Civil Procedure – it is the procedure governing the filing, processing, and adjudication of a civil

action.

• A.M 19-10-20-SC – revised the 1997 Rules of Civil Procedure

Civ pro is divided into three topics: a) general provision (rule 1) b) ordinary civil actions (rules 2
to 5) c) procedures in the regional trial courts ( rule 6 to 39) d) appeals (rule 40 to 56) e)
provisional remedies ( rule 57 to 61 f) special civil actions ( rule 62 to 71) g) 1991 rules on
summary procedure h) local government code (barangay settling of dispute)

Jurisdiction of courts in civil cases:

Original Juris v. Appellate Juris

Original is that bestowed upon a court in the first instance whereas Appellate that given to a
court by means of appeal from a judgment of a lower court.

General Juris v. Special/ limited Juris

General the power of a court to adjudicate all cases except those EXPRESSLY WITHHELD
FROM ITS POWER whereas Special is that which limits the court’s jurisdiction only to some
particular cases.

Exclusive Juris v. Concurrent Juris

Exclusive is the power of a court or a tribunal to adjudicate a case to the exclusion of other
courts or tribunals whereas Concurrent is the power conferred upon different courts whether of
the same level or of different ranks.

• Example of concurrent juris of different ranks – the RTC, CA, and SC has concurrent
jurisdiction to issue writ of certiorari, prohibition, or mandamus. However, under the Doctrine of
Hierarchy of Courts, it will compel the party to file his petition with the RTC. Only when there is a
compelling reason that the party may file his petition with a higher court.

• Doctrine of Judicial Stability or Non- Interference - a court of co-equal rank cannot interfere
with the judgment or processes of another court with the same rank.

• Delegated Jurisdiction – The MTC has delegated jurisdiction in CADASTRAL CASES and
LAND REGISTRATION CASES.

• Interlocutory/ Special Jurisdiction – The mTC has interlocutory jurisdiction to hear and decide
petitions for writ of habeas corpus or applications for bail in the absence of all RTC judges in the
province or city.

Q: What happens if the court has no jurisdiction over a case?

All the proceedings including the judgment is VOID. If a court has no jurisdiction over a case,
then the only power he has is to dismiss the case. The court must also take notice of the limit of
its jurisdiction.
Note: if a court has no jurisdiction and it renders a judgment, then a party can assail that
judgment DIRECTLY OR COLLATERALLY. Exception: When the party himself has invoke the
jurisdiction of the court and the court has rendered a judgment that is adverse to him, then he
cannot anymore assail the judgment of the court whose jurisdiction he has invoked because of
Principle of Laches which will bar the party from impugning the jurisdiction of said court.

Four levels of Judicial system:

1st level courts ( MTC) -> Regional Trial Courts -> Court of Appeals -> Supreme Court

Requisites for a valid exercise of Jurisdiction:

a) The court must have jurisdiction over the persons of the parties ( the plaintiff and the
defendant)

• How may the court acquire jurisdiction over the person of the plaintiff?

1) If the plaintiff files a complaint with the court, then he submits his person to the
jurisdiction of the court.

• How may the court acquire jurisdiction over the person of the defendant?

1) By valid service of summons upon the defendant ; or

2) By his voluntary appearance in court.

b) The court must have jurisdiction over the subject matter of the action
c) The court must have jurisdiction over the res

Note: jurisdiction over the res is only necessary when the defendant is a non-resident
defendant who is not in the Philippines.

Note: If the defendant is a non-resident defendant and he is not in the Philippines, he can be
sued in the Philippines only in a few instances:

1) The action affects the status of the plaintiff who is in the Philippines;
2) The action involves a property of the defendant situated in the Philippines.
NOTE: This is an action quasi in rem.

Q: What will determine the jurisdiction of the court?

The jurisdiction of the court is determined by the facts alleged In the complaint and by the law
then in force at the time of the commencement of the action.

Q: How is civil action commenced?

It is commenced by the filing of an original complaint in court.
Q: What happens when jurisdiction is acquired by the court?
When jurisdiction is acquired by a court, then that court shall continue to exercise jurisdiction
over that case until the case is terminated. (Doctrine of Adherence to Jurisdiction)

• Doctrine of Primary jurisdiction – Administrative agency that has quasi-judicial power has
primary jurisdiction to try and adjudicate cases because this administrative agency is more
equipped with more competence and skill to render a judgment or a decision in some cases.
The RTC has jurisdiction over an action for specific performance because an action for specific
performance is incapable of pecuniary estimation.

Kinds of Civil Actions:

A civil action may either be real action or personal action as to the basis of the action.

Q: When is it a real action?

It is an action that affects the title to or possession over real property or any interest therein. A
real action is founded upon the privity of a real estate.

Q: What is a personal action?

it is an action in which the plaintiff seeks the recovery of a personal property or the enforcement
or rescission of a contract or the recovery of damages.

Q: what is the nature of an action to annul a loan including the real estate mortgage?

It is a personal action because a real action is founded upon the privity of a real estate.

Actions classified according to object or against whom it is directed:

1) Action in personam – the complaint or the action is directed against a particular

individual or defendant. The action is to establish against a particular person on the
basis of his personal liability and the judgment that the court may render in that case will
bind him personally.
2) Action in Quasi-in-rem – action brought against an individual or particular defendant
although the purpose of the action is to subject the defendant’s interest in a particular
property to the obligation burdening the property. The judgment in an action quasi in rem
is conclusive only between the parties.
NOTE: It is an action that deals the status, ownership, or liability of a particular property
but which are intended to operate on these questions only as between the plaintiff and
the defendant. Example of an action quasi in rem: PARTITION, ATTACHMENT OR
FORECLOSURE OF A MORTGAGE
3) Action in rem – an action against all persons who might be minded to make an action of
any sort against the right sought to be established in that action. It is an action directed
against the whole world. The judgment binds the whole world.

Q: If an action is an action in personam, is that also a real action?

NO. An action in personam is not necessarily a personal action. Also, a real action is not
necessarily an action in rem.

• In an action in personam, jurisdiction over the person of the defendant is essential so that
the court can take cognizance of the case.

• If the action is an action quasi in rem or action in rem, even if the court cannot or has not
acquired jurisdiction over the person of the defendant. It can still take cognizance of the
case and assume jurisdiction provided it has JURISDICTION OVER THE RES.

Q: how may the court acquire jurisdiction over the res?

It can acquire in any of the following:

a) By the seizure of the property under legal process whereby the property is brought into
the actual custody of the court. Example: the plaintiff seeks the attachment of the
property of the defendant located in the Philippines. Thus, the property subject of the
attachment shall be ceased and will be brought into the actual custody of the court.
b) As a result of the institution of the legal proceedings in which the power of the court is
recognized and made effective

Jurisdiction of the first-level courts:

Q: over what civil actions does the MTC have jurisdiction?

a) Over all civil actions and probate proceedings, whether testate or intestate, where the
value of the personal property or estate or the amount of the demand does not exceed
P300,000 or P 400,000 in Metro Manila.
Note: (exclusive of damages of whatever kind) exclude the damages of whatever kind,
interest, attorney’s fees, litigation expenses and costs. If the total amount does not
exceed the amount of 300k or 400k in MM, then the MTC HAS JURISDICTION.
Conversely, if it exceeds then the RTC HAS JURISDICTION.
Note: THE PHRASE “WHATEVER KIND OF DAMAGES” MEANS THAT ANY
DAMAGES THAT ARE INCIDENTAL TO THE MAIN CAUSE OF ACTION. Thus, if the
value of the personal property is 299k but the damages you are claiming for is 500k, the
action should still be filed in the MTC because damages of whatever kind are excluded
in the amount.

b) All cases of forcible entry and unlawful detainer (ejectment cases/ action interdictal)
NOTE: regardless of the value of the REAL PROPERTY.
c) All civil actions which involves title to or possession of real property, or any interest
therein, where the assessed value of the property does not exceed P 20k or P 50k in
Metro Manila.
NOTE: how will you know the assessed value of the property? You look at the assessed
value in the Tax Declaration.
 NOTE: The assessed value should be alleged or specified in the complaint or at least
should be shown in the Tax Declaration attached in the complaint.

Real actions may be classified as:

1) Action interdictal – Falling in this classification are Forcible Entry and Unlawful Detainer
Cases. What is involved here is possession de facto.
2) Accion Publiciana – recovers the right of possession or possession de jure of property
3) Accion Reinvindicatoria – an action to recover ownership including the possession of
real property.

Jurisdiction of the RTC:

1) The RTC shall have exclusive original jurisdiction over all civil actions in which the
subject of litigation is incapable of pecuniary estimation.
2) Over all civil actions which involve the title to or possession of real property or any
interest therein where the assessed value of the real property exceeds 20k or 50k in
MM.
3) All actions in admiralty or maritime jurisdiction where the demand exceeds 300k or 400k
in MM.
4) All matters of probate both testate and intestate where the gross value of the estate
exceeds 300k or 400k in MM
5) All actions involving the contract of marriage and marital relations although this shall now
fall within the jurisdiction of the FAMILY COURT.
6) All cases not within the exclusive jurisdiction of any court or tribunal exercising judicial or
quasi-judicial functions.
7) All other cases in which the demand exclusive of interest, damages of whatever kind,
attorney’s fees, litigation expenses and costs or the value of the property in controversy
exceeds 300k or 400k in MM.

• Civil actions in which the subject of the litigation is incapable of pecuniary estimation – It is
the RTC that has jurisdiction.

Q: when can we say that the subject matter of the case is incapable of pecuniary
estimation?

When the subject of the litigation cannot be ascertained or estimated in terms of money.
When in a civil action, the basic issue is something other than the right to recover money or
where the money claim is merely incidental to or is a consequence of the principal relief
being sought by the plaintiff in the action, then the subject is incapable of pecuniary
estimation.
Example: Action for Specific Performance, action for appointment of a receiver, action for
expropriation, action for support, rescission or annulment of document

Q: If the plaintiff files a complaint for specific performance or damages in the amount of
250k, what court will have jurisdiction?

MTC, because if the demand is in the alternative obligation, then the plaintiff has assigned a
money equivalent to his claim for specific performance.

Q: what if If the plaintiff files a complaint for specific performance and/or damages in the
amount of 250k, what court will have jurisdiction?

The same answer because the “or” will prevail. Thus, it is the mTC who has jurisdiction
because he has assigned a money equivalent to his claim for specific performance.

NOTE: although the action is one for specific performance but if the purpose of the action is
to recover ownership or possession of real property then the action is a REAL ACTION and
the jurisdiction of the court will be determined based on the assessed value of the real
property involved.

• In determining what court has jurisdiction, apply the following tests:

1) Nature of the action test – determine if the action is

•Capable - personal action and capable of pecuniary estimation, then the jurisdiction of
the court will be based on the total amount of demand or claim exclusive of DIAL-C.
• (or) incapable of pecuniary estimation – the basic issue is other than the right to
recover money, then the RTC has jurisdiction.
NOTE: this nature of action test must yield to Primary/ultimate objective test.
2) Ultimate objective test – even if the action appears to be incapable of pecuniary
estimation if the ultimate objective of the plaintiff is to recover ownership or possession
of real property, then the action is a REAL ACTION and the jurisdiction of the court will
be determined based on the ASSESSED VALUE of the property. Example: a) an
action for specific performance but the purpose of the plaintiff in filing the
complaint for specific performance is to compel the defendant to execute a deed
of sale for the transfer of land. b) An action for cancellation of defendant’s
certificate of title.

Real estate mortgage – mortgagee(creditor) – mortgagor (debtor)

 Rule 1 – General Provisions

• The Rules of Court shall apply in all courts except as otherwise provided by Supreme
Court. Ex: In RTC, there are instances when cases are governed by the Rule on
Summary Procedure and not Rules of Court.

• A civil action is one by which a party sues another for the enforcement or protection of a right
or the prevention or redress of a wrong. EX: Enforce payment of unpaid loan, ejectment case

• Civil actions may be classified into:

A) Ordinary civil action -

B) Special civil action – EX: interpleader, certiorari, prohibition, mandamus, quo warranto,
expropriation, partition,contempt

NOTE: both civil actions are governed by the Rules but there are rules that apply only to
special civil action.

• special proceeding – is a remedy by which a party seeks to establish a status, a right, or a

particular fact.

Distinctions between Civil action and Special proceeding:

a) In civil action, a party sues another for the enforcement or protection of a right or for the
prevention or redress of a wrong whereas a Special proceeding is a remedy by which a
party seeks to establish a status, a right, or a particular fact.
b) A civil action is adversarial whereas a Special Proceeding may or may not be adversarial
c) The object of a civil action is the formal demand of a right by one against the other
whereas a Special Proceeding is simply a declaration of a status, a right, or a particular
fact. EX: settlement of estate of a deceased person, adoption, Habeas corpus, change
of name. (all of these are special proceeding)

The rules of court do not apply to the following cases:

1) Election cases
2) Land registration cases
3) Cadastral cases
4) Naturalization proceedings
5) Insolvency
6) Other cases like labor cases except by analogy or in suppletory character and whenever
practicable or convenient.
Commencement of a civil action:

Q: when is the civil action commenced?

The civil action is commenced upon the filing of the original complaint in court. However, if
an additional defendant is impleaded in a later pleading, then the civil action is commenced
as far as the additional defendant is concerned, on the date of the filing of the later
pleading regardless of whether the motion for its submission is admitted or denied by the
court.

NOTE: the “later pleading” refers to amended complaint.

Example: Plaintiff A files a complaint against B and the complaint against B is filed on July
16. Thereafter, on August 1, A filed a pleading to include C as another defendant. In here,
the civil action is commenced as to B, on July 16. As to C, the civil action commenced on
August 1.

NOTE: Sometimes, amended is a matter of right( if it is a matter of right, the plaintiff does
not need to have leave of court). Other times, it should be with leave of court. IF amendment
is with leave of court, then you have to file a motion for leave to amend the pleading (the
court may or may not grant the motion). If a complaint is amended to change the plaintiff’s
cause of action, then technically, that amended complaint is a new complaint. Thus, the civil
action is commenced upon the filing of the amended complaint.

NOTE: “filing” refers to the act of presenting the complaint to the clerk of court.
NOTE: filing of the complaint is completed only upon payment of the correct amount of
docket fees regardless of the actual date of filing.

•payment of filing fee is a jurisdictional requirement. The filing fee, however may be paid
within a reasonable time but before the expiration of applicable prescriptive period for the
cause of action. If the correct amount of docket fees has not been paid, then the defendant
must promptly raise that question of non-payment of the docket fees, otherwise, the
defendant may be said to be in ESTOPPEL.

General Rule: Filing of a complaint must be accompanied with the payment of the correct
amount of docket fee. Exception: The plaintiff is authorized to litigate as indigent or pauper
litigant.

Q: why do we need to know when the civil action is commenced?

Because it is only when the civil action is deemed commenced that the applicable
prescriptive period for the cause of action is interrupted.

Q: how should the Rules of court be construed?

The rules should be construed LIBERALLY to promote their objective of securing a

just, speedy, and inexpensive disposition of every action or proceeding. The rules
must be used to facilitate and not to frustrate the ends of justice.
Module 3 – Cause of Action (Rule 2)

Q: what is the basis of an ordinary civil action?

The basis of an ordinary civil action is a CAUSE OF ACTION.

Sec. 1, Rule 2 provides that every ordinary civil action must be based on a cause of
action.

Q: what is a cause of action?

A cause of action is the act or omission by which a party violates a right of another.

The following are the requisites of a cause of action:

1) Existence of a plaintiffs right by whatever means and under whatever law it arises or is
created.
2) An obligation on the part of the defendant to respect and not to violate such right of the
plaintiff
3) An act or omission on the part of the defendant constituting a violation of a plaintiffs right
which causes injury or damage.

Q: how does it(cause of action) differ from an action or right of action?

The following are the difference:

1) An action is a suit filed in court for the enforcement or protection of a right or the
prevention or redress of a wrong whereas a cause of action is the basis for the filing of
the action.
2) Right of action is the right to commence or maintain an action whereas a cause of action
is a formal statement of the operative facts that gives rise to such right of action.

Q: How many suits may be filed as basis for a single cause of action?

The Rule provides that a party may not institute more than one suit for a single cause of
action. Thus, a party may not split a single cause of action.

Splitting a single cause of action:

Q: what is splitting a single cause of action?

It is the process of dividing a claim or demand into two or more parts and bringing suit for
each of these parts.

Q: what happens if there is a splitting of single cause of action?

If two or more suits are instituted on the basis of the same cause of action, the filing of one
or a judgment upon the merits of any one is available as a ground for the dismissal of the
others.
 The grounds for dismissal are:

• LITIS PENDENTIA – there is another action pending between the same parties and for the
same cause.

• RES JUDICATA – bar by prior judgment.

Q: When may the defendant file a motion to dismiss based on litis pendentia and when it
may be by res judicata?

If both actions are pending, then the ground is litis pendentia. The defendant will seek the
dismissal of one of these actions alleging litis pendentia. However, if there is already a
judgment on one case and the judgment has attained finality or has become final, then the
ground is RES JUDICATA.

NOTE: a motion to dismiss is a prohibited motion except if it alleges any of the following
grounds:

1) Lack of jurisdiction over the subject matter of the action

2) Litis pendentia
3) Res judicata
4) Prescription.

Q: why is it that splitting of cause of action is not allowed?

It is not allowed because:

1) it breeds multiplicity of suits

2) It clogs the dockets of courts
3) It causes unnecessary expenses to the parties.

Q: how do we determine the singleness of a cause of action?

If the action arises from quasi-delict or one arising from the fault or negligence of the defendant,
then the singleness of the cause of action lies on the singleness of the delict committed by the
defendant in violation of the plaintiffs right. Thus, if there is only one delict committed, then
there is only one single cause of action.

If the obligation arises from a contract and the obligation is INDIVISIBLE then there is only one
cause of action regardless of the number of violations committed. However, if the obligation is
DIVISIBLE, there can be as many causes of action as there are obligations violated.
Example: X lent 10 Billion to Y and the debt is payable in 10 yearly installments at 1m per
installment. If the first installment was paid but the second was not paid, then X may
already file a complaint in court for the payment of the 2nd installment. If the 3rd
installment is due and also unpaid, X can again file for another complaint for the payment
of 3rd installment.
Q: suppose there is an acceleration clause in the contract?
Then there could only be one single cause of action.

NOTE in the above example: if the creditor did not file when the installments was not
paid when it is due and now files a complaint for the collection of the whole 10B, how
many causes of action does the creditor have? Answer: only one cause of action
because all the divisible obligations or installment had become due and not paid, then all
the installments that became due will now be integrated into a SINGLE CAUSE OF
ACTION. Thus, X can only file 1 complaint.

• Doctrine of anticipatory breach –

Q: suppose the plaintiff has several causes of action, may the plaintiff join these cause of action
in one complaint?

Yes, he may join them in one complaint. This is because of joinder of causes of action.
However, this is only permissive. The plaintiff or plaintiffs are not compelled to join their causes
of action. They may or may not join their causes of action. If they do, they must comply with the
requisites which are:

1) The party joining the causes of action shall comply with the rule on joinder of parties
2) The joinder shall not include a special civil action or a civil action governed by special
rules.
Example: an action for annulment of contract/document or an action for specific
performance cannot be joined for an action for illegal detainer; an action for quieting of
title is a special civil action under rule 63. Thus, an action for quieting of title cannot be
joined with an action for declaration of nullity of title(an ordinary civil action); an action for
partition (Special civil action RULE 69), cannot be joined with an action for rescission.
NOTE: a misjoinder of causes of action as when an action governed by a special rule is
joined with an ordinary civil action. But, misjoinder of causes of action is not a ground for
dismissal of an action. A motion of the party or the court motu proprio may drop a
misjoined cause of action.

Q: However, if the misjoined causes of action is not dropped and the parties went to trial
and presented evidence on both causes of action. May the court render judgment on
these causes of action even if misjoined?
Yes, provided that the court has jurisdiction over all the causes of action.
3) The causes of action should be between the same parties but pertain to different venues
and jurisdictions, the joinder may be allowed in the RTC provided that one of the causes
of action falls within the jurisdiction of the said court and the venue lies therein.

Example: X resides in Baguio. Y resides in Bontoc. Then a land belongs to X but

the land is located in Agoo, La union and has an assessed value of 75,000 pesos.
Subsequently, there is a transaction between X and Y, in which X had lent to Y the
sum of 250k and the debt has already become due. Then, there was a time that X
asked Y to oversee his land in Agoo but Y falsified a Deed of Sale and on the basis
 of that falsified deed of sale, he succeeded to transfer the title of the land to his(Y)
name. Now, X would like to file against Y for the amount of 250k.
IN here, X has two causes of action. TO wit:
a) Sum of 250k;
b) One pertaining to the land.

Q: Can X join these two causes of action?

Yes, but he is not compelled to do so because joinder of causes of action is only

PERMISSIVE.

Q: Now, suppose X decides to file one complaint for the amount of 250k. With what
court should he file his complaint?
In the MTC of Baguio or Bontoc at the choice of X. Since it is a personal action, the
choice is vested on the plaintiff.

Q: X also files a complaint to recover ownership and possession of the land from Y.
Where should he file his complaint?

RTC. Since this is a real action, the venue is where the property is located. Thus, it
should be in AGOO.

Q: May X join his two causes of action in one complaint although the venue of the
personal action is in Baguio or Bontoc and the court that has jurisdiction is the MTC. Can
he join these two causes of action?

YES. If the causes of action are between the same parties but pertain to different venues
and jurisdictions, then the RULE says that the joinder may be allowed before the RTC,
PROVIDED THAT ONE OF THE CAUSES OF ACTION FALLS WITHIN THE
JURISDICTION OF THAT COURT (RTC) AND THE VENUE LIES THEREIN.

4) When the claims in all the causes of action are principally for recovery of money, the
aggregate amount shall be the test of jurisdiction. (TOTALITY RULE)
Module 4: Rule 3 – Parties to Civil Action

Q: who may be parties to a civil action?

the rule says that only natural persons or juridical persons or entities authorized by law
may be parties to a civil action.

• Plaintiff – one who has an interest in the subject of the action and in obtaining the relief
demanded. He may be the claimant In the original complaint or counterclaim or cross-claim or
claimant in a third party complaint.

Example: X filed a complaint against Y and Z. If Y files a counterclaim against X. In here, X is

the plaintiff in the original complaint or main action. As to the counterclaim, Y is the
plaintiff or claimant in the counterclaim. Now, Y has a claim against Z, now Y can file a
cross-claim against Z. As to the cross-claim that Y filed against Z, Y is the plaintiff. Now, Z
may file a third party complaint against Q. As to the third party complaint, Z is the plaintiff or
Third party plaintiff and Q is the third party defendant.

NOTE: cross-claim - a claim which a party has against his co-party.

• Defendant – one who has an interest in the controversy ADVERSE to the Plaintiff.

• Entity authorized by law – this entity may not have a legal personality but the Rule
allows it to be a party to a civil action.
Example: when two or more persons not organized as an entity with juridical personality
enter into a transaction under a common name. Here, they can be sued under the
common name BUT CANNOT SUE under the common name.

Example: X and Y has not organized themselves as a partnership but they go into
business and they transact with A under a common name (Blue sky Enterprises). In here,
A can file a case against Blue Sky enterprises but X AND Y cannot sue A under the
common name. If they would like to sue A, they can sue A under their OWN NAMES.

Example of an entity authorized by law: an estate of a deceased person; labor

organization; corporation by estoppel or a partnership by estoppel.

Q: Is a sole proprietorship an entity authorized by law?

Example: A has a business and calls it “A Enterprises”. May the sole proprietorship be a party
to a civil action?
No. It cannot be a party to a civil action because it has no legal personality. It is not an entity
authorized by law. Thus, if A would like to file a case against someone else, he should file it
under his own name.

Q: Suppose a sole proprietorship is the plaintiff in a civil case?

The action may be dismissed on the ground that the plaintiff has no legal capacity to sue.
Q: When may this ground be invoked to dismiss a complaint or an action?

If the plaintiff is not among those who may be parties to a civil action, then the complaint may be
dismissed on the ground that plaintiff has no legal capacity to sue.

NOTE: if the plaintiff has no legal capacity to sue because he is not among the parties
that can be a party to a civil action, then the ground of dismissal is the plaintiff has no
legal capacity to sue.
If the defendant who has no legal capacity to sue because he is not one of those who
may be parties to a civil action, then the ground for dismissal is failure to state a cause of
action.

• If a person that can be parties to a civil action (natural, juridical,entities authorized by law ) but
the one against whom the action is filed or the one filing the action SHOULD BE A REAL
PARTY IN INTEREST. Because the Rule is that an action may be prosecuted or defended in
the name of the Real party-in-interest unless otherwise authorized by law or Rules like a
CLASS SUIT.

Q: what is a real party in interest?

A real party in interest is the party who stands to be benefitted or injured by the judgment in the
suit or the party entitled to the avails of the suit.

To be a real party in interest, his interest must be real, material and direct as distinguished from
a mere expectancy or a future or contingent or consequential interest.

Example: X, the owner. Y, the lawful possessor , Z, one who committed an act that disturbed Y
in his lawful possession of the subject property. Who among them can bring an action against Z
involving the possession of his property?

In a case where a lawful possessor is disturbed in his possession, it is the possessor himself
and not necessarily the owner, can bring an action to recover possession of the subject
property.

Example: A contract between A, B, C, D. It has been said that in case a violation of contract,
non-fulfillment by one of them of any obligation arising from that contract. Then only the parties
to the contract are the real parties in interest in an action upon the contract based on the
doctrine of relativity of contracts (art. 1311, NCC). Exception: the contract conveys a benefit to a
person not a party to the contract (stipulation pour autrui).

Q: what happens if the plaintiff is not the real party in interest?

The complaint may be dismissed on the ground that it fails to state a cause of action.

• Classification of Real party in interest:

a) Indispensable party – is a party without whom no final determination can be had of an
action.
Simply put, if A, b, c, d are co-owners of a property and A would like to partition the
property. In an action for partition involving the property, all of them are indispensable
parties. Thus, they must all be joined in the action either as plaintiffs or defendants.
Q: Suppose one of the co-owners is not impleaded in the action and a judgment has
been rendered?
The judgment will be void for lack of authority to act not only as to the party absent but
also as to the parties present.
b) Necessary party – is a party who is not indispensable but ought to be joined if complete
relief is to be accorded as to those already parties or for a complete determination or
settlement of the claim subject of the action.

NOTE: if a necessary party is not impleaded, the court can still render a valid judgment
although the judgment will not resolve the entire controversy.

Example of a necessary party: A as creditor and B and C as debtors. The amount of

debt is 1m. The obligation of B and C is joint obligation. IF A collect against B alone,
then the court can settle the controversy by awarding 500k. The judgment will not satisfy
the entire claim of the plaintiff A.

Q: suppose the obligation of B AND C is solidary. What kind of REAL PARTY IN

INTEREST IS C?
he is neither indispensable or necessary because A can collect the entire amount of 1M
from B even without including C and the judgment that the court may render is a valid
judgment.

Q: what is the effect of failure to join an indispensable party in the action?

The non-joinder of an indispensable party is not a ground for the dismissal of the action.

Q: Suppose the court becomes aware or is informed that an indispensable party is not
impleaded in the action. What may the court do?
The court will issue an order directing the plaintiff to amend his complaint to
implead the omitted indispensable party.

Q: Suppose the plaintiff refuses to comply with the order of the court?
The court may dismiss the complaint. On what ground? Failure of the plaintiff to obey
an order of the court without any justifiable reason.

Q: suppose the plaintiff does not implead a necessary party?

The plaintiff must state the name of the omitted necessary party and the reason
for his omission or non-inclusion. If the court finds the reason for the non-inclusion of
the omitted necessary party to be unjustified, then the court shall issue an order to direct
the plaintiff to amend his complaint.
 NOTE: if the plaintiff refuses to implead the omitted necessary party, then the failure of
the plai ntiff to implead him will amount to a waiver of his claim against the omitted
necessary party.

Distinctions between an indispensable party and necessary party:

1) IF an indispensable party is not impleaded, the non-inclusion of an indispensable
party may result in the dismissal of the complaint. On the other hand, the non-
inclusion of a necessary party may result in the waiver of the claim of the plaintiff
against the necessary party.
2) An indispensable party should be impleaded for a final determination of an action
because if he is not included, there can be no final determination that could be had in
that action. On the other hand, if a necessary party is not impleaded, there can be no
complete determination of the action. .

• unwilling co-plaintiff/ non-consenting plaintiff – may be impleaded as defendant.

Q: suppose an unwilling co-plaintiff is not impleaded as defendant but included him as one of
the plaintiffs. Is that alright?
NO because if a non-consenting party is made a plaintiff, it would amount to a denial of due
process.

• Persons who can sue in behalf of a real party in interest/ representatives as parties – if an
action is allowed by a representative or one acting in a fiduciary but the beneficiary is
incapacitated, then the beneficiary shall be included in the title and shall be deemed to be the
real party in interest.

Examples of representatives who can be parties: a trustee of an express trust; a guardian or an

executor; an agent acting in his own name for the benefit of unknown principal.

• Pro-forma party – a pro-forma party or nominal party is one who is joined as a plaintiff or as a
defendant not because he has any real interest in the subject matter of the litigation or in the
relief demanded because the rules of pleadings require the presence of such party.

Example: the husband may not file an action without joining the wife.

