ALLEGATIONS IN THE Section 1. Execution upon judgments or final orders. Execution shall
PETITION ARE UNTRUE/TRUE? issue as a matter of right, or motion, upon a judgment or order that
• After the filing of the answer or the expiration of the period disposes of the action or proceeding upon the expiration of the period
therefor, the court shall hear the petition and if after such to appeal therefrom if no appeal has been duly perfected. (1a)
hearing, it finds that the allegations thereof are not true, the
petition shall be dismissed; but if it finds said allegations to be If the appeal has been duly perfected and finally resolved, the
true, it shall set aside the judgment or final order or other execution may forthwith be applied for in the court of origin, on motion
proceeding complained of upon such terms as may be just. of the judgment obligee, submitting therewith certified true copies of
• Thereafter the case shall stand as if such judgment, final order the judgment or judgments or final order or orders sought to be
or other proceeding had never been rendered, issued or taken. enforced and of the entry thereof, with notice to the adverse party.
• The court shall then proceed to hear and determine the case
as if a timely motion for a new trial or reconsideration had The appellate court may, on motion in the same case, when the
been granted by it. interest of justice so requires, direct the court of origin to issue the writ
of execution. (n)
WHAT MAY BE DONE AFTER THE FILING OF THE PETITION FOR
RELIEF FROM JUDGMENT? Section 2. Discretionary execution.
1. The court may order the filing of an answer if it is in proper
form and substance within 15 days from receipt of petition (a) Execution of a judgment or final order pending appeal. On motion
2. The court may give due course to it of the prevailing party with notice to the adverse party filed in the trial
a. If it gives due course, it is interlocutory court while it has jurisdiction over the case and is in possession of

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 129


either the original record or the record on appeal, as the case may be, Section 6. Execution by motion or by independent action. A final and
at the time of the filing of such motion, said court may, in its executory judgment or order may be executed on motion within five (5)
discretion, order execution of a judgment or final order even before the years from the date of its entry. After the lapse of such time, and
expiration of the period to appeal. before it is barred by the statute of limitations, a judgment may be
enforced by action. The revived judgment may also be enforced by
After the trial court has lost jurisdiction the motion for execution motion within five (5) years from the date of its entry and thereafter by
pending appeal may be filed in the appellate court. action before it is barred by the statute of limitations. (6a)

Discretionary execution may only issue upon good reasons to be stated Section 7. Execution in case of death of party. In case of the death of
in a special order after due hearing. a party, execution may issue or be enforced in the following manner:

(b) Execution of several, separate or partial judgments. A several, (a) In case of the death of the judgment obligee, upon the application
separate or partial judgment may be executed under the same terms of his executor or administrator, or successor in interest;
and conditions as execution of a judgment or final order pending
appeal. (2a) (b) In case of the death of the judgment obligor, against his executor or
administrator or successor in interest, if the judgment be for the
Section 3. Stay of discretionary execution. Discretionary execution recovery of real or personal property, or the enforcement of a lien
issued under the preceding section may be stayed upon approval by thereon;
the proper court of a sufficient supersedeas bond filed by the party
against whom it is directed, conditioned upon the performance of the (c) In case of the death of the judgment obligor, after execution is
judgment or order allowed to be executed in case it shall be finally actually levied upon any of his property, the same may be sold for the
sustained in whole or in part. The bond thus given may be proceeded satisfaction of the judgment obligation, and the officer making the sale
against on motion with notice to the surety. (3a ) shall account to the corresponding executor or administrator for any
surplus in his hands. (7a)
Section 4. Judgments not stayed by appeal. Judgments in actions for
injunction, receivership, accounting and support, and such other Section 8. Issuance, form and contents of a writ of execution. The
judgments as are now or may hereafter be declared to be immediately writ of execution shall: (1) issue in the name of the Republic of the
executory, shall be enforceable after their rendition and shall not, be Philippines from the court which granted the motion; (2) state the
stayed by an appeal taken therefrom, unless otherwise ordered by the name of the court, the case number and title, the dispositive part of the
trial court. On appeal therefrom, the appellate court in its discretion subject judgment or order; and (3) require the sheriff or other proper
may make an order suspending, modifying, restoring or granting the officer to whom it is directed to enforce the writ according to its terms,
injunction, receivership, accounting, or award of support. in the manner hereinafter provided:

The stay of execution shall be upon such terms as to bond or otherwise (a) If the execution be against the property of the judgment obligor, to
as may be considered proper for the security or protection of the rights satisfy the judgment, with interest, out of the real or personal property
of the adverse party. (4a) of such judgment obligor;

Section 5. Effect of reversal of executed judgment. Where the (b) If it be against real or personal property in the hands of personal
executed judgment is reversed totally or partially, or annulled, on representatives, heirs, devisees, legatees, tenants, or trustees of the
appeal or otherwise, the trial court may, on motion, issue such orders judgment obligor, to satisfy the judgment, with interest, out of such
of restitution or reparation of damages as equity and justice may property;
warrant under the circumstances. (5a)
(c) If it be for the sale of real or personal property to sell such property

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 130


describing it, and apply the proceeds in conformity with the judgment, of court for disposition as provided by law. In no case shall the
the material parts of which shall be recited in the writ of execution; executing sheriff demand that any payment by check be made payable
to him.
(d) If it be for the delivery of the possession of real or personal
property, to deliver the possession of the same, describing it, to the (b) Satisfaction by levy. If the judgment obligor cannot pay all or part
party entitled thereto, and to satisfy any costs, damages, rents, or of the obligation in cash, certified bank check or other mode of
profits covered by the judgment out of the personal property of the payment acceptable to the judgment obligee, the officer shall levy upon
person against whom it was rendered, and if sufficient personal the properties of the judgment obligor of every kind and nature
property cannot be found, then out of the real property; and whatsoever which may be disposed, of for value and not otherwise
exempt from execution giving the latter the option to immediately
(e) In all cases, the writ of execution shall specifically state the amount choose which property or part thereof may be levied upon, sufficient to
of the interest, costs, damages, rents, or profits due as of the date of satisfy the judgment. If the judgment obligor does not exercise the
the issuance of the writ, aside from the principal obligation under the option, the officer shall first levy on the personal properties, if any, and
judgment. For this purpose, the motion for execution shall specify the then on the real properties if the personal properties are insufficient to
amounts of the foregoing reliefs sought by the movant.(8a) answer for the judgment.

Section 9. Execution of judgments for money, how enforced. The sheriff shall sell only a sufficient portion of the personal or real
property of the judgment obligor which has been levied upon.
(a) Immediate payment on demand. The officer shall enforce an
execution of a judgment for money by demanding from the judgment When there is more property of the judgment obligor than is sufficient
obligor the immediate payment of the full amount stated in the writ of to satisfy the judgment and lawful fees, he must sell only so much of
execution and all lawful fees. The judgment obligor shall pay in cash, the personal or real property as is sufficient to satisfy the judgment
certified bank check payable to the judgment obligee, or any other and lawful fees.
form of payment acceptable to the latter, the amount of the judgment
debt under proper receipt directly to the judgment obligee or his Real property, stocks, shares, debts, credits, and other personal
authorized representative if present at the time of payment. The lawful property, or any interest in either real or personal property, may be
fees shall be handed under proper receipt to the executing sheriff who levied upon in like manner and with like effect as under a writ of
shall turn over the said amount within the same day to the clerk of attachment.
court of the court that issued the writ.
(c) Garnishment of debts and credits. The officer may levy on debts
If the judgment obligee or his authorized representative is not present due the judgment obligor and other credits, including bank deposits,
to receive payment, the judgment obligor shall deliver the aforesaid financial interests, royalties, commissions and other personal property
payment to the executing sheriff. The latter shall turn over all the not capable of manual delivery in the possession or control of third
amounts coming into his possession within the same day to the clerk of parties. Levy shall be made by serving notice upon the person owing
court of the court that issued the writ, or if the same is not practicable, such debts or having in his possession or control such credits to which
deposit said amounts to a fiduciary account in the nearest government the judgment obligor is entitled. The garnishment shall cover only such
depository bank of the Regional Trial Court of the locality. amount as will satisfy the judgment and all lawful fees.

The clerk of said court shall thereafter arrange for the remittance of the The garnishee shall make a written report to the court within five (5)
deposit to the account of the court that issued the writ whose clerk of days from service of the notice of garnishment stating whether or not
court shall then deliver said payment to the judgment obligee in the judgment obligor has sufficient funds or credits to satisfy the
satisfaction of the judgment. The excess, if any, shall be delivered to amount of the judgment. If not, the report shall state how much funds
the judgment obligor while the lawful fees shall be retained by the clerk or credits the garnishee holds for the judgment obligor. The garnished

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 131


amount in cash, or certified bank check issued in the name of the judgment obligee in possession of such property. Any costs, damages,
judgment obligee, shall be delivered directly to the judgment obligee rents or profits awarded by the judgment shall be satisfied in the same
within ten (10) working days from service of notice on said garnishee manner as a judgment for money. (13a)
requiring such delivery, except the lawful fees which shall be paid
directly to the court. (d) Removal of improvements on property subject of execution. When
the property subject of the execution contains improvements
In the event there are two or more garnishees holding deposits or constructed or planted by the judgment obligor or his agent, the officer
credits sufficient to satisfy the judgment, the judgment obligor, if shall not destroy, demolish or remove said improvements except upon
available, shall have the right to indicate the garnishee or garnishees special order of the court, issued upon motion of the judgment obligee
who shall be required to deliver the amount due, otherwise, the choice after the hearing and after the former has failed to remove the same
shall be made by the judgment obligee. within a reasonable time fixed by the court. (14a)

The executing sheriff shall observe the same procedure under (e) Delivery of personal property. In judgment for the delivery of
paragraph (a) with respect to delivery of payment to the judgment personal property, the officer shall take possession of the same and
obligee. (8a, 15a) forthwith deliver it to the party entitled thereto and satisfy any
judgment for money as therein provided. (8a)
Section 10. Execution of judgments for specific act.
Section 11. Execution of special judgments. When a judgment
(a) Conveyance, delivery of deeds, or other specific acts; vesting title. requires the performance of any act other than those mentioned in the
If a judgment directs a party to execute a conveyance of land or two preceding sections, a certified copy of the judgment shall be
personal property, or to deliver deeds or other documents, or to attached to the writ of execution and shall be served by the officer
perform, any other specific act in connection therewith, and the party upon the party against whom the same is rendered, or upon any other
fails to comply within the time specified, the court may direct the act person required thereby, or by law, to obey the same, and such party
to be done at the cost of the disobedient party by some other person or person may be punished for contempt if he disobeys such judgment.
appointed by the court and the act when so done shall have like effect (9a)
as if done by the party. If real or personal property is situated within
the Philippines, the court in lieu of directing a conveyance thereof may Section 12. Effect of levy on execution as to third person. The levy on
by an order divest the title of any party and vest it in others, which execution shall create a lien in favor of the judgment obligee over the
shall have the force and effect of a conveyance executed in due form of right, title and interest of the judgment obligor in such property at the
law. (10a) time of the levy, subject to liens and encumbrances then existing. (16a)

