civpro finals reviewer- jdl - butch ramiro
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Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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1. RULE MAKING POWER OF THE SC:
Art 8 Sec 5(5) of the Consti:
Promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice and procedure in: o All courts
o The admission to the practice of law
o The Integrated Bar o And Legal assistance to the underprivileged
Guidelines on the rules: o They must provide a simplified and speedy disposition of cases
o The rules shall be uniform for all courts of the same grade o The rules shall not diminish, increase, or modify substantive rights
These powers may not be reduced by Congress but Congress may add more
Art 6 Sec 30 of the Consti:
No law shall be passed increasing the appellate jurisdiction of the SC as provided in this Constitution without its advice and concurrence
2. PROCEDURAL AND SUBSTANTIVE
Procedural and Substantive Rules
Procedural law: the body of legal rules that govern the process for
determining the rights of parties Substantive law: body of rules that determine the rights and obligations of
persons
3. FORCE AND EFFECT OF RULES OF COURT
Rules of Courts, promulgated by authority of law, have the force and effect of
law; and rules of court prescribing the time within which certain acts must be done, or certain proceedings taken are considered absolutely indispensable to the
prevention of needless delays and to the orderly and speedy discharge of judicial business. (Shioji vs. Harvey, 43 Phil., 333)
4. POWER OF THE SC TO SUSPEND RULES OF COURT
Nonetheless, it is also true that procedural rules are mere tools designed to facilitate the attainment of justice. Their strict and rigid application should be
relaxed when they hinder rather than promote substantial justice. Public policy dictates that court cases should, as much as possible, be resolved on the
merits not on mere technicalities. Substantive justice trumps procedural rules
It is within the court's sound discretion to relax procedural rules in order to fully
adjudicate the merits of a case. This Court will not interfere with the exercise
of that discretion absent grave abuse or palpable error. Section 6, Rule 1 of the 1997 Rules of Civil Procedure even mandates a liberal construction of
the rules to promote their objectives of securing a just, speedy, and
inexpensive disposition of every action and proceeding.
5. PROCEDURAL RULES THAT PARTIES MAY CHANGE
a. Venue (may be agreed upon by the parties) b. Court’s discretion in the interest of substantial justice
c. Waiver
6. JURISDICTION
Jurisdiction: Capacity or power conferred by the Constitution or law to a court or
tribunal to entertain, hear and determine controversies and render judgment thereon.
How is jurisdiction acquired?
OVER
PLAINTIFF/PETITIONER
Acquired by the filing of the complaint, petition or
initiatory pleading before the court by the plaintiff or petitioner.
OVER
DEFENDANT/RESPONDENT
1. Voluntary appearance
2. Submission by the defendant to the court 3. Coercive process issued by the court (summons)
OVER SUBJECT MATTER Conferred by law
OVER THE ISSUES 1. Determined by the pleadings
2. Determined by agreement in a pre-trial order/stipulation
3. Implied consent: failure of a party to object to evidence on an issue not covered by the pleadings
OVER THE RES (PROPERTY
WHICH IS THE SUBJECT OF
LITIGATION)
Acquired by actual/constructive seizure by the court of
the thing e.g. attachment, garnishment, provision of law
(like in land registration proceedings)
7. ESTOPPEL TO DENY JURISDICTION
Hinog v. Melicor: Party motioned to serve a supplemental pleading. It was considered as seeking affirmative relief from the courts.
If a party invokes the jurisdiction of a court, he cannot thereafter
challenge the court’s jurisdiction in the same case because of estoppel.
8. JURISDICTION IS DETERMINED AT THE TIME OF FILING ACTION
WHEN IS A CIVIL
ACTION
COMMENCED?
By the filing of the original complaint in court
WHAT IF AN The action is commenced with regard to him on the date of the
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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ADDITIONAL
DEFENDANT IS
IMPLEADED IN A
LATER PLEADING?
filing of the later pleading
This is irrespective of whether the motion for its admission, if
necessary, is denied.
People v. Cawaling
Once the court acquires jurisdiction, it may not be ousted from the case by a
new law placing such proceedings under the jurisdiction of another tribunal o Exceptions:
An express provision in the statute The statute is clearly intended to apply to actions pending
before its enactment
9. COURTS
Art 8 Sec 1:
The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.
Judicial power:
Includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable
To determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government
BP 129: Pertinent Provisions:
CA:
CA Power:
Note: CA is also a trier of facts.
Power to try cases and conduct hearings, receive evidence and perform any and all acts necessary to resolve factual
issues raised in cases falling within its original and appellate jurisdiction, including the power to grant and conduct new
trials or further proceedings.
Trials or hearings in the Court of Appeals must be continuous and must be completed within 3 months,
unless extended by the CJ
Original Jurisdiction To issue writs of mandamus, prohibition, certiorari, habeas corpus, and quo warranto, and auxilliary writs or processes,
whether or not in aid of its appellate jurisdiction
Exclusive original
jurisdiction
Actions for annulment of judgments of RTCs (Rule 47!)
Exclusive appellate
jurisdiction
ALL final judgments, decisions, resolutions, orders or awards
of
1. RTC 2. Quasi judicial agencies, instrumentalities, boards or
commissions, SEC, Social Security Commission,
the Employees' Compensation Commission and the
Civil Service Commission
RTC:
Exclusive original jurisdiction
1. Civil actions in which the subject of litigation is incapable of pecuniary estimation (e.g. specific
performance, support, rescission)
2. Civil actions which involved the title to or possession of real property or any interest therein (e.g. accion
publiciana) NOTE: unlawful detainer and forcible entry jurisdiction with MTC
a. Metro Manila: assessed value of property exceeding 50,000
b. Outside MM: assessed value of property exceeding 20,000
3. All actions of admiralty and maritime jurisdiction a. MM: demand or claim exceeds 400k
b. Outside MM: exceeds 300k 4. All matters of probate (testate/intestate)
a. MM: gross value of estate exceeds 400k b. Outside MM: exceeds 300k
5. In all actions involving the contract of marriage/martial relations (Family courts are RTCs: see below)
6. In all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising
judicial/qj functions 7. In all civil actions and special proceedings falling within
the EOJ of a juvenile and domestic relations court and of the court of agrarian relations as now provided by
law 8. In all other cases in which the demand (exclusive of
interest, damages of whatever kind, atty’s fees, litigation expenses and costs) OR the value of the
property in controversy (basically if demand or value of prop exceeds the amounts below)
a. MM: exceeds 400k b. Outside MM: exceeds 300k
Original jurisdiction 1. Issuance of writs of certiorari, prohibitions, mandamus, quo warranto, habeas corpus and injunction which may
be enforced in any part of their respective regions 2. In actions affecting ambassadors and other public
ministers and consuls
Appellate jurisdiction Over all cases decided by MeTC, MuTC, MCTC in their respective territorial jurisdictions
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts shall exercise:
Exclusive Original
Jurisdiction
1. Civil actions and probate proceedings + grant of
provisional remedies in proper cases a. MM: value of the personal property or
estate or the amount of demand does not exceed 400k
b. Outside MM: value of the personal property or estate or the amount of demand does
not exceed 300k Note: interest, damages, atty’s fees, litigations expenses
and costs are NOT included in the determination of jurisdiction but are INCLUDED in the determination of filing
fees
2. Cases of forcible entry and unlawful detainer
Note: when defendant raises questions of ownership in his pleadings and the question of possession cannot be resolved
w/o deciding the issue of ownership, the issue of ownership shall be resolved ONLY to determine the issue of possession
3. Civil actions which involved the title to or possession
of real property or any interest therein a. MM: assessed value does not exceed 50k
b. Outside MM: assessed value does not exceed 20k
Note: Exclusive of interest, damages of whatever kind,
atty’s fees, litigation expenses and costs
Note: In case of land not declared for tax purposes, the
value of the property shall be determined by the assessed
value of the adjacent lots.
Family Courts:
Exclusive original
jurisdiction
1. Criminal cases where one or more of the accused is
below eighteen (18) years of age but not less than nine (9) years of age but not less than nine (9) years of age
or where one or more of the victims is a minor at the
time of the commission of the offense: Provided, That if the minor is found guilty, the court shall promulgate
sentence and ascertain any civil liability which the accused may have incurred. The sentence, however,
shall be suspended without need of application pursuant to Presidential Decree No. 603, otherwise known as the
"Child and Youth Welfare Code";
2. Petitions for guardianship, custody of children, habeas corpus in relation to the latter;
3. Petitions for adoption of children and the revocation
thereof;
4. Complaints for annulment of marriage, declaration of nullity of marriage and those relating to marital status
and property relations of husband and wife or those living together under different status and agreements,
and petitions for dissolution of conjugal partnership of gains;
5. Petitions for support and/or acknowledgment; 6. Summary judicial proceedings brought under the
provisions of Executive Order No. 209, otherwise known as the "Family Code of the Philippines";
7. Petitions for declaration of status of children as
abandoned, dependent o neglected children, petitions
for voluntary or involuntary commitment of children; the suspension, termination, or restoration of parental
authority and other cases cognizable under Presidential Decree No. 603, Executive Order No. 56, (Series of
1986), and other related laws; 8. Petitions for the constitution of the family home;
9. Cases against minors cognizable under the Dangerous Drugs Act, as amended;
10. Violations of Republic Act No. 7610, otherwise known as the "Special Protection of Children Against Child Abuse,
Exploitation and Discrimination Act," as amended by
Republic Act No. 7658; and 11. Cases of domestic violence against:
a. Women - which are acts of gender based violence that results, or are likely to result in
physical, sexual or psychological harm or suffering to women; and other forms of
physical abuse such as battering or threats and coercion which violate a woman's personhood,
integrity and freedom movement; and b. Children - which include the commission of all
forms of abuse, neglect, cruelty, exploitation, violence, and discrimination and all other
conditions prejudicial to their development.
Sandiganbayan:
A. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-
graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Sec. 2, Title
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government whether in a
permanent, acting or interim capacity, at the time of the commission of the
offense:
(1) Officials of the executive branch occupying the positions of regional
director and higher, otherwise classified as Grade '27' and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No.
6758), specifically including:
"(a) Provincial governors, vice-governors, members of the sangguniang panlalawigan and provincial treasurers, assessors,
engineers and other provincial department heads;
"(b) City mayors, vice-mayors, members of the sangguniang
panlungsod, city treasurers, assessors engineers and other city
department heads;
"(c) Officials of the diplomatic service occupying the position of consul and higher;
"(d) Philippine army and air force colonels, naval captains, and all
officers of higher rank;
"(e) Officers of the Philippine National Police while occupying the position of provincial director and those holding the rank of senior
superintendent or higher;
"(f) City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and
special prosecutor;
"(g) Presidents, directors or trustees, or managers of
government-owned or -controlled corporations, state universities or educational institutions or foundations;
(2) Members of Congress and officials thereof classified as Grade'27'and up
under the Compensation and Position Classification Act of 1989;
(3) Members of the judiciary without prejudice to the provisions of the Constitution;
(4) Chairmen and members of Constitutional Commissions, without
prejudice to the provisions of the Constitution; and
(5) All other national and local officials classified as Grade'27'and higher under the Compensation and Position Classification Act of 1989.
B. Other offenses or felonies whether simple or complexed with other crimes
committed by the public officials and employees mentioned in Sec. a of this Sec. in relation to their office.
C. Civil and criminal cases filed pursuant to and in connection with Executive Order
Nos. 1, 2, 14 and 14-A, issued in 1986.
In cases where none of the accused are occupying positions corresponding to salary grade '27' or higher, as prescribed in the said Republic Act No. 6758, or
military or PNP officers mentioned above, exclusive original jurisdiction thereof shall be vested in the proper regional trial court, metropolitan trial court,
municipal trial court and municipal circuit trial court ' as the case may be, pursuant to their respective jurisdiction as provided in Batas Pambansa Blg.
129, as amended. "The Sandiganbayan shall exercise exclusive appellate jurisdiction over final
judgments, resolutions or orders or regional trial courts whether in the exercise
of their own original jurisdiction or of their appellate jurisdiction as herein
provided. "The Sandiganbayan shall have exclusive original jurisdiction over petitions for
the issuance of the writs of mandamus, prohibition, certiorari, habeas corpus, injunctions, and other ancillary writs and processes in aid of its appellate
jurisdiction and over petitions of similar nature, including quo warranto, arising or that may arise in cases filed or which may be filed under Executive Order
Nos. 1,2,14 and 14-A, issued in 1986: Provided, That the jurisdiction over these petitions shall not be exclusive of the Supreme Court.
The procedure prescribed in Batas Pambansa Blg. 129, as well as the implementing rules that the Supreme Court has promulgated and may
hereafter promulgate, relative to appeals/petitions for review to the Court of Appeals, shall apply to appeals and petitions for review filed with the
Sandiganbayan. In all cases elevated to the Sandiganbayan and from the Sandiganbayan to the Supreme Court, the Office of the Ombudsman, through
its special prosecutor, shall represent the People of the Philippines, except in cases filed pursuant to Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986.
In case private individuals are charged as co-principals, accomplices or
accessories with the public officers or employees, including those employed in govemment-owned or controlled corporations, they shall be tried jointly with
said public officers and employees in the proper courts which shall exercise exclusive jurisdiction over them.
Any provisions of law or Rules of Court to the contrary notwithstanding, the criminal action and the corresponding civil action for the recovery of civil
liability shall at all times be simultaneously instituted with, and jointly determined in, the same proceeding by the Sandiganbayan or the appropriate
courts, the filing of the criminal action being deemed to necessarily carry with it the filing of the civil action, and no right to reserve the filing of such civil action
separately from the criminal action shall be recognized: Provided, however, That where the civil action had therefore been filed separately but judgment
therein has not yet been rendered, and the criminal case is hereafter filed with the Sandiganbayan or the appropriate court, said civil action shall be
transferred to the Sandiganbayan or the appropriate court, as the case may be, for consolidation and joint determination with the criminal action, otherwise the
separate civil action shall be deemed abandoned."
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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Quasi Judicial Bodies
SEC: Securities and Exchange Commission
Section 5. Powers and Functions of the Commission.–
5.1. The commission shall act with transparency and shall have the powers and
functions provided by this code, Presidential Decree No. 902-A, the Corporation Code, the Investment Houses law, the Financing Company Act and other existing
laws. Pursuant thereto the Commission shall have, among others, the following powers and functions:
(a) Have jurisdiction and supervision over all corporations, partnership or associations who are the grantees of primary franchises and/or a license or
a permit issued by the Government;
(l) Issue subpoena duces tecum and summon witnesses to appear in any proceedings of the Commission and in appropriate cases, order the
examination, search and seizure of all documents, papers, files and records, tax returns and books of accounts of any entity or person under
investigation as may be necessary for the proper disposition of the cases before it, subject to the provisions of existing laws;
(n) Exercise such other powers as may be provided by law as well as those
which may be implied from, or which are necessary or incidental to the carrying out of, the express powers granted the Commission to achieve the
objectives and purposes of these laws.
5.2. The Commission’s jurisdiction over all cases enumerated under section 5 of
Presidential Decree No. 902-A is hereby transferred to the Courts of general jurisdiction or the appropriate Regional Trial Court:Provided, That the
Supreme Court in the exercise of its authority may designate the Regional Trial Court branches that shall exercise jurisdiction over the cases. The
Commission shall retain jurisdiction over pending cases involving intra-corporate disputes submitted for final resolution which should be resolved
within one (1) year from the enactment of this Code. The Commission shall retain jurisdiction over pending suspension of payment/rehabilitation
cases filed as of 30 June 2000 until finally disposed.
CSC:
Magpale, Jr vs. Civil Service Commission
The extent of the authority of CSC to review decision of the MSPB is now a settled manner. Under Sec 47, EO 292, CSC shall decide on appeal all
administrative cases involving the imposition of:
1. A penalty of suspension for more than 30 days
2. Fine in an amount exceeding 30 days salary 3. Demotion in rank or salary or transfer
4. Removal or dismissal from office Settled is the rule that a tribunal, board or officer exercising judicial functions
acts without jurisdiction if no authority has been conferred by law to hear and decide the case.
HLURB: House and Land Use Regulatory Board
Sandoval vs. Cañeba
the National Housing Authority (NHA), now known as House and Land
Use Regulatory Board (HLURB), it has exclusive jurisdiction to hear and decide a complaint for collection of unpaid installments against a
subdivision lot buyer, not the regular courts.
10. KINDS OF ACTION
As to CAUSE OF ACTION: -> Important in determining venue
Real Action An action affecting title to, possession of and interest in real
property
VENUE: place where the property lies
Personal Action Brought for 1. recovery of personal property
2. for the enforcement of some contract or recovery of damages for its breach
3. for the recovery of damages for the commission of
an injury to the person or property
VENUE:
1. place where the plaintiff or any of the principal
plaintiffs resides 2. the defendant or any of the principal defendants
resides, at the election of the plaintiff
As to the OBJECT -> Important in determining how one will be served summons
Action in Rem An action against the thing itself Judgment is binding against the whole world
Example: Accion Publiciana, Land registration proceedings
Action in An action against a particular person on the basis of his
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Personam personal liability
Jurisdiction over the defendant (and SM) is necessary
Example: Collection case
Action quasi in rem
An individual is named as defendant, and the purpose of the proceeding is to subject his interest therein to the
obligation or lien burdening the property
However, jurisdiction over the defendant is NOT required to confer jurisdiction over the court as lonjg as the court acquires
jurisdiction over the thing itself.
Example: Proceeding where the sole object is the sale of the
property of the defendant by attachment, foreclosure, etc. The
judgment entered in these proceedings is binding only between the parties. Also, quieting of title.
11. COMMENCEMENT OF ACTION: CONDITION PRECEDENT
Lumbuan v. Ronquillo
The prime objective of the Katarungnang Pambarangay Rules is to reduce the
number of court litigations In this case, the Lupon/Pangkat Chairman and Lupon/Pangkat Secretary signed
the Certificate to File Action stating that no settlement was reached by the parties.
While admittedly no pangkat was constituted, it was not denied that the parties met at the office of the Barangay Chairman for possible
settlement. o The efforts of the Barangay Chairman, however, proved futile as
no agreement was reached. Although no pangkat was formed
o There was substantial compliance with the law.
o It is noteworthy that under the aforequoted provision, the confrontation before the Lupon Chairman or the pangkat is sufficient
compliance with the precondition for filing the case in court
12. COMMENCEMENT OF ACTION: PAYMENT OF FILING FEE
Hinog v. Melicor (reiterating Sun Insurance)
GR: Payment of the prescribed docket fee is a jurisdictional requirement
EX: However, its non-payment at the time of filing does not automatically cause the dismissal as long as the fee is paid within the applicable reglementary
period
Sun Insurance Office, Ltd (SIOL) vs. Asuncion
Permissive counter-claims, third-party claims and the like shall not be considered filed until and unless the prescribed filing fee is paid. When the
judgment of the courts awards a claim not specified in the pleading, the additional filing fee shall constitute a lien on the judgment.
In the case at bar, a more liberal interpretation of the rules is called for considering Tiong demonstrated his willingness to abide by the rules
and pay the additional docket fees
13. CAUSE OF ACTION: RULE 2
Rule 2
Cause of Action A cause of action is the act or omission by which a party
violates a right of another
Elements of cause of action
Right, Obligation
to respect right, Violation of right
1. a right in favor of the plaintiff by whatever means and under whatever law it arises or is created;
2. an obligation on the part of the named defendant to respect or not to violate such right; and
3. an act or omission on the part of such defendant in violation of the right of the plaintiff or constituting a
breach of the obligation of the defendant to the plaintiff for which the latter may maintain an action
for recovery of damages.
SPLITTING a
cause of action
A party mat not institute more than one suit for a single cause
of action
Effects of
SPLITTING
The filing of one or a judgment upon merits in any one is
available as a ground for the dismissal of the others
Rule 16: MTD:
a. Bar by prior judgment (RES JUDICATA) b. Another action pending between the same parties for
the same cause (LITIS PENDENTIA)
JOINDER of
CAUSES of
ACTION
A party may in one pleading assert, in the alternative or
otherwise, as many causes of action as he may have against an
opposing party subject to the following conditions:
1. The party joining the causes of action shall comply with the rules on joinder of parties;
2. The joinder shall not include special civil actions or actions governed by special rules;
3. Where the causes of action are between the same parties but pertain to different venues or
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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jurisdictions, the joinder may be allowed in the Regional Trial Court provided one of the causes of
action falls within the jurisdiction of said court and
the venue lies therein
4. Where the claims in all the causes of action are principally for recovery of money, the aggregate amount claimed
shall be the test of jurisdiction
Effect of MISJOINDER of
causes of action
In this situation, there are actually two causes of action which were mistakenly joined.
Remedy: On motion of a party or in the court’s initiative, the
misjoined cause of action may be severed and proceeded with separately
Joseph v. Bautista: One injury = One cause of action
It is true that a single act or omission can be violative of various rights at the
same time. However, when there is only one delict or wrong, there is but a single cause of
action regardless of the number of rights that may have been violated belonging to one person
The singleness of a cause of action lies in the singleness of the delict or wrong vilating the rights of one person.
In the case at bar, there is no question that Joseph sustained a single injury on his person AND that vested him a single cause of action, even with the
correlative rights of action against the different respondents
Progressive v. CA:
P leased to W a parcel of land. W failed to pay rentals so P repossessed the leased premises. W then filed a complaint against P for forcible entry in the
MeTC. In the MeTC, the parties compromised and agreed that W would pay. W didn’t pay but it still filed an action for damages in the RTC against P.
