CIVIL

PROCEDURE 1


CONTENTS:

I. General Overview
II. Referral To Lupon
III. Jurisdiction
IV. Parties
V. Complaint
VI. Filing Of Complaint
VII. Options Of The Defendant
VIII. Other Pleadings
IX. Amendment
X. Supplemental Pleadings
XI. Motion To Intervene
XII. When To File Responsive Pleadings
XIII. Pre Trial
XIV. Mediation
XV. Judicial Dispute Resolution
XVI. Pre-Trial Proper
XVII. Trial
XVIII. Demurrer To Evidence
XIX. Judgment
XX. Remedies Before Finality
XXI. Remedies After Finality
XXII. Execution Of Final Decision
XXIII. Special Judgments
XXIV. Provisional Remedies
XXV. Modes Of Discovery
XXVI. Special Civil Actions















 CIVIL PROCEDURE 2

CIVIL PROCEDURE

I. GENERAL OVERVIEW

COMPLAINT
Case over

court settlement

Defendant’s YES

motion to
dismiss/ Mediation
summons
answer and JDR

NO



Pre-trial


Defendant’s TRIAL
dismissed YES
demurer to
evidence


NO


execution finality Judgment



MR/MNT/
Appeal


Supreme
Court


JUDGMENT



CIVIL PROCEDURE 3

II. REFERRAL TO LUPON

Rationale
Court dockets are clogged.

Coverage
All civil cases except settlement of estate, land registration, marriage.
All except if a party is:
• Juridical or artificial entity
• The government of the Philippines
• Residents of different cities and municipalities
• Properties are found in different cities or municipalities.
• Etc.

Finality of Settlement; Execution of Settlement
A settlement becomes final after the lapse of 10 days. Thus, within 10 days, a
party may repudiate and ask instead a CERTIFICATE TO FILE ACTION in court.
If the settlement becomes final, the Lupon shall execute it. The settlement has
the same force and effect of a judgment rendered by court.

Rule if Parties Reside in Different Barangays
If the parties reside in different barangays, the lupon shall be conducted at
respondent’s barangay because usually, it is the respondent who will incur
responsibility. Thus, execution of settlement will be made easier without violating
territorial jurisdiction of each barangay.

Period of Execution; Remedy of Enforcement
The Lupon has 6 months to execute a settlement.
If the 6 months lapsed without the settlement being executed, plaintiff shall file
in court ENFORCEMENT of barangay settlement. The case will not be tried again
because it is already settled.

Effect of Bypassing Lupon
If lupon is bypassed and the case is filed straightly to court, the case will be
dismissed based on Rule 16, section 1(j), “That a condition precedent for filing the
claim has not been complied with”
“Non-referral to Lupon” is a different ground which only applies in summary
proceedings.

As part of the Complaint
In the complaint, it must be alleged that proceedings in the lupon were
conducted and the certificate to file action must be attached.
However, if the case falls under the exemption of conducting lupon, it must be so
alleged in the complaint just the same.

CIVIL PROCEDURE 4


III. JURISDICTION

Jurisdiction is conferred by law under BP 129 “AN ACT REORGANIZING THE
JUDICIARY, APPROPRIATING FUNDS THEREFOR, AND FOR OTHER PURPOSES”
Jurisdiction is conferred by law but is determined by the allegations of the
complaint. Therefore, regardless of the judge’s belief, the allegations control.

MTC/MeTC/MTCC/MCTC
These are the first Level courts.
MTC in all municipalities; MeTC only in metropolis; MTCC in cities; MCTC for
several municipalities.

RTC
Judicial Region, not the political region.
There are 13 juducial regions

CA
There are 3 offices each of which is found in Luzon, Visayas and Mindanao.
There are 69 justices assigned in 23 divisions.
A case will be raffled to one presiding justice and another raffle will determine
the ponente.

SC
There are 15 justices
Chief Justice of the Philippines
En banc/divisions

Original Jurisdiction versus Appellate Jurisdiction
In the former, a case is heard for the first time; all courts have original
jurisdiction.
In the latter, a case is not heard for the first time; all except MTC has appellate
jurisdiction

Exclusive and Concurrent Jurisdiction
“Exclusive” means for that court alone. All have exclusive jurisdiction
“Concurrent” means any of them can take cognizance. All except MTC have.









CIVIL PROCEDURE 5


JURISDICTION





Original Appellate







Exclusive Concurrent




RTC/CA/SC
CA has only one
You can file certiorari in any of them.
exclusive
However, we have the DOCTRINE OF
jurisdiction –
HIERARCHY OF COURTS. Thus, even if
ANNULMENT
there is concurrent jurisdiction, you still
OF JUDGMENT
have to file the case in the lower courts.
OF RTC The reasons are:
1. Respect
2. Docket fees are cheaper in lower
courts
3. Convenience
4. Affords more opportunity to appeal

The following are concurrent
jurisdictions:
1. RTC-CA-SC for MTC grave abuse
2. CA-SC for grave abuse of RTC
3. SC-RTC about ambassadors









CIVIL PROCEDURE 6

Original Jurisdiction of RTC
1. Incapable of Pecuniary Estimation
• There are two tests to determine whether a case is capable or
incapable of pecuniary estimation:
a. Nature of Action: read all the allegations in the complaint. We
follow this rule.
b. Ultimate objective
2. If capable of Pecuniary Estimation
• Look into the jurisdictional amount, thus:
a. Recovery of Real Property
• ownership/ possession/ any interest therein
• look at the assessed value (which is at most, constant) at
the tax declaration
MTC RTC
Metropolitan 50,000 and below Above 50,000
courts
others 20,000 and below Above 20,000


Problem:
A and B are adjoining owners of lots separated only by a fence. A’s lot was
worth 25k. He seeks to recover a portion of his lot which is usurped by B by moving
his fence before the RTC. However, B argues that RTC has no jurisdiction because the
claimed portion of the lot is just 1/5 or 5k worth of A’s lot.

Held:
RTC has jurisdiction. What is required by law is the assessed value of the
whole or totality of the lot and not just the claimed part. Otherwise, parties will be
forced to do mathematical computation and even surveying just to determine
jurisdiction, which is very impracticable.

b. Settlement of Estate
• Look at the gross value or everything that composes the
estate
• File where he resided at the time of death. However, if he
lives outside Philippines, file where the property is located.
MTC RTC
Metropolitan 400,000 and below Above 400,000
courts
others 300,000 and below Above 300,000
c. Maritime jurisdiction
d. Recovery of personal property
• The value claimed/ market value determines jurisdiction
CIVIL PROCEDURE 7

e. Sum of money
• Consider the PRINCIPAL amount only, exclude interest,
damages.
• MTC cannot award more than its jurisdiction otherwise
such award is null and void but it can award less than its
jurisdiction.
f. Damages
• Add all regardless of nature
• The total determines the jurisdiction
3. Those previously under the SEC like intra and intercorporate disputes
• The RTC will be considered commercial courts
4. General Jurisdiction
• Any case that you do not know where to file
5. Family courts
• The SC designated RTCs as Family Courts
a. Criminal cases – where accused or victim is a minor regardless
of the crime committed or penalty attached or where one of
the accused is the only minor.
b. Civil cases – where there is a change of name or sex but not
merely clerical errors because it will be the local civil
registrar’s duty
c. Affecting legitimacy of the child

Problem:

Parents invented the place and date of marriage.
Held:

Family court has jurisdiction. It affects the status of child

Appellate Jurisdiction of RTC

All cases decided by the MTC in its territorial jurisdiction

Original Jurisdiction of MTC
MTC has no appellate jurisdiction but has original jurisdiction:
1. 300k and below for sum of money and others
2. 50k and below for recovery of real property in metropolis
3. 20k and below in other places
4. Forcible entry and unlawful detainer – regardless of assessed value or
rentals, respectively.

SC Appellate Jurisdiction Emanating from RTC
1. Where capital penalty is imposed
2. Constitutionality of a law, ordinance, etc.
3. Validity of tax laws
4. Jurisdiction of RTC is at issue
5. Questions of law
 CIVIL PROCEDURE 8

IV. PARTIES

Plaintiff (files complaint) versus Defendant
Petitioner (files petition in versus Respondent
special proceedings)

Real Parties in Interest
They are persons supra, who will be affected by whatever decision the court
makes.
All actions must be prosecuted in the name of or in behalf of the real parties
in interest. Otherwise, there will be lack of legal personality.

Problem:
Car owner appointed agent to sell the former’s car. The buyer
did not pay. Can the agent in his own name sue the buyer?

Held:
NO.
An agent is not a real party in interest because ultimately, it
will be the car owner who will be affected by a court decision.

NOTE:
The case must nevertheless, not be dismissed because what is
involved is merely a formal error which may be made subject of an
amendment. Thus, the complaint shall be amended as “car owner,
represented by agent”

Kinds of Parties
1. Indispensable
They are the real parties in interest or the one affected by any
decision. Thus, in every case, there must always be an indispensable plaintiff
and indispensable defendant.
2. Necessary
If you want a complete relief, necessary parties must be included.

Problem:
A and B are joint debtors of X in the amount of 1M. If X sues A, how much can he
recover?

Held:
Only 500k. Since A and B are joint debtors, then there are as many obligations as there
are defendants.
In this case, X and A are the indispensable parties. If X wants a complete relief, he must
include B who will be called the necessary party. Whoever is sued first becomes the
indispensable party defendant.


CIVIL PROCEDURE 9

Problem:
A, owner of a parcel of land, mortgaged the same to X in turn of
a loan. Subsequently, A mortgaged the second time the same land to Y.
X foreclosed the mortgage and obtained said parcel of land but found
out another mortgage.

Held:
If X sues A, they are the indispensable parties. If X includes Y, Y
becomes the necessary party.


3. Representative
They merely represent. They are the attorneys-in-fact. In the example
supra, the agent representing the car owner is the representative party.

4. Nominal/ Pro-forma
These are persons who are merely named in a case


Problem:
X files a case against Y which the RTC dismissed. Then, X files a
certiorari for grave abuse against honorable RTC judge. Determine the
parties.

Held:
X and Y are still the indispensable parties. The honorable judge
is a nominal party because his order is the subject of the case. Y carries
the honorable judge. The judge as public respondent cannot answer. It
will be Y as private respondent who shall file the answer


Problem:
In a case, “married woman, assisted by loving husband versus
married woman, assisted by loving husband” determine the parties.

Held:
Both married woman are indispensable parties. Both loving
husbands are mere nominal parties.

NOTE:
A married woman assisted by her husband does not apply in
cases of judicial separation, involving her profession, her paraphernal
properties, quasi-delict, crime.



CIVIL PROCEDURE 10

5. Quasi parties
They are the “as if” parties. Their names do not appear. Neither do
they appear in court but they stand to be benefitted or prejudiced by a
decision.

Problem:
Residents of brgy. Piggery seek to file an abatement case
against the piggery of X. A,B,C,D and E file a case entitled “A,B,C,D,E and
those similarly situated versus X”. Determine the parties.

Held:
A,B,C,D and E on one hand and X on the other, are the
indispensable parties. Those similarly situated are the quasi-parties.

NOTE:
Elements of Class Suit:
a) Common or general interest
b) Parties are so numerous that it is impracticable to bring them
all to court.


Problem:
An owner of land was surprised to learn that his land is now
the sanctuary of informal settlers. If owner files a case against them, is
there a class suit?

Held:
NONE.
It is because each informal settler is only interested in that
portion of the land where their house is erected. No common interest.
Owner of land shall file a case to each and against them.


Death of a Party
Once a client dies, the lawyer-client relationship ceases. Continuing the case
would render the subsequent proceedings null and void. The lawyer shall stop
handling the case and await the heirs’ approval.
Moreover, it is the duty of the lawyer:
1. To inform the court within 30 days from death or notice of death
2. To give the names and addresses of the legal representatives
• The lawyer files a notice of death and attached thereto is the
certificate of death of client and the names and addresses of the legal
representatives.
Thereafter, the court shall issue and order of SUBSTITUTION by the heirs as
the legal representatives and for them to appear at the next scheduled hearing for
the court to acquire jurisdiction.

CIVIL PROCEDURE 11

Effect of Death to the Civil Case
1. The following civil actions survive the death of the parties and thus may not be
dismissed but continued by legal representatives:
a) Real/Personal property is involved
• The court will continue to hear the case because it has acquired
jurisdiction over the res or the thing.
b) Sum of Money
• If the plaintiff dies, legal representatives take over.
• If the defendant dies,
o Before the filing of case, a case for sum of money will not be
proper. Instead, make a claim before the probate court against
the estate of the deceased defendant. The claim must be
accompanied with sufficient proof and you will be treated as an
ordinary creditor.
o After the filing, and he dies during the pendency of the case,
the case will go on. Legal heirs will take over until final
judgment. No need to secure execution of judgment. Bring the
judgment in the probate court and you will be treated as
preferred creditor. No need to prove claim.
c) Damages
• If the plaintiff dies, legal representatives take over
• If the defendant dies,
o Before the filing of a case, still file a case against the heir or
administrator or executor of estate.
o After filing, and during pendency of case, the case will go on.

Sum of Money versus Damages
The rules differ when the defendant dies before filing the case.
It is because the probate court has only limited jurisdiction which is
for succession. Damages should be proven and proven with certainty.
Thus, prove damages before the regular courts and not the probate
court.


2. Cases that do not survive the death of a party are those which involve purely
personal rights.
• “Personal” means anything that does not involve real property
• “Purely” means that only that party can do.
• Examples are support, annulment, legal separation
• In which cases, they shall be dismissed.
• Death here is not presumptive death but actual death because the former
never becomes final; it is always subject to reappearance.



CIVIL PROCEDURE 12

V. COMPLAINT – initiatory pleading

Content of Complaint
Cause of Action (COA)
• Elements:
o The plaintiff has a right
o Defendant has the obligation to respect that right
o Defendant violates such right
o Plaintiff suffered damaged as a result of such violation

Problem:
X entered into a contract of lease with Y for January to December 2015. At
February 2016, X as lessee is still there. Y files an unlawful detainer case. Does Y have a
cause of action?

Held:
Yes. Vis the elements:
• Y has the right to occupy
• X should respect that right
• X violated that right by unlawfully detaining
• Y is deprived of possession, use and fruits.

Problem:
If in the same case as above, Y filed the UD case on August 2015. Is there COA?

Held:
NONE. The 3rd and 4th elements are not attendant. Case shall be dismissed for
lack of COA.

NOTE:
Rule 16 provides for the grounds for a motion to dismiss. However, for lack of
cause of action, basis for such ground is Rule 2.


Problem:
In the case where the agent of car owner sues the buyer, distinguish the legal
effects of choosing lack of personality on one hand and lack of cause of action on the
other hand as defenses.

Held:
If the ground is lack of personality to sue, the case will not be dismissed but the
complaint will be merely amended to include car owner.
If the ground is lack of cause of action, the case will be dismissed because the
right to the car does not belong to the agent but the owner.

NOTE:
In contract of lease, a sublessee is not the proper defendant but the lessee
because it is the latter which violated the right of the lessor by subcontracting.


CIVIL PROCEDURE 13

• Rules regarding cause of action:
o 1 cause of action is 1 civil action only
§ This rule is mandatory
§ Thus, splitting a cause of action is a basis for dismissal a
case but the grounds that shall be used are either res
judicata or lis pendens. If the first case is decided, the
second case will be barred by res judicata. If the first
case is pending and a second case is filed, the latter is
dismissble on the ground of lis pendens.
§ The purpose is to avoid multiplicity of suits

Problem:
P files a case for recovery of car from D. Thereafter, P filed
another case for damages and rentals from D for subleasing the same
car. Will the second case prosper?

Held:
NO. There is only one single cause of action which is the right to
the car but was split in two civil cases.

NOTE:
He should have filed recovery of personal property with
damages.



Problem:
If in the same case as above, D filed a separate claim for
recovery of value of improvements of car. Will his case prosper?

Held:
NO.
The same right to the car is involved hence, there is only one
COA. The subsequent case is dismissible on the ground of splitting a
cause of action.

NOTE:
D should have made a “counterclaim” in the same case initiated
by P since the counterclaim is compulsory involving the same
transaction.

o 2 or more causes of action may be in 1 civil action
§ this rule is merely permissive
§ it is otherwise known as “joinder of actions”
§ the purpose is also to avoid multiplicity of suits
CIVIL PROCEDURE 14


Problem:
P seeks to recover damages amounting to 200k and recovery of
personal property valued at 100k against D. Should they be filed
separately or jointly?

Held:
EITHER.
The rule in joinder of action is merely permissive. But should
he file a joinder of action, he files it before an MTC.


§ LIMITATIONS:
Ø Jurisdiction over the subject matter (what
court)
− This limitation applies only to the MTC
− You can only file a joinder of action before
the MTC if, both causes of action are within
the jurisdiction of the MTC

Problem:
X sues on one case recovery of personal property valued at
100k and damages in the amount of 500k on the other. Can he make
joinder of actions in MTC?