Q: why should the husband and wife sue and be sued jointly?
Because they are joint administrators of the absolute community or the conjugal partnership.
Exception: when the property relations of the husband and wife are governed by the rules on
separation of property or one spouse is dealing with or disposing of his exclusive property.

• Minor or incompetents – may sue or be sued with the assistance of the person exercising
parental authority over him or if none, by a guardian ad litem.
Q: who is a guardian ad litem?
IT is a special guardian appointed by the court in which a particular litigation is pending to
represent or assist the minor or incompetent in the action. The appointment of guardian ad litem
may be sought in the same action and his status as a guardian ad litem exists only in that
particular action.

Joinder of parties:

Joinder of parties is only permissive except when the party to be joined is an

indispensable party then his joinder is compulsory EXCEPT in a class suit.

Requisites of joinder of parties:

1) There must be several parties in whom or against whom there exists a right to
relief arising from the same transaction or event.
2) There must be a question of law or a question of fact common to all of them
NOTE: a question of law is one that requires interpretation or application of a law. On the
other hand, a question of fact pertains to a resolution of a factual dispute.

Example of joinder of parties: a bus full of passengers and there was an accident
involving the bus. 10 passengers suffered serious injuries. Q: may the ten of them file
just one complaint against the bus driver or bus operator?
Yes. They will now join as one plaintiffs in the complaint.

• Class suit – The requisites are:

1) The subject matter of the controversy is one of common or general interest to many
persons
NOTE: there must be community of interest. If the interest is separable from the interest
of others, then it cannot be a class suit.
2) The parties affected are so numerous that it is impracticable to join all as parties
3) The parties bringing or defending the class suit are found by the court to be sufficiently
numerous and representative as to fully protect the interest of all.

Q: when is there a misjoinder of parties?

There is misjoinder of parties when that party is made a party to the action although he should
not be impleaded because he has no material interest of the subject of the ligation.

Q: when is there a non-joinder of parties?

There is nonjoinder when a party who is supposed to be joined in the action is not impleaded.

• Misjoinder or nonjoinder of a party is not a ground for dismissal of the action. Parties may be
dropped motu proprio or upon motion of the parties. However, if the court issues an order to
implead a party that is not joined or drop a party who is misjoined but the plaintiff refuses to
obey the order, then the complaint or action may be dismissed for failure of the plaintiff to obey
an order of the court.

Q: who will plaintiff sue when he is uncertain on who will he sue?

If the plaintiff is uncertain against who of several persons he is entitled to relief, he may join any
or all of them as defendants in the alternative although the right to relief against one may be
inconsistent with the right of relief against the other.

EXAMPLE: a person is injured when two vehicles collided. He was a passenger in one of the
two vehicles. He is not sure against whom he should file his complaint. TO whom should he file
his complaint? A: Against both the owners or drivers of the two vehicles in the alternative
although the right of relief against one may be inconsistent with right of relief against the
other. His cause of action against the owner of the vehicle would be based on contract.
On the other owner, his cause of action is based on culpa aquiliana.

Q: what if the identity of the defendant or name is unknown?

The defendant may be sued as the unknown owner or by such other designation as the
circumstances may allow. Example: the owner of the vehicle with license no. 12345

Effect of death of party:

Q: what happens when a party dies?

• when a party dies and his claim is not extinguished, it shall be the duty of the counsel
to inform the court within 30 days of the fact of death of the party and the name and
address of the legal representative of the deceased party.

Q: suppose the counsel fails to comply with his obligation to notify the court of the death of his
client?
The counsel may be subject to a disciplinary action.
NOTE: the moment a notice is given to the court, the court shall have the following duties:

a) The court shall order the legal representative to appear and to be substituted in the
action within 30 days from receipt of notice.
Example of actions that survive (death of the defendant but the action was not
abated): action for recovery of real or personal property; action arising from delict; action
for the recovery of a sum of money; action for damages.
Examples of actions that do not survive: action for support; action for annulment of
marriage or legal separation;

Q: what is the purpose of substitution?

The purpose is the protection of the right of the party to due process. Non-compliance will
render the proceedings infirm and can nullify the proceedings.
Q: what if the deceased party has no legal representative? What if the party that should
substitute the deceased refuses to appear within 30 days?

The opposing party must secure the appointment of an administrator or executor. The
administrator or executor will be substituted in the place of the deceased party.

Q: death/resign/ ceases of public officer that is being sued or suing in his official capacity? What
will happen?
The action will continue against his successor if within 30 days after the successor assumes the
office or such time as the court may allow, it is shown by a party that there is a substantial need
for continuing an maintaining the action.

• requisites for substitution in case a public officer suing or is sued in his official capacity
dies/resigns/ceases to hold office:

a) There must be satisfactory proof by any party that there is substantial need of continuing
the action
b) The successor adopts or continues or threatens to adopt or continue the acts of his
predecessor;
c) The substitution is effected within 30 days after the successor assumes office or within
the time granted by the court
d) The notice of the application for substitution must be given to the other party.
NOTE: the failure to make the substitution is a ground for dismissal of the action.

Effect of death of the defendant in an action involving contractual money claim:

Q: what happens if the defendant dies and the action involves a money claim arising out
of a contract?
If the defendant dies before entry of judgment, the action will continue until entry of judgment.
(the action survives and is not abated by the death of the defendant). Thus, there will be a
substitution and the action will continue until entry of judgment. NOTE: The judgment in here
will not be forced by means of execution. Instead, it will be presented as a money claim
based on judgment in the probate proceedings involving the estate of the deceased
defendant.

Q: when can there be an entry of judgment?

if the court renders a judgment and the judgment becomes final, then there will be an entry of
judgment and the date of finality of judgment shall be presumed to be the date of entry of
judgment.

Q: what is the difference between money claim and money claim based on judgment?

Both will be presented as a claim to the testate or intestate proceedings involving the estate of
the deceased debtor. However, as to the money claim, it will be subject to proof. The creditor
will have to present proof of his money claim. If his money claim is denied by the administrator
or executor, then he has to appeal the denial of his money claim. On the other hand, the money
claim based on judgment is a conclusive proof of his money claim. He does not need to present
proof to substantiate his money claim.

Q: suppose the defendant-creditor dies and there is a levy on his property?

The proceedings will continue. Example: a judgment has become final and the judgment-
obligee files a motion for execution of the judgment and the court issues a writ of
execution and the sheriff will enforce the writ of execution. What will the sheriff do? A: he
will levy on the property of the judgment-obligor; then there will be sale on execution;

NOTE: if the defendant-(obligor) dies after levy, the proceeding will continue until the
sale on execution and there is need to present a money claim based on judgment since a
levy constitutes as a lien on the property levied upon.

NOTE: if the defendant dies before levy, the money claim based on judgment shall be
presented in the probate proceedings of the deceased defendant.

Q: when can there be a transfer of interest pendente lite?

If the interest of a party is conveyed to another who is not a party to the action. If this is
the case, the action will continue between the original parties.

NOTE: if there is transferof interest pending litigation, the action can be continued by or against
the original parties unless the court upon motion directs the transferee to be substituted in the
action or to be joined with the original party. Even if the transferee is not substituted in the
action or is not joined with the original party and the action is continued by or against
the original parties, any judgment that may be rendered by the court will bind the
transferee.

Q: how may a transfer pendente lite be effected?

It may be effected by means of sale or donation or by any mode by which the interest is
conveyed by the transferor to the transferee. EXAMPLE: QUITCLAIM

• If a person is without any means to prosecute his claim in court, upon his application, he may
be authorized by the court to litigate as an indigent or pauper litigant.

Q: who is an indigent/pauper litigant?

Is one who litigates a claim in court but he has no money or property sufficient and available for
food, shelter, and basic necessities for himself and his family.

AN indigent litigant is one whose gross income and that of his immediate family does not
exceed an amount double the monthly minimum wage of an employee and who does not own
real property with a fair market value more than 300k.

NOTE: if his application is approved, he will be exempted from payment of docket and filing
fees.
Q: when may the solicitor general be required to appear in the action?
In any action involving the validity of any treaty, law, ordinance, executive order, presidential
decree rule or regulation, the court may require the Sol gen to appear in the action and he may
be heard in person or through representative who he has deputized.
Module 5: Rule 4 (venue of actions)

Q: what is venue?

Venue is the place where the action is to be commenced and tried; the proper location of the
trial.

Distinctions between venue and jurisdiction:

1) Venue is the place where the action is commenced and tried whereas Jurisdiction is the
authority of the court to hear and decide the action.
2) Venue may be waived whereas jurisdiction over the subject matter of the action cannot
be waived.
NOTE: jurisdiction over the person of the defendant can be waived
3) Venue may be the subject of a written agreement between the parties whereas
Jurisdiction cannot be the subject of a written agreement between the parties.
4) A court cannot motu proprio dismiss the action on ground of Improper venue except if
the civil action is governed by the rule on Summary Procedure while a court can motu
proprio dismiss the action for lack of jurisdiction over the subject matter of the action.
5) Venue establishes a relation between the plaintiff and the defendant whereas
Jurisdiction establishes a relation between the court and the subject matter.

Q: in a civil action, is improper venue jurisdictional?

No, it is not jurisdiction. Even if the venue is improperly laid but the subject matter of the
action is within the jurisdiction of the court although the venue is improperly laid, the court
can still render a valid judgment. Example: ejectment cases.

Q: what is the venue of the civil action?

The rules on venue will depend on whether the action is a real or personal action.

If real action, then the venue shall be in the place where the property is located.

If personal action. Where the plaintiff or any of the principal plaintiffs resides or any of the
defendant or principal defendants resides. If the defendant is a non-resident defendant, the
place will be in the place where he may be found at the election of the plaintiff.

Example of personal action: Q: X(plaintiff) resides in Baguio while Y(defendant) resides in

Angeles,suppose X files the action in the MTC of Angeles, is the venue properly laid?
ANSWER: yes, because the one who can choose the venue of the action in a personal
action is the plaintiff.

Q: what is the venue of the action if the defendant is a non-resident defendant who is not in
the Philippines? Can you sue the non-resident in the Philippines?
Yes, if the action affects: 1) the personal status of the plaintiff or 2) any property of the
defendant located in the Philippines. Thus, the venue of the action will be the place where
the plaintiff resides or where the property or any portion of the property is situated or found.
Example of an action which affects the personal status of the plaintiff: Annulment of marriage,
nullity of marriage, legal separation. Declaration of presumptive death.

Q: if the defendant is a non-resident defendant, where shall the plaintiff file his case?

The place where the plaintiff resides or the place where the non-resident defendant may be
found at the election of the plaintiff. (if the non-resident defendant is in the Philippines).

IF the non-resident defendant is not in the Philippines and the action affects the personal status
of the plaintiff or any property of the defendant located in the Philippines, then the venue of the
action is where the plaintiff resides or where the property of the defendant or any portion thereof
is situated or found.

Q: what if the plaintiff is non-resident? And files a complaint in any court in the Philippines?
If the plaintiff is a non-resident plaintiff, his venue will be limited to where the defendant resides
or where he (plaintiff) may be found.

Q: X resides in baguio and does his business in Dagupan and his business in Dagupan has a
business name called “X ENTERPRISES” ( a sole proprietorship). The defendant is a resident
of Baguio City. Now, X files a personal action against the defendant but files the complaint in the
court of Dagupan. Is the venue properly laid in Dagupan?
No, because that is only the address of the business of the plaintiff. Further, sole proprietorship
cannot sue or be sued because it does not have a legal capacity to sue. The venue should be in
Baguio City.

Instances where the rules on venue is not applicable:

1) There is a specific rule or law providing for a different venue of the action.
2) When the parties have validly agreed in writing on an exclusive venue of the action.
NOTE: there should be two requisites for this to occur:
a) the agreement must be in writing
b) the agreement must be made prior to the institution of the civil action.

Q: may the parties validly agree on the exclusive venue of their action?
YES. PROVIDED THAT THE AGREEMENT IS IN WRITING AND MADE PRIOR TO THE
INSTITUTION OF THE CIVIL ACTION.

Q: who can raise the question of improper venue?

The defendant is the one who can raise the question of improper venue. The only way that the
defendant may raise the question of improper venue is by asserting as an affirmative defense in
his answer.
Module 6: Rule 6,7,8 ( pleadings)

Q: what is a pleading?

Pleading is the written statement of the respective claims and defenses of the parties submitted
to the court for appropriate judgment.

NOTE: pleadings are necessary to secure the jurisdiction of the court so that the subject matter
can be presented for the consideration of the court.

NOTE: pleadings must be construed liberally so as to do substantial justice. Thus, formal

defects in the pleading may be cured at any stage of the proceeding by means of an
amendment. However, a party is bound by allegations made by him in his pleadings and he
cannot take a position that is inconsistent with his allegation, statement or adhesion.

Kinds of pleadings:

1) Complaint – is the pleading alleging the plaintiff’s or claiming party’s cause of action or
causes of action.
NOTE: the names, residences of the plaintiffs and the defendants must be stated
in the complaint.
Q: why should the residence of the defendant BE STATED?
For service of summons.

Q: WHAT WILL THE DEFENDANT STATE IN HIS ANSWER?

THE DEFENDANT WILL STATE HIS DEFENSES IN HIS ANSWER.

Q: what are the kinds of defenses?

The kinds are:

a) Negative defenses – these defenses are in the form of specific denial of a material
fact or facts alleged in the pleading of the claimant essential to his cause of action.

Q: what are the kinds of specific denial?

The kinds are:

1) Absolute denial - By specifically denying the material allegation in the pleading of the
adverse party and setting forth the substance of the matter upon which the defendant
relies for his denial.

Example: paragraph 5 of the complaint states “on july 16 2019, the defendant
borrowed 1m from the plaintiff which fell due on December 5 2019”. Now if the
defendant wants to deny the allegation, he will state “ the defendant specifically
denies the allegation in paragraph 5 of the complaint. The truth being as follows:
(state the substance of the matter in which he (the defendant) rely for the denial).
 NOTE: if the denial simply states that “he specifically denies” but does not state
the substance of the matter upon which he relies for denial, then the denial is a
GENERAL DENIAL. And, a general denial is deemed as an admission.

• negative pregnant denial – or literal denial. By copying the allegations in the complaint
and stating that “I deny”.

2) Partial denial - The defendant will deny only a part of the allegation by specifying so
much of it as true and deny only the remainder.

Example: that the debt of 1m has already become due and despite demand,
defendant has refused to pay. Now, if the defendant will make partial denial on his
answer, he will state in his answer “that the defendant admits that the obligation
has already become due but denies the rest of the allegation, the truth being that
the defendant has already paid the amount of 1M”.

3) Denial by stating/alleging lack of knowledge or information sufficient to form a belief as

to the truth of allegation in the pleading of the adverse party. (denial by disavowal) (this
kind of denial should be in good faith).

Example: the plaintiff in his complaint states “ that because the defendant’s
refusal to pay, the plaintiff has incurred other damages in the amount of 500k by
way of attorney’s fees, etc.” Now, the defendant has no knowledge that the
plaintiff has incurred damages of 500k. Now, how will he deny this allegation? By
alleging in his answer that he has no knowledge or information sufficient to form a
belief as to the truth of the allegation in the complaint.

NOTE: if the denials are all admissions because they are not specific, the court
can render judgment on the pleadings because there are no issues tendered at
this point.

Q: suppose the fact stated in the allegation is within the knowledge of the
defendant but still asserts that he has no knowledge or information sufficient to
form a belief?
If this is the case, this will be a bad faith denial. If denial is made in bad faith, it will
amount to an admission.

b) Affirmative defenses – an allegation of new matter which although

hypothetically admitting the material allegations in the pleading would
nevertheless bar or prevent recovery by him.

Q: what are the affirmative defenses that a defendant may assert in his
answer?
a) Fraud
b) Statute of limitations
c) Release
d) Payment
e) Illegality
f) Statute of Frauds
g) Estoppel
h) Former recovery
i) Discharge in bankruptcy
j) Other matters by way of confession and avoidance
k) The court has no jurisdiction over the subject matter of the action
l) There is another action pending between the same parties for the same cause (litis
pendentia)
m) Res judicata (barred by prior judgment)
n) Court has no jurisdiction over the person of the defendant
o) The venue is improperly laid
p) Plaintiff has no legal capacity to sue
q) Pleading asserting a claim states no cause of action
r) The condition precedent for the filing of the claim has not been complied with

NOTE: this defenses must be invoked at the earliest opportunity. Failure to raise the
affirmative defenses at the earliest opportunity shall constitute a waiver thereof.

Q: what is the earliest opportunity?

The earliest opportunity is by asserting them in the answer. However, if the grounds are
any of the four grounds, invoking them in a motion to dismiss may also be considered as
EARLIEST OPPORTUNITY. (lack of jurisdiction over the subject matter of the action,
there is another action pending between the same parties for the same cause (litis
pendentia), barred by prior judgment (res judicata), barred by statute of limitations).

Q: plaintiff files a complaint and defendant files an answer. In the answer that he has
filed, he pleaded affirmative defenses. What does the rule require the court to do if
affirmative defenses are set up in the answer?
If the affirmative defenses set up are any of (A TO J, refer to page 26 enumeration), the
court must conduct a summary hearing in these affirmative defenses within 15 days
from the filing of the answer. Within 30 days from the termination of summary hearing,
the court will resolve the affirmative defenses.

If the affirmative defenses set up are M to R (refer to page 26 enumeration), the court
must resolve these affirmative defenses MOTU PROPRIO within 30 days from the filing
of the answer.

• Requisites of litis pendentia:

1) Identity of parties or at least such representing the same interests in both actions
 2) Identity of rights asserted and the reliefs prayed for and the relief being founded on
the same facts

So that there would still be identity of rights asserted even if the claim is set forth by way of a
counterclaim.
Example: X (plaintiff), Y (defendant). In the other action, X (plaintiff) and Y (defendant). Now the
first action is for Specific Performance, and the second is for Rescission based on the same
contract. Now, there is identity of rights in these case.

Example of Identity of rights asserted even if the claim is set forth by way of a
counterclaim: X is filing a case against Y for Specific performance, then Y filed a complaint
against X and X asserted a counterclaim against Y for Specific Performance involving the
same contract.

3) The identity in both cases is such that the judgment may be rendered in the pending
case regardless of which party is successful will amount to res judicata in the other
case.

Q: When there are two cases involving the same parties and the same cause. Which case shall
be dismissed? For example, X v Y is asking for Specific Performance, in the second case, Y is
asking for rescission of contract against X. Which shall be dismissed?

There are two tests that should be applied to determine which case shall be dismissed:

1) The first test is called PRIORITY IN TIME RULE. Under this rule, the first case shall be
prioritized and the SECOND CASE SHALL BE DISMISSED.
2) The second test is called More Appropriate Action test. This provides that if the second
case is more appropriate than the first one, then the FIRST CASE SHALL BE
DISMISSED.

NOTE: The PRIORITY IN TIME RULE must yield to MORE APPROPRIATE ACTION
TEST so that if the second case is more appropriate than the first case, then the
FIRST CASE SHALL BE THE ONE DISMISSED.

Example: X(wife), Y (HUSBAND). X filed an action against Y for support. While the action for
support is pending in court, Y filed a complaint against X for legal separation. X filed her answer
to the complaint and contains a counterclaim for support. Now, which among the case should be
dismissed?

Answer: By applying the more appropriate action test, the second action should prevail
because in the action for legal separation, the parties may litigate on the issue of legal
separation and on the issue of support. Whereas in the 1st case, the parties may only litigate the
issue of support.

NOTE: THAT THERE CAN BE LITIS PENDENTIA EVEN IF THE POSITION OF THE
PARTIES ARE REVERSED.
Sufficiency of a complaint:

•If the complaint fails to state a cause of action, then failure to state a cause of action may be
asserted as affirmative defense. If the court finds that there is failure to state a cause of action,
the court may dismiss the case.

Q: IN determining whether the complaint states a cause of action, should the court require the
parties to present of evidence?

No. The court shall confine itself within the four corners of the complaint and look into the facts
alleged in the complaint. If the court can render judgment based on the facts alleged in the
complaint, then the complaint is sufficient. Corollary, even if the facts is hypothetically admitted,
if the court cannot render a judgment based on these facts, then the cause of action is
insufficient and the complaint must be dismissed.

Ground that may be invoked as an affirmative defense and may also be invoked in a motion to
dismiss:

Q: what are the requisites of res judicata?

a) There must be a former judgment that is already final;

b) The judgment must have been rendered by a court having jurisdiction over the subject
matter of the action and over the parties;
c) The judgment must be a judgment in the merits.
NOTE: an order of dismissal of a complaint having an order with prejudice is a
final order in the merits of the case.
d) There must be identity of parties, identity of subject matter, and identity of causes
of action between the first and the second action.
Note: a cause of action is different from REMEDIES because a CAUSE OF ACTION
may give rise to two or more remedies. EXAMPLE: a violation of a contract gives rise to
a cause of action providing for two remedies: rescission or specific performance.

NOTE ALSO: a party cannot escape the effect of res judicata by simply adopting a
different method of presenting his case or by varying the form of his action.

EXAMPLE OF CASES THAT RES JUDICATA MAY OCCUR: X (plaintiff) Y

(defendant). X filed a complaint against Y but the whereabouts of Y is unknown to X. A
summons was issued against Y for the purpose of notifying Y of the complaint that is
filed against him and to enable the court to acquire jurisdiction over the person of the
defendant. Despite the lapse of time, the plaintiff has failed to publish Summons
(summons by publication) in newspapers, thus, the court dismissed the case for failure
of Y to prosecute his action within a reasonable time. Years later, X has obtained
information regarding the whereabouts of Y. Thus, X re-filed his complaint against Y. Y
files a motion to dismiss arguing that Res Judicata has set in because there was
dismissal in the first case and the dismissal amounted to adjudication of the case on its
merit. Should Y’s motion to dismiss be granted? OR has res judicata set in?
 Answer: No, because the court did not acquire jurisdiction over the person of Y in the
first case. Therefore, one requisite of res judicata is missing which is “The judgment
must have been rendered by a court having jurisdiction over the subject matter of the
action and over the parties”. Thus, res judicata has not set in and the second case may
prosper.

Example of(as affirmative defense) lack of legal capacity to sue (being lack of legal capacity to
sue, this is only applicable to the PLAINTIFF).

• Lack of legal capacity to sue – the plaintiff is not in the exercise of his civil rights or does not
have the necessary qualification to appear in the action or does not have the character or
representation that he claims.

NOTE: this is different from lack of personality to sue. Lack of personality to sue pertains to “the
plaintiff is not the real party in interest”. Thus, if the plaintiff is not the real party in interest, it can
be dismissed based on “FAILURE TO STATE A CAUSE OF ACTION”.

Example: several persons acting as plaintiffs file an action which they claim to be a class suit
but the subject matter of the suit is not of COMMON or GENERAL INTEREST TO MANY
PERSONS. Thus, the plaintiffs has no legal capacity to sue because they do not have the
character or representation that they may claim. So, the case may be dismissed based on “no
legal capacity to sue” because they do not have the character or representation that they claim.

Example of affirmative defense that a defendant may set up in his answer is that “ the
condition precedent for the filing of a claim has not been complied with”.

Q: when may the defendant set up this affirmative defense? (the condition precedent for the
filing of a claim has not been complied with).

The defendant may set up this affirmative defense in the following instances:

a) The plaintiff fails to exhaust administrative remedies (exhaustion of administrative

remedies);
b) The plaintiff fails to comply with the requirements of prior referral of the dispute to the
LUPON
c) When the suit is between members of the same family, it must be alleged in a verified
complaint that earnest efforts toward a compromise has been made but the same must
fail.
Q: what if a person is impleaded but not a member of the same family?
Then a requirement that a compromise must first be made should not be complied with.
d)
2) Counter-claim – is a claim which a defending party has against an opposing party.
Q: What are the kinds of counterclaim?
A) Compulsory counterclaim – The requisites are:
• It arises out of or is necessarily connected with the transaction or occurrence
that is the subject matter of the opponent’s claim.
• it does not require for its adjudication the presence of a third person over
whom the court cannot acquire jurisdiction.
•It must be cognizable by the regular court of justice
• it must be within the jurisdiction of the court both as to the amount and the
nature thereof except in an original action before the RTC, the counterclaim is
still compulsory regardless of the amount thereof.
Example: X(plaintiff) Y(defendant). The action is filed with the MTC to recover
ownership of real property and the assessed value of which does not exceed 20k.Y
filed his answer and he asserted a counterclaim against X for an amount of 500k.
Now, this cannot be a compulsory counterclaim because the MTC cannot render a
judgment for the amount of 500k because it is beyond the court’s jurisdiction.
However, if the MTC finds that Y is entitled to the amount of 500k, the court can
render judgment but not for the entire amount of 500k. Thus, it is not a true
compulsory counterclaim but merely a special defense.

Suppose the complaint is filed with the RTC because the assessed value of the land
involved is more than 20k or 50k. Y filed his answer to the complaint and asserted a
counterclaim for 1m. In here, this is a compulsory counterclaim because the amount
is in the jurisdiction of the RTC.

Q: what if the counterclaim is for 150k?

It is still compulsory because the exception is that in an original action before the
RTC, the counterclaim is considered compulsory regardless of the amount thereof.

•it must already be existing at the time the defending party files his answer.

NOTE: a counterclaim whether compulsory or permissive is a pleading.

However, a counterclaim is incorporated in the answer.
Distinctions between a compulsory counterclaim and permissive counterclaim:

1) a compulsory counterclaim, arises out of or is necessarily connected with the transaction or

occurrence constituting the subject matter of the opposing party’s claim. A PERMISSIVE
counterclaim does not arise out of or is not necessarily connected with the transaction or
occurrence constituting the subject matter of the opposing party’s claim.
2) A compulsory counterclaim is barred if not set up in the answer. A permissive counterclaim
is not barred even if not set up in the answer.
NOTE: if the counterclaim is compulsory, it cannot be a subject of independent litigation.
On the other hand, if the counterclaim is permissive, even if it is not set up in the answer,
it is not barred. Thus, if it is permissive counterclaim, he can file a separate action or
attach the counterclaim to the answer.
3) The plaintiff is not required to answer a compulsory counterclaim and he cannot be declared
in default thereto whereas a PERMISSIVE counterclaim must be answered after the
payment of the docket fees, otherwise the plaintiff may be declared in default.

NOTE: The plaintiff is not required to answer a compulsory counterclaim. If he does not file an
answer to the compulsory counterclaim, he cannot be declared in default as to that compulsory
counterclaim. If it is a permissive counterclaim, the defending party must file an answer and if he
does not file an answer to the permissive counterclaim, he may be declared in default.

4) A compulsory counterclaim is not an initiatory pleading, thus, it does not require a

certification on non-forum shopping. On the other hand, a permissive counterclaim is an
initiatory pleading and it requires a certification on non-forum shopping.

Q: may a compulsory counterclaim implead a person who is not a party to the original
complaint?
YES. The purpose of which is to enable the court to adjudicate the entire controversy involving
the parties.

Example: X (plaintiff) and Y(defendant) are joint debtors of A. X files a complaint against A for
the recovery of ownership of a parcel of land. A has a counterclaim against X involving
indebtedness of X and Y in favor of A. May a counterclaim implead Y who is not a party to the
original complaint?
Yes, he may implead Y even if Y is not a party to the original complaint.
Follow up Q: should summons be served to Y, the impleaded party? YES, so that he can
answer the counterclaim that A asserted against him.

B) Permissive counterclaim -
 3) Cross-claim - a claim by one party against a co-party arising out of a transaction or
occurrence that is the subject matter either of the original action or of the counter-claim
therein.

Example: X files a complaint against Y and Z. If Y has a claim against Z, then that would be a
cross-claim.

4) Third party complaint – a claim that a defendant may, with leave of court, file against a
person not a party to the action called the third party defendant for the contribution,
indemnity, subrogation, or any other relief in respect of his opponent’s claim.

Example: X (plaintiff), Y (defendant). X files a complaint against Y then Y files a

complaint against Z ( a person not a party to the original action). As to the third party
complaint, Y is the “third party plaintiff” and Z is the “third party defendant”.

Example of Contribution in relation to third party complaint: Y and Z are debtors of X. The
liability of X and Y is solidary. When the debt became due, X file a complaint against Y, alone, to
recover the amount of 1m. Y’s remedy is to file a third party complaint against Z for contribution
to pay for the half of the indebtedness.

NOTE: a third party complaint may only be filed with LEAVE OF COURT.

Example of Indemnity in relation to third party complaint: X has a car that is insured by Y
Insurance Company. There was an accident. A filed against X for damages but his car is
insured by Y. Thus, X may file a third party complaint for indemnity.

Example of Subrogation in relation to third party complaint: X (lessor), Y (lessee), Z (sub-

lessee). X files a complaint against Y to recover the cost of the repair that X has made on
the property subject of the lease contract. However, there is also an agreement between
Y and Z that Z is liable for the repair of the subject property. Thus, X can file against Y
and Y can file a third party complaint against Z for Subrogation.

Example of any other relief in relation to third party complaint: X(seller/vendor) sold a
land to Y(buyer/vendee). Z sued Y because Z is the owner of the property that X has sold
to Y. Thus, Y can file a third party complaint against X to enforce his warranty against
eviction.

5) Complaint in intervention
6) Answer – defenses of a party are setup in the answer to the pleading asserted against
him
7) Reply – is a pleading where the function of which is to deny or allege facts in denial or
avoidance of a new matter alleged in or relating to an actionable document attached to
the answer of the defending party.
 NOTE: The only instance when the plaintiff must file a reply is when the affirmative
defense of the defendant is based on an actionable document.
• an actionable document is the basis of a cause of action or basis of a defense.
Example: a deed of sale.