(b) Sale of real or personal property. If the judgment be for the sale of Section 13. Property exempt from execution. Except as otherwise
real or personal property, to sell such property, describing it, and apply expressly provided by law, the following property, and no other, shall
the proceeds in conformity with the judgment. (8[c]a) be exempt from execution:

(c) Delivery or restitution of real property. The officer shall demand of (a) The judgment obligor's family home as provided by law, or the
the person against whom the judgment for the delivery or restitution of homestead in which he resides, and land necessarily used in
real property is rendered and all persons claiming rights under him to connection therewith;
peaceably vacate the property within three (3) working days, and
restore possession thereof to the judgment obligee, otherwise, the (b) Ordinary tools and implements personally used by him in his trade,
officer shall oust all such persons therefrom with the assistance, if employment, or livelihood;
necessary, of appropriate peace officers, and employing such means as
may be reasonably necessary to retake possession, and place the (c) Three horses, or three cows, or three carabaos, or other beasts of

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 132


burden, such as the judgment obligor may select necessarily used by full within thirty (30) days after his receipt of the writ, the officer shall
him in his ordinary occupation; report to the court and state the reason therefor. Such writ shall
continue in effect during the period within which the judgment may be
(d) His necessary clothing and articles for ordinary personal use, enforced by motion. The officer shall make a report to the court every
excluding jewelry; thirty (30) days on the proceedings taken thereon until the judgment is
satisfied in full, or its effectivity expires. The returns or periodic reports
(e) Household furniture and utensils necessary for housekeeping, and shall set forth the whole of the proceedings taken, and shall be filed
used for that purpose by the judgment obligor and his family, such as with the court and copies thereof promptly furnished the parties. (11a)
the judgment obligor may select, of a value not exceeding one hundred
thousand pesos; Section 15. Notice of sale of property on execution. Before the sale of
property on execution, notice thereof must be given as follows:
(f) Provisions for individual or family use sufficient for four months;
(a) In case of perishable property, by posting written notice of the time
(g) The professional libraries and equipment of judges, lawyers, and place of the sale in three (3) public places, preferably in
physicians, pharmacists, dentists, engineers, surveyors, clergymen, conspicuous areas of the municipal or city hall, post office and public
teachers, and other professionals, not exceeding three hundred market in the municipality or city where the sale is to take place, for
thousand pesos in value; such time as may be reasonable, considering the character and
condition of the property;
(h) One fishing boat and accessories not exceeding the total value of
one hundred thousand pesos owned by a fisherman and by the lawful (b) In case of other personal property, by posting a similar notice in the
use of which he earns his livelihood; three (3) public places above-mentioned for not less than five (5) days;

(i) So much of the salaries, wages, or earnings of the judgment obligor (c) In case of real property, by posting for twenty (20) days in the three
for his personal services within the four months preceding the levy as (3) public places abovementioned a similar notice particularly
are necessary for the support of his family; describing the property and stating where the property is to be sold,
and if the assessed value of the property exceeds fifty thousand
(j) Lettered gravestones; (P50,000.00) pesos, by publishing a copy of the notice once a week for
two (2) consecutive weeks in one newspaper selected by raffle, whether
(k) Monies, benefits, privileges, or annuities accruing or in any manner in English, Filipino, or any major regional language published, edited
growing out of any life insurance; and circulated or, in the absence thereof, having general circulation in
the province or city;
(l) The right to receive legal support, or money or property obtained as
such support, or any pension or gratuity from the Government; (d) In all cases, written notice of the sale shall be given to the judgment
obligor, at least three (3) days before the sale, except as provided in
(m) Properties specially exempted by law. paragraph (a) hereof where notice shall be given the same manner as
personal service of pleadings and other papers as provided by section
But no article or species of property mentioned in this section shall be 6 of Rule 13.
exempt from execution issued upon a judgment recovered for its price
or upon a judgment of foreclosure of a mortgage thereon. (12a) The notice shall specify the place, date and exact time of the sale
which should not be earlier than nine o'clock in the morning and not
Section 14. Return of writ of execution. The writ of execution shall be later than two o'clock in the afternoon. The place of the sale may be
returnable to the court issuing it immediately after the judgment has agreed upon by the parties. In the absence of such agreement, the sale
been satisfied in part or in full. If the judgment cannot be satisfied in of the property or personal property not capable of manual delivery

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 133


shall be held in the office of the clerk of court of the Regional Trial to his actual damages, both to be recovered by motion in the same
Court or the Municipal Trial Court which issued the writ of or which was action; and a person willfully removing or defacing the notice posted, if
designated by the appellate court. In the case of personal property done before the sale, or before the satisfaction of the judgment if it be
capable of manual delivery, the sale shall be held in the place where satisfied before the sale, shall be liable to pay five thousand
the property is located. (18a) (P5,000.00) pesos to any person injured by reason thereof, in addition
to his actual damages, to be recovered by motion in the same action.
Section 16. Proceedings where property claimed by third person. If (19a)
the property levied on is claimed by any person other than the
judgment obligor or his agent, and such person makes an affidavit of Section 18. No sale if judgment and costs paid. At any time before
his title thereto or right to the possession thereof, stating the grounds the sale of property on execution, the judgment obligor may prevent
of such right or title, and serves the same upon the officer making the the sale by paying the amount required by the execution and the costs
levy and copy thereof, stating the grounds of such right or tittle, and a that have been incurred therein. (20a)
serves the same upon the officer making the levy and a copy thereof
upon the judgment obligee, the officer shall not be bound to keep the Section 19. How property sold on execution; who may direct manner
property, unless such judgment obligee, on demand of the officer, files and order of sale. All sales of property under execution must be made
a bond approved by the court to indemnity the third-party claimant in a at public auction, to the highest bidder, to start at the exact time fixed
sum not less than the value of the property levied on. In case of in the notice. After sufficient property has been sold to satisfy the
disagreement as to such value, the same shall be determined by the execution, no more shall be sold and any excess property or proceeds
court issuing the writ of execution. No claim for damages for the taking of the sale shall be promptly delivered to the judgment obligor or his
or keeping of the property may be enforced against the bond unless the authorized representative, unless otherwise directed by the judgment
action therefor is filed within one hundred twenty (120) days from the or order of the court. When the sale is of real property, consisting of
date of the filing of the bond. several known lots, they must be sold separately; or, when a portion of
such real property is claimed by a third person, he may require it to be
The officer shall not be liable for damages for the taking or keeping of sold separately. When the sale is of personal property capable of
the property, to any third-party claimant if such bond is filed. Nothing manual delivery, it must be sold within view of those attending the
herein contained shall prevent such claimant or any third person from same and in such parcels as are likely to bring the highest price. The
vindicating his claim to the property in a separate action, or prevent judgment obligor, if present at the sale, may direct the order in which
the judgment obligee from claiming damages in the same or a separate property, real or personal shall be sold, when such property consists of
action against a third-party claimant who filed a frivolous or plainly several known lots or parcels which can be sold to advantage
spurious claim. separately. Neither the officer conducting the execution sale, nor his
deputies, can become a purchaser, nor be interested directly or
When the writ of execution is issued in favor of the Republic of the indirectly in any purchase at such sale. (21a)
Philippines, or any officer duly representing it, the filing of such bond
shall not be required, and in case the sheriff or levying officer is sued Section 20. Refusal of purchaser to pay. If a purchaser refuses to pay
for damages as a result of the levy, he shall be represented by the the amount bid by him for property struck off to him at a sale under
Solicitor General and if held liable therefor, the actual damages execution, the officer may again sell the property to the highest bidder
adjudged by the court shall be paid by the National Treasurer out of and shall not be responsible for any loss occasioned thereby; but the
such funds as may be appropriated for the purpose. (17a) court may order the refusing purchaser to pay into the court the
amount of such loss, with costs, and may punish him for contempt if
Section 17. Penalty for selling without notice, or removing or defacing he disobeys the order. The amount of such payment shall be for the
notice. An officer selling without the notice prescribed by section 15 of benefit of the person entitled to the proceeds of the execution, unless
this Rule shall be liable to pay punitive damages in the amount of five the execution has been fully satisfied, in which event such proceeds
thousand (P5,000.00) pesos to any person injured thereby, in addition shall be for the benefit of the judgment obligor. The officer may

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 134


thereafter reject any subsequent bid of such purchaser who refuses to (d) A statement that the right of redemption expires one (1) year from
pay. (22a) the date of the registration of the certificate of sale.

Section 21. Judgment obligee as purchaser. When the purchaser is Such certificate must be registered in the registry of deeds of the place
the judgment obligee, and no third-party claim has been filed, he need where the property is situated. (27 a)
not pay the amount of the bid if it does not exceed the amount of his
judgment. If it does, he shall pay only the excess. (23a) Section 26. Certificate of sale where property claimed by third
person. When a property sold by virtue of a writ of execution has been
Section 22. Adjournment of sale. By written consent of the judgment claimed by a third person, the certificate of sale to be issued by the
obligor and obligee, or their duly authorized representatives, the officer sheriff pursuant to sections 23, 24 and 25 of this Rule shall make
may adjourn the sale to any date and time agreed upon by them. express mention of the existence of such third-party claim. (28a)
Without such agreement, he may adjourn the sale from day to day if it
becomes necessary to do so for lack of time to complete the sale on Section 27. Who may redeem real property so sold. Real property
the day fixed in the notice or the day to which it was adjourned. (24a) sold as provided in the last preceding section, or any part thereof sold
separately, may be redeemed in the manner hereinafter provided, by
Section 23. Conveyance to purchaser of personal property capable of the following persons:
manual delivery. When the purchaser of any personal property,
capable of manual delivery, pays the purchase price, the officer making (a) The judgment obligor; or his successor in interest in the whole or
the sale must deliver the property to the purchaser and, if desired, any part of the property;
execute and deliver to him a certificate of sale. The sale conveys to the
purchaser all the rights which the judgment obligor had in such (b) A creditor having a lien by virtue of an attachment, judgment or
property as of the date of the levy on execution or preliminary mortgage on the property sold, or on some part thereof, subsequent to
attachment. (25a) the lien under which the property was sold. Such redeeming creditor is
termed a redemptioner. (29a)
Section 24. Conveyance to purchaser of personal property not
capable of manual delivery. When the purchaser of any personal Section 28. Time and manner of, and amounts payable on, successive
property, not capable of manual delivery, pays the purchase price, the redemptions; notice to be given and filed. The judgment obligor, or
officer making the sale must execute and deliver to the purchaser a redemptioner, may redeem the property from the purchaser, at any
certificate of sale. Such certificate conveys to the purchaser all the time within one (1) year from the date of the registration of the
rights which the judgment obligor had in such property as of the date certificate of sale, by paying the purchaser the amount of his purchase,
of the levy on execution or preliminary attachment. (26a) with the per centum per month interest thereon in addition, up to the
time of redemption, together with the amount of any assessments or
Section 25. Conveyance of real property; certificate thereof given to taxes which the purchaser may have paid thereon after purchase, and
purchaser and filed with registry of deeds. Upon a sale of real interest on such last named amount at the same rate; and if the
property, the officer must give to the purchaser a certificate of sale purchaser be also a creditor having a prior lien to that of the
containing: redemptioner, other than the judgment under which such purchase was
made, the amount of such other lien, with interest.
(a) A particular description of the real property sold;
Property so redeemed may again be redeemed within sixty (60) days
(b) The price paid for each distinct lot or parcel; after the last redemption upon payment of the sum paid on the last
redemption, with two per centum thereon in addition and the amount
(c) The whole price paid by him; of any assessments or taxes which the last redemptioner may have
paid thereon after redemption by him, with interest on such last named