Held:
NO.
The recovery of personal property valued at 100k is within
MTC’s jurisdiction but the 500k claim for damages is under RTC’s
jurisdiction. Joinder of action before the MTC cannot be done if one of
the causes of action is under RTC’s jurisdiction.

NOTE:
He can nevertheless file a joinder of action before the RTC. The
rule is, a joinder of action before the RTC may be made as long as one
or some of the causes of action shall be within its jurisdiction.



Ø Venue (where court – geographical location)
− Real actions involve real properties while
personal actions involve all others.
− The rule in real actions is that, the case
shall be filed at the location of the property.
CIVIL PROCEDURE 15

− The rule in personal action is that, the
plaintiff may choose between his place of
residence or that of the defendant’s.
− As a limitation, when plaintiff files both a
real and personal action, the right to
choose where to file a personal action
cannot be exercised because the real action
limits venue to the location of the property.
He has no other choice but to file both
actions where the property is located.

Problem:
X files a real action to recover real property located in Baguio
worth 15k. Thus, he files it with MTCC of Baguio accordingly. He
thereafter files a case of damages in the amount of 500k. Thus, he files
it with RTC La Trinidad. Can there be a joinder of action?

Held:
YES.
But, the joinder of action must be filed with RTC Baguio. RTC
because one of the causes of action is within RTC’s jurisdiction
(damages). Baguio because it is where the real property is located.



Jurisdiction versus Venue


There can be no stipulation as to jurisdiction but venue can be
agreed upon provided:
a. such agreement be in writing and made before any action
b. it must be mandatory, expressed by its language (e.g. the use of
shall, must, to the exclusion of)

A contract of adhesion is not binding. Both parties must consent to
the agreement as to venue. Ticket bus containing stipulation where to
file any complaint is in the nature of contract of adhesion hence not
binding.


Ø Non-joinder of a special civil action AND
ordinary civil action
− The consequence would be a “misjoinder
of action” which is nonetheless non-
dismissible but must only be separated and
decided separately by the court.
 CIVIL PROCEDURE 16


Problem:

P files an unlawful detainer case with damages but included a

collection of sum of money amounting to 150k representing water,

and electricity bill, both being filed before MTC. Was there a valid

joinder?



HELD:

NONE.

Unlawful detainer is a special civil action and collection of sum

of money is an ordinary civil action which cannot be joined as

proscribed by law. This is a case of misjoinder of action.



NOTE:

The damages in unlawful detainer shall cover only the rentals

and reasonable attorneys fees and no other else.




Problem:

If in the same case as above, the collection suit amount is 450k,

will there still be a misjoinder?



Held:

NONE.

In this case, there will be lack of jurisdiction. Unlawful detainer

is a case cognizable by the MTC but the collection suit of 450k is under
RTC’s jurisdiction. MTC has therefore no jurisdiction to try the
collection suit.

Ø Proper joinder of parties
− There is proper joinder of parties if there is
a common question of fact and law to all.

Problem:

A,B,C,D and E are passengers who seek to sue Y for breach of contract and claim of
damages in the amount of 100k, 150k, 50k, 200k, and 75k respectively. Shall they file

separately or jointly?

Held:
EITHER.
If they wish to file separately, they may do so by filing individual cases before MTC
since individually the money claims are cognizable by MTC.
Should they choose to file as one, then there will be a joinder of parties but it shall be
the RTC which has jurisdiction pursuant to totality rule.

NOTE:
The totality rule states that the aggregate sum of all the amount claimed shall
determine the jurisdiction. This rule applies only to monetary claims.






CIVIL PROCEDURE 17

Problem:
A sues X, Y, and Z for unpaid groceries of 50k, unremitted sales
of 100k and promissory note of 50k, respectively. Can the defendants
be joined?

Held:
NO.
There is no proper joinder of parties because there is no
common question of fact and law.




Form of Complaint

Parts of a complaint:

1. Heading

Republic of the Philippines
Leave this blank if it is a
1st Judicial Region multi-sala court because it
RTC/MTC will be raffled.
Branch _____
Baguio city



2. Title

ABC
Plaintiff

Civil Case no.

-versus- For:
damages
XYZ
defendant
x-----------------------x



• Put all the complete names even if they are numerous

• If plaintiff is a corporation, “ABC corporation represented by John Doe” is

used and attached to the complaint is a board resolution authorizing

john doe.
• If defendant is a corporation and you do not know the president, “ABC
corporation represented by its president”


CIVIL PROCEDURE 18

3. Body

COMPLAINT
Comes now…_______________________
_________________________________________________

1. ___personal circumstance of P and D____
_________________________________________________
2. _____material facts chronologically_______
_________________________________________________
3. ______________________________________________
_________________________________________________

PRAYER The wherefore are specific awards. The
WHEREFORE… other relief covers general awards that
court grants but are not asked by plaintiff
Other relief…
like cost against defendant

Place and Date of preparation
_______________________
counsel for plaintiff Without the signature, the complaint has
address/signed no legal effect. It could be trashed.

or,

XYZ law firm It is the lawfirm that represents, any
member thereof can represent.
Counsel for p

By:___________________
Of counsel
PTR is professional tax receipt
PTR #, DI, PI paid to the city or provincial but not
municipal in order to practice.
IBP #, DI, PI Without MCLE, court is not duty
Lifetime member bound to receive complaint.
MCLE compliance no.
Roll no.


4. Verification and certification
•
Both are sworn statements

• Verification may be made by the lawyer. On the other hand,
Certification must be done by the plaintiff or all the plaintiffs except if
there exist common interest in which case a few may certify like heirs,
co-owners, a spouse involving conjugal partnership.
• Purpose of verification is to assure the truth of the facts alleged. On the
other hand, the purpose of certification is to avoid a situation where
parties can solicit different courts for a favorable judgment thereby not
putting an end in litigation.
• Certification is mandatory in all initiatory pleadings. However, it is not
jurisdictional meaning, even if you do not have it, the court does not
lose jurisdiction.
• Lack of certification
CIVIL PROCEDURE 19

o Cannot be cured by amendment.
o May cause the dismissal of the case but it is not automatic.
o The case will be set for initial hearing to explain the lack thereof.
If the court believes, you will be allowed to belatedly file a
certification. Or, you may resort to amendment but you will be
required to refile the complaint again along with the
certification and pay another docket fee
o Non compliance with court’s order is ground for dismissal of the
case but it is without prejudice meaning, you can refile it but
paying docket fees again
• Lack of verification can be cured by mere amendment. It is just a formal
defect.


VERIFICATION AND CERTIFICATION OF NON-FORUM SHOPPING


I, _______________________, of legal age, after having been duly sworn in accordance with law,

depose and state that:


1. I am a plaintiff in the above-stated case;


2. I caused the preparation of the foregoing complaint;

3. I have read the contents thereof and the facts stated therein are true and correct of my
personal knowledge and/or on the basis of copies of documents and records in my possession;


4. I have not commenced any other action or proceeding involving the same issues in the

Supreme Court, the Court of Appeals, or any other tribunal or agency;


5. To the best of my knowledge and belief, no such action or proceeding is pending in the
Supreme Court, the Court of Appeals, or any other tribunal or agency;

6. If I should thereafter learn that a similar action or proceeding has been filed or is pending
before the Supreme Court, the Court of Appeals, or any other tribunal or agency, I undertake to
report that fact within five (5) days therefrom to this Honorable Court









CIVIL PROCEDURE 20

VI. FILING OF THE COMPLAINT

Multi sala versus Single sala
• In single sala courts, you can go directly to the sala. In multi sala courts, file
the complaint in the office of the clerk of Court.

Docket fees
• Payment of docket fees is both mandatory and jurisdictional.
• No payment means no admission.
• In cases of specific performance, the amount to be paid is fixed. In collection
for sum of money, the docket fees depend on the amount being claimed.
• According to the Supreme Court, in suit for damages, the amount of damages
must be specified in the prayer and body. Otherwise, the court will have no
jurisdiction. If damages is only incidental, the amount of docket fees is
computed based on the main action plus the damages. In the latter case, if the
damages are not specified, the court still acquires jurisdiction.
• If the amount paid is not sufficient, the balance shall be paid before the action
prescribes or within the time allowed by the court.
• Exemptions:
o Indigent litigant/ pauper litigant
§ A motion to litigate as indigent litigant must be attached to
the complaint.
§ Indigency may be proved by the DSWD, City assessor, treasury
office, BIR and the like.
§ A hearing presided by the executive judge will then be held to
determine whether the documents are true.
§ The docket fees constitute first lien should the case win.
o Client of PAO
§ Exempt from stenographic notes and docket fees but constitute
first lien.

Jurisdiction over the Person
• After the raffle of the case in multi-sala courts, the court may dismiss
outrightly the case if:
o It has no jurisdiction over the subject matter
§ Example is a forcible entry filed with RTC
o The action has prescribes provided the material dates must be
apparent in the face of the complaint
§ Using the words “in the not-so-distant past…” will not allow the
dismissal of the case.
• Assuming that the court has both jurisdiction and the action has not yet
prescribed, jurisdiction over the person of the:
o Plaintiff
§ Is acquired the moment he files the complaint
o Defendant
CIVIL PROCEDURE 21

§ through a writ of summons issued by court directing defendant
to file an answer within 15 days from receipt of summons.
§ In criminal cases, warrant of arrest is the equivalent of
summons. Without the accused, the case cannot proceed and
may be put into archives subject to revival.
§ Attached to the summons must be the copy of the complaint
§ The sheriff is responsible for serving the summons. Once
served, the sheriff makes a return of summons which contains
a statement as to how he served the summons. The court as
well as the plaintiff’s counsel must be furnished a copy of this
return.

If the summons is served on September 13, the defendant has until September 28 to make the
answer.


§ Modes of service of summons (different from service of
pleadings)

1. Personal service
Ø Priority mode: it is the first one that must be resorted to
Ø Sheriff must exert effort to serve it to the defendant only
regardless of where he is found e.g. school, office, bar,
even if you have to wait until 3 am.
2. Substituted service
Ø The summons is not served to the defendant.
i. You can serve it at his home but shall be received
by a person of sufficient age and discretion and
residing therein.

A visitor is NOT residing in your house.
An 8-year-old while he may be of discretion, is NOT of age.


ii. You can also serve it at his office but shall be
received by a competent person in charge of
office.

Competent means they know the implication of receiving a
summons.

Ø If this method is resorted to, the return must contain an
explanation as to why personal mode has failed.
Without the explanation, there is improper service of
summons. Improper service of summons is lack of
jurisdiction.
3. Constructive
Ø Usually done by publication.
CIVIL PROCEDURE 22

Ø Must be done with leave of court.
Ø Sheriff makes a return and contains an explanation as to
why modes 1 and 2 failed:
i. Unidentified defendant
ii. His whereabouts are unknown
Ø Whether real or personal actions, the plaintiff may file
motion for leave of court to issue summons through
publication.
Ø Once granted, a newspaper that is accredited by the
executive judge must publish the summons and the
complaint. The criteria for accreditation are area of
circulation and it must have been circulating for at least
a year. Two provinces or two cities cannot accredit the
newspaper but a province and a city can accredit it.
Ø The raffle of cases will include the raffle of publisher
Ø The publication must be once a week for 3 consecutive
weeks
Ø The defendant may file an answer within 6o days from
last publication
4. Extra-territorial (only for non-residents)
Ø Applies only to two kinds of actions:
i. Affecting personal status of plaintiff
ii. Affecting properties of defendant in PH

Annulment of marriage affects the personal status of plaintiff.
For both kinds of actions, the local court has jurisdiction over
the res.

Ø There are two modes:
i. Personal: go to the foreign country
ii. Publication
Ø This mode requires leave of court

PROBLEM:
The wife is working outside of country. Husband is at home
taking care of children. The wife is the defendant in a case.
NOTE:
You cannot serve the summons to husband. The personality
of husband is different from that of the wife. Use extra-
territorial methods.


PROBLEM:
If the wife is temporarily out of country, you can either wait
and then serve or use extra territorial
NOTE:
The danger of using territorial method is that the period for
making an answer may have already lapsed


CIVIL PROCEDURE 23

5. In suing a corporation, these are the only persons who can
receive a summons. The list is exclusive. Otherwise, there will
be improper service of summons which would amount to lack
of jurisdiction:
i. President
ii. General Manager
iii. Managing partner
iv. Corporation secretary
v. Treasurer
vi. In-house counsel
6. In suing foreign corporation, you can serve it at a resident
agent if there is or through the DFA.

§ Modes of service of pleadings (when the court has
jurisdiction over the plaintiff and defendant)
Ø Whatever is filed in court must be served on the
adverse party.
Ø Filing of Pleadings is the act of bringing to court. This
comes later than service of pleadings because whatever
is filed shall contain proof of service.
1. Personal service
Ø This is priority mode
Ø Serve this to counsel and not client because “service to
counsel is service to client but not vice versa”
Ø If the counsel is not there, you can leave it to a
competent officer in charge or his secretary and it is still
be considered personal mode.
Ø Without proof of service, the court may not accept the
pleading upon filing.
2. Registered mail
Ø Attach the registry receipt
Ø Must be accompanied with written explanation why
personal mode is not done
Ø Without explanation, the pleading is as if not filed.
Ø Date of mailing is date of filing
3. Substituted
Ø Leave the pleading with the clerk of court and on the
face of the envelope is the explanation

Motion versus Pleading


Both ask for relief
The former asks for more specific reliefs other than
those in the pleadings.
The latter refers to complaint, answer, crossclaim,
counterclaim, 3rd party complaint


CIVIL PROCEDURE 24
MOTION
1. Litigated
Ø Has to be heard because it affects the rights of the adverse party
Ø Must comply with 3 day notice rule and 10 day hearing rule
i. 3-day notice rule:

− Notice of hearing must be addressed to adverse party
not clerk of court because the former stands to benefit or
lose
− Motion day is usually Fridays in the afternoon so as not to
interrupt trials
− If the notice is not made to the adverse party, it will be a
mere scrap of paper

− The rule ensures that the adverse party secure the
motions at least 3 days before the hearing to give chance
to prepare.
− E.g. if the scheduled hearing is September 23, you must
have notified the adverse party at least on September 20.
ii. 10-day hearing rule

− File within 10 days from hearing day.
− E.g. if the schedule of trial is September 23, you must have
filed it in September 13.
− Complying with this rule is automatic compliance with3-
day notice rule because when you filed this motion in
court, there is a proof service required.
− Without complying, the motion is just a mere scrap of

paper
2. Non-litigated
Ø Ex parte motions that do not affect right of the adverse party
Ø Court can act on it immediately hence, not heard.
Ø Just a notice addressed to the clerk of court is sufficient




VII. OPTIONS OF THE DEFENDANT
1. He may opt not to file an answer.
o Plaintiff can file a motion to declare defendant in default
because P is aware of the 15-day period within which to file an
answer from the day of serving summons.
o The court although aware that defendant may have been in
default cannot declare such motu proprio because this implies
partiality, favoring plaintiff’s cause.
o If plaintiff does not file the motion, the court will issue a show-
cause order for plaintiff to explain why his case should not be
dismissed because he is the most interested party.
o A motion to declare in default is generally non-litigated because
after the lapse of 15 days within which to file answer, the
defendant will not affected thereafter.
Ø However, for due process’ sake, the defendant will be
given a chance. The rules shall be construed liberally
and the case should be decided on the merits and not on
pure technicality.
CIVIL PROCEDURE 25

o If defendant is served summons through publications, the motion
to dismiss must also be published but only once. The proof of
publication is the affidavit of publication issued by the publisher
when you pay.
o Despite the chances and defendant refuses to answer, the court
will issue order declaring defendant in default and this order shall
also be published if the defendant is served summons through
publication.
o Effect: the defendant is declared in default loses his standing in
court. He cannot even file a motion to dismiss regardless of its
merit because this motion is litigated and requires evidence which
he cannot do since he lost his standing in court.
o Other Effects:
v The court may declare the case to be submitted for
decision if the allegations are sufficient – however, if
decided, there shall be no awards of damages except
liquidated damage. “Damages must be proven and
proven with certainty” except liquidated damages
because this is something agreed upon so just present
the contract.
v The plaintiff may present evidence ex parte – if you
have claim for damages, it is advisable that you present
evidence ex parte instead of letting the court declare the
case to be submitted for decision. Clerks are allowed to
receive evidence
o Defendant may regain standing by filing a motion to lift order of
default (litigated)
v Grounds: extrinsic Fraud, Accident, Mistake, Excusable
Negligence (FAME)
v E.g. D paid P of his loan obligation so as to avoid the suit
that P filed. P agreed. However, P continued the case.
This is Fraud.
v Attach to the motion is an affidavit of merits – without
this, the motion to lift will not be considered.
v If the motion is granted, the defendant regains standing.