• If the answer contains an affirmative defense based on an actionable document, the

plaintiff must file a reply to deny under oath the genuineness and due execution of that
actionable document.

Q: what if the plaintiff has failed to deny under oath the genuineness and due execution of that
actionable document?
The plaintiff is deemed to have admitted the genuineness and due execution of the actionable
document.

Q: For a specific denial to produce the effect of a negative defense, must the denial be under
oath?
NO. It need not be under oath. Except to deny the genuineness and due execution of an
actionable document that is the basis of the cause of action or basis of the defense, the denial
must be UNDER OATH.

Example: X files a complaint against Y and attached to his complaint as the basis of his cause
of action is an actionable document. If Y wants to deny the genuineness and due execution of
the actionable document, then he must deny it specifically and under oath.

Q: suppose the plaintiff attaches to his reply an actionable document, how may the defendant
deny the genuineness and due execution of the actionable document attached by the plaintiff to
his reply?
the defendant may do so by filing a RESPONSE. In his response, he will specifically deny and
under oath the genuineness and due execution of the actionable document attached in plaintiff’s
reply.

Q: suppose X(plaintiff) files a complaint against Y(defendant) and defendant files an answer
containing new matters and the plaintiff believes that he has another cause of action against Y
arising from the new matter that Y alleges. May the plaintiff file a reply to assert the new cause
of action against the defendant?

The plaintiff cannot set up a cause of action or claim against the defendant in a reply.

NOTE: In cases governed by the rules on summary procedure, the pleadings allowed
are: a) complaint; b) compulsory counterclaim pleaded in the answer c) cross-claim
pleaded in the answer d) answers thereto (answer to the complaint, crossclaim,
compulsory counterclaim).

Parts of a pleading:

Q: what are parts of a pleading?

The following are the parts of a pleading:
a) Caption
Q: what does the caption includes?
The name of the court ( republic of the Philippines, RTC, first judicial region,
branch 5, Baguio city), the title of the case ( names of all the parties and their
participation in the action), and the docket number if one has already been
assigned (the docket number is given by the clerk of court).

Note: If you prepare a complaint, don’t include docket number; when you file the
complaint, you go to the Clerk of Court and he will assign a docket number. After
which, you pay a docket fees. The docket number given shall be the docket
number in all subsequent pleadings.

NOTE: In subsequent pleadings, it is enough to mention the name of the first party
with an appropriate indication that there are other parties. Example: There are 10
plaintiffs. In the complaint, you should mention all the 10 plaintiffs, However, in
subsequent pleadings, it is enough to mention the name of the first party with an
appropriate indication that there are other parties. (jeb sumineg et al.)
b) Body
c) Signature
d) Address
e) Verification
f) Certification on non-forum shopping

• Distinctions between verification and certification on non-forum shopping:

a) A verification is a sworn statement that the allegations in the pleading are true and
correct based on the personal knowledge of the affiant and or based on authentic
records. A certification on non-forum shopping is a sworn statement that there is
no other action or claim that has been filed or is pending in another court or
tribunal.

b) A verification may be required in an initiatory pleading (like a complaint) or even a

responsive pleading (like an answer). A certification on non-forum shopping is
required only in a complaint or other initiatory pleadings.

c) A defect in the verification is curable by amendment. A defect on the certification

on non-forum shopping is not curable by amendment.

d) A defect in the verification does not immediately result in the dismissal of the
complaint. A defect in certification on non-forum shopping or lack of certification
will result in the dismissal of the complaint.

e) A verification may be signed by a counsel or a party. A certification on non-forum

shopping must be signed ONLY BY THE PARTY.
 • how to plead an actionable document in a pleading:
a) By setting forth the substance of the actionable document in the pleading and attach
the original copy or a copy of the actionable document to the pleading;

NOTE: if an actionable document is properly pleaded in the pleading, and the adverse
party fails to specifically deny it under oath, he will be deemed to have admitted the
genuineness and due execution of the actionable document. Thus, if there is implied
admission, he will not be allowed to set up defenses that are inconsistent with his
implied admission. Example: he cannot set up the defense of forgery because it is
inconsistent with his implied admission.
Module 7: Rule 9 (effects of failure to plead)

Section 1. Waiver of defenses and objections - All objections and defenses must be
pleaded in a motion to dismiss or in an answer, otherwise, it shall be deemed waived.
Except if it appears from the pleadings or the evidence on record that:

1) The court has no jurisdiction over the subject matter of the action
2) There is another action pending between the same parties and of the same cause
(litis pendentia)
3) The action is barred by prior judgment ( res judicata)
4) The action is barred by statute of limitations.

NOTE: If these grounds exists, the court shall dismiss the claim even if it is not pleaded in a
motion to dismiss or in an answer. These four grounds are not deemed waived.

NOTE: There is one problem because a motion to dismiss is a prohibited motion under rule 15.
The motion to dismiss mentioned in sec. 1 is

NOTE: a compulsory counterclaim or a cross-claim must be set-up, otherwise, they shall be

barred.

NOTE: a compulsory counterclaim or a cross-claim existing at the time of the filing of the
answer must be contained in the answer.

• Default – when a plaintiff files a complaint in court, the court in due time issues a summons.
The summons is served on the defendant and the defendant has 30 days extendible by another
30 days or a total of 60 days with extension, to file his answer to the complaint. If the defendant
fails to file his answer within the period allowed, he will be declared in default. A judgment in
default may be taken against him.

NOTE: the court cannot MOTU PROPRIO declare the defendant in default.

• requisites so a defendant can be declared in default:

1) The plaintiff must file a motion to declare the defendant in default;

2) There must be notice of his motion to the defendant
3) There must be proof of failure on the part of the defendant to file his answer within the
reglementary period.

NOTE: if the court finds the motion to be meritorious, the court will issue an order declaring
the defendant in default.

NOTE: default does not occur by failure of the defendant to attend the pre-trial because if
the defendant fails to attend the pre-trial, without any justifiable cause, the court will
authorize the plaintiff to present evidence ex-parte.
 Q: is the failure to answer in the part of the defendant within the time allowed by the rules,
the only instance to be declared in default?

NO. there are instances where a defendant who has filed an answer may still be declared in
default:

1) If he refuses to obey a court order requiring him to comply with the modes of discovery;
2) If the defendant or the managing agent of the defendant willfully fails to appear before
the office who is to take his deposition;
3) If the case is governed by the Rule on Summary Procedure, a motion to declare the
defendant in default is a prohibited motion. Instead, the court motu proprio or upon
motion, shall simply render judgment as may be warranted by the facts alleged in the
complaint and limited to what is prayed for therein.

NOTE: once a defendant is declared in default, the court has two options:

1) The court can immediately proceed to render judgment granting the claimant such relief
as his pleading may warrant;
2) The court in its discretion, requires the claimant or plaintiff to submit evidence ex-parte.

NOTE: if the court chooses the 2nd option, the presentation of evidence ex-parte may
be delegated to the Clerk of Court, provided that the Clerk Of Court is a member of
the Philippine Bar.

Q: what is the extent of relief that may be awarded in a Judgment by Default?

The judgment against a defendant in default shall not exceed the amount or be different in kind
from that prayed for nor award unliquidated damages.

Q: what is the effect of order of default?

The defaulted defendant shall be entitled to notice of subsequent proceedings but shall not take
part in the trial.

Example of Effect of partial default: X files a complaint against Y and Z. The complaint
asserts a common cause of action against Y and Z. Y filed an answer but Z did not file an
answer. On motion of X, Z was declared in default. Question: Now, what should the court do?
Is it proper for the court to divide the proceedings into two, rendering a judgment against the
defaulted defendant Z and hear the case as to the defendant who has filed an answer?

Answer: No. If a situation like this arises, where the plaintiff files a complaint asserting a
common cause of action against several defendants and one or some of them files an answer
and the others did not, the court should try the case against all the defendants on the basis of
the answer that was filed.

Q; Does a defendant who has been declared in default still have remedies?

THE following are the remedies of a defendant declared in default:

1) Motion to set aside order of default – this motion must be under oath and must be filed
by the defendant at any time from notice of the declaration of default but before
judgment. The defendant must show, by affidavit of merit, that his failure to file his
answer was due to FRAUD, ACCIDENT, MISTAKE, OR EXCUSABLE NEGLIGENCE
(F.A.M.E) and he has a good and meritorious defense.

NOTE: that the fraud as a ground pertains to EXTRINSIC FRAUD (fraud that prevented the
defendant from having a day in his court)

Example of Extrinsic Fraud: X and Y were good friends until X borrowed money from Y in
the amount of 1m. X failed to pay. Y filed a complaint against X. When X was served with
summons and went to Y asking why he filed a complaint against him. Y said that X should
not worry because he just needed a complaint to show to his wife that he is doing something
about the debt of X. Now, X did not file an answer and Y filed a motion asking X to be
declared in default. X can file a motion to set aside order of default based on Fraud.

NOTE: a judgment of default is appealable but an order of default is not appealable.

Why is an order of default not appealable? BECAUSE AN ORDER OF DEFAULT IS
INTERLOCUTORY (interlocutory means that something else has yet to be done)

2) Motion for new trial – There can only be motion for new trial if a judgment of default is
rendered but the judgment is not final yet. This should be filed within the time for
perfecting an appeal (15 days). The grounds for this motion is F.A.M.E.
3) Appeal from the judgment by default –
4) Petition for relief from judgment – this is also based on F.A.M.E; this petition should be
filed if appeal is not available as a remedy through no fault of the defendant. (this is a
remedy in equity; thus it can only be resorted to if appeal is not available as a remedy
through no fault of the defendant). This should be filed within 60 days from notice of
judgment but within 6 months from entry of judgment.

Q: if a judgment has attained finality, may there be a remedy?

Yes. Petition for relief from judgment.

5) Action for the annulment of the judgment – based on the ground of EXTRINSIC FRAUD.
Must be filed within 4 years from the discovery of Extrinsic Fraud. There must be a final
judgment for this remedy to be availed of.
6) Petition for Certiorari – he may file within 60 days from notice of the judgment subject of
the petition. If he files a Motion For Reconsideration, the 60 days shall be reckoned from
the notice of the denial of his Motion for Reconsideration. This remedy is available to the
defendant if he is declared improperly in default.
Example: He filed an answer but he was declared in default.

NOTE: No judgment by default made be declared by the court in the following cases:
a) In annulment of marriage
b) Declaration of nullity of marriage
c) Action for legal separation
d) Expropriation proceedings
e) Forcible entry or unlawful detainer
f) And other cases governed by the Rule on Summary Procedure.
 Module 8 – Rule 10: Amended and Supplemental Pleading
Q: what are amendments?
Amendments of a pleading shall consist of adding or striking out an allegation or the
name of any party and correction of mistakes in the name of a party or inadequate
allegation or description of an object in a pleading.

Q: how do you implead a party?

By amending your pleading.

Q: What is the purpose of an amendment?

So that the actual merits of the controversy may be determined without regard to
technicalities.

Q: What are the kinds of amendments?

The kinds are:
a) Formal amendments – If one wants to correct a defect in the designation of parties;
other clerical errors may be summarily correct (like mistake in the name of the party).
b) Substantial amendments – all other amendments not considered formal are
considered substantial. Example: by changing the cause of action or add cause of
action in the complaint.

Q: When may a party amend his pleading?

Formal and substantial amendments can be made ONCE as a MATTER OF RIGHT before a
responsive pleading is served or in case of a reply, at any time within 10 days after it is served.

Example: Plaintiff files a complaint against D. No answer yet was filed by the defendant. Now,
the plaintiff can still amend his complaint as a matter of right because there was no responsive
pleading served upon him yet. He can file his complaint by filing an amended complaint without
leave of court since it is a matter of right. However, if he ought to file an amended complaint
for the 2nd time, he must obtain leave of court because amendment can be made only
once.

Q: what if the D(defendant) files a motion to dismiss against the complaint of P (plaintiff)? Can P
still amend his complaint as a matter of right?
Yes, because a Motion to Dismiss is not a responsive pleading.

NOTE: if the court issues an order granting the motion to dismiss and dismissing the complaint,
if the order of dismissal has not attained finality yet and may still be appealed, the plaintiff has
the option to amend his complaint instead of appealing from the order of dismissal. PROVIDED
THAT THE MOTION OF DISMISSAL HAS NOT YET BECOME FINAL.

Q: P files a complaint against D and D files an answer. After the plaintiff has been served with a
copy of defendant’s answer, may the plaintiff still amend his complaint?
Yes. However, if the plaintiff would like to introduce substantial amendments when there is
already a responsive pleading, the plaintiff can only do so but he must first obtain leave of court.

NOTE: after filing of responsive pleading, substantial amendments require leave of court.

Q: what are the limitations on the right of the party to amend his pleading? When may the court
refuse leave to amend?

Limitations are:

1) A responsive pleading has been filed and served and the motion for leave to amend is
made with intent to delay
2) The purpose of the amendment is to confer jurisdiction upon the court
Example: Plaintiff filed a complaint against the Defendant with the RTC. However, the
claim of the plaintiff is 275k. It is clear that the RTC does not have jurisdiction so the
Plaintiff raised the claim to 725k.
3) The purpose of the amendment is to cure the defect of a non-existent cause of action.
Example: P filed a complaint against D for recovery of debt. The debt fell due on july 16.
The plaintiff filed a complaint against defendant on June 5. IN here, there is no cause of
action yet when plaintiff filed the complaint.

Q: IF amendment requires leave of court but the party amending his pleading did not obtain
leave of court. What is the standing of the amended pleding?

The amended pleading may be stricken out of the records of the case because it has no
standing.

Example: X (plaintiff) filed a complaint against Y and Z (defendants). Y filed an answer to the
complaint and Z filed a motion to dismiss. Now, may X amend his complaint against Y and Z?

As to Y, he will need leave of court. As to Z, he can amend his complaint as against Z even
without leave of court,

• Amendment to conform to evidence – when issues not raised in the pleadings are tried with
express or implied consent of the parties, they shall be treated in all respects as if they have
been raised in the pleadings and there can be amendment to conform to the evidence but
failure to amend will not affect the result of the trial of these issues.

NOTE: amendment to conform to evidence does not apply to a defendant declared in

DEFAULT.

Q: when the plaintiff is presenting evidence to show that the defendant owes him 1.8 M and the
defendant and there was a timely objection from the defendant that the claim in the pleading of
the plaintiff is only 1m. And, the court sustained the objection. What is the remedy of the
plaintiff?

The remedy is to ask the court to allow him to amend his complaint so as to authorize the
presentation of evidence.
Q: when does amendment to authorize presentation of evidence happen?

When evidence is objected to at the trial on the ground that it is not in the issues made by the
pleadings and the court sustains the objection. On motion of the party affected, the court may
allow the pleadings to be amended so as to authorize the presentation of evidence and the
court may do so with liberality.

Q: what are the effects of an amended pleading?

The effects are:

1) It supersedes the pleading that it amend

2) Admissions in the superseded pleading may be received in evidence against the
pleader.
3) Claims or defenses alleged in the superseded pleading but not incorporated in the
amended pleading shall be deemed waived. (except the defenses that are not deemed
waived even if not set up in a motion to dismiss or in answer. Those are: lack of
jurisdiction over the subject matter of the action, res judicata, litis pendentia, barred by
statute of limitations).

Q: how is an amended pleading filed?

The amendments in the amended pleading shall be indicated by underscoring them.

Q: what is a supplemental pleading?

If you filed an original complaint and events transpire after the original complaint, a
supplemental complaint to allege the facts occurring since the time or after the filing of the
complaint.

Q: what are the distinctions between an amended pleading and supplemental pleading?

1) An amended pleading is filed either as a matter of right or with leave of court while a
supplemental pleading is always with leave of court
2) An amended pleading alleges matters or facts occurring before the filing of the original
pleading while a supplemental pleading alleges matters or facts occurring after the filing
of the original pleading
3) An amended pleading supersedes the pleading it amends while a supplemental pleading
allows the original pleading to stand.

NOTE: an amended to conform to evidence and amendment to authorize presentation of

evidence DOES NOT APPLY IF THE DEFENDANT IS DECLARED IN DEFAULT.
Module 9: Rule 11 ( when to file responsive pleadings)

• A responsive pleading is one that sets up defenses. (negative or affimartive)

Q: is a motion to dismiss a responsive pleading?

NO. A motion to dismiss, even when allowed, is not a responsive pleading.

Q: When to file responsive pleadings?

1) An answer to a complaint in a case governed by rules on summary procedure – 10 days

from service of summons. (10 calendar days means that Saturdays, Sundays, and
holidays are counted. Remember that always exclude the first day and include the last
day. Furthermore, if the last day falls on a Sat, Sun or Legal Holiday in the place
where the court sits, the pleading may be filed on the next business day provided
that it is not a holiday).
2) Answer to the complaint – 30 calendar days from service of summons upon the
defendant unless a different period is fixed by the court.
NOTE: the counsel may file a motion for extension for a period not more than 30 days.
The filing of such motion can only be done once.
3) Answer to the amended complaint – if the amendment is a matter of right, the defendant
will have 30 calendar days after being served with a copy of the amended complaint. If
the amendment is with leave of court, it is 15 days from notice of the order admitting the
amended complaint.
NOTE: if the defendant does not file an answer to the amended complaint, he will not be
declared in default BECAUSE HIS ANSWER IN THE ORIGINAL COMPLAINT WILL
STAND AS HIS ANSWER TO THE AMENDED COMPLAINT.

Q: what if the defendant is a foreign private juridical entity? How many days does it have to file
its answer to the complaint?

If the summons is served upon its resident agent, he has 30 days from service of summons. If
the summons is served on a government official designated by law to receive the summons on
behalf of the defendant foreign private juridical entity, he has 60 calendar days after receipt of
the summons by such entity.

4) Answer to third party complaint (and fourth, fifth and so on) – should be filed within 30
calendar days after service of summons UNLESS a different period is fixed by the
court.
5) Answer to a complaint in intervention – must be filed within 15 calendar days upon
notice of the order admitting the complaint in intervention unless a different period is
fixed by the court.
6) Answer to a counterclaim/cross-claim – 20 calendar days from service of counterclaim
or cross-claim.
NOTE: if it is a permissive counterclaim, it must be answered otherwise the defendant
may be declared in default. If it is compulsory, it may or may not be answered by the
defendant in the counterclaim or cross-claim.
7) Answer to a supplemental complaint – 20 calendar days from notice of the order
admitting the supplemental complaint unless a different period is fixed by the court.
NOTE: If no new supplemental answer is filed, the answer to the original complaint shall
stand as an answer to the supplemental complaint.
8) Reply – 15 calendar days from service of the pleading responded to.

Q: may the defendant file a motion for extension to file a responsive pleading?

A motion for extension to file a pleading other than an answer is a PROHIBITED MOTION.
Thus, if one is filing an answer and you cannot meet the deadline, you can file a motion for
extension. However, if it is a pleading other than an answer, a motion for extension to file a
responsive pleading is PROHIBITED.

Q: Suppose the period in filing an answer has expired and you have failed to file a motion
for extension to file an answer. Now, after the expiration of the period to file the answer, can
a motion for extension be filed?

NO. Because the period has expired and thus, there is nothing to be extended.

Q: What is the remedy if you failed to file an answer within the period for filing it and you did
not file a motion for extension?

The remedy is to file an answer even if it is beyond the period for filing it and file along with
the answer a MOTION TO ADMIT THE ANSWER and explain why you have failed to file the
answer on time. If the court finds the reason meritorious, the court may admit the answer
even if it was filed out of time.

Q: may the period for filing a responsive pleading be shortened?

No. The court may extend but cannot shorten the time for filing of the answer. EXCEPT in
quo warranto cases, the period may be shortened.

Q: when may the plaintiff file his complaint?

The plaintiff may file his complaint from the accrual of his cause of action or any time
thereafter but before his cause of action is barred by the statute of limitations (prescription).
Module 9-A: Rule 12 ( bill of particulars)

Q: what is a bill of particulars?

It is a definite statement of any matter which is not alleged with sufficient definiteness or
particularity in a pleading. The purpose is to enable the defendant or the party to properly
prepare his responsive pleading.

NOTE: a motion for a bill of particulars should be filed before filing a responsive pleading.

NOTE: A bill of particulars is resorted to when the complaint is deficient in some details with
respect to the factual basis of the allegations. However, if the deficiency AMOUNTS TO A
FAILURE TO STATE A CAUSE OF ACTION, THE REMEDY IS TO ASSERT AS
AFFIRMATIVE DEFENSE THE DEFICIENCY AMOUNTS TO FAILURE TO STATE A
CAUSE OF ACTION.

Q: when may the defendant file a motion for a bill of particulars?

Before filing his answer. The defendant received summons and he has 30 days to file his
answer counted from the service of the summons. Before filing his answer, he may file a
motion for a bill of particulars.

Example: P (Plaintiff) files a complaint against D (Defendant). D received the summons on

July 1. His last day to file his answer is July 31 because he has 30 days. On July 11, he filed
a motion for a bill of particulars. Now, his motion may be granted or denied if the court
believes that the motion is not meritorious since the complaint is clear and sufficient.

Suppose the defendant receives the copy of the order denying the motion for bill of
particulars on july 25. Q: if the defendant’s motion for bill of particulars is denied, what is the
remedy of the defendant?

His remedy is to file his answer to the complaint.

Q: until when may the defendant file his answer to the complaint? (refer to the example
above)

D received the summons on july 1 and he has until july 31 to file his answer. On july 11
however, he filed a motion for bill of particulars. Now, he has 20 days in the original period
to file his answer. On july 25, however, he received the order denying his motion. How many
does he still have to file his answer? ANSWER: HE HAS 20 DAYS TO FILE HIS ANSWER
FROM JULY 25 OR UPON RECEIVING THE ORDER OF DENIAL OF THE MOTION FOR
A BILL OF PARTICULARS.

NOTE: after service of the bill of particulars (assuming the motion is granted), or notice of
the denial of the defendant’s motion for bill of particulars, the defendant has the
REMAINING PERIOD THAT HE WAS ENTITLED TO AT THE TIME OF THE FILING OF
THE MOTION WHICH SHALL NOT BE LESS THAN 5 DAYS IN ANY EVENT.
Q: when may a motion for a bill of particulars be filed?

BEFORE FILING AN ANSWER BUT IF THE PLEADING IS A REPLY, THE MOTION

MUST BE FILED WITHIN 10 DAYS FROM SERVICE OF REPLY.

Q: Suppose the defendant files a motion for bill of particulars? And asked if the motion is a
litigious motion?

If it is a litigious motion, the plaintiff must be given a notice of the motion for a bill of
particulars.

Q: if you file a motion to file a bill of particulars, what will one do?

One must point out the defects that is complained of in the complaint and state the
paragraph where the defect is found and the details that one desires.

Q: what is the duty of the clerk of court upon the filing of the motion for a bill of particulars?

The clerk of court must bring it immediately to the attention of the court and the court may
deny or grant the motion outright or allow the parties an opportunity to be heard.

Q: suppose the court grants the motion and directs the plaintiff to comply with the order?
How may the plaintiff comply with the order?

The plaintiff must comply within 10 days from notice of the order. The plaintiff must file the
bill of particulars either as a separate pleading or amended pleading.

Q: suppose the plaintiff refuses to comply because he believes that there is sufficiency in his
complaint?

The court may order the portion of the pleading to which the order (the order pertains to the
vagueness in the complaint which the court orders the plaintiff to give sufficient definiteness)
is directed stricken out or the complaint will be stricken out and if the entire complaint is
stricken out, the case is dismissed. OR THE COURT MAY SIMPLY DISMISS THE
COMPLAINT FOR FAILURE OF THE PLAINTIFF TO OBEY A COURT ORDER.
 Module 10 – Rule 13: Filing, service of pleadings, judgments, and other papers.

Q: What is meant by filing?

Filing is the act of submitting the pleading or other paper to the court.

Q: what is service?

Service is the act of providing a party with a copy of the pleading or any other court
submission.

Q: when we talk about service of pleadings, upon whom may the pleadings be served?

It should be served upon the party. But if a party is represented by a counsel, the service
should be made upon the counsel. If a counsel represents several parties, he shall only be
served with only 1 copy of the pleading or papers.

If several counsel appear for a party or parties, they will only be entitled to 1 copy. The copy
shall be served to the lead counsel if one is so designated.

Modes of filing:

a) Personal filing – by submitting personally the original copy of the pleading, motion, or
other papers to the court.
b) Filing by registered mail – by sending them to the court by registered mail
c) Filing by accredited courier – by sending them to the court through an accredited
courier. Example: LBC
d) Filing by electronic mail or e-mail or other electronic means like fax – by
transmitting them to the court by electronic mail (e-mail) or by other electronic means as
may be authorized by the court in places where the court is electronically equipped.
NOTE: while electronic filing is one of the modes of filing authorized by the rules, Sec.
14 of Rule 13 provides that the following must be served or filed by personal filing or by
registered mail and should not be filed electronically unless express permission is
granted by the court.

• The filing must only be filed only through the following modes:

1) Personal filing or filing by registered mail – 1) initiatory pleading, initial responsive

pleadings (such as an answer). ; 2) subpoena or protection orders; 3) writs, appendices,
exhibits to motions, and other documents that are not readily amenable to electronic
scanning. ; 4) sealed and confidential documents or records.

Q: at what point are they considered filed?

a) If made by personal filing, the clerk of court shall endorse on the pleading, motion, or
other court submission, the date and hour of filing.
b) If made by registered mail or by accredited courier, the date of the mailing of the
pleading, motion, or other court submission, and the payment or deposit as shown by
 the post office stamp on the envelope or the registry receipt shall be considered the date
of its filing.

Q: what are the papers required to be filed with the court and served on the parties
affected?

The following are:

1) Judgment
2) Resolution
3) Order
4) Pleading
5) Pleading subsequent to the complaint
6) Written motion
7) Notice
8) Appearance
9) Demand
10) Offer of judgment
11) Or similar paper shall be filed with the court and served upon the parties affected.

Q: what are the modes of service of pleadings, motions, notices, and other court
submissions?

The following are modes of service:

1) Personal service – this is made by personally delivering the copy of a pleading, motion,
notice ,order, or other court submission to the party or his counsel.

Q: suppose the office of counsel cannot be located?

By leaving the copy between the hours of 8 in the morning and 6 in the evening at
the party’s or counsel’s residence if known with a person of sufficient age and
discretion residing therein.

2) Service by mail (registered or ordinary) - service by registered mail is made by

depositing the copy in the post office in a sealed envelope.
3) Service by accredited courier –
4) Service by electronic mail or fax or any other means authorized by the court
5) Substituted service - by delivering a copy to the clerk of court with proof of failure of
both personal service and service by mail.

NOTE: when it comes to judgments, final orders, and resolutions, the modes are: 1)
personal service; 2) service by mail; 3) service by accredited courier; 4) service by
Publication.
 6) Service by publication when it comes to judgment, final order or resolution – this
may be done if the defendant is summoned by publication and he did not appear in the
action.
7) Presumptive service of a notice of hearing – The rule provides that there is a
presumptive notice to a party of a court setting if such notice appears on the record to
have been mailed at least 20 calendar days prior to the scheduled date of hearing and
the addressee is from within the same judicial region where the case is pending. If the
addressee is from outside the judicial region, it should be 30 calendar days.
NOTE: presumptive service only applies to service of notice of hearing. When it comes
to service of judgment or other pleadings, there is no presumptive service.

Q: when is service complete? What is the rule regarding completeness of service?

The rule provides:

1) IF by personal service, it is complete upon actual delivery.

2) If by ordinary mail, it is complete upon expiration of 10 calendar days after mailing
unless the court provides otherwise
3) If by registered mail, it is complete upon actual receipt by the addressee or after 5
calendar days from the date the addressee receives the first notice of the postmaster
which ever date is earlier.
Example: Date of mailing is july 1. The addressee received it on July 16. Earlier, the
addressee received a notice from the postmaster on July 13. In here, the service is
complete in July 16.

Suppose he received the notice on July 9 but he only received the mail on July 16, Now,
when is the service complete? ANSWER: It is complete as of july 14. Reckoning
from July 9 and counting 5 days. Thus, he will count the 15 days to file an appeal
from July 14.
4) If service is by accredited courier, it is complete upon actual receipt by the addressee or
after at least 2 attempts to deliver by the courier or upon the expiration of 5 calendar
days after the first attempt to deliver whichever is earlier.
Example: There are two attempts to deliver. The first attempt was made on July 1 and
the second attempt was made in July 2. In here, the service is complete in July 2.
Suppose the 2nd attempt was made on July 16. When is the service deemed complete?
Answer: After 2 attempts or after 5 days from the first attempt.
5) If by fax transmission, it is complete upon receipt by the other party as indicated in the
fax printout.
6) If by electronic service (like email), it is complete at the time of the electronic
transmission of the document. However, electronic service is not effective or complete if
the party serving the document learns that it did not reach the addressee or person to be
served
7) If by substituted service, it is complete at the time of the actual delivery to the clerk court
• Notice of Lis Pendens – it is an announcement to the world that a particular real property is
a subject of a pending litigation. IT serves as a warning to everyone who might want to deal
with the property or enter into a transaction involving the property that he will acquire it
subject to the outcome of the litigation.