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 135


amount, and in addition, the amount of any liens held by said last by him or his agent, showing the amount then actually due on the lien.
redemptioner prior to his own, with interest. The property may be (32a)
again, and as often as a redemptioner is so disposed, redeemed from
any previous redemptioner within sixty (60) days after the last Section 31. Manner of using premises pending redemption; waste
redemption, on paying the sum paid on the last previous redemption, restrained. Until the expiration of the time allowed for redemption, the
with two per centum thereon in addition, and the amounts of any court may, as in other proper cases, restrain the commission of waste
assessments or taxes which the last previous redemptioner paid after on the property by injunction, on the application of the purchaser or
the redemption thereon, with interest thereon, and the amount of any the judgment obligee, with or without notice; but it is not waste for a
liens held by the last redemptioner prior to his own, with interest. person in possession of the property at the time of the sale, or entitled
to possession afterwards, during the period allowed for redemption, to
Written notice of any redemption must be given to the officer who continue to use it in the same manner in which it was previously used,
made the sale and a duplicate filed with the registry of deeds of the or to use it in the ordinary course of husbandry; or to make the
place, and if any assessments or taxes are paid by the redemptioner or necessary repairs to buildings thereon while he occupies the property.
if he has or acquires any lien other than that upon which the (33a)
redemption was made, notice thereof must in like manner be given to
the officer and filed with the registry of deeds; if such notice be not Section 32. Rents, earnings and income of property pending
filed, the property may be redeemed without paying such assessments, redemption. The purchaser or a redemptioner shall not be entitled to
taxes, or liens. (30a) receive the rents, earnings and income of the property sold on
execution, or the value of the use and occupation thereof when such
Section 29. Effect of redemption by judgment obligor, and a property is in the possession of a tenant. All rents, earnings and
certificate to be delivered and recorded thereupon; to whom income derived from the property pending redemption shall belong to
payments on redemption made. If the judgment obligor redeems he the judgment obligor until the expiration of his period of redemption.
must make the same payments as are required to effect a redemption (34a)
by a redemptioner, whereupon, no further redemption shall be allowed
and he is restored to his estate. The person to whom the redemption Section 33. Deed and possession to be given at expiration of
payment is made must execute and deliver to him a certificate of redemption period; by whom executed or given. If no redemption be
redemption acknowledged before a notary public or other officer made within one (1) year from the date of the registration of the
authorized to take acknowledgments of conveyances of real property. certificate of sale, the purchaser is entitled to a conveyance and
Such certificate must be filed and recorded in the registry of deeds of possession of the property; or, if so redeemed whenever sixty (60) days
the place in which the property is situated and the registrar of deeds have elapsed and no other redemption has been made, and notice
must note the record thereof on the margin of the record of the thereof given, and the time for redemption has expired, the last
certificate of sale. The payments mentioned in this and the last redemptioner is entitled to the conveyance and possession; but in all
preceding sections may be made to the purchaser or redemptioner, or cases the judgment obligor shall have the entire period of one (1) year
for him to the officer who made the sale. (31a) from the date of the registration of the sale to redeem the property.
The deed shall be executed by the officer making the sale or by his
Section 30. Proof required of redemptioner. A redemptioner must successor in office, and in the latter case shall have the same validity
produce to the officer, or person from whom he seeks to redeem, and as though the officer making the sale had continued in office and
serve with his notice to the officer a copy of the judgment or final order executed it.
under which he claims the right to redeem, certified by the clerk of the
court wherein the judgment or final order is entered, or, if he redeems Upon the expiration of the right of redemption, the purchaser or
upon a mortgage or other lien, a memorandum of the record thereof, redemptioner shall be substituted to and acquire all the rights, title,
certified by the registrar of deeds, or an original or certified copy of any interest and claim of the judgment obligor to the property as of the
assignment necessary to establish his claim; and an affidavit executed time of the levy. The possession of the property shall be given to the

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 136


purchaser or last redemptioner by the same officer unless a third party


adversely to the judgment obligor. (35a) Section 37. Examination of obligor of judgment obligor. When the
return of a writ of execution against the property of a judgment obligor
Section 34. Recovery of price if sale not effective; revival of shows that the judgment remain unsatisfied, in whole or in part, and
judgment. If the purchaser of real property sold on execution, or his upon proof to the satisfaction of the court which issued the writ, that a
successor in interest, fails to recover the possession thereof, or is person, corporation, or other juridical entity has property of such
evicted therefrom, in consequence of irregularities in the proceedings judgment obligor or is indebted to him, the court may, by an order,
concerning the sale, or because the judgment has been reversed or set require such person, corporation, or other juridical entity, or any
aside, or because the property sold was exempt from execution, or officer, or member thereof, to appear before the court or a
because a third person has vindicated his claim to the property, he commissioner appointed by it, at a time and place within the province
may on motion in the same action or in a separate action recover from or city where such debtor resides or is found, and be examined
the judgment obligee the price paid, with interest, or so much thereof concerning the same. The service of the order shall bind all credits due
as has not been delivered to the judgment obligor, or he may, on the judgment obligor and all money and property of the judgment
motion, have the original judgment revived in his name for the whole obligor in the possession or in the control of such person corporation,
price with interest, or so much thereof as has been delivered to the or juridical entity from the time of service; and the court may also
judgment obligor. The judgment so revived shall have the same force require notice of such proceedings to be given to any party to the
and effect as an original judgment would have as of the date of the action in such manner as it may deem proper. (39a)
revival and no more. (36a)
Section 38. Enforcement of attendance and conduct of examination. A
Section 35. Right to contribution or reimbursement. When property party or other person may be compelled, by an order or subpoena, to
liable to an execution against several persons is sold thereon, and attend before the court or commissioner to testify as provided in the
more than a due proportion of the judgment is satisfied out of the two preceding sections, and upon failure to obey such order or
proceeds of the sale of the property of one of them, or one of them subpoena or to be sworn, or to answer as a witness or to subscribe his
pays, without a sale, more than his proportion, he may compel a deposition, may be punished for contempt as in other cases.
contribution from the others; and when a judgment is upon an Examinations shall not be unduly prolonged, but the proceedings may
obligation of one of them, as security for another, and the surety pays be adjourned from time to time, until they are completed. If the
the amount, or any part thereof, either by sale of his property or before examination is before a commissioner, he must take it in writing and
sale, he may compel repayment from the principal. (37a) certify it to the court. All examinations and answers before a court
commissioner must be under oath, and when a corporation or other
Section 36. Examination of judgment obligor when judgment juridical entity answers, it must be on the oath of an authorized officer
unsatisfied. When the return of a writ of execution issued against or agent thereof. (40a)
property of a judgment obligor, or any one of several obligors in the
same judgment, shows that the judgment remains unsatisfied, in whole Section 39. Obligor may pay execution against obligee. After a writ of
or in part, the judgment obligee, at any time after such return is made, execution against property has been issued, a person indebted to the
shall be entitled to an order from the court which rendered the said judgment obligor may pay to the sheriff holding the writ of execution
judgment, requiring such judgment obligor to appear and be examined the amount of his debt or so much thereof as may be necessary to
concerning his property and income before such court or before a satisfy the judgment, in the manner prescribed in section 9 of this
commissioner appointed by it at a specified time and place; and Rule, and the sheriff's receipt shall be a sufficient discharge for the
proceedings may thereupon be had for the application of the property amount so paid or directed to be credited by the judgment obligee on
and income of the judgment obligor towards the satisfaction of the the execution. (41a)
judgment. But no judgment obligor shall be so required to appear
before a court or commissioner outside the province or city in which Section 40. Order for application of property and income to
such obligor resides or is found. (38a) satisfaction of judgment. The court may order any property of the

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 137


judgment obligor, or money due him, not exempt from execution, in execution showing the full satisfaction of the judgment, or upon the
the hands of either himself or another person, or of a corporation or filing of an admission to the satisfaction of the judgment executed and
other juridical entity, to be applied to the satisfaction of the judgment, acknowledged in the same manner as a conveyance of real property by
subject to any prior rights over such property. the judgment obligee or by his counsel unless a revocation of his
authority is filed, or upon the endorsement of such admission by the
If, upon investigation of his current income and expenses, it appears judgment obligee or his counsel, on the face of the record of the
that the earnings of the judgment obligor for his personal services are judgment. (46a)
more than necessary for the support of his family, the court may order
that he pay the judgment in fixed monthly installments, and upon his Section 45. Entry of satisfaction with or without admission. Whenever
failure to pay any such installment when due without good excuse, may a judgment is satisfied in fact, or otherwise than upon an execution on
punish him for indirect contempt. (42a) demand of the judgment obligor, the judgment obligee or his counsel
must execute and acknowledge, or indorse an admission of the
Section 41. Appointment of receiver. The court may appoint a satisfaction as provided in the last preceding section, and after notice
receiver of the property of the judgment obligor; and it may also forbid and upon motion the court may order either the judgment obligee or
a transfer or other disposition of, or any interference with, the property his counsel to do so, or may order the entry of satisfaction to be made
of the judgment obligor not exempt from execution. (43a) without such admission. (47a)

Section 42. Sale of ascertainable interest of judgment obligor in real Section 46. When principal bound by judgment against surety. When
estate. If it appears that the judgment obligor has an interest in real a judgment is rendered against a party who stands as surety for
estate in the place in which proceedings are had, as mortgagor or another, the latter is also bound from the time that he has notice of the
mortgagee or other- wise, and his interest therein can be ascertained action or proceeding, and an opportunity at the surety's request to join
without controversy the receiver may be ordered to sell and convey in the defense. (48a)
such real estate or the interest of the obligor therein; and such sale
shall be conducted in all respects in the same manner as is provided Section 47. Effect of judgments or final orders. The effect of a
for the sale of real state upon execution, and the proceedings thereon judgment or final order rendered by a court of the Philippines, having
shall be approved by the court before the execution of the deed. (34a) jurisdiction to pronounce the judgment or final order, may be as
follows:
Section 43. Proceedings when indebtedness denied or another person
claims the property. If it appears that a person or corporation, alleged (a) In case of a judgment or final order against a specific thing, or in
to have property of the judgment obligor or to be indebted to him, respect to the probate of a will, or the administration of the estate of a
claims an interest in the property adverse to him or denied the debt, deceased person, or in respect to the personal, political, or legal
the court may authorize, by an order made to that effect, the judgment condition or status of a particular person or his relationship to another,
obligee to institute an action against such person or corporation for the the judgment or final order is conclusive upon the title to the thing, the
recovery of such interest or debt, forbid a transfer or other disposition will or administration or the condition, status or relationship of the
of such interest or debt within one hundred twenty (120) days from person, however, the probate of a will or granting of letters of
notice of the order, and may punish disobedience of such order as for administration shall only be prima facie evidence of the death of the
contempt. Such order may be modified or vacated at any time by the testator or intestate;
court which issued it, or by the court in which the action is brought,
upon such terms as may be just. (45a) (b) In other cases, the judgment or final order is, with respect to the
matter directly adjudged or as to any other matter that could have
Section 44. Entry of satisfaction of judgment by clerk of court. been missed in relation thereto, conclusive between the parties and
Satisfaction of a judgment shall be entered by the clerk of court in the their successors in interest, by title subsequent to the commencement
court docket, and in the execution book, upon the return of a writ of of the action or special proceeding, litigating for the same thing and