2. He may opt to file a motion to dismiss (litigated)
o Since it is litigated, comply with 3-day and 10-day rules.
o Grounds: (rule 16)
v LACK OF JURISDICTION OVER THE SUBJECT MATTER
ü Non-waivable
ü You can question jurisdiction anytime in any
stage of the proceeding even if it is the first time
on appeal
ü However, even if non-waivable, this may be
defeated by the following:
 CIVIL PROCEDURE 26

i. Estoppel – when you actively participated
knowing that the court has no jurisdiction
ii. Laches – unreasonable delay in enforcing
one’s right
v LACK OF JUR. OVER THE PERSON OF THE DEFENDANT
ü Waivable
ü Grounds:
i. when there is no service of summons
ii. when there is improper service of
summons
ü e.g. D appeared when declared in default and
asked for extension to file an answer and even
looked for a lawyer. Thereafter, he filed a motion
to dismiss on this ground ---- DENIED.
ü If you seek relief from the court, you cannot
thereafter question jurisdiction over the person
of the defendant.

PROBLEM:
Aside from lack of jurisdiction over the person, he
put other grounds. In effect, he is asking for relief because of
other grounds.

RULE:
There is no waiver here because of OMNIBUS
MOTION RULE.

NOTE:
Omnibus motion rule – any and all grounds available
for a motion to dismiss should be included in your motion.
Otherwise, you are deemed to have waived the same EXCEPT
those that are non-waivable.

v IMPROPER VENUE
ü Waivable
ü Real action v. personal action
ü Venue can be stipulated upon provided
i. In writing
ii. Prior to action filed
iii. Uses mandatory terms
ü Contracts of adhesion not binding because only
one party prepares it

PROBLEM:

In the case P v. D, a land located in la Trinidad worth 30k is involved. Both parties are from

Baguio. The case was filed in RTC, BC. P won. On appeal, D files a motion to dismiss based on lack of

jurisdiction. Rule on the motion.

RULE:
DENIED. RTC has jurisdiction because property is 30k. The issue rather is improper venue but
defendant is deemed to have waived to question it because he participated in the proceedings.
NOTE:
If there are several properties in different locations, then file different actions in different
locations.
CIVIL PROCEDURE 27

v LACK OF LEGAL CAPACITY TO SUE
ü Waivable
ü This is not the same as lack of legal personality
to sue because the latter implies that no right has
been violated or if there indeed was, the right
does not belong to the plaintiff. No real party-in-
interest.
ü This ground includes:
i. Minority – not in full possession of civil
capacity but it can sue if assisted by
guardians or parents.
ii. Insanity
ü There is waiver if despite knowledge that P is
minor or insane, D continued to participate.
v FAILURE TO STATE CAUSE OF ACTION
ü waivable
ü Not the same as lack of cause of action
ü “Failure” means you may really have a cause of
action but failed to allege in complaint. “Lack”
means there is really no cause of action.
ü The test is, when the allegations are true and you
can render a valid judgment in accordance with
the law, then there is COA stated.

PROBLEM:
I planted, harvested and nobody complained. I built a house and D complained. I
filed for quieting of title and I allege, “I own the improvements and therefore I own the land”

RULE:
There is failure to state cause of action because the law states that if you own the

land, you own the improvements.


ü It is waivable because the defect can be cured in
presentation of evidence e.g. proving ownership
of the land and in the absence of timely
objection. An objection at the presentation of
evidence even when there is no motion to
dismiss, is upheld.
v MODES OF EXTINGUISHING OBLIGATIONS
ü Waivable
PROBLEM:
D already paid his obligation but instead of filing a Motion to Dismiss, he filed an
answer.
RULE:
D can be made to pay again but he can prove the payment and case will be dismissed.
NOTE:
Desistance can be made ground in motion to dismiss in a criminal case but not because
of the payment of the civil liability but because the principal witness of prosecution refuses to
testify hence, no more evidence if the only witness is the offended party.
CIVIL PROCEDURE 28

v LITIS PENDENTIA
ü Non-waivable
ü There are two cases which have identity of
parties, subject matter and reliefs sought.
ü Generally, the second case is dismissed.
PROBLEM:
The firs case P v. D was for recovery of possession. D dies. The second case P v. D’son
was also for recovery of possession. Same parcel of land

RULE:
There is lis pendens. The second case will be dismissed and D in the first case will be
substituted by the heirs.

NOTE:
Identity of parties is not literal meaning. It means the same interest they represent.


PROBLEM:
The firs case P v. D was for forcible entry recovery of possession. The second case
was D v. P for quieting of title. Both cases involve the same parcel of land.

RULE:
There is no lis pendens. The reliefs sought are not the same. Both can proceed. There
will be no conflict of decision should P and D win in their respective cases because the first
cases only establishes possession while the latter, ownership


PROBLEM:
The firs case P v. D was for recovery of possession and P asserted ownership. The
second case D v. P was for quieting of title and wanted ownership.

RULE:
There is lis pendens. There was identity of relief. Both assert ownership and it is
actually the relief sought.

NOTE:
However, it will be the first case which shall be dismissed because the second case
best resolves the issues.


v RES JUDICATA
ü Non-waivable
ü Two cases but the first case has already been
decided
ü There is identity of parties and subject matter
ü The first case has been decided on the merits by
the court with competent jurisdiction
ü The second case is always dismissed
ü There are two aspects:
i. Bar by prior judgment – There is "bar by
prior judgment" when, as between the
CIVIL PROCEDURE 29

first case where the judgment was
rendered and the second case that is
sought to be barred, there is identity of
parties, subject matter, and causes of
action. In this instance, the judgment in
the first case constitutes an absolute bar
to the second action. Otherwise put, the
judgment or decree of the court of
competent jurisdiction on the merits
concludes the litigation between the
parties, as well as their privies, and
constitutes a bar to a new action or suit
involving the same cause of action before
the same or other tribunal.

PROBLEM:
The first case P v. D for cancellation of deed of sale was dismissed because P was not
able to prove forgery. P died. The second case P’son v. D for recovery of ownership and
possession was dismissed upon motion to dismiss by defendant.
RULE:
There is res judicata even when relief sought are different

ii. Conclusiveness of Judgment - where
there is identity of parties in the first and
second cases, but no identity of causes of
action, the first judgment is conclusive
only as to those matters actually and
directly controverted and determined and
not as to matters merely involved therein.
This is the concept of res judicata known
as "conclusiveness of judgment." Stated
differently, any right, fact or matter in
issue directly adjudicated or
necessarily involved in the
determination of an action before a
competent court in which judgment is
rendered on the merits is conclusively
settled by the judgment therein and
cannot again be litigated between the
parties and their privies whether or
not the claim, demand, purpose, or
subject matter of the two actions is the
same




 CIVIL PROCEDURE 30

PROBLEM:
The first case P v. D was for reconveyance and P won. He thereafter sold it to X who built

houses and leased them. D thereafter dies. The second case D’son v. Y for recovery of ownership and
damages.



RULE:
There is res judicata. The judgment on the first case is conclusive on the second case.

Different parties but same interest. Different reliefs but same subject matter.

NOTE:

Reconveyance is a remedy for wrongful registration but title is already indefeasible. A new
ü It is possible that there is no trial on the merits
title will be issued.
but res judicata still exists: (dismissal by the
plaintiff under rule 17)
i. By notice:
− before the answer is served
− in any form such as pad paper.
− The court issues an order confirming the
dismissal.
− Within 15 days from that order, the
plaintiff may change his mind because the
order has not yet attained finality.
− If the order of dismissal is silent on its
terms, that is, it is without categorical
statement, it is presumed that the dismissal
is without prejudice. Thus, plaintiff can
refile it.
ii. By motion:
− After the answer is served
− Motion to dismiss
− If the answer is coupled with a
counterclaim, the order of dismissal shall
be limited to the complaint. Thus,
defendant can prove the counterclaim in
the same case of another case.
− If the order of dismissal is silent on its
terms, it is without prejudice.
iii. Because of the plaintiff:
− Failure to present evidence is failure to
prosecute
− Failure to comply with the order of the
court
− Failure to comply with the rules of court
− If the order of dismissal is silent on its
terms, then it is with prejudice. It cannot
be filed again because res judicata sets in.
− But the court may opt to dismiss the case
without prejudice.
CIVIL PROCEDURE 31

ü “Two Dismissal Rule” – the plaintiff may have
his own case dismissed for two times only. The
defendant must file a motion to dimiss based on
res judicata.
v STATUTE OF LIMITATIONS/PRESCRIPTION
ü Non-waivable
ü It can be a ground for the outright dismissal of
the case provided that the material dates are
apparent on the face of complaint.
ü If you do not file the case within the prescriptive
period, you lose the right to file.
ü Rationale: public policy – cases must end.
v STATUTE OF FRAUDS
ü Waivable
ü Mandates that some contracts must be in writing

NOTE:
Online shopping may be proved. E-commerce act

applies. As long as the sale could be authenticated. You can
use the link of address.


v FAILURE TO COMPLY WITH A CONDITION PRECEDENT
ü Waivable
i. To prove lupon, allege it in the complaint.
If it is exempted from lupon, allege the
same
ii. Suit between members of the family
1. Father, mother, children
2. Requires earnest effort to arrive at
compromise
3. Allege in the complaint that
defendant is full blood relative and
despite all chances, defendant was
obstinate
NOTE:
If sister and her husband versus sister and her
husband, this is anymore a suit against a family member.
Because there is already a stranger. Thus, the ground does
not apply.


iii. exhaustion of administrative remedies





CIVIL PROCEDURE 32


Motion to Dismiss



Granted Denied


Dismissal of the The court issues an order mandating
case (final) - Remedy defendant to answer (interlocutory). He
is appeal. may avail of the remedy to question the
order since it is merely interlocutory
through petition for certiorari under rule
65 the availment of which is a waiver to file
an answer.
To avoid waiver, he may ask for
preliminary prohibitory injunction to
stop the RTC from hearing the case because
continuing it while the certiorari is on-going
is waste of time.
Final order – disposes of the If injunction is not issued, you have
case. The court will not do no recourse but to continue.
anything more. Only final
orders may be appealed. Answer ad cautelam is a
precautionary answer only for purposes of
Interlocutory – issued while avoiding being declared in default. It is an
proceedings are going on. It
does not dispose of the case.
answer but it does not waive the right to
question denial of motion to dismiss.



*Period to make an answer when motion to dismiss is denied: some principles:
• Shall not be less than 5 days
• Exclude the first day, include the last day
• Include holidays in the computation
• If the last day is a Saturday or Sunday or holiday, next working day
• Filing of motion to dismiss interrupts

Example:
August 1 – summons
Thus, you have until august 16 to file an answer
August 8 – filed MTD
August 14 – motion was heard
August 20 – motion was denied
August 25 – receipt of denial

Computation:
15 (period to answer) minus 6 (days from receipt of summons to filing of MTD) = 9 days left
Thus, you have until september 3 to make an answer. If September 3 is holiday, September 4.


CIVIL PROCEDURE 33


3. He may opt to file a Bill of Particulars (litigated)
o When something is vague on the part of the defendant, he may file
a motion for bill of particulars and must state therein the
particular allegation which is vague
o E.g. he said I acted in bad faith but what does bad faith mean
exactly?
o Although it is litigated, it must be decided right away to prevent
further delay.
o The clerk upon receipt must give to the judge said motion and
even without hearing, may grant the same. But if plaintiff insists
that he wants to hear defendant then hearing may be had.
o If granted, plaintiff must comply either through
v Amended complaint – takes the place of the original
complaint. It is now more detailed. Thus, the term mad
faith was explained as “you snobbed me”
v Compliance – the original complaint stands and
compliance is made part of the original complaint. It
contains “on the allegation that bad faith…”
o If denied, the defendant shall answer within the remaining days
but shall not be less than 5 days.
o If plaintiff fails to comply, those vague complaints or vague COA
shall be crossed out. When there is only one COA and it was vague
and crossed out, necessarily the case is dismissed.
4. He may opt to file an answer
o It is a responsive pleading
o Contains the defenses both affirmative and negative
v Affirmative defenses
ü these are actually the grounds for motion to
dismiss. While hypothetically admitting the
allegations in the complaint, the case shall not
proceed because of the grounds of MTD.
ü These will be set for preliminary hearing
whether to grant or deny.
ü If granted, case is dismissed – tantamount to a
motion to dismiss but said dismissal shall be
limited to the complaint only.
ü If denied, no need to file an answer because you
already have an answer. In motion to dismiss
when denied, you need to file an answer. That’s
the difference – there is shortened proceedings.
v Negative defenses
ü These are specific denials coupled with the
statement of truth.
ü Mere denials are not sufficient e.g. “I specifically
deny paragraph 3”
 CIVIL PROCEDURE 34

ü “Negative pregnant” – is when I deny
something but I don’t say anything else. On the
contrary, negative pregnant means something
more. It’s actually an admission. E.g. when asked
if you did it, “No.” nothing follows.
ü “Blanket denial” – is an admission. “I deny
everything…” there is no sufficient information.
o An answer does not need a certification of forum shopping
because such is required only in initiatory pleadings. An answer
need not be generally verified except if there is an actionable
document upon which the COA is based.

PROBLEM:
In the case of P v. D, P said that D executed a promissory note and signed by him. D failed
to pay. P based his action on a promissory note. Is there a need for a verification in the answer of
D?

RULE:
Yes. The promissory note is an actionable document because it is upon which the cause
of action of P is based. Thus, D must specifically deny the same and such denial must be made
under oath. It being under oath serves the verification (sworn statement).

NOTE:
The verification becomes mandatory. Without it, D is deemed to have admitted the due
execution and genuineness of the actionable document. Due execution means the voluntariness
and genuineness means the signature is true. When this happens, P may file a motion for
judgment on the pleadings.


o It is actually the defendant who raises issues when he denies the
complaint.

VIII. OTHER PLEADINGS
1. Counterclaim
ü It is the claim of Defendant against the Plaintiff
ü It is the defendant’s complaint/“recoupment” but need not be
answered if it is compulsory – it is part of reply. Permissive
must be answered “answer to counterclaim”
ü File an answer with counterclaim.

Answer In the #4, “by way of counterclaim…that
1_____________ I already paid the said amount. That I had to
______________ engage a lawyer in the amount of 100k and this
2_____________ is the first time I’m sued.”
______________ IN THE PRAYER, there will be two
3_____________ prayers:

______________ 1. that the complaint be
4_____________ dismissed
_____________ 2. That he be paid damages
CIVIL PROCEDURE 35

ü Two kinds of counterclaim:
v Compulsory (part of answer)
ü Arises out of the same transaction, subject
matter of the complaint AND within the
jurisdiction of the same court
ü The test is, whether the complaint gave rise your
counterclaim?

PROBLEM:
A collision between a truck and a van prompted the cases to arise: First, T v. V for

damages in the amount of 160k was filed in the MTC of a court in region 2; second, V v. T for 500k
damages in the RTC of region 1. T files motion to dismiss second case because of lis pendens and
he could have just filed an answer with counterclaim

RULE:
DENIED. Counterclaim although the case arose of the same transaction, requires that it

should be within the jurisdiction of the same court. MTC cannot award more than 300k. thus, the
case may proceed independently.

NOTE:
However, in order to avoid conflicting decisions, the remedy would be
CONSOLIDATION. If the cases are within the same court, the branch with lowest docket number

takes cognizance. If the cases are in different venues and different courts, the supreme court will
assign the RTC because it can award both claims.


PROBLEM:
In the case of P v. D for recovery of car, D files an answer without counterclaim. P won. D
now claims for compensation upon improvements on the car. P files a motion to dismiss on res
judicata

RULE:
GRANTED. The claim of D was in the nature of compulsory counterclaim. Thus, he
should have filed it in the same case otherwise forever barred.


ü a compulsory counterclaim can be raised out at
any stage of the proceedings but must be before
judgment.
ü Nonetheless, a counterclaim filed after the filing
of an answer requires leave of court. File a
motion for leave of court to file a
counterclaim attached thereto is the CC and the
explanation why only now.
ü Dismissal of complaint does not necessarily
mean dismissal of counterclaim because while
Plaintiff might have really no COA, defendant
may have suffered damages on the ground of
malicious prosecution.


CIVIL PROCEDURE 36

v Permissive (initiatory)
ü Does not arise in the same transaction subject
matter but must be within jurisdiction of the
same court.
ü E.g. P v. D for recovery of personal property. D as
counterclaim collects sum of money. It is allowed
because it has nothing to do with the recovery of
personal property, nonetheless prevents
multiplicity of suits.
v Difference between the two: certification for non-
forum shopping is not required in compulsory
counterclaim because it is in the same complaint while
it is required in a permissive counterclaim because it is
an initiatory pleading.
ü E.g. in the example above, D collects sum of
money because of unpaid salary and we said this
is permissive counterclaim. P files a MTD.
Granted because cases of employer-employee
relationship is with the NLRC.