NOTE: a notice of lis pendens may be recorded only if the action is real action (one that
affects title to,or possession of a real property or immovable property).

Q: do you need a court order to be able to record a notice of lis pendens?

The recording is extra-judicial, so you don’t need a court order to record a notice of lis
pendens.

Q: in what office should the notice of lis pendens be recorded?

It is recorded in the office of Registry of Deeds of the province or city where the real property
is located. The recording is extra-judicial, so you don’t need a court order to record a notice
of lis pendens.

Q: what shall be stated in the notice of lis pendens?

It shall contain:

a) The names of the parties

b) Object of the action ( if it is a land- describe the land)
c) The notice is directed to the Register of Deeds

• The request for recording of notice of lis pendens can be in the form of a LETTER.

Q: in what action may a notice of lis pendens be recorded?

In a real action. Specifically, these actions are:

1) Action to recover possession or ownership of a real property

2) To quiet title thereto, or remove cloud therefrom
3) For partition
4) Any other proceeding of any kind in court directly affecting title to the land or use or
occupation thereof or a building thereon.

Q: who may record a notice of lis pendens?

The plaintiff or the defendant if the defendant in the action is also asking for an affirmative
relief.

NOTE: Suppose the other party would like to cancel the notice of lis pendens, the party
must secure a court order for the cancellation of notice of lis pendens. The registration is the
only thing that is extra-judicial and the cancellation of such needs a court order.
• The court will issue an order directing the cancellation of the notice of lis pendens if
it is shown that:

1) The notice is only for the purpose of molesting the other party
2) It is not necessary for the protection of the right of the party who caused it to be
recorded.
 Module 11 – Rule 14: Summons

Q: what is a summons?

A summons is a writ issued and signed by the Clerk of Court upon the filing of the complaint and
payment of the requisite docket fees addressed to the defendant and directing him to file his
answer to the complaint with a warning that if he fails to do so, the plaintiff will take a judgment
by default and he may be granted the relief applied for. The summons must contain the name
of the court and the name of the parties.

Q: what is the two- fold purpose of summons?

The two-fold purpose of summons:

1) To enable the court to acquire jurisdiction over the person of the defendant and
2) To notify the defendant of the filing of the complaint against him.

Q: what is the significance of summons?

Summons is the primary means by which a court is able to acquire jurisdiction over the person
of the defendant and to give notice that an action has been commenced against him. It is the
writ by which the defendant is notified of the action brought against him.

Q: how may the court acquire jurisdiction over the person of the defendant?

1) By valid service of summons upon him;

2) By his voluntary appearance in the action.

Q: what is equivalent to service of summons?

The voluntary appearance of the defendant in the action is equivalent to service of summons.

Q: When may the court direct the clerk of court to issue the summons to the defendant?

If the complaint is not dismissible on its face under Sec.1 , Rule 9,the court shall within 5
calendar days from receipt of the complaint or initiatory pleading and proof of payment of the
requisite legal fees, direct the clerk of court to issue the summons to the defendant.

If the complaint is dismissible on its face under sec.1, Rule 9, the court will just dismiss the
complaint. The court will not direct the issuance of summons in this case because there is no
need since the case has been dismissed.

Q: aside from the names of the court and the names of the parties, what should the summons
contain?

The summons should contain the following:

1) An authorization for the plaintiff to serve the summons to the defendant if authorized by
the court upon ex-parte motion
 2) A direction that the defendant must answer within the time fixed by the rules and a notice
that unless the defendant so answers, plaintiff will take a judgment by default and may
be granted by the relief applied for.
3) A copy of the complaint and an order for the appointment of guardian ad litem, if any,
should be attached to the original and each copy of the summons.

Q: who may serve the summons?

Summons may be served by:

1) The sheriff or his deputy or other proper court officer

2) By the plaintiff if authorized by the court in case there is a failure of service of summons
by the sheriff, his deputy, or other proper court officer.

The plaintiff shall be authorized to cause the service of summons in the following instances:

1) If the summons is to be served outside the judicial region of the court where the case is
pending
2) If summons is returned without being served on any or all the defendants

Q: what if the plaintiff fails to comply with the order for him to serve the summons?

The failure of the plaintiff to comply with the order will cause the dismissal of the complaint or
initiatory pleading without prejudice.

Q: if the summons is issued, what is the lifetime of the summons? Until when is the summons
valid?

A summons has no definite lifetime. Once issued, it shall remain valid until duly served or
recalled by the court. However, if the summons is lost or destroyed without being served, the
court, upon motion, may issue an alias summons.

Q: What are the modes of service of summons?

The modes of service are:

1) Service in person on the defendant – Two ways to make service in person on the
defendant:
a) By handing the copy of summons to the defendant in person and informing him that
he/she is being served with summons.
b) If the defendant refuses to receive and sign for it, by leaving the summons within the
view and in the presence of the defendant.

2) Substituted service – If for justifiable causes the defendant cannot be served with
summons in person after at least three attempts in two different dates, substituted
service of summons may be effected.
 NOTE: the at least 3 attempts in 2 different dates means that in one date, there should be 2
attempts and then on the second date, there can be one. AS long as there is at least 3
attempts in 2 different dates.

Q: how is substituted service of summons effected?

1) By leaving a copy of the summons at the defendant’s residence to a person of at least

18 years of age and of sufficient discretion residing therein.
2) By leaving a copy of the summons at the defendant’s office or regular place of business
with some competent person in charged thereof.
NOTE: a competent person includes but is not limited to one who customarily receives
correspondences for the defendant.
3) By leaving a copy of the summons if refused entry, upon making his authority and
purpose known with any of the officers of the homeowners association or condominium
corporation or his chief security officer in charge of the community or building where the
defendant may be found.
4) By sending an electronic mail to the defendant’s electronic mail address if allowed by the
court.

NOTE: if summons is served upon the defendant by substituted service, then the one serving
the summons by substituted service shall make a return of the summons (return means report
what happened to the summons).

NOTE: If summons is served by substituted service, the return to be filed by the sheriff or
process server or person authorized by the court to serve the summons shall state the following:

a) The impossibility of prompt personal service within a period of 30 calendar days from
issue and receipt of summons.
b) The date and time of the three attempts of at least two different dates to cause the
service in person and the details of the inquiries made to locate the defendant residing
thereat.
c) The name of the person at least 18 years of age and of sufficient discretion residing at
the residence of the defendant; Name of the competent person in charge of defendant’s
office or place of business; or the name of the officer of the homeowners association or
the condominium corporation or its chief security officer in charge of the community or
building where the defendant may be found.

3) Service of summons by publication – The instances of service of summons by

publication are:
a) In any action where the identity of the defendant is unknown as when the defendant is
simply designated as an unknown owner.
b) In any action in which the whereabouts of the defendant are unknown and cannot be
ascertained by diligent inquiry within 90 calendar days from the commencement of the
action.
 c) If the defendant does not reside and is not found in the Philippines but the suit can be
properly maintained against him in the Philippines it being an action in rem or quasi-in-
rem.
d) If the defendant is a resident of the Philippines but is temporarily out of the Philippines.

Q: suppose the defendant is a non-resident defendant and is not found in the Philippines. How
can summons be served?

The summons will be served outside the Philippines. This is called extraterritorial service of
summons.

Q: does it mean that if we serve the summons upon a defendant who is not in the Philippines
and is not found in the Philippines. Does it mean that the court will acquire jurisdiction over the
person of the defendant?

NO. The court will not be able to acquire jurisdiction over the person of the defendant since he
is a non-resident and is not found in the Philippines. However, it should be noted that what is
important in this case is the court to acquire jurisdiction over the res.

Q: What are the modes of extraterritorial service of summons?

The modes are:

1) By personal service or as provided for in international conventions to which is a party.

2) By publication in a newspaper of general circulation in such places and for such time as
the court may order. In which case, a copy of the summons and the order of the court
shall be sent by registered mail to the last known address of the defendant.
3) In any other manner which the court may deem sufficient.

NOTE: extraterritorial service of summons will require leave of court.

Q: upon whom may the service of summons be served?

1) Service of summons shall be made upon the defendant. If the defendant is an entity,
without juridical personality, then service may be effected upon all the defendants
by serving upon any of them.
2) If the defendant is a prisoner confined in a jail or institution, service upon this defendant
shall be effected by serving the summons upon him by the officer having the
management of such jail or institution who is deemed to be a special sheriff for said
purpose.
3) If the defendant is a minor. Insane, or an incompetent person, service of summons upon
him shall be made upon the defendant or his legal guardian or if he has none, upon his
guardian ad litem.

Q: how summons may be served upon a domestic private juridical entity? ( like a
corporation or a partnership)
 Summons may be served upon any of the following:

1) The president
2) Managing partner
3) General manager
4) Corporate Secretary
5) Treasurer
6) In-house counsel

In the event of absence/unavailability of the officers, then summons may also be served upon
the secretaries of the abovementioned officers. IF NONE, it may be served upon the person
who customarily receives correspondence for the defendant at its principal office.

NOTE: if summons cannot be served on the officers, secretaries, and the person who
customarily receives correspondence for the defendant in its principal office either because of
absence, unavailability or refusal on the part of the persons despite of 3 attempts in 2 different
dates, then service of summons may be made electronically if allowed by court.

Q: what if it is a foreign private juridical entity? How may summons be served upon this
defendant?

If the foreign private juridical entity transacted or is doing business in the Philippines, service
may be made upon its resident agent. If there be no such resident agent, then upon the
government official designated by law to receive summons for the foreign private juridical entity.
OR ANY OF ITS OFFICERS, agents, members, directors, or trustees within the Philippines.

NOTE: the foreign private juridical entity must be licensed to transact or do business in the
Philippines.

Q: what if the foreign private juridical entity is not registered in the Philippines but he transacted
or does business in the Philippines?

The service of summons may, with leave of court, be effected outside the Philippines
(extraterritorial service of summons) through any of the following means:

1) By personal service coursed through the appropriate court in the foreign country with the
assistance of Department of Foreign Affairs
2) By publication once in a newspaper of general circulation in the country where the
defendant may be found
3) By serving a copy of the summons and the court order by registered mail at the last
known address of the defendant
4) By facsimile or by electronic means with the prescribed proof of service
5) By such other means as the court in its discretion may direct.

Q: upon whom may summons be served if the defendant is a public corporation?

If the defendant is the Republic of the Philippines, service of summons may be effected on the
Solicitor-General.
If the defendant is a province, city, municipality, or a public corporation, service of summons
may be effected to its executive head or on such other officer as the court may direct.

Q: what is the proof of service of summons? And in what form shall the proof of service be
made?

The proof of service of summons shall be made in writing by the server and shall set forth the
manner, the place, and the date of service and shall specify any papers which have been
served along with the summons and the name of the person who received the summons and
shall be sworn to, when made by a person other than a sheriff or his deputy.

A print out of the email with a copy of the summons as served shall constitute as proof of
service (service of summons through email).

If service is made by publication, the service may be proved by the affidavit of the publisher, the
editor, or the advertising manager and the copy of the publication.

Q: suppose the summons was not served, what is the effect of the service of summons?

None because the service of summons if not made in the manner mentioned, served to the
individuals mentioned, and not served by the persons allowed, then the service of summons
shall be void.

Q: suppose the defendant files a motion to dismiss, and in his motion, he includes other
grounds aside from lack of jurisdiction over his person. What is the effect of inclusion of such
other grounds?

IF the defendant miles a motion to dismiss alleging that the court has not acquired jurisdiction
over his person and includes other grounds, then it may be deemed a voluntary appearance on
the part of the defendant. Thus, the court has acquired jurisdiction over his person.

• sec.13, Rule 14 – where the summons is improperly served and a lawyer makes a special
appearance on behalf of the defendant to question the validity of service of summons, the
counsel shall be deputized by the court to serve summons on his client.
Module 12: Rule 15 – Motions

Q: What is a motion?

A motion is an application for relief other than by a pleading.

Q: What are the requisites of a motion?

1) It must be in writing, except if made in open court and in the course of the proceeding.
2) Must state the relief sought to be obtained and the ground upon which it is based.
NOTE: if required by the rules or necessary to prove the facts therein stated, it must be
accompanied by an affidavit or other supporting papers.
3) It must be served by a) personal service, b) accredited private courier, 3) by registered
mail, or 4) by electronic mains, to ensure its receipt by the other party.

NOTE: If a motion is made in open court or in the course of the proceeding, the Rule
requires the court to resolve the motion immediately after the adverse party is given the
opportunity to argue his/her opposition. In most instances, if a motion is made in open
court and there is no objection on the other party, the court may grant the petition.
However, if the other party has an opposition, the court should allow the other party
to argue his opposition in the open court, the court will resolve the motion.

Note: If the motion is based on facts not appearing on record, the court may require
the parties to submit affidavits or to submit a deposition or give oral testimony.

• Motions are classified as:

1) Litigious – Examples of a litigious motion:

a) Motion for bill of particulars
b) Motion to dismiss
c) Motion for new trial
d) Motion for reconsideration
e) Motion for execution pending appeal
f) Motion to amend after a responsive pleading has been filed
g) Motion to cancel a statutory lien
h) Motion for an order to break in or for a writ of demolition
i) Motion for intervention
j) Motion for judgment on the pleadings
k) Motion for summary judgment
l) Demurrer to evidence
m) Motion to declare defendant in default
n) Other similar motions (like motion to set aside order of default).

Note: the movant should serve the other party with a copy of his motion. If the motion is a
litigious motion, the opposing party shall file his opposition to litigious motion within 5
calendar days from receipt of the motion.
 NOTE: If the motion is a litigious motion, the court has 15 calendar days from receipt of the
opposition to the motion or expiration of the 15 days for filing the opposition, to resolve the
motion.

NOTE: No other submissions shall be allowed or shall be considered by the court in the
resolution of the motion.

2) Non- litigious – a motion which the court may act upon without prejudicing the rights of
the other parties are non-litigious. The examples of non-litigious motions are:
a) A motion for issuance of an alias summons (summons has no definite lifetime. Once
issued by the court, the summons shall remain in effect until it is served on the
defendant. However, if the summons is lost or destroyed, the plaintiff may file a
motion for issuance of an alias summons.
b) Motion for extension to file answer
c) Motion for the issuance of a writ of execution
d) Motion for the issuance of an order directing the sheriff to execute a final certificate
of sale
e) Motion for issuance of a writ of possession

NOTE: if the motion is a non-litigious motion, its not be set for hearing but it shall be
resolved by the court within 5 calendar days from receipt of the motion (reckoned
from the time the court receives the motion).

NOTE: If the motion is a litigious motion, the court has 15 calendar days from receipt
of the opposition to the motion or expiration of the 15 days for filing the opposition,
to resolve the motion.

Q: Do motions require a notice of hearing?

If the motion is a non-litigious, there is no notice of hearing. However, if a motion is litigious, a
hearing on the motion is discretionary, thus, a notice of hearing on a litigious motion is
discretionary on the part of the court.

If the court issues a notice of hearing, the notice should be addressed to all the parties
concerned and it shall specify the time and date of the hearing of the motion.

• Motions are also classified as:

1) Prohibited motions – the examples of prohibited motions are:

 a) Motion to dismiss, except on the following ground: prescription, litis pendentia, res
judicata, and lack of jurisdiction over the subject matter of the action.
b) Motion to hear affirmative defenses
c) Motion for reconsideration of the court’s action on the affirmative defenses
NOTE: affirmative defenses set forth in the answer are granted by the court,
therefore the court dismisses the complaint. Thus, a motion for reconsideration
should be allowed because the complaint is dismissed.
d) A motion to suspend proceedings if there is no temporary restraining order or
injunction issued by a higher court
e) A motion for extension of time to file pleadings, affidavits, or any other papers
f) Motion for postponement intended for delay

Q: is a motion for postponement prohibited?

YES, if it is intended for delay. But if the motion is based on 1) force majeure, 2) acts of god, or
3) physical inability of the witness to appear and testify, then a motion for postponement is
allowed.

Example: Plaintiffs files a complaint against the defendant. The defendant files an answer that
contained affirmative defenses. Now, if the court denies the affirmative defenses, the defendant
cannot file a motion for reconsideration. However, if the court grants the affirmative defenses
and dismisses the complaint, the question is whether the dismissal of the complaint is with
prejudice or without prejudice.

If with prejudice, you cannot re-file the complaint. If without prejudice, the plaintiff can re-
file the complaint.

Answer to the example above: if the dismissal is with prejudice, the remedy is to appeal
because he cannot re-file. If the dismissal is without prejudice, the plaintiff cannot appeal
but his remedy is re-file.

• The dismissal is with prejudice, thus the re-filing of the complaint is barred if the dismissal is
based on the following grounds:

1) The cause of action is barred by prior judgment.

2) The cause of action or claim is barred by statute of limitations/prescription
3) The claim or demand set forth in plaintiffs’ pleading has been waived, abandoned, paid,
or otherwise extinguished
4) The claim on which the action is founded is unenforceable under the Statute of Frauds.

Thus, if the dismissal is based other than these 4, then the dismissal is without prejudice.
Q: what is an omnibus motion?

An omnibus motion is a motion that attacks a pleading, order, judgment, or proceeding.

An example of a motion that attacks the pleading: 1) motion to dismiss

AN example of a motion that attacks a judgment or an order or proceeding: 1) a motion for

reconsideration; 2) a motion for new trial

Q: what is the omnibus motion rule?

The omnibus motion rule is a rule that requires that a motion must state all the grounds or
objections then available and those grounds or objections not set-up are deemed waived.

Q: what does the rule require the movant to do if he files a motion for leave to file a
pleading, a motion, etc. ?

The rule requires that you already attach the proposed amended pleading that you are
asking the court to admit. Thus, a motion for leave to file a pleading shall be accompanied
by a pleading or motion sought to be admitted. As to form, the motion must comply with the
rules applicable to pleadings (the caption, title, etc.).
Module 13 – Rule 17: Dismissal of Actions

NOTE: The dismissal in this case is by the cause of the plaintiff or due to the act of the plaintiff.

Q: how may the plaintiff himself dismiss his own complaint?

There are two ways:

1) The plaintiff may file a notice of dismissal

2) By filing a Motion to dismiss his own complaint.

NOTE: that this motion to dismiss is not a prohibited motion because the prohibited motion
to dismiss pertains to a motion filed by the defendant based on the four grounds (res
judicata, litis pendentia, lack of jurisdiction over the subject matter, barred by statute of
limitations/prescription).

Q: When may the plaintiff dismiss his own complaint by filing a notice of dismissal? At what
point in the proceedings?

Before service upon him of the defendant’s answer or a motion for summary judgment.

Example of the above question: Plaintiff files a complaint against Defendant and pays
appropriate docket fees. Now, he wants to dismiss his own complaint. HOW? ANSWER: By
filing a notice of dismissal before service upon him of defendant’s answer or a motion for
summary judgment. .

Q: suppose the plaintiff files a notice of dismissal on July 16. What may the court do?

The court will issue an order confirming the dismissal. And such order confirming the
dismissal may come at a later time. For example, on August 1 and the notice of dismissal
was filed on July 16.

Q: when is the complaint said to have been dismissed based on the example above?

On july 16, when the notice of dismissal is filed. Thus, on July 17, the case is no longer a
pending action since it is already dismissed.

Q: what about the order of the court issued on August 1?

The order simply confirms the dismissal. IT does not approve the dismissal but merely
confirms it.

Q: what is the effect of the dismissal?

The dismissal is without prejudice to the re-filing of the complaint.

Q: What are the exception to a dismissal without prejudice?

The exceptions are:

 a) Except if in the notice of dismissal, the plaintiff states that the dismissal is with prejudice.
b) The dismissal shall be considered an adjudication of the case on its merit if the plaintiff
has once dismissed his action based on or containing the same claim.

Q: what is the two-dismissal rule?

It is the rule that bars the filing of the complaint by the plaintiff who has once dismissed an
action based on or including the same claim.

Example of two-dismissal rule: X files a complaint against Y. Subsequently, X files a notice

of dismissal. The court issues an order confirming the dismissal. And then after a few
weeks, X files the same complaint against Y and after filing his complaint, he files again a
Notice of Dismissal and the court issues an order confirming the dismissal. Months later, X
files the same complaint against Y. Now, can he still file the complaint? ANSWER: no,
because the complaint is barred by the two-dismissal rule.

Q: suppose the defendant filed his answer or a motion for summary judgment. Can the plaintiff
still dismiss his complaint despite of the fact that he has already been served with defendant’s
answer or a motion for summary judgment?

Yes, not anymore by a notice of dismissal but by a motion to dismiss. The motion to dismiss
shall be filed by the plaintiff himself to dismiss the complaint. However, the motion to dismiss
requires the approval of the court.

Q: what is the effect of the dismissal if the court issues an order approving the motion to
dismiss?

The dismissal is without prejudice to the re-filing of the complaint by the plaintiff. Except only if
the order itself states otherwise.

Q: what if the defendant asserts a counterclaim and the plaintiff files a motion to dismiss his
complaint and the court issues an order approving the motion to dismiss?

The dismissal is limited to the complaint because the dismissal of the complaint is without
prejudice to the right of the defendant to prosecute his counterclaim in the separate action
unless within 15 days from notice of the motion, he manifests his preference to have his
counterclaim resolved in the same action.

NOTE: the reckoning point of 15 days would be from notice of plaintiff’s motion to dismiss.

• Section 3, Rule 17 – the instances when the complaint may be dismissed upon motion of the
defendant or on the court’s own motion (motu proprio). These instances are:

a) If for no justifiable cause, the plaintiff fails to appear on the date of the presentation of his
evidence-in-chief on the complaint;
b) Without any justifiable cause, the plaintiff fails to prosecute his action for unreasonable
length of time; or
c) For no justifiable cause, the plaintiff fails to comply with the Rules of Court or fails to
comply with an order of the court.

Thus, upon motion of the defendant or the court motu proprio, the complaint may be
dismissed.

NOTE: in all these instances, the dismissal shall be with prejudice. UNLESS IT IS
OTHERWISE STATED IN THE ORDER DISMISSING THE COMPLAINT.

Q: What is the remedy of the plaintiff if his complaint is dismissed under sec.3, Rule 17?

If the order is silent, then the dismissal is with prejudice. Thus, the remedy is to appeal
form the order of dismissal.

If the order is without prejudice, the plaintiff’s remedy is to re-file his complaint.

NOTE: the dismissal under Sec. 3, Rule 17 constitutes an adjudication of the case
upon its merits. Thus, the dismissal is equivalent to a judgment. If the order of
dismissal is final, and the plaintiff re-files his complaint, the defendant can file a
motion to dismiss alleging res judicata.
Module 14: Rule 18 – Pre trial

Q: what is a pre-trial?

A pre-trial is a procedural device intended to clarify and limit the basic issues between the
parties. Its main objective is to simplify, abbreviate, or expedite trial or otherwise dispense
with it.

The main objective of the conference among the parties at the pre-trial is to determine what
precisely are the factual issues between or among the parties and to limit the presentation of
evidence on this factual issues.

Q: when is a case right for pre-trial?

The case maybe set for pre-trial after the last responsive pleading has been served and
filed.

Q: what is the last responsive pleading?

The last responsive pleading is determined by what pleadings are already been filed.

Example of the above question: Plaintiff files a complaint against Defendant. Summons was
served on the defendant and files an answer to the complaint. Now, only the answer has
been filed by the defendant. Therefore, the last responsive pleading is the answer and the
case shall be set for pre-trial.

Example 2: what if in the facts given above, the defendant files an answer and it contains a
counterclaim against Plaintiff. Now, the last responsive pleading is not the answer because
there is a counterclaim. The last responsive pleading in this case might be an answer by the
Plaintiff to the counterclaim.

Q: assume that the last responsive pleading has been served and filed, who has the duty to
set the case for pre-trial?

Under the Rule, it is the duty of the Clerk of Court within five (5) calendar days to issue a
notice of pre-trial, setting the case for pre-trial within 60 days from the date of the filing of the
last responsive pleading.

Simply put, within 5 calendar days from the filing of the last responsive pleading, the Clerk of
Court shall issue a notice of pre-trial setting the case for pre-trial not later than 60 calendar
days from the date of the filing of the last responsive pleading.

Q: what must be included in the notice of pre-trial?

Aside from the directive for the parties to file their respective pre-trial briefs, the notice of
pre-trial must also include the dates of the pre-trial and the court-annexed mediation and
judicial dispute resolution.
NOTE: the notice of the pre-trial directs the parties to file their respective pre-trial briefs in a
manner as to ensure its receipt by the other party at least three days before the date of the
pre-trial.

Q: upon whom should the notice of pre-trial be served?

The notice of pre-trial must be served upon the party if not represented by the counsel.
However, if the party is represented by the counsel, the notice of pre-trial must be served to
his counsel and the counsel has the duty to notify the party represented by him of the date
and time of the pre-trial.

Q: what if the clerk of court fails to send the notice?

The plaintiff can file a motion to set the case for pre-trial.

Q: what is the nature of pre-trial?

A pre-trial is MANDATORY.

Q: What are the matters to be taken up at the pre-trial?

The matters to be taken up at the pre-trial are:

1) The possibility of an amicable settlement or a submission to alternative modes of dispute

resolution.
2) Simplification of the issues

Q: How to determine the issues to be tried?

Issues may be classified into:

a) Factual issues – if the controversy is with respect to the facts. As in the case where the
parties cannot agree on the facts. These factual issues are determined by the pleadings;
or
b) Legal issues

3) The possibility of obtaining a stipulation or admission of facts and of documents to avoid

unnecessary proof.
4) The limitation of the number and the identification of witnesses and setting of trial dates.
5) The advisability of preliminary reference of issues to a commissioner.
Example: if the case involves a judgment of long accounts, the parties may agree to
refer the judgment of accounts to an accountant.
6) The propriety of rendering judgment on the pleadings or summary judgment or dismissal
of the action should a valid ground therefor be found to exist.
NOTE: there can be summary judgment if there is an apparent issue but it is found by
affidavit, deposition, or by admission that the issue is not genuine.
7) The requirement for the parties to mark their respective evidences, if not yet marked in
the judicial affidavits of their witnesses.
8) Examine and make comparisons of the adverse party’s evidence in relation to the other
copies to be marked
9) Manifest for the record stipulations regarding the faithfulness of the reproduction and
genuineness and due execution of the party’s evidence.
10) Reserve evidence not available to the pre-trial.

Q: may a party reserve evidence that is not available to the pre-trial?

Yes, but only in the following manner:

a) If the evidence is testimonial, by giving the name of the witness or the position of the
witness and the nature of the proposed testimony
b) If the evidence is documentary or an object evidence, by giving description of the
evidence

11) Such other matters as may aid in the prompt disposition of the action.

Q: whose presence is required at the trial?

The presence of the party and the counsel are required to appear at the pre-trial.

Q: what are the effects of the failure of the party and the counsel to appear at the pre-trial?

1) The failure without just cause of a party and counsel to appear at pre-trial despite notice
shall result in a waiver of any objection to the faithfulness of the reproductions of
documentary evidence marked and their genuineness and due execution.
2) The failure of plaintiff and counsel to appear without valid cause shall cause the
dismissal of the complaint. The dismissal shall be with prejudice unless otherwise
ordered by the court.
3) The similar failure on the part of the defendant and counsel shall be a cause to allow the
plaintiff to present his evidence ex-parte against the defendant. The presentation of
evidence ex-parte shall be within 10 calendar days from the termination of the pre-trial
and the court shall render judgment based on the evidence presented.

Q: what if the party and the counsel appeared at the trial but they failed to bring a
document to be marked as evidence or failed to bring an object evidence. What will be
the effect of such failure to bring to court the evidence required?

The party that fails to bring a documentary or object evidence at the pre-trial will be
deemed to waive the presentation of such evidence.
 Q: is there an instance when the non-appearance of a party and counsel at the pre-trial
or court-annexed mediation or judicial dispute resolution despite notice, will be excused?
Yes, if the non-appearance of a party and counsel at the pre-trial, court-annexed
mediation, or judicial dispute resolution is caused by or due to acts of god, force
majeure, or duly substantiated physical inability.

Q: suppose a party anticipates that he cannot appear in court. May a representative

appear on behalf of such party during the pre-trial, court-annexed mediation, or judicial
dispute resolution?
Yes, if such representative is fully authorized in writing to:
a) enter into an amicable settlement
b) Submit to alternative modes of dispute resolution
c) To enter into stipulations or admissions of facts and documents

Q: may there be a second pre-trial?

A second pre-trial may be held if both parties consent to the holding of a second pre-trial.

Q: what must the parties file before the pre-trial?

The parties are required to file their respective pre-trial briefs.

Q: what shall the pretrial brief contain?

The pretrial brief must contain the following:

a) A concise statement of the case and the reliefs prayed for

b) a summary of admitted facts and proposed stipulation of facts
c) the main factual and legal issues to be tried and resolved
d) the propriety of referral of factual issues to commissioners
e) documents or other object evidence to be marked and the purpose should be stated
f) names of the witnesses and the summary of their respective testimonies
g) brief statement of points of law and citation of authorities

Q: what will you do with the pretrial brief?

Served it to the other party in such a manner as to insure the receipt by the other party of your
pretrial brief at least three days before the date of pre-trial.

Q: suppose a party fails to file his pre-trial brief. What is the effect of failure of a party to file his
pre-trial brief?

It will have the same effect as failure to appear at the pre-trial.