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 138


under the same title and in the same capacity; and WHAT IS A FINAL JUDGMENT?
• One that finally disposes of the action or proceeding
(c) In any other litigation between the same parties or their successors • It is one that leaves nothing for the court to do so that it is now
in interest, that only is deemed to have been adjudged in a former appealable
judgment or final order which appears upon its face to have been so
adjudged, or which was actually and necessarily included therein or IS A SIN PERJUICIO JUDGMENT FINAL?
necessary thereto. (49a) • No, it leaves something more to be done as it reserves the
performance of the act
Section 48. Effect of foreign judgments or final orders. The effect of a
judgment or final order of a tribunal of a foreign country, having WHAT ARE THE EXCEPTIONS TO THE RULE THAT ONLY A FINAL
jurisdiction to render the judgment or final order is as follows: JUDGMENT IS EXECUTORY?
1. An order granting support pendent elite which is enforceable
(a) In case of a judgment or final order upon a specific thing, the by execution
judgment or final order, is conclusive upon the title to the thing, and 2. A judgment by an inferior court against a defendant in a
forcible entry or unlawful detainer case which is affirmed by
(b) In case of a judgment or final order against a person, the judgment the RTC unless the defendant appeals, files a bond and pays
or final order is presumptive evidence of a right as between the parties the monthly rentals
and their successors in interest by a subsequent title. 3. Judgment in case of an injunction, receivership, or accounting
which shall not be stayed after their rendition and before
In either case, the judgment or final order may be repelled by evidence appeal is taken, or during the pendency of the appeal, unless
of a want of jurisdiction, want of notice to the party, collusion, fraud, or otherwise provided by the court
clear mistake of law or fact. (50a)
AFTER A JUDGMENT BECOMES FINAL AND EXECUTORY IN THE
UPON WHAT BASIS SHALL EXECUTION ISSUE? SUPREME COURT, IS THERE A NEED TO REMAND THE RECORD OF
• Execution shall issue only upon judgment or order that finally THE CASE FOR PURPOSES OF EXECUTION?
disposes of the action or proceeding • If the appeal has been duly perfected and finally resolved, the
execution may forthwith be applied court of origin, on motion
IF A DECISION OF THE MTC IS AFFIRMED BY THE RTC AND IN TURN of the judgment obligee, submitting therewith certified true
APPEALLED TO THE CA AND FINALLY DECIDED BY LATTER, MAY copies of the judgment or judgments or final order or orders
THE WINNING PARTY MOVE FOR EXECUTION IMMEDIATELY IN THE sought to be enforced and of the entry thereof, with notice to
LOWER COURT? the adverse party.
• Yes, if the appeal has been duly perfected and the case finally • There is no need to wait for the records to be remanded to the
resolved, such execution may forthwith be applied for in the lower court
lower court from which the action originated, on motion of the
judgment obligee, submitting therewith, certified true copies of MAY THE TRIAL COURT ISSUE A WRIT OF EXECUTION ON THE
the judgment/s or final order/s sought to be enforced and of GROUND THAT APPEAL IS FRIVOLOUS AND DILATORY?
the entry thereof, with notice to the adverse party • No, such step devolves around the appellate court

WHAT IS THE REMEDY OF THE WINNING PARTY IF THE LOWER HOW MAY THE EXECUTION OF JUDGMENT BE ENJOINED?
COURT REFUSES TO ISSUE THE WRIT OF EXECUTION? 1. Petition for relief of judgment with prayer for injunction
• It can file a motion with the appellate court informing the latter 2. Annulment of judgment
of such refusal and an order be issued requiring the lower 3. Novation of judgment—in this case, despite final judgment,
court to issue the writ of execution. when the parties submit a compromise agreement

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 139


• Where the inevitable conclusion from the findings of facts is so


WHY IS IT A MINISTERIAL DUTY ON THE PART OF THE COURT TO indubitable and clear as to show that there was a mistake in
EXECUTE THE FINAL JUDGMENT? the dispositive portion
• It is ministerial because every litigation must come to an end
• Once the appellant’s right has been adjudicated in a valid MAY A FINAL AND EXECUTORY JUDGMENT BE CHANGED OR
judgment of a competent court, he should not be granted an AMENDED? WHY?
unbridled license to come back for another try • No, final and executory judgment may no longer be changed or
amended by the court except for clerical errors or mistakes
WHAT ARE THE EXCEPTIONS TO THE MINISTERIAL DUTY OF THE
COURT TO EXECUTE JUDGMENT ONCE IT HAS ATTAINED FINALITY? WHAT IS THE RULE WHEN THERE IS AMBIGUITY IN JUDGMENT?
1. It was issued improvidently • The remedy is clarification of the same even if it is now final
2. Defective in substance and before appeal is perfected
3. Was issued to the wrong party • The trial court has power to clarify it even after finality
4. Was issued for a debt already paid
5. Was issued without authority WHAT IS THE DIFFERENCE BETWEEN JURISDICTION TO CHANGE
6. Was issued but there has been a change in the situation of the JUDGMENT FROM JURISDICTION TO ENFORCE JUDGMENT?
parties which would make the execution inequitable JURISDICTION TO CHANGE JURISDICTION TO ENFORCE
7. Was issued on a controversy that was never submitted to the JUDGMENT JUDGMENT
judgment of the court and therefore, no judgment was ever Terminates upon finality of Continues even after finality of
rendered judgment judgment for the purpose of
execution and enforcement of the
WHAT PORTION OF THE JUDGMENT MAY BE EXECUTED? judgment
• The only portion that becomes subject of the execution is the Governed by Rule 39, Section 1 Governed by Rule 39, Section 6
one ordained in the dispositive part
IS THERE A DIFFERENCE BETWEEN THE POWER TO CORRECT
WHAT ARE THE EXCEPTIONS TO THE RULE: WHEN MAY THE COURT CLERICAL ERRORS AND POWER TO CORRECT JUDICIAL ERRORS?
ALLOW THE BODY TO PREVAIL OVER THE DISPOSITIVE PORTION? • Yes, it does not authorize the court to repair its own inaction,
1. Where there is ambiguity or uncertainty to make the record and judgment say what the court did not
2. Where extensive and explicit discussion and settlement of adjudge, although it had a clear right to do so
issue is found rather in the body of the decision • The court, cannot under the guise of correcting its record, put
upon it an order or judgment it never made or rendered, or
IF THERE IS CONFLICT BETWEEN THE DISPOSITIVE PORTION AND add something to either which wasn’t originally included,
THE BODY, WHICH SHALL PREVAIL? although it might and should have so ordered or judged in the
• Where there is conflict between the dispositive portion of the first instance
decision and body thereof, the dispositive portion controls
irrespective of what appears in the body of the decision HOW IS AMENDMENT OF JUDGMENT DISTINGUISHED FROM THE
• It is the dispositive portion that finally invests rights on the REMEDY OF NEW TRIAL?
parties, sets conditions for the exercise of those rights, and • The discretionary power given to judges to revise or amend
imposes corresponding duties or obligations their judgments before it has become final may be exercised
jointly with or separately from the power to grant new trial,
IS THERE AN EXCEPTION TO THE RULE THAT THE DISPOSITIVE although the exercise of the power to grant new trial
PORTION PREVAILS OVER THE BODY OF THE JUDGMENT? necessarily requires the revocation of the former judgment

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 140


ARE THERE ANY DISTINCTIONS BETWEEN AMENDMENT OF WHEN SHALL EXECUTION ISSUE AS A MATTER OF RIGHT?
JUDGMENT FROM CLARIFICATION OF JUDGMENT? • It shall issue as a matter of right upon the expiration of the
• Yes, the rules on amendment only apply when there is period to appeal therefrom, if no appeal has been duly
alteration, modification or change of final decision but not perfected
when there is only a clarification of the judgment • If the judgment has been duly appealed, execution may issue
as a matter of right from the date of service of notice provided
WHAT IS AN AMENDMENT BY ORDER NUNC PRO TUNC? for in Section 11, Rule 51
• Purpose is to make a present record of an order which the
court made at a previous term, but which wasn’t recorded WHAT IS THE PERIOD TO RECKON WITH IN DETERMINING
• It can only be made when the thing ordered has previously WHETHER APPEAL HAS BEEN PERFECTED IN TIME?
been made, but by inadvertence hasn’t been entered • For purposes of determining when an appeal is deemed
perfected, the commencement of the reglementary period shall
WHAT IS THE NATURE AND BASIS OF THE POWER TO AMEND be perfected from the last of the dates when any of the parties
JUDGMENT? received a copy of the decision
• The power of the court to amend and control its processes and • It is only after all the parties’ respective periods to appeal have
orders so as to make them comfortable to law and justice is lapsed that the court loses jurisdiction over the case
one of the inherent powers of the court
AS A RULE, IF THERE IS A CHANGE IN THE RELATIONSHIPS OF THE
WHAT ARE THE LIMITATIONS ON THE POWER TO AMEND PARTIES, EXECUTION CANNOT BE DONE. IS THE RULE ABSOLUTE?
JUDGMENT? • No, if there is a change in the relationship between the parties,
1. Limitation as to time: once final, no longer possible execution of a judgment should not push through
2. Limitation as to the nature of amendment: only clerical errors • Exception: when such change took place during the trial and
3. Limitation as to the court rendering the judgment: where the when the case is pending
judgment or decision sought to be amended is promulgated by
an appellate court, it is beyond the power of the trial court to IS AN ORDER OF EXECUTION APPEALABLE? IS THERE AN
change, amplify, enlarge, alter or modify EXCEPTION?
• No, an order of execution is not appealable
WHAT ARE SOME INSTANCES WHEN THE COURT CAN AMEND • Exception: if the terms of judgment are varied in the execution
JUDGMENT DESPITE IT BEING FINAL AND EXECUTORY? or when the terms of the judgment are not clear and there is
1. When after judgment has been rendered and the latter has no room for interpretation given by the lower court which is
become final, facts and circumstances transpire which render wrong, then, the party can appeal from said order so that the
its execution impossible or unjust, the interested party may appellate tribunal may pass upon the legality and correctness
ask the court to modify or alter the judgment to harmonize the of said order
same with justice and the facts
2. A judgment for support may be modified any time MAY A JUDGMENT BE EXECUTED PENDING APPEAL?
3. An interlocutory judgment is not appealable hence it is subject • Yes, upon motion of the prevailing party with notice to the
to modification and amendment by the court at any time adverse party, upon good reasons to be stated in the special
before final judgment order