2. Crossclaim (initiatory)
ü This applies only if there is more than one defendant because
it is directed by a co-defendant to the other defendant.
ü crossclaim is always compulsory because is must arise from
the same transaction subject matter.


PROBLEM:
In the case of P v. D and E, D and E are joint debtors of P in the amount of 500k each. D alleged
that he paid E 500k but the latter denied and so the crossclaim.


RULE:
Judgment was rendered against D and E in favor of P and against E in favor of D.


ü it is an initiatory pleading thus verification, certification and
payment of docket fees are required.
ü Dismissal of complaint is dismissal of crossclaim.

3. Third Party Complaint
ü Initiated by the defendant
ü This is the bringing in of a third party to the case, outside of
main complaint by the defendant because of contribution,
indemnification, subrogation and other relief.
ü The CISO must be related to the main complaint
ü They are not automatic but must be done with leave of
court and attach to the motion is the TPC.
CIVIL PROCEDURE 37

ü It is an initiatory pleading thus the requirements. But do not
pay the docket fees immediately because the motion might
not be granted and you cannot refund the docket fees you
paid.
v Contribution
ü E.g. D and E are solidary debtors of P. Hence, P
may opt to sue only one of them. But as to D and
E, one may file a TPC for contribution. Thus, in
the original case P v. D, D can file a TPC against E.
v Indemnification
ü E.g. in the case of P v. D for damages in the
amount of 500k, D was covered by an insurance
contract and the company shall pay for any and
all forms of damages that D may be held liable. D
files a TPC against the company. A decision in
favor of P to receive the 500k was rendered but
the company shall not be liable for more than the
amount of the proceeds stipulated.
v Subrogation
ü In the case of P v. D for damages, P is the owner
of the house. D is the lessee. After a wild party,
the house was destroyed but it was established
that it was not D’s fault but E, a sublessee. D files
a TPC against E. If D is made to pay then, he will
be subrogated to the rights of P against E, the
real malefactor. P cannot directly sue E because
there is a different contract among them.
v Other relief
ü In the case of P v. D for recovery of car, D alleges
that he bought the car from X and so he filed a
TPC against X because of eviction. This is “other”
relief.
ü If TPC is granted, the FALLO will contain two decisions/two
separate judgments:

P FALLO

v. On the main
D complaint:
x-------x WHEREFORE____
D 3rd ___________________
v. ___________________
X 3rd On the TPC:

x--------x WHEREFORE____
___________________
_
ü The two judgments are independent of each other. E.g. D is
made to pay and appealed. X is also made to pay but did not
appeal. On appeal, D wins and the main complaint was
CIVIL PROCEDURE 38

dismissed thus D is not obligated whatsoever to P. The
liability of X is not affected. An appeal benefits the one who
appealed, it is personal.
ü You can answer with both cross and counterclaims
ü A crossclaim must be answered.
4. Reply
ü Responsive pleading to an answer by the defendant
ü The purpose is to controvert or rebut allegations in the
answer
ü Optional pleading – filing or not filing, it all means denial of
the answer.
ü It is Mandatory when the answer is based on an actionable
document. The specific denial must be under oath.

PROBLEM:
In the case of P v. D for recovery of ownership and possession, D files an answer and alleges that
P has no COA because the deed of sale was executed by P himself.

RULE:
The deed of sale is an actionable document which is the basis of the denial of D. If P says
that the document is a forgey, he can only do that only if he files a reply under oath. Without
verification, he is deemed to have admitted the due execution and genuineness.


ü No additional causes of action nor additional defendants in a
reply. REMEDY: amend the complaint.

IX. AMENDMENT
Ø You have to show the amendment by underscoring them.

Main Comp. Amended Comp.


That D is That D is
Single……. married and
sued for her
paraphernal
property


Ø Kinds:
ü As a matter of right:
v Entire complaint, add anything. It is like starting all over
again. However, avail this only ONCE and BEFORE a
responsive pleading is served.
PROBLEM:
P v. D for forcible entry in RTC. Summons served to D and filed a MTD. This motion was served. P
thereafter amended the complaint to recovery of possession thus RTC has not jurisdiction.


RULE:
The amendment is allowed as a matter of right even when the amendment is to confer
jurisdiction to a court which has no jurisdiction and note that MTD is not a responsive pleading.


CIVIL PROCEDURE 39

v The fact that a reply is an optional pleading is
immaterial because the rules allow only 10 days to file a
reply.
v An amended answer will entitle the plaintiff fresh 10-
day period to file reply.
ü With leave of court
v When as a matter of right does not apply.
v Either there is second amendment or a responsive
pleading has been served.
v File a motion for leave to file amended complaint and
attached is the amended complaint.
v Substantial or formal
ü Formal
v Clerical amendments
v Those that do not affect the parties nor the substance of
complaint.
v E.g. you want to put worded figures or include the real
party-in-interest
ü To conform with evidence
v The change are already existing but not included.
v E.g. in the case of P v. D for damages. P only raised
actual damages as the issue but in the judicial affidavit,
he said “I feel sad because it affected my way of
thinking” which refers to moral damages. If the court
believes that he is entitled to moral damages, he may be
granted because it is already part of evidence. He will
only be ordered to amend to conform to evidence the
complaint. If he does not comply, he will still be
awarded moral damages
v Tip to adverse counsel: when something is included that
it not part of the complaint, make a timely objection.
Ø Effects of amendment:
ü It supersedes the original pleading. It is now the controlling
pleading
v The original complaint becomes part of the records.
v Nevertheless, the defendant could still use the original
complaint against plaintiff to serve as an extra judicial
admission which cannot be rebutted by plaintiff.
v Regarding answer, whatever defense that the original
answer has but is not included in the amended answer,
is deemed waived as a defense.
ü The filing of the amended complaint does not retroact to the
date of original complaint
v Thus, if meanwhile prior to the filing of amended
complaint but after filing of original complaint, the
action has prescribed, the amended complaint is now
CIVIL PROCEDURE 40

barred. But this rule applies only to substantial
amendments. Formal amendments may be filed
anytime.
Ø Failure to answer an amended complaint is not ground to be
declared in default because the answer to the original complaint
will be considered the answer to the amended complaint.

X. SUPPLEMENTAL PLEADINGS versus amended complaint
Ø These are additional circumstances that are not yet existing at the
time of filing but occurred only thereafter. In amended complaint,
the circumstances must already be existing.

PROBLEM:
P v. D for recovery of possession because of the
fences moved. Upon receipt of summons, D
punched P. Thus, P wanted to include damages


RULE:
P must file a supplemental pleading with leave of court “supplemental complaint”


Ø The supplemental pleading must have verification, certification
and docket fees
Ø The defendant must answer the supplemental complaint because
he may be declared in default on the supplemental complaint since
it brings out a new event. “answer to supplemental complaint”
Ø There may be a supplemental answer

XI. MOTION TO INTERVENE versus TPC
Ø The intervenor or a stranger to the case believes that he has a right
that will be affected but he is not brought in. In TPC, the defendant
brought in the stranger.
Ø It should be with leave of court and thus litigated.
P v. D

x---------------x

Ydefendant - intervenor



PROBLEM:
P v D for recovery of possession. X is a lessee of D who paid for 2 year rentals.

RULE:
X being not a party to the case can protect his rights even when nobody invites him by

filing a motion for leave of court to intervene and attached thereto is the complaint-in-
intervention / answer-in-intervention. The former requires verification and certification and
docket fees. The latter joins the cause of defendant.


CIVIL PROCEDURE 41

Ø If the trial has already started, a motion to intervene can be filed at
anytime BEFORE judgment
Ø Grounds to deny motion for intervention:
ü Claims are different
ü Claims may be resolved in another case
Ø Motion for intervention is ancillary to the main case hence if there
is no case filed by plaintiff, no right to file motion for intervention
accrues. If the main case is dismissed, the motion is also dismissed.
It cannot stand on its own
Ø If granted, the issues will now be joined unless the Plaintiff files a
motion for judgment on the pleadings (litigated)
v No trial is held here
v Pleadings refer to complaint and answer
v May be filed after an answer
v The reason is that the answer tenders no issue.
ü No issue because defendant says, “okay whatever
you say”
v If granted, court renders a judgment and plaintiff wins –
this is why it is litigated.
v It cannot award damages except liquidated.


PROBLEM:
In P v. D, P alleges that D executed a promissory note that he did not pay. D admitted but raise the
defense that it was not deliberate because it suffered business losses due to fortuitous event. P
files motion for judgment on the pleadings.

RULE:
GRANTED. Defendant did not raise any issue but only provided for excuses not defenses.



XII. WHEN TO FILE RESPONSIVE PLEADINGS (rule 11)
1. Answer to the complaint – within 15 days after service of summons unless a
different period is fixed by the court.
2. Answer of a defendant foreign private juridical entity – within 30 days after
receipt of summons by such entity.
3. Answer to an amended complaint
a. If amended as a matter of right – within 15 days after being served a
copy thereof.
b. If amended not as a matter of right – within 10 days from notice of the
order admitting the same.
4. Answer to amended counterclaim, amended crossclaim, amended third-party
complaint, amended complaint-in-intervention – within 10 days from notice of
the order admitting the same.
5. Answer to counterclaim or cross-claim – within 10 days from service.
6. Answer to third-party complaint – within 15 days from service of summons
unless a different period is fixed by the court.
 CIVIL PROCEDURE 42

7. A reply – within 10 days from service of the pleading responded to.
8. Answer to supplemental complaint – within 10 days from notice of the order
admitting the same.

XIII. PRE-TRIAL
Ø After issues are joined, duty of plaintiff to set the case for trial
because he is the one who caused the case. Thus, he must file a
motion to set case for pre-trial (non-litigated)
Ø If it is set, the court issued notices of pre-trial to counsels
mandating them to appear and make pretrial briefs.
v Pre trial Briefs – contain the stipulation of facts or
those what you want the other party to admit. Eg. #1
“will the defendant admit…” It also contains the issues. It
also contains the evidence documentary marked as
Exhibit “A”/”1” for plaintiff and defendant respectively
and also testimonial evidences. The judicial affidavit can
be submitted after pre-trial.
Ø Attendance during pre trial is mandatory both for the counsels
and parties. If a counsel is absent, a show-cause order is issued. If a
plaintiff is absent, complaint is dismissed and the counterclaim of
defendant can be allowed to present evidence. If defendant is
absent, his counterclaim is dismissed and plaintiff can present
evidence ex-parte.
Ø Parties can authorize their lawyers or other persons to appear for
them in the form of special power of attorney. In the SPA (rule
18, section 2), it must contain the enumeration provided under the
rule in order to be considered proper. It must be presented to the
court and also the adverse counsel to determine if it is defective. If
it is defective, it is as if the party represented is absent.

XIV. MEDIATION
Ø The interests of the parties are the primordial concerns not their
rights under the law.
Ø Section 2, rule 18 mentions of “alternative modes of dispute
resolution”
Ø The Court Annexed Mediation (CAM) is conducted during pre-trial
stage.
Ø A settlement is then submitted to the court for approval. As long as
it is not contrary to law, public policy, public order, morals and
good customs, the court shall grant the same and render a decision
based on the compromise.

XV. JUDICIAL DISPUTE RESOLUTION
Ø “No robe, no bench”
Ø When mediation fails
Ø The JDR judge must undergo training
CIVIL PROCEDURE 43

Ø An early neutral evaluation may be done e.g. “(JDR judge) you
know, considering your evidence, the case will be dismissed if you
still file” However, when the JDR offers opinion supra, he will be
disqualified to hear the case unless the parties so allow in writing.

XVI. PRE-TRIAL PROPER
Ø The JDR judge presides from the filing of the complaint until JDR.
The Trial judge presides from pre-trial onwards.
Ø In single sala courts, JDR is not jurisdictional meaning, other MTC
or RTC judges may become the JDR judge,
Ø The court issues “pre-trial order” which contains
o Stipulation of facts

admitted Disputed
1. a PN was
executed
2. a demand
was made


o Issues – conflicting facts

o Evidence
§ Plaintiff
• Documentary – exhibit “A”, exhibit “A-1”,
exhibit “AA”
• Testimonial
§ Defendant
• Documentary – exhibit “1”, 1-A
• Testimonial
Ø Motion for summary judgment (litigated) – plaintiff or
defendant may move for this. It is allowed when there are no more
factual issues but only questions of law.

PROBLEM:
P has a land. D wanted to buy the land but has not money. Thus, P and D agreed that a deed sale
transferring the property to D was executed so that in turn, D can mortgage the same to secure
for the payment of sale. When foreclosed, D did not deliver the proceeds to P. P filed a case
against D
D admitted all allegations. P move for summary judgment.

RULE:
GRANTED. The parties are ordered to make their own position papers. The bases for
judgment will be the pleadings, their admissions and position papers. There will be no trial. Thus,
except for liquidated damages, no other damages may be awarded.




 CIVIL PROCEDURE 44

XVII. TRIAL
Ø Presentation of evidence by the parties to support the cause of
action of Plaintiff and defense of Defendant.
Ø Usually, it is the plaintiff who first presents because he is the one
who alleges. In criminal cases, the prosecution presents first
except only if accused alleges self-defense.

PROBLEM:
The case is entitled P versus D and E, E3rd party versus F3rd party. Assuming that the different
responsive pleadings have been filed, how will be the order of presentation of evidence?

RULE:
At the outset, there will be four lawyers: for P, D, E and F. D and E cannot have one
lawyer since D has a cross-claim against E.
Using All at once,
• P against D and E
• D to present his defense against P, counterclaim against P and cross-claim

against E.
• E presents his defense against P, defense against D in the crossclaim, evidence
against F in the TPC
• F presents his defense against E, counterclaim against E
• P comes back, defense against counterclaim of D
A witness is examined four times. A testimony which is not crossed is stricken off the
records. E.g. plaintiff:

• First, direct by his lawyer
• Second, cross by defendant’s lawyer
• Third, redirect.
• Fourth, recross.
Using Separate trials,
• P against D and E (complaint)
• D against P (defense) and (Counter)

• P against D (defense of counter)
• E against P (defense)
• D against E (crossclaim)
• E against D (defense on cross) – P and D may not appear
• E against F (TPC) – P and D may not appear
• F against E (defense on TPC) – P and D may not appear



Ø Consolidation
o e.g. P v. A in branch 1, P v. B in branch 2, P v. C in branch 3.
All will be consolidated in the branch where docket number
is lowest.
Ø Rebuttal
o to give chance to plaintiff to rebut against anything in the
answer of the defendant. It means there is something new
to show.
PROBLEM:
P says in complaint “you did it”. D says in answer “No I did not”. P in his rebuttal says “you did it”

RULE:
At this point, the court shall decide which is closer to the truth. There is not something
new that is presented by the plaintiff. It would be different if plaintiff says “we have evidence”
which means something new will be presented.