Issue: Should an action for damages filed with the RTC by the lessee against the lessor be dismissed on the ground of the pendency of another action of forcible
entry with damages with the MeTC? YES
The RoC clearly provides that no claim for damages arising out of forcible entry or unlawful detainer may be filed separately and independently of
the claim for restoration of possession More importantly, the restoration of possession and demand for actual
damages in the MeTC and the demand from the RTC both arise from the same cause of action namely: the forcible entry of P into the leased
premises
Basically, the damages case was also based on the forcible entry, which was
W’s only cause of action. It was split so it was indeed a ground for dismissal.
CGR Corporation v. Treyes
C occupied a parcel of land and used it as his fishpond. T allegedly forcibly entered the premises. After dispossessing C, T carted away a lot of fish and
even defaced the chapel in the premises.
C filed with the MTC a complaint for forcible entry. Also, C filed a complaint for
damages in the RTC alleging that the intrusion caused him damage
Issue: Can C independently file a case for damages in the RTC for acts that were done by T after C was disposed? YES.
This is because the recoverable damages in forcible entry and detainer
cases refer to rents of the reasonable compensation for the use and occupation of the premises.
The only form of damages that may be recovered in a forcible entry action is the fair rental value or the reasonable compensation for the use and
occupation of the properties
In this case, C’s claim for damages have no direct relation to the loss of
possession of the premises because it had to do with T’s alleged harvesting and carting away several tons of milkfish in the fishponds, the destruction of the
chapel AFTER the act of dispossession There was no splitting of a cause of action in this case.
Uniwide Holdings, Inc vs Cruz
U, doing business in PARANAQUE, entered into a franchise agreement with C,
wherein C was granted a 5 year franchise agreement. In the agreement, it was stipulated that QC will be the venue of any action involving the agreement.
C bought goods from A. A assigned this receivable back to U. C failed to pay certain fees arising from the franchise agreement with U and arising from its
transaction with A. In response, U filed a case in RTC Paranaque to collect both on the transaction
arising from the FRANCHISE AGREEMENT and on the receivable that was ASSIGNED to it. C filed a MTD claiming that the courts of QC had exclusive
jurisdiction as per the agreement.
Issue: Should the case be dismissed on the ground of improper venue? NO
There are two causes of action here. One is U’s cause of action arising from C’s
breach of the franchise agreement. The second is U’s cause of action arising from the receivable that A assigned to it.
In this case, Rule 2 Sec 5 was applied to wit: Where the causes of action are between the same parties but pertain to different venues or jurisdictions, the
joinder may be allowed in the Regional Trial Court provided one of the causes of action falls within the jurisdiction of said court and the venue lies therein
This is PRECISELY what happened: cause of action 1 pertains to QC as per the venue agreement, cause of action 2 is covered by the general rule on venue:
place where the plaintiff resides. U was in its right to file the case in the RTC Paranaque (The joinder is allowed in this case)
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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14. TOTALITY RULE: PERMISSIVE JOINDER OF PARTIES
Flores v. Mallare-Phillips (Made it conform to the present figures)
On Jan 2, in MM, A bought 154k worth of plastic from M. On Jan 3, B bought
255k worth of plastic from M. A and B refused to pay. M then filed a case against A and B (they were joined) in the RTC. M’s argument: totality of his
claims = 409k so its within RTC jurisdiction. A and B filed a motion to dismiss on the ground of RTC’s lack of jurisdiction,
alleging that the totality rule is inapplicable.
Issue: Does the RTC have jurisdiction? NO
A and B’s joinder was merely permissive.
To apply the totality rule: Requisites:
1. The cause of action in favor of a plaintiff against two or more defendants must arise out of the SAME TRANSACTION/SERIES of
TRANSACTIONS
2. There must be a COMMON QUESTION OF LAW ANF FACT In this case, M’s claim against A and B are borne out of separate transactions
so RTC did not have jurisdiction. Othewise put: where a claim in all causes of action in one pleading are
PRINCIPALLY for the recovery of money, the aggregate amount claimed shall be the test of jurisdiction, but the requisites must be fulfilled in case it is
against two or more defendants HOWEVER when one plaintiff sues one defendant and it is principally for
recovery of money, even if he has 10 causes of action, the totality of the claims the determining factor in jurisdiction.
Exercise:
a. A has a 299k money claim against B. In his complaint, A also asked for
1M in damages. Where should it be filed?
i. Answer: MTC. This is because the money claim is the main
of cause of action b. In Greenhills, D bought an ipod from F for 20k. D then bought an LCD
TV worth 200k from F. D again bought a computer for 300k from F. D failed to pay. Where should F file his collection case?
i. Answer: RTC. This is because the aggregate amount claimed is the test of jurisdiction. Amount: 520k. It does not matter
that it arose from the same transaction in this case.
PARTIES TO A CIVIL ACTION: RULE
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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PARTIES TO A CIVIL ACTION
WHO MAY BE PARTIES
IN A CIVIL ACTION?
1. Natural Person
2. Juridical person (corporations, parts, State and its political subdivisions)
3. Entity authorized by law
WHO IS CONSIDERED
THE PLAINTIFF?
1. Claiming party
2. Counter-claimant 3. Cross-claimant
4. Third party plaintiff
THE DEFENDANT? 1. Original defending party
2. Defendant in counterclaim 3. Cross-defendant
4. Third party defendant
5. REAL PARTY IN INTEREST
A real party in interest is the party who stands to be benefited or injured by the judgment in the suit
o The party entitled to the avails of the suit General Rule: Every action must be prosecuted or defended in the name of
the real party in interest o Exception: Unless provided by law or these rules
6. PERSONALITY OR STANDING TO SUE
Evangelista v. Santiago: A was considered to lack personality to file action for
quieting of title because he had no legal or equitable title to the subject property
Domingo v. Carague
The petitioners in this case assail the legality of a resolution of the Commission on Audit providing for Organizational Restructuring Plan for being void and
lacking an enabling law. Petitioners Domingo and others are retired Chairmen/Commissioners of the
COA and they are assailing the resolution as concerned taxpayers Co-petitioners Matib and Sanchez are incumbent officers of the COA. They
allege that they were divested of their designations and ranks and subsequently caused financial prejudice
Issue: Do the petitioners have standing to sue? No.
The SC started to discuss the litany of political law cases wherein they held that
the petitioners in these various cases had standing to sue based on their constitutional rights (Chavez v. PEA) and that they had direct and substantial
interests to protect In this case, petitioners (the retired/former COA officers) have no shown any
direct and personal interest in the COA restructuring plan because there is no showing that they have sustained or are in imminent danger of sustaining
some direct injury as a result of the implementation of the plan
o In fact, they admitted that they did not seek affirmative relief from COA. They clearly have no standing
o As the incumbent COA officers, it was held that they were not demoted
7. REPRESENTATIVE PARTIES
REPRESENTATIVE
PARTIES
Where the action is allowed to be prosecuted or defended by a
representative or someone acting in a fiduciary capacity
The beneficiary shall be included in the title of the case and shall be deemed the real party in interest
WHO IS A
REPRESENTATIVE?
1. Trustee of express trust
2. Guardian 3. Executor/Administrator
4. Party authorized by law/these rules 5. Agent acting in his own name and for the benefit of an
undisclosed principal a. Except when the contract involves thing belonging
to the principal
Oposa v. Factoran
The plaintiffs in this case are all minors duly represented and jointed by their respective parents and the defendant is Sec Alcala of the DENR
o They also claim to represent their generation as well as generation yet unborn
In this class suit, they pray for the DENR to cancel all existing timber license agreements in the country and as their cause of action, they cite the
Constitution recognizing the right of the people to a balanced and healthful ecology
The DENR Sec argues that the plaintiffs have no standing
Issue: Do the plaintiffs have standing?
The SC ruled that the civil case was indeed a class suit because the subject matter of the complaint is of common and general interest to all citizens of the
Philippines Doctrine: The SC also ruled that the plaintiffs are within their right to file a
class suit for their generation and for the succeeding generations This is based on the concept of intergenerational responsibility insofar as the
right to a balanced and healthful ecology is concerned
The complaint also has a cause of action for the petitioners detailed that their right to a balanced and healthful ecology was/is clearly violated by the TLAs
Sec 4: Spouses as parties: Husband and wife shall sue or be sued jointly, except
as provided by law Sec 5: Minor/Incompetents: A minor or a person alleged to be incompetent may
sue or be sued, with the assistance of his father, mother, guardian or guardian ad litem.
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8. INDISPENSABLE PARTIES AND NECESSARY PARTIES
INDISPENSABLE PARTY
NECESSARY PARTY
Definition One whose interest will be
affected by the court’s action in the litigation, and without whom
no final determination of the case can be had. They have to be
included
One who is not indispensable
but ought to be joined as a party if complete relief is
to be accorded as those already parties, or for a
complete determination/settlement
of the claim subject of the action
Effect if not included
The absence of an indispensable party renders all subsequent
actions of the court null and void.
HOWEVER Non-joinder of indispensable parties is NOT a
ground for dismissal because parties may be added upon order
of the court or upon motion at ANY STAGE of the proceedings
The court can still validly proceed even in the absence
of a necessary part
Remedy The remedy in a case of non-joinder of an indispensable party
is to implead the non-party claimed to be indispensable.
This has the curing effect.
Implead the proper party!
9. PERMISSIVE JOINDER OF PARTIES
Sec 6: Permissive Joinder of Parties:
All persons in whom or against whom any right to relief in respect to or
arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally or in the alternative, may, except as otherwise
provided in these rules, join as plaintiffs or be joined as defendants in one complaint, where any question of law or fact common to all such plaintiffs,
or to all such defendants may arise in such action
But the court may make such orders as may be just to prevent any plaintiff or
defendant from being embarrassed or put to expense in connection with any
proceedings in which he may have no interest
Permissive joinder of parties requires that: (Regalado Compendium)
(a) the right to relief arises out of the same transaction or series of transactions;
(b) there is a question of law or fact common to all the plaintiffs or defendants; and
(c) such joinder is not otherwise proscribed by the provisions of the Rules on jurisdiction and venue
10. EFFECTS OF MISJOINDER AND NON-JOINDER OF PARTIES
Sec 11: Misjoinder and non-joinder of parties:
Neither misjoinder nor non-joinder of parties is ground for dismissal of an
action. Parties may be dropped or added by order of the court on motion of any party
or on its own initiative at any stage of the aftion and on such terms as are just Any claim against a misjoined party may be severed and proceeded with
separately
11. CLASS SUITS
Elements of Class suit
1. That the subject matter of the controversy be one of common or general interest to many persons
2. That such persons be so numerous as to make it impracticable to bring them all to court
Mathay v. Consolidated Bank
An action does become a class suit merely because it is designated as such for it depends on the attending facts and the complaint
In this case, the complaint did not state the number of said CMI subscribing stockholders so that the trial court could not infer that the parties actually
before it were sufficiently numerous and representative
Further, each one of the appellants and the CMI stockholders had determinable interest for each one had a right only to his respective
portion of the stocks. Not one of them had any right to the stock to which another was entitled.
Also, ―separate wrongs to separate persons” although committed by similar means and even pursuant to a single plan do not create a
general interest as to entitle them to a class suit.
12. DEFENDANTS
Sec. 10. Unwilling co-plaintiff.
If the consent of any party who should be joined as plaintiff cannot be obtained, he may be made a defendant and the reason therefor shall be stated in the
complaint.
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Sec. 13. Alternative defendants.
Where 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
a right to relief against one may be inconsistent with a right of relief against the other.
Sec. 14. Unknown identity or name of defendant.
Whenever the identity or name of a defendant is unknown, he may be sued as the unknown owner, heir, devisee, or by such other designation as the case
may require; when his identity or true name is discovered, the pleading must be
amended accordingly
Sec. 15. Entity without juridical personality as defendant.
When two or more persons not organized as an entity with juridical personality enter into a transaction, they may be sued under the name by
which they are generally or commonly known.
In the answer of such defendant, the names and addresses of the persons composing said entity must all be revealed.
13. DUTY OF COUNSEL WHEN PARTY DIES + EFFECT OF NON-SUBSTITUTION OF
DECEASED PARTY
Sec. 16. Death of party; duty of counsel.
Whenever a party to a pending action dies, and the claim is not thereby extinguished, it shall be the duty of his counsel to inform the court within
thirty (30) days after such death of the fact thereof, and to give the
name and address of his legal representative or representatives.
Failure of counsel to comply with this duty shall be a ground for disciplinary action.
The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an executor or
administrator and the court may appoint a guardian ad litem for the minor heirs.
The court shall forthwith order said legal representative or representatives to appear and be substituted within a period of thirty (30) days from notice.
If no legal representative is named by the counsel for the deceased
party, or if the one so named shall fail to appear within the specified period, the court may order the opposing party, within a specified time,
to procure the appointment of an executor or administrator for the estate of the deceased and the latter shall immediately appear for and
on behalf of the deceased. The court charges in procuring such appointment, if defrayed by the opposing
party, may be recovered as costs.
Hinog v. Melicor:
In this case, it must be remembered that Bertuldo Hinog died and he was
substituted by his heirs However, no formal substitution of the parties was effected within 30 days from
Bertuldo’s death as required by the RoC. o This rule on substitution is based on the right to due process. It is
to ensure that the deceased party would continue to be properly represented in the suit through his duly appointed legal representative
o Non-compliance with the rule on substitution would render the proceedings infirm because the court acquires no jurisdiction
over the persons of the legal representative on whom the trial and judgment would be binding
De la Cruz v. Joaquin
Doctrine: The general rule is that proceedings wherein no substitution is made
upon death of the original party are null and void Doctrine: However, a formal substitution by heirs is NOT necessary
when they themselves voluntarily appear, participate in the case and present evidence.
o These actions negate any claim that the right to due process was violated
Doctrine: Strictly speaking, the rule on the substitution by heirs is not a matter of jurisdiction but a requirement of due process. Thus, when due
process is not violated, as when the right of the representative is protected, non-compliance or belated formal compliance with the rules cannot affect the
validity of a promulgated decision. o Mere failure to substitute for a deceased plaintiff is not a
sufficient ground to nullify a trial court’s decision. N.B. as compared with the Hinog ruling, I think the SC wants to reiterate that
the rule on substitution is for the deceased party. Whether or not right to due
process was violated. Depends on the case.
Limbauan v. Acosta
It is well settled that the failure of counsel to comply with his duty under Section 16 to inform the court of the death of his client and no substitution of
such party is effected, will not invalidate the proceedings and the judgment thereon if the action survives the death of such party.
14. OTHERS: ROUNDING OUT RULE 3
Sec. 17. Death or separation of a party who is a public officer.
When a public officer is a party in an action in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office,
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o The action may be continued and maintained by or against his successor IF within thirty (30) days after the successor takes office
or such time as may be granted by the court,
It is satisfactorily shown to the court by any party that:
there is a substantial need for continuing or maintaining it AND
that the successor adopts or continues or threatens to adopt or continue the action of his
predecessor. Before a substitution is made, the party or officer to be affected shall be
given reasonable notice of the application therefor and accorded an opportunity to be heard.
o unless the party/officer affected assents to the substitution
Sec. 18. Incompetency or incapacity Keyword: The action may be allowed to
continue
If a party becomes incompetent or incapacitated,
o The court, upon motion with notice, may allow the action to be continued by or against the incompetent or incapacitated
person assisted by his legal guardian or guardian ad litem.
Sec. 19. Transfer of interest Keyword: The action may be continued against the original party
In case of any transfer of interest,
o The action may be continued by or against the original party, unless the court upon motion directs the person to
whom the interest is transferred to be substituted in the action or joined with the original party.
Sec. 20. Action on contractual money claims.
When the action is for recovery of money arising from contract, express or implied
And the defendant dies before entry of final judgment in the court in which the action was pending at the time of such death,
o It shall not be dismissed but shall instead be allowed to continue until entry of final judgment.
A favorable judgment obtained by the plaintiff therein shall be enforced in the manner especially provided in these Rules for prosecuting claims against the
estate of a deceased person.
Sec. 21. Indigent party. Keyword: Court must be satisfied that the party is poor
A party may be authorized to litigate his action, claim or defense as an indigent if the court, upon an ex parte application and hearing, is satisfied
that the party is one who has no money or property sufficient and available for food, shelter and basic necessities for himself and his family.
Such authority shall include an exemption from payment of docket and other lawful fees, and of transcripts of stenographic notes which the court
may order to be furnished him.
o The amount of the docket and other lawful fees which the indigent was
exempted from paying shall be a lien on any judgment rendered in the case favorable to the indigent, unless the court otherwise
provides. Any adverse party may contest the grant of such authority at any time before
judgment is rendered by the trial court. If the court should determine after hearing that the party declared as an
indigent is in fact a person with sufficient income or property, the proper docket and other lawful fees shall be assessed and collected by the clerk of court.
If payment is not made within the time fixed by the court, execution shall issue for the payment thereof, without prejudice to such other sanctions as the court
may impose.
Sec. 22. Notice to the Solicitor General.
In any action involving the validity of any treaty, law, ordinance, executive order, presidential decree, rules or regulations,
o The court, in its discretion, may require the appearance of the Solicitor General who may be heard in person or through a
representative duly designated by him.
15. VENUE: RULE 4
Venue: place where the action is to be commenced/instituted and tried. The place
of trial and geographical location on which an action should be brought.
Jurisdiction Venue
Power and authority of court to hear and
try the case
Place/Geographic location where the
case is to be tried, the locality or where
the suit may be had
Goes into the substance of the case Touches more on the convenience of the parties
Jurisdiction over the SM cannot be
waived, only conferred by law AND jurisdiction over the nature of the action
is also not waivable
May be waived and agreed upon
Venue of Actions
REAL PERSONAL: RESIDENCE
AND NOT DOMICILE AGAINST NON-
RESIDENTS
Court which has jurisdiction over the area
where the property, or a portion thereof is situated
1. Where the plaintiff or any of the principal
plaintiffs resides 2. Where the defendant/
1. commenced and tried in the court
of the place where the
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any of the principal defendant resides
(at election of plaintiff)
plaintiff resides 2. Where the
property/any
portion thereof is
found
Conditions:
1. Defendant: non-
resident 2. Not found in the
Philippines 3. Action affects
personal status of plaintiff
OR
The property of defendant is in the
Philippines
These rules are INAPPLICABLE when:
a. A law/rule provides otherwise b. Where the parties have validly agreed in writing on the exclusive
venue BEFORE the filing of the action
Diaz vs. Adiong: Improper venue is waivable but it is a ground for dismissal
Unless and until the defendant objects to the venue in a motion to dismiss prior to a responsive pleading, the venue cannot truly be said
to have been improperly laid. In this case, the motion to dismiss was belatedly filed and could no longer
deprive the court of its jurisdiction. Well-settled is the rule that improper venue may be waived and such
waiver may occur by laches.
Legsapi v. Republic
As regards restrictive stipulations on venue, jurisprudence instructs that it must show that such stipulation is exclusive.
In the case at bar, the venue is specific (Quezon City) and accompanied by the words ―the Contractor hereby expressly waiving any other venue‖ which
connotes exclusivity. The terms clearly stipulate exclusively the venue where action arising from the
Construction Agreement should be filed.
16. WAIVER OF IMPROPER VENUE
Express Waiver or Implied Waiver
Dacoycoy vs. IAC
It also had jurisdiction over Dacoycoy the moment he filed his complaint for
annulment and damages.
Dismissing the complaint on the ground of improper venue is not the right course of action, particularly because venue in inferior courts as well as RTC,
may be waived expressly or impliedly. Where defendant fails to challenge timely the venue in a motion to dismiss as
provided in Sec 4, Rule 4 Rules of Court and allows the trial to be held and a decision to be rendered, he cannot appeal or in a special action be permitted to
challenge belatedly the wrong venue, which is deemed waived. So, unless the defendant objects to the venue in a motion to dismiss, the venue
cannot truly be said to have been improperly laid, as for all intents and purposes, the venue, though technically wrong may be acceptable to the
parties.
The court cannot pre-empt the defendant’s prerogative to object to the
improper laying of the venue by motu proprio dismissing the case, as what happened in this case
Rules Involved:
Rule 6: Kinds of pleadings Rule 7: Parts of a pleading
Rule 8: Manner of making allegations in pleadings Rule 9: Effect of Failure to Plead
Rule 11: When to File Responsive Pleadings
What is a pleading? (Rule 6, Sec 1)
It is a written statement of the respective claims and defenses of the parties submitted to the court for appropriate judgment (It’s basically the paper
filed to either BEGIN or ANSWER a civil action)
What is a motion? (Rule 15, Sec 1)
On the other hand, a motion is an application for relief other than a pleading.