WHAT IS THE NATURE OF A MOTION FOR EXECUTION PENDING IS FILING OF A BOND CONSIDERED A GOOD REASON TO JUSTIFY
APPEAL? IMMEDIATE EXECUTION?
• Execution pending appeal is a matter of discretion • No, it is merely imposed as additional protection to the debtor

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 141


WHAT MAY JUSTIFY THE EXECUTION OF JUDGMENT PENDING


CAN THERE BE EXECUTION PENDING APPEAL IF THERE IS AN APPEAL?
AWARD OF MORAL AND EXEMPLARY DAMAGES? • The existence of good reasons to be stated in a special order
• No, the award of moral and exemplary damages is dependent should be good ground for execution pending appeal, for the
on the final outcome of the case existence of good reasons is the element that gives validity to
an order of execution
WHEN MAY THE COURT GRANT A MOTION FOR EXECUTION
PENDING APPEAL? IS IT ALWAYS REQUIRED THAT THE GOOD REASONS BE STATED IN
• On motion of the prevailing party with notice to the adverse A SPECIAL ORDER?
party filed in the trial court while it has jurisdiction over the • No, while the rule requires that the reasons in support of
case and is in possession of either the original record or the execution pending appeal should be stated in a special order,
record on appeal, as the case may be, at the time of the filing this is not to be strictly construed if it would defeat the interest
of such motion, said court may, in its discretion, order of justice
execution of a judgment or final order even before the
expiration of the period to appeal. HOW MAY EXECUTION ISSUED BEFORE THE EXPIRATION OF THE
PERIOD TO APPEAL/DISCRETIONARY EXECUTION BE STAYED?
WHERE SHOULD A MOTION FOR EXECUTION PENDING APPEAL BE • It may be stayed upon approval by the proper court of a
FILED IF THE COURT HAS ALREADY LOST JURISDICTION OVER THE sufficient supersedeas bond filed by the party against whom it
CASE? is directed, conditioned upon the performance of the judgment
• After the trial court has lost jurisdiction, the motion for or order allowed to be executed in case it shall be finally
execution pending appeal may be filed in the appellate court sustained in whole or in part.

WHAT IS A SEVERAL JUDGMENT? MAY A JUDGMENT IN AN INJUNCTION, RECEIVERSHIP OR


• It is one rendered against one or more several defendants JUDGMENT DIRECTING AN ACCOUNTING BE STAYED BY APPEAL?
leaving the action to proceed against the others • Judgments in actions for injunction, receivership, accounting
and support, and such other judgments as are now or may
WHAT IS A SEPARATE OR PARTIAL JUDGMENT? hereafter be declared to be immediately executory, shall be
• It is one rendered at any stage of the action disposing of a enforceable after their rendition and shall not, be stayed by an
particular claim and leaving the action to proceed as to the appeal taken therefrom, unless otherwise ordered by the trial
remaining claims court. On appeal therefrom, the appellate court in its
discretion may make an order suspending, modifying,
WHEN MAY DISCRETIONARY EXECUTION ISSUE? restoring or granting the injunction, receivership, accounting,
• It may issue only upon good reasons to be stated in a special or award of support.
order after due hearing • The stay of execution shall be upon such terms as to bond or
otherwise as may be considered proper for the security or
HOW MAY A SEVERAL OR SEPARATE JUDGMENT BE EXECUTED? protection of the rights of the adverse party.
• The same manner as a judgment or final order pending appeal
SUPPOSE A JUDGMENT WAS RENDERED BY THE RTC AND
HOW IS THE RULE ON EXECUTION PENDING APPEAL EXECUTED ON APPEAL BUT REVERSED ON APPEAL, WHAT SHOULD
INTERPRETED? THE TRIAL COURT DO WHEN IT IS REMANDED?
• The rule on execution pending appeal shall be interpreted • Where the executed judgment is reversed totally or partially, or
restrictively annulled, on appeal or otherwise, the trial court may, on
motion, issue such orders of restitution or reparation of

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 142


damages as equity and justice may warrant under the limitations, a judgment may be enforced by action provided it
circumstances. is done within a period of 10 years from its entry or date of
finality.
WITHIN WHAT PERIOD MAY A JUDGMENT BE EXECUTED? • The revived judgment may also be enforced by motion within
• A final and executory judgment or order may be executed on five (5) years from the date of its entry and thereafter by action
motion within five (5) years from the date of its entry. After the before it is barred by the statute of limitations.
lapse of such time, and before it is barred by the statute of
limitations, a judgment may be enforced by action. The revived DOES IT MEAN THAT A JUDGMENT MAY HAVE DOUBLE FINALITY?
judgment may also be enforced by motion within five (5) years • Yes because the original judgment has its own period of finality
from the date of its entry and thereafter by action before it is and entry
barred by the statute of limitations.
STATE THE RULES ON THE EXECUTION OF A JUDGMENT AND SOME
WHAT IS THE BASIC PURPOSE OF THE REVIVAL OF JUDGMENT? QUALIFICATIONS
• The purpose of the action for revival is not to modify the 1. A judgment may be executed on motion within 5 years from
original judgment subject of the action but is merely to give a the date of entry
creditor a new right of enforcement from the date of revival 2. It may be enforced by independent action thereafter but within
10 years
WHAT ARE THE INSTANCES WHEN THE 5-YEAR, 10-YEAR PERIODS 3. The delay in payment of the obligation or any balance thereof
FOR THE EXECUTION OF JUDGMENT ARE SUSPENDED? committed by the defendant should not be counted in
1. When there is a law preventing the execution like a moratorium computing the 5 year period in executing the judgment by
law motion
2. When there is an injunction preventing the execution 4. Any interruption or delay occasioned by the defendant through
3. When there is an agreement by the parties staying the injunction, appeal or writ of error should not be computed
execution 5. If levy was made within the 5-year period, sale can be
4. When the debtor hid his properties and the judgment creditor conducted even beyond it, provided that it is done within 10
had to resort to proceedings supplementary to the execution years

MAY THE EXECUTION OF A JUDGMENT OF SUPPORT PRESCRIBE? HOW IS JUDGMENT EXECUTED IF PARTY DIED?
• No, a judgment for support doesn’t become dormant and the 1. In case of the death of the judgment obligee, upon the
5-year period for execution by motion doesn’t apply thereto application of his executor or administrator, or successor in
interest;
WHAT IS ONE’S REMEDY IF DESPITE THE LAPSE OF 5 YEARS, THE 2. In case of the death of the judgment obligor, against his
JUDGMENT HAS NOT BEEN ENFORCED? executor or administrator or successor in interest, if the
• One should file an action for revival of judgment and thus, new judgment be for the recovery of real or personal property, or
judgment would result and it can only be revived within 5 years the enforcement of a lien thereon;
3. In case of the death of the judgment obligor, after execution is
WITHIN WHAT TIME SHOULD AN ACTION FOR REVIVAL BE FILED? actually levied upon any of his property, the same may be sold
• It must be filed within 10 years, otherwise it will prescribe for the satisfaction of the judgment obligation, and the officer
making the sale shall account to the corresponding executor or
WHAT IS THE RULE ON DOUBLE REVIVAL OF JUDGMENT? administrator for any surplus in his hands
• A final and executory judgment or order may be executed on
motion within five (5) years from the date of its entry. After the HOW MAY A FINAL AND EXECUTORY JUDGMENT FOR MONEY
lapse of such time, and before it is barred by the statute of AGAINST A DECEASED PERSON BE ENFORCED?

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 143


• It should be filed as a money claim against his estate • It applies to a writ of execution of ordinary judgment for the
payment of money or the sale or delivery of real and personal
SUPPOSE THERE ARE PROPERTIES OF THE DECEDENT BEFORE HIS property
DEATH, MAY THE SAME BE SOLD TO SATISFY THE JUDGMENT? • It doesn’t apply to special judgments for specific acts
• Yes provided that they were levied before his death
WHAT SHOULD A MOTION AND THE WRIT OF EXECUTION STATE?
STATE THE FORM AND CONTENTS OF A WRIT OF EXECUTION • It shall specify the amounts of the principal obligation,
• The writ of execution shall: (1) issue in the name of the interests, costs, damages, rents and profits due as of the date
Republic of the Philippines from the court which granted the of the issuance of the writ
motion; (2) state the name of the court, the case number and
title, the dispositive part of the subject judgment or order; and HOW MAY EXECUTION OF MONEY JUDGMENT BE MADE?
(3) require the sheriff or other proper officer to whom it is 1. Immediate payment of demand
directed to enforce the writ according to its terms, in the 2. Satisfaction by levy
manner hereinafter provided: 3. Garnishment of debts and credits
(a) If the execution be against the property of the
judgment obligor, to satisfy the judgment, with HOW SHALL THE JUDGMENT OBLIGEE PAY?
interest, out of the real or personal property of such • The judgment obligor shall pay in cash, certified bank check
judgment obligor; payable to the judgment obligee, or any other form of payment
(b) If it be against real or personal property in the hands acceptable to the latter, the amount of the judgment debt
of personal representatives, heirs, devisees, legatees, under proper receipt directly to the judgment obligee or his
tenants, or trustees of the judgment obligor, to satisfy authorized representative if present at the time of payment.
the judgment, with interest, out of such property; The lawful fees shall be handed under proper receipt to the
(c) If it be for the sale of real or personal property to sell executing sheriff who shall turn over the said amount within
such property describing it, and apply the proceeds in the same day to the clerk of court of the court that issued the
conformity with the judgment, the material parts of writ.
which shall be recited in the writ of execution;
(d) If it be for the delivery of the possession of real or TO WHOM SHOULD PAYMENT BE MADE?
personal property, to deliver the possession of the • To the judgment obligee himself or if he is not present, the
same, describing it, to the party entitled thereto, and judgment obligor shall deliver the aforesaid payment to the
to satisfy any costs, damages, rents, or profits executing sheriff. The latter shall turn over all the amounts
covered by the judgment out of the personal property coming into his possession within the same day to the clerk of
of the person against whom it was rendered, and if court of the court that issued the writ, or if the same is not
sufficient personal property cannot be found, then out practicable, deposit said amounts to a fiduciary account in the
of the real property; and nearest government depository bank of the Regional Trial
(e) In all cases, the writ of execution shall specifically Court of the locality.
state the amount of the interest, costs, damages,
rents, or profits due as of the date of the issuance of WHAT IS THE POWER OF THE SHERIFF IF THE JUDGMENT DEBTOR
the writ, aside from the principal obligation under the CANNOT PAY?
judgment. For this purpose, the motion for execution • If the judgment obligor cannot pay all or part of the obligation
shall specify the amounts of the foregoing reliefs in cash, certified bank check or other mode of payment
sought by the movant. acceptable to the judgment obligee, the officer shall levy upon
the properties of the judgment obligor of every kind and nature
WHAT IS THE EXTENT OF THE APPLICABILITY OF THE RULES? whatsoever which may be disposed, of for value and not