CIVIL PROCEDURE 45

Ø Surbuttal
o to give chance to defendant to rebut against the rebuttal of
plaintiff. This is the last. Rebuttal and surbuttal are under
discretion of the court.
Ø Subpoena
o Coercive court process to secure attendance of a person in
court.
o You can be ordered arrested if you are a material witness
and ordered to post bond. You may even post bond.
o Make a request in court (100pesos/witness)
o Kinds
§ Ad testificandum – to give testimony
§ Duces tecum – to bring records, documents
• If issued, no need for ad testificandum
because the witness will be there anyway.
§ You can serve them personally or by sheriff or by
registered mail
Ø Viatory right
o This is the right of witness to disregard subpoena if:
(elements)
§ He lives more than 100 km from where he should
testify
§ The kilometrage is not yet paid. E.g. travel and
accommodation
• Example: I was accommodated in a hotel and
this was paid. I cannot anymore refuse to
testify.
Ø Motion for postponement (ex parte)
o This is frowned upon
o 100 pesos/postponement…150…200…250
Ø After the plaintiff, the Defendant may present his evidence or he
may file his demurrer to evidence/motion to acquit on the
ground of insufficiency of evidence of plaintiff. It is like a motion to
dismiss but on different ground.







~~~End of Midterms~~~



 CIVIL PROCEDURE 46

XVIII. DEMURRER TO EVIDENCE
After the plaintiff presents evidence, the defendant may present his evidence
too or may opt not to present evidence instead files a demurrer to evidence on the
ground of insufficiency of evidence. It is likened to a motion to dismiss only that it has
a different ground.
Demurrer in CRIMINAL (motion to acquit) Demurrer in CIIVL
Effect if without leave of Leave of court is Leave of court is not needed
court needed.

Oral manifestation is
allowed.
GRANTED DENIED GRANTED DENIED GRANTED DENIED
Acquittal of Accused not Acquittal of Accused Case dismissed but it is not Defendant
the accused. allowed to the accused still final and executory. can still
present which final allowed present
No appeal evidence. and to Plaintiff can appeal evidence
allowed. executory. present
AFFIRMED REVERSED
Case is evidence Note the
Case Case
decided No appeal difference
dismissed decided by
based on because of if the
appellate
prosecution’s right against decision is
court
evidence double appealed
based on
alone. jeopardy and
plaintiff’s
reversed.
evidence

alone



Defendant

cannot

present.






XIX. JUDGEMENT
Judgment Decision
Final and executory Not final and executory
It is the one executed It can be appealed
Only after the lapse of 15 days does it
become a final judgment

• It is the final say of the court on matters and issues submitted before it
• It must be in writing
• It must be based on facts and law
• It must be personally prepared by the judge
CIVIL PROCEDURE 47

• NOTE: compromise agreements are automatically judgment. They cannot be
appealed or subject to motion for reconsideration.
• PARTS:
o Body: contains the facts and the law
o Dispositive portion: the “wherefore” part
o NOTE: any conflict of both, the dispositive portion prevails. But if there
is a gross error, you may file for Motion for Clarificatory Judgment.
• KINDS:
o After trial on the merits
§ This a judgment rendered after the presentation of evidence by
both parties or when plaintiff presents ex-parte.
o No trial was held (D-O-C-S)
i. By default of one party but only if the allegations are sufficient
and no award of unliquidated damages
ii. On the pleadings
iii. Compromise during mediation and JDR
iv. Summary judgment


Modes to serve copies of decision:

1. Process servers – court employees responsible for serving the lawyers a copy of

the decision personally

2. Franking privilege – free use of mail

• Service to lawyer is service to client but not vice versa
• The parties have 15 days from receipt of the decision within which to avail of
the remedies otherwise the decision becomes final and executory.
• However, the finality dates may be different relative to plaintiff and
defendant.
If plaintiff receives decision in Oct. 3 If defendant receives decision in Oct. 10
3 10
15 15
------ ------
Oct. 18 – within which to avail remedies Oct. 25 – within which to avail
But, for purposes of finality, always consider the last person who received the
decision. Thus, it is October 26, which is the date of finality of decision where
nobody can avail of remedies.
The clerk then issues a Certificate of Finality.

NOTE: the Date of Entry (where clerk enters into judgment book the judgment)
is the same as the date of finality of decision regardless of when the clerk actually
entered

XX. REMEDIES BEFORE FINALITY (*always 15 days)
a. Motion for reconsideration (Litigated)
Ø For both of the parties
CIVIL PROCEDURE 48

Ø GROUNDS: (D-I-M-E)
1. Insufficient awards of damages
2. Excessive awards of damages
3. There is a misappreciation of evidence or failure to
recognize evidence
4. The decision is contrary to law
Ø Hearing will be held
Ø It is a prerequisite for petition for certiorari, prohibition,
mandamus
Ø The pendency of a motion for reconsideration filed on time
and by the proper party shall stay the execution of the
judgment or final resolution sought to be reconsidered unless
the court, for good reasons, shall otherwise direct. (Sec. 4,
rule 52)
GRANTED DENIED
Decision is modified according to what Only one motion for reconsideration is
you asked for. allowed for each party.

Since it is basically a new decision, a You may appeal the decision, not the
new period is given within which to order denying the motion, within 15
appeal. days from receipt or notice of order
denying. Fresh period rule.

b. Motion for new trial
Ø Not able to present evidence
Ø GROUNDS:
1. Extrinsic Fraud, Accident, Mistake or Excusable
negligence
− Cannot be used if this ground has been used in a
motion to lift order of default
− With affidavit of merits
− An allegation that the court defrauded the
plaintiff is an intrinsic fraud thus, not falling
under this ground.
− The ground of fraud can be used again despite
being used in a motion to lift default, if it
occurred on different factual occasion.
− The grounds of accident, mistake and excusable
negligence cannot be used if already used in a
motion to lift default even if the latter are of
different facts.
GRANTED DENIED
Back to square one. Appeal the decision, not the order
The original decision is vacated. denying the motion.
A new trial will be held No MR for order denying the motion.
CIVIL PROCEDURE 49

But the recorded evidence taken Fresh period rule
upon the former trial, insofar as the
same is material and competent to
establish the issues, shall be used at the
new trial without retaking the same.
(Sec. 6, Rule 37)


2. Newly Discovered evidence:
− Evidence that you had all along but it got lost
somewhere and despite diligent effort to locate
it, the same could not be found.
− But such evidence must already be included in
pre-trial but the same could not be presented in
trial.
− You have to allege that it was lost, the same
could not be found and it probably would alter
the case.

PROBLEM:
A friend of plaintiff opted not to testify for the defendant and against the plaintiff.
However, plaintiff and his friend quarreled prompting the latter to offer defendant his
testimony. May it be allowed?


RULE:
No. His testimony as evidence is not NEWLY DISCOVERED. Refusal to testify is not
equivalent to an EVIDENCE LOST.


Ø It is possible that one party files for an MR while the other
files MNT. The court will act upon the MNT first, because the
decision in an MR if decided first, will be futile since it will be
vacated when MNT is heard later.
Ø After MNT is granted, then the party can file an MR on the
new decision. NOTE: This is not a second MR because the
former MR is not acted upon by the court. It is still the first.
Ø Second MNT is allowed provided that it is based on a
different ground. NOTE: FAME is counted as one ground. You
cannot use it piece by piece. Thus, if any one of the FAME is
used, the only ground available for second MNT is newly
discovered evidence.
Ø Partial new trial or reconsideration - If the grounds for a
motion under this Rule appear to the court to affect the
issues as to only a part, or less than an of the matter in
controversy, or only one, or less than all, of the parties to it,
the court may order a new trial or grant reconsideration as to
CIVIL PROCEDURE 50

such issues if severable without interfering with the
judgment or final order upon the rest. (Sec. 7, Rule 37)

c. Motion for reopening of trial
Ø Not found under the rules but allowed under jurisprudence
Ø When there is no decision as yet but both parties have
presented evidence – the case is deemed submitted for
decision.
Ø The court has 90 days to resolve the case and within this
period as long as no decision is yet rendered, you can avail
this remedy.
Ø GROUNDS: any ground
Ø However, the court has the discretion whether to entertain
the motion.

d. Appeal
Ø The next higher court gives a second look to the case
Ø Only final orders (those that dispose of the case; nothing
further to be done by the court.) are appealable.
Ø MR is not a prerequisite; you can appeal directly
Ø NOTE: where there are several defendants, it is possible that
one avails of appeal and the other avails of MR or MNT. In this
case, the appeal will be decided LAST.
Ø It is a statutory right that is, granted only by law and rules.
Ø It is to be availed of within 15 days from receipt of decision.
No extension to file appeal is allowed.
Ø Only parties to the case can appeal.


PROBLEM:
In the case P v. D for damages, D has an indemnity agreement with X
company but the former did not file a Third Party Complaint. May X co. appeal the
decision ordering D to pay P because ultimately, as the insurance company, it is
liable for payment.

RULE:
No since it is not a party to the case.

NOTE:
After lapse of period to file appeal, the decision becomes final and
executory. Thus, a writ of execution shall be issued and directed to defendant but
D may request that the writ be directed to the insurance company by manifesting
the indemnity agreement.
The insurance company may appeal the order directing the writ to it but
not the writ of execution of the decision since it is not still a party to the case.

CIVIL PROCEDURE 51

Ø You cannot change theory on appeal.

PROBLEM:
In a case of P v. D for recovery of real property, plaintiff offered the theory
that the subject property was acquired by succession. On appeal, he changed
theory into that he actually bought said property.

RULE:
Such a change in theory is not allowed because in appeal, what you are
asking is that the court to have a second look of the same case.
Ø MODES:
1. ORDINARY APPEAL
− Initiatory pleading. Thus, verify, certify and pay
docket fees.
− These are appeals made from decisions of MTC
to RTC and decisions of RTC to CA
− Requires only the filing of notice of appeal with
the court, which rendered the appealed decision
within 15 days, non-extendible (because if
extended, it is tantamount to extending period
within which to file appeal)
− The docket fees shall be paid in the court of
origin (MTC or RTC as the case may be). The
receipt of payment shall be attached in the notice
of appeal.
− The lower court does not grant or deny but it
gives DUE COURSE. The lower court issues an
order which contains “since it is filed within the
reglementary period, the appeal shall be given
due course and let the records be transmitted
to…”
− The lower court then loses jurisdiction except
residual jurisdiction, whereby the it can still
rule upon motion for execution pending appeal or
a motion for withdrawal of appeal because they
still have the records of the case.
− Thus, once the entire records of the case are
transmitted, the lower court has no more
jurisdiction whatsoever. Thus even said motions
must be forwarded to the appellate court.


The entire records: ABCplaintiff-appellant
• Indexed, paged
• Table of contents
• List of exhibits -versus-
• Steno notes: 1 copy to RTC, 3 copies if to CA
because there are three justices in each
division.
DEFdefendant-appelle
CIVIL PROCEDURE 52

− APPLICATION:
i. MTC--------RTC

PROBLEM:
In the case P v. D in MTCC, D files for MTD for lack of jurisdiction over
the subject matter which the MTCC grants. The case is dismissed. Is it
appealable?
RULE:
Yes. Dismissal of a case is a final order thus appealable to RTC.

AFFIRMED REVERSED
i.e. “MTC indeed has no Remand the case back to MTC.
jurisdiction”
Defendant is ordered to file an
The RTC will assume the answer.
case as if it was filed there
the first time. It will take
cognizance of the case.

The RTC will order P to pay
higher docket fees and D to
file an answer.

PROBLEM:
In the case P v. D, D files an answer with affirmative defense of lack of
jurisdiction over subject matter.


RULE:

If MTC rejects the defense, D may offer the defense as a continuing

objection and the case shall proceed to trial. If thereafter, MTC realizes that it
really has no jurisdiction, it can
dismiss the case but no decision is yet
rendered on the merits. The dismissal is appealable.


AFFIRMED REVERSED

RTC takes cognizance of the The MTC will decide the case on

case the merits



NOTE: only the ground of lack of jurisdiction over the subject
matter has this kind of effect or results.

ü Even if MTC has already conducted
trial and even if said trial was over,
RTC can adopt the former
proceedings and trials and decide
the case. The RTC can nevertheless
require the submission of position
papers to aid itself decide.
CIVIL PROCEDURE 53

ü Once in RTC, it will require the
appellant to submit his
memorandum on appeal within
15 days, extendible.
ü The memo contains the errors that
you believed to have been
committed by the trial court.
ü Serve a copy of the memo to the
appellee then let him file his
memo as well. NOTE: Their filing of
memos is not simultaneous because
the appellee’s memo would become
useless if the appeal would be
dismissed afterwards.
ü If appellant does not file his memo,
the appeal is dismissed.
ü If appellee does not file his memo,
there is no effect and it will not
prejudice him. He can adopt the
decision of MTC as his memo or
not file at all.
ü There is mediation on appeal by a
JDR judge and a mediation fee is
collected.
ü If mediation fails, the case will be
reraffled to a deciding judge whose
task will only be to decide the case
because the respective
memoranda are already there.

ii. RTC--------CA
ü CA will require the appellant and
appellee to submit their respective
briefs simultaneously.
ü If appellant does not file, the
appeal is dismissed.
ü There is also mediation here by a
justice.
ü If mediation fails, the case is
raffled to a division (of 3 justices)
and further raffled to one justice as
the ponente.




CIVIL PROCEDURE 54

2. PETITION FOR REVIEW
− Initiatory pleading
− Can be availed of only for a decision rendered by
the RTC in its appellate jurisdiction. Thus, in the
first instance, a case was cognizable by the MTC
whose decision was appealed to RTC.
− It must be availed of within 15 days from receipt
of decision, which period is extendible by filing a
motion for extension. Extension is allowed
because it is a petition. Note: however, applicant
must first pay docket fees before CA can act upon
the motion for extension.

MTC

Ordinary appeal

RTC

Petition for
Review
CA


Plaintiff-Petitioner
v.
Defendant-Respondent

DISMISS OUTRIGHT GRANT
If the petition is unsubstantial If meritorious.
and is meant to only to delay The CA will order the defendant
the execution of decision to comment.

− RTC is not obliged to transmit the entire records
of the case unless the CA requires because the
CA can merely rely on the petition and comment.

3. PETITION FOR REVIEW ON CERTIORARI/appeal by
certiorari
− Initiatory pleading
− This is the only way to reach the SC
− Rule 45
− It must be availed of within 15 days which
period is also extendible by filing a motion for
extension. NOTE: pay the docket fees in SC first
before petition is entertained.
 CIVIL PROCEDURE 55


MTC

OA

RTC RTC RTC
PFR OA

CA CA PFROC
PFROC
PFROC
SC SC SC


NOTE: in the third column, it pertains to cases
which are originally cognizable by RTC but are
directly appealable to the SC. Ex. Constitutionality of
a law

NOTE: The trial courts RULE on motion for recon,
new trial but give only DUE COURSE on appeals.
Thus, act upon the motions first because you still
have jurisdiction over it before giving due course to
appeals.


DISMISS OUTRIGHT GRANT
If the petition is unsubstantial If meritorious.
and is meant to only to delay The SC will order the defendant
the execution of decision to comment.

XXI. REMEDIES AFTER FINALITY
• Mere acts of grace thus, construe strictly
a. Petition for Relief from Judgment
Ø File in the court that rendered judgment
Ø The only ground is FAME. NOTE: if it is already used, then you
cannot avail this.
Ø Within 60 days from notice of judgment AND within 6
months from entry of judgment

PROBLEM:

Notice of Judgment by lawyer – June 30

Entry of Judgment – April 30

Filing of Petition for relief – August 18

RULE:

Filed on time.

CIVIL PROCEDURE 56

PROBLEM:
Notice of Judgment by lawyer – June 30
Entry of Judgment – April 30
Filing of Petition for relief – September 2
RULE:
NOT filed on time because it is not filed within 60
days from notice of judgment although filed within
6 months from entry.

PROBLEM:
Notice of Judgment by lawyer – June 30
Entry of Judgment – February 28
Filing of Petition for relief – August 29
RULE:
NOT filed on time because it is not filed within 6
months from entry although file within 60 days
from notice.

Ø Some decisions of the Supreme Court allowed 1 day belated
filing but disallowed 2 days belated filing. To be safe, always
stick to the RULE.

GRANTED DENIED
It is as if a motion for new trial Petition for Certiorari would be
is granted. Thus vacate the proper because it is not a new
decision, back to square one. case, rather than appeal.
Nonetheless, you can adopt the
evidence already presented.
Ø NOTE: Rule 38, section 6 (last sentence) is WRONG. “The court
shall then proceed to hear and determine the case as if a
timely motion for a new trial or reconsideration had been
granted by it.” Reconsideration should not have been
mentioned because FAME (which is ground for petition for
relief) is not a ground for reconsideration but only to new trial.

b. Annulment of Judgment
Ø Initiatory pleading
Ø Refers to the decision of either MTC or RTC
Ø It is filed with the next level court

MTC RTC
This action is
This is
like an
governed by
ordinary
Rule 47
action RTC CA annuls
annuls
 CIVIL PROCEDURE 57

Ø GROUNDS:
1. Extrinsic Fraud
− There is a need to receive evidence because this
is a question of fact
− It is the same in the FAME
− Must be filed within 4 years from discovery of
fraud
− Cannot be used if it was previously used as
ground in any other remedy.
2. Lack of Jurisdiction
− It involves mere question of law
− This can be questioned anytime at any stage of
the proceeding
− It is also imprescriptible
− HOWEVER, it is defeated by:
i. Laches – unreasonable delay in enforcing
one’s rights
ii. Estoppel – despite knowledge of lack of
jurisdiction, you participated actively in
the proceedings and only questioned the
jurisdiction when an adverse decision
was rendered.

GRANTED DISMISS OUTRIGHT
There will be no more Since this is not a matter of right,
judgment to speak of. You will it can be dismissed outright if it
be back to where you were was meant only to delay
even if the decision has execution of decision.
become final.
Ø NOTE: if it is the CA that annuls, it will not become a trier of
facts if the ground used is extrinsic fraud. Thus, CA will assign