NOTE: if the parties have not filed their pretrial briefs, the court cannot conduct a pre-trial.
Instead, the court should apply the rule on the effect of failure to file a pre-trial brief.
Q: what shall the court do upon the termination of pretrial?

The court shall issue a pre-trial order within 10 calendar days from the termination of pre-trial.

Q: what shall be stated in the pretrial order?

The pretrial order shall recite in detail the matters taken up at the pretrial. It shall also state the
following:

a) the enumeration of the admitted facts

b) the minutes of the pretrial conference
c) the legal and factual issues to be tried
d) the applicable law, rules and jurisprudence.
e) The evidence marked by the parties
f) The specific trial dates for continuous trial, which shall be within the period provided by
the rules
g) The case flowchart (this shall be determined by the court and shall contain the different
stages of the proceedings up to the promulgation of decision).
h) a statement that the one day examination of witness rule shall be followed.

Q: what is one day examination of witness rule?

Under AM 03-01-09-SC, one day examination of witness rule requires that a witness has to
be fully examined in one day only. So the direct testimony and cross-examination of the
witness will have to be conducted in one day. The rule says that this must be strictly
adhered to, subject to the court’s discretion during the trial on whether to extend the direct or
cross-examination for justifiable reasons.

Q: what is the most important witness rule?

At the pretrial, the court shall determine the most important witnesses to be heard and the
court will limit the number of witnesses.

NOTE: if the name of a witness is mentioned, the facts to be proven by such witness shall
be stated and the approximate number of hours per witness shall be fixed.

Q: is postponement of presentation of party’s witnesses allowed?

No, it is not allowed by the Rules except only if the failure of the witness to attend is caused
by acts of god, force majeure, or physical inability of witness to appear and testify. The party
who caused the postponement will be warned by the court that the presentation of its
evidence must still be terminated within the remaining dates previously agreed upon.

Q: suppose the opposing party failed to appear without any valid cause on the scheduled
hearing as stated in the pretrial order. May the plaintiff present its witness?
 Yes, the presentation of the scheduled witness will proceed with the absent party being
deemed to have waived the right to interpose any objection and to conduct cross-
examination.

Q: what is the effect of the contents of the pre-trial order?

The contents of the pre-trial order shall control the subsequent proceedings and the course
of the trial unless modified before the trial to prevent manifest injustice.

Q: is a court-annexed mediation mandatory? When shall the court refer the parties to the
court-annexed mediation?

Yes,a CAM is mandatory. After the pretrial, the courts shall refer the parties for a mandatory
court-annexed mediation. The period for the COURT-ANNEXED MEDIATION SHALL NOT
EXCEED 30 CALENDAR DAYS.

NOTE: if the CAM fails, the case will be returned to the court of origin and the court of origin
may determine if a judicial dispute resolution may still be conducted notwithstanding failure
of court-annexed mediation.

Q: is a judicial dispute resolution mandatory?

No. It is discretionary on the part of the court.

Q: what if under the opinion of the judge of the court of origin, there is a need to refer the
matter to a Judicial dispute resolution?

The case shall be referred to another court for a judicial dispute resolution. If it fails, trial will
be conducted by the court of origin.

NOTE: the proceedings in CAM and JDR are confidential. Thus, if one party has made an
admission during the CAM or JDR, the other party cannot use the admission at the trial.

NOTE: the court, after the pre-trial may render judgment on the pleadings or a summary
judgment. IT can be done upon motion of a party or motu proprio by the court. The court can
include in the pre-trial order that the case will be submitted for judgment on the pleadings or
summary judgment. The order of the court that the case will be submitted on the judgment on
the pleadings or summary judgment cannot be subject of appeal or a petition for certiorari.
Modules 15,16,17 – Rules 19, 21 and 22

• Rule 19 – intervention.

NOTE: In intervention, there must be a pending action because a person will intervene in
the action. If there is no pending action, there can be no intervention.

NOTE: In intervention, the initiative to become a party to the pending case comes from the
intervenor.

Example: X as plaintiff, Y as defendant, and Z who is not a party, can become a party by
means of intervention. Thus, the initiative to become a party comes from the intervenor.

Q: who may intervene in an action?

1) A person who intervenes must be one who has a legal interest in the matter in litigation.
2) a legal interest in the success of either party.
3) A legal interest against both.
4) He is so situated as to be adversely affected by the disposition of a property or
distribution of a property in the custody of the court or an officer thereof.

NOTE: legal interest means that the intervenor stands to be injured or benefitted by the
judgment that may be rendered by the court in the pending action.

Example: X filed an application for the attachment of the property of Y. The property is
believed to be the property of Y. Thus, there was levy on attachment. However, it turns out
that the property is owned by Z but it was levied upon. Now, Z in this example has remedies;
one of which is to intervene in the action.

Question on the example above: what if Z is a transferee pendente lite. May Z intervene in
the action?

No, he cannot intervene because by means of the transfer of interest pendente lite, Z
became a virtual party in the case. Thus, even if Z does not intervene, he will be affected by
the judgment that the court may render and the judgment will bind him.

Q: when may a person intervene? At what point in the proceedings may a person intervene?

He can intervene at any time before rendition of judgment by the trial court.

Q: how may this person intervene?

By filing a motion for leave of court to intervene and he will attach to his motion his proposed
pleading in intervention which will be served to the original parties.

Q: what would you call the pleading in intervention?

It is called a complaint in intervention except only when the intervenor will unite with the
defending party in resisting the claim of the plaintiff, in which case, his pleading will be called
an answer in intervention.

NOTE: if the motion to intervene is granted and the complaint in intervention is admitted, the
complaint in intervention may be answered within 15 days from notice of the order admitting
the complaint in intervention.

Q: when may the court refuse leave to intervene?

1) When it will unduly delay or prejudice the adjudication of the rights of the original parties
2) The intervenor’s rights may be fully protected in a separate proceeding.

• Intervention may not be allowed in the following:

a) In land registration cases – because the remedy of a person adversely affected by the
land registration case is to file an opposition
b) Cases governed by the Rules on Summary Procedure.

NOTE: that intervention is merely collateral to the principal obligation. Intervention is not an
independent proceeding. Thus, if the main action is dismissed, the complaint in intervention
can no longer be acted upon.
Rule 21 – Subpoena

Subpoena – singular; subpoenae – plural

Q: what is a subpoena?

It is a process directed to a person requiring him to attend and testify at the hearing or trial of an
action or at any investigation conducted by a competent authority or the taking of his deposition.

Q: what are the kinds of subpoena?

The kinds are:

1) Subpoena ad testificandum – the subpoena requires person to attend and testify

2) Subpoena duces tecum – the subpoena requires him to produce or bring to court certain
documents, objects, etc. and to testify thereon.

Q: who may issue a subpoena?

The following are the officers who can issue a subpoena:

1) The court before whom the witness is required to attend and testify.
2) The court where his deposition is to be taken
3) The officer or body authorized by law to do so in connection with an investigation that is
being conducted
4) Any justice of the Supreme Court, Court of Appeals, in any case or investigation pending
within the Philippines

Q: Suppose a request has been filed for the issuance of subpoena. Does that require a
notice to the other party?

No, it does not require a notice to the other party. Absent any proceeding, suit, or action
commenced or pending before a court or any officer authorized to conduct an investigation,
a subpoena cannot be issued.

Q:when is a witness not bound by a subpoena?

The following are the instances when a witness is not bound by subpoena:

a) If the witness resides more than 100km from his residence to the place where he is to
testify. (in this case, the witness can file a motion to quash the subpoena) ( file the
motion in the court which issued the subpoena to the witness)

Q:what do you call the right of the witness not to be compelled to testify in a civil case, if he
resides more than 100km from the place of trial?

It is called the VIATORY RIGHT OF THE WITNESS.

 Q: Suppose the case is pending before a court in Baguio city. Your witness resides in QC, a
place where it is more than 100km from Baguio city and you need him to testify in your case
pending in Baguio city. Suppose he invokes his viatory right, what is the remedy?

The remedy is to take his deposition in Quezon City.

Q: how will you take his deposition in Quezon City? What are the steps that needs to be
followed so that his deposition may be taken in QC?

One must file a notice to the other party in the action stating the time, place, and the name
of the person whose deposition is to be taken. The notice will be served on the other party to
the action. Thereafter, there will be proof of service of notice for the taking of the deposition.
This proof shall be presented to the Clerk of Court of the place where the deposition is to be
taken. Thereafter, on the basis of such proof of service, the clerk upon authority and under
the seal of the court, shall issue the subpoena and the subpoena will be served on the
witness in QC and his deposition will be taken in QC. Thus, he cannot invoke anymore his
viatory right.

• the witness is not bound by the subpoena if there is no permission of the court in which his
case is pending. (detention prisoner). However, if the prisoner is serving sentence because the
prisoner is sentenced to death, reclusion perpetua and life imprisonment and is confined in a
penal institution, the prisoner is not bound by the subpoena unless there is an authority of the
Supreme Court to bring out the prisoner.

Q: what are the grounds to quash a subpoena?

The grounds are:

a) If the subpoena is a subpoena duces tecum, the subpoena may be quashed on the
following grounds:
1) If it is unreasonable and oppressive; (example: the court orders the witness to
produce a truck load of documents).
2) The relevancy of the books, documents, or things do not appear.
3) The person in whose behalf the subpoena is issued fails to advance the reasonable
cause of the production of these books, documents, or things.
4) The witness fee and the kilometrage allowed by the Rules were not tendered at the
time of the service of the subpoena.
b) If the subpoena is ad testificandum, the grounds are:
1) The witness is not bound by the subpoena if the witness leaves more than 100km
from the place of the trial and he invokes his viatory right, he files a motion to quash
the subpoena on the reason that he is not bound by the subpoena
2) The witness fee and the kilometrage allowed by the rules were not tendered at the
time of the service of the subpoena.
Q: what are the modes of the service of subpoena?

A subpoena is served in the same manner as personal or substituted service of summons.

However, at the time of the service, the following must be tendered to the witness:

a) The witness fee

b) The cost for the production of documents and other materials subject of the subpoena

Q: can a person be compelled to appear and testify without a subpoena?

Yes, if the person is already present in court, he can be compelled to testify even the absence
of subpoena.

Q: what are the consequences of disobedience to a subpoena?

1) The person who disobeys a subpoena may be arrested and brought before the court
where his attendance is required
2) Citation in contempt by the court from which the subpoena is issued.
Rule 22 – computation of time

Q: how do you compute time? How do you count 15 days if you received the judgment
on July 1?
Exclude the first day and include the last day. If the last day falls on a Sat, Sun or legal
holiday in the place where the court sits, the pleading, motion, or notice may be filed on
the next business day.
 Module 18 – Rules 23 to 29: Modes of Discovery

• modes of discovery are in the nature of fishing expedition because these modes are
resorted to by the party to unmask the other party; for him to be able to know or
ascertain information or facts that are in the possession of the other party, which are
relevant to the issues involved in the case.

Q: what are the purposes of these modes of discovery:

1) To narrow down or clarify the basic issues between the parties

2) To ascertain the facts that are relevant to the issues involved in the case.

Q: what are the modes of discovery?

1) Deposition pending action ( deposition de bene esse)

2) Deposition before action or pending appeal ( deposition in perpetuam rei memoriam)
3) Interrogatories to parties
4) Request for admission
5) Production or inspection of documents or things
6) Physical or mental examination of a party

Q: what should a party do if he wants to resort to these modes of discovery?

• If it is a deposition pending action, a party should file in the pending action or in the court
where the action is pending, an ex-parte motion to take the deposition of the other party or
a person who is not a party to the action either by:

a) Upon oral examination; or

b) Written interrogatories

Example of deposition de bene esse: X (plaintiff) v. Y (defendant). Who may avail of this
mode of discovery called deposition pending action? Answer: either X or Y. Q: whose
deposition may be taken? Answer: IF x avails it, he may take the deposition of Y or deposition
of W(who is not a party to the action).

• If it is a deposition before action (there is no action yet but there is an action anticipated in the
near future), he should file a verified petition in the court of the residence of any of the expected
adverse party. Thus,

Example of the deposition before action: you have 4 expected adverse parties and they
reside in 4 different places, you must file a verified petition in the court of the residence of any
of the expected parties.

• If it is a deposition pending appeal, if an appeal has been taken from the judgment of a court
or before the taking of an appeal, if the time for perfecting the appeal has not yet expired, the
COURT IN WHICH THE JUDGMENT HAS BEEN RENDERED MAY ALLOW THE TAKING OF
DEPOSITIONS OF WITNESSES TO PERPETUATE THEIR TESTIMONY FOR USE IN THE
EVENT OF FURTHER PROCEEDINGS IN THE SAID COURT. IN such a case, the party who
desires to perpetuate the testimony should file a motion in the court that rendered the
judgment for LEAVE TO TAKE THE DEPOSITION UPON NOTICE AND SERVICE THEREOF
AS IF THE ACTION WAS PENDING IN THAT COURT.

• If it is an interrogatories to parties, a party desiring to take the interrogatories of a party should

file an Ex-parte motion with the court where the case is pending.

• If it is a request for admission by the adverse party, at any time after issues have been joined,
a party may file and serve upon the other party a written request for admission.

• If it is a production or inspection of a document or thing, it is upon motion of any party with the
court where the case is pending.

• If it is a physical or mental examination, it should be upon notice to the party to be examined

and to all the parties in an action in which the mental or physical condition of a party is in
controversy.

Q: what is a deposition?

A deposition is the taking of the testimony of any person, whether a party to the action or not a
party at the instance of a party to the action.

NOTE: The deposition is taken out of court upon oral examination or written interrogatory.

NOTE: The person who has given his deposition, whose deposition is being taken, or has taken
is called DEPONENT.

Q: if a party desires to resort to these modes of discovery, is leave of court required?

•In a deposition pending action, interrogatories to parties, requests for admission, if an answer
to the complaint has been filed, leave of court is NOT REQUIRED.

•If an answer has not yet been filed but the court has already obtained jurisdiction over the
person of the defendant or over the subject matter of the action, there MUST BE LEAVE OF
COURT.

•In production or inspection of documents or things and mental or physical examination of a

party, there MUST ALWAYS BE LEAVE OF COURT.

Q: what is the scope of a deposition?

The deponent may be examined regarding any matter not privileged, provided it is relevant to
the subject of the pending action, whether it relates to a claim or defense of any party.
Q: before whom may depositions be taken?

Depositions may be taken in by:

a) If within the Philippines, the deposition may be taken before a judge, notary public, or a
person authorized to administer oath.
b) If in a foreign country, the deposition may be taken before the secretary of the embassy,
diplomatic minister and his staff, or the consul general, consul, vice-consul, or consular
agent of the Republic of the Philippines; Or
c) Before such person or officer as may be appointed by a commission or letters rogatory.

Q: what is a commission?

A commission is an instrument issued by a court of justice or other component tribunal in a

foreign country to authorize persons to take deposition or to do any other act by authority of
the court or tribunal that issued it.

NOTE: a commission is issued by a court of justice or a competent tribunal issued to a

person addressed to an officer designated by name or a descriptive title.

Q: what is a letters rogatory?

It is an instrument sent in the name and by the authority of a judge or court to another court
or judge requesting the latter to cause to be examined upon interrogatories filed in a case
pending before the court that issued it. A witness who is within the jurisdiction of the judge or
court to whom the letters rogatory are addressed.

NOTE: This may be applied for and issued only after a commission has been returned and
executed.

Example: a commission was issued to an officer and it was not executed, then letters
rogatory may be issued.

Q: For what purpose may a deposition be used?

1) If the deponent is a party to a case, his deposition may be used in any purpose

NOTE: “for any purpose” means:

a) To establish a claim or defense

b) For the purpose of contradicting or impeaching him if he testifies

2) If the deponent is a person not a party to the case, his deposition may only be used for
the purpose of contradicting him or impeaching him if he testifies, except:
a) If the witness or deponent is dead or resides more than 100KM from the place of trial; or
b) The witness is unable to attend or testify because of age or some other infirmity; or
 c) the party offering the deposition is unable to procure the attendance of the witness or
deponent by means of subpoena
d) Or such other exceptional circumstances exist.

Example: X v Y. X took Y’s deposition. Because there was no settlement arrived at the pre-trial,
the parties went to trial. X presented his evidence, among the evidence, he presented the
deposition of Y. Y did not testify as a witness in the case but X has in his possession the
deposition of Y. Q: may x use the deposition of Y to prove his claim against him? Answer: yes,
the deposition of a party may be used by the other party to prove or establish his claim or
defense.

Question in the example above: Suppose the trial is in Baguio. X took the deposition of W who
resides in Baguio. W was never called to testify in the case. Subsequently, X presented his
evidence and when he was asked to offer his evidence, he offered the deposition of W. Q: what
objection can Y make? Answer: Y can object to the admission of W’s deposition on the ground
that that deposition is inadmissible in evidence because it is hearsay.

Q: suppose W resides in Quezon CITY, can X use W’s deposition as evidence?

Yes, it is one of the exceptions that If the witness or deponent is dead or resides more than
100KM from the place of trial, his deposition can be used.
Module 19 and 19-A: Rule 30 and 31 – Trial and Severance and consolidation of cases

Q: what does the rule require the parties to do regarding the scheduled hearings as agreed
upon by them and set forth in the pretrial order?

The rule requires the parties to strictly observe the scheduled hearings as agreed upon and set
forth in the pretrial order. The schedule of the trial dates for both the plaintiff and the defendant
shall be continuous. The initial presentation of plaintiff’s evidence shall not be later than 30 days
after the termination of the pretrial. The plaintiff shall be allowed to present its evidence within
the period of 3 months or 90 calendar days, which shall include the date of the Judicial Dispute
Resolution if one is conducted. The initial presentation of defendant’s evidence shall not be later
than 30 calendar days after the court’s ruling on plaintiff’s formal offer of evidence.

Q: what if there is a third party complaint, counterclaim or cross-claim?

The third party complaint, counter-claim or cross-claim shall be determined by the court but the
total number of days shall in no case exceed 90 calendar days. It will depend on whether or not
the parties has rebuttal evidence or sur-rebuttal evidence. If there is, the court shall also set the
date for the presentation of rebuttal evidence which shall be completed within a period of 30
calendar days.

NOTE: Depending on the number of witnesses, the trial dates may be shortened. However, the
rule states that the total period for the presentation of the parties’ evidence shall be within 10
months or 300 calendar days. If there is no third party complaint (and so on), counter-claim or
cross claim, the presentation of evidence of all the parties should be terminated within 6 months
or 180 calendar days.

• The court shall decide the case and serve copies of the decision on all the parties within a
period not exceeding 90 calendar days from the submission of the case for decision with or
without memoranda.

Q: may the trial be postponed?

The court may adjourn a trial from day to day and to any stated time or date as may be
convenient, but it shall have no power to adjourn or reset a case for a longer period than 1
month for each adjournment.

Example: If the case was postponed today, the next date cannot be longer than 1 month from
today.
NOTE: The party who cause the postponement is warned that the presentation of his evidence
must still be terminated on the remaining dates as agreed upon and as stated in the pretrial
order.

Q: who will receive the evidence?

The judge will receive the evidence of the parties. However, the reception of evidence may be
delegated to the clerk of court subject to the requirement that the clerk of court must be a
member of the Philippine Bar and only in the following instances:

a) In default or exparte hearings

b) In any case in which the parties agree in writing

Q: suppose the parties can agree upon the facts. Simply put, there is no dispute regarding the
facts because the parties agree to the facts of the case. May the parties agree upon the facts
and then submit the case for decision based on the facts without introduction of evidence?

Yes, but the agreement of the parties must be in writing.

NOTE: suppose the parties can agree only on some facts but they dispute the other facts, then
the trial shall be held as to the disputed facts. However, the partial agreement should still be in
writing.

NOTE ALSO: there cannot be a judgment based on stipulation of facts. The parties cannot
agree on the facts and submit the case for judgment based on these facts on the following
instances:

1) In legal separation
2) Annulment of marriage
3) Declaration of nullity of marriage

In these cases, a judgment cannot be rendered on agreed statement of facts.

Q: is it allowed to suspend an action?

Yes, under the Civil Code, an action may be suspended if it is shown that the parties are willing
to discuss a compromise.

Q: when can there be consolidation of cases?

When actions involving a common question of law or a common of fact are pending before the
same court, it may order a joint hearing or trial of any or all the matters in issue in the actions.

Q: why is consolidation of actions allowed?

To avoid possibility of conflicting decisions being rendered and in the interest of orderly
administration of justice.

NOTE: consolidation not automatic. It must be upon motion of the offended party.

Q: in what court should the motion be filed?

In the court trying the criminal action. Thus, if the court approved the motion, the civil action in
the other court shall be consolidated in the court where the criminal action is being tried.
Modules 20: Rule 32- Trial by a Commissioner

Q: Who may be a commissioner?

He may be an accountant, a surveyor, or an examiner, or anyone who may be appointed by the

court by means of an order known as order of reference

Q: when may the court refer the case for trial by a commissioner?

Upon agreement of the parties in writing or if the parties do not agree, the court may still refer
the case for trial by a commissioner upon its own motion.

Q: Does the commissioner have the power to issue a subpoena?

Yes, he has the power to issue a subpoena.

Q: does he have the power to rule upon the admissibility of evidence?

Yes, unless that power is withheld by the court from him. If not provided in the order appointing
him as commissioner, the commissioner has the power to rule on the admissibility of evidence.

Q: suppose the commissioner issues a subpoena to a witness but the witness refuses to obey
the subpoena, may the commissioner punish him for contempt?

Yes, the refusal to obey the subpoena will constitute contempt of the appointing court that
appointed the commissioner.

NOTE: if a commissioner is appointed by the court, trial shall proceed before the commissioner
as it would be held in a court. After the trial, the commissioner will submit this report to the court.

NOTE: Objections by a party to the report may not be raised before the court that appointed the
commissioner unless the objections were made before the commissioner during the hearing.

NOTE: if the parties will stipulate that the commissioner’s findings of facts will be final, then only
questions of law shall be considered by the court.

Q: are there instances when a commissioner is required to be appointed by the court?

Yes, the instances are:

a) In expropriation cases under Rule 67 to determine the just compensation of the property
subject of the expropriation case;
b) In a partition under Rule 69 when the parties are unable to agree as to the manner of
partition.
 Module 20-A: Rule 33 – Demurrer to the Evidence

Q: who files a demurrer?

In a civil case, the one who files a demurrer is the defendant. In a criminal case, the one who
files a demurrer to evidence in a criminal case is the accused.

Q: may a defendant file a demurrer before the presentation of evidence by the plaintiff?

No, the time to file a demurrer is after the plaintiff has completed the presentation of his
evidence.

Q:upon what ground may the demurrer befiled?

On the ground that upon the facts and the law, plaintiff has shown no right to relief.
(insufficiency of evidence)

NOTE: a demurrer to evidence is in the nature of a motion to dismiss on the ground of

insufficiency of evidence.

Q: does the defendant need leave of court to file the demurrer?

In a civil action, it is not required.

In criminal action, the accused may file a demurrer to the evidence with leave of court or without
leave of court. Furthermore, there is a distinction between an accused filing a demurrer with
leave of court and an accused filing a demurrer without leave of court.

Q: how may the court resolve the demurrer to evidence?

The court may deny the demurrer because in the opinion of the court, the plaintiff has presented
sufficient evidence.

Q: what is the remedy of the defendant whose demurrer to the evidence is denied by the court?

The remedy is to present his evidence because in a civil case, a defendant whose demurrer to
the evidence is denied by the court does not lose his right to present evidence in the event of
the denial of his demurrer to the evidence.

Q: what if the court finds that indeed the evidence presented by the plaintiff is insufficient?

If this would be the case, the court may grant the demurrer to the evidence.

Q: What happens to the case if the demurrer to the evidence is granted by the court?

The case is dismissed. The dismissal of the case constitutes an adjudication by the court on the
merits of the case.
Q:What is the remedy of the plaintiff if his case is dismissed upon a demurrer to the evidence
filed by the defendant?

His remedy is to appeal from the order of dismissal.

NOTE: an order denying the demurrer to the evidence is interlocutory. Therefore, the order
denying the demurrer is not appealable. However, an order granting the demurrer dismisses the
case, thus, it is a final order as opposed to interlocutory and thus the order granting the
demurrer is appealable.

NOTE: suppose the plaintiff does not appeal within 15 days from notice of the order dismissing
the case, the order dismissing his case will become final. Thus, the plaintiff cannot re-file his
case because an order dismissing the case constitutes an adjudication of his case on its merits.

Q: suppose the case is now on appeal, what may the appellate court do?

If the appellate court finds that plaintiff’s evidence is insufficient, the appellate will simply sustain
or affirm the order of dismissal.

However, if the appellate court deems plaintiff’s evidence sufficient, it will reverse the order of
the dismissal.

Q: if the appellate court reverses the order of dismissal, should the appellate court set the case
for hearing to receive defendant’s evidence?

No, the appellate court should not receive evidence or remand the case to the trial court for
presentation of evidence but should decide the case based on the evidence presented by
the plaintiff. In which event, the defendant has waived the right to present evidence.

Sec. 1, Rule 33 – if the motion is granted (demurrer) but on appeal the order of dismissal is
reversed, the defendant shall be deemed to have waived the right to present evidence.

Distinctions between a demurrer to the evidence in a civil case and a criminal case:

a) In both civil and criminal cases, the ground is insufficiency of evidence.

b) In a civil case, the demurrer to the evidence is upon motion of the defendant. In criminal
case, the demurrer to the evidence may be upon the motion of the accused or upon the
court’s own initiative after giving the prosecution the opportunity to be heard.
c) In a civil action, after the plaintiff has completed the presentation of his evidence, the
court cannot dismiss the case on a demurrer to the evidence without any motion being
filed by the defendant. In a criminal action, the court may dismiss the case on ground of
insufficiency of evidence upon a demurrer to the evidence filed by the accused or upon
the court’s own initiative after giving opportunity to the prosecution to be heard.
d) In a civil action, if the demurrer to the evidence is granted, the plaintiff may appeal from
the order granting the demurrer. In a criminal action, if the demurrer to the evidence is
granted, and the case is dismissed on the ground of insufficiency of evidence, the State
as the plaintiff, cannot appeal from the order dismissing the case because the order
dismissing the case amounts to an acquittal.
• Distinctions between a motion to dismiss and a demurrer to evidence:
A) a motion to dismiss is usually filed before the filing of an answer. A demurrer is made
after the plaintiff has rested its case.
B) A motion to dismiss is based on the four grounds ( lack of jurisdiction over the
subject matter of the action, lis pendens, res judicata, prescription). A demurrer is
based only on the failure of the plaintiff to show a right to relief. (insufficiency of
evidence)
C) A denial of the motion to dismiss will require the subsequent filing of an answer while
the denial of a demurrer requires the subsequent presentation of defendant’s
evidence.
Rule 38 – relief from judgment, order, or proceeding

NOTE: this petition for relief from judgment is one of the remedies against a judgment that has
become final.

Q: What are the grounds upon which a petition for relief from judgment may be filed?

The grounds are:

1) Fraud
2) Accident
3) Mistake
4) Excusable negligence

NOTE: a petition for relief from judgment is an equitable remedy. This means that a party may
resort to this remedy only if there is no other available remedy.

NOTE: if the case is governed by the Rule on Summary Procedure, a petition for relief from
judgment is prohibited.

Q: when may a party file a petition for relief from judgment?

Within 60 days from the time he learns of the judgment but not more than 6 months from entry
of judgment.

Q: what is a judgment upon a compromise?

In this case, the parties have finally decided that they would settle their dispute. Thus, they
entered into a compromise agreement and submitted it to the court. The court approves the
compromise agreement and render a judgment based on that compromise agreement.

Question to the above Q: is the judgment upon a compromise appealable? ANS: NO, a
judgment upon a compromise is not appealable because it is based on a compromise
agreement between the parties. Thus, the moment the judgment upon a compromise is
rendered, it is final immediately. Therefore, the 60 days and 6 months should be counted
from the rendition of the judgment upon a compromise because a judgment upon a
compromise is final immediately.

Q: in what case and in what court should the petition be filed?

The petition for relief from judgment should be filed in the same case and in the same court.

NOTE: a petition for relief from judgment may only be filed if the judgment is a judgment of an
MTC or RTC. It is not available as a remedy against a judgment or decision or resolution of the
Court of Appeals or the Supreme Court.
Q: who may file for a petition for relief from judgment?

It may be filed by the plaintiff or the defendant.

Q: what is the procedure to follow if a petition for relief from judgment is sought?

The procedure is:

a) filing of a verified petition in the same court and in the same case. The petition should
be accompanied by an affidavit of merit and the affidavit should state the facts and
circumstances surrounding the fraud, accident, mistake, or the excusable negligence
and the petitioner has a meritorious defense or a cause of action.
b) The court will issue an order directing the respondent to file his answer within 15 days
from receipt of the order
c) The respondent files an answer. (Note that the respondent cannot be declared in
default if he did not file an answer).
d) The court will hear the petition to determine if the allegations in the petition
regarding the F.A.M.E. are true. (there is presentation of evidence in this case).
NOTE: if the court finds that the petition is not meritorious, the court will issue an
order denying the petition. The order denying the petition is not appealable but if
there is a clear indication that the court acted with grave abuse of discretion, a
petition for Certiorari may be filed.

NOTE: If the court finds the allegation to be true, the court will issue an order granting
the petition.

e) Hearing on the case.

NOTE: there will be a hearing on the case if the court granted the order
because the effect of the order will vacate the judgment and the case will stand
for trial de novo.
f) After the hearing on the case, a judgment shall be rendered.