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 144


otherwise exempt from execution giving the latter the option to than those mentioned in the two preceding sections, a certified
immediately choose which property or part thereof may be copy of the judgment shall be attached to the writ of execution
levied upon, sufficient to satisfy the judgment. and shall be served by the officer upon the party against whom
• If the judgment obligor does not exercise the option, the officer the same is rendered, or upon any other person required
shall first levy on the personal properties, if any, and then on thereby, or by law, to obey the same, and such party or person
the real properties if the personal properties are insufficient to may be punished for contempt if he disobeys such judgment.
answer for the judgment.
WHAT IS THE BASIC NATURE OF A SPECIAL JUDGMENT?
WHAT PROPERTIES MAY THE SHERIFF GARNISH? • It is one which can only be complied with by the judgment
• The officer may levy on debts due the judgment obligor and obligor because of his personal circumstances or qualifications
other credits, including bank deposits, financial interests,
royalties, commissions and other personal property not WITHIN WHAT PERIOD SHOULD A WRIT OF EXECUTION BE
capable of manual delivery in the possession or control of third RETURNED AND TO WHOM?
parties. • The writ of execution shall be returnable to the court issuing it
immediately after the judgment has been satisfied in part or in
HOW SHALL LEVY BE MADE? full.
• Levy shall be made by serving notice upon the person owing • If the judgment cannot be satisfied in full within thirty (30)
such debts or having in his possession or control such credits days after his receipt of the writ, the officer shall report to the
to which the judgment obligor is entitled. The garnishment court and state the reason therefor.
shall cover only such amount as will satisfy the judgment and • Such writ shall continue in effect during the period within
all lawful fees. which the judgment may be enforced by motion.
• The officer shall make a report to the court every thirty (30)
AFTER THE GARNISHMENT, STATE THE DUTY OF THE GARNISHEE? days on the proceedings taken thereon until the judgment is
• The garnishee shall make a written report to the court within satisfied in full, or its effectivity expires.
five (5) days from service of the notice of garnishment stating • The returns or periodic reports shall set forth the whole of the
whether or not the judgment obligor has sufficient funds or proceedings taken, and shall be filed with the court and copies
credits to satisfy the amount of the judgment. If not, the report thereof promptly furnished the parties.
shall state how much funds or credits the garnishee holds for
the judgment obligor. WHAT IS THE LIFETIME OF A WRIT OF EXECUTION?
• It has the lifetime of 5 years since the Rules say it shall
WHAT SHOULD BE DONE WITH THE AMOUNT OR CHECKS continue in effect during the period within which the judgment
GARNISHED? may be enforced by motion
• The garnished amount in cash, or certified bank check issued
in the name of the judgment obligee, shall be delivered directly WHAT ARE THE PROPERTIES EXEMPT FROM EXECUTION?
to the judgment obligee within ten (10) working days from 1. The judgment obligor's family home as provided by law, or the
service of notice on said garnishee requiring such delivery, homestead in which he resides, and land necessarily used in
except the lawful fees which shall be paid directly to the court. connection therewith;
2. Ordinary tools and implements personally used by him in his
WHAT ARE THE REQUIREMENTS IF A JUDGMENT REQUIRES THE trade, employment, or livelihood;
PERFORMANCE OF ANY ACT OTHER THAN PAYMENT OF MONEY OR 3. Three horses, or three cows, or three carabaos, or other beasts
SALE OF PROPERTY, IN SHORT, IF THE JUDGMENT IS A SPECIAL of burden, such as the judgment obligor may select necessarily
JUDGMENT? used by him in his ordinary occupation;
• When a judgment requires the performance of any act other 4. His necessary clothing and articles for ordinary personal use,

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 145


excluding jewelry; profits awarded by the judgment shall be satisfied in the same
5. Household furniture and utensils necessary for housekeeping, manner as a judgment for money.
and used for that purpose by the judgment obligor and his
family, such as the judgment obligor may select, of a value not HOW SHALL A JUDGMENT OR ORDER REQUIRING THE REMOVAL OF
exceeding one hundred thousand pesos; IMPROVEMENTS ON PROPERTY BE ENFORCED?
6. Provisions for individual or family use sufficient for four • When the property subject of the execution contains
months; improvements constructed or planted by the judgment obligor
7. The professional libraries and equipment of judges, lawyers, or his agent, the officer shall not destroy, demolish or remove
physicians, pharmacists, dentists, engineers, surveyors, said improvements except upon special order of the court,
clergymen, teachers, and other professionals, not exceeding issued upon motion of the judgment obligee after the hearing
three hundred thousand pesos in value; and after the former has failed to remove the same within a
8. One fishing boat and accessories not exceeding the total value reasonable time fixed by the court.
of one hundred thousand pesos owned by a fisherman and by
the lawful use of which he earns his livelihood; WHO MAKES THE DETERMINATION IF THE JUDGMENT OBLIGOR
9. So much of the salaries, wages, or earnings of the judgment CANNOT PAY IMMEDIATELY?
obligor for his personal services within the four months • It is determined by the judgment obligor himself
preceding the levy as are necessary for the support of his
family; WHAT IS THE EFFECT IF THERE IS A LEVY OVER A RIGHT, ETC. WITH
10. Lettered gravestones; RESPECT TO THIRD PERSONS?
11. Monies, benefits, privileges, or annuities accruing or in any • The levy on execution shall create a lien in favor of the
manner growing out of any life insurance; judgment obligee over the right, title and interest of the
12. The right to receive legal support, or money or property judgment obligor in such property at the time of the levy,
obtained as such support, or any pension or gratuity from the subject to liens and encumbrances then existing.
Government;
13. Properties specially exempted by law. SUPPOSE THE PROPERTY LEVIED UPON IS CLAIMED BY A THIRD
PERSON, HOW SHALL HE PROTECT HIS RIGHTS?
But no article or species of property mentioned in this section shall • If the property levied on is claimed by any person other than
be exempt from execution issued upon a judgment recovered for the judgment obligor or his agent, and such person makes an
its price or upon a judgment of foreclosure of a mortgage thereon. affidavit of his title thereto or right to the possession thereof,
stating the grounds of such right or title, and serves the same
HOW MAY THE OFFICER ENFORCING A JUDGMENT EXECUTE A upon the officer making the levy and copy thereof, stating the
JUDGMENT FOR THE RESTITUTION OR DELIVERY OF grounds of such right or tittle, and a serves the same upon the
PROPERTY? officer making the levy and a copy thereof upon the judgment
• The officer shall demand of the person against whom the obligee, the officer shall not be bound to keep the property,
judgment for the delivery or restitution of real property is unless such judgment obligee, on demand of the officer, files a
rendered and all persons claiming rights under him to bond approved by the court to indemnity the third-party
peaceably vacate the property within three (3) working days, claimant in a sum not less than the value of the property levied
and restore possession thereof to the judgment obligee, on. In case of disagreement as to such value, the same shall
otherwise, the officer shall oust all such persons therefrom be determined by the court issuing the writ of execution.
with the assistance, if necessary, of appropriate peace officers,
and employing such means as may be reasonably necessary to WHAT IS THE OBJECT OF A THIRD PARTY CLAIM?
retake possession, and place the judgment obligee in • A third-party claimant or any third person may vindicate his
possession of such property. Any costs, damages, rents or claim to his property wrongfully levied by filing the proper

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 146


action which is distinct and separate from that in which the • No, jurisprudence is replete with rulings that since the third-
judgment is being enforced party claimant isn’t one of the parties to the action, he could
not, appeal from the order denying his claim but should file a
WHAT IS THE REMEDY OF A JUDGMENT OBLIGEE IF THERE IS A separate reinvindicatory action against the execution creditor
FRIVOLOUS OR SPURIOUS THIRD-PARTY CLAIM? or the purchaser of the property after the sale of property at
• The remedy is to file his claim for damages in the same court public auction, or a complaint for damages against the bond
where the third-party claimant filed his third-party claim or to filed by the judgment creditor in favor of the sheriff
file a separate action
IS THE RULE THAT A COURT HAS NO POWER TO ENJOIN A CO-
WHAT IS THE PROPER REMEDY IF A THIRD-PARTY CLAIM IS EQUAL COURT ABSOLUTE?
DENIED? • No, when a third party or stranger asserts a claim over the
1. Action for damages against the sheriff to be brought within property levied upon, the claimant may vindicate his claim by
120 days from the filing of the bond an independent action in the proper civil court which may stop
2. Separate and independent action to vindicate his claim to the the execution of the judgment on property not belonging to the
property judgment creditor

WHAT IS THE EXTENT OF THE AMOUNT OF THE BOND? WHAT IS THE EFFECT IF THE JUDGMENT OBLIGEE PUTS UP A
• It shall not be less than the value of the property levied upon BOND?
• It is merely equivalent to the personal interference of the
WHEN IS THE SHERIFF NOT HELD LIABLE FOR DAMAGES IF HE indemnitor and his bondsmen in the course of the proceedings
KEEPS OR TAKES THE PROPERTY TO A THIRD-PARTY CLAIMANT? by directing and requesting the sheriff to hold and sell the
• He shall not be liable for damages for taking or keeping of the goods as if they were the property of the defendants to the
property, to any third-party claimant if such bond is filed attachment

EXECUTION MAY ONLY BE DONE AGAINST THE PROPERTIES OF WHICH IS MORE SUPERIOR: MORTGAGE LIEN OR SUBSEQUENT
JUDGMENT OBLIGOR. WHAT IS THE RECOURSE OF A THIRD PARTY SALE?
WHOSE PROPERTIES WERE LEVIED UPON? • The mortgage lien is more superior
• He can file a third-party claim
TO WHOM SHALL NOTICE OF SALE OF PROPERTY ON EXECUTION
ASIDE FROM A THIRD-PARTY CLAIM, WHAT IS ANOTHER REMEDY BE MADE?
ONE CAN AVAIL OF WHOSE PROPERTIES WERE LEVIED UPON? 1. In case of perishable property, by posting written notice of the
• Yes there is time and place of the sale in three (3) public places, preferably
• By executing an affidavit of his title and right of possession in conspicuous areas of the municipal or city hall, post office
over the property seized and serving the same upon the officer and public market in the municipality or city where the sale is
making the levy and the judgment creditor. Thereafter, unless to take place, for such time as may be reasonable, considering
the judgment creditor indemnifies the officer against such the character and condition of the property;
claim with a bond in a sum not greater than the value of thing 2. In case of other personal property, by posting a similar notice
levied on, the officer shall not be bound to keep the thing. in the three (3) public places above-mentioned for not less
• An action for damages may be brought against the officer than five (5) days;
within 120 days from the date of filing of the bond 3. In case of real property, by posting for twenty (20) days in the
three (3) public places abovementioned a similar notice
MAY A THIRD-PARTY CLAIMANT APPEAL FROM A JUDGMENT AND particularly describing the property and stating where the
IF NOT, WHAT REMEDY IS APPROPRIATE FOR HIM? property is to be sold, and if the assessed value of the property

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 147


exceeds fifty thousand (P50,000.00) pesos, by publishing a otherwise directed by the judgment or order of the court.
copy of the notice once a week for two (2) consecutive weeks in
one newspaper selected by raffle, whether in English, Filipino, HOW REAL AND PERSONAL PROPERTIES SHALL BE SOLD ON
or any major regional language published, edited and EXECUTION?
circulated or, in the absence thereof, having general circulation • When the sale is of real property, consisting of several known
in the province or city; lots, they must be sold separately; or, when a portion of such
4. In all cases, written notice of the sale shall be given to the real property is claimed by a third person, he may require it to
judgment obligor, at least three (3) days before the sale, be sold separately. When the sale is of personal property
except as provided in paragraph (a) hereof where notice shall capable of manual delivery, it must be sold within view of
be given the same manner as personal service of pleadings those attending the same and in such parcels as are likely to
and other papers as provided by section 6 of Rule 13. bring the highest price.