another RTC judge other than the one who rendered judgment,
who will receive the evidence. That RTC will then forward the
whole records to CA and CA shall render decision.
Ø The decision by either the RTC or CA in this remedy is
appealable because what is involved is entirely a new case.
(Distinguish this with the denial of a petition for relief of
judgment) Or, he can avail of the remedies before finality
aside from appeal. Thereafter, he may again avail remedies
after finality.

XXII. EXECUTION OF FINAL DECISION
• Even if modified by the SC or CA, it is still the Trial Courts which execute or
implement the decision
• KINDS:
CIVIL PROCEDURE 58

a. Ministerial
Ø It is a matter of right for the winning party
Ø It is only when the judgment has become final and executory
which means that there are no more remedies available and
entry of judgment has already been made.
Ø The winning party files a motion for execution (non-
litigated)
Ø Attached to the motion is the certificate of finality issued by
court which made the entry of judgment
b. Discretionary
Ø This execution is asked despite the decision not having
become final and executory as yet.
Ø Depend on the court whether to entertain or allow
Ø The winning party files a motion for execution pending
appeal (litigated because there is an adverse party whose
rights will be affected)
Ø The winning party must show good cause, which is proven
during the hearing of the motion and without which you will
not be allowed to post bond and the motion will be denied:
1. In case of a 91 year old woman who won and needed
the execution for continuous support
2. In case of a defendant facing bankruptcy
3. In case of a defendant slowly disposing of his properties
to family members
4. In case of perishable goods (nature)
5. Poor health condition

GRANTED DENIED
You will be required to post bond to answer for
damages that losing party might suffer in the
meantime if on appeal, the losing party wins
If winning party wins on appeal, cancel the bond
and return to him.
Ø A
motion for EPA is filed either in:
1. Original court if the records are still there pursuant to
residual jurisdiction
2. Appellate court if the records are already transmitted
but it is still the trial court which will implement the
execution if the appellate court grants.
• Motion for Execution
o It is filed within 5 years from entry of judgment (under the rules, it is
the date of finality)
o If the 5 year period lapses, a judgment may still be executed although
not by motion but by an Action for Revival of Judgment
§ File a petition for revival of judgment
§ It is an initiatory pleading
No new trial
Prove why judgment was
never executed, action within
10-year period, judgment
already final
CIVIL PROCEDURE 59

§ You can file it before the RTC because it is incapable of
pecuniary estimation or the court which rendered the
judgment.

GRANTED DENIED
The judgment will be revived which becomes
final and executory again (double finality of
judgment)
Double finality happens only when a judgment
not executed by a motion is revived by an action.
The winning party will have a fresh 5 year
period within which to execute the revived
judgment by a motion.
• If the motion for execution is granted, a Writ of Execution will be issued,
addressed to the sheriff. The writ shall contain:
o That the decision is final and executory
o Quotes the dispositive portion of the judgment which is final and
executory (e.g. if the SC decision modifies)
o The date of finality
o Its own dispositive portion (“now therefore you sheriff are
commanded to collect…”)
• MANNER OF EXECUTION
a. For sum of money
Ø “You are commanded to collect whatever from defendant…”
Ø If there is inconsistency between the portion of the final
judgment and the dispositive portion of the writ of execution,
the writ is null and void and the losing party may file a
Motion to Quash and the court will then issue another writ.
Ø The sheriff has the duty to report every 30 days for the
progress of the execution because it is unlikely that the writ
could be executed at once.
Ø If fully satisfied, the sheriff issues a receipt to losing party
and delivers to winning party the amount collected.
Ø Sheriff then makes a return – that he was able to execute the
writ and it was fully satisfied.
Ø Then, court issues an order manifesting that the writ was
fully satisfied. The case will be closed and terminated. It will
be archived and disposed of after 10 years.
Ø If the defendant refuses to pay, the sheriff has the following
options:
1. Garnishment
− Usually issued to banks for them to hold the
properties of the losing party. Notice of
garnishment will be issued to all banks near the
residence of losing party.
CIVIL PROCEDURE 60

− “May we know if he has an account and is
sufficient to cover this amount…if it is sufficient,
please hold it”
− There is no violation of the bank secrecy because
you are not inquiring into the actual amount of
the account.
2. Levy
− First, on personal properties except section
13, rule 39 Property exempt from execution. —
Except as otherwise expressly provided by law,
the following property, and no other, shall be
exempt from execution:
i. (a) The judgment obligor's family home
as provided by law, or the homestead in
which he resides, and land necessarily
used in connection therewith;
ii. (b) Ordinary tools and implements
personally used by him in his trade,
employment, or livelihood;
iii. (c) Three horses, or three cows, or three
carabaos, or other beasts of burden, such
as the judgment obligor may select
necessarily used by him in his ordinary
occupation;
iv. (d) His necessary clothing and articles for
ordinary personal use, excluding jewelry;
v. (e) Household furniture and utensils
necessary for housekeeping, and used for
that purpose by the judgment obligor and
his family, such as the judgment obligor
may select, of a value not exceeding one
hundred thousand pesos;
vi. (f) Provisions for individual or family use
sufficient for four months;
vii. (g) The professional libraries and
equipment of judges, lawyers, physicians,
pharmacists, dentists, engineers,
surveyors, clergymen, teachers, and other
professionals, not exceeding three
hundred thousand pesos in value;
viii. (h) One fishing boat and accessories not
exceeding the total value of one hundred
thousand pesos owned by a fisherman
and by the lawful use of which he earns
his livelihood;
CIVIL PROCEDURE 61

ix. (i) So much of the salaries, wages, or
earnings of the judgment obligor for his
personal services within the four months
preceding the levy as are necessary for
the support of his family;
x. (j) Lettered gravestones;
xi. (k) Monies, benefits, privileges, or
annuities accruing or in any manner
growing out of any life insurance;
xii. (l) The right to receive legal support, or
money or property obtained as such
support, or any pension or gratuity from
the Government;
xiii. (m) Properties specially exempted by law.
xiv. But no article or species of property
mentioned in this section shall be exempt
from execution issued upon a judgment
recovered for its price or upon a
judgment of foreclosure of a mortgage
thereon.
− The properties will be sold at public auction and
the bidders shall pay in cash only.
− If the winning party bids, he does not need to pay
because it will be returned to him anyway.
− Losing party can also bid if he desires to get back
his property.
− NOTE: Third Party Claim (versus third party
complaint) may be filed if what is levied is a
personal property not belonging to the losing
party.
• An affidavit will be executed by the
third party that his personal property is
wrongfully levied upon by the sheriff.
• Attach proof and the reason.
• Give a copy of the claim to the sheriff
and the parties.
• Once received by the sheriff, he must
stop selling the property and return it.
• However, the winning party can get that
property by posting a bond more or
less equivalent to the value of property
which will be given to the third party if
indeed the losing party is not the real
owner but the property has already
been sold.
CIVIL PROCEDURE 62

• If it is not yet sold, you can just return
the same.
− Second, on real properties if the personal
properties are not sufficient
− Annotation on the title will be made
− In the public auction, anybody can bid
− Sheriff will then issue a Sheriff’s Certificate of
Sale to the highest bidder, which will then be
registered in the Registry of Deeds or Assessor’s
Office.
− The registration is important because it is only
then that the 1-year period of redemption will
start to run.

PROBLEM:
No registration of certificate was done. After 5 years,

the heirs of the losing party seek to redeem the

property. Can they redeem despite the lapse of 1 year?

RULE:
Yes. The 1 year period has not yet elapsed nor even
started for failure to register the certificate. Thus, the
heirs can redeem but the purchase price will be much
higher

− Nonetheless, if registered, the losing party, his
heirs, creditors or assignees can redeem but in
case of the latter three, they must allege in what
capacity are they redeeming.
− Within the 1-year period, the losing party is still
entitled to possession and fruits of the property.
He can repair the property except major
improvements because he will then be
considered a builder in bad faith, which will be
entitled to nothing.
Motion for writ of possession − After the lapse of the period, the sheriff will then
(non-litigated) issue a final certificate of sale. A new title will
be issued to the highest bidder and the title of
the losing party will be cancelled.
b. For recovery of possession
Ø In recovering land properties, give chance to vacate if there
are houses or plants existing thereon.
Ø If the chance is refused, remove all the things of the house
and padlock the same. Turn over the key to the winning
party.
 CIVIL PROCEDURE 63

Ø If the winning party does not want the house, he can file for a
Motion for issuance of writ of demolition (litigated because
they must be given chance to demolish it themselves)
c. Reconveyance
Ø Deed of reconveyance: an old title registration is cancelled
and a new one is made.
Ø The writ shall contain “the defendant executed the proper
deed of conveyance”
Ø If the defendant refuses to execute the deed, it is NOT a
contempt of court because there are other ways to do it e.g.
issuing an order for him to execute or issuing a deed of
reconveyance.
Ø If defendant refuses to surrender his duplicate copy to ROD,
the court can order him to do so. Should he refuse the order,
the court can order the cancellation of his title and a new
duplicate copy still in the name of defendant will be issued
and this is the one that will be surrendered to ROD. Then the
ROD in turn issues a new duplicate copy to the winning party.
Ø All these transactions are at the expense of the defendant.
Ø The duplicate is required as provided under PD 1529:
Section 53. Presentation of owner's duplicate upon entry of
new certificate. No voluntary instrument shall be registered by
the Register of Deeds, unless the owner's duplicate certificate is
presented with such instrument,…

XXIII. SPECIAL JUDGMENTS (section 11, Rule 39)
• Failure to obey these judgments constitutes contempt of court
• These are judgment that only the losing party and him alone can do
o The employer to pay benefits to employee
o Obligation of father to support child cannot be passed on to kumpare.

XXIV. PROVISIONAL REMEDIES
• Temporary remedies which usually depends on the main action
• It is necessary because the violation complained of may continue to happen
even after the filing of the case
• Must always be coupled with a main action
• The following are provisional remedies
o Preliminary attachment
o Preliminary injunction
o Receivership
o Replevin
o Support pendente lite
• REQUIREMENTS:
o First:
CIVIL PROCEDURE 64

§All except Support pendent lite requires affidavit: which is
executed by the applicant, containing the grounds relied for
and which is attached to the motion or to the complaint
depending if action is pending or newly instituted.
§ Support pendente lite requires petition
o Second:
§ All except support requires the posting of bond: in the form of
cash, surety or property bond and amount at the discretion of
the court.
• The bond shall answer for any damage that the adverse
party might suffer if it turns out that the provisional
remedy may not have been really needed.
• Regarding cash bond, the full amount shall be deposited
and may be returned if it turned out that applicant is the
winning party
• Regarding surety bonds, the company must be
accredited by the SC. A company has a 90-day
accreditation. The bondsman assures the accused’s
presence in the proceedings. The company is directed to
pay the amount of bail otherwise, it will be blacklisted.
• Regarding property bond, the property must be within
the jurisdiction of the court. The basis will be the
assessed value, not the fair market value.
PROBLEM:
A “grandfather” offered 5 hectares but the assessed value is only 20k. he
has no other choice but to give another, this time with an improvement
of a house, thus the assessed value was 1M, enough to cover the bail of
accused. The accused jumped bail.

RULE:
The grandfather shall pay the bond in cash, otherwise the property will
be sold at a public auction at a very low price. Bail bonds can be reduced
except if on such bail, the accused jumped – the moment he is arrested

again and posts bail the second time, there will be no reduction.

a. Preliminary Attachment
Ø MAIN ACTION: usually is sum of money
Ø This is to secure the payment in case you win because the
defendant may employ such means and method so as to
intentionally lose his properties and defraud you.
Ø THREE INSTANCES:
1. Prayer for a Writ of Preliminary Attachment
− At the commencement of the action
− Ex-parte, no need to notify the defendant
CIVIL PROCEDURE 65

− Must state that defendant owes you a sum of
money and that he starts to dispose of his
properties with intent to defraud creditors
− Court may require the applicant to post bond
− The property will then be under custodia legis
− Covers both personal and real properties
• Problem with attaching personal
properties – you need to get them all
and where would the court put them
all? And by the time you win, the
property may already be valueless
• Best to attach are real properties – the
plaintiff shall provide a list of real
properties of the defendant attached to
the complaint.
− Once the bond is posted, the court will now issue
the writ of preliminary attachment which is
addressed to the sheriff
− While the hearing of the prayer is ex-parte, the
implementation cannot be done ex-parte
• The court must have jurisdiction over
the person of the defendant otherwise,
the writ shall be null and void. The
WPA will be dissolved.
• The court can either serve summons
first or the implementation of the writ
be contemporaneous with the service of
summons
• Once the defendant is served a copy of
the WPA, sheriff shall go the Registry of
Deeds and register the WPA in the title
of the defendant
• The defendant does not need to
surrender his duplicate because this
requirement is only required in
voluntary transactions and
preliminary attachment is an
involuntary one.
• NOTE: the copy on file with ROD is
controlling than the duplicate of owner.
Third persons may purchase the property
at their own risk, the encumbrance
follows.
2. Motion for the issuance of writ of preliminary
attachment (litigated)
CIVIL PROCEDURE 66

− Done after the commencement of the action or
during proceedings
− No ex-parte hearings, thus, defendant must be
notified.
− If the motion is granted, the writ will be issued
and plaintiff is required to post bond
− The defendant may file a motion for the
dissolution of WPA (litigated) because of
wrongful attachment
• If granted, the defendant will be
required to post his counterbond
• The counterbond is needed because by
then the plaintiff has no more security.
If he wins, it will be an empty victory
• Thus, without the counterbond, the
court cannot grant the motion because
it would be unfair for plaintiff.
• The amount is the same as that of the
bond.
3. In case of non-residents, extra territorial modes of
service of summons cannot be used because they only
apply to cases which affects the status of the plaintiff or
the properties of the defendant in the Philippines
− Thus, sum of money is an action in personam.
− The remedy is to file sum of money with WPA
to convert the personal action into a quasi in
rem action. Then you can use the extra
territorial modes.
− Take note of the exemptions from execution in
section 13, rule 39, supra.
− The winning party then files motion for
execution addressed to the sheriff. The collection
shall be in this order:
• Cash first
• Then, personal levy
• Then, real levy which is the subject of
attachment.
− The winning party may ask the court to dissolve
the preliminary attachment so that sheriff can
levy the real property
− A property already attached can be attached
again but follow priority in time.
b. Preliminary Injunction
Ø It can be an action in itself with prayer for issuance of
preliminary injunction
CIVIL PROCEDURE 67

Ø It can be either prohibitory – to stop, or mandatory – to do.
PROBLEM:
I arrived home. I was sent a letter of disconnection from BENECO
starting tomorrow. In the belief that I paid, I went to file an action for
injunction the next day.

RULE:
In effect, the injunction was meant to enjoin or stop BENECO from
cutting off your electricity. Note that when an injunction is not specified,
it is presumed as prohibitory.

PROBLEM:
I arrived home and to my surprise, the house was in total darkness.

RULE:
I can file an action for injunction which is mandatory, for BENECO to put
back the electricity.

Ø MAIN ACTIONS:
1. Forcible Entry
2. Recovery of possession with prayer for preliminary
injunction

PROBLEM:
I found X putting up fences in a portion of my property.

RULE:
I can file an action for injunction plus Temporary Restraining Order (20
days) plus a 72-hour temporary restraining order because the fences are
about to be completed.

Ø The grounds are grave irreparable injury or urgency of
action.
Ø In a multi sala court, the case is not yet raffled thus it will be
the executive judge who will issue ex-parte the 72-hour
TRO. The implementation by the sheriff however, requires
the jurisdiction over the person of the defendant.
Ø Within the 72-hour period, the case shall be raffled
immediately to determine the propriety of the TRO, whether
to extend the 72 hours into a 20-day TRO, whose period
includes the 72 hours. In this hearing, defendant may not be
served summons because it was already served in the
implementation of the 72-hour TRO.
Ø DIFFERENT PERIODS OF TRO:
1. RTC and MTC – 20-day TRO
2. CA – 60-day TRO
3. SC – TRO until lifted.
CIVIL PROCEDURE 68

Ø The executive judge however, may deny the 72-hour TRO
instead order the immediate raffle of the case and determine
whether to issue a 20-day TRO, which requires hearing.
NOTE: notice that 72-hour TRO can be issued ex-parte while a
TRO cannot. Neither can the implementation of a 72-hour TRO
be ex-parte.
Ø Voluntary appearance by the defendant with his counsel in
the hearing of TRO dispenses with the service of summons.
Ø The preliminary injunction becomes permanent once the
right to be protected is proven.
Ø LIMITATIONS TO P.I.:
1. No court in the country shall issue a TRO or WPI against
a government infrastructure project e.g. road
widening projects
2. Collection of taxes, rather pay under protest.
3. The PCGG cannot be stopped even if the wealth is
legally acquired.
4. A wife cannot be compelled to come home to husband
Ø NOTE: maintenance of “status quo” or the last peaceful