(Basically, a motion is a request made to the Court for an Order compelling the other side to do something or compelling the court to do something)
Where can parties assert their claim? (Rule 6 Sec 2)
1. Complaint (this is the pleading alleging the plaintiff’s cause of action, more on
this below) 2. Counterclaim
3. Cross-claim
4. Third (fourth) party complaint
5. Complaint in intervention
What are the parts of the pleading? (Rule 7, Sec 1-5)
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Caption: Sets forth: The name of the court
Title of the action
This shall indicate the names of the parties
HOWEVER in subsequent pleadings, it shall be sufficient if the name of the first party on each side be stated with an
indication that there are other parties (Juan Cruz et al v. John Doe et al)
Docket # if assigned Body: Sets forth:
The designation of the pleading (is it a complaint, counterclaim etc?) The allegations of the party’s claims or defenses
The relief prayed for Date of the pleading
The RoC sets some guidelines as regards the organization/formatting
Paragraphs The allegations in the body must be divided into numbered
paragraphs as to be readily identified
Headings When two or more causes of action are joined, the statement of the first shall be prefaced by the words ―first cause of action‖ and
so forth. The same goes for answers. ―answer to first cause of action‖
Relief The pleading shall specify the relief sought and a general prayer for other relief
Dated Every pleading must be dated
Signature Every pleading must be signed by the party or his counsel, stating
in either case his address which must not be a post office box
Effect of unsigned pleading: USELESS. No legal effect
Exception: The court may allow this to be remedied if it shall appear that the failure to sign was only due to inadvertence
and not intended for delay
Verification An affiant asserts in an affidavit that he has read the pleading and that the allegations therein are true and correct based on his
personal knowledge or authentic record
GR: pleadings need not be under oath and verified EX: when specifically required by law to be verified ((Petition to
take deposition before action, Petition for certiorari, Prohibition or Mandamus, Pleadings in summary procedure, etc: the list is
comprehensive: http://lawinnovations.wordpress.com/2009/11/19/verifiedpleadin
gs/
If not verified when required, the pleading can be dismissed out right.
Certification against
Required only for the complaint or initiatory pleading
forum shopping
Forum Shopping: Undertaking of certification
1. That he has not commenced any action or filed any claim
involving the same issues in any court, tribunal or quasi judicial agency and to the best of his knowledge, no such
action or claim is pending therein 2. If there is such an action/claim, he must completely state its
present status 3. If he should learn that the same or similar action or claim has
been filed or is pending, he shall report that fact w/in 5 days to the court where his complaint or initiatory pleading has
been filed
Effect of failure to compl
FORUM SHOPPING
Forum
Shopping:
As a result of an adverse decision in one forum, or in anticipation
thereof, a party seeks a favorable opinion in another forum through means other than appeal or certiorari
Effect of lack of or failure
to comply with the
certification
Failure to comply is not curable by mere amendment of the complaint/initiatory pleading.
Instead, it is a cause for DISMISSAL of the case without
prejudice, unless otherwise provided, upon motion and after hearing (not summary, unlike if it is willful and deliberate)
Effect of
submission of false
certification or non-
compliance
Indirect contempt of court and possible administrative and
criminal actions
If willful, it is a ground for summary dismissal with prejudice and shall constitute direct contempt
Rule 8: Manner of making allegations in pleadings
How are allegations
made in pleadings
Every pleading shall contain a plain, methodical, plain, concise and direct statement of the ultimate facts on
which the party relies for his claim or defense
Evidentiary facts should be omitted.
If a defense relied on is based on law, the provisions thereon and their applicability to him shall be clearly and concisely stated.
Ultimate facts Facts which directly form the basis of the right sought to be enforced, or the defense relied upon.
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Capacity Facts showing the capacity of a party to do the following must be averred:
a. To sue or be sued
b. Authority to sue or be sued in a representative
capacity c. Legal existence of an organized association of
persons
A party desiring to raise an issue as to the legal existence of any party or the capacity of the party to sue or be sued in
a representative capacity shall do so by specific denial (include supporting particulars that are within the pleader’s
knowledge)
Alternative
claims or
defenses
A party may set forth two or more statements of a claim or
defense alternatively or hypothetically either in one cause of
action or defense OR in separate causes of action or defenses
When two or more statements are made in the alternative and
one of them if made independently would be sufficient, the
pleading is not made insufficient by the insufficiency of one or more of the alternative statements
Alternative pleading permits a party in a court action to argue
multiple possibilities that may be mutually exclusive by making use of legal fiction.
Pleading in the alternative: sets forth multiple claims or
defenses either hypothetically or alternatively such that if one of the claims or defenses are held invalid, the others should still
have to be answered
Performance of condition
precedent
In any pleading, a general statement of the performance or occurrence of all conditions precedent shall be sufficient.
Averments of
fraud, mistake or condition of
mind
In all averments of fraud or mistake, the circumstances
constituting fraud or mistake must be stated with particularity.
However, malice, intent, knowledge or other condition of the mind of a person may be generally averred
Pleading judgments
In pleading a judgment or decision of a domestic/foreign court, judicial, quasi judicial tribunal, or of a board or officer, it is
SUFFICIENT to aver the judgment or decision w/o setting forth
matter showing jurisdiction to render it.
Official
documents
In pleading an official document/act, it is sufficient to aver that
the document was issued or the act done in compliance with law.
Action or
defense based on document
(Actionable
Whenever an action or defense is based on a written
instrument/document, the substance of such instrument shall be set forth in the pleading.
Document)
Need to bring
in new parties
in
counterclaim or cross claim
When the presence of parties other than those to the original
action is required for the granting of complete relief in the
determination of a counterclaim or cross-claim, the court shall
order them to be brought in as defendants, if the court can get jurisdiction over them.
17. SUBSTANTIAL REQUIREMENTS OF PLEADINGS: THE COMPLAINT
Complaint: The complaint is the pleading alleging the plaintiff’s cause/s of action.
The names and residences of the plaintiff and defendant must be stated in he complaint. As stated beforehand, the complaint must be organized, concise and
straight to the point, only including the ultimate facts relied upon. Further, the capacity of parties to sue/be sued must be averred.
Reyes v. RTC of Makati: Allegations in complaint determine jurisdiction of
the court
However, the rule provides that in all averments of fraud or mistake, the circumstances must be stated with particularity.
o Rodrigo alleged the following in his complaint: ―This is a complaint to determine the shares of stock of the
deceased spouses Reyes that were arbitrarily and fraudulently appropriated for himself x x x‖
Oscar through other schemes of fraud, unilaterally took possession and control of the management of Zenith‖
By some manipulative scheme, the shares of the mother was transferred solely in Oscar’s name‖
It is clear that these allegations of fraud are not properly supported by the required factual allegations. They are not particular enough to
confer jurisdiction on RTC Makati, a special commercial court. Rodrigo failed to show that the corporation’s nature, structure or powers were
used to facilitate the fraudulent scheme.
In essence, Oscar, as an individual, was alleged to have transferred the shares
of Anastacia to his name, allowing him to become the majority stockholder. The complaint should’ve shown on its face what are claimed to be the
fraudulent corporate acts in order to invoke RTC Makati’s jurisdiction. Unfortunately, Rodrigo was given the opportunity to amend his complaint but
he refused. The court’s function in resolving issues of jurisdiction is limited to the
review of the allegations of the complaint, and on the basis of
allegations, to the determination of whether they fall within the terms of law defining the court’s jurisdiction. Therefore, RTC does NOT have
jurisdiction.
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18. SUBSTANTIAL REQUIREMENTS OF PLEADINGS: THE ANSWER
Answer (Rule 6 Sec 4-5) It is a pleading wherein a defending party sets forth his
defenses
What are the types of defenses?
1. Negative: A specific denial of the material facts/facts alleged in the pleading of the claimant essential to his cause/s of action
How are negative defenses alleged:
SPECIFIC DENIAL a. A defendant must specify what material allegation he denies and state his basis therefore
b. If he wishes to deny only a part of an averment, he shall specify what’s true and what he denies
c. If he is without knowledge/information sufficient to form a belief as to the truth of a material averment, he shall
state this and this shall operate as a denial
Effect of failure to deny: ADMISSION
QUESTIONING
CAPACITY OF
PLAINTIFF TO SUE
A party desiring to raise an issue as to the legal existence
of any party or the capacity of the party to sue or be sued in a representative capacity shall do so by specific
denial (include supporting particulars that are within the pleader’s knowledge)
QUESTIONING THE
GENUINENESS OF
THE DOCUMENT
The genuineness and due execution of the instrument shall be deemed admitted when an action or defense is founded
upon a written instrument (an actionable document)
UNLESS: the adverse party, under oath, specifically denies them and sets forth what he claims to be the facts -> this
denial must be verified
Requirement of oath not needed when:
a. The adverse party does not appear to be a party to he instrument
b. When compliance with a court order for an inspection of the original instrument is refused
NEGATIVE
PREGNANT:
A denial pregnant with the admission of the substantial facts
in the pleading responded to which are NOT squarely denied.
Memita v. Masongsong
M supplied RM with chicken on credit. M then filed a complaint alleging that RM’s credit has already reached 600k and that RM refused to pay.
RM did not deny that he purchased goods on credit BUT his refusal to pay was due to questionable deliveries and such. RM failed to show a sales invoice which
substantiated his claim of questionable/short deliveries.
The sales invoices were presented as evidence by M and their genuineness and
due execution were deemed admitted for RM’s failure to deny them. The SC ruled that RM’s answer failed to deny or contest the
genuineness/due execution of any of the receipts or any of the signatures. RM, in alleging questionable and short deliveries,
essentially alleges that M committed fraud. o However, he failed to substantiate it as he chose to present
evidence which did not set forth the facts nor substance of matters upon which to support his denial as required by Rule 8
Sec 8. (RM only presented the load order and issue form, which cannot be considered as his order as he can still call up SMC for
more orders)
The best evidence of their transactions were the sales invoices because it
showed that RM acknowledged receipt of M’s deliveries without protest. He failed to prove fraud. The lower courts did not err in admitting the evidence.
Philippine American general Insurance Co. v Sweet Lines
A maritime suit was commenced by petitioner Philippine American General
Insurance (Philamgen) and Tagum Plastics against respondents Sweet Lines and (carrier) Davao Veterans Arrastre and Port Services (arrastre operator)
seeking recovery of cost of lost or damaged goods COMPLAINT: It is alleged that Tagum Plastics ordered shipments of
Polythylene. Only 5.8k bags out of the 7k bags, however, were in good condition.
ANSWER: SLI, in its answer, raised the defense of prescription as per the bill of lading which provided:
o Bill of lading provides that claims for misdelivery, loss or damage must be filed within 30 days from accrual. Suits arising from shortage,
damage, or loss, etc shall be instituted within 60 days. Failure to file
claims or institute judicial proceedings constitutes a waiver of right of action
o Further, even if the bills of lading were not formally offered in evidence, the CA ruled that the litigation obviously depended on them
and that Sweet Lines seasonably raised prescription in its answer. REPLY: Petitioners stated that these were contracts of adhesion so they should
be declared null and void for being against public policy The RTC ruled in favor of the petitioners and ordered the respondents to pay.
The CA however dismissed the complaint on the ground of prescription, as provided in the bill of lading.
Petitioners argue that the CA erred in upholding, without proof of the existence of the so-called prescriptive period and hypothetically, even if there was, it is
null and void, and even if it was valid, that they complied therewith
Issue: Can Sweet Lines maintain prescription as a defense?
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In its reply, petitioner failed to specifically deny the existence of the bills of lading. This amounts to an admission. Judicial admissions made by parties in
the pleadings/course of the trial are conclusive, no evidence being required to
prove the same.
Moreover, when the due execution and genuineness of an instrument are deemed admitted because of the adverse party’s failure to make a specific
verified denial thereof, the instrument need not be formally presented as evidence .
Even granting that petitioner’s averment in its reply amounts to a denial, it is a pleading called a negative pregnant, a denial with the admission of the
substantial facts in the pleading responded to which are not squarely denied. While petitioners objected to the validity of the agreement for being
contrary to public policy, the existence of the bills of lading/stipulations were nevertheless impliedly admitted by them.
It follows therefore that the non-inclusion of the bills of lading in the formal
offer of evidence cannot, be considered a fatal procedural error as to bar Sweet
Lines from raising the defense of prescription. Also, it was proven that petitioner failed to file a notice of clam within the
prescribed period and did not even allege that it did. CA affirmed.
d. Affirmative: An allegation of a new matter which, while hypothetically admitting the material allegations in the claimant’s pleading, would
nevertheless prevent recovery by him.
Examples: FRIED-PP a. Fraud
b. Prescription c. Release
d. Payment e. Illegality
f. Estoppel g. Discharge in bankruptcy
h. Any other matter by way of confession/avoidance
e. Implied Admissions (Rule 9 Sec 1)
General Rule Defenses and objects not pleaded either in a motion to dismiss
or in an answer are deemed waived
Exception: The court will DISMISS the claim if it appears from the
pleadings or the evidence on the record that:
a. The court has no jurisdiction over the subject matter
b. That there is another action pending between the parties for the same cause
c. That the action is barred by prior judgment d. That the action is barred by prescription
f. Periods to plead (Rue 11 Sec 1-3)
ANSWER OF
DEFENDANT Within 15 days after service of summons UNLESS a different period is fixed by the court
ANSWER OF A
DEFENDANT
FOREIGN PRIVATE
JURIDICAL ENTITY
Must be filed within 30 DAYS after receipt of such summons by
such entity
ANSWER TO AN
AMENDED
COMPLAINT
1. When plaintiff files an amended complaint AS A MATTER OF RIGHT: defendant has 15 days after being served a copy of
the amended complaint 2. When plaintiff files an amended complaint and it’s not a
matter of right: defendant has 10 days from notice of the
order admitting the amended complaint
Note: An answer earlier filed may serve as the answer to the amended complaint if no new answer is filed.
g. Waiver of defenses (Rule 9 Sec 2): A compulsory counterclaim, or a cross-
claim, not set up shall be barred
19. SUBSTANTIAL REQUIREMENTS OF PLEADINGS: COUNTERCLAIM
Counterclaim (Rule 6 Sec 6): A counterclaim is any claim which a defending party
may have against the opposing party
How is a counterclaim raised?
Included in the
answer
A counterclaim may be asserted against an original counter
claimant (counter-counter claim)
A cross-claim may also be filed against an original cross
claimant
After the answer A counterclaim or a cross-claim which either matured or was
acquired by a party after serving his pleading may, with the
court’s permission, be presented as a counterclaim or a
cross-claim by supplemental pleading before judgment
What should the plaintiff do when a counterclaim is filed?
He should file an answer, because against the counterclaim, he is the defendant. He
has 10 days from service. (Rule 11 Sec 4)
20. KINDS OF COUNTERCLAIMS
COMPULSORY COUNTERCLAIM PERMISSIVE
COUNTERCLAIM
DEFINITION It is one which, being cognizable by the regular courts of justice,
arises out of or is connected with the transaction or
The permissive counterclaim arises from
an event unrelated to the matter on which
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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occurrence constituting the subject matter of the
opposing party’s claim and
does not require for its
adjudication the presence of third parties of whom the
court cannot acquire jurisdiction
Note: The counterclaim must
also be within the jurisdiction of the court both as to the amount
and to the nature thereof, except that in an original action
before the RTC, the counterclaim
may be considered regardless of
the amount.
the plaintiff's suit is based.
This is not barred even if
not pleaded
ELEMENTS: a. It arises out of or is
necessarily connected with,
the transaction or occurrence which is not the
subject matter of the opposing party’s claim
b. It does not require for its adjudication the presence of
third parties of whom the court cannot acquire
jurisdiction c. The court must have
jurisdiction to entertain the claim
Questions to test if its
compulsory/permissive:
a. Are the issues of fact/law raised by the
counterclaim the same?
b. Would res judicata bar a subsequent suit
on defendant’s claim even without the
compulsory counterclaim rule?
c. Will substantially the same evidence
support/refute plaintiff’s claim as
well as defendant’s counterclaim?
d. Is there any logical relation between the
claim and the counterclaim?
IF NO, then its
permissive.
REMEDY FOR
FAILURE TO RAISE
GR: a compulsory counterclaim
not set up is barred
EX: when the pleader fails to set up the counterclaim/cross-claim
through the following,
a. Oversight
File an independent action
since it involves different issues anyway
b. Inadvertence c. Excusable neglect
d. When justice requires
He may, by leave of court, set the counterclaim/cross by
amendment BEFORE judgment
NATURE: Generally: A compulsory
counterclaim is auxiliary to the proceeding in the original suit
and merely derives it jurisdictional support therefrom
Not auxiliary as it arises
from an unrelated event to the basis of plaintiff’s
suit
Note: A plaintiff sues a defendant in a civil action. A defendant, as per the RoC has the right to assert a legal claim of his own against the plaintiff. This is the
counterclaim. This makes assertions that the defendant could have made if the plaintiff did not sue first. This is different from a defense because a defense merely
seeks to DEFEAT the plaintiff’s law suit. The compulsory counterclaim arises from the same transaction or occurrence that forms the basis of the plaintiff’s suit.
Maceda v. CA
V leased his house to M and let him remodel it, subject to reimbursement. V
died and M was informed that the house was sold to G but M did not want to leave. G filed an ejectment case against M in the MeTC.
M insisted on being reimbursed for the value of his improvements and set up a counterclaim for 240k. MeTC granted the counterclaim and ordered
reimbursement
Issue: Did the MeTC, in an ejectment case (over the lessee’s counterclaim for the value of improvements), exceed the court’s jurisdictional limit of P20k?
SC held that the MeTC did not have jurisdiction over the counterclaim as it
exceeded 50k. A counterclaim in the MeTC/MTC beyond its jurisdictional limit may be pleaded
ONLY by way of defense, but not to obtain affirmative relief.
21. REPLY
Reply: It is a pleading which denies or alleges facts in denial or avoidance of
new matters alleged by way of defense in the answer. It joins/makes issue as
to the new matters.
If a party does not file such reply, all the new matters alleged in the answer are deemed controverted/challenged
If the plaintiff wishes to interpose any claims arising out of the new matters so
alleged, such claims shall be set forth in an amended/supplemental complaint.
Is a reply required?
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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It is generally optional.
But it is required when an action/defense is founded upon a written
instrument BECAUSE the written instrument shall be deemed admitted unless the adverse party, under oath, specifically denies them and sets
forth what he claims to be the facts (Rule 8 Sec 8)
Casent Realty v. Philbanking (Instance when a reply has to be made in order to specifically deny the authenticity of an actionable document)
C issued a PN in favor of R. R couldn’t collect so he filed a collection case.
C answered he and R already executed a dacion as regards his loan and C even presented supporting documents for this.
SC ruled that because R did not reply and specifically deny the supporting
documents of the dacion, its genuineness and due execution was deemed
admitted. This is an instance when a reply has to be made in order to deny the answer which is based on an actionable document.
22. THIRD/FOURTH PARTY COMPLAINT
3rd/4th Party Complaint (Rule 6 Sec 11): A claim that a defending party may, with leave of court, file against a person not a party to the action (called the third,
fourth party defendant for): CISA Contribution
Indemnity Subrogation
Any other relief o In respect of his opponent’s claim
What is done in response to a third/fourth party complaint?
Rule 6 Sec 13: A third/fourth-party defendant may allege in his answer
his: i. Defenses
ii. Counterclaims/cross claims iii. Defenses that that the 3rd/4th party plaintiff may have against
the original plaintiff’s claim iv. In proper cases, he may also assert a counterclaim against
the original plaintiff in respect of the original plaintiff’s claim against the third party plaintiff
1. The answer must be filed 15 days after service of summons
Remedy if dismissed: If the original plaintiff appeals the dismissal of his
complaint, the defendant-third party plaintiff must also appeal to get affirmative relief
Extension of time to plead (Rule 11 Sec 11): Court may extend upon motion and on such terms as may be just. Court may also allow a
pleading/answer to be filed beyond the fixed time.
23. FORMAL REQUIREMENTS: FILING AND SERVICE OF PLEADINGS, MOTIONS AND
ORDERS
Verification (Rule 7 Sec 4): A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true and correct of his
personal knowledge OR based on authentic records
Forum shopping: (reiterated): Forum shopping consists of filing multiple suits involving the same parties for the same cause of action, either simultaneously or
successively for the purpose of obtaining a favorable judgment
Elements of Forum Shopping: (Ao-As v. CA)
1. Identity of parties
2. Identity of rights asserted/relief prayed for 3. Identity of two preceding particulars, such that any judgment rendered in the
other action will amount to res judicata in the action under consideration
How is forum shopping committed?
1. Litis Pendentia: Filing multiple cases based on the same action and with the same prayer, the previous case not having been resolved yet
2. Res Judicata: Filing multiple cases based on the same cause of action/prayer, the previous case having been finally resolved
3. Splitting: Filing multiple cases based on the same cause of action but with different prayers
PAL v. Flight Attendants and Stewards Assoc of the Phils (FASAP)
FASAP and Bhagwani filed a case against PAL for unfair labor practice, illegal
suspension and dismissal in NLRC. NLRC ruled in favor of FASAP and ordered payment of damages. NLRC then modified the finding that PAL was guilty of unfair
labor practice. PAL appealed to the CA. The certificate of non-forum shopping that accompanied this appeal is what is at issue in this case. The CNFS was
signed by the VP of Human Resources and the AVP of Cabin Services of PAL without showing that they had authority to sign for PAL. Because of this, the
appeal was dismissed. An MR was filed but with this time accompanied by a board resolution which showed that he two had authority. This was again dismissed. The
SC held that only individuals vested with authority by a valid board resolution may sign the CNFS in behalf of the corporation. The belated submission of the
resolution was sufficient ground for dismissal. Further, at the time the
CNFS was filed, the two really didn’t have authority. An invalid CNFS cannot
be remedied by the subsequent submission of the Resolution
24. FILING AND SERVICE OF PLEADINGS
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Rule 13: Filing and Service of Pleadings, Judgments and other Papers
Rule 13 governs the filing of all pleadings and other papers as well as the service
thereof, except those for which a diff mode of service is prescribed.