NOTE: this judgment shall be appealable because the old judgment is vacated
since the order granting the petition for relief from judgment vacates the old
judgment.

Q: what if a judgment is rendered against a party and the party wanted to appeal but he was not
able to appeal due to circumstance beyond his control. Thus, when he filed his notice of appeal,
it was too late. What is the remedy of the party if his appeal was denied?

If the party can show that he was prevented from perfecting his appeal by Fraud, Accident,
Mistake, Excusable Negligence, his remedy is to file a petition for relief asking the court to
give due course to his appeal. If the court finds that he was prevented by FAME from
perfecting his appeal on time, the court will grant the petition and order the record of the case to
be elevated to the appellate court.

Q: Suppose the notice of appeal and the appellate court docket fees were paid but the court
dismissed the appeal. What is the remedy of the appellant?

The remedy is petition for certiorari because the denial of his appeal is a grave abuse of
discretion.

Q: What are the distinctions between a motion for new trial and petition for relief from
judgment?

The distinctions are:

a) A motion for new trial must be filed before the judgment becomes final. On the other
hand, you file petition for relief from judgment after the judgment has become final
b) A motion for new trial is filed if a judgment or final order has been rendered. On the other
hand, a petition for relief from judgment is filed if a judgment or final order has been
rendered and has become final, or a proceeding thereafter has been taken.
c) In a motion for new trial, the grounds are not only F.A.M.E but also NEWLY
DISCOVERED EVIDENCE. On the other hand, the grounds for petition for relief from
judgment is only F.A.M.E.
d) A motion for new trial is filed during the period for perfecting an appeal. On the other
hand, a petition for relief from judgment is filed within 60 days from the time he learns of
the judgment but not more than 6 months from entry of judgment.
e) A motion for new trial, if denied, there can be appeal form the judgment. On the other
hand, a petition for relief from judgment, if denied, is not appealable.
f) A motion for new trial is a legal remedy. On the other hand, a petition for relief from
judgment is an equitable remedy
g) A motion for new trial must be verified while a petition for relief from judgment requires
no verification.
 Rule 39 –

• There are two kinds of execution:

1) Compulsory execution/ execution as a matter of right – what is to be executed in this
case is a judgment or final order that has become final and executory.
2) Discretionary execution/execution pending appeal/exceptional execution

Q: how will you execute a judgment that has become final and executor?

By means of a motion or by means of an action.

• It is by means of a motion within 5 years from the entry of judgment. The 5 years is to
bereckoned or computed from the date of entry of judgment.

• After 5 years but within 10 years from the date of its finality, the judgment should be enforced
by means of an action. (the action is called an action to revive judgment because after 5 years,
the judgment becomes dormant)

Q: What is the date of entry of judgment?

The date of finality of the judgment is presumed to be the date of its entry.

Q: how do you revive judgment?

By means of a motion or by means of an action.

Q: what happens if the writ of execution varies the dispositive portion of the judgment?

The writ of execution is void if it varies the judgment. The remedy is to file a motion to quash the
writ of execution.

Q: what happens if the judgment contains an order ordering the issuance of a writ of execution
for the enforcement of such judgment. Is this valid?

NO, the court cannot order the issuance of a writ of execution in the judgment itself because it
violates the rule that the issuance of a writ of execution can be secured through the filing of a
motion.

Q: in what court may the motion for execution be filed?

It must be filed in the court of origin.

Q: what is the remedy if the court refuses, without any justifiable reason, to issue the writ of
execution?

The remedy would be a petition for mandamus with a higher court to compel the lower court to
issue the writ of execution.

Example: RTC rendered a judgment and the judgment was appealed in the CA. The CA
rendered a judgment in the appealed case and the judgment became final and executory. Now,
you filed a writ of execution with the RTC. The motion must be accompanied by a certified copy
of the judgment by the appellate court and certificate of entry of judgment.

If the RTC refuses to issue the writ of execution, a motion may be filed with the appellate court
in the same case, asking the appellate court that an order be issued to compel the RTC to issue
the writ of execution.

Q: What are the instances where the court is justified in not issuing the writ of execution?

There are instances where the court is justified in refusing to issue a writ of execution. These
are:

a) A supervening event occurs after finality of the judgment that makes execution unjust or
inequitable.
b) If the judgment has become dormant for failure to execute it within 5 years from entry of
judgment.

NOTE: the execution of a judgment within 5 years or after 5 years but within 10 years, this
Rule does not apply in Land Registration cases. It is only applicable in civil actions.

• Execution pending appeal - the judgment has not become final yet.

Q: what are the requisites of an execution pending appeal?

The requisites are:

a) There must be a motion for execution pending appeal

NOTE: a motion for execution pending appeal is a litigious motion. Thus, the other party can
file his opposition.

b) There must be a good reason for execution pending appeal

c) The good reason for execution pending appeal must be stated in a special order.

NOTE: if the good reason is not stated in the special order, then the execution pending appeal
is not valid.

Q: What could be an example for good reason for execution pending appeal?

The examples are:

a) Old age of the judgment-obligee

Q: what court may issue execution pending appeal?

The courts are:

a) The trial court.

 b) However, if the trial court has already lost jurisdiction over the case, then the appellate
court is the one that can issue the writ of execution pending appeal.
c) Although the trial court may have lost jurisdiction over the case, it may still issue the writ
of execution pending appeal. Provided, the record of the case has not been transmitted
to the appellate court. (by virtue of its RESIDUAL JURISDICTION)

Q: suppose the court issues a writ of execution pending appeal, may the other party ( the
judgment-obligor) do something about it? What is the remedy of the judgment-obligor to stay
the execution pending appeal?

What the judgment-obligor can do to secure a stay of execution pending appeal is to file a
sufficient SUPERSEDEAS bond.

Q: what is the purpose of the supersedeas bond?

The purpose is that it is conditioned upon the performance of the judgment in case the
judgment is sustained on appeal.

Example: X v Y in RTC. RTC renders a judgment. Y appealed from the judgment. Although
the judgment is not final, X secured a writ of execution pending appeal. Now, Y wants to
have a STAY OF EXECUTION. What can Y DO? ANSWER: He will post a supersedeas
bond. This bond is conditioned that the judgment will be satisfied in case it is
affirmed by the appellate court.

NOTE: There are judgments that are not stayed by appeal. The reason is that they are
enforceable upon rendition. These judgments are:

1) Action for support

2) Judgment in an injunction
3) Receivership
4) Accounting
5) In an action for forcible entry or unlawful detainer if the judgment is against the
defendant, the judgment is subject to immediate execution.
6) Judgment upon a compromise.

• Properties exempt from execution:

a) Family home
b) Lettered gravestones (sec.13 (j))
c) Right to receive legal support or money or property obtained as such support or any
pension or gratuity from the government.

Q: a sheriff is armed with the writ of execution. He will now levy on the property of the judgment-
obligor. The sheriff levies on a family home. Is the levy valid?
Yes, because it is not for the sheriff to claim the exemption. The one who should claim the
exemption is the judgment-obligor himself.

Follow up Q: when may the judgment-obligor claim the exception?

At the time of the levy, or if he was not able to claim the exemption at the time of the levy, he
must claim the exemption at the time of the sale. IF he fails to do that, the levy would be valid
and the sale would also be valid.

• Rule 39, sec. 10, paragraph D – removal of improvements on property subject of execution –
when the property subject of the execution contains improvements constructed or planted by the
judgment-obligor or his agent, the officer shall not destroy, demolish, or remove said
improvements except upon special order of the court issued upon motion of the judgment-
obligee after due hearing and after the former has failed to remove the same within a
reasonable time fixed by the court.

Q: what is the effect of levy on execution as to third persons?

Under sec.12, Rule 19, it provides that the levy on execution shall create a lien in favor of the
judgment-obligee over the right, title, or interest of the judgment-obligor in such property at the
time of the levy, subject to liens and encumberances then existing.

Example of the question above: a piece of land is levied upon by execution by the sheriff or
his deputy. What is the effect of the levy on the property? ANSWER: the levy creates a lien on
the property.

Q: who is a third party claimant?

A third party claimant is a person who has title to or right of possession over the property being
levied upon. He is not a party to the case but his property has been levied upon by the Sheriff.

Example of a third party claimant: X (plaintiff) v. Y (defendant). The case was decided in
favor of X. There was a writ of execution issued on a property. The sheriff levies on the
property, and the sheriff was of the belief that the property was owned by the judgment-obligor
(Y) but X was not really the owner of the property but only a caretaker of the property. The
owner of the property is Z. Now, if the sheriff levies on the property owned by Z but believed
that it is owned by Y, then Z BECOMES A THIRD PARTY CLAIMANT.

Question on the example of a third party claimant: What are the remedies of the third party
claimant?

The following are the remedies of a third party claimant:

a) File a third party claim (terceria)

Q: how does the third party claimant make this third party claim?
He will execute or make an affidavit of third party claim. IN that affidavit of third party claim, he
will state facts showing his title to or right of ownership or right of possession over the property
being levied upon and attach to his affidavit pertinent documents showing his title or ownership
or right of possession over the property levied upon. He will serve his third party claim upon the
sheriff and the judgment-obligee.

If the sheriff is served with a copy of the third party claim, then the sheriff must stop his
proceedings. He is not bound to proceed with the levy.

Q: what should a judgment-obligee do if he wants the sheriff to proceed with his levy?

The judgment-obligee must file an indemnity bond. The purpose of the indemnity bond is to
protect the sheriff from liability in the event that the third party claim is tenable.

b) If an indemnity bond has been filed by the judgment-obligee, the remedy of available to
the third party complainant is to file an action against the bond within 120 days from the
filing of the indemnity bond.
c) Filing of a separate action to vindicate his claim to the property.

NOTE: in attachment or replevin, the third party claimant has also the remedy of intervention.

Note: the 3 remedies mentioned above are cumulative. This means that a third party claimant
may resort to any of these 3 remedies.

Q: suppose the third party claimant files a third party claim, what will the court do with the third
party claim?

The court will conduct a summary hearing on the third party claim to determine if the claim is
tenable. After the summary hearing, if the court finds that the claim is valid, the court may order
the release of the property to the third party claimant because the levy is a mistaken levy.

On the other hand, after summary hearing, if the court finds that the claim is not tenable, the
court will deny the third party claim.

Q: is appeal the proper remedy against the denial of the third party claim?

No, because the third party claimant is not a party to the action.

Q: is there a right of redemption?

If what is levied upon and sold in the execution sale is a personal property, there is no right of
redemption.

If what is sold is a real property, there is a right of redemption.

Q: who can redeem the property sold at execution sale?

The following can exercise the right of redemption:

 a) The judgment-obligor
b) Redemptioner

NOTE: if the judgment-obligor has redeemed the property, the redemptioner cannot redeem the
property from the judgment-obligor. On the other hand, if the first who redeems the property is a
redemptioner, the judgment-obligor can redeem the property from the redemptioner.

Q: who is a redemptioner?

A redemptioner is a creditor who has a lien by virtue of a judgment, attachment, or mortgage on

the property sold, subsequent to the lien under which the property was sold.

Example: X (plaintiff) v. Y ( defendant). A property belongs to Y. Before the action was

instituted, Y had already mortgaged his land to Z. Z had registered the mortgage with the
Register of Deeds. Thus, Z has a lien over the property. The lien was recorded in the RD way
back in 2017. Now, X obtained a judgment against Y in 2019 and is being enforced by virtue of
execution. The property was sold in an execution sale in 2020. Q: can Z redeem the property
that was sold in the execution sale pursuant to the lien created by the levy? Answer: No,
because Z’s lien by virtue of the mortgage was recorded in 2017. Thus, his lien is not
subsequent to the lien created by attachment.
Rules 40 to 56

• Within the time for perfecting the appeal, the appellant must also pay the appellant court
docket fee. The non-payment of the appellant court docket fee is a ground for the dismissal of
the appeal, although the dismissal is not automatic, it depends on the sound discretion of the
court.

• sec. 1, Rule 41. Subject of appeal – an appeal may be taken from a judgment or final order
that completely disposes of the case or of a particular matter therein when declared by these
Rules to be appealable.

No appeal may be taken from:

a) An order denying for a petition for relief for any similar motion seeking relief from
judgment
b) An interlocutory order
c) An order disallowing or dismissing an appeal
d) An order denying a motion to set aside a judgment by consent, confession, or
compromise on the ground of fraud, mistake, or duress, or any other ground vitiating
consent. (the remedy in here could be annulment of judgment based on compromise,
petition for relief, or petition for certiorari)
e) An order of execution
f) A judgment or final order for or against one or more of several parties or in a separate
claims, counterclaims, cross-claims, and third party complaints, while the main case is
pending, unless the court allows the appeal therefrom.
g) An order dismissing an action without prejudice

In any of the foregoing circumstances, the aggrieved party may file an appropriate special
civil action as provided in Rule 65.

Q: is a partial summary judgment appealable?

No, because a partial summary judgment is interlocutory.

NOTE: In the case of Palma v. Galvez (march 2010), it was held

Illustration of Palma v. Galvez: X files a complaint against Y and Z. Y filed a motion to dismiss
and Z filed an answer. The case was dismissed against Y. On the other hand, the case against
Z was not dismissed. Question: what is the remedy of X against the order of the court
dismissing the complaint as against Y? ANSWER: The remedy is not appeal because you
cannot appeal if the main case is still pending, as provided by Rule 41, sec. 1 (f). Thus, while
the case is pending between X and Z, the remedy of X would be a Petition for certiorari against
the order of dismissal granted to Y.

NOTE: appeal is not available as a remedy if the judgment is final and executory. An example of
this would be a judgment upon a compromise.
• If the appeal is from the MTC, the appeal should be taken to the RTC exercising jurisdiction
over the area to which the MTC belongs.

Q: what is the period for perfecting an appeal?

If the appeal is by notice of appeal, it is 15 days from notice of the judgment or final order being
appealed from.

If the appeal is by notice of appeal and record on appeal, the period to appeal is 30 days from
notice of the judgment or final order being appealed from.

NOTE: ordinary appeal is perfected by filing a notice of appeal. Record on appeal is not
required, except in the following instances:

a) In special proceedings involving settlement of estate of a deceased person

b) In separate appeals
c) In multiple appeals

NOTE: there can be multiple appeals on the following cases:

a) Expropriation proceedings
b) Judicial foreclosure of mortgage
c) Judicial partition

• Notice of appeal contains caption (name of the court, title of the case, docket number) ; the full
“NOTICE OF APPEAL” word; the name of the defendant-appellant, represented by counsel
(Jerome Sumineg, represented by Jeb Karlo) respectfully gives notice that he is appealing from
the judgment rendered by this Honorable Court. A copy of which was received by defendant-
appellant on July 1, 2020 to the Court of Appeals on the ground that the decision is contrary to
law or evidence; Date; signed; copy furnished.

Q: what must be specified in the notice of appeal?

If the appeal is from the MTC to the RTC, the appeal should specify the following:

A) The names of the parties

B) The judgment or final order or part thereof which is being appealed from
C) The statement of material dates to show that the appeal is being perfected on time.
d) If the appeal is from the RTC to the higher court, specify the court to which the appeal is
being taken.

NOTE: the record of the case cannot be transmitted to the appellate court in a special
proceedings, separate appeals, or multiple appeals. What is transmitted is the record on appeal.
• Neypes v. CA ( fresh 15 day period to appeal) – if the party adversely affected by the judgment
files a motion for new trial or a motion for reconsideration but his motion is denied, he will have
another 15 days from the receipt of the order denying his motion.

Q:is the filing of a motion for new trial or a motion for reconsideration a precondition to the
perfection to the appeal?

No, he is not required to file a MNT or MR for him to be able to appeal. Except in four cases:

a) Action for annulment of marriage

b) Action for declaration of nullity of marriage
c) Action for legal separation
d) Habeas corpus involving custody of a minor.

IN these cases, the party adversely affected by the judgment cannot appeal unless he will
first file a motion for new trial or a motion for reconsideration.

Q: what are the modes of appeal?

The modes of appeal are:

a) Ordinary appeal – which may be by: 1) notice of appeal or 2) notice of appeal and
record of appeal.
b) Petition for review
c) Petition for review on certiorari

Q: what are the instances when a record on appeal is required?

The instances are:

a) Special proceedings (settlement estate of a deceased person)

b) Separate appeals – example: a court renders a judgment on 1 claim and leaving the
other claims for trial. In here, it is not appealable until the main case is pending unless
the court allows the appeal therefrom.
c) Multiple appeals – this is only allowed in the following cases: a) expropriation cases, b)
judicial partition, c) judicial foreclosure of mortgage.

Q: does a record on appeal require the approval of the court?

Yes, the record on appeal must be approved by the trial court before it is transmitted to the
appellate court because it may not reflect accurately the pleadings filed in the case.

NOTE: if both parties appeal because they are not satisfied with the judgment, they can file a
joint record on appeal.

Illustration of appeal: 1st scenario – the case originates from the MTC.
• Mtc -> RTC – the mode of appeal is by notice of appeal or notice of appeal and record of
appeal in some instances. This is governed by rule 40

• RTC -> CA - the mode of appeal is Petition for Review under rule 42. The issues that can be
raised are questions of fact, questions of law, or mixed questions of law and of fact.

• CA -> SC – the mode of appeal is Petition for Review on Certiorari under rule 45. The issue
that may be raised here is pure questions of law only.

2nd scenario – the case originates from the RTC.

• RTC ->CA – the mode of appeal is by notice of appeal or notice of appeal and record on
appeal in some instances under rule 41. The questions that may be raised are questions of fact
or mixed questions of fact or of law.

NOTE: If the appeal is under rule 41, pure questions of law cannot be raised as oppose to the
1st scenario where a petition for review governed by rule 42, questions of law, questions of fact
or mixed questions of fact or law.

NOTE: If the appeal will raise pure questions of law, and the case originates from the RTC, the
appeal should be a direct appeal to the SC by means of a petition for review on certiorari.

• CA -> SC - the mode of appeal is Petition for Review on Certiorari under rule 45.

Q: what are the modes of appeal from a judgment of the RTC?

The modes are:

a) If the case originates from the RTC, the mode of appeal is ordinary appeal governed by
rule 41. The questions that may be raised are questions of fact or mixed questions of
fact and of law.
b) If the RTC exercises appellate jurisdiction, the appeal to the CA is by a petition for
review under rule 42. The questions that may be raised are questions of fact, questions
of law, or mixed questions of fact or law.
c) If the case originates from RTC, and the question that is raised is pure questions of law,
the mode of appeal is Petition for Review on Certiorari under rule 45. (direct appeal from
RTC to SC).

Q: what happens if the MTC dismisses the case without trial on the ground of lack of jurisdiction,
may the order of dismissal be appealed to the RTC?

Yes, it may be appealed. The RTC may either reverse the dismissal or affirm the dismissal. If
reversed, the RTC will remand the case to the MTC. If the RTC affirms the dismissal of the
MTC, then the case shall still be dismissed. However, if the RTC affirms the dismissal because
the MTC has no jurisdiction, and the RTC has jurisdiction, the RTC will try the case as if the
case is originally filed with the RTC. (sec. 8 , Rule 40).
Q: when is an ordinary appeal perfected?

• If the appeal is by notice of appeal, it is perfected as to him (as to the appellant), upon the filing
of the notice of appeal in due time.

Example: A copy of the judgment was received on July 1. Then by notice of appeal, you have
until July 16 to file notice of appeal. On july 15 you filed the notice of appeal. Thus, as to you(the
appellant) the appeal is perfected upon the filing of the notice of appeal on July 15.

Q: if the appeal is by notice of appeal, when does the court lose jurisdiction over the case?

The court loses jurisdiction over the case upon the perfection of the appeal and the expiration of

the time to appeal of the other parties.

Example: X (Plaintiff) v. Y (defendant). X received a copy of the judgment on July 1. Y received

a copy of the judgment on July 5. Now, the trial court loses jurisdiction upon the perfection of the

appeal if the appeal is by notice of appeal and the expiration of the time to appeal ofother

parties. Does, If X files a notice of appeal on july 16, and the 15 days of Y to appeal has not yet

expired, then the court still has jurisdiction. Corollary, if the 15 days of Y to appeal has expired,

and X filed a notice of appeal on July 16, then the trial court loses its jurisdiction.

• If the appeal is by notice of appeal and record on appeal, the appeal is perfected (as to the

appellant), with respect to the subject matter of the appeal upon the approval of the record of

appeal filed in due time.

Q: when will the court lose over the subject matter of the appeal?

The court will lose jurisdiction over the subject matter of the appeal upon the approval of the

record of appeal filed in due time and the expiration of the time to appeal of the other parties.

Example: X v. Y (expropriation proceedings). The first stage in expropriation proceeding is the

determination of the authority of the plaintiff to expropriate the property of the defendant. If the

plaintiff has the right to expropriate, the court will issue an order of expropriation. The 2nd stage

would be determination of just compensation. Now if the RTC renders a judgment, the case may
be appealed to the Court of Appeals. Now, the record of the case will not be transmitted to the

CA but the RECORD ON APPEAL. The record on appeal will be submitted to the trial court for

its approval. QUESTION: when is the appeal by notice of appeal and record of appeal

perfected? ANSWER: It is perfected as to him with respect to the subject matter of the appeal

upon the approval of the record on appeal filed in due time and the expiration of the time to

appeal of the other parties. The court will not lose jurisdiction over the case but only over the

subject matter of the appeal (the subject matter is the order of expropriation).

NOTE: before the transmittal of the record of the case or record on appeal, the court of origin

may issue the following orders:

a) For the protection and preservation of the rights of the parties not involving any matter

litigated by the appeal

b) Approved compromises

c) Permit appeals of indigent litigants

d) Order execution pending appeal

e) Allow withdrawal of the appeal

This orders can be exercised by the court of origin because of their RESIDUAL JURISDICTION.

Q: what is a residual jurisdiction?

It is the extension of the original jurisdiction of the court for certain specific purposes after the

perfection of an appeal but before the transmittal of the record of the case or record on appeal

to the appellate court.

• appeal from the MTC to the RTC – the MTC will transmit to the RTC the record of the case

and the RTC will issue a notice to the appellant directing the appellant to file his memorandum

of appeal within 15 days from receipt of the notice.

NOTE: if the appellant fails to file his memorandum of appeal within 15 days, the failure will be a

ground for the dismissal of appeal. From receipt of the memorandum of appeal, the appellee

may also file his own memorandum.

• sec. 8, Rule 40 – appeal from orders dismissing case without trial lack of jurisdiction – if an

appeal is taken from the order of a lower court dismissing the case without trial on the merits,

the RTC may affirm or reverse it as the case may be. In case of affirmance and the ground of

dismissal is lack of jurisdiction over the subject matter, the RTC, if it has jurisdiction, shall try

the case on the merits as if the case was originally filed with it. In case of reversal, the case

shall be remanded for further proceedings. If the case was tried on the merits by the lower court

without jurisdiction over the subject matter, the RTC on appeal shall not dismiss the case if it

has original jurisdiction thereof but shall decide the case in accordance with the preceding

section without prejudice to the admission of amended pleadings and additional evidence in the

interest of justice.

• Appeal from the RTC to the CA: The appeal is by notice of appeal under rule 41. Only

questions of fact and mixed questions of law and of fact may be raised. The RTC will transmit to

the CA the record of the case or record on appeal. The moment the CA receives the record of

the case or record on appeal, it will issue a notice to the appellant to file his appellant’s brief

within 45 days from receipt of notice.

NOTE: The appellant’s brief will contain the following:

a) Statement of the case

b) Statement of facts
 c) Statement of the issues raised

d) Assignment of errors

e) Arguments on the assigned errors

f) Relief demanded

• If the appellant’s brief is more than 20 pages, it must contain a subject index.

• A copy of the appellant’s brief will be furnished to the appellee and the appellee has also 45

days to file the appellee’s brief.

• The appellant may also file a reply brief within 20 days from receipt of the appellee’s brief.

Q: what is the period for perfecting an appeal with regards to habeas corpus?

48 hours from receipt of the judgment being appealed from.

• in a writ of kalikasan – within 15 days and the appeal is to the SC and questions of fact or

questions of law or mixed questions of fact and of law may be raised.

• in writ of amparo – the appeal is to the SC within 5 working days. Questions of fact, law or

mixed questions of fact and of law may be raised.

• in habeas data cases – appeal is to the SC within 5 working days. Questions of fact, law or

mixed questions of fact and of law may be raised.

• If the RTC is sitting as a special agrarian court, the mode of appeal is a petition for review

under Rule 42

•if the RTC is sitting as a special commercial court, the mode of appeal is a petition for review

under Rule 43.

• The instances when questions of law may be raised to the Supreme Court in a Petition for

Review on Certiorari:

a) When the conclusion is a finding grounded on conjecture or speculation

b) When there is a grave abuse of jurisdiction in the appreciation of facts

c) When the judgment is premised on misapprehension of facts

d) When the findings of facts are conflicted

e) When the findings of facts are contrary to the admissions of the parties

Q: what if you take the wrong mode of appeal?

The appeal will be dismissed.

Rule 47: Annulment of Judgment – one of the remedies against a judgment that has become

final and executory.

• The other remedies for judgment that has become final and executory are:

a) Petition for relief from judgment

b) Annulment of Judgment

c) Petition for certiorari

NOTE: annulment of judgment is only available as a remedy if remedies of motion for new trial,

appeal, petition for relief from judgment, or other appropriate remedies are no longer available

through no fault of the petitioner.

NOTE: in annulment of judgment, the correctness of the judgment is not an issue.

NOTE: This remedy may also be resorted to by a person who is not a party to the action.

Q: what are the grounds and in what time may annulment of judgment be filed?

The grounds are:

a) Extrinsic fraud – fraud committed outside the court and the fraud prevented the party

from presenting his cause of action or defense.

NOTE: this is not a valid ground if it was availed of or could have been availed of in a Motion

for new trial or a petition for relief. (because one of the grounds for MNT or petition for relief

from judgment is fraud).

b) Lack of jurisdiction – it can be lack of jurisdiction over the subject matter of the action or

over the person of the defendant.

Q: when may the petition for judgment be filed if the ground is lack of jurisdiction?
It may be filed at any time before it is barred by laches or estoppel.

NOTE: in the case of Jona v. Balangue (2013), the court held that aside from extrinsic fraud

and lack of jurisdiction, another ground for annulment of judgment is LACK OF DUE

PROCESS.

Q: what court has jurisdiction over an action for annulment of judgment?

If the judgment to be annulled is the judgment of the RTC, the court that can take

cognizance of the action is the Court of Appeals.

If the judgment to be annulled is the judgment of the MTC, the RTC that has jurisdiction.

NOTE: the petition for annulment of judgment should be a verified petition and attach the

certified copy of the judgment, final order, or resolution sought to be annulled.

Q: what will the court do if an action for annulment has been filed?

If the court finds that there is no substantial merit in the petition, the court will dismiss the

petition outright. However, the court should give a specific reason for such dismissal.

If the court finds that there is merit, the petition shall be given due course and summons

shall be served to the respondent and the procedure in the ordinary civil cases shall be

followed.

NOTE: since the procedure in ordinary civil cases shall be followed, there will be pre-trial

and reception of evidence for the second time. However, the court may refer the reception of

evidence to a member of the court or referred to the court of origin.

Example: IN the CA, there are divisions and the reception of evidence may be assigned to a

member of a division in which the case is assigned or it can be referred to the RTC. (court of

origin)
 Q: what is the effect of the judgment of the CA to the judgment rendered by the RTC which

is the subject of a petition for annulment?

The effects of the judgment are:

a) If the ground upon which the judgment is annulled is lack of jurisdiction, the entire

proceeding in the court below is set aside without prejudice to the original action being

filed in the proper court.

Example: the MTC renders a judgment and the judgment is final and executory. An action

for annulment of judgment was filed with the RTC. RTC renders a judgment and it annulled

the MTC judgment based on lack of jurisdiction. The effect of the judgment of the RTC will

set aside the entire proceeding in the MTC and without prejudice to the original action that

shall be filed with the proper court.

b) If the ground is extrinsic fraud, the court of origin may be ordered to try the case as if a

timely MOTION FOR NEW TRIAL HAS BEEN GRANTED.

Example: RTC renders a judgment that has become final and executory. CA renders a

judgment that annuls the judgment of the RTC. The RTC may be ordered to try the case

as if a timely motion for new trial has been granted.

Q: Since the ground for annulment is extrinsic fraud, what are the effects of granting the order

for new trial?

The effects are:

A) The judgment is vacated/set aside

B) The case will stand for trial de novo

C) The recorded evidence not affected by extrinsic fraud shall be deemed reproduced

without prejudice to the party presenting additional evidence.

 Some decided cases:

• santos v. santos (October, 2014) – presumptive death filed by the husband.

Q: in action for annulment of judgment, is extraneous evidence (evidence not found in the

record of the case) admissible?

If the ground is lack of jurisdiction, only evidence found in the record will be admissible.

If the ground is extrinsic fraud, extraneous evidence is admissible.

• you need to file appellant’s brief in ordinary appeals. The Court of Appeals will notify the
appellant to file his appellant’s brief within 45 days from receipt of the notice. If the appeal is
from the MTC to the RTC, the RTC will notify the appellant to file his memorandum of appeal
within 15 days. Failure to file appellant’s brief or memorandum of appeal is a ground for
dismissal.
Module 25 and 26 – Provisional Remedies and Preliminary Attachment

• these are available to the litigant for the protection and preservation of his rights pending the
main action.

