PHILIPPINE CHRISTIAN UNIVERSITY

COLLEGE OF LAW

FREQUENTLY ASKED TOPICS IN CIVIL PROCEDURE

IN ORDER OF FREQUENCY
(BASES ON QUICK REVIEWER)
(13 TIMES)
A.

Appeal

a. Three modes of appeal

1. Ordinary Appeal (Rule 40 and 41)
a. Notice of Appeal
b. Record on Appeal
2. Petition for Review (Rule 42)
3. Appeal by Certiorari (Rule 45)
b. When is appeal a matter of right
1. First Appeal is a matter of right
EXCEPT: In civil cases, first appeal is not a matter of right if filed
with the Supreme Court.
2. In criminal cases, when the RTC imposes death penalty, the Court
of Appeals shall automatically review the judgment (Section 3(d)
Rule 122). If the Court of Appeals finds that death penalty should be
imposed, the CA shall not render judgment but certify and elevate
the case to the Supreme Court for review (Section 13(a) Rule 124).

(9 TIMES)
B.

Forcible Entry and Unlawful Detainer

FORCIBLE ENTRY
Possession of land is unlawful
from the beginning due to force,
intimidation, threat, strategy or
stealth
No requirement of previous

UNLAWFUL DETAINER
Possession
of
defendant
is
inceptively lawful but becomes
illegal by reason of termination of
right of possession
Demand is jurisdictional

demand for defendant to vacate

premises
Plaintiff must prove that he was
in prior physical possession until
he was deprived thereof by
defendant
1-year period counted from date
of actual entry or when plaintiff
learned thereof.

Plaintiff need not have been in

prior physical possession
1-year period from date of last
demand

THREE KINDS OF ACTION FOR RECOVERY OF POSSESSION

ACCION
INTERDICTAL
Summary
action
for the recovery of
physical
possession where
the dispossession
has not lasted for
more than 1 year
MTC only

ACCION PUBLICIANA
A plenary action for
the recovery of the
real
right
of
possession when the
dispossession
has
lasted for more than
1 year
RTC
if value of
property
exceeds
P20,000.00,
or
P50,000.00 in Metro
Manila

ACCION
REIVINDICATORIA
An
action
for
the
recovery of ownership,
which
necessarily
includes the recovery of
possession
RTC if value of property
exceeds P20,000.00, or
P50,000.00
in
Metro
Manila

(8 TIMES)
C. Writ of Certiorari- It is a writ issued by a superior court to an inferior

court, board or officer exercising judicial or quasi-judicial functions whereby

the record of a particular case is ordered to be elevated for review and
correction in matters of law.

D. Petition for Prohibition- Legal remedy available to prevent inferior

courts, or other tribunals, corporations, boards, officers, or persons, from
usurping or exercising a jurisdiction with which they have not been vested by
law, to prevent the unlawful and oppressive exercise of legal authority and to
provide for a fair and orderly administration of justice.

E. Petition for Mandamus- Command issuing from a court of law of

competent jurisdiction, in the name of the state or sovereign, directed to
some inferior court, tribunal, or board, or to some corporation or person,
requiring the performance of a particular duty therein specified, which duty
results from the official station of the party to whom the writ is directed, or
from operation of law.

(8 TIMES)
PROVISIONAL REMEDIES
F. ATTACHMENT:
WHEN APPLICATION FOR ATTACHMENT MAY BE MADE:
1. At the commencement of the action; or
2. At any time before entry of judgment.
TWO-FOLD PURPOSE OF ATTACHMENT:
1 .To seize the property of the debtor in advance of final judgment and
to hold it for purposes of satisfying the said judgment;
2. To enable the court to acquire jurisdiction over the action by the
actual or constructive seizure of the property in those instances where
personal service of summons on the creditor cannot be effected.
HOW TO PREVENT THE ATTACHMENT
1.BY DEPOSITING with the court from which the writ was issued an
amount equal to the value of the bond fixed by the court in the order of
attachment or an amount equal to the value of the property to be
attached, exclusive of costs; or
2.BY GIVING A COUNTERBOND executed to the applicant, in amount
equal to the bond posted by the latter to secure the attachment or in
an amount equal to the value of the property to be attached exclusive
of costs (Riano, p.55&)
REMEDY OF THE THIRD PERSON:
1. File a terceria or third party claim (similar to Sec. 16, Rule 39)
2. File independent action to recover his property; or
3. File a motion for intervention (This is available only before a
judgment is rendered, hence, and not allowed under Rule 39

(6 TIMES)