Filing Act of presenting the pleading/other paper to the clerk of court. The manner would be presenting the original copies of
the papers personally to the clerk of court or through registered mail.
Service The act of providing a party with a copy of the pleading/paper concerned. If a party has counsel, service
must be made on the counsel UNLESS the court orders the service to be made to the party himself.
Service is done either: (R13 S11: Whenever practicable, the service and filing of pleadings shall be done PERSONALLY. A resort to other means
must be accompanied by an explanation)
Personally: 1) personally delivering a copy to the party or his counsel
2) leaving a copy in his (party/counsel) office with
a person having charge thereof
3) if no one is at the office, then at the party’s/counsel’s
residence, with a person of sufficient age/discretion
residing therein
Complete upon actual delivery
Mail: deposit a copy in the post office complete upon actual
receipt of addressee or 5 days from the date when
he received first notice from postmatster, which
is earlier
Substituted Service
If service cannot be made personally or by mail and the office
or residence of the party/counsel is unknown, it may be made by
delivering the copy to the clerk of court.
Upon party in default R9 S3:
If the defending party fails to answer within the time allowed therefor, the court,
shall, upon motion of the claiming party with notice to the defending party, and proof of such failure, DECLARE the defending party in default. The court
twill then proceed to render judgment granting the claimant such relief as his pleading my warrant
a) Effect of order of default: A party in default shall be entitled to notice of subsequent proceedings but NOT to take part in trial
b) Relief from order of default: A party declared in default may at any
time after notice thereof and before judgment file a motion under oath
to set aside the order of the default upon showing of FAME c) Effect of partial default: When a pleading asserting a claim states a
common cause of action against several defending parties, some of whom answer and the others fail to do so, the court shall try the case
against all upon the answers thus filed and render judgment on the evidence presented
d) Extent of relief awarded: A judgment rendered agaisn ta party in default shall not exceed the amount or be different in kind from that
prayed for nor award liquidated damages
Notice of Lis Pendens R13 S14: It is recording of a notice of pendency of an
action affecting the title/right of possession of real property in the RD in which the
property is situated. The plaintiff or the defendant may file this if an affirmative relief is claimed as regards the land The filing of such notice will operate to be
the constructive notice of the action as against any purchaser/encumbrancer and against parties designated in the notice. It
may be cancelled upon order of the court. (Basically, it’s telling everyone that the property is currently under litigation. It’s also for determination of good/bad faith)
25. RULE 10: AMENDED AND SUPPLEMENTAL PLEADINGS
How are pleadings
amended?
1. Adding/striking out an allegation or a name of any
party 2. Correcting a mistake in the name of a party or a mistaken
or inadequate allegation of description in any other respect
Purpose So that the actual merits of the controversy may speedily be determined, without regard to technicalities
Effect of
amendment
Amended pleading supersedes the original pleading
HOWEVER, admissions in superseded pleadings may be
received in evidence and claims or defenses alleged therein not incorporated in the amended pleading shall
be deemed waived.
Barfel Development Corp. vs. CA
Petitioner Barfel, as sellers, and Private respondent Reginas Industries, as buyer, entered into an Agreement to Buy/Sell 2 parcels of land. The agreement
stated that the seller will apply the payment of cash to the removal of any lien on the properties. Barfel warranted that except for a mortgage in favor of BPI,
there are no other liens on the properties. However, Reginas Industries discovered that the properties were subject to an second mortgage with
PISO/Central Bank
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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Subsequently. PSB informed Reginas Industries that its loan application with which to pay the properties has been approved. This was secured by a real
estate mortgage on the said properties. PSB undertook to pay the mortgage
due to BPI.
Barfel, in bad faith and breach of contract, failed and refused to comply with their obligation of securing releasing the second mortgage on the
subject properties, preventing the consummation of the sale. Thus, Reginas Industries filed a complaint for specific performance and damages
against Barfel. During Barfel’s presentation of evidence, Reginas Industries filed an
amended complaint which consisted of impleading PISO Bank as additional party defendant and compel it to accept payment of the
existing second mortgage. This was admitted by the court.
Issue: Was the admission of the amended complaint proper notwithstanding the
provisions Sec 3 Rule 10 which states that ―After the case is set for hearing,
substantial amendments may be made only upon leave of court. But such leave may be refused if it appears to the court that the motion was made with intent to
delay the action or that the cause of action or defense is substantially altered?
The reason for the amendment impleading PISO is to compel the latter to
accept Regina’s payment and release the second mortgage. However, PISO
bank is not a party to the contract subject of the action for specific performance and damages between Reginas and Barfel. Thus, it is not an
indispensable party. The action for specific performance by Reginas against Barfel is not the proper
venue for releasing all liens the subject property, thus allowing such inclusion would delay proceedings on the original case.
Also, the amendment sought by private respondents, which is to include a new party defendant at a late stage in the proceeding is a substantial
one. Thus, Reginas will have to present additional to the effect that it would be a new trial
Kinds of Amendments:
Formal amendment Defects in the designation of the parties or
clerical/typographical errors may be corrected by the court at its own initiative or upon motion PROVIDED no prejudice
is caused to the adverse party
Substantial
amendment
1. As a matter of right: ONCE as a matter of right
a. at any time before a responsive pleading is served
b. in case of a reply, at any time within 10 days after it is served
2. As a matter of discretion of the court: A substantial amendment after a responsive pleading has been filed
may be made only upon leave of court and after
notice to adverse party and an opportunity to be heard. This may be denied if the motion to amend was
only for delaying tactics
Amendment to conform to or
authorize presentation of
evidence
When issues not raised by the pleadings are tried with the consent of the parties, they shall be treated as if they
were raised in the pleadings.
To conform to the evidence presented, amendments to the pleadings may be made upon motion of any party at
any time, even after judgment.
If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the COURT
may allow the pleadings to be amended and shall do so with
liberality if the presentation of the merits and the ends of
justice will be subserved thereby.
Supplemental pleadings: A pleading that is always by leave court, and upon
motion and upon notice, that seeks to include transactions, occurrences or events which have happened since the date of the filing of the pleading sought to be
supplemented.
Amended Supplemental
It seeks to include facts already existing
at the date of the original pleading sought to be amended but were not
pleaded due to inadvertence/mistake
It seeks to include facts that occurred
since the date of the pleading sought to be supplemented
A matter of right before a responsive
pleading is filed
Always be leave of court
New copy of entire pleading needed No new copy needed
Original superseded by the amended Original pleading stands and now
includes the supplemental
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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Rule 12: Bill of Particulars
WHAT IS A BILL
OF
PARTICULARS?
A more definite statement of any matter which is NOT
averred with sufficient definiteness or particularity. It
becomes part of the pleading to which it is intended. When
a pleading is couched in general/vague terms, file for a BoP
PURPOSE To enable the opposing party to properly prepare his
responsive pleading
Virata v. Sandiganbayan: Function is to limit a pleading,
specify more particularly a claim or defense set up in
general terms, give information to the opposite party and
the court as to the precise nature, character, scope and
extent of the cause of action.
WHEN FILED Before responding to a pleading, a party may move for a bill
of particulars
EFFECT WHEN
FILED
Clerk will bring it to the attention of the court and court has
three options:
1. Grant
2. Deny
3. Allow the parties an opportunity to be heard
EFFECT OF NON-
COMPLIANCE
1. The court may order the striking out of the pleading or
the portions thereof to which the order was directed
2. Make another order as it may deem just
INTERRUPTING
EFFECT
After service of the BoP or after notice of denial of his
motion,
The moving party (party who asked for BoP) may file his
responsive pleading within the period to which he was
entitled at the time of filing his motion which shall be at
least 5 days at any event
NOTICE AND
HEARING
REQUIREMENTS:
This is a motion so it requires notice of hearing with proof of
service to the other party
Doctrines:
1. Virata v. Sandiganbayan:
a. It is not the office of a BoP to:
i. supply material allegations necessary to the validity of the
pleading
ii. to change a cause of action or defense stated in the
pleading
iii. to state a new cause of action
Rule 19: Intervention
WHAT IS
INTERVENTION
It is an act or proceeding by which a third person is permitted
to become a party to an action or proceeding between other
persons. Its purpose is to determine all conflicting claims
regards all the parties involved.
WHO MAY
INTERVENE?
M-S-B-A
1. One who has a legal interest in the matter of litigation
2. One who has legal interest in the success of either of the
parties
3. One who has an interest against both parties
4. One who is so situated as to be adversely affected by a
distribution or other disposition of property in the custody
of the court or of an officer thereof
REQUIREMENTS
FOR
INTERVENTION
TO BE ALLOWED:
Saw v. CA:
1. Legal interest of the movant in the SM of litigation or
otherwise qualified (basically, LEGAL INTEREST)
2. Court must give consideration as to whether:
3. the adjudication of the rights of the original parties
may be:
a. delayed or prejudiced, or
b. whether intervenor’s rights may be
protected in a separated proceeding or not
MANDATORY OR
DISCRETIONARY?
Intervention is discretionary upon the court for an intervening
party requires the leave of court.
Intervention can only be remedied by mandamus if the denial
was due to GADLEJ
PLEADINGS TO
BE FILED:
1. Complaint-in-intervention: If he asserts a claim
against either or all of the original parties
2. Answer-in-intervention: If he unites with the defending
party in resisting a claim against the plaintiff
WHEN FILED: Motion to intervene must be filed BEFORE trial court renders
judgment
Doctrines:
1. Saw v. CA and Metropolitan Bank v. Presiding Judge
a. General Rule: Intervention is just an ancillary and supplemental
one which, in the nature of things, unless otherwise provided by
law, is subordinate to the main action. (Basically, if the main
action is dismissed, complaint-in-intervention is dismissed)
b. Exception: If the original action is dismissed and it had not
affected the rights of intervenor, the intervenor’s petition
showing it to be entitled to affirmative relief will be
preserved.
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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Rule 14: Summons
WHAT IS
SUMMONS?
It is a writ directed to a defendant, notifying him of the civil
complaint filed against him.
WHO ISSUES THE
SUMMONS?
The clerk of court issues the summons upon the filing of the
complaint and the payment of fees
PURPOSE OF
SUMMONS
To acquire JURISDICTION over the person of the
defendant
CONTENTS OF
SUMMONS
1. Name of the court and names of parties to the action
2. A direction that the defendant should answer within the
time fixed
3. A notice that unless defendant answers, he shall be
declared in default
WHO SERVES
SUMMONS
1. The sheriff
2. Sheriff’s deputy
3. Other proper court officer: bailiff, subpoena server,
warrant officer
4. Any other suitable person authorized by the court
EFFECT OF
DEFECTIVE
SUMMONS
Defendant can file a motion to dismiss on the ground of lack
of jurisdiction over his person
EFFECT OF
VOLUNTARY
APPEARANCE
If defendant voluntarily appears, it shall be equivalent to
service of summons.
HOWEVER, the inclusion in a MTD of other grounds aside
from lack of jurisdiction shall not be deemed voluntary
appearance
Modes of Service
PERSONAL 1. Personally handing a copy to the defendant in
person
2. If he refuses, by tendering it to him
SUBSTITUTED If, for justifiable reasons, the defendant cannot be
served, it can be effected by:
1. Leaving a copy of the summons at defendant’s
residence with some person of suitable age and
discretion residing therein
2. Leaving copies at defendant’s office or regular place
of business with some competent person in charge
PUBLICATION See Sec 14
EXTRATERRITORIAL See Sec 15: Not allowed in personal actions
ON WHOM SUMMONS
SERVED SPECIFICALLY HOW IT IS SERVED
Normal person-
defendant (and
generally)
1. Personal service
2. Substituted service
3. Publication (with leave of court)
Entity without juridical personality,
when sued in the name they are
generally/commonly
known:
1. Any one of the associated persons
2. All of the associated persons
3. Person in charge of the
office
1. Personal service 2. Substituted service
BUT: such service shall
not individually bind any
person whose connection with the entity has, upon
due notice, been severed before the action was
brought
Domestic private
juridical entity
1. President
2. Managing Partner 3. General manager
4. Corporate Secretary 5. Treasurer
6. In-house counsel
1. Personal service to
any one of them 2. Substituted service
Foreign private
juridical entity
1. Resident Agent
2. If none, on the
government official
designated by law
3. Any of its
officers/agents within
the Philippines
1. Personal service
2. Substituted service
Public Corporation 1. Solgen
2. If province, city,
municipality:
Executive Head
3. Other officers as
law/court may direct
1. Personal service
2. Substituted service
Minors 1. Upon the minor AND
his guardian/parent
1. Personal
2. Substituted
Insane,
incompetent
1. Upon the insane and
his legal guardian
1. Personal
2. Substituted
Prisoners 1. Upon the officer
having management
of the jail who is
deemed deputized
1. Personal
2. Substitute
Unknown
defendant: If his
identity and location
CANNOT be
1. Publication in a
newspaper or in
such places as the
court may order
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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ascertained with
diligent inquiry
Resident
temporarily out of
the country
1. Extra-territorial
service with leave of
court
2. Substituted service
with leave of court
3. Service by
publication with
leave of court (with
order sent to the
last known address
of defendant)
4. Any other manner
court deems proper
Non-resident:
Requirements:
QUASI in REM and
IN REM actions
Does not reside/not
found in the
Philippines
The action affects
personal status of the
plaintiff
OR
The subject of the
action is property in
the Philippines where
defendant has interest
and plaintiff seeks to
include him
OR
Properties of
defendant were
attached
1. Extra-territorial
service with leave of
court
2. Substituted service
with leave of court
3. Service by
publication with
leave of court (with
order sent to the
last known address
of defendant)
4. Any other manner
court deems proper
Doctrines:
1. Valmonte v. CA:
a. If the action is in rem or quasi in rem, jurisdiction over the person of the defendant is not essential for giving the court jurisdiction so long as the court acquires jurisdiction over the res. If the defendant is a
nonresident and he is not found in the country, summons may be served exterritorially in accordance with Sec 15
b. In such cases, what gives the court jurisdiction in an action in rem or quasi in rem is that it has jurisdiction over the res, i.e. the
personal status of the plaintiff who is domiciled in the Philippines or the property litigated or attached.
c. Service of summons in the manner provided in Sec 15 is not for
the purpose of vesting it with jurisdiction but for complying with the requirements of fair play or due process, so that he will
be informed of the pendency of the action against him and the possibility that property in the Philippines belonging to him or in which
he has an interest may be subjected to a judgment in favor of the plaintiff and he can thereby take steps to protect his interest if he is so
minded. 2. Cezar v. Ricafort-Bautista and Lhullier v British Airways:
a. General Rule: Appearance cures defective summons: A voluntary
appearance is a waiver of the necessity of summons.
b. Exception: If a defendant appears and questions the court’s
jurisdiction, it is not considered a voluntary appearance
3. Montefalcon v. Vasquez:
a. For residents temporarily out of the country, the primary mode is
substituted service.
4. Valmonte v. CA:
a. When it comes to non-residents who are not found in the
Philippines and the action is in-rem/quasi-in-rem, service must be
made extra-territorially
b. Problem: A is in the US and resides there. B sues A for partition
(quasi in rem) To properly serve A, the three methods as provided
for in Sec 15 have to be used and they all have to be done
OUTSIDE the country:
i. Personal service, with leave of court
ii. Publication in newspaper of GC with copy of the
summons/order of the court to be sent by registered mail
to the last known address of defendant
iii. Any other manner which the court deems sufficient (i.e.
by service through the Phil Embassy in the foreign country
where the defendant resides)
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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Rule 15: Motions
WHAT IS A
MOTION?
It is an application for relief other than by a pleading
FORM In writing
Except: those made in open court/course of trial
CONTENTS 1. Relief sought to be obtained
2. Grounds relied upon
3. Supporting affidavits and other papers if required by the
rules or necessary to prove alleged facts
NOTICE AND
HEARING
REQUIREMENTS:
General Rule: every written motion shall be set for hearing
by the applicant
Exception: Motions which the court may act upon without
prejudicing the rights of the adverse party
REQUISITES: Victory Liner v. Malinianas:
1. Generally written
2. Relief must be stated
3. Notice of hearing (a date must have been set) to be
addressed to ALL parties concerned
4. Proof of service required
WHAT IS AN
OMNIBUS
MOTION?
A motion attacking a pleading, order, judgment or
proceeding (POJP) shall include ALL objections then
available, and all objections not included shall be deemed
waived
Exception: (Rule 9 Sec 1) Defenses and objections not
pleaded either in a motion to dismiss OR in an answer are
deemed waived
However, the court will DISMISS the claim when it appears
from the pleadings or on evidence on record of these
situations:
a. No jurisdiction over SM
b. Litis Pendentia
c. Res Judicata
d. Prescription
MOTION DAY GR: All motions shall be schedules for hearing on Friday
afternoons
Ex: If Friday is a non-working day, in the afternoon of the
next working day
Doctrines:
1. Compare and contrast Victory Liner, Lanto and Vlason
Victory Liner Lanto Vlason
In this case, the losing
party filed a motion for
reconsideration but did
not set the date for
hearing in the motion.
The MR was dismissed
and it was deemed not
have tolled the period
for appeal.
In this case, A contested a
resolution abolishing his
position. He went to court.
The members of the board
(who issued the resolution)
filed a motion to dismiss
and set the hearing for the
motion. A was unable to
attend the hearing but he
was able to file his written
opposition to the motion to
dismiss. The judge granted
the MTD, BUT took into
consideration A’s
arguments in his written
opposition.
Vlason was not
informed of any
cause of action
against it and it was
NOT validly
summoned. Despite
of that, Vlason was
ordered to be liable in
the case. Vlason filed
an MR but it was
dismissed for lack of
notice of time and
date of hearing.
GR: A motion without a
notice of hearing (with a
time and date set) is
useless
EX: When the adverse
party had an opportunity
to oppose, notice of
hearing is unnecessary.
EX: When a rigid
application would
result into
miscarriage of
justice/manifest
injustice
Reason why motion
must set the time and
place for hearing:
Unless the movant sets
the time and place of
hearing, the court will be
unable to determine
whether the adverse
party agrees or objects
to the motion and if he
objects, to hear him on
his objection, since the
rules themselves DO
NOT fix any period
within which he may file
his reply/opposition (to
a motion
The SC ruled that the
essence of requiring a
hearing for a motion is
DUE PROCESS.
In this case, A was able to
file his written opposition
and the order of dismissal
took into consideration his
arguments.
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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Rule 16: Motion to dismiss (Before answer)
WHEN IS THE
MTD FILED?
Within the time for but BEFORE filing the answer to the
complaint or to the pleading asserting a claim
*Note: Defendant given 15 days to answer
WHO FILES
THIS MTD?
The defendant
GROUNDS FOR
MTD
J2VC-LRC-
EUC
1. Court has no jurisdiction over the PERSON of the
defending party
2. Court has no jurisdiction over the SM
3. Improper venue
4. Plaintiff has no legal capacity to sue
5. There is another action pending between the same
parties for the same cause (litis pendentia)
6. That the cause of action is barred by a prior judgment
or by statute of limitations (res judicata+prescription)
7. That the pleading asserting the claim states no cause of
action
8. That the claim/demand of plaintiff has been paid,
waived, abandoned or extinguished
9. That the claim is unenforceable
10. A condition precedent has not been complied with
HEARING At the hearing of the motion, parties shall submit their
arguments and evidence on the questions of law and fact
involved.
If the case goes to trial, the evidence presented during the
hearing = part of the evidence of the party presenting the
same
HOW IS
MOTION
RESOLVED?
1. Court will DISMISS the action or claim (grant MTD)
2. Court will DENY the motion
3. Court will ORDER amendment of the pleading (of the
plaintiff)
All with reasons.
IF MTD IS
DENIED, WHAT
WILL MOVANT
DO?
The movant shall file his answer within the balance of the
period to which he was entitled at the time of serving his
motion.
However, this shall be at least 5 days in any event,
computed from his receipt of the notice of denial.
WHAT IF THE
PLEADING IS
ORDERED TO BE
AMENDED?
He shall file his answer within 15 days counted from service
of the amended pleading unless the court provides a longer
period
WHAT IS THE
EFFECT OF
DISMISSAL?
A MTD based on:
a. Res Judicata/Prescription
b. Extinguishment of claim
c. Unenforceability
Will bar the re-filling of the same action or claim.
However, this is still subject to the right of the
plaintiff/claiming party to appeal.
CAN THE
GROUNDS BE
PLEADED AS
AFFIRMATIVE
DEFENSES?
Affirmative Defense: Allegation of a new matter, which,
while hypothetically admitting the material allegations of the
pleading, would nevertheless prevent or bar recovery by him.
YES. If no MTD has been filed, any of the grounds provided
for may be pleaded as an affirmative defense in the answer
AND in the DISCRETION of the court, a preliminary
hearing may be had thereon as if a MTD has been filed.
However, the dismissal of the complaint under this section
(Sec 6: pleading grounds as affirmative defenses) shall
be without prejudice to the prosecution in the same or
separate action of a PERMISSIVE counterclaim pleaded
in the action (because mandatory counterclaims are
generally constrained to the main action)
IS
PRELIMINARY
HEARING
MANDATORY?