• these are issued in the form of writs and processes. There should be a main action. However,
the remedies of injunction, receivership, and replevin have been allowed to exist as principal
actions in proper cases.

• these remedies are to be granted by the court where the principal action is pending. A MTC
has the power to grant a provisional remedy except SUPPORT PENDENTE LITE because a
support pendente lite, in a main action for support, is incapable of pecuniary estimation. Thus, it
is within the jurisdiction of the RTC.

Q: what are the purposes of these provisional remedies?

The purposes are:

a) To preserve and protect the rights and interests of the litigant while the main action is
pending
b) To secure a judgment that maybe rendered by the court in the main action
c) To preserve the status quo
d) To preserve the subject matter of the action

Q: what are the provisional remedies?

• Rule 57, sec. 1 – preliminary attachment

• Rule 58 – preliminary injunction

• Rule 59 – receivership

• Rule 60 – replevin

• Rule 61 – support pendente lite

• in a proper case, the court may also grant visitation rights or temporary custody of a child.

• may allow the deposit of a certain amount to be paid in an action for rescission to prevent its
dissipation.

 Rule 57 – preliminary attachment

Q: what is the lifetime of a writ of preliminary attachment?

The Rules do not provide for any definite lifetime for a writ of preliminary attachment unlike a
writ of execution. Thus, fi the main action is finished, the writ of preliminary attachment is
useless.

Q: what is a writ of preliminary attachment?

A preliminary attachment is a provisional remedy issued upon the order of the court where the
action is pending to levy upon the properties of the defendant therein, the same to be held
thereafter by the sheriff as security for the satisfaction of whatever judgment might be rendered
by the court in favor of the attaching creditor. (the underlined words are the purpose of the writ
of preliminary attachment).

Q: may the writ be extended to the property of the defendant in the possession of a third
person?

Yes, it can also extend to a property of the defendant in the hands of a third person or money
owed by such third person to the defendant. In this case, this is called a writ of garnishment.

Q: what are the kinds of attachment?

The kinds are:

a) Preliminary attachment
b) Garnishment
c) Final attachment (levy one execution)

Q: what are the grounds upon which a writ of preliminary attachment may be issued?

Sec. 1, Rule 57 provides the grounds upon which attachment may be issued – at the
commencement of the action or at any time before entry of judgment, a plaintiff or any proper
party may have the property of adverse party attached as security for the satisfaction of any
judgment that may be recovered in the following cases:

a) In an action for the recovery of specified amount of money or damages other than moral
and exemplary on a cause of action arising from law, contract, quasi-contract, delict, or
quasi-delict against a party who is about to depart from the Philippines with intent to defraud
his creditors
b) In an action for money or property embezzled or fraudulently misapplied or converted for its
own use by a public officer or an officer of a corporation, or an attorney , factor, broker,
agent, or clerk, in the course of his employment as such, or by any person in a fiduciary
capacity or for a willful violation of duty.
c) In an action to recover the possession of property unjustly or fraudulently taken or detained
or converted when the property or any part thereof has been concealed, removed, or
disposed of to prevent its being found or taken by the applicant or an authorized person.
d) In an action against a party who has been guilty of a fraud in contracting the debt or
incurring the obligation upon which the action is brought, or in the performance thereof;

e) In an action against a party who has removed or disposed of his property, or is about to do
so, with intent to defraud his creditors; or

f) In an action against a party who does not reside and is not found in the Philippines, or on
whom summons may be served by publication

Q: who may avail of the writ of preliminary attachment?

A plaintiff or any proper party.

NOTE: a property exempt from execution is also exempt from attachment. An example would be
a family home under the Family Code. Thus, if a family home is attached, you can move for the
discharge of the attachment.

Q: what are the grounds for a motion for the discharge of preliminary attachment?

The grounds are:

a) The property that was attached is exempt from execution

b) Make a cash deposit or counter-bond in court.

c) The attachment was irregularly issued or enforced

d) The attachment bond is insufficient

e) The attachment affidavit is defective

f) The attachment is excessive – the attachment will be discharged as to the excess

g) The judgment in the main case is rendered against the attaching party

Q: when is discharge of attachment not allowed?

It is not allowed when the preliminary attachment is issued upon a ground that is at the same
time the plaintiff’s or applicant’s cause of action.

Example: X v Y. X files a complaint. His cause of action is based on fraud committed by the
defendant in contracting the debt. X also files a writ of preliminary attachment based on the
same ground. Thus, Y’s property is attached. Now, Y files a motion for the discharge of the
attachment. Now, if the court will hear the motion on the discharge of the attachment, the court
will also hear the merits of the plaintiff’s cause of action. Thus, it would seem that the court is
trying already the cause of action of X, which is prohibited.
Q: how may the plaintiff or proper party apply for the issuance of a writ of preliminary
attachment?

It may be applied for by way of a motion or the application for the issuance of a writ of
preliminary attachment may be incorporated in the claim itself.

The application must be accompanied by an affidavit containing the following:

a) The affidavit must show a sufficient cause of action

b) The affidavit must state the ground as stated in section 1

c) The affidavit must state that there is no other sufficient security for the claim sought to be
enforced by the action

d) The affidavit must state the amount due to applicant or the value of the property that he
is entitled to recover is as much as the sum for which the order is granted above all legal
counterclaims

e) The bond must be executed to the adverse party in the amount fixed by the court
conditioned that the applicant or the plaintiff will pay all costs which may be adjudged or
all damages sustained by reason of attachment if the court shall finally adjudge that the
applicant is not entitled to the attachment

Example of “e”: X files against Y. The application for writ of preliminary attachment was
incorporated in the complaint. There is an affidavit of attachment and bond. The purpose
of the bond is to indemnify the defendant and to pay all damages that the defendant may
suffer as a result of the attachment if the court finally finds that the plaintiff is not entitled
to the attachment applied for.

• writ of preliminary attachment may be issued ex-parte or on motion or with notice. The
ex-parte issuance of a writ of preliminary attachment may be justified by the fact that the
defendant may abscond with his property or conceal his property with the intent to
defraud his creditors.

• a writ of preliminary attachment may be issued ex-parte, even before the defendant is
served with summons.

• even if the writ is issued ex-parte, it cannot be enforced unless it is preceded or

contemporaneously accompanied by service of summons upon the defendant together
with the copy of the complaint, order of attachment, writ of attachment, affidavit of
attachment, and so on.
Rule 59 – Receivership

• receivership may be a principal action or ancillary remedy.

NOTE: if you want to know if receivership should be appointed, you should refer to sec.1, rule
59. Thus, there should be a verified petition and that one or more receivers of the property
subject of the action may be appointed by the court where the action is pending or by the CA or
SC in the following cases:

a) When it appears that from the verified application and such other proof as the court may
require, that the party applying for the appointment of a receiver has an interest in the
property or fund which is the subject of the action, and that such property or fund is in
danger of being lost, removed, or materially injured unless a receiver be appointed to
administer and preserve it.
b) When it appears in an action by the mortgagee for the foreclosure of the mortgage that
the property is in danger of being wasted or dissipated or materially injured and that its
value is probably insufficient to discharge the mortgage debt or that the parties has so
stipulated in the contract of mortgage.
c) After judgment to preserve the property during the pendency of an appeal or to dispose
of it according to the judgment or to aid execution when the execution has been returned
and satisfied or the judgment-obligor refuses to apply his property in satisfaction of the
judgment or otherwise to carry the judgment into effect

d) Whenever in other cases it appears that the appointment of a receiver is the most convenient
and feasible means of preserving, administering, or disposing of the property in litigation.

During the pendency of an appeal, the appellate court may allow an application for the
appointment of a receiver to be filed in and decided by the court of origin and the receiver
appointed to be subject to the control of said court.

NOTE: a receiver is not an agent or representative of any party to the action. His duty is only to
preserve the property; he is not acting for the benefit of the parties because the receiver is an
officer of the court exercising his function in the interest of neither the plaintiff nor the defendant
but for the common benefit of all the parties.

Q: may a court appoint more than one receiver?

Yes.

• the application for the appointment of the receiver may be denied or a receiver who has been
appointed may be discharge when the adverse party files a BOND executed to the applicant, to
the effect that such party will pay to the applicant all damages that he may suffer by reason of
the acts, omissions, or other matters specified as grounds in the application.
Rule 60 – Replevin

• replevin only applies to MOVABLE/PERSONAL PROPERTY.

• replevin may be the main action or provisional remedy.

• replevin may be partly in rem or partly in personam. It is in rem if it is principally for the claim
for the recovery of personal property. AS to damages, it is in personam.

Q: at what point in the proceedings may replevin be applied for?

At the commencement of the action or at any time before the defendant files his answer.

Q: how do you apply for the issuance of the writ of replevin?

1) Execute an affidavit to your complaint if you are doing it at the commencement of the

action

2) If you are not doing it at the commencement of the action, file the complaint without the

affidavit and before the defendant files his answer, apply for the issuance of writ of

replevin.

NOTE: The affidavit must contain the following:

a) That the applicant is the owner of the property claimed, particularly describing it or if he

is not the owner, he is a person entitled to the possession of the property.

b) That the property is wrongfully detained by the defendant, alleging the cause of the

detention according to the best of his knowledge, information, or belief.

c) That the property has not been distrained or taken for tax assessment or payment of fine

or ceased under execution, preliminary attachment, or in custodia legis or if so seized, it

is except from such seizure.

d) The actual market value of the property

The applicant must also give a bond, executed to the adverse party in double the value of the
property as stated in the affidavit aforementioned, for the return of the property to the adverse
party if such return be adjudged, and for the payment to the adverse party of such sum as he
may recover from the applicant in the action. 
• upon filing of the affidavit and bond, the court shall issue the writ of replevin requiring the sheriff
to take the property in to his custody. However, the Rule requires the sheriff to keep the property
for 5 days in his custody after he has taken it from the defendant.

Q: suppose without waiting for 5 days, he delivers the property to the plaintiff?

The delivery would be irregular because he is required to keep it for 5 days. The purpose of

keeping it is because the defendant might require that it be returned to him.

Q: may the defendant require the redelivery of the property to him by proving his title- by

showing that he is the person who owns the property?

No, the defendant cannot require the return of the property by proving his title. If the defendant

wants the redelivery, he can object to the sufficiency of the bond. Thus, if the bond is insufficient,

there shall be redelivery. The other option would be the filing of counter-bond (re-delivery bond).

The amount of the re-delivery bond shall be double the market value of the property as stated in

the applicant’s affidavit.

Q: suppose within 5 days from the time the property was seized from the defendant, the

defendant does not object to the sufficiency of the bond or does not file his redelivery bond, what

will the sheriff do?

The sheriff shall deliver the property to the plaintiff.

Q: suppose the property is claimed by a third party claimant? What is his remedies?

His remedies are:

a) File a third party claim

b) Action against the bond

c) Separate action to litigate his claim of ownership

d) He may intervene in the action

NOTE: the judgment rendered in an action for replevin must include a determination who

between or among the parties has a better right of possession and the value of the property.

Also, he must render a judgment for the delivery of the property to the person entitled to it or pay

its value in case delivery cannot be made.

Q: in what are may the writ of replevin be enforced?

A writ of replevin, whether issued by the MTC or the RTC, may be served and is enforceable

anywhere in the Philippines.

Rule 61 – Support pendente lite

Q: When and how is support pendete lite filed?

At the commencement of the proper action or proceeding or at any time prior to judgment or final
order.

Q: can Support pendente lite be asked in a criminal case?

Yes, provided the following requisites are present:

a) A child is born to the offended party as a result of an offense

b) A civil liability arising from the criminal action includes support for the child
c) The civil action has not been waived, reserved, or instituted prior to the filing of the criminal
action.

Q: what are the steps to be followed?

a) Upon the filing of the verified application, the application will be served on the adverse party
and the adverse party shall have 5 days to comment on the application unless a different
period is fixed by the court.

Q: suppose the court issues an order for support pendente lite?

If the adverse party fails to comply, the court shall motu proprio issue an order of execution. This
is without prejudice to the liability of the adverse party for contempt.

Q: what is the remedy if the court finds that the applicant is not entitled for support?

If the court finds that the person who has been providing support is not liable to give support, it
shall order the recipient to return the amounts paid plus interest from dates of actual payment. If
the recipient fails to return, the person who provided for support may file a separate action and
seek reimbursement from the person who is really obliged to give support to the applicant.

e)
Rule 62 – Interpleader

• in interpleader, there are several claimants. They have conflicting claims over the same
subject matter.

Q: when is interpleader proper?

Whenever conflicting claims upon the same subject matter are made against a person who
claims no interest whatever in the subject matter, he may bring an action against the conflicting
claimants to compel them to interplead and litigate their claims among themselves.

Example: X has in his possession a money or property. A and B have multiple claims over the
property or money in the possession of X. However, X has no interest over the money or
property in his possession. Thus, for X to know who among A and B must he deliver the
property, X must file an action of interpleader against A and B. The purpose of such action is to
compel A and B to litigate their conflicting claims between themselves.

Q: what are the steps in the filing of an interpleader?

(refer to the example above)

a) X will file a complaint against A and B (the claimants).

b) Upon the filing of the complaint, the court shall issue an order requiring the defendants
to interplead with one another.
c) the court may order the subject matter to be paid or delivered to the court.
d) Summonses will be issued to the claimant together with the copy of the order and of the
complaint
e) There shall be a pre-trial, presentation of evidence, etc. (like in ordinary civil actions).
Rule 63 – Declaratory relief and similar remedies

Q: what is a declaratory relief?

It is a special civil action brought before the Regional Trial Court by a person who is interested
in a deed, will, contract, or other written instrument or whose rights are affected by a statute,
executive order, regulation, or ordinance or any other government regulation before the breach
thereof asking the court to determine any question of construction or validity arising therefrom
and for a declaration of his rights and duties thereunder.

NOTE: what may properly be addressed by a petition for declaratory relief is exclusive (it is
exclusively for contract, statute, executive order, regulation, or ordinance or any other
government regulation). Therefore, an action for declaratory relief to determine the import of a
judgment or to resolve doubts regarding citizenship would not be proper.

Q: What if there is no ambiguity as to the contract or statute but a petition for declaratory relief is
filed to construe the validity of the statute?

The court will refuse to act if the contract or the statute is clear and there is no doubt as to its
meaning.

• sec. 1, Rule 63 – you can find in the 2nd paragraph what may be brought as a civil action for
declaratory relief. These are:

a) An action for reformation of an instrument;

b) An action to quiet title or remove clouds from a real property
c) An action to consolidate ownership under Art. 1607 of the Civil Code.

Example: P files a complaint against D for the quieting of title to a real property. The real
property has an assessed value of P 10,000. P filed the action in the RTC. The defendant file a
motion to dismiss on the ground of lack of jurisdiction since MTC has jurisdiction over the real
property because of its assessed value. Thereafter, P counter-argued that an action for quieting
of title is a remedy that may be filed under Rule 63 to the RTC (under sec.1). The RTC
dismissed the case for lack of jurisdiction. QUESTION: is the dismissal of the case correct?
Answer: Yes, because what will govern should be the law on jurisdiction. Thus, the actions
mentioned in the 2nd paragraph of sec.1 should be governed by the law pertaining to the
jurisdiction of the courts.

NOTE: if during the pendency of the action for petition for declaratory relief, a violation occurs
(kunware the defendant violated the contract which is brought to the court for interpretation),
then the action for declaratory relief is automatically converted into an ordinary civil action.

Q: who are the parties in a petition for declaratory relief?

All persons who have or claim an interest which would be affected by the declaration shall be
made parties to the action. If it involves the validity of a statute, executive order, regulation, or
any other government regulation, the Solicitor-General shall be notified and is entitled to be
heard upon such question.
If a local ordinance is also involved, the corresponding City or Municipal Attorney shall be
notified. Furthermore, if it is alleged in the petition that the ordinance is unconstitutional, the
Solicitor-General shall be notified and heard.

NOTE: the purpose of the remedy of declaratory relief is for the court to interpret or determine
the validity of a written instrument and seek a judicial declaration of the party’s rights or
obligations thereunder.

Q: what are the requisites for petition for declaratory relief?

The following are the requisites:

a) There must be a justiciable controversy

b) The judicial controversy is between two persons whose interest is adverse
c) The party seeking the relief has a legal interest in the controversy
d) The issue is ripe for judicial determination ( this means that a litigation involving the
statute, the written contract is inevitable).

Example: X is the lessor and Y is the lessee. They have a lease contract involving a
commercial building. The lease contract seems to be vague because of some clauses.
Thus, Y did not pay the rent. Because of non-payment, Y violated the contract. The non-
payment prompted X for declaratory relief asking the court to interpret the lease contract
and for the court to declare the rights and obligations of the parties under the lease contract.
QUESTION: may an action for declaratory relief be filed even if there was violation of
the contract? ANSWER: NO, petition for declaratory relief can only be availed of if
there is no violation to the contract.

NOTE: Galicto v Pres. Benigno Aquino (2012 case). Galicto assails the validity of an
executive order.

Q: in a petition for declaratory relief, is a third party complaint allowed?

NO. However, a compulsory counterclaim is allowed.

Rule 64 – review of judgments or final order of the COMELEC and COA

• The COMELEC AND COA renders a judgment or issues final order. The party aggrieved
by the judgment may bring a petition for review on certiorari under rule 65 with the SC to
review the judgment of the COMELEC or COA. However, the period for filing it is only 30
days from notice of the judgment or final order sought to be reviewed.

• When it comes to the COMELEC, what may be brought by way of certiorari to the SC is
the judgment or final order issued by the COMELEC EN BANC.
 Rule 65 – Certiorari, prohibition, mandamus

Q: what is a certiorari?

It is a special civil action against a tribunal, board, or officer exercising judicial or quasi-
judicial function which is alleged in a verified petition filed by an aggrieved party to have
acted without jurisdiction or in excess of its jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction and there is no appeal or any plain, speedy, and
adequate remedy in the ordinary course of law, praying for a judgment annulling or
modifying the proceedings of such tribunal, board, or officer.

NOTE: certiorari may still prosper notwithstanding the presence of appeal when appeal is not an
adequate remedy.

Q: is Petition for Review on Certiorari the same with Petition for Certiorari?

No, they are not the same. A petition for review on certiorari is a mode of appeal while a petition
for certiorari is a special civil action.

A petition for review on certiorari is governed by Rule 45. A petition for certiorari is governed by
Rule 65.

Q: what are the distinctions between rule 45 and 65?

The following are the distinctions:

a) In Rule 65, the issue is whether the respondent lower court or tribunal acted without or in
excess or with grave abuse of discretion (the issue is jurisdictional). In Rule 45, the issue
is based on a question of law.
b) In 65, it involves an interlocutory order prior to appeal or judgment. In 65, it involves a
judgment or final order
c) In 65, it is filed not later than 60 days from notice of the judgment or resolution sought to
be assailed or denial of a motion for reconsideration if one is filed. In 45, the period for
filing is 15 days from notice of the judgment subject of the petition.
d) In 65, it does not stay the order or resolution which is the subject of the petition unless a
Temporary Restraining Order or Preliminary Injunction is issued. In 45, it stays the
judgment or final order which is the subject of the petition.
e) In 65,the tribunal or court whose order or proceeding is being assailed is impleaded as a
respondent. In 45, the petitioner/respondent are the original parties in the case and the
lower court is not impleaded.
f) In 65, a motion for reconsideration must be filed prior to the filing of the petition itself. In
45, the petition does not require the filing of a motion for reconsideration prior to the filing
of the petition itself.

NOTE: The reason for the necessity of filing a motion for reconsideration before Rule 65
may be availed of is that a Motion for Reconsideration maybe an adequate and speedy
remedy in the ordinary course of law.
 g) In 65, the court which the petition is filed is exercising original jurisdiction. In 45, the
court in which the petition is filed is exercising appellate jurisdiction.
h) In 65, the petition may be filed in the Supreme Court, Court of Appeals, and the Regional
Trial Court. In 45, the petition may only be filed in the Supreme Court.

Q: what are the instances when a Petition for Certiorari may be filed even without first filing a
Motion for Reconsideration?

The instances are:

A) When the order subject of the petition is a patent nullity because the court that issued it
has no jurisdiction
B) The questions presented in the petition have been raised and passed upon by the lower
court or tribunal
C) There is an urgent necessity for resolution
D) Where a motion for reconsideration will be useless
E) When the petitioner is deprived of due process and there is an extreme urgency for relief
NOTE: In criminal cases, relief from order of arrest is urgent and grant of relief by trial
court is not probable.
F) The proceedings in the lower court are a nullity for lack of due process
G) The issue is purely of law and public interest is involved.

• Prohibition – is a special civil action against a tribunal, corporation, board, or person exercising
judicial, quasi-judicial, or ministerial functions which is alleged by an aggrieved party in a verified
petition to be acting or is about to act without jurisdiction or in excess of its jurisdiction or with
grave abuse of jurisdiction amounting to lack or excess of jurisdiction and there is no appeal or
any plain, speedy, and adequate remedy in the ordinary course of law, praying that judgment be
rendered commanding the respondent to desist from further proceeding in the action.

Q: how do you distinguish prohibition from certiorari?

The following are the distinctions:

a) In certiorari, the purpose is to correct the respondent’s act by annulling the proceedings.
In prohibition, the purpose is to prevent the commission of an act by stopping the
proceeding to prevent the respondent from committing the act complained of by stopping
the proceeding
b) In certiorari, the assailed acts have already been done. In prohibition, the assailed acts
are about to be done or are being done.
c) In certiorari, the respondent tribunal performs judicial or quasi-judicial functions. In
prohibition, the respondent tribunal performs judicial, quasi-judicial, or ministerial
functions.
Q: what is meant by “judicial functions”?

Judicial function is to determine what the law is. Thus, you exercise judicial function if your
office requires you to determine what the law is and what are the legal rights of the parties with
respect to the matter in controversy.

Q: what is meant by quasi-judicial?

It is quasi-judicial if the judicial act of determining what the law is performed by one who is not a
judge.

Q: what is meant by “grave abuse of discretion”?

Grave abuse of discretion is present when it is capricious and whimsical exercise of judgment
as may amount to lack or excess of jurisdiction.

• Mandamus – is a special civil action against a tribunal, corporation, board, or officer alleged in
a verified petition filed by an aggrieved party to have unlawfully neglected the performance of an
act which the law specifically enjoins as a duty and enjoyment of a right or office to which the
other is entitled and there is no plain, speedy, and adequate remedy in the ordinary course of
law and the relief demanded is to command the respondent to do the act required to be done to
protect the rights of the petitioner.

• There are two aspects of mandamus. These are:

a) The respondent unlawfully neglects the performance of an act which the law specifically
enjoins as a duty resulting from an office, station, or trust.
b) The respondent unlawfully excludes another from the use and enjoyment of a right or
office to which such other is entitled.

NOTE: mandamus is available only to compel the performance of a ministerial act or duty. It
is not availed to compel the performance of a discretionary duty.

Q: when is an act deemed ministerial?

An act is ministerial if an officer or tribunal performs in a given state of facts in a prescribed

manner in obedience to the mandate of legal authority without regard to the exercise of his
own judgment.

NOTE: if the officer is given the authority to decide how or when to act or he has to exercise
his judgment on a certain matter, the act is not ministerial but DISCRETIONARY.

• Continuing Mandamus – directs the respondent to perform an act or series of acts until the
judgment is fully satisfied.

Q: how does mandamus differ from certiorari and prohibition?

The distinctions are:

a) In mandamus, the respondent is exercising ministerial functions and he has unlawfully
neglected to perform this duty or the respondent has excluded a party from occupying or
enjoying privilege or a right to which that party is lawfully entitled. The purpose of
mandamus is to compel the respondent to perform an act. In certiorari, the respondent
is exercising judicial or quasi-judicial functions. In prohibition, the respondent is
exercising judicial, quasi-judicial or ministerial functions.

Q: when to file a mandamus?

60 days from notice of the assailed judgment or resolution but if a motion for
reconsideration is filed and is denied, the 60 days shall be counted from the notice of
denial of the motion for reconsideration.

If the court finds the petition to be sufficient in form and in substance, it shall issue an
order directing the respondent to file his comment and not a motion to dismiss.
 Rule 66 – Quo Warranto (by what authority)

Q: what is a quo warranto?

It is a special civil action to determine the right to the use or exercise of a public office or

franchise and to oust the holder from its enjoyment if his claim is not well-founded or he has

forfeited his right to enjoy the privilege.

• THE ACTION MAY BE COMMENCED FOR THE GOVERNMENT BY THE SOLICITOR-

GENERAL OR BY A PUBLIC PROSECUTOR OR BY A PERSON CLAIMING TO BE

ENTITLED TO THE PUBLIC OFFICE OR PUBLIC POSITION ALLEGED TO HAVE USURPED

OR UNLAWFULLY HELD OR EXERCISED BY ANOTHER PERSON.

• quo warrant also applies to a public officer who performs an act that constitutes a ground for

the forfeiture of his office or against an association that acts as a corporation within the

Philippines without legally being incorporated or without a lawful authority to act.

Q: against whom may a petition for quo warranto be instituted?

Against:

a) A person who usurps, intrudes into, or unlawfully holds or exercise a public position,

office or franchise ;or

b) against a public officer who performs an act that constitutes a ground for the forfeiture of

his office or

c) against an association that acts as a corporation within the Philippines without legally

being incorporated or without lawful authority to act.

Q: who can institute a quo warranto proceeding?

They are:
 a) An individual can bring a quo warranto action in his name when he is claiming to be

entitled to a public franchise or position alleged to have been usurped or exercised by

another

NOTE: a quo warranto may be commenced by the Solicitor-general or public prosecutor

when directed by the President or upon a complaint or otherwise he has good reason to

believe that a cause can be established by proof.

NOTE ALSO: If by a complaint, a request for indemnity of expenses and costs may be

required to be deposited.

Q: in what court may quo warranto be filed?

IT can be brought in the RTC, CA and SC.

If it is brought before the RTC, the RTC must be exercising jurisdiction over the area where

the respondent resides. However, if the Solicitor-General commences the action, he may

bring it before a RTC in Manila or the CA or the SC.

Q: when is quo warranto filed?

Within 1 year from accrual of the cause of action arising from ouster or right to hold

position.

Q: who are the parties to the petition? And what should be alleged in the petition?

When the action is against the person usurping a public office, position or franchise, the petition
shall set forth the name of the person who claims to be entitled thereto with the averment of his
right to the same and that the respondent is unlawfully in possession thereof.

• all persons who claim to be entitled to the position may be made parties and their respective
rights may be determined in the same action.

• when a judgment finds the respondent guilty of usurping, intruding, or unlawfully holding or
exercising a public office, position or franchise shall state that he be OUSTED and altogether
excluded from that office and that the rights of the petitioner may be determined as justice may
require.
Q: what is the distinction between mandamus and usurpation?

The distinctions are: (di nya dinistinguish, rekta example agad).

Example: X is occupying a government position. X was removed from such position. The one
who removed him is Y. Now, what is the proper action that X may file against Y? ANSWER: IF
Y is not contesting the right to the same office, the action that X must file against Y is
MANDAMUS because Y unlawfully excluded X from the right or enjoyment to that office.
(sec.3 of Rule 65 (MANDAMUS) provides that “xxx unlawfully excludes another from the
use or enjoyment of a right or office to which such other is entitled xxx”.

NOTE in the example given above: If Y intruded the public office by usurpation, X must file a
petition for quo warranto against Y.

Q: how do you distinguish quo warranto from election protest?

The distinctions are:

a) In quo warranto, the issue is the disqualification or ineligibility of the proclaimed

candidate, the petition is quo warranto. On the other hand, if the issue is the irregularity
in the election, it is an election protest.
b) IN quo warranto, if the respondent is found to be ineligible, the petitioner does not
occupy the position.

Q: what are the distinctions between quo warranto involving an elective position and quo
warranto involving an appointive position?

The distinctions are:

a) IN QW involving elective position, the issue is the eligibility of the candidate elected. In
QW involving appointive position, the issue is the legality of the appointment.
b) IN QW involving elective position, if the respondent is found to be ineligible, the second
highest vote getter, even if eligible cannot be declared elected. In QW involving
appointive position, the resolution or decision shall determine who between the two of
them is legally appointed and he will be declared entitled to occupy the office.

Q:what are the distinctions between quo warranto and impeachment?

The distinctions are:

A) QW grants the relief of ouster. In impeachment, the official subject of the impeachment
proceeding will be removed from office.
B) QW is the remedy to determine a person’s right or title to a public office and to oust him
from its enjoyment. In Impeachment, it is the process to determine whether the public
officer committed any impeachable offense (like culpable violation of the constitution,
treason, bribery, graft and corruption, betrayal of public trust, or other high crimes).
C) QW is a judicial proceeding. Impeachment is a political process undertaken by the
legislature.
NOTE: Impeachment only applies to a limited number of officials because only
impeachable officials may be subject to impeachment proceeding. Quo warranto can
apply to anyone.
 Rule 67 – Expropriation

Q: what is expropriation?

It is the taking of private property for public use or purpose upon the payment of just

compensation.

Q: how is the power of eminent domain exercised?

It is exercised through expropriation.

Q: What is “public purpose”?

Public purpose which will justify expropriation of property generally means “such activity

which will serve as convenience, safety, welfare, advantage, or benefit to the entire

community and not to a particular individual or class or group of persons”.