The notice shall specify the place, date and exact time of the sale WHO DIRECTS THE ORDER OF PROPERTIES TO BE SOLD?
which should not be earlier than nine o'clock in the morning and not • The judgment obligor, if present at the sale, may direct the
later than two o'clock in the afternoon. The place of the sale may be order in which property, real or personal shall be sold, when
agreed upon by the parties. In the absence of such agreement, the sale such property consists of several known lots or parcels which
of the property or personal property not capable of manual delivery can be sold to advantage separately.
shall be held in the office of the clerk of court of the Regional Trial
Court or the Municipal Trial Court which issued the writ of or which was MAY THE SHERIFF BECOME A PURCHASER IN THE EXECUTION
designated by the appellate court. In the case of personal property SALE?
capable of manual delivery, the sale shall be held in the place where • Neither the officer conducting the execution sale, nor his
the property is located. deputies, can become a purchaser, nor be interested directly
or indirectly in any purchase at such sale.
WHAT REQUIREMENTS MUST BE COMPLIED WITH IF THERE IS SALE
OF REAL OR PERSONAL PROPERTIES? HOW ABOUT IF THE OBJECT WHAT HAPPENS IF AFTER THE SALE, THERE ARE EXCESS
IS PERISHABLE? PROPERTIES OR PROCEEDS OF THE SALE?
• The notice of sale shall be given to the judgment obligor at • After sufficient property has been sold to satisfy the execution,
least 3 days before the sale no more shall be sold and any excess property or proceeds of
• If perishable, the notice is given at any time before the sale the sale shall be promptly delivered to the judgment obligor or
his authorized representative, unless otherwise directed by the
HOW MAY THE JUDGMENT OBLIGOR PREVENT THE SALE OF judgment or order of the court.
PROPERTY ON EXECUTION?
• At any time before the sale of property on execution, the WHAT IS THE EFFECT IF THE PURCHASER REFUSES TO PAY HIS
judgment obligor may prevent the sale by paying the amount BID?
required by the execution and the costs that have been • If a purchaser refuses to pay the amount bid by him for
incurred therein. property struck off to him at a sale under execution, the officer
may again sell the property to the highest bidder and shall not
MAY THE SHERIFF SELL MORE PROPERTIES TO SATISFY THE be responsible for any loss occasioned thereby; but the court
JUDGMENT? may order the refusing purchaser to pay into the court the
• No, after sufficient property has been sold to satisfy the amount of such loss, with costs, and may punish him for
execution, no more shall be sold and any excess property or contempt if he disobeys the order.
proceeds of the sale shall be promptly delivered to the • The amount of such payment shall be for the benefit of the
judgment obligor or his authorized representative, unless person entitled to the proceeds of the execution, unless the

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 148


execution has been fully satisfied, in which event such the place where the property is situated.
proceeds shall be for the benefit of the judgment obligor.
• The officer may thereafter reject any subsequent bid of such WHAT SHOULD BE CONTAINED IN THE CERTIFICATE OF SALE
purchaser who refuses to pay. ISSUED BY THE SHERIFF IN CASE THE PROPERTY SOLD BY THE
SHERIFF IS CLAIMED BY A THIRD PERSON?
WHAT IS THE EFFECT IF THE PURCHASER IS THE JUDGMENT • When a property sold by virtue of a writ of execution has been
OBLIGEE? claimed by a third person, the certificate of sale to be issued
• When the purchaser is the judgment obligee, and no third- by the sheriff pursuant to sections 23, 24 and 25 of this Rule
party claim has been filed, he need not pay the amount of the shall make express mention of the existence of such third-
bid if it does not exceed the amount of his judgment. If it does, party claim.
he shall pay only the excess.
WHO MAY REDEEM PROPERTY SOLD ON EXECUTION?
WHAT SHOULD THE OFFICER CONDUCTING THE SALE DO IF THE 1. The judgment obligor; or his successor in interest in the whole
PURCHASER PAYS THE PURCHASE MONEY, WHAT IS THE EFFECT? or any part of the property;
• When the purchaser of any personal property, capable of 2. A creditor having a lien by virtue of an attachment, judgment
manual delivery, pays the purchase price, the officer making or mortgage on the property sold, or on some part thereof,
the sale must deliver the property to the purchaser and, if subsequent to the lien under which the property was sold.
desired, execute and deliver to him a certificate of sale. The Such redeeming creditor is termed a redemptioner.
sale conveys to the purchaser all the rights which the
judgment obligor had in such property as of the date of the WHO IS A REDEMPTIONER?
levy on execution or preliminary attachment. • He is a person or a creditor having a lien by virtue of an
attachment, judgment or mortgage on the property sold, or on
WHAT IF THE PROPERTY SOLD IS NOT CAPABLE OF MANUAL some part thereof, subsequent to the lien under which the
DELIVERY, WHAT SHOULD THE OFFICER DO IF THE PURCHASER property was sold.
PAYS THE PURCHASE MONEY?
• When the purchaser of any personal property, not capable of WITHIN WHAT PERIOD AND WHAT AMOUNT MAY BE PAID IN CASE
manual delivery, pays the purchase price, the officer making OF REDEMPTION AND SUCCESSIVE REDEMPTION?
the sale must execute and deliver to the purchaser a certificate • The judgment obligor, or redemptioner, may redeem the
of sale. Such certificate conveys to the purchaser all the rights property from the purchaser, at any time within one (1) year
which the judgment obligor had in such property as of the date from the date of the registration of the certificate of sale, by
of the levy on execution or preliminary attachment. paying the purchaser the amount of his purchase, with the per
centum per month interest thereon in addition, up to the time
IF THERE IS SALE OF REAL PROPERTY, WHAT SHOULD THE of redemption, together with the amount of any assessments
OFFICER DO? or taxes which the purchaser may have paid thereon after
• Upon a sale of real property, the officer must give to the purchase, and interest on such last named amount at the
purchaser a certificate of sale containing: same rate; and if the purchaser be also a creditor having a
(a) A particular description of the real property sold; prior lien to that of the redemptioner, other than the judgment
(b) The price paid for each distinct lot or parcel; under which such purchase was made, the amount of such
(c) The whole price paid by him; other lien, with interest.
(d) A statement that the right of redemption expires one • Property so redeemed may again be redeemed within sixty
(1) year from the date of the registration of the (60) days after the last redemption upon payment of the sum
certificate of sale. paid on the last redemption, with two per centum thereon in
• Such certificate must be registered in the registry of deeds of addition and the amount of any assessments or taxes which

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 149


the last redemptioner may have paid thereon after redemption


by him, with interest on such last named amount, and in WHAT DOCUMENTS MUST THE REDEMPTIONER SHOW IN HIS
addition, the amount of any liens held by said last EXERCISE OF HIS RIGHT OF REDEMPTION?
redemptioner prior to his own, with interest. The property may • A redemptioner must produce to the officer, or person from
be again, and as often as a redemptioner is so disposed, whom he seeks to redeem, and serve with his notice to the
redeemed from any previous redemptioner within sixty (60) officer a copy of the judgment or final order under which he
days after the last redemption, on paying the sum paid on the claims the right to redeem, certified by the clerk of the court
last previous redemption, with two per centum thereon in wherein the judgment or final order is entered, or, if he
addition, and the amounts of any assessments or taxes which redeems upon a mortgage or other lien, a memorandum of the
the last previous redemptioner paid after the redemption record thereof, certified by the registrar of deeds, or an
thereon, with interest thereon, and the amount of any liens original or certified copy of any assignment necessary to
held by the last redemptioner prior to his own, with interest. establish his claim; and an affidavit executed by him or his
agent, showing the amount then actually due on the lien.
TO WHOM MUST NOTICE OF REDEMPTION BE ADDRESSED?
• Written notice of any redemption must be given to the officer WHAT ARE THE RIGHTS OF THE JUDGMENT OBLIGOR WHO IS IN
who made the sale and a duplicate filed with the registry of POSSESSION OF THE PROPERTY SOLD UNDER EXECUTION DURING
deeds of the place, and if any assessments or taxes are paid THE REDEMPTION PERIOD?
by the redemptioner or if he has or acquires any lien other • Until the expiration of the time allowed for redemption, the
than that upon which the redemption was made, notice thereof court may, as in other proper cases, restrain the commission
must in like manner be given to the officer and filed with the of waste on the property by injunction, on the application of
registry of deeds; if such notice be not filed, the property may the purchaser or the judgment obligee, with or without notice;
be redeemed without paying such assessments, taxes, or liens. but it is not waste for a person in possession of the property at
the time of the sale, or entitled to possession afterwards,
WHAT IS THE EFFECT IF THE JUDGMENT OBLIGOR IS THE during the period allowed for redemption, to continue to use it
REDEMPTIONER? in the same manner in which it was previously used, or to use
• If the judgment obligor redeems he must make the same it in the ordinary course of husbandry; or to make the
payments as are required to effect a redemption by a necessary repairs to buildings thereon while he occupies the
redemptioner, whereupon, no further redemption shall be property.
allowed and he is restored to his estate.
• He must make an actual tender in good faith of all the amount WHO IS ENTITLED TO THE RENTS AND EARNINGS DERIVED FROM
of the purchase price plus the creditor’s other legitimate THE PROPERTY SUBJECT OF EXECUTION FOR THE PERIOD OF
expenses like taxes, registration fees, etc. REDEMPTION?
• The purchaser or a redemptioner shall not be entitled to
WHAT IS THE REDEMPTIONER’S OPTION IF THE PERIOD OF receive the rents, earnings and income of the property sold on
REDEMPTION IS ABOUT TO EXPIRE AND THE REDEMPTION execution, or the value of the use and occupation thereof when
CANNOT TAKE PLACE ON ACCOUNT OF DISAGREEMENT OF THE such property is in the possession of a tenant.
REDEMPTION PRICE? • All rents, earnings and income derived from the property
• He may preserve his right of redemption through judicial pending redemption shall belong to the judgment obligor until
action which in every case must be filed within the 1 year the expiration of his period of redemption.
period of redemption. The filing of court action to enforce
redemption, being equivalent to a formal offer to redeem, WHEN IS A PURCHASER IN THE EXECUTION SALE ENTITLED TO A
would have the effect of preserving his redemptive rights and CONVEYANCE AND POSSESSION?
“freezing” the expiration of the one-year period • If no redemption be made within one (1) year from the date of