NO. Preliminary hearing when MTD grounds are pleaded as
affirmative defense is DISCRETIONARY upon the court.
Further, it was held in Municipality of Binan v. CA, that a
preliminary hearing is NOT necessary when the affirmative
defense is failure to state cause of action because the courts
only have to look at the allegations in the complaint anyway
(no need to hear the parties when the court has to look at
the complaint anyway)
REMEDIES AS
REGARDS THE
MTD
If MTD is GRANTED:
Plaintiff may appeal/MR
Re-file the case
If MTD is DENIED:
File an answer, go to trial, reiterate issues on appeal
If RTC committed GADLEJ, petition for certiorari
under rule 65
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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Case Doctrines:
1. Boticano v. Chu
a. A party cannot question jurisdiction over his person for the first
time on appeal -> Note: BUT jurisdiction over the subject matter
can be questioned at any time because it is conferred by law
b. Instances considered as voluntary appearance:
i. filing a notice of appeal
ii. appearing in person in the hearing
iii. filing notice of appeal, appeal bond, motion for extension
to file record on appeal
2. Del Rosario v. Far East Bank and Trust: ELEMENTS OF RES
JUDICATA:
a. Final former judgment
b. Court which rendered judgment had jurisdiction
c. Judgment must be on the merits
d. There must be identity of parties, SM and causes of action
3. Halimao v. Villanueva: Defendant filed a motion to dismiss based on res
judicata. Plaintiff argues that this operates as a hypothetical admission of
the alleged facts. VS. Tan v. CA
a. SC ruled that if the ground for motion to dismiss is RJ, it does not
operate as a hypothetical admission of the alleged facts.
b. General Rule: A MTD based on lack of cause of action operates
as a hypothetical admission of all the facts alleged in the
complaint (Basically saying, fine, even if all that is true, you still
don’t have a cause of action)
i. In this case, the hypothetical admission is limited to the
facts alleged in the complaint. From there, the court will
determine if there is a cause of action.
c. Exception: The court should not be constrained to the
consideration of facts alleged in the complaint and inferences fairly
deducible therefrom. Courts may consider facts within the range of
judicial notice and other relevant laws and jurisprudence, along
with examining records/documents incorporated in the complaint.
4. Asia Production v. Pano
a. SoF applies only to executory contracts and in actions for their
specific performance. It does NOT apply to actions which are
neither for violation of a contract nor for the performance thereof.
5. Sunville Timber v. Abad:
a. Non-observance of exhaustion of administrative remedies can be a
ground to dismiss (because it results into a lack of cause of action)
b. Examples of non-compliance with condition precedents:
i. Conciliation proceedings in the barangay level
ii. Suits between members of the family and no earnest
efforts for compromise were sought
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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Rule 17: Dismissal of actions (Dismissal due to plaintiff)
UNDER RULE 17,
WHO CAUSES THE
DISMISSAL?
This time, it’s the plaintiff
APPLICATION TO
COUNTERCLAIMS,
CROSS-CLAIMS OR
THIRD PARTY
COMPLAINT
The provisions of this rule apply to the dismissal of any
counterclaim, cross-claim or any third party complaint.
A voluntary dismissal by the claimant by notice shall be
made BEFOE a responsive pleading/motion for summary
judgment is served OR if there is none, before the
introduction of evidence at the trial or hearing
First Method (R17 S1): Upon notice by plaintiff
HOW IS IT DONE? By filing a notice of dismissal before the court. This is a
MATTER of RIGHT. No ground needed.
WHEN MUST IT BE
DONE?
Before the service of the answer (on the plaintiff)
Before service of motion for summary judgment
EFFECT OF FILING
NOTICE
Upon filing of the notice, the court shall issue an ORDER
confirming the dismissal. Court has no discretion.
IS THE DISMISSAL
WITH OR WITHOUT
PREJUDICE?
GR: It is a dismissal without prejudice
EX: With prejudice ONLY if stated
EX: Two-dismissal rule: If the plaintiff already filed a
notice concerning an action based on or including the
same claim, the SECOND FILING OF THE NOTICE
operates as an adjudication upon the merits
*Two-dismissal rule is IMPORTANT as it fulfills the
second element of Res Judicata!
Second Method (R17 S2): Upon motion of the plaintiff
HOW IS IT DONE? Motion to dismiss filed by the plaintiff + Court approval
WHEN MUST IT BE
DONE?
After service of the answer
After service of motion for summary judgment
EFFECT OF MOTION If granted, GR: Without prejudice to refiling,
EX: When specified that it is with prejudice
WHAT IF
DEFENDANT PLEADS
A COUNTERCLAIM
BEFORE HE IS
SERVED NOTICE OF
PLAINTIFF’S MTD?
The dismissal shall only be limited to the complaint.
The defendant can still prosecute his separate claim in a
separate action UNLESS within 15 day from notice of the
motion, he manifests his preference to have his
counterclaim resolved in the same action
WHAT ABOUT CLASS
SUITS
A class suit shall not be dismissed/compromised w/o
approval of the court
Third Method (R17 S3): Dismissal due to plaintiff’s fault
HOW IS IT DONE? Motion filed by:
1. Defendant
2. By the Court
GROUNDS FOR THE
MOTION?
(A-P-R-O)
1. Failure of the plaintiff to appear on the date of
the presentation of his evidence in chief
2. Failure of the plaintiff to prosecute his action
for an unreasonable length of time
3. Failure of the plaintiff to comply with Rules of
Court (failure to comply with discovery rules
r24-29 or failure to appear at pre-trial)
4. Failure of the plaintiff to comply with any order
of the court
EFFECT OF
DISMISSAL
Without prejudice to the right of the defendant to
prosecute his counterclaim in the same/separate action
IS THE DISMISSAL
WITH OR WITHOUT
PREJUDICE?
GR: It is with prejudice of refilling because it has the
effect of an adjudication upon the merits
EX: If the court declares that it is not
*Also important in determining existence of the second
element of RJ
REMEDIES OF
PLAINTIFF IF
DISMISSAL IS
UNDER THIS RULE
AND WITH
PREJUDICE
1. Motion for reconsideration (for
reinstatement/dismissal be made w/o prejudice)
2. Ko v. PNB: If denied, ordinary appeal under
rule 41 (not under rule 45)
3. If judgment final, a petition for relief from
judgment due to FAME under rule 38
CD:
1. Cruz v. CA: If the lower court orders dismissal due to the fault of the
plaintiff and does not qualify it, it has the effect of adjudication on the
merits. The dismissal will operate as fulfillment of the second element of
res judicata
2. Pinga v. Heirs of Santiago: Plaintiffs filed a case. Defendant had a
counterclaim. The case was dismissed due to the plaintiff’s fault.
a. In this case, defendant can still prosecute his counterclaim even
after the dismissal of the main case. This is of course with the
condition that the counterclaim is with merit or suffers any
jurisdictional flaws (otherwise, court can dismiss it on these
defects)
b. It does not matter whether it be a permissive or a mandatory
counterclaim.
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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Rule 9 Sec 3: Law on Default
WHO MAY BE
DECLARED IN
DEFAULT?
The defending party: original defending party, defendant
in counterclaim, the cross-defendant, the 3rd/4th/etc
party defendant
WHEN MAY A
DEFENDANT BE
DECLARED IN
DEFAULT?
1. If he fails to file an answer (within the time
allowed)
2. If he fails to furnish a copy of the answer
3. If he fails to appear at a pre-trial
4. If he fails to comply with modes of discovery
WHAT IS THE
PROCEDURE?
*court cannot motu
proprio declare
party in default
1. Claiming party files a motion to declare the
defending party in default
2. Defending party must be given notice of the motion
3. At the hearing, claiming party must show WHY the
defending party is in default (in this rule, prove that
defendant FAILED to answer)
4. Court will issue the order of default
5. Court will render judgment by default granting the
claimant such relief his pleading may warrant
UNLESS the court requires the claimant to submit
evidence (clerk of court can receive this evidence)
WHAT IS THE
EFFECT OF ORDER IN
DEFAULT?
1. Defaulted party still entitled to notice of subsequent
proceedings
2. Defaulted party CANNOT present evidence
3. Defaulted party LOSES right to be heard
WHAT IS THE
EFFECT OF PARTIAL
DEFAULT?
When a pleading asserting a claim states a common
cause of action against several defending parties, and
some of whom answer and the others fail to do so, the
court shall try the case against all upon the answers thus
filed and render judgment based on the evidence
presented
WHAT IS THE
LIMITATION ON THE
RELIEF GRANTED?
A judgment in default shall not exceed the amount or be
different in kind from that prayed for.
It can also not award liquidated damages.
WHEN IS DEFAULT
NOT ALLOWED
In an action for annulment, declaration of nullity or legal
separation: Instead, prosecuting attorney will check if
there is collusion and if none, will intervene
REMEDIES of DEFAULTED PARTY
Rule 9 Sec 3(b):
Motion to set aside
At any time AFTER notice of default and BEFORE
judgment, he may file a motion to set aside the order of
default with the showing of two grounds (both must
concur)
1. His failure to answer was due to FAME
2. He has a meritorious defense
Rule 40-41: Appeal
from the MTC to
the RTC and Appeal
from
Before finality, by filing a notice of appeal
Rule 37: Motion for
reconsideration or
new trial
After judgment BUT before finality, he may file an MR or
for new trial upon showing of FAME
Rule 38: Petition
for relief from
judgments, orders
other proceedings
After finality of judgment, if defaulted defendant
discovered the default, he may file a petition for relief
Rule 47:
Annulment of
judgments or final
orders and
resolutions
When new trial, appeal and petition for relief or other
appropriate remedies are not available through no fault
of the defaulted party, he may file for annulment of the
order of default based only on:
1. Extrinsic fraud (Fraud that couldn’t have been
discovered in trial and which prevented
defaulted party from participating)
2. Lack of jurisdiction of the court
Default Judgment Order of Default
This is used by the court, on motion
of the plaintiff, for failure of the party
to file a responsive pleading on time
Issued by the court after the
defending party has been declared in
default, or after the evidence of the
claimant has been received ex parte if
required by the court
1. Gajudo v. Traders Royal:
a. Just because the opposing party was declared in default, it doesn’t
mean that the plaintiff will automatically win. The burden of proof
falls upon him to substantiate his claim in his pleadings with
evidence (preponderance)
2. Vlason: No order of default against a party, no default judgment allowed
against that party
a. The court CANNOT render a default judgment against a party who
was not declared in default in the first place. The presentation of
evidence ex-parte against this party is INVALID.
3. Martinez v. Republic
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
30
a. Even though it is not expressly provided for in the RoC, a party
declared in default can still appeal the default judgment
against it
4. Jao & Co and Indiana Aerospace University:
a. GR: Default judgment is an adjudication on the merits and is thus
appealable/mr. Rule 65 is not the appropriate remedy
b. EX: Purely legal issues, public interest, extreme urgency, special
circumstances
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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Rule 18: Pre-Trial
WHEN IS PRE-
TRIAL
CONDUCTED?
After the last pleading has been served and filed Basically,
the REPLY by the plaintiff to the answer
WHAT IS THE
NATURE AND
PURPOSE OF
PRE-TRIAL?
Pre trial is MANDATORY. The court will consider the ff:
1. Possibility of an amicable settlement
2. Simplification of issues
3. Necessity of amendments to the pleadings
4. The possibility of obtaining stipulations/admissions of
facts and of documents to avoid unnecessary proof
5. The limitation of the number of witnesses
6. The advisability of a preliminary reference of issues to a
commissioner
7. The propriety of rendering judgment on the
pleadings/summary judgment/dismissal
8. The necessity of suspending the proceedings
9. Other matters that will aid in the disposition of the case
WHO HAS THE
DUTY TO SET THE
CASE FOR PRE-
TRIAL?
The plaintiff
He has 5 days to move ex-parte within 5 days from the
date of filing of the reply.
Effect of failure of plaintiff to set: The clerk of court
shall issue the notice of pre-trial
WHO SHOULD
THE NOTICE OF
PRE-TRIAL BE
SENT TO?
The notice of pre-trial shall be served on:
1. The counsel (he has the duty of notifying his client)
2. The party who has no counsel
WHAT IS THE
PRE-TRIAL
BRIEF?
The parties are required by the court to serve on each
other at least 3 days before the date of the pre-trial,
their respective pre-trial briefs. It shall contain:
1. A statement of their willingness to enter into an
amicable settlement or alternative modes of dispute
resolution
2. A summary of admitted facts
3. The issues to be tried/resolved
4. The documents or exhibits to be presented
5. A manifestation of their having availed or their
intention to avail themselves of discovery
procedures/referral to commissioners
6. The number and names of the witnesses, and the
substance of their respective testimonies
WHAT IS THE
EFFECT OF
FAILURE TO
Depends.
1. If plaintiff fails to appear: Cause for dismissal
APPEAR AT PRE-
TRIAL AND TO
FILE PRE-TRIAL
BRIEF?
a. GR: With prejudice
b. EX: If court orders that its not
2. If defendant fails: Plaintiff may present evidence ex
parte and the court may render judgment on the
basis thereof (like default)
WHEN MAY
FAILURE TO
APPEAR BE
EXCUSED?
1. If there is a VALID CAUSE
2. If a representative appears in the absent party’s
behalf fully authorized in writing to (depends)
a. Enter into an amicable settlement
b. To submit to alternative modes of dispute
resolution
c. To enter into stipulations or admissions of
facts and documents
CD:
1. LCK Industries v. Planters: A obtained a loan from B secured by a REM.
B foreclosed upon default. In the pre-trial, A’s defense/claim of
overpayment was not taken up. However, the SC ruled that this issue was
included because it only required simple math (Selling price at auction
sale-A’s obligation=overpayment)
a. A pre-trial order does not have to state each and every issue that
may be taken up during trial. Issues that are IMPLIEDLY
included are included in the pre-trial order as those
expressly stipulated
2. Calalang v. CA: Counsel of plaintiff was 15 minutes late for pre-trial. His
case was dismissed due to this
a. Absent any negligent or irresponsible conduct by the party (in this
case, the plaintiff), the court should consider lesser sanctions than
dismissal.
3. Spouses Corpuz v. Citibank
a. To constitute excusable negligence:
i. The absence must be due to counsel’s failure to take the
proper steps at the proper time and NOT in consequence
of his carelessness, inattention or willful disregard of the
court processes
ii. It must be due to some UNEXPECTED or UNAVOIDABLE
hindrance/accident
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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Rule 20: Calendar of Cases
WHO KEEPS THE
CALENDAR OF
CASES?
The clerk of court
WHAT CASES? 1. Pre-trial
2. Trial
3. Postponed/adjourned cases
4. Motions to set for hearing
WHAT CASES
ARE GIVEN
PREFERENCE?
1. Habeas corpus
2. Election
3. Special civil actions
4. Those required by law
HOW ARE CASES
ASSIGNED?
EXCLUSIVELY by raffle.
Raffle is done in open session with notice given to interested
parties to watch
Rule 22: Computation of time
How is a period
computed?
Basically, first day excluded and last day included
If the last day falls on a Saturday, Sunday or a legal
holiday, the time shall not run until the next working day
What is the
effect of
interruption?
Should an act be done which effectively interrupts the
running of the period, the allowable period after such
interruption shall start to run on the day AFTER the notice
of the cessation of the cause thereof
The day of the act which caused the interruption shall be
EXCLUDED in the computation of the period
EXAMPLES:
Basic 1: Plaintiff files case on May 2. Defendant given notice May 10.
Defendant has until May 26 to file answer.
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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Rule 30: Trial
WHEN IS TRIAL
CONDUCTED?
Upon entry of the case in the trial calendar, the clerk of
court shall notify the parties of the date of the trial to
ensure that the parties receive the notice at least 5
days before the date of trial
HOW IS A CASE
ADJOURNED/
POSTPONED?
A court may adjourn a trial from day to day and to any
stated time as the case may be
LIMITATION: However, the court shall not have the power
to adjourn a trial for more than one month (for each
adjournment) and the court cannot adjourn for more than 3
months in all -> except when authorized in writing by the
Court Admin of the SC
WHAT ARE THE
REQUISITES OF
THE MOTION TO
POSTPONE TRIAL
FOR ABSENCE OF
EVIDENCE?
1. Upon affidavit showing the importance of such evidence
2. AND the due diligence has been used to procure the
evidence
HOWEVER, if the adverse party admits the facts to be
given in evidence EVEN if he objects or reserves the
right to object to their admissibility, the trial shall not
be postponed.
WHAT ARE THE
REQUISITES OF A
MOTION TO
POSTPONE THE
TRIAL FOR
ILLNESS OF
PARTY/COUNSEL
1. Upon affidavit/sworn certification that the presence of
the party/counsel is indispensable
2. AND that the character of his illness is such as to
excuse his evidence
HOW ARE
PARTIES
COMPELLED TO
GO TO TRIAL?
By subpoena! Rule 21
1. Subpoena: A process directed to a person requiring
him
a. to attend and to testify at the hearing/trial of
an action
b. or any investigation conducted by
competent authority
c. or for taking his deposition
2. Subpoena duces tecum: A person will be required to
bring with him any books, documents or any things
under his control
WHO ISSUES THE
SUBPOENA?
1. The court before whom the witness is required to
attend
2. The court of the place where the deposition is to be
taken
3. The officer or body authorized by law to do so in
connection with investigations conducted by the
said officer/body
4. Any justice of the SC or of the CA in ANY case or
investigation pending within the Philippines
Note: A prisoner sentenced to death, RP or life and who is
confined in any penal institution shall not be brought
outside the penal institution for appearance/attendance
unless authorized
Note: A subpoena is made in the same manner as
personal/substituted service
CAN A SUBPOENA
BE QUASHED?
Yes. On these instances:
1. Upon motion
2. If it is unreasonable and oppressive
3. The relevancy of the books, documents is not
apparent
4. If the person who asks for the subpoena fails to
advance the reasonable cost for the production of
the books, docs, etc
5. A subpoena ad testificandum can be quashed on the
ground that the witness is not bound by it
6. The witness fees and kilometrage allowed were not
tendered when the subpoena was served
WHAT IF THE
WITNESS FAILS
TO ATTEND?
ARREST: The judge, upon proof of service and failure of
the witness, may issue a warrant of arrest for the witness
CONTEMPT: It is also considered contempt of court if the
witness fails to obey the subpoena
EXCEPTION: Arrest and contempt does not apply to:
1. a witness who resides more than 100km from his
residence to the place where is to testify
2. a prisoner who is not given permission by the court
WHAT IS THE
ORDER OF
TRIAL?
Rule: Trial limited to the issues stated in the pre-trial order
and shall proceed as follows UNLESS the court for special
reasons otherwise directs
1. Plaintiff: adduce evidence in support of his
complaint
2. Defendant: adduce evidence in support of his
defense, counter-claim, cross-claim and third party
complaint
3. Third party defendant (if any): adduce evidence of
his defense, counterclaim, cross-claim and fourth
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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party complaint
4. Fourth party and so forth: adduce evidence of the
material facts pleaded by them
5. Party against whom any counterclaim/cross-claim
has been pleaded: adduce evidence n support of his
defense
6. Afterwards, the parties may then respectively
adduce rebutting evidence ONLY
a. UNLESS the court, for good
reasons/justice, allows them to adduce
more evidence upon their original case
7. Upon admission of the evidence, the case shall be
deemed submitted for decision
a. UNLESS the court directs the parties to
argue or to submit their respective
memoranda or any further pleadings
CAN THE
PARTIES AGREE
TO A STATEMENT
OF FACTS?
Yes. The parties to any action may agree in writing, upon
the facts involved in litigation and submit the case for
judgment on these statement of facts, without having to
introduce evidence
If parties agree to ONLY some of the facts, the trial shall be
held as to the disputed facts
WHEN MAY A
CIVIL ACTION BE
SUSPENDED?
ART 2030
1. If the willingness to discuss a possible compromise
is expressed by one or both
2. If it appears that one of the parties, before the
commencement of the action, offered to discuss a
compromise and the other party refused the offer
WHAT CANNOT
BE
COMPROMISED?
ART 2035
1. Civil status of persons
2. Validity of marriage/leg sep
3. Any ground for legal separation
4. Future support
5. Jurisdiction of courts
6. Future legitime
WHO GENERALLY
RECEIVES THE
EVIDENCE?
Generally, the judge personally receives the evidence
HOWEVER, in:
1. Default hearings
2. Ex-parte hearings
3. Cases where the parties agree in writing
The clerk of court may receive the evidence. However, he
cannot rule on objections. The objections still have to be
resolved by the court
CD:
1. Swagman Hotels: Generally, the lack of cause of action may be
cured by evidence presented during trial but it can only happen when
the complaint indeed states a cause of action. If there is really none,
then it cannot be cured by evidence presented during trial.