Q: how is expropriation exercised?

by filing a verified complaint. The verified complaint shall state with certainty the right and

purpose of expropriation describing the property sought to be expropriated and joining or

impleading as defendants all persons claiming ownership or possession over the property or

any part of the property.

Q: what can be expropriated?

All properties, real or personal, may be expropriated except MONEY.

Q:may a local government unit (LGU) exercise expropriation?

Yes, but subject to the following requisites:

a) An ordinance must be enacted authorizing the local chief executive to exercise the

power of eminent domain

 NOTE: IT SHOULD BE AN ORDINANCE AS PROVIDED BY THE LOCAL

GOVERNMENT CODE. THUS, if the enactment is a resolution, it shall be void, and

therefore, there can be no expropriation.

b) Its purpose is for public use, purpose, or welfare, or for the benefit of the poor and the

landless.

c) There must be payment of just compensation

d) There must be a valid and definite offer was previously made to the owner but the offer

was not accepted

Q: where will you file the verified complaint for expropriation?

It shall be filed with the RTC regardless of the assessed value or value of the property being

expropriated.

Procedure of Expropriation proceeding:

a) File a verified complaint

b) Summons will be served on the defendant

c) The defendant may file a Manifestation stating that he has no objection or he has no

defense to the action. Or, he may file an ANSWER stating all objections and defenses to

the taking of his property,

NOTE: in an action for expropriation, counterclaim, cross-claim, third party complaint are not

allowed in the answer or any subsequent pleading.

Q: what if the defendant fails to file an answer, may he be declared in default?

No, the none filing of an answer does not render the defendant in default and it does not bar

him from presenting evidence regarding the just compensation for his property.
Q: Suppose the plaintiff (the one seeking the expropriation) would like to take possession of

the property immediately?

Yes, if he deposits with an authorized government depositary (like Land Bank) an amount

equal to the assessed value of the property for purposes of taxation.

However, if the plaintiff is a LGU, the LGU may take possession if he deposits with the

COURT an amount equivalent to 15% of the fair market value of the property based on the

current tax declaration.

If the expropriation involves a government infrastructure project under RA 8974 (right of

way), the plaintiff seeking to expropriate may take immediate possession upon payment to

the property owner upon filing of the complaint of an amount equivalent to 100% of the value

of the property based on the ZONAL VALUE of the property.

NOTE: if the court finds that the plaintiff has the right to expropriate, the court shall issue an

ORDER OF EXPROPRIATION, otherwise, the court will dismiss the case. (THE ORDER OF

DISMISSAL OR ORDER OF EXPROPRIATION IS APPEALABLE).

NOTE: THE MOMENT AN ORDER OF EXPROPRIATION IS EXECUTED, THE

PROCEEDING SHALL GO TO THE SECOND STAGE REGARDLESS OF THE APPEAL.

Q: what is the 2nd stage?

The determination of just compensation. The court shall appoint not more than 3

commissioners to determine just compensation.

Q: can the plaintiff dismiss the complaint or discontinue the case if he realizes that he does

not need the property anymore?

No, the plaintiff cannot dismiss or discontinue the case except on terms that the court

deems just and equitable.

Q: suppose the plaintiff has made the deposit or payment (now he can take possession of

the property) but the defendant appeals from the order of expropriation. May the right of

plaintiff to take possession of the property be delayed because of the appeal?

No, the right of the plaintiff to enter upon the property cannot be delayed by virtue of an

appeal. However, if on appeal, the appellate court determines that no right of expropriation

exists, then the court shall order the RTC to enforce restoration of the property and

determine the damages that the defendant has sustained.

• just compensation is the full and fair equivalent of the property sought to be expropriated

considering the cost of acquisition, current value of the properties, actual or potential uses,

and in case of lands, their size, shape and location.

• the land that was expropriated shall not revert to the owner if the acquisition is in fee

simple and unconditional. However, if the land that is expropriated is subject to the condition

that if the public use is abandoned or ended, the title will revert to the former owner and the

former owner will reacquire the land.

Rule 68 – foreclosure of real estate mortgage

• the venue of the action is where the land is situated. However, if the foreclosure action

involves several parcels of land and are located in different provinces but there is only one

mortgage contract involving these parcels of land, then the foreclosure may be instituted or

may be filed in any place where one of the parcels of land is located and the judgment that

the court may render may be executed in the other provinces.

Q: against whom should the complaint be filed?

The defendants should be the debtor, the mortgagor, if the debtor is not the mortgagor

himself and against all persons claiming an interest in the property that was mortgaged

subordinate in right to that of the mortgagee such as the 2nd mortgagee, subsequent

attaching creditor, subsequent purchaser, if any. (the 2nd mortgagee, subsequent attaching

creditor and subsequent purchaser are necessary party only. Thus, they need not be

impleaded in the action).

NOTE: if they are not impleaded, the equity of redemption shall remain un-foreclosed. Thus,

they may exercise their equity of redemption even after confirmation of sale.

Q: what will the court do if it finds for the plaintiff-mortgagee?

1) The court will ascertain the amount due the plaintiff

2) The court will render judgment (this is called judgment on foreclosure and this is

appealable) for the sum so found due and it will order that the amount so found due shall

be paid by the adverse party (the mortgagor-debtor) to the court or to the judgment-

obligee within a period of not less than 90 days nor more than 120 days from entry of

judgment.
 NOTE: in case of failure to pay, the property will be sold at public auction (Foreclosure

sale).

Q: what do you call the period of “not less than 90 days nor more than 120 days from

entry of judgment within which the mortgagor-debtor may pay into the court or to the

judgment-obligee the amount so found due”?

It is called the mortgagor’s equity of redemption. The mortgagor-debtor may exercise its

equity of redemption within a period of 90 days nor more than 120 days from entry of

judgment.

NOTE: The mortgagor may still exercise its equity of redemption even after 120 days

provided the sale has not been CONFIRMED.

Q: suppose the debtor exercised its equity of redemption, what will happen to the

proceedings?

The foreclosure proceedings shall end.

Q: suppose the debtor fails to exercise its equity of redemption?

If no payment is made, the judgment-obligee will file a motion for the sale of the

mortgaged property. If the court grants the motion, the court will issue an order for the

sale of the mortgaged property in the manner and under the provisions stated in Rule 39

(foreclosure sale).

• After the sale of the mortgaged property, the judgment-obligee will file a motion in court for

the confirmation of the sale. If the court grants the motion, the court will issue an order

confirming the sale. The order if it has become final shall be registered in the office of the

Register of Deeds and the purchaser in the foreclosure sale may take possession. If there

are occupants to the property mortgaged, his remedy is to obtain a WRIT OF

POSSESSION.
NOTE: the motion for confirming the sale is a litigious motion.

Q: may the mortgagor still exercise his equity of redemption despite the sale of the

property?

Yes, provided the court has not yet issued an order confirming the sale. However, if

the sale is confirmed, the mortgagor may not exercise its equity of redemption.

As to the necessary parties (subsequent mortagee, subsequent attaching creditor,

subsequent purchaser) if they were not impleaded as parties, they are not bound by

the judgment and thus, they can still exercise their equity of redemption even after

the finality of order confirming the sale because their equity of redemption remains

un-foreclosed.

Q: what are the distinctions between equity of redemption and right of redemption?

The distinctions are:

A) equity of redemption is the equitable right of the mortgagor to redeem the property that

was mortgaged. The right of redemption is the statutory right of the mortgagor to

redeem.

B) Equity of redemption is available before the auction sale while the right of redemption is

available after the foreclosure sale.

C) Equity of redemption Is available only in judicial foreclosure of mortgage. Right of

redemption is only available in extra-judicial foreclosure. However, right of redemption is

allowed as an exception in judicial foreclosure if the mortgagee is the Philippine National

Bank or a bank, or a banking institution.

D) In equity of redemption, the period for it to be exercised is within 90 days but not more

than 120 days from entry of judgment. In right of redemption, the right is to be exercised

within one year from the date of registration of the sheriff’s certificate of sale.

NOTE: if the mortgagor is a juridical person, the right to redeem must be exercised until

but not after the registration of the certificate of sale which is, in no case, shall be more

than 3 months after the foreclosure, whichever is earlier.

NOTE: under Philippine General Banking Law, it allows a 1 year period of redemption.

NOTE: once the confirmation of sale occurred, the confirmation of the sale shall operate

to divest the rights in the property of all the parties to the action and to vest the rights in

the purchaser, subject to such rights of redemption as may be allowed by law.

• upon finality of the order of confirmation or upon expiration of the period of redemption

if allowed by law, the purchaser at the foreclosure sale is entitled to possession and the

purchaser may secure a writ of possession from the court ordering the sale.

NOTE: if it is an extrajudicial foreclosure, the sheriff will issue a certificate of sale. This

certificate of sale will be registered, and from the time of its registration, the mortgagor

will have 1 year to exercise his right of redemption. If the right of redemption is not

exercised, the Sheriff will issue a final certificate of sale and that sale shall be registered

with the register of deeds.

In judicial foreclosure, what shall be registered is the order of confirmation.

Q: Suppose at the foreclosure, there is a deficiency judgment. The proceeds of the sale

would not be enough to satisfy the judgment obligation. What will happen?

Upon filing of the motion, the court shall render a judgment against the defendant for the

balance which may be the subject of execution.

Rule 69 - Partition

• In partition, there must be co-ownership. The object of the partition is to divide and assign a

thing that is held in common among those to whom it may belong. The remedy of partition may

be availed of regardless if it involves real property, personal property, or both real and personal

property.

Q: who may file the action for partition?

A person who claims to have an interest over a real property may file an action for partition and

in his complaint, he will set forth the nature and the extent of his ownership and the description

of the property, joining as defendants all other persons who claim to be co-owners over the

property.

NOTE: a partition and partition with accounting is in the nature of a QUASI-in-rem action.

Q: what are the steps in partition?

The steps in judicial partition are:

a) A complaint shall be filed. There shall be a pre-trial, trial, just like in ordinary civil action

b) After trial, if the court finds that the plaintiffs are entitled to partition, then the court shall

issue an order of partition, directing the parties to partition and divide the property.

(NOTE: THE ORDER OF PARTITION IS APPEABLE. IT is an action that allows multiple

appeal)

• if no appeal is taken from order of partition and the parties has agreed as to how the

property shall be partitioned, then the parties may undertake the partition among

themselves. They will execute a PROJECT OF PARTITION and submit it to the court for

confirmation/approval.
 • if they fail to agree on how to partition the property, the court shall appoint not more

than 3 commissioners commanding them to partition the property among the parties.

• the commissioners will submit their report to the court and the parties shall have 10

days to file their objections to the findings of the commissioners.

• the court may approve the report of the commissioners and the court shall render a

judgment based on the report. (the judgment is called “judgment of partition”).

Q: within what time may a party appeal from the order of partition,etc.?

30 days. There should be a record on appeal.

Q: suppose the property is not capable of physical division, what will the court do?

The court shall order the property to be assigned to one of the parties willing to take the

same, provided, he takes the other parties’ such amount as may be determined by the

commissioners. HE may also sell the property and the proceeds of the sale shall be

divided among the parties.

NOTE: The plaintiffs in JUDICIAL PARTITION are the co-owners who wants to partition the co-

owned property. The defendant shall be the co-owners who does not want to partition.
Rule 70 – Forcible Entry and Unlawful Detainer and 1991 Revised Rules on Summary
Procedure

Q: what are the two ejectment cases (accion interdictal)?

They are:

a) Forcible entry – is an action brought when a person is deprived of possession of a land

or building by force, intimidation, stealth, strategy, or threat

NOTE: Force – is present when the defendant unlawfully enters into a property

b) Unlawful detainer – is an action brought by a lessor, vendor, vendee, or any other

person against whom possession of a land or building is unlawfully withheld after
expiration of the right to hold possession by virtue of a contract, express or implied.

Q: what are the distinctions between forcible entry and unlawful detainer?

The distinctions are:

a) In forcible entry, possession of the real property by the defendant is unlawful from the
beginning. In unlawful detainer, defendant’s possession of the property is inceptively
lawful. (lawful at the beginning but became unlawful at a later time)
b) In forcible entry, previous demand to vacate is not required. In unlawful detainer,
demand to vacate is required except if the ground is EXPIRATION OF THE TERM OF
THE LEASE.

NOTE: the demand to vacate in unlawful detainer is necessary if the ground is failure to pay the
rent or failure to comply with the conditions of lease. However, If the ground is expiration of the
term of the lease, demand to vacate is not necessary.

c) In forcible entry, plaintiff must alleged and prove that he was in prior physical possession
until he was deprived of possession by the defendant by means of FISTS (force,
intimidation, strategy, threat, or stealth). In unlawful detainer, plaintiff need not be in prior
physical possession.
d) In forcible entry, the one year period to institute the action is counted from the date of
actual entry by the defendant into the property. In unlawful detainer, the one year period
is counted from the last demand.

NOTE: if defendant’s possession is by mere tolerance, then there is an implied promise that the
defendant will vacate the property upon demand.

Q: where should you file accion interdictal?

IN THE MTC WHERE THE PROPERTY IS SITUATED. Even if there is a demand for payment
of rent lets’ say 750k, the MTC still has jurisdiction because the claim for payment of rent is
merely incidental to the main cause of action which is possession.

NOTE: if the judgment in accion interdictal cases is in favor of the plaintiff, it shall include the
restitution of the property and also the sum due as rent or reasonable rental value for the use of
the property. It may also include payment of attorney’s fees and costs.

NOTE: if the judgment of the court in accion interdical cases is against the defendant, the
judgment is subject to immediate execution upon motion by the plaintiff notwithstanding that it is
not yet final. The judgment will become final after 15 days from receipt of the copy of the
judgment by the party.

Q: may the defendant obtain a stay of execution? What shall the defendant do to prevent the
immediate execution?

The defendant may stay execution by doing all the following:

A) He must appeal
B) He must post a supersedeas bond (the amount of the bond is equivalent to the amount
of rents, damages, and costs accruing down to the time of the judgment appealed from).
(the bond is filed with the MTC because the stay of execution has to be approved by the
MTC. However, if the record is forwarded to the RTC within the period for perfecting an
appeal,the bond can be filed with the RTC).
C) He must make a periodic deposit of the monthly rental or of the reasonable rental value
of the property during the pendency of the appeal

NOTE: everything mentioned must be done within the period for perfecting an appeal.

Q: what is the purpose of the supersedeas bond?

TO assure the plaintiff that the judgment will be satisfied if it turns out that defendant’s appeal is
without merit. In this case, the purpose of the bond is to pay the accrued rents, damages, and
costs.

Q: what is the purpose of periodic deposit?

The purpose is that while the appeal is pending, the defendant would be paying the rent that
would fall due during the pendency of the appeal.

Q: suppose the defendant appealed to the RTC and rendered an adverse judgment against the
defendant and he appealed to the CA. May the defendant still obtain a stay of execution of the
RTC judgment by filing a supersedeas bond?

No, the RTC judgment is immediately executor and cannot be stayed by supersedeas bond on
appeal to the Court of Appeals.
NOTE: in forcible entry and unlawful detainer, the following provisional remedies may be availed
of:

a) Preliminary prohibitory injunction to prevent the defendant from committing further acts
of dispossession against the plaintiff
b) Preliminary mandatory injunction to restore plaintiff in his possession. (plaintiff must file
this motion for the issuance of a writ of preliminary mandatory injunction within 5 days
from filing of his complaint).
c) Preliminary mandatory injunction to restore his possession if the MTC has already
rendered a judgment. (plaintiff must file this motion within 10 days from perfection of
appeal and the RTC will issue the writ if it is satisfied that the defendant’s appeal is
frivolous or dilatory).

Q: how do you distinguish accion interdictal from accion publiciana?

The following are the distinctions:

a) Forcible entry is to be filed within 1 year from unlawful dispossession of real property.
Accion publiciana is filed a year after such unlawful dispossession
b) Accion interdictal is concerned with the issue of physical possession of real property.
Accion publiciana is concerned with the issue of better right of possession over the real
property.
c) Accion interdictal is filed with the MTC (regardless of the rent involved or reasonable
rental value). Accion publiciana may be filed with the MTC or RTC depending on the
assessed value of the real property involved.

Q: what are the distinctions between accion interdictal and accion reivindicatoria?

The distinction are:

a) Accion interdictal involves physical possession of a real property. Accion reinvindicatoria

involves ownership or to recover ownership over real property. Thus in accion
reivindicatoria, it involves possession because it is within the ambit of ownership.

Q: what are the civil cases governed by the rules on summary procedure?

The following are the civil cases governed by the rule on summary procedure:

a) All cases of forcible entry and unlawful detainer

b) All other civil cases except probate proceedings where the total amount of plaintiff’s
claim does not exceed 100k or 200k in Metro Manila, exclusive of interest and costs

Q: if a complaint is filed with the MTC, what will the court do?
 The MTC shall issue an order declaring whether or not the case shall be governed by
the Rule on Summary Procedure. If the court declares that the case is governed by the
Rule on Summary Procedure, it will examine the complaint and will dismiss the
complaint outright on any ground that is apparent therefrom.

If no dismissal is found by the court, it will issue summons that will state that the Rule on
Summary Procedure shall apply and directing the defendant to file his answer within 10
days from service of summons.

Q: what are the pleadings allowed?

The following are the only pleadings allowed:

a) complaint
b) Compulsory counterclaim (which should be impleaded in the answer)
c) Cross-claim (which should be impleaded in the answer)
d) Answers thereto. (this means that answer to the “a-c” allowed pleadings)

NOTE: All pleadings must be verified.

Example: X (plaintiff) v. Y(defendant). X files a complaint and Y files an answer to the

complaint. In the answer that Y has filed, the counter-claim must be impleaded in there.
Now, X can file an answer to the compulsory counterclaim of Y.

Q: what are the prohibited motions and pleadings in Rules on Summary Procedure?

The following are the prohibited motions and pleadings:

a) Motion to dismiss except on the ground of lack of jurisdiction over the subject matter of
the action or failure to comply with the requirement of prior referral of the dispute to the
Lupon
b) Motion for a bill of particulars
c) Motion for new trial
d) Motion for reconsideration (this does not apply to a motion for reconsideration of an
interlocutory order)
e) Motion for re-opening of trial
f) Petition for relief from judgment
g) Motion for extension
h) Memoranda/memorandum
i) Petition for certiorari, prohibition, or mandamus against an interlocutory order is
prohibited
j) A motion to declare the defendant in default is also prohibited
 PROBLEM: X v.Y. The case is governed by the rule on summary procedure. The mtc
renders a judgment. The defendant receives a copy of the judgment on July 1. On July 10,
the defendant files a motion for reconsideration. Let us say, it is now August 1 and the
motion for reconsideration has not been resolved yet by the MTC. Now, has the judgment
become final?

Yes, because the motion for reconsideration is a prohibited motion and since it is a
prohibited motion, it does not suspend the period for perfecting an appeal.

PROBLEM: X v.Y. The case is governed by the rule on summary procedure. The mtc renders a
judgment. The judgment is adverse to the defendant. The defendant filed an appeal within the
period for perfecting an appeal, thus, the case is now with the RTC. The RTC renders a
judgment and the judgment is still adverse to the defendant. The defendant filed a motion for
reconsideration again asking the RTC to reconsider its judgment. Now, is the motion for
reconsideration a prohibited motion?

No, because a Motion for Reconsideration of a judgment is a prohibited motion ONLY IF THE
RULE ON SUMMARY PROCEDURE IS APPLICABLE. THE MOMENT THE CASE IS
BROUGHT ON APPEAL TO THE RTC, THE RULE ON SUMMARY PROCEDURE
NOLONGER APPLIES. Thus, the motion for reconsideration is valid.

Q: what happens if a service of summons was given to the defendant but the defendant did not
file his answer?

If the defendant fails to file his answer within the time for filing it, then the court may render
judgment as may be warranted by the facts alleged in the complaint and is limited to what is
prayed for therein.

Q: may there be an instance in which although the defendant files an answer, the court may still
render judgment as may be warranted by the facts alleged in the complaint and is limited to
what is prayed for therein?

The instances are:

a) The defendant fails to file an answer within 10 days from service of summons upon him
b) The defendant files an answer but fails to appear at the preliminary conference despite
notice.

In these two instances, the court motu proprio shall render judgment as may be warranted
by the facts alleged in the complaint and is limited to what is prayed for therein.

Q: suppose there is a judgment of the MTC and is appealed to the RTC. The RTC affirms
the judgment of the MTC. Is the judgment of the RTC immediately executory?

Yes, if the case is appealed to the RTC, the judgment of the RTC is immediately executor
without prejudice to any further appeal that the adverse party may take.
 Q: the case is governed by the rule on summary procedure. The complaint is filed with the
MTC. Will there be a hearing?

Hearing is not required if the case is governed by the rule on summary procedure and the
MTC should not conduct a hearing, instead, the MTC shall decide the case on the basis of the
position papers, affidavits of the parties, and their witnesses and other evidence submitted by
the parties.

Q: what is the procedure in cases governed by Rule on summary procedure?

The steps are:

A) Filing of a verified complaint

B) The mtc issues an order declaring the case to be governed by the rule on summary
procedure
C) If the case is so declared that it is governed by the Rule on Summary Procedure, the
court may dismiss the complaint on any ground that is apparent therefrom
D) If the case is dismissed, then the proceedings shall end in the MTC. If the case is not
dismissed, the MTC issues summons directing the defendant to file his answer within 10
days from service of the summons
E) If no answer is filed, the court shall render a judgment as may be warranted by the facts
alleged in the complaint and limited to what is prayed for therein
F) If an answer is filed, a preliminary conference shall be conducted not later than 30 days
after the last answer is filed
G) Within 5 days after the termination of the preliminary conference, the MTC shall issue a
preliminary conference order stating the matters taken up
H) Within 10 days from receipt by the party of the preliminary conference order, the parties
shall submit their respective position papers, their affidavits, and the affidavits of their
witnesses and other evidence
I) Within 30 days from receipt of the last position paper, their affidavits, and other
evidence, the MTC shall render a judgment. However, if the court needs to clarify certain
matters that are not clear to the court, the Court may issue an order specifying the
matters that need to be clarified and require the parties to submit affidavits on those
matters within 10 days from receipt of the order. Lastly, the court shall render judgment
within 15 days from receipt of the last clarificatory affidavit.
Rule 71 – contempt

There are 2 kinds of contempt:

a) Direct contempt – if a person is adjudged in direct contempt by any court, the remedy of

the person is either CERTIORARI or PROHIBITION.

NOTE: the person adjudged in direct contempt cannot appeal from the order finding him

guilty of direct contempt pending the resolution of his petition for certiorari or prohibition,

the execution of the judgment shall be suspended, provided he shall file a bond FIXED

BY THE COURT which rendered the judgment and conditioned that he will abide by the

judgment should his petition be decided against him.

b) Indirect contempt – if a person is adjudged in indirect contempt, his remedy is appeal

from the judgment or final order finding him guilty of indirect contempt. The execution of

the judgment may also be suspended provided he files a bond.

NOTE: it may also be criminal or civil contempt.

Q: what is the penalty for direct contempt?

Under sec. 1, Rule 71.

• Section 1. Direct contempt punished summarily. — A person guilty of misbehavior in the

presence of or so near a court as to obstruct or interrupt the proceedings before the same,
including disrespect toward the court, offensive personalities toward others, or refusal to be
sworn or to answer as a witness, or to subscribe an affidavit or deposition when lawfully
required to do so, may be summarily adjudged in contempt by such court and punished by a
fine not exceeding two thousand pesos or imprisonment not exceeding ten (10) days, or both, if
it be a Regional Trial Court or a court of equivalent or higher rank, or by a fine not exceeding
two hundred pesos or imprisonment not exceeding one (1) day, or both, if it be a lower court.

Q: What act constitutes direct contempt?

Misbehavior in the presence of or so near a court as to obstruct or interrupt the proceedings
before that court, including disrespect toward the court, offensive personalities toward others, or
refusal to be sworn or to answer as a witness, or to subscribe an affidavit or deposition when
lawfully required to do so.

Q: what are the distinctions between direct contempt and indirect contempt?

The distinctions are:

a) Direct contempt may be punished summarily. In indirect contempt, it cannot be punished

summarily. There must be a charge against the person alleged to have committed a

contemptuous conduct.

Q: what are the acts punishable as indirect contempt?

Rule 71, sec.3.

Section 3. Indirect contempt to be punished after charge and hearing. — After a charge in writing has
been filed, and an opportunity given to the respondent to comment thereon within such period as may
be fixed by the court and to be heard by himself or counsel, a person guilty of any of the following acts
may be punished for indirect contempt;

(a) Misbehavior of an officer of a court in the performance of his official duties or in his official
transactions;

(b) Disobedience of or resistance to a lawful writ, process, order, or judgment of a court, including the
act of a person who, after being dispossessed or ejected from any real property by the judgment or
process of any court of competent jurisdiction, enters or attempts or induces another to enter into or
upon such real property, for the purpose of executing acts of ownership or possession, or in any manner
disturbs the possession given to the person adjudged to be entitled thereto;

Example of B: there is a judgment that became final. The judgment directs the defendant to vacate the
real property subject of the case. Thus, the writ of execution was implemented and the defendant was
made to vacate the property. Further, after a weeks, the defendant attempts to retake possession of the
property.

(c) Any abuse of or any unlawful interference with the processes or proceedings of a court not
constituting direct contempt under section 1 of this Rule;
(d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the
administration of justice;

(e) Assuming to be an attorney or an officer of a court, and acting as such without authority;

(f) Failure to obey a subpoena duly served;

(g) The rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an
order or process of a court held by him.

Q: how may the proceedings for indirect contempt be commenced?

a) It may be commenced motu proprio by the court, by issuing an order or any formal
charge requiring the respondent to show cause why he should not be punished for
contempt.
b) Filing a verified petition in court against the respondent.

Q: When may the proceedings for indirect contempt be commenced motu proprio by the court or
by a verified petition?

If the act constituting indirect contempt is within the knowledge of the court, the proceeding for
indirect contempt may be commenced motu proprio by the court.

If the court has no knowledge of the misbehavior constituting indirect contempt, the proceeding
shall be commenced by means of a verified petition and not by a mere motion.

Q: it has been said that submitting a false certification of non-forum shopping may constitute an
indirect contempt of court. Now, suppose it is discovered that the certification on non-forum
shopping submitted is false. May the party be punished for indirect contempt immediately?

No, because if it is indirect contempt, there must be a formal charge.

Small claims cases – it is small claims cases if it is purely civil in nature. In metro manila, the
amount involved must not exceed 400k, outside MM, must not exceed 300k exclusive of
interests and costs.

To be a small claims case, they must be:

a) Payment of money owed under any of the following:

1) Contract of lease
2) Contract of loan
3) Contract of services
4) Contract of sale
5) Contract of mortgage

b) For liquidated damages arising from contracts

c) For the enforcement of barangay amicable settlement or arbitration award on a money
claim

Q: what is the purpose of the rules in small claims?

The purpose is to provide a simpler and more inexpensive and more expeditious means of
settling disputes involving purely money claims.

Q: what is the procedure that you must follow in filing your small claims cases?

NOTE THAT JURISDICTION OVER SMALL CLAIMS CASES ARE WITH THE FIRST LEVEL
COURT. Furthermore, the venue of small claims case shall be where the plaintiff resides or
defendant resides.

NOTE: if the plaintiff is engaged in the business of lending, banking, or similar cases, small
claims shall be filed with the MTC of the city or municipality where the defendant resides if the
plaintiff has a branch in that area.

Q: how is small claim commenced?

It is commenced when the plaintiff files a verified statement of claim. It must be filed in duplicate.

It must be accompanied by a certification on non-forum shopping and certification against

splitting of cause of action and multiplicity of suits. It must also be accompanied by 2 duly

certified photocopies of the actionable document and affidavits of witnesses and other evidence

in support of the claim.

NOTE: there will be a hearing in small claims cases, and reception of evidence is not allowed

unless evidence are accompanied in the statement of claim.

• Yes, joinder of causes of action is allowed provided the total amount on the causes of action

shall not exceed the amount of 400k or 300k.

Q: should the plaintiff file the docket fees and other legal fees?

Yes, unless he is allowed to litigate as an indigent litigant.

Q: what will the court do upon the filing of the verified statement of claim?

• The court will examine the claim and the court may dismiss the case outright if it finds grounds

to justify the dismissal.

• the court shall cause the issuance of summons to be served upon the defendant. (the

issuance of summons must be issued on the same day the statement of claim is filed).

• the summons will order the defendant to file a verified response within a non-extendible period

of 10 days.

NOTE: if the defendant cannot be served with summons, the court will order the plaintiff to

cause the service of summons within 30 days to the defendant. Otherwise, the case will be

dismissed.

NOTE: when the court issues the summons, the court will also issue a notice to both parties

ordering them to appear in court for hearing with a warning that no unjustified postponement

shall be allowed. If a party cannot appear in person on the date and time in the notice for

hearing, a representative may appear (the representative should be a relative?) for him provided

that representative is duly authorized by a Special Power of Attorney. (a lawyer is not allowed to

appear for any party at the hearing).

• at the hearing, the judge shall exert efforts to get the parties to settle amicably. However, if the

party cannot settle, the court shall proceed to hear the parties. The court shall render judgment

within 24 hours from termination of the hearing. The judgment shall become final and executor

immediately. Thus, it is not appealable.

NOTE: the court will simply re-docket the case if the small claims case is not really a small

claims case but ordinary civil case.