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 150


the registration of the certificate of sale, the purchaser is


entitled to a conveyance and possession of the property; or, if WHAT IS THE REMEDY OF THE JUDGMENT OBLIGEE IF AN OBLIGOR
so redeemed whenever sixty (60) days have elapsed and no OF THE JUDGMENT OBLIGOR DENIES THE DEBT OR ANOTHER
other redemption has been made, and notice thereof given, PARTY CLAIMS THE PROPERTY?
and the time for redemption has expired, the last • He may be authorized to institute the necessary action
redemptioner is entitled to the conveyance and possession
WHAT ARE THE REQUISITES OF LITIS PENDENTIA?
WHAT IS THE EFFECT OF THE EXECUTION AND DELIVERY OF THE 1. Identity of parties
DEED TO THE PURCHASER OR REDEMPTIONER? 2. Identity of rights asserted and relief prayed for
• Upon the expiration of the right of redemption, the purchaser 3. Identity in the two cases should be such that may be rendered
or redemptioner shall be substituted to and acquire all the in the pending case would regardless of which party is
rights, title, interest and claim of the judgment obligor to the successful, amount to res judicata in the other
property as of the time of the levy. The possession of the
property shall be given to the purchaser or last redemptioner WHAT ARE THE REQUISITES OF RES JUDICATA?
by the same officer unless a third party adversely to the 1. Earlier final judgment
judgment obligor. 2. Court which rendered the judgment has jurisdiction over the
subject matter and parties
WHAT ARE THE REMEDIES OF A PURCHASER OF REAL PROPERTY 3. Judgment on the merits
SOLD ON EXECUTION IF HE FAILS TO RECOVER POSSESSION 4. In the first and second cases, there must be identity of parties,
THEREOF AND IS EVICTED DUE TO IRREGULARITIES IN causes of action and subject matter
PROCEEDINGS CONCERNING THE SALE OF PROPERTY OR BECAUSE
THE JUDGMENT WAS REVERSED OR BECAUSE THE PROPERTY WHAT ARE THE EFFECTS OF A FOREIGN JUDGMENT OR FINAL
SOLD IS EXEMPT FROM EXECUTION OR A THIRD PARTY IS ORDER?
VINDICATED HIS CLAIM OVER THE PROPERTY? 1. In case of a judgment or final order upon a specific thing, the
• He may on motion in the same action or in a separate action judgment or final order, is conclusive upon the title to the
recover from the judgment obligee the price paid, with thing, and
interest, or so much thereof as has not been delivered to the 2. In case of a judgment or final order against a person, the
judgment obligor, or he may, on motion, have the original judgment or final order is presumptive evidence of a right as
judgment revived in his name for the whole price with interest, between the parties and their successors in interest by a
or so much thereof as has been delivered to the judgment subsequent title.
obligor.
HOW MAY A JUDGMENT OR FINAL ORDER OF A FOREIGN TRIBUNAL
WHAT IS THE EFFECT OF THE REVIVED JUDGMENT? OR COURT BE REPELLED?
• The judgment so revived shall have the same force and effect • The judgment or final order may be repelled by evidence of a
as an original judgment would have as of the date of the revival want of jurisdiction, want of notice to the party, collusion,
and no more. fraud, or clear mistake of law or fact.

WHAT MAY THE COURT DO TO PROTECT THE PROPERTIES OF THE WHAT ARE THE EFFECTS OF A JUDGMENT OR FINAL ORDER?
JUDGMENT OBLIGOR? 1. In case of a judgment or final order against a specific thing, or
• The court may appoint a receiver of the property of the in respect to the probate of a will, or the administration of the
judgment obligor; and it may also forbid a transfer or other estate of a deceased person, or in respect to the personal,
disposition of, or any interference with, the property of the political, or legal condition or status of a particular person or
judgment obligor not exempt from execution. his relationship to another, the judgment or final order is

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 151


conclusive upon the title to the thing, the will or administration


or the condition, status or relationship of the person, however, WHAT IS SATISFACTION OF JUDGMENT?
the probate of a will or granting of letters of administration • It means compliance or fulfillment of the mandate thereof and
shall only be prima facie evidence of the death of the testator may be obtained by means of execution or voluntary payment
or intestate;
2. In other cases, the judgment or final order is, with respect to WHAT ARE THE REMEDIES OF A JUDGMENT-OBLIGEE IN AID OF
the matter directly adjudged or as to any other matter that EXECUTION OF JUDGMENT?
could have been missed in relation thereto, conclusive between 1. When the judgment remains unsatisfied, in whole or in part,
the parties and their successors in interest, by title subsequent the judgment obligee, at any time after such return is made,
to the commencement of the action or special proceeding, shall be entitled to an order from the court which rendered the
litigating for the same thing and under the same title and in said judgment, requiring such judgment obligor to appear and
the same capacity; and be examined concerning his property and income before such
3. In any other litigation between the same parties or their court or before a commissioner appointed by it at a specified
successors in interest, that only is deemed to have been time and place
adjudged in a former judgment or final order which appears 2. He may cause the examination of obligor of judgment obligor
upon its face to have been so adjudged, or which was actually 3. He may ask for the application of properties or income of
and necessarily included therein or necessary thereto judgment obligor in his hands or in the hands of another
person after examination of judgment-obligor or the obligor of
IS THERE ANY DISTINCTION BETWEEN EXECUTION AND the latter
SATISFACTION OF JUDGMENT? 4. He may cause the appointment of a receiver of the properties
• Yes, the first is the method for enforcement of judgment and of judgment obligor not exempt from execution, or forbid a
the second means compliance with or fulfillment of the transfer or other disposition of or interference with such
mandate of the judgment property
5. If it appears that the judgment obligor has an interest in real
WHEN SHALL THERE BE ENTRY OF SATISFACTION OF JUDGMENT? estate in the place in which are proceedings had, as mortgagor
1. Satisfaction of a judgment shall be entered by the clerk of or mortgagee or otherwise, and his interest therein can be
court in the court docket, and in the execution book, upon the ascertained without controversy, the court may order the sale
return of a writ of execution showing the full satisfaction of the of such interest
judgment, or upon the filing of an admission to the satisfaction 6. If it appears that a person or corporation, alleged to have
of the judgment executed and acknowledged in the same property of the judgment obligor or to be indebted to him,
manner as a conveyance of real property by the judgment claims an interest in the property adverse to him or denied the
obligee or by his counsel unless a revocation of his authority is debt, the court may authorize, by an order made to that effect,
filed, or upon the endorsement of such admission by the the judgment obligee to institute an action against such person
judgment obligee or his counsel, on the face of the record of or corporation for the recovery of such interest or debt, forbid
the judgment. 
 a transfer or other disposition of such interest or debt within
2. Whenever a judgment is satisfied in fact, or otherwise than one hundred twenty (120) days from notice of the order, and
upon an execution on demand of the judgment obligor, the may punish disobedience of such order as for contempt.
judgment obligee or his counsel must execute and
acknowledge, or indorse an admission of the satisfaction as IN THE CASE STATED ABOVE, HOW MAY THE PURCHASER RECOVER
provided in the last preceding section, and after notice and THE PRICE PAID?
upon motion the court may order either the judgment obligee 1. File an action against the judgment obligee
or his counsel to do so, or may order the entry of satisfaction 2. On motion, after notice, have the original judgment revived in
to be made without such admission. 
 his name for the whole price with interest or so much as he

MA. ANGELA AGUINALDO ATENEO LAW 2010


REMEDIAL LAW REVIEW: CIVIL PROCEDURE COMPONENT (J. SABIO; ALBANO; FERIA/NOCHE) 152


may have delivered to the judgment debtor WHAT IS THE EFFECT OF A DISMISSAL OF ACTIONS BASED ON
LACK OF INTEREST OR FAILURE TO PROSECUTE?
WHAT ARE THE INSTANCES WHEN THE PURCHASER MAY RECOVER • It has the effect of res judicata because it is judgment on the
THE PRICE PAID IN EXECUTION SALE? merits
• If the purchaser of real property sold on execution, or his
successor in interest, fails to recover the possession thereof, WHEN IS THERE IDENTITY OF PARTIES?
or is evicted therefrom, in consequence of irregularities in the 1. When the parties in the second action the same with the
proceedings concerning the sale, or because the judgment has parties in the first action
been reversed or set aside, or because the property sold was 2. When the parties in the second action are the successors in
exempt from execution, or because a third person has interest of the parties in the first action
vindicated his claim to the property
WHEN IS THERE IDENTITY OF SUBJECT MATTER?
WHAT ARE THE REQUISITES OF RES JUDICATA? • There is identity if in the second case, the same thing is
1. The judgment must be final involved or included in that involved in the first case
2. It must have been rendered by a court with competent
jurisdiction WHEN IS THERE IDENTITY OF CAUSES OF ACTION?
3. It must have been adjudication on the merits • For purposes of res judicata, there is identity when the two
4. There must be between the two cases, same parties, same actions are based on the same delict or wrong committed by
subject matter and cause of action the defendant, even if the remedies be different
• Test: whether the same evidence fully supports or establishes
WHAT IS THE DOCTRINE OF PRECLUSION OF ISSUES OR both the first and second cases
COLLATERAL ESTOPPEL?
• It is known as the doctrine of conclusiveness of judgment, DISTINGUISH “BAR BY PRIOR JUDGMENT” AND
where issues actually and directly resolved in a former suit “CONCLUSIVENESS OF JUDGMENT”
cannot again be raised in any future case between the same BAR BY PRIOR JUDGMENT CONCLUSIVENESS OF
parties involving a different cause of action JUDGMENT
• Public policy is the reason behind this rule: judgments of All three: identity of parties, If there is no identity of cause of
courts determining controversies submitted before them subject matter and cause of action and all other requisites are
should become final at some definite time fixed by law action are present present
First judgment constitutes a bar First action conclusive only on
WHEN IS A JUDGMENT CONSIDERED ONE ON THE MERITS? to all matters directly adjudged as matters actually litigated and
• A judgment is one on the merits when it amounts to a well as matters that might have adjudicated in the first action
declaration of the law to the respective rights and duties of the been adjudged in the first action
parties, based upon the ultimate facts or state of facts
disclosed by the pleadings and evidence, and upon which the CAN A PARTY IMPEACH A DOMESTIC JUDGMENT?
right of recovery depends, irrespective of formal, technical, or • No, a domestic judgment may not be impeached on the
dilatory objectives or contentions ground of clear mistake of law or fact under the doctrine of res
judicata, no matter how erroneous a judgment may be, once it
ONLY JUDGMENT ON THE MERITS MAY BE INVOKED FOR RES has become final, it cannot be thereafter corrected
JUDICATA. WHAT IS THE EXCEPTION?
• Dismissal which by express provision of the law is an WHAT ARE THE GROUNDS TO IMPEACH JUDGMENT?
adjudication on the merits • Lack of jurisdiction, collusion, and fraud

MA. ANGELA AGUINALDO ATENEO LAW 2010