Basically, a cause of action must EXIST but the complaint just failed to
allege the essential facts making up the cause of action
Rule 32: Trial by commissioner
FIRST WAY: With Consent: By written consent of both parties, the
court may order any or all of the issues in a case to be referred to a
commissioner to be agreed upon by the parties or to be appointed by the
court
o Commissioner: referee, auditor, examiner
SECOND WAY: Without Consent: When the parties do not consent, the
court may, upon the application of either party or of its own motion, direct
a reference to a commissioner in the following cases:
o When the trial of an issue of fact requires the examination of a
long account on either side
o When the taking of an account is necessary for the information of
the court before judgment, or for carrying a judgment or order
into effect
o When a question of fact, other than upon the pleadings, arises
upon motion or otherwise, in any stage of a case, or for carrying a
judgment or order into effect
Rule 31: Consolidation:
CONSOLIDATION JOINDER OF CAUSES OF
ACTION: RULE 2, SEC 5
PERMISSIVE JOINDER OF
PARTIES: RULE 3, SEC 6
When actions involving
a common question of
law or fact are pending
before the court, it may
order a joint
hearing/trial or any
or all the matters in
issue in the actions
The court may order all
the actions consolidated
A party in one pleading,
assert, in the alternative
or otherwise, as many
causes of action as he
may have
All persons in whom or
against whom any right
to relief in respect to
or arising out of the
same transaction or
series of transactions
is alleged to exist,
may join as
plaintiffs/defendants in
one complaint, where
any question of law or
fact common to all
such
plaintiffs/defendants
may arise in the
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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action
NOTE: Here, the
ACTIONS are
consolidated
NOTE: Here, the party
just asserts the causes
of action he has in ONE
pleading in that ONE
action
NOTE: Here, the parties
just join together
basically as
defendants/plaintiffs
Also, remember here
the two requisites:
1. Same transaction
2. Common question of
law/fact
Rule 33: Demurrer to evidence
WHEN IS THE DEMURRER
FILED?
After plaintiff has completed the presentation of his
evidence, the defendant may move for dismissal
ON WHAT GROUND? Upon facts and the law, the plaintiff has shown NO
RIGHT TO RELIEF
WHAT IF THE MOTION OF
THE DEFENDANT IS
DENIED?
The defendant will then present evidence
WHAT IF THE MOTION IS
GRANTED BUT THEN
REVERSED ON APPEAL (BY
PLAINTIFF)
The defendant shall be deemed to have waived the
right to present evidence
CD:
1. Republic v. Tuvera:
a. GR: Upon the dismissal of the demurrer in the appellate court, the
defendant loses the right to present his evidence and the appellate
court shall then proceed to render judgment on the merits on the
basis of the plaintiff’s evidence
2. Manila Banking Corp v. University of Baguio: IMPT: essential
difference of LACK of CAUSE of ACTION and FAILURE TO STATE CAUSE OF
ACTION
LACK OF CAUSE OF ACTION FAILURE TO STATE CAUSE OF
ACTION
Governing
rule
Demurrer to evidence
(R33)
Motion to dismiss (Rule 16)
Situation Where the evidence does
not sustain the cause of
action that is alleged
The basis here is the
Where the complaint does not
allege a sufficient cause of
action
Determined from the
evidence the plaintiff has
presented
allegations in the initiatory
pleading and not from
evidentiary matters
What is
done
AFTER plaintiff rests his
case, demurrer is filed
BEFORE a responsive pleading
is filed, a MTD is filed
Nature Here, the judge has already
received the evidence and
if he grants the demurrer,
then it means that the
evidence is lacking to
support the cause of action
Keyword: EVIDENCE
INSUFFICIENT to SUPPORT
COA
The judge here is not concerned
with the truth/falsity of the
allegations. He only looks at the
pleading.
Keyword: PRELIMINARY
OBJECTIONS before START of
TRIAL
Rule 34: Judgment on the Pleadings & Rule 35: Summary judgment
Note: Both are
motions
RULE 34: J ON PLEADINGS RULE 35: SUMMARY
JUDGMENTS
Ground/Requisites 1. When an answer fails
to tender an issue
2. When answer admits
material allegations of
the adverse party’s
pleadings
1. No genuine issue
on any material
fact, except for the
amount of damages
2. Moving party must be
entitled to a
judgment as a
matter of law
What is done? Adverse party moves for
the court to direct
judgment on the pleading
(the answer which failed to
tender an issue/the answer
that admitted)
Claimant:
At any time after the
pleading in answer has
been served, claimant
will move with support
affidavits, depositions,
admissions for a
summary judgment in
his favor
Defendant:
At any time, defendant
may move with
supporting affidavits,
depositions or
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
36
admissions for a
summary judgment in his
favor
Nature Here, there is actually NO
ISSUE at all.
It is a judgment on the
facts as pleaded
Only the CLAIMANT can file
for judgment on the
pleadings
Here, although the
pleadings on their face
appear to raise issues of
fact (like a denial/conflict
of factual allegations), if
it is shown by the support
affidavits, depositions or
admissions that those
issues are FAKE, the
court shall render
judgment for whoever
asks for it
Basically, it is a
judgment on the facts
as summarily proven
by the A/D/A
Case Doctrines:
1. Ontimare v. Elep:
a. Issues in a summary judgment ARE APPARENT but in fact
proven to be fake as per the affidavits, depositions or
admissions
b. An issue is ONLY genuine when it requires the presentation of
evidence
c. If a summary judgment is rendered AFTER the presentation of
evidence of the parties in a full blown trial, then the rules on
summary judgment does not apply since obviously, the judgment
was on the merits
2. Asian Construction v. PCIB:
a. The determinative factor in a motion for summary judgment is the
presence/absence of a genuine issue as to any material
fact
b. When the facts as pleaded appear uncontested or undisputed,
then there is no real or genuine issue as to the facts and summary
judgment is proper
c. When the facts as pleaded by the parties are disputed,
proceedings for summary judgment cannot take the place of trial
Rule 36: Judgments, Final Orders and Entry thereof
WHAT IS THE FORM
OF
JUDGMENTS/FINAL
ORDERS?
It is in writing, personally and directly prepared by the
judge, stating clearly and distinctly the facts and the
law on which it is based, signed by him, and filed by the
clerk of court
WHAT IS THE
NATURE OF A FINAL
JUDGMENT/FINAL
ORDER?
BA Finance:
A judgment/ final order disposes of the whole SM or
terminates a particular proceeding or action, leaving
nothing to be done but to execute what has been
determined
WHEN DOES A
JUDGMENT BECOME
FINAL?
When no appeal, MR, motion for new trial is filed within
the reglementary period, the judgment shall be entered
by the clerk of court
The date of finality of the judgment/final order shall be
deemed to be the date of its entry
JUDGMENT
FOR/AGAINST ONE
OR MORE SEVERAL
PARTIES AND
SEPARATE
JUDGMENTS
Judgment may be for one or more several
plaintiffs/defendants
Separate Judgments: When more than one claim for
relief is presented in an action, the court at any stage,
upon a determination of the issues material to a
particular claim and all counterclaims arising out of the
transaction or occurrence, may render a separate
judgment disposing of such claim.
The judgment will terminate the action with respect to
the claim so disposed of and the action shall proceed as
to the remaining claims.
When this happens, the court by order may stay the
enforcement of the separate judgment until the
rendition of a subsequent judgment or judgments and
Judgment against entity w/o juridical personality:
The judgment will set out their individual/proper names
if known.
SEVERAL
JUDGMENTS:
In an action against several defendants, the court may,
when a several judgment is proper, render judgment
against one or more of them, leaving the action to
proceed against the others
KINDS OF 1. Judgment on the pleadings
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JUDGMENTS 2. Judgment on demurrer
3. Summary judgment
4. Judgment on default
5. Judgment after ex parte presentation of evidence
(failure to appear at pre-trial)
KINDS OF ORDERS 1. Order to dismiss under rule 16
2. Order to dismiss under rule 17
3. Order to dismiss under rule 18 (failure to appear at
pre-trial)
4. Order to dismiss under rule 29 sec 5
KINDS OF ORDERS AS
TO CLAIMS
1. Judgment disposing of the entire claim
2. Judgment only disposing of a certain claim (out of
others)
KINDS OF ORDERS AS
TO HOW EXECUTED
Judgments not stayed on appeal (rule 39 Sec 4)
a. Judgments that cannot be stayed on
appeal: actions for:
i. Injunction
ii. Accounting
iii. Support
iv. Other judgments declared
immediately executory
2. Judgments for money (rule 39 sec 9)
3. Judgments for specific acts (rule 39 sec 10)
4. Special judgments
EFFECTS OF
JUDGMENTS AND
FINAL ORDERS
1. Local (rule 39 sec 47)
a. If judgment/final order is against:
i. A specific thing
ii. In respect to the probate of a will
iii. The administration of the estate of
a deceased person
iv. In respect to the
personal/political/legal condition of
a person or his relationship to
another
The judgment/final order is conclusive upon the title to
the thing, the will or the condition or status of the
person
b. In other cases, the j/fo is conclusive
between the parties and their
successors in interest by title
subsequent to the commencement of the
action/special proceeding, litigating for the
same thing and under the same title and
capacity with respect to the matter directly
adjudged or with respect to any matter
that could’ve been raised in relation thereto
c. In any other litigation between the
parties/successors in interest, that only is
deemed to have been adjudged in a former
judgment/final order which appears upon
its face to have been so adjudged, or which
was actually and necessarily included
therein/necessary thereto
2. Foreign: (foreign tribunal’s judgment)
a. If its upon a specific thing, the judgment/fo
is conclusive upon the title to the thing
b. If its against a person, the judgment/fo is
presumptive evidence of a right as between
the parties and their successors in interest
by subsequent title
In any case, the judgment/fo may be repelled by
evidence of:
a. Lack of jurisdiction
b. Lack of notice to the party
c. Collusion
d. Clear mistake of law or fact
WHEN MAY A
JUDGMENT BE
AMENDED?
1. Judgments may be amended BEFORE it becomes
final and executory
a. Judgments become final and executory 15
days after notice of judgment is received: it
is by operation of law
Example:
A filed a collection case against B. B lost. Court entered
judgment on April 3, 2010. B received notice of
judgment on April 10, 2010. In this case, if B does not
appeal, the judgment will become final and executory
on April 26, 2010.
GR: When a judgment becomes final and executory, it
cannot be amended anymore even if it is perceived
to be wrong (In law or in fact)
EX:
1. Judgments nunc pro tunc: Correction of errors
in the judgment (like the non entry of the
judgment in the entry book)
2. Void judgments
3. In the interest of justice (In Industrial Timber,
it was a labor case so the court carved out an
exception)
WHAT IS A
SUPPLEMENTAL
Remember, an amended judgment is an entirely new
decision and supersedes the original decision
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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JUDGMENT?
However, a supplemental judgment only serves to
bolster or add something to the main decision.
CD:
1. Del Rosario v. far East Bank and Trust: Difference of Bar by prior
judgment and conclusiveness of judgment
Bar by prior judgment Conclusiveness of judgment
Makes the judgment rendered in the
first case an absolute bar to the
subsequent action because the
judgment is conclusive not only as
to matters offered and received to
sustain it but also as to any other
matter which might have been
offered for that purpose
Situation where the judgment in the
prior action operates as an estoppel
only as to the matters ACTUALLY
determined or which were
necessarily included therein
This is a ground for a motion to
dismiss
This is not a ground for a MTD
Requisites of res judicata (bar by prior judgment)
1. Finality of the former judgment
2. Court had jurisdiction over the SM and the parties
3. It must be a judgment on the merits
4. There must be identity of parties, subject matter and causes of action
as between the two actions
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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REMEDIES against Judgments or final orders (to be edited for finals)
1st remedy: Before finality: Rule 37: New Trial/Reconsideration
Motion for
Reconsideration
Motion for New Trial
GROUNDS 1. Excessive damages
awarded
2. Insufficient evidence to
justify decision/final
order
3. Decision or final order
contrary to law
Shall point out specifically
the findings or conclusions
of the judgment or final
order
1. FAME which ordinary
prudence could not
have guarded against
Fraud: Extrinsic fraud
(happened outside of the
trial) -> Party prevented
Accident: Actual surprise
that prevented one from
appearing at trial
Mistake: Must be of fact
Excusable Negligence
Supported by: affidavits of
merits
2. Newly discovered
evidence which movant
could not have with
reasonable diligence,
have discovered and
produced at trial and
which if presented,
would probably alter
the result
Supported by: affidavits of
the witness by whom such
evidence is expected to be
given or duly authenticated
documents which are
proposed to be introduced
in evidence
WHEN FILED (BEFORE FINALITY) Within the period for taking an appeal
NOTE: Appeal period is interrupted by a timely motion for
new trial/reconsideration
NOTE: A motion for extension of time to file a motion for
new trial/reconsideration is not allowed
SECOND MR?
SECOND MNT?
Second MR:
GR: Generally, not allowed
EX: Equitable grounds (see
PCI Leasing)
Second motion for new
trial:
GR: A motion for new trial
shall include ALL grounds
then available and those
not included are deemed
waived.
As an exception, a second
one is allowed: Requisite:
1. Must be based on a
ground not
existing/available when
the first motion was
made
Time to file:
Before finality, excluding
the time during which the
first motion had been
pending
ACTIONS UPON THE
MOTION FOR
RECON/NEW TRIAL
1. Grant: TC may amend
the judgment
accordingly
2. Deny: unappealable:
Remedy: an appeal
from the
judgment/final order
itself
1. Grant: judgment will be
set aside and a new
trial will be granted
a. The original
judgment will
be vacated
b. The recorded
evidence taken
upon the
former trial
shall be used
at the new trial
if its important
to establish the
issues
2. Deny: unappealable:
Remedy: an appeal
from the
judgment/final order
itself
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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PARTIAL GRANT 1. The court may order a new trial/grant
reconsideration as regards the severable issues
without interfering with the judgment or final
order
2. The court may:
a. Enter a judgment or final order as to the
rest of the issues
b. Stay the enforcement of the final
order/judgment until after the new trial
PRO FORMA
MR/Motion for
new trial:
An MR/New Trial is deemed pro forma if it does not
specify the finding or conclusions in the judgment
which are not supported by evidence/contrary to law,
making express reference to the pertinent
evidence/legal provisions
If it is pro forma, then it does not interrupt the period
to appeal
Marina Properties: Although an MR may reiterate
issues already passed upon, that by itself does not
make it pro forma
o However, where the circumstances of a case
do not show an intent on the part of the
pleader to merely delay and his motion
reveals a bona fide effort to present
additional matters/reiterate his arguments,
the courts should not swiftly declare the
motion pro forma
Rule 40: From MTC to RTC
Where to appeal An appeal from a judgment/final order of a MTC may be
taken to the RTC exercising jurisdiction over the area to
which the MTC pertains
Note:
APPELLANT: appealing (yung talo)
APPELLEE: adverse (yung panalo)
Title remains (if it was Uy v. Sy in MTC, then its going to
be Uy v. Sy in the RTC on appeal)
When to appeal Within 15 days after notice to the appellant of the
judgment/final order
Within 30 days after notice to the appellant if a record on
appeal is required (special proceedings/in other cases)
How to appeal Filing a notice of appeal with the court that rendered the
judgment (with the MTC)
IMPT: docket fees must also be paid within the period for
taking an appeal
Effect of
perfection of
appeal
IF APPEAL BY NOTICE: A party’s appeal by notice is
deemed perfected as to him upon the filing of the
notice in due time
o The court loses jurisdiction over the case
upon perfection of the appeals filed in due
time and the expiration of the time to appeal
of other parties
IF APPEAL BY RECORD: If its appeal by record, the
appeal is deemed perfected as to the appealing party
with respect to the SM thereof upon the approval of
the record on appeal
o The court loses jurisdiction only over the SM
thereof upon the approval of the records on
appeal filed in due time and the expiration of
the time to appeal of other parties
In either case, prior to the transmittal of the original
record/record on appeal, the court (lower court) may:
o issue orders for the protection/preservation
of the rights of the parties which do not
involve any matter litigated by the appeal
o approve compromises
o permit appeals of indigent litigants
o order execution pending appeal (r39 s2)
o Allow withdrawal of appeal
Procedure in the
RTC
Upon the receipt of the complete record/record on
appeal, the clerk of court of the RTC shall notify the
parties of such fact
Within 15 days from such notice, it shall be the duty
of the appellant to submit a memorandum which shall
briefly discuss the errors imputed to the lower court,
a copy of which shall be furnished by him to the
adverse party
o FAILURE OF APPELLANT TO SUBMIT
MEMORANDUM: ground for appeal’s dismissal
Within 15 days from receipt of the memorandum, the
adverse party may file his memorandum
Upon the filing of the memorandum of the appellee,
or the expiration of the period to do so, the case shall
be considered submitted for decision. RTC will then
decide
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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Appeal from MTC
order of
dismissal
1. If an appeal is taken from an order of the lower court
dismissing the case without a trial on the merits,
the RTC may either affirm or reverse it as the case
may be
a. If the RTC affirmed dismissal based on lack of
jurisdiction (of the MTC) and the RTC had
jurisdiction, the RTC shall try the case on the
merits (it’s as if it was filed there)
b. If the RTC affirmed dismissal based on some
other grounds, Rule 42 (?)
c. If the RTC reverses the MTC, then the case
will be remanded to the MTC for further
proceedings
2. If the case was tried on the merits by the lower court
without jurisdiction over the SM, the RTC on appeal
shall not dismiss the case if it has original
jurisdiction thereof but it shall decide the case
without prejudice to the admission of amended
pleadings/additional evidence
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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Rule 41 (RTC to CA)
WHAT IS THE SUBJECT
OF APPEAL?
Taken from a:
1. Final order that completely disposes of the case
2. A particular matter in the case
WHEN IS AN APPEAL
NOT ALLOWED?
O (order)
Denying petition for relief
Interlocutory order Dismissing Appeal Denying a motion to
set aside a judgment by
Consent Execution
Dismissing an action without
prejudice Against one or more several parties
1. An order denying a petition for relief or any similar
motion seeking relief from judgment
2. An interlocutory order
3. An order disallowing or dismissing an appeal
4. An order denying a motion to set aside a judgment by
consent, confession or compromise on the ground of fraud,
mistake, duress or any other ground vitiating consent
5. An order of execution
6. A judgment or final order for or against one or more
several parties or in separate claims, counterclaims, cross-
claims and third-party complaints, while the main case is
pending, unless the court allows an appeal therefrom
7. An order dismissing an action without prejudice
In these circumstances, what is the remedy?
File an appropriate civil action under rule 65
EFFECT OF AM 07-7-
12-SC
Rule 37 Sec 9 now applies to an order denying a MNT or an MR
Remedy: When an order denying a MNT or an MR is made, the
remedy is an appeal from the judgment itself or final order
(which is the subject of the MR/MNT)
Exception (when you can’t appeal an order denying an MR): If
the subject of the MR is interlocutory (ex: When you’re the
defendant in a case, in case of filing an answer, you file a MTD,
when MTD is denied, defendant can file an MR.) -> Here, if the
MR is denied, the order denying the MTD is merely an
interlocutory order. It’s not a final order. Your remedy is rule 65
certiorari, and not appeal.
MODES OF APPEAL 1. Ordinary Appeal
RTC decision in the exercise of its original jurisdiction to
CA
How done? Filing a notice of appeal with the court which
rendered the judgment and serving a copy of it to the adverse
party
Record on appeal required only in special proceedings and/r or
separate appeals when required.
2. Petition for review
RTC decision in the exercise of its appellate jurisdiction
How done? Filing a petition for review (Rule 42)
3. Appeal by certiorari
How done?
When questions of law are raised or involved, it shall be to the SC
under rule 45
WHAT IS THE PERIOD
FOR AN ORDINARY
APPEAL?
15 days from notice of the judgment or final order appealed from
INTERRUPTION: a timely motion for new trial or reconsideration
NO EXTENSION FOR MR/MNT: can’t file a motion for extension
of time to file MNT or MR
*Note: If habeas corpus cases are appealed, it shall be taken 48
hours from notice of the judgment or final order.
WHEN PERFECTED IF by notice of appeal: perfected upon the filing of the notice
(with the RTC) and payment of lawful fees
IF by record on appeal: upon approval of the record on appeal
filed in due time (with the RTC)
LOSS OF
JURISDICTION
NOA: P+EXP
ROA: A+EXP
IF by notice of appeal: the court (RTC) loses jurisdiction over the case upon the perfection and the expiration of the time to
appeal of other parties
IF by record: the court loses jurisdiction ONLY over the subject
matter thereof upon the approval of the records on appeal
and the expiration of time to appeal of the other parties
RESIDUAL POWERS
I-A-P-O-A
In both instances (notice/record), the court (lower court) has
residual powers prior to the transmittal of the original record
(NoA) or record on appeal (RoA):
1. Issue orders for the protection and preservation of
rights of the parties which do not involve any matter
litigated by the appeal
2. Approve compromises
3. Permit appeals of indigent litigants
4. Order execution pending appeal (Sec 2 R39)
5. Allow withdrawal of appeal
DISMISSAL OF APPEAL Prior to the transmittal of the original record or record on
appeal to the appellate court, the trial court may dismiss:
a. Taken out of time
b. Non-payment of docket-other lawful fees
Note: The trial court may do this motu proprio or on motion
Remedy of aggrieved party: Rule 65
WHAT HAPPENS
WHEN APPEAL IS NOT
FILED IN TIME?
Judgment becomes final and executory
WILL JUDGMENT BE
STAYED?
Yes. Perfected appeal under Rule 41 will stay the judgment.
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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Cases (important cases, he loves questions about appeal)
1. Silverio Jr v. CA: The denial of an MR of an order dismissing a complaint is
NOT an interlocutory order. It is a final order. It is therefore appealable. If
appeal is not proper, like when it’s interlocutory, it’s rule 65.