situation is tantamount to TRO. It cannot be ordered unless it
is heard. E.g. when I came home without electricity in my
house, court cannot order maintenance of status quo with the
BENECO unless heard.

c. Receivership
Ø A third person (always a natural person) is appointed by the
court to administer the property of the defendant for its
preservation.
Ø APPLICATION:
1. Conjugal property
− Under the family code it is the husband who
administers the property.
− If the wife desires to manage the property
because the husband in her belief is incapable,
she can file an action to that effect. However, the
mere filing does not automatically vest the
power to administer. Thus, in her application she
must ask for receivership and allege the acts of
mismanagement by husband.
− Receivership can be applied for at the beginning,
during or at the end of the main action.
− It requires hearing.
• Whether or not to grant and who will
the receiver be.
CIVIL PROCEDURE 69

− If the court grants, the wife shall post a
receivership bond to answer for any damage
that H may suffer e.g. loss of salary for
administering
− Plaintiff and defendant can suggest or
recommend a receiver but the court has the final
say. This is to assure a neutral receiver who will
obey the court alone and none of the parties.
− The receiver also posts bonds to insure against
his own acts of mismanagements.
• The bond will be returned to him once
an accounting is made and he is proven
to have not mismanaged.
− An example of receivership in the end:
PROBLEM:
H and W decided to dissolve the conjugal partnership instead of hearing
the petition of W for a receivership. Thus, they decided to sell all the
properties but W and H refuse to undertake the obligation to sell.

RULE:
Thus, a receiver may be appointed by the agreement of H and W. There
will be no need to post bond because it is H and W who agree for the
receiver. However, the receiver will still be required to post bond. He

also shall account and make an inventory.


d. Replevin
Ø MAIN ACTION: recovery of personal property with prayer for
issuance of writ of replevin
PROBLEM:
Toyota sold to buyer a car for installment under the “98k and drive the
car promo” to which buyer paid the downpayment. However, buyer did
not pay thereafter pay the price contrary to the contract to sell which
provides that transfer occurs only full payment of purchase price.

RULE:
He should file a recovery of personal property with prayer for replevin.
Ø an affidavit must be executed by the applicant which
describes the vehicle, contains an allegation that he is still the
owner of the personal property and that it is in the possession
of defendant.
Ø The applicant fixes the bond – the value of the bond will be
twice the market value that he stated. NOTE: in stating the
market value, it is advised to put it high so that redelivery bond
would not be afforded.
CIVIL PROCEDURE 70

Ø It can be prayed for ex-parte. Upon commencement of the
action, there will be no hearing; issue the writ immediately.
Ø But you cannot implement it ex-parte. The implementation
must be contemporaneous with the service of summons.
• The sheriff will then drive the car away
• He is not required to give to plaintiff right away.
− Because defendant can within 5 days post a
redelivery bond which is the same amount of
the replevin bond.
− Once posted, the sheriff has no recourse but to
return the car back to defendant
− If there is no redelivery bond, sheriff has to
deliver the car to plaintiff BUT plaintiff has to
pursue the cases in order to prove ownership
thereof. Usually, plaintiffs stop at this point.
Ø Writ of replevin can be issued against anybody in possession
of the personal property.

PROBLEM:
In the example above, if buyer leased out the car to X to make it an Uber

taxi, can Toyota still recover it?

RULE:
Yes. The writ of replevin can be issued to anybody. The writ follows the
vehicle, not the owner.

Ø However, this writ cannot be used to properties covered by:
1. Preliminary attachment
2. Seized by virtue of search warrant
− Because in both, the properties are in custodia
legis.

e. Support Pendente Lite
Ø MAIN ACTIONS:
1. Support
− A child assisted by his mother files a support
against the alleged father.
− The support continues until the child can stand
on its own, has a job and can live on his own.
− It requires a petition for support with prayer of
support penedente lite, and not by mere
affidavit.
− The mere filing an action for support will not
immediately grant support thus a prayer for
support pendente lite is proper.
− File the action in family courts
CIVIL PROCEDURE 71

− It requires hearing not to determine whether he
is the father or not but a determination of how
much the alleged father is earning.
• The court then issues an order for
support pendente lite per month
• And such support will continue for as
long as the case is pending
− If the alleged father proven to be the real father,
the support pendent lite will become
permanent.
− If the case should prove to be baseless and the
dismissed, there will be no reimbursement for
the alleged father for all the support pendente
lite he has given.
• His remedy is to look for the real father
to reimburse him.
− A judgment for support is a continuing
judgment. It never becomes final because the
amount may be increased whenever
circumstances require.
• Through a motion to increase support,
the support may be increased because
the child has to go to college.
− If SPL is granted but the alleged father refuses to
pay, file a petition for contempt directly because
it is a special judgment.
− Past support can be waived but never future
support.

PROBLEM:
The mother was earning a lot more than the alleged father so she did not
need support. When she went out of job, she claims for past support.

RULE:
She has deemed to have waived the past support.

2. Rape and Seduction
− When SPL is included in the civil liability
− While the case was pending, she was pregnant.
File a petition for support pendente lite.
− Defedant cannot raised the argument that once
the support is granted, that it tantamount to
admission of guilt.
• This is wrong because what you only
prove in rape is that there was violence,
not the fathership.
 CIVIL PROCEDURE 72

• You may not be proved as rapist but you
may still be the father of the off-spring.

XXV. MODES OF DISCOVERY
• Clients do not tell you everything and what they tell you is usually a
one-sided story; it is up to as the counsel to find about the rest about
the story.
• There are other modes like investigation and hiring of a detective but
are not included in the rules because they are quite expensive and the
evidence would be hearsay.

a. Depositions
JUDICIAL AFFIDAVIT DEPOSITIONS
Only during trial Before any trial or any action
Made in open court; witness is presented Witness will not be presented but only
to confirm his affidavit the deposition

Ø These are actually testimonies but are called depositions
because it is taken out of court. Even if it is taken by a judge
of one court, it will be used in another court.
Ø It may be through:
1. Oral examination
− Whoever presents the witness first, makes the
depositions.
− There can be direct, cross, redirect, and recross
examinations.
− Note of the role of a notary public
− The witnesses, parties’ counsels and
stenographer must be present
− Fees to be paid by applicant: notary, fare of
witness, per diem of stenographer,
transportation expenses
− After depositions, the stenographer transcribe
the transcript.
− Then it will be read to the witnesses
− Signed by them
− The objections will only be noted
2. Written interrogatories
− Direct interrogatories
− Note of the role of notary public
− Answers to be sent to the plaintiffs and
defendants counsel
− Adverse party prepares for cross interrogatories.
− Redirect and recross interrogatories may be
done.
CIVIL PROCEDURE 73

− Outside the Philippines:
i. Commission – go to court so that it directs
the deposition officer in that foreign
country to take depositions which will be
done in the embassy of PH. Thus, the PH
laws will apply. Attach the questions.
ii. Letters rogatory – “principle of
reciprocity” is the basis. That, should that
foreign court need it too, the PH will
accommodate. The court issues a letters
rogatory to the foreign court and the
latter appoints a judicial staff to act as
deposition officer. Thus, foreign law will
apply. You may attach the questions but it
may be disregarded if it runs contrary to
the foreign rules and it is the foreign
deposition officer who formulates the
questions. Rather, just indicate what you
want to find out.
Ø Use the depositions in trial and present the objections
Ø It may used by substitutes or in other cases provided that
they involve the same parties and subject matter
Ø It can be used by any party.

PROBLEM:
The requesting party threw away the deposition because it did not held
him in any way. May the adverse party use the same?


RULE:
YES. Depositions can be used by any party. In effect, the enemy’s cause is
strengthened.

Ø Depositions may even be used to impeach the witness if his
testimony is inconsistent with his depositions. In effect, no
more evidence.

b. Interrogatories to Parties
INTERROGATIES TO PARTIES WRITTEN INTERROGATORIES
Applicable to parties and witnesses Applicable only to parties to parties
Prepared by lawyer and sent to the Parties prepare and send to the other
deposition officer. party. Do not send to counsel, serve it to
the party.
You can present the adverse party as
“hostile witness” – this is where
interrogatories to parties become
mandatory because it will serve as your
CIVIL PROCEDURE 74

basis and guide.
Ø It also shorten proceedings

PROBLEM:
In the case of the Soda Company v. girl whereby the latter was killed by
the driver of the truck belonging to the former, what can be asked in the
interrogatories to parties.

RULE:
You can ask the type of license, how long was he driving, how often does
the company monitor its drivers, how old is the truck etc. The answers
thereto will be made part of the stipulation of facts. It shortens the
proceedings.


c. Request for Admissions
REQUEST FOR ADMISSION INTERROGATORIES TO PARTIES
Parties to parties Parties or witnesses
Asking for the admission of facts and Asking questions
genuineness of documents
Whatever is admitted can only be used It can be used in other cases
in that case alone even if another case
involves the same subject matter and
parties.
Ø The request must be answered otherwise it will be
considered as implied admission.
Ø When there is admission, express or implied, the party can
even file a motion for summary judgment because of the
admission.
Ø However, if the subject of the request is already covered by
an answer, then you can refuse to answer the request.
Ø You can attach documents in the request but not the original
so as to avoid the requested party to run away with it.
Ø If you do not have documents, use other modes.

d. Production of Documents and Inspection of Things
PRODUCTION OF DOCUMENTS SUBPOENA
Not necessarily for evidence Coercive measure necessary for
evidence
Ø It is always by motion to compel the party to produce
documents
Ø Examples:
1. The plaintiff believed that the monument representing
the boundary was moved. So, he requested for
inspection of things. However, the case will be
 CIVIL PROCEDURE 75

dismissed if after inspection the boundary was never
moved.
2. Young man under appendectomy was in coma. Parents
sued the hospital. Thus, production of documents was
availed of and all the records of the patient reveal that
the anesthesiologist might be at fault.

e. Physical and Mental Examination
Ø Only parties, never witnesses can be subjected to such
examinations.
Ø If the controversy revolves around the mental or physical
condition of the party:
1. In cases of injury, there is no need for this because it is
already included in the complaint. However, where
there are damages, this can be applied to ascertain the
injuries which will be the basis for damages.
2. In annulment of marriage, there is no need for this
because it is grounded on psychological incapacity
which shall be proven. However, if it is a case of legal
separation, then this can be availed of when the ground
is insanity.
Ø The requesting party must choose the physician
Ø Results of the examination will be given to:
1. Requesting party
2. Party examined if he requests but he shall be deemed to
have waived any privilege to rebut the result because if
he is allowed to rebut, he can easily manufacture a
contrary result.
− If he does not request, he is not entitled to
receive. But, he can have another examination
and use the same to rebut the first examination.

XXVI. SPECIAL CIVIL ACTIONS
• They are special in the sense that they have peculiarities. They have
their own set of rules and the Rules of Court applies only suppletorily.

a. Interpleader
Ø Elements:
1. There is only one subject matter
2. There are 2 or more conflicting claimants
3. Plaintiff is not interested in the subject matter
4. The claims of the claimants are apparently valid



CIVIL PROCEDURE 76


PROBLEM:
A, the holder of a manager’s check, brings the same to the bank. B calls the bank
and told not to encash said check because the claims ownership of the check and

he happen to lose it.

RULE:
The Bank has the remedy to file in court “Bank v. A and B” for interpleader.
ELEMENTS:
Vis 1., the manager’s check.
Vis 2., A and B.
Vis 3., bank is not interested.
Vis 4., claims are apparently valid.

Ø File with the RTC because it is incapable of pecuniary
estimation.
Ø Peculiarities:
1. All that plaintiff has to do is to file a case of interpleader
against the claimants and manifest therein that he is
willing to pay the check (in case of the example above)
but to the right person. In ordinary actions, the plaintiff
has to prosecute the case and his failure warrants the
dismissal of the case.
− Court issues summonses to both claimants and
they are both defendants in the interpleader.
− Plaintiff just waits for the judgment.
− Once the court orders the payment to one of the
claimants, the other claimant cannot run after
the plaintiff.
2. Plaintiff will not present evidence because he is not
interested.
3. He appears only at the beginning and at the end.
Ø The plaintiff must be disinterested in the subject matter.

PROBLEM:

Plaintiff as incidental to the interpleader, alleges and seeks to collect
bank charges and the fees. Can the interpleader prosper?

RULE:
NO. The court will dismiss the case outright. The bank must not be
interested in the interpleader. The bank charges shows his interest.
NOTE:
Filing with damages shows your interest, thus there is no valid
interpleader.
Ø If one of the claimants files an answer and the other does not,
the payment will be given to the one who answered.
Ø The docket fees will be fixed amount because the action is
incapable of pecuniary estimation.
CIVIL PROCEDURE 77

Ø Ordinary course of proceedings will follow during pre-trial,
trial and thereafter.
Ø The claimants can actually file a case. The claimants can file
for specific performance against the bank or damages against
the other claimant. However, the bank cannot file an
interpleader by way of counterclaim.

b. Declaratory Relief and other similar remedies
Ø Requires that no breach or violation has yet been committed
Ø You want the court to explain or declare your right under
law, deed or a contract
Ø Filed with RTC because it is incapable of pecuniary
estimation
Ø Peculiarities:
1. There is no actual violation as yet but you go to court
because of an impending violation. In ordinary actions,
you go to court because of actual violation of right.

PROBLEM:
An ordinance prohibits the bringing out of the house of sharp objects. An

engineering student who brings everyday “stylus” files a case against the
city council and legal counsel of Baguio for declaratory relief for what is
covered under the term sharp objects. Pending, he was accosted and
searched by the Police and was charged.

RULE:
The declaratory relief petition will be dismissed because there is already
a breach. But in the case against him, he may use as defense that he did
not know what sharp object is.

2. The court can refuse or opt not to take action on the
declaratory relief and abdicate its own power without
incurring administrative sanction because once they
define the word “sharp objects”, that is tantamount to
judicial legislation which is prohibited under the law.
Unlike in ordinary actions, court cannot refuse to take
action.
Ø It must be availed of as the last resort. If there are other
remedies available, avail them first.

PROBLEM and RULE:
Grandfather bequeath to his grandchild everything. GF died. GC now files
declaratory relief to be declared an heir. It is wrong because we have
laws on succession



CIVIL PROCEDURE 78

PROBLEM:
China fishermen entered storm and it landed in Batanes, PH. He stayed
there, learned the dialect and married a native Filipina. Because he has
no proof of identity, he filed a declaratory relief to become a Filipino
citizen.


RULE:
Recourse to Declaratory relief was wrong because we have laws on
naturalization.


PROBLEM:

Accredited contractor won the bid. However, he agreed with a sub-

contractor to do the work and he gets only a share. Thus, the sub-
contractor did the job and when almost done, he died. His foreman took
over and completed it. But the foreman found under the contract that he
has no right to receive because the contract was exclusive between AC
and SC. Thus the declaratory relief.

RULE:
The case will be dismissed because the foreman is never part of the
contract. No right to declaratory relief.
Ø “Similar remedies”
1. Quieting of title – to be declared owner and establish
ownership. To remove any cloud in the title.
2. Consolidation of ownership – after period of
redemption has expired.

c. Review of Resolutions of COMELEC and COA
Ø Only them because they are constitutional bodies
Ø Under rule 64 “Petition for Review of Resolutions of
COMELEC and COA”, not rule 65.
Ø 30 days
Ø Petition for review is not a matter of right. It can be
dismissed outright if insubstantial

d. Certiorari, Prohibition and Mandamus
Ø They can only be availed of with respect to an interlocutory
order and that it was issued with grave abuse of discretion.
Ø Grave abuse of discretion is an error of jurisdiction, not
errors of judgment. In other words, it involves errors of
procedure.
Ø Not the interlocutory orders of courts but also quasi-judicial
bodies
Ø NOTE: Not all interlocutory orders are subject to this action.
An example is a denial of demurrer to evidence, while the
denial is interlocutory, the same cannot be subject to
certiorari. Remedy is to present evidence and await the
CIVIL PROCEDURE 79

judgment. Then appeal the judgment and include therein the
denial of your demurrer.
Ø Example:
1. Defendant files a motion for extension to file answer.
Upon motion of plaintiff, he was declared in default.
− You want to set aside the interlocutory order of
default (certiorari)
Ø Concurrent jurisdiction:
1. Grave abuse of MTC – RTC, CA and SC have concurrent
jurisdiction
2. Grave abuse of RTC – CA and SC have concurrent
jurisdiction
− But, always follow the hierarchy
Ø Other jurisdiction:
1. A barangay protest is filed with MTC. The MTC
interlocutory orders can be subject to certiorari with
the RTC.
2. Municipal protest is filed with the RTC. Certiorari is to
be filed with the COMELEC.

PROBLEM: CERTIORARI
In the case P v. D for sum of money in the amount of 250k, it was filed in

RTC. Defendant filed an MTD on the ground of lack of jurisdiction but the
RTC denied the MTD and the case proceeded.

RULE:
The denial is an interlocutory order because it did not dispose of
the case; the case went on. As such, it could be a proper subject of Rule
65 filed with CA.
If the CA grants, it will set aside the order of RTC denying the
MTD. In other words, the case shall be dismissed but it will be the CA
that will dismiss the case. No need to remand the case to RTC just to
grant the MTC.


NOTE:
Only in MTD that this effect applies – that CA can dismiss the case
instead of remanding the case back.
However, if the MTD is granted at the first instance in the RTC,
such order will be final and thus appealable.

PROBLEM: PROHIBITION
In the case P v. D for recovery of possession, P and D are from La
Trinidad and the lot is found in Baguio City and is worth 25k. The case
was filed in RTC, la Trinidad. An MTD was filed on the ground of
improper venue but the RTC denies and the case goes on.

RULE:
Defendant can file a prohibition to stop the proceeding because he was
right in raising improper venue at the earliest possible case.
CIVIL PROCEDURE 80

Ø In the case of Mandamus, it only covers ministerial
functions. Ministerial functions are those where there are no
exercise of judgment and discretion (no choice).
Discretionary functions are those where judgment is
exercised.
− To act on it can be compelled
− How to act on it cannot be compelled.

PROBLEM and RULE: MANDAMUS
Mandamus can compel an employer to pay the mandated benefits under
the law.


PROBLEM: MANDAMUS
Mayor X was duly elected by the people breaking the political dynasty in
that municipality. The members of the dynasty then barricaded the hall
to prevent him to enter his office.

RULE:

Mandamus can compel these protesters to stop and let the new mayor in.

NOTE:
Quo Warranto is filed only when there is a usurper of authority


PROBLEM: MANDAMUS
X applied for a managerial position. He passed the screening with flying
colors. His records show that he never failed in class and all his trainings.
Can he compel the employer to hire him?


RULE:
NO. Appointment power is discretionary. You may be qualified but they
may not like you after all.


PROBLEM and RULE: MANDAMUS
You cannot compel a prosecutor to file a case despite your belief that
there is probable cause.

PROBLEM and RULE: MANDAMUS
You cannot compel the grant of a motion to quash. HOWEVER, you can
compel the court to act upon the motion to quash.

Ø NOTE: if you file an MTD, it means that you did not file an
answer. There is thus a danger that you may be declared in
default and you already went up all the way for certiorari,
prohibition and mandamus. REMEDIES:
1. File an answer ad cautelam
CIVIL PROCEDURE 81

2. File the certiorari, prohibition or mandamus with
preliminary injunction.
− Without the injunction, the courts are duty-bound
to continue the proceedings otherwise,
administrative sanctions may be imposed. The
court cannot unilaterally stop the case although
the subject matter of the C,P,M is the order that it
issued and even if the decision in the C,P,M is
determinative of whether or not to continue the
case.
Ø Prerequisite: before filing certiorari, motion for
reconsideration must be availed of and filed with the court
that rendered the assailed decision to give such court the
chance to correct itself. EXCEPT, matters of urgency.
Ø It must be filed within 60 days from the denial of the motion
for reconsideration.

PROBLEM and RULE: CERTIORARI

Case dismissed, MR denied. Appeal was available was not availed of.
Then filed certiorari. It will be dismissed because he should have
appealed. Certiorari cannot be used as a substitute of lost appeal.


PROBLEM and RULE: CERTIORARI
A judgment of acquittal is final and executory. Denial to an MR will not
entitle a certiorari remedy because of the right against double jeopardy.
But the civil liability can be appealed if acquittal is based on reasonable
doubt.

RULE 45 RULE 65
File within 15 days File within 60 days
Mode of appeal Special civil action
Motion for reconsideration is not a MR is a prerequisite
prerequisite
Filed with the SC Concurrent RTC, CA and SC

e. Quo Warranto
Ø Follow the rules of civil procedure, not the COMELEC rules.
Ø You seek to know “by what authority/warrant”
Ø Peculiarity: it is a prerogative writ of the government to
question by what authority a person exercises a public office
or public franchise
Ø Examples:
1. To recount votes is not the Quo Warranto contemplated
under civil procedure.
2. The mayor cannot read nor write (qualifications), a
citizen cannot file Q.W. but he can ask the SolGen.
CIVIL PROCEDURE 82

Ø Who can file:
1. The government through the solicitor general
− No prescription
2. Third Private Person
− May be required by the SolGen to post bond just
in case his action is later found to be groundless.
− Leave of court is needed because it will be the
court that will grant you the privilege to file.
Thus, if the court grants leave, the SolGen will file
a case but the third person will shoulder all
expenses.
3. A person who claims to be entitled to the position.
− Must be filed within 1 year from the time he was
dispossessed
− He can claim damages for salaries withheld and
attorney’s fees.
− Example: Mayor A leaves for 6 months to take
the bar exams but upon return, his office was
usurped by his assistant. Quo Warranto is
proper.
Ø Public Franchise – like jeepneys and taxicabs, you can
question the public vehicle if they do not have permit.

f. Expropriation
Ø Eminent domain refers to the right – substantive law.
Expropriation is the procedure by which eminent domain is
exercised.
Ø The plaintiff is the government and any of its political
subdivision or instrumentality
Ø It is filed with RTC because it is incapable of pecuniary
estimation according to nature of the action test. Thus,
regardless of the value, RTC handles all cases of
expropriation.
Ø TWO STAGES: peculiarities
1. Propriety of the expropriation
− Court has to decide whether the private property
to be taken is for public purpose.
− Summons will be served on the defendant
− Defendant has two options:
i. No objection
ü Defendant must manifest his non-
objection
ü He does not file an answer because
he does not object but he cannot
CIVIL PROCEDURE 83

be declared in default because this
is a special civil action (peculiar)
ü Even if defendant does not object,
it is still incumbent upon the
government to prove the public
purpose
ii. Objection
ü He must file an answer.
ü No filing of MTD (peculiar)
ü Nonetheless, if he has grounds for
MTD, he can include it in his
answer as affirmative defenses.
ü No counterclaim is allowed
because you cannot sue the state
without its consent. No crossclaim.
No third party complaint. ANSWER
ONLY. (Peculiar)
− The decision in whether or not there is public
purpose is appealable:
i. By the government if the decision found
no public purpose
ii. By the defendant if he offers objection but
the expropriation was granted
ü Through ordinary appeal.
ü Record on appeal is needed
because as they appeal, the
proceedings in the RTC go on.
Thus, RTC cannot proceed if
transmits the record to the
appellate court to rule on the
appeal.
ü This is thus a case for multiple
appeals.
ü Record on appeal is the
reproduction of the records which
must be approved by the RTC.
Once approved, it must be
transmitted to the appellate court.
ü If record on appeal is needed, you
are given 30 days to file because
you need to prepare all the
pleadings, resolutions and the like.
ü The original record stays in the
RTC


CIVIL PROCEDURE 84

2. Payment of Just Compensation
− Satisfy first stage then here.
− Just compensation refers to the full, fair and
reasonable payment.
− Court is not expected to go and inspect the
property. Thus, there are the commissioners.
− Trial by Commissioners
ü Composed of 3 persons (1 selected
by plaintiff, 1 by defendant and 1
by the court)
ü They are answerable only to the
court.
ü Usually the provincial assessor is
appointed by the court, real estate
agent by defendant and municipal
assessor by the plaintiff.
ü They are paid for it by the parties.
ü Parties can comment on the report
of the commissioners. This report
is submitted to court.
ü Then the court adjudicates based
on report and comments.
ü However, the report is merely
recommendatory. The court can
adopt or disregard totally or
partially.
− The decision will be how much just
compensation is.
− The decision is appealable – but no record on
appeal is needed because this is already the last
stage. The lower court has nothing more to do.
What will be transmitted on appeal is the
original record.
Ø The government can take the property even without the
proceedings provided that it deposits to bank an amount for
the private owner. The bank book will then be submitted to
court.
Ø Just compensation must be computed from the taking or
decision of the court, whichever comes first.
Ø Road right of way: no just compensation. But what happens
to the title to that portion? All lands belong to the state and
the state does not waive any title just by mere giving of title.
Ø Right to collect just compensation does not prescribe.


CIVIL PROCEDURE 85

g. Foreclosure of Real Estate Mortgage
Ø Refers only to judicial. Extrajudicial foreclosure is governed
by Act 3135
Ø Presupposes a loan with a security for the loan and the loan
was not paid.
Ø The prayer is that the real property be sold to satisfy the loan
Ø Mortgagor is the indispensable defendant. If there are other
mortgagees, they must be included because they are
necessary parties. If they are not impleaded, the property is
deemed not foreclosed.
Ø File with the RTC because it is incapable of pecuniary
estimation.
Ø The venue will be where the property is located because it is
a real action.
Ø The decision in the judicial foreclosure is the amount to be
paid.
− This is for defendant to pay within not less than
90 days nor more than 120 days from entry of
judgment (Equity of Redemption) NOTE: the old
rule provides that the period shall be from entry of
judgment but this is erroneous since it deprives
you of the right to appeal.
Ø If the defendant does not pay despite the order from the
court, the plaintiff may file a motion for the foreclosure of
property – this is actually your real prayer which only comes
later.
Ø The property will then be sold at public auction but notice
thereof shall be posted in conspicuous places of the province
where the property is located and published in a newspaper
of general circulation.
− The requirement of posting and publication
cannot be waived by the parties even when it is
expensive because it is for the benefit of the
general public, not for the parties, for them to
know the condition of the property.
Ø The property will be sold for exactly the amount of loan
− If deficient, you can ask for the deficiency
judgment executed by ordinary writ of
execution. This case would be likened into an
ordinary action for collection of sum of money.
Thus, you can even levy later on.
− If there is excess, the excess must be given to the
mortgagor or to other mortgagees to cover
partially payment of their loan.
CIVIL PROCEDURE 86

Ø The certificate of sale will be registered in order for the right
of redemption to accrue, which is 1 year from registration.
− However, right of redemption exists only in
those allowed by law.
− In general banking law – only if the mortgagee is
a bank or credit or financial institution. Right of
redemption is allowed because they must always
have money. They must remain liquid. They
cannot have as funds, lands won at foreclosure.
− If there is right of redemption, the registered
owner still owns the right of possession, the
fruits but may not introduce major
improvement.
− However, highest bidder can take possession by
a writ of possession, which can be:
i. Discretionary
ü Right of redemption still exists and
it is still within the period.
ü Posting of bond may be required
to answer for damages that owner
may suffer.
ü Filed with the same court
ii. Ministerial
ü Right of redemption does not exist.
The mortgagor is divested of
ownership and title.
ü Or, the right of redemption is not
availed of and title consolidated.
ü It can be compelled by mandamus.
ü The court cannot entertain any
injunction or any defense by the
mortgagor because it is
ministerial.
ü Filed in any RTC. This is one
reason why an injunction cannot
be entertained by the court
because co-equal courts cannot
assert power over each other.

h. Partition
Ø Normally refers to real property but it may include personal
properties
Ø For indivisible properties, sell and partition the proceeds
Ø TWO STEPS:
1. Propriety of Partition
CIVIL PROCEDURE 87

− The issue is on co-ownership
− Whether or not there is co-ownership
− A co-owner will file a partition against the other
co-owners as defendants.
− This is capable of pecuniary estimation so look at
the assessed value of the property.
− Ex. A, B and C files a petition for partition against
D. The plaintiffs allege co-ownership but
defendant answers in the negative. The case goes
to trial and the court dismissed the case since
there is no co-ownership. The decision is
appealable.
2. Partition Itself
− How the property shall be divided.
− This is another case of multiple appeals. Record
on appeal will be needed if there is co-
ownership. It will not be needed if there is no co-
ownership.
ü 30 days within which to perfect
appeal in case record on appeal is
needed.
− If the court finds no co-ownership but such
decision was not appealed, the plaintiff can still
file an accion reivindicatoria (recovery of
ownership). There is no res judicata because
issues are different.
− An action for partition is imprescriptible while
an accion reivindicatoria has prescriptive period
of 10 years from the repudiation of co-
ownership.
− TWO MODES:
i. Parties can submit a partition
agreement.
ü Likened to a compromise
agreement.
ü Thus, once submitted to court,
court issues a judgment by
compromise adopting the partition
agreement.
ü The judgment is final and
executory on the date of issuance.
Thus it cannot be appealed.
ii. Trial by Commissioners
ü 3 members same as in payment of
just compensation
CIVIL PROCEDURE 88

ü Court may adopt, alter or reject.
Ø Oral partition is valid as long as it is consummated. Once it is
consummated, there will be no co-ownership to talk about.
Thus, if they take possession of the assigned properties or
portion thereof, the oral partition is already consummated.
Any subsequent petition for partition will be denied.

i. Forcible Entry and Unlawful Detainer
Ø Governed by rules on summary procedure
Ø Generally referred to as ejectment suit – there is no need to
state whether it is FE or UD, just look at the facts and
allegations.
Ø Exclusive jurisdiction – MTC regardless of assessed value
and amount of rentals
Ø Prescriptive period – 1 year from dispossession. If the
period expires, you may avail of accion publiciana (regular
rules)
1. Forcible Entry
− You must allege that:
i. You are in prior physical possession e.g.
you planted banana, you named each and
every rock,
ii. Force, Intimidation, Strategy, Threat or
Stealth (FISTS)
ü Explain how FISTS were done
ü Without the explanation, the case
may be dismissed because it might
not be a forcible entry but accion
publiciana.
ü Mere narration of what happened
is not enough.
− Demand is not necessary
− The issue only is possession. Thus, there can be
no adjudication as to ownership except if
necessary to determine who has a better right to
possession. However, such decision on
ownership shall be binding on that case alone.
ü Thus, in the next case of quieting
of title, there will be no res
judicata. The finding of ownership
in the ejectment case is not
binding in this case.
− You can apply for a provisional remedy of
preliminary mandatory injunction – to restore
you in your possession immediately.
CIVIL PROCEDURE 89

− The rentals are computed from period of
dispossession.
2. Unlawful Detainer
− There is definitely no issue on ownership
because as lessee you cannot deny the title of the
lessor
− INSTANCES:
i. There is a contract of lease.
ü Example: lease good for January 1
to December 31, 2016. At January
1, 2017, 12:00 midnight, you are
already unlawfully detaining.
ü Renew the contract before the
expiration.
ü If you are already unlawfully
detaining, no demand is
necessary.
ii. There is no contract of lease
ü It is implied
ü The expiration of a lease can be
implied by the manner of payment.
If rents are paid monthly, then at
the end of each month is the
expiration of lease.
ü Demand IS necessary to put into
effect that you are no longer
renewing the contract.
ü Written or oral demand is allowed
but for probative value, a written
demand is better.
ü If it is written, you do not need to
show that it was received.
− Grounds:
i. Expiration of lease
ii. Non payment of Rent
ü Requires two demands: one for the
payment, the other to vacate.
iii. Violation of any of the terms of the
contract of lease
ü Requires two demands: one to
stop the violation, the other to
vacate.
ü An example of violation would be
when the house was only for
CIVIL PROCEDURE 90

residential purposes but you put
up a sari-sari store.
ü Another example would be when
you said you were only 3 to stay
but in fact were more than 10.
Ø RULES ON SUMMARY PROCEDURE:
− A court issues order that the case falls under the
rules on summary procedure
− Defendant will have 10 days to answer.
However, failure to answer will not put him in
default unlike in ordinary actions.
− Generally, no motion to dismiss is allowed
except for the grounds
i. Lack of jurisdiction and
ii. Non-referral to lupon.
− The court on its own initiative or upon motion by
the plaintiff, it can make the case submitted for
decision if no answer is made.
− If there is answer nonetheless, you include
therein your grounds for MTD as affirmative
defenses.
− Preliminary conference will be held within 10
days from the filing of answer. It is like pre-trial
in ordinary actions.
− The parties will have to submit their position
papers within 10 days after the preliminary
conference, together with affidavit of witnesses
because there is no trial but only clarificatory
hearing.
− After the submission, the case is deemed
submitted for decision. The court shall then
decide the case within 30 days.
− So that ideally, cases under summary procedure
last only for 60 days.
j. Contempt of Court
Ø This is the only criminal provision in civil procedure because
it has as penalty, imprisonment or fine or both.
Ø TWO KINDS:
1. Direct
− The judge is present; within the sight and sound
of the judge; within the presence of the judge;
the judge is the representation of the court.
− Examples:
i. Shouting at the judge
CIVIL PROCEDURE 91

ii. Honking the horn around the justice hall
shouting the phrase “unfair dayta nga
judge”
− This is any disrespect, discourtesy within the
presence of the judge
− Summary in nature. Thus, the judge can directly
and immediately pronounce that an audience is
in contempt of court and immediately order that
the person be jailed for today.
− It cannot be appealed but one may avail rule 65
but it would be impractical since you may have
already been freed even pending the case.
− NOTE: the judge must be in court performing
judicial functions. So that, if the judge has been
drinking with a friend in their house and the latter
disrespected the former, no contempt is
committed.
2. Indirect
− Judge may not be there.
− Examples:
i. Refusal to comply with order to support
pendente lite
ii. Refusal to allow the sheriff to enter the
property despite the order
− Disobedience of a court order
− There must be a proper charge
ü Through motion or entirely new
petition. In case of the latter, it
must be verified, certified and
docket fees paid. The decision is
appealable.




~~~End of Finals~~~
J