G. Motion to Dismiss

GENERAL RULE: A court may not motu propio dismiss a case unless
a motion to that effect is filed by a party thereto.
EXCEPTIONS:
1. Those cases where the court may dismiss a case motu proprio
(Sec. 1, Rule 9);
2. Upon the plaintiffs own motion (Sec. 2, Rule 17); or
3. Rule on Summary Procedure (Section 4, 1991 Revised Rule on
Summary Procedure).
a. Grounds
1. No jurisdiction over the person of the defending party;
2. No jurisdiction over the subject matter of the calm;
3. Improper venue;
4. No legal capacity to sue;
5. Litis pendentia;
6. Res judicata;
7. Prescription;
8. Failure to state a cause of action;
9. Claim or demand has been paid, waived, abandoned, or
otherwise extinguished;
10. Claim is unenforceable under the Statute of Frauds; and
11. Non-compliance with a condition precedent for filing a claim.
b. Effects of Dismissal
GENERAL RULE: The action or claim may be re-filed.
EXCEPTIONS: The action cannot be re-filed if it was dismissed on
any of these grounds:
1. Res judicata;
2. Prescription;
3. Extinguishment of the claim or demand; and
4. Unenforceability under the Statue of Frauds.
In these instances, the remedy of the plaintiff is APPEAL.
H. Dismissal of Actions
a. Upon Notice by the Plaintiff
GENERAL RULE: Such dismissal is WITHOUT PREJUDICE.
EXCEPTIONS:
1.Where the notice of dismissal so provides; or
2. Where the plaintiff has previously dismissed the same case in a
court of competent jurisdiction. (TWO-DISMISSAL RULE)
b. Upon Motion of the Plaintiff

The dismissal of the complaint is subject to the DISCRETION of the

court and upon such terms and conditions as may be just.
Dismissal under this rule is WITHOUT PREJUDICE, ( the complaint
can be re-filed) EXCEPT:
1. When otherwise stated in the motion to dismiss; or
2. When stated to be with prejudice in the order of the court.

(6 TIMES)
A. Demurrer to Evidence
NATURE: There is only a one-sided trial, i.e., it is only the plaintiff
who has presented evidence.
PURPOSE: To discourage prolonged litigations.
a. If motion denied- Movant shall have the right to present his
evidence.
Denial is INTERLOCUTORY. Sec. 1, Rule 36 (That judgment should
state clearly and distinctly the facts and the law on which it is
based), will not apply. The denial is NOT appealable.
b. If motion granted but reversed on appeal- Movant is deemed
to have waived his right to present evidence. The decision of the
appellate court will be based only on the evidence of the plaintiff as
the defendant loses his right to have the case remanded for
reception of his evidence
Order of the court is an ADJUDUCATION ON THE MERITS. Hence, the
requirement in Sec. 1, Rule 36 should be complied with.
c. Judgment on Demurrer to Evidence- A judgment rendered by
the court dismissing a case upon motion of the defendant, made
after plaintiff has rested his case, on the ground that upon the facts
presented by the plaintiff and the law on the matter, plaintiff has
not shown any right to relief.

(5TIMES)
I. Default

a. Effect of Order of Default

While the party in default cannot take part in the trial, he is
nonetheless entitled to notice of subsequent proceedings.

He may still be called on as a witness, in behalf of the nondefaulting defendants

b. Remedies of a party declared in default
1. Before the rendition of judgment;
(a) file a motion to dismiss under oath to set aside the order of
default on the grounds of fraud, accident, mistake or excusable
negligence and that he has a meritorious defense (Sec. 3[b] of Rule
9 ); and if reconsideration is denied, he may file the special civil
action of certiorari for grave abuse of discretion tantamount to lack
or excess of jurisdiction ( Sec. 1 of Rule 65 ); or
(b) file a petition for certiorari if he has been illegally declared in
default e.g. during the pendency of his motion to dismiss or before
the expiration of the time to answer. (Matute v. CA, 26 SCRA 768;
Acosta-Ofalia v. Sundial, 85 SCRA 412 ).
2. After judgment but before its finality;
(a.) file a motion for new trial on the grounds of fraud, accident,
mistake, excusable negligence or;
(b.) file a motion for reconsideration on the ground of excessive
damages, insufficient evidence or the decision or final order being
contrary to law ( Sec. 2 of Rule 37); and thereafter, if the motion is
denied, appeal is available under Rules 40 or 41, whichever is
applicable.
3. After finality of judgment
There are three ways to assail the judgment, which are:
(a) a petition for relied under Rule 38 on the grounds of fraud,
accident, mistake or excusable negligence;
(b) annulment of judgment under Rule 47 for extrinsic fraud or lack
of jurisdiction;
(c) certiorari if the judgment is void on its face or by the
judicial record.

VENUE OF PERSONAL ACTIONS (4 TIMES)

JOINDER AND MISJOINDER OF CAUSES OF ACTION (4TIMES)
EXECUTION BY MOTION OR BY INEDEPENDENT ACTION (4

TIMES)

EXECUTION, SATISFACTION, AND EFFECT OF JUDGMENTS (4

TIMES)
WHEN PETITION FOR CERTIORARI, PROHIBITION AND MANDAMUS
IS PROPER (4TIMES)
INTERVENTION (3TIMES)

(3TIMES)
J. REPLEVIN
Replevin is the provisional remedy seeking for the possession of the
property prior to the determination of the main action for replevin.
Procedure for the application for Replevin (Requisites):
1.
File an APPLICATION at the commencement of the action or at
any time before defendant answers.
2. Applicant must give a BOND, executed to the adverse party, which
shall be double the value of the property as stated in the affidavit.