Quick facts of the case: In the settlement of S’s estate, RTC issued an omnibus order requiring N to vacate the property belonging to S’s estate. N filed an MR
against the order which was denied. N filed a notice of appeal. The RTC denied it and the CA reversed. SC agreed with the RTC, reasoning that N availed of the
wrong remedy because you can’t appeal an interlocutory order. The remedy was rule 65. The estate wasn’t partitioned yet and the order was just for N to vacate.
Difference of final order and interlocutory order
Interlocutory Order Final order
one which does not dispose of the case completely but leaves something to be
decided upon
one that disposes of the subject matter in its entirety.
Generally non-appealable: BUT if rendered with GADLEJ: Rule 65 may lie.
Appealable
2. Manila Memorial Park v. CA: Effect when MR is filed on last day of 15 day
period: Imaginary 1 day left -> BUT this is changed by Neypes (as discussed below)
3. Neypes v. CA: FRESH PERIOD RULE
A filed a case against B. It was dismissed on April 10, 2007.
A received a copy of the order of dismissal on April 12, 2007. On April 27, 2007 (the last day), A filed an MR. It was dismissed.
Thereafter, A appealed on May 3, 2007. CA dismissed the appeal on the ground that it was too late. It ruled that
the 15 day period to appeal should have been counted from April 12, 2007, the day they received the order dismissing the complaint.
SC ruling: Now you get a fresh 15 day period once your MR/MNT is denied. 15 days from the receipt of the order of the court dismissing a
MNT/MR. o However, this 15 day fresh period to appeal is non-
extendible 40, 41, 42, 43, 45 -> when your MR is denied, you also have new 15 day
period except that under 40 and 41, the fresh period is non-extendible
4. Trans International v. CA: The court may extend the time or allow the
perfection of the appeal beyond the prescribed period if it be satisfactorily shown that there is justifiable reason, such as fraud, accident, mistake or
excusable negligence, or similar supervening casualty, without fault of
the appellant, which the court may deem sufficient reason for relieving him from the consequences of his failure to comply strictly with the law.
5. Kho v. Camacho (Notice of appeal does not require approval)
The RTC cannot dismiss an appeal on the ground that there are only
questions of law
This is because whether an appeal involves only a question of law and/or fact is left to the determination of the appellate court, and not by
the court which rendered the subject decision appealed from. The role of the judge who issued the order appealed from (in the RTC) is to
approve or disapprove the record on appeal (when required) and the appeal bond, but not a notice of appeal since a notice of appeal DOES
NOT REQUIRE the approval of the judge.
6. Custodio v. CA: An appellee (the one who won in the lower court), who has not himself appealed may not obtain from the appellate court any affirmative
relief other than what was granted in the lower court’s decision
a. EXCEPTION: (Citytrust) A and B, as solidary debtors, lost a
collection case to D. A appealed but it was dismissed. B appealed successfully and because of that, the interest rate as regards B
was reduced. The SC held that even if A did not successfully appeal, the reduced interest rate should also be applicable to it,
under the principle of equity
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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Rule 42: Petition for Review from the RTC to the CA
WHEN TAKEN? When the decision of the RTC is in the exercise of its appellate
jurisdiction file verified petition for review in the CA
Ross Rica Sales: A filed a case of unlawful detainer against B
in the MTC. B lost. B appealed the decision to the RTC (Rule 40). B lost in the RTC. His remedy is under Rule 42.
Note: The peculiar thing in this case is that when B lost in the
RTC, he filed a notice of appeal with the RTC (Rule 41) then he filed an MR with the RTC too. SC stated that the MR cured the
defective remedy initially availed of by B.
N.B. If case starts with MTC, Rule 42 comes into play because
the RTC will exercise its appellate jurisdiction
Grounds:
1. Error of fact 2. Error of law (pure questions of law may be raised)
3. Mixed errors of fact and law
PERIOD 15 days either
from notice of the decision sought to be reviewed OR from notice of the denial of petitioner’s MNT or MR
Note: (2 extensions)
Upon motion: 15 days additional extension can be availed of THEN another 15 day extension after that (for the most
compelling reasons) CAUSE FOR
DISMISSAL Note: The RoC provides that these constitute sufficient ground
for dismissal.
1. Failure to pay docket/lawful fee/costs 2. Failure to comply with proof of service of the petition
3. Failure to comply with certification for non-forum shopping
Sec 4 also provides that CA may dismiss the petition upon filing
when its: (PPQ)
1. Patently without merit 2. Prosecuted for delay
3. Questions raised are too unsubstantial WHEN IS PETITION
GIVEN DUE
COURSE?
When the CA finds prima facie that the lower court has
committed an error of fact or law that will warrant a reversal
or modification
Note: Sec 4 provides also that when the petition is filed, CA may require respondent to file a comment within 10 days from
notice. Just because CA required respondent to file a comment doesn’t mean it gave the petition due course
WHEN PERFECTED? Upon timely filing and the payment of corresponding docket
and other lawful fees
LOSS OF
JURISDICTION RTC loses jurisdiction over the case upon perfection of the appeal and the expiration of the time to appeal of the other
parties
RESIDUAL POWERS RTC has residual powers before the CA gives the petition due course
(IAPOA)
1. Issue orders for the protection and preservation of rights
of the parties which do not involve any matter litigated
by the appeal
2. Approve compromises
3. Permit appeals of indigent litigants
4. Order execution pending appeal (Sec 2 R39)
5. Allow withdrawal of appeal
WILL A PETITION
UNDER RULE 42
STAY THE
JUDGMENT?
(Situation: B lost a collection case in the MTC. He lost on
appeal to the RTC. He filed a petition for review under rule 42 to the CA. In this case, the judgment can’t be executed while
he is appealing it)
GR: Yes. When appeal is perfected, it shall stay the judgment or final order
EX: 1. Civil cases decided under rules of summary procedure (e.g.
forcible entry, unlawful detainer) 2. When CA, law or RoC provide otherwise
Case:
1. Ditching v. CA: The CA can dismiss a petition when it’s filed beyond the
reglementary period EVEN IF it already gave the petition due course. This is because perfection of an appeal within the reglementary period is a
jurisdictional requirement.
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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Rule 43: Quasi Judicial Agencies to CA
WHEN TAKEN? When judgment or final order is by the following quasi-judicial
agencies (Note: CTA not included anymore and look at RoC for complete list, will only note down the important/easy to
remember)
1. CSC 2. SEC
3. Office of the President 4. Land Registration Authority
5. Social Security Commission 6. GSIS
7. Board of Investments
8. Voluntary Arbitrators authorized by law
Grounds:
1. Question of fact 2. Question of law
3. Mixed question of fact and law
DECISIONS UNDER
THE LABOR CODE REMEDY for decisions under the Labor Code (by NLRC, Secretary of Labor, Director of Bureau of Labor Relations):
Petition for certiorari to the CA under Rule 65
DECISION OF DOJ
SEC REMEDY for decisions of DOJ Sec in petitions for review of prosecutor’s resolutions:
Petition for Certiorari to the CA under Rule 65
PERIOD 15 days either
from notice of the decision sought to be reviewed OR from notice of the denial of petitioner’s MNT or MR
Note:
Only one MR shall be allowed (2 extensions)
Upon motion: 15 days additional extension can be availed of THEN another 15 day extension after that (for the most
compelling reasons Cause for
dismissal Note: The RoC provides that these constitute sufficient ground
for dismissal.
1. Failure to pay docket/lawful fee/costs
2. Failure to comply with proof of service of the petition
3. Failure to comply with certification for non-forum
shopping
Sec 8 also provides that CA may dismiss the petition upon filing when its: (PPQ)
1. Patently without merit
2. Prosecuted for delay
3. Questions raised are too unsubstantial
WHEN IS PETITION
GIVEN DUE
COURSE?
When the CA finds prima facie that the QJ agency concerned has committed an error of fact or law that will warrant a
reversal or modification. If no prima facie showing, dismissed.
Finding of fact of QJ agency: When supported by substantial evidence, it shall be binding on the CA.
Effect of rule 43
on judgment
GR: The filing of a petition under rule 43 will NOT stay the
judgment, award, or final order (as compared to Rule 41, which does)
EXC: when CA directs otherwise or when law directs otherwise
Remedy to stay judgment: Apply for TRO
Samaniego doctrine: an appeal will not prevent the OMB
decision from being executory (penalty is not material anymore) even if appellant gets an injunction
1. Fabian v. Desierto and Lanting a. Appeals from the decisions of the Office of the Ombudsman in
administrative disciplinary cases should be taken to the Court of Appeals under the provisions of Rule 43 (OMB administrative
disciplinary decisions -> Rule 43 to the CA) b. Remedy from decision of OMB finding PC (through a resolution) in
criminal cases -> Rule 65 to the SC
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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Rule 45: Appeal by certiorari to the SC
WHEN TAKEN? Decisions of these courts:
1. CA 2. Sandiganbayan
3. CTA 4. RTC
PERIOD 15 days from notice of judgment or decision or denial of MNT or MR
Extension: Upon motion for extension, only a one time 30 day
extension. However, SC can do what it wants and relax this.
Grounds: Only PURE QUESTIONS OF LAW (See CRBC v. CA
below)
OTHER REMEDIES
TO BE INCLUDED IN
THE PETITION?
Petitioner may include
1. A writ of preliminary injunction 2. Other provisional remedies
CAUSE FOR
DISMISSAL Note: The RoC provides that these constitute sufficient ground for dismissal.
1. Failure to pay docket/lawful fee/costs
2. Failure to comply with proof of service of the petition 3. Failure to comply with certification for non-forum
shopping
Sec 5 also provides that SC may dismiss the petition upon filing when its: (PPQ)
1. Patently without merit
2. Prosecuted for delay 3. Questions raised are too unsubstantial
IS REVIEW A
MATTER OF RIGHT? No. This will be granted only if there are special and important reasons therefore. The following, even if not controlling, are the
guidelines
1. When lower court decided a question of substance not yet determined by the SC
2. When lower court decided a question of substance not in accordance with the law or jurisprudence
3. When the lower court departed from the accepted and
usual course of judicial proceedings 4. When the lower court allowed a departure from the
accepted and usual course of judicial proceedings
ADDITIONAL
PLEADINGS AND
DOCUMENTS
IN deciding whether to dismiss, deny or give due course to the
petition, the SC may require or allow the filing of such pleadings, briefs, documents, etc as it may deem necessary
APPLICABILITY Rule 45 applicable to both civil and criminal cases
Not applicable in criminal cases where the penalty imposed is death, RP or life imprisonment
1. Nunez v. GSIS Family Bank
The remedies of appeal and certiorari are mutually exclusive and not alternative or successive. (Filing of one will be a bar to the other)
The distinctions between Rules 45 and 65 are far and wide. The most apparent is that errors of jurisdiction are best reviewed in a special
civil action for certiorari under Rule 65 while errors of judgment can only be corrected by appeal in a petition for review under Rule
45. However, this Court, in the interest of justice, may treat a petition
for certiorari as having been filed under Rule 45 if the same was
filed within the reglementary period for filing a petition for review.
Nunez filed the petition on time both under Rules 45 and 65 therefore it can still be given due course
2. CRBC v. CA: When motion to dismiss is based on failure to state cause of action, there is no question of fact. It only raises questions of law. The proper
remedy for the aggrieved party is rule 45 and not rule 41 when this motion to dismiss is denied.
Question of Fact Question of Law
Doubt or difference arises as to the truth or falsehood of facts OR when the
question requires the study of the whole evidence, considering the credibility of
witnesses, relevancy of surrounding circumstances and the like.
KEYWORD: review of evidence to
determine truth/falsity of facts
exists when there is doubt or controversy as to how the law is applied
to a certain state of facts
examples:
determining if complaint states a cause of action (Note: Under Rule
16 MTD) issue of jurisdiction like w/n a court
has jurisdiction determining if a petition for relief
from judgment was properly granted
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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Rule 38: Petition for relief from judgment
WHAT ARE THE
REMEDIES AFTER
FINALITY?
1. Petition for relief from judgment (Rule 38)
2. Annulment of judgment (Rule 47)
3. Petition for certiorari (Rule 65) WHEN IS THIS
REMEDY AVAILABLE FINAL JUDGMENT: If a court enters a judgment against a
party through fraud, accident, mistake or excusable negligence (FAME)
LOSS OF APPEAL: When court enters judgment against a
party and the party is prevented from taking an appeal through FAME
In both cases, he will file the petition in the court that rendered the decision
Example: A filed a collection case against B in RTC Manila. A
won and the decision became final. If grounds are present, B must file the petition for relief in RTC Manila, the court that
rendered the judgment
Note: You can only file petition for relief from judgment in the
RTC or the MTC (not in the CA or SC)
Valencia v. CA: A petition for relief from judgment is only available against a final and executory judgment.
If the RTC/MTC decision subject of the petition for relief from
judgment has not yet attained finality because of a timely appeal or MR, then this remedy is NOT available.
PERIOD TO FILE Within 60 days after petition learns of the judgment, final order or other proceeding but NOT more than 6 months after such
judgment was entered or such proceeding was taken
“Since the proceeding was taken vs. entry of judgment”
Not all decisions are entered. For example, a compromise judgment requires no entry of judgment. From the time it is
rendered, it is already executory. In this case, the period shall be counted from the time the compromise judgment was made.
Victory Liner v. Malinias: Time for filing is strictly followed. If
it elapses, the petition CANNOT be given due course. GROUNDS 1. FAME
Fraud: must be extrinstic, the kind which prevented the
aggrieved party from having a trial or presenting his case to court.
Accident: Must be fortuitous, without any fault on part of the one asking for relief
Mistake: Must be a mistake of fact
Negligence to be excusable must be one which ordinary
diligence and prudence could not have guarded against.
2. Meritorious defense COURT ACTION REQUIRE ANSWER: Once the petition is filed and it is
sufficient in form and substance to justify relief, the court shall an issue order requiring the adverse parties to file an answer
(15 days)
AFTER ANSWER IS FILED: The court will hear the petition and if it finds that the allegations in it are not true, it shall
dismiss the petition.
IF COURT FINDS MERIT: It shall set aside the judgment or final order or other proceedings. Thereafter, the case will stand
as if it was never taken. The court shall then proceed to
hear and determine to the case as if a MNT/MR was granted.
WHERE DENIAL OF AN APPEAL IS SET ASIDE: The lower
court shall be required to give due course to the appeal and to elevate the record of the appealed case as if a timely and
proper appeal was made. PRELIMINARY
INJUNCTION The court, which the petition for relief was filed, may grant a
preliminary injunction as may be necessary upon filing by the petition of a bond in favor of the adverse party, conditioned
that if the petition is dismissed or the petitioner fails on the trial of the case upon its merits, he will pay the adverse party all
damages and costs that may be awarded to him by reason of the issuance of the injunction.
HOWEVER, the injunction shall not operate to discharge or
extinguish any lien which the adverse party may have acquired upon the property of the petitioner.
1. Gomez v. Montalban
Gomez filed a collection caseagainst Montalban in RTC. Montalban was declared in default for failing to file her answer on time. Court ruled in favor of Gomez
Montalban filed a petition for relief from judgment, alleging that there was defective summons because the summons was served on a certain dela Torre,
who allegedly was not authorized to receive summons (which led to her not
being able to answer)
o She claimed she had valid defenses and even claimed that the RTC did not have jurisdiction as the amount was only cognizable by the MTC
(40k was the principal amount claimed) The petition for relief was
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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granted. RTC set aside its decision for lack of jurisdiction without prejudice to re-filing in the MTC
Gomez went to the SC under rule 65
Issue: Did the RTC have jurisdiction? Was Montalban’s remedy proper given the fact that it was filed within the period for filing a motion for reconsideration/appeal?
Yes, RTC had jurisdiction. The principal loan was 40k with 15% interest but it
already grew to 239k. When it grew to 239k (because of interest), that’s when Gomez filed the complaint. (Back then, it was 200-300 for RTC)
o assuming that RTC had no jurisdiction on account of the defective service, the remedy of Montalban should have been an MR/MNT or
maybe even under rule 65
In Montalban’s petition for relief, she contended that judgment as entered
against her through mistake or fraud due to alleged defective summons.
A petition for relief from judgment is an equitable remedy that is
allowed only in exceptional cases where there is no other available or adequate remedy. In this case, she had so many other remedies available.
When a party has another remedy available to him, which may be either a motion for new trial or appeal from an adverse decision of the trial court, and
he was not prevented by fraud, accident, mistake or excusable negligence from filing such motion or taking such appeal, he cannot avail himself of this
petition. Indeed, relief will not be granted to a party who seeks avoidance from the
effects of the judgment when the loss of the remedy at law was due to his own negligence; otherwise the petition for relief can be used to revive the right to
appeal which had been lost thru inexcusable negligence
It also noteworthy that Montalban did not avail of the remedies of a defaulted
party In addition, a petition for certiorari to declare the nullity of a judgment by
default is also available if the trial court improperly declared a party in default, or even if the trial court properly declared a party in default, if grave abuse of
discretion attended such declaration.
What is the remedy when a petition for relief from judgment is granted?
Rule 45: If questions of law involved Rule 41: If there also questions of fact involved
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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Rule 47: Annulment of Judgments or final orders and resolutions
WHEN TAKEN?
Purcon v. MRM:
Only MTC/RTC
decisions can be
subject of
Annulment of
Judgment
Decisions/Final orders of RTC: This remedy is still available
even if the judgment has been final and executory
Who annuls? The CA annuls.
However, Sec 10 provides for this:
Judgments and final orders of MTCs shall be annulled in the RTC
having jurisdiction over the MTC. (meaning, if MTC decision is sought to be annulled, file it with the RTC)
Reliefs Available (Sec 9)
The judgment of annulment may include the award of damages,
attorney’s fees and other relief.
If the questioned judgment or final order or resolution has already been executed, the court may issue such orders of
restitution or other relief as equity may warrant.
GROUNDS
(COMBINED
SECTION 1 AND 2)
1. When ordinary remedies of MNT, appeal or petition for relief are no longer available through no fault of the
petitioner 2. Either EXTRINSIC FRAUD or LACK OF JURISDICTION (of
the RTC)
Note: Extrinsic fraud shall not be a valid ground IF it was already availed of OR could have been availed of in a motion for
new trial or petition for relief
Extrinsic Fraud: any fraudulent act of the prevailing party in the litigation which is committed outside of the trial of the case.
PERIOD FOR FILING 1. IF based on extrinsic fraud: Within 4 years from the discovery of the fraud
2. IF based on lack of jurisdiction: Before laches or estoppel bars its filing
PARTIES AND
CONTENTS Islamic Da’Wah: A non-party to the judgment may file this petition as long as he can prove his allegation that the
judgment was obtained through FAME or that the court did not have jurisdiction.
It must be verified and also include a certification for non-forum
shopping
COURT ACTION If there is no substantial merit to the petition, it can be
dismissed outright.
IF prima facie merit is found, it shall be given due course and
respondent will be served summons EFFECT OF IF GROUND IS LACK OF JURISDICTION: A judgment of
ANNULMENT OF
JUDGMENT annulment shall set aside the questioned judgment or final order or resolution and render the same null and void WITHOUT
prejudice to the original action being re-filed in the proper court
IF GROUND IS EXTRINSIC FRAUD: The court may on motion, order the trial court to try the case as if a timely motion
for new trial has been granted (CA will tell the RTC to try it again or RTC will tell MTC to try it again)
SUSPENSION OF
PRESCRIPTIVE
PERIOD
The prescriptive period for re-filing of the original action shall be deemed suspended from the filing of such original action
until the finality of the judgment of annulment.
HOWEVER the period will not be tolled where the extrinsic fraud is due to the plaintiff in the original action.
Victory Liner v. Malinias
Malianas’ car collided with Victory Liner’s bus. Malianas sued Victory Liner for damages to his truck. MTC ruled in favor of Malianas.
Victory Liner filed an MR but it was declared to be a mere scrap of paper for failure to
include notice of hearing therefore it did not toll the period to appeal (therefore it
was final and executory) He then went to the RTC by certiorari assailing the denial of
his MR. Also dismissed.
Victory Liner filed a petition for relief from judgment against the MTC denial of his
MR. It was denied for being filed out of time.
Victory Liner also filed a petition for annulment of judgment under rule 47 (with the
CA) CA ruled that the extrinsic fraud grounds raised by Victory Liner had already
been availed of in its earlier petition for relief from judgment. Determined, Victory
Liner went to the SC under Rule 45
Issue: Should Victory Liner’s petitions be granted?
First, what should have petitioner done?
o It could have assailed MTCs denial of the MR under rule 65 alleging
GADLEJ.
o It could’ve filed under rule 38, seeking that the MTC allow the appeal
despite the finality of judgment on the ground that it was prevented from
taking an appeal due to FAME
What he did was file a notice of appeal even if it was stated that the decision was
already final and executory due to the defective MR. This was wrong. Also, it was
only after the notice of appeal was denied that VL pursued rule 38. Unfortunately,
this was filed 16 months after the rendition of the judgment sought to be set aside
and 14 months after the judgment was declared final and executory
As regards the Rule 47 petition, VL went to the CA to annul the RTC ruling as regards
its petition for certiorari with a half-hearted attempt to also include the MTC ruling.
However, this is incorrect because an action to annul a judgment or final order of the
MTC should be filed with the RTC and NOT the CA.
o Possible remedy for RTC dismissal of petition for certiorari: Rule 41 appeal
As regards CA’s reasoning in dismissing the rule 47, the SC stated that the rule 38
was for the MTC decision (dismissing his notice of appeal) while the rule 47 was for
the RTC decision.
Rule 65: Certiorari
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Rule 65: Petition for CERTIORARI
Certiorari:
Original civil
action to correct errors
of jurisdiction
Grounds:
1. No jurisdiction/GAD: When any tribunal, board or officer
exercising judicial or quasi-judicial functions has acted without/excess of its jurisdiction OR with grave abuse of
discretion amounting to lack or excess of jurisdiction 2. No appeal or any plain speedy and adequate remedy
in the ordinary course of law
Grave abuse of discretion: The judgment is rendered in a capricious, whimsical arbitrary or despotic manner
What is being asked of the court to do? To annul or modify
Where can it be
filed
1. If the petition relates to an act or omission of a MTC
or of a corporation, board, officer: RTC exercising
jurisdiction over the territorial area (or also CA or Sandiganbayan, w/n it is in the aid of the court’s appellate
jurisdiction)
2. If petition involves act or omission of a quasi-judicial agency: CA
3. If election cases involving an act or omission of a MTC/RTC: COMELEC in aid of its appellate jurisdiction
4. Remember, however, that Rule 56 provides that the SC also has original jurisdiction over petitions for mandamus,
prohibition and certiorari. SC will generally dismiss if originally filed in it unless there are special reasons.
Period for filing 60 days from notice of the judgment or resolution
In case an MR/MNT is timely filed, whether such motion is required or not, the petition shall be filed not later than 60 days
counted from the notice of the denial of the motion
1. Jamer v NLRC: A filed a labor case in NLRC. She lost. She went to the SC under rule 65 without filling an MR in NLRC.
a. When an MR is an adequate remedy, a petition for certiorari will not prosper.
Error of Judgment Error of Jurisdiction
Not within the ambit of Rule 65 Within the ambit of Rule 65
When court exercises its jurisdiction and commits an error. The decision is VALID
even if wrong and the remedy is APPEAL. Examples would be errors of
procedure or mistake in the court’s
findings.
When court is without jurisdiction and renders a decision. The decision is void
even if correct and the remedy is CERTIORARI. Remember, Rule 65 is only
a remedy to correct errors of
JURISDICTION.
2. Day v. RTC of Zamboanga: A filed an ejectment case against B in the MTC. B
lost. B went to the RTC of Zamboanga under Rule 65. RTC granted petition for
certiorari. RTC was incorrect because appeal was available. Also, RTC cannot entertain questions of fact in a rule 65 proceeding
a. Courts cannot correct (petitioners cannot raise) questions of fact in a
certiorari case. The proper remedy is to assign questions of fact as an
error in a properly taken appeal. b. Errors in the application of the law and the appreciation of evidence
committed by a court after it has acquired jurisdiction over a case are correctible ONLY by appeal.
3. Romy’s Freight Service v. Castro: A filed a complaint for illegal dismissal against B before the labor arbiter. B lost. B appealed to the NLRC. NLRC ruled
in favor of B. A went to the CA under Rule 65 ascribing GADLEJ. CA ruled in favor of A, reasoning that the finding of the labor arbiter was supported by
substantial evidence. B went to the SC under Rule 65. SC ruled that it couldn’t entertain questions of fact and law under Rule 65, and could only correct errors
of jurisdiction.
a. As a general rule, a motion for reconsideration is needed before a
petition for certiorari under rule 65 can be resorted to. However, there are exceptions (many, like when the order is a patent nullity because
the lower court did not have jurisdiction, where the MR would be useless these have to be proven first to justify not filing an MR)
b. In a certiorari proceeding, questions of fact and questions of law are NOT entertained. The sole object of the writ is to correct errors of
jurisdiction or grave abuse of discretion. 4. Gerardo v. de la Pena
a. The SC possesses no authority to rule upon non-jurisdictional issues in a certiorari proceeding. The only question involved in certiorari is
jurisdiction. b. In this case, the lower court correctly dismissed the complaint in CIVIL
CASE 2 based on res judicata considering the prior judgment in CIVIL CASE 1. All the requisites were present.
5. Banco Filipino v. CA
a. GENERALLY: IF petition for review under Rule 45 is available, Rule 65 CANNOT be availed of
b. HOWEVER, although the SC may treat a petition for certiorari as having been filed under Rule 45 (even if originally filed under 65), the
petition must STILL BE FILED within the reglementary period for filing petition for review (15 days from notice/within 30 day extension pd)
6. Fajardo v. Bautista: Jareno, as developer of land, sold lots to Fajardo under a contract to sell. However, Jareno also sold the lot to Habacon. Aggrieved,
Fajardo went to the RTC to annul the contract to sell. RTC dismissed stating that it did not have jurisdiction, as the HLURB had jurisdiction. Fajardo did not
file an MR and instead went to the SC under R65, alleging GADLEJ of the RTC. SC ruled that Fajardo used Rule 65 as a substitute for the lost remedy of
appeal. Also, HLURB really did have jurisdiction and the RTC didn’t. RTC was correct in dismissing.
a. Generally, an order of dismissal, whether right or wrong, is a final order and hence a proper subject of appeal, NOT CERTIORARI.
GENERALLY, the remedies of appeal and certiorari are mutually exclusive and not alternative or successive
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b. Accordingly, although the special civil action of certiorari is NOT proper when an ordinary appeal is available, it may granted where it is
shown that the appeal would be inadequate, slow, insufficient.
c. Nevertheless, certiorari CANNOT substitute for the lost or lapsed
remedy of appeal, where such loss is through the neglect or error in the choice of remedies.
7. Lansang v. CA and Jaca v. Davao Lumber a. The availability of appeal DOES NOT AUTOMATICALLY
PRECLUDE the filing of a petition for certiorari when the appeal is NOT an ADEQUATE REMEDY or EQUALLY BENEFICIAL, SPEEDY
OR SUFFICIENT. It is the inadequacy, and not the mere absence of all other legal remedies, and the danger of failure of justice without
the writ, that must usually determine the propriety of certiorari 8. Tan v. CA:
a. GR: MR must first be filed before resorting to Rule 65
b. EXC:
i. The order is a patent nullity, as where the lower court has no jurisdiction
ii. Where the questions raised in the certiorari proceeding have been duly raised and passed upon by the lower court
iii. When there is an urgent necessity for the resolution of the question and further delay would prejudice the interests of
the Government iv. Where petitioner was deprived of due process
v. Where an MR would be useless vi. Where the issue raised is one purely of law or where public
interest requires
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Discovery
Epigraphs:
Rule 23: Depositions pending action Rule 24: Depositions before action or pending appeal
Rule 25: Interrogatories to Parties Rule 26: Admission by Adverse Party
Rule 27: Production or inspection of documents or things Rule 28: Physical and mental examination of persons
Rule 29: Refusal to comply with modes of discovery
WHAT IS A
DEPOSITION? A deposition is the out-of-court oral testimony of a witness that is reduced to writing for later use in court or for
discovery purposes.
WHAT IS
DISCOVERY?
Discovery is the pre-trial phase in a lawsuit in which each
party, through the law of civil procedure, can obtain evidence from the opposing party by means of discovery devices
including requests for answers to interrogatories, requests for
production of documents, requests for admissions and depositions
Modes of discovery:
1. Depositions pending action (Rule 23) 2. Depositions before action or pending appeal (Rule 24)
3. Interrogatories to Parties (Rule 25) 4. Request for admission (Rule 26)
5. Motion for production or inspection of documents or things (Rule 27)
6. Submission to a physical or mental examination by a doctor (Rule 28)
RULE 23: DEPOSITIONS
PENDING ACTION:
When can depositions pending action be taken? 1. With leave of court after jurisdiction has been
obtained over any defendant (through summons/voluntary submission) or over property that
is subject of the action a. If a person is in prison, deposition must
always been taken with leave of court 2. Without leave of court after an answer has been
served
Scope of examination: Any matter not privileged which is relevant to the subject of the pending action
RULE 23 SEC 4
(IMPORTANT) At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition may be used against
any party who was present or represented at the taking of the deposition or who had due notice thereof in accordance with
the following:
1. Any deposition may be used by any party for the purpose
of contradicting or impeaching the testimony of deponent as a witness
2. The deposition of a party or of any one, who at the time of
taking the deposition was an officer, director or managing
agent of a public or private corporation, partnership or association which is a party may be used by an adverse
party for any purpose 3. WHEN A DEPOSITION OF A WITNESS, WHETHER OR
NOT A PARTY, MAY BE USED BY ANY PARTY FOR ANY PURPOSE deposition may be used without the
deponent actually being called to the witness stand: when the court finds that (D-A-A-S-E-100)
a. The witness is dead b. The witness resides more than 100km from the
place of trial or hearing
c. The witness is abroad UNLESS it appears that his
absence was procured by the party offering the deposition
d. The witness is unable to attend or testify because of age, sickness, infirmity or imprisonment
e. That the party offering the deposition has been unable to procure the attendance of the
witness by subpoena
f. Upon application and notice, in exceptional circumstances wherein the testimony of the
witness is important 4. If only part of a deposition is offered in evidence by a
party, the adverse party may require him to introduce all of it which is relevant to the part introduced and any party
may introduce any other parts
OTHER SECTIONS
OF RULE 23
1. Sec 5: Substitution of parties does not affect the right to
use depositions previously taken and when an action has been dismissed and another action involving the same
subject is afterward brought between the same parties/representatives/successors-interest, all depositions
lawfully taken and duly filed in the former action may be used as if it was originally taken
2. Sec 6: Objection may be made at the trial or hearing to receiving in evidence any deposition/part thereof for any
reason which would require the exclusion of the evidence if the witness were then present and testifying
3. Sec 7: A party shall not be deemed to make a person his own witness for any purpose by taking his deposition
4. Sec 8: The introduction in evidence of the deposition/any part thereof for any purpose OTHER THAN THAT OF
CONRADICTING or IMPEACHING THE DEPONENT makes the deponent the witness of the party introducing the
deposition a. HOWEVER this shall not apply to the use by an
adverse party of a deposition against an officer of
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a corporation etc (The deposition of a party or of any one, who at the time of taking the deposition
was an officer, director or managing agent of a
public or private corporation, partnership or
association which is a party may be used by an adverse party for any purpose)
5. Sec 9: At the trial or hearing, any party may rebut any relevant evidence contained in a deposition whether
introduced by him or by any other party 6. Sec 10: Persons before whom depositions may be taken
within the Philippines a. Any judge
b. Any notary public c. If agreed upon by parties in writing, with any
person authorized to administer oaths. This can
be done at any time or place
7. Sec 11: Persons before whom depositions may be taken in foreign countries:
a. On notice: Before a secretary of embassy or legation, consul general, consul, vice consul or
consular agent of the Republic of the Philippines (in that foreign country)
b. Before such person or office as may be appointed by commission or under letters rogatory
c. If agreed upon by parties in writing, with any person authorized to administer oaths. This can
be done at any time or place
8. Sec 12: Commission/letters rogatory (referred to in (b) of above: A commission or letters rogatory shall be issued
when necessary and convenient on application and notice. Through this, officers may be designated in
notices/commissions to take the depositions 9. Sec 13: Person taking deposition cannot be a
a. relative of the deponent (6th degree of consanguinity/affinity)
b. employee or counsel (and employee of counsel) of deponent
c. person financially interested in the action 10. Sec 15: A party must give reasonable notice in writing to
every other party in the action when he wants to take the deposition of any person upon oral examination
11. Sec 16: After notice is served for taking a deposition by oral examination and a motion is filed by any party or by
the person sought to be examined, the court may issue orders to protect the deponent or other parties
12. Sec 17: The officer who will take the deposition shall put the witness on oath and shall personally record the
testimony of the witness 13. Sec 25: Deposition upon written interrogatories: A party
desiring to take the deposition of any person upon written
interrogatories shall serve upon every other party notice of such. A party so served may serve cross-interrogatories
upon the party proposing to take the deposition within 10
days. Within 5 days, the latter may serve re-direct
interrogatories upon a party who has served cross interrogatories
14. Sec 29: Effect of errors or irregularities in depositions: a. As to notice: All E/I for taking a deposition are
waived unless written objections are promptly made
b. As to DQ of an officer: objection deemed waived unless objection is promptly made before
the taking begins or as soon thereafter as the dq becomes known to or could be discovered with
reasonable diligence
c. As to competency or relevancy of evidence:
objections as to this are not waived by failure to make them before or during the taking of the
deposition unless the ground for objection is one which might have been obviated or removed if
presented at that time d. As to oral examination/other particulars:
deemed waived unless objected to at the taking of the deposition
e. As to form of written interrogatories: objections waived unless objection served in
writing
f. As to manner of preparation: waived unless a motion to suppress deposition is promptly made
RULE 24: DEPOSITIONS
BEFORE ACTION
OR PENDING
APPEAL
1. Sec 1: BEFORE ACTION: A person who desires to perpetuate his own testimony or that of another
person regarding any matter that may be cognizable in any court of the Philippines may file a verified petition in
the court of the place of the residence of any expected adverse party
2. Sec 7: PENDING APPEAL (leave of court required): If an appeal has been taken from a judgment of a court
(including the CA in some cases) OR before taking of an appeal before the time expires,
The court in which the judgment was rendered may allow
the taking depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the
said court. In this case, the person desiring to perpetuate the testimony may file a motion for leave to take the
depositions
RULE 25:
INTERROGATORIES
TO PARTIES
(QUESTIONS!)
When can interrogatories to parties be made?
1. With leave of court after jurisdiction has been obtained over any defendant (through
summons/voluntary submission) or over property that
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54
is subject of the action a. If a person is in prison, deposition must
always been taken with leave of court
2. Without leave of court after an answer has been
served
How is it made? When a party desires to elicit material and facts from any adverse parties, he shall file and serve upon
them written interrogatories to be answered. If the party served is a corporation/partnership/association, the officer
allowed to testify in its behalf will answer.
Time to answer: 15 days from service unless the court extends (on motion)
Time to file objections: Objections to any interrogatories must
be made 10 days after service. Answers deferred until objections resolved
Effect of failure to answer: No admission. You’re just being
asked questions.
Limit: No party may, without leave of court, serve more than one set of interrogatories to be answered by the same party
Effect of failure to serve written interrogatories: Unless
thereafter allowed by the court for good cause shown and to
prevent failure ot justice, a party not served with written interrogatories may not be compelled by the adverse party to
give testimony in open court, or to give a deposition pending appeal
RULE 26: ADMISSION BY
ADVERSE PARTY
1. Sec 1: Request for admission: At any time after issues have been joined, a party may file and serve upon any
other party a written request for the admission by the latter of the genuineness of any material and relevant
document described in and shown with the request or of the truth of any material and relevant matter
2. Sec 2: Implied admission: (Basically, party must specifically deny or explain why he cannot admit nor deny
the request for admission. Otherwise, it will be deemed admitted) Each of the matters of which an admission is
requested shall be deemed admitted UNLESS within a period designated in the request (which shall be at least 15
days from service) or within a longer time as the court may allow upon motion, the party to whom the request is
directed files and serves upon the party requesting admission, a sworn statement specifically denying the
matters of which an admission is requested or explain why he cannot admit nor deny them.
3. Sec 3: Effect of admission: Any admission made by a
party pursuant to such request is for the purpose of the pending action ONLY and shall not constitute an admission
by him for any other purpose nor may the same be used
against him in any other proceeding
4. Sec 4: The court may allow the party making an admission under this rule, to expressly or impliedly withdraw the
admission
N.B. Serve the request for admission on the party you’re asking. You can’t serve it on the counsel alone. There is no
implied admission if you do that.
RULE 27: MOTION
FOR INSPECTION
Upon motion of any party showing good cause, the court in
which an action is pending may
1. Order any party to produce and permit the inspection
and copying/photographing of any documents, papers,
books, accts, letters, photographs, objects NOT privileged, which constitute or contain evidence
material to any matter involved in the action and
which are in the possession and control of the party ordered
2. Order any party to permit entry upon designated land or other property in his possession or control for the
purpose of inspecting, measuring ,surveying, etc.
RULE 29: SANCTIONS FOR
REFUSAL TO
COMPLY WITH
MODES OF
DISCOVERY
1. REFUSAL TO ANSWER (by party/deponent) Ask the other questions and then get an order to have party
compelled to answer: If a party/other deponent refuses to answer any question upon oral examination, the
examination may be completed on other matters or adjourned, depending on the proponent. The proponent
may then apply to the court of the place where the deposition is being taken for an order to compel an
answer.
This can also be done when a witness refuses to answer any interrogatory submitted under rule 23/25
If application is granted, court will order the refusing party
or deponent to answer the question or interrogatory. Court may also order deponent or refusing party to pay
proponent his expenses.
If application denied, court will require the proponent to pay the refusing party expenses + atty’s fees
2. CONTEMPT OF COURT: If a party or other witness refuses to answer any question after being directed to do
so by the court of the place in which the deposition is being taken, the refusal may be taken as contempt of court.
3. FAILURE OF PARTY TO ATTEND OR SERVE ANSWERS:
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a. If a party or an officer or managing agent of a party willfully fails to appear before the officer
who is to take the deposition OR fails to serve
answers to interrogatories, the court, on motion
and notice may: i. Strike out all or any part of any pleading
of that party ii. Dismiss the action or proceeding or any
part thereof (if party is plaintiff) iii. Enter a judgment by default against that
party (if party is defendant) iv. Order him to pay reasonable expenses
Cases in modes of discovery
Dasmarinas v. Reyes (When depositions are taken)
American President Lines (APL) sued Dasmarinas Garments to recover 53k. In
its answer, Dasmarinas garments simply denied any liability and set up
counterclaims. During the trial, APL presented its first witness and it was thereafter completed.
The case was reset to a later date (May 3) for reception of the testimony of two more witnesses for APL. At the May 3 hearing, instead of presenting the
witnesses, APL filed a motion praying that it wanted to take the depositions of Lee and Yeh in Taiwan and prayed that for this purpose, a letters rogatory be
issued addressed to the diplomatic officials of the Philippines in Taipei. However, since this could not be done since there was no consulate office in
Taiwan, they asked that Director Joaquin Roces of the Asia Exchange Center to hear and take the oral depositions of the two Taiwanese. Dasmarinas naturally
opposed. RTC allowed the deposition to be taken by Roces, opining that the Asian
Exchange Center was the authorized Philippine representative in Taiwan and that it may take the testimonies of the two witnesses residing there by
deposition, but only upon written interrogatories so that Dasmarinas can cross-examine them
Dasmarinas went to the CA but it was denied.
Issue: Can a party, during the trial of a case, present its evidence by taking the deposition of its witnesses in a foreign jurisdiction before a private entity not
authorized by law to take depositions?
Depositions are a mode of discovery. They are intended as a means to compel disclosure of facts resting in the knowledge of a party or other person
which are relevant in some suit or proceeding in court. They are meant to enable a party to learn all material and relevant facts, not only known to him
and his witnesses but also those known to the adverse party and the latter’s own witnesses
In fine, the object of discovery is to make it possible for all the parties to a case to learn all the material and relevant facts from whomever may have
knowledge thereof so that they the facts can be clearly be laid before the court through their pleadings or motions.
Depositions are principally made available by law to the parties as a means of
informing themselves of all the relevant facts; they are not therefore generally
meant to be a substitute for the actual testimony in open court of a party or witness. The deponent must as a rule be presented for oral examination in open
court at the trial or hearing. Indeed, any deposition offered to prove the facts therein set out during a trial
or hearing, in lieu of the actual oral testimony of the deponent in open court, may be opposed and excluded on the ground that it is hearsay; the party
against whom it is offered has no opportunity to cross-examine the deponent at the time that his testimony is offered. It does not matter that that opportunity
for cross-examination was afforded during the taking of the deposition; for normally, the opportunity for cross-examination must be accorded a party at
the time that the testimonial evidence is actually presented against him during
the trial or hearing.
However, depositions may be used without the deponent being actually called to the witness stand by the proponent, under certain conditions and for certain
limited purposes. These exceptional situations are governed by (now Sec 4, Rule 23 of the ROC)
Sec. 4. Use of depositions. — At the trial or upon the hearing of a motion of an
interlocutory proceeding, any part or all of a deposition, so far as admissible under
the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in
accordance with any of the following provisions: (a) Any deposition may be used by any party for the purpose of contradicting or
impeaching the testimony of deponent as a witness; (b) The deposition of a party or of any one who at the time of taking the deposition
was an officer, director, or managing agent of a public or private corporation, partnership, or association which is a party may be used by an adverse party for
any purpose; (c) The deposition of a witness, whether or not a party, may be used by any
party for any purpose if the court finds: (1) that the witness is dead; or
(2) that the witness if out of the province and at a greater distance than fifty
(50) kilometers from the place of trial or hearing, or is out of the Philippines,
unless it appears that his absence was procured by the party offering the
deposition; or
(3) that the witness is unable to attend to testify because of age, sickness,
infirmity, or imprisonment; or
(4) that the party offering the deposition has been unable to procure the
attendance of the witness by subpoena; or
(5) upon application and notice, that such exceptional circumstances exist as to
make it desirable, in the interest of justice and with due regard to the
importance of presenting the testimony of witnesses orally in open court, to
allow the deposition to be used;
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(d) If only part of a deposition is offered in evidence by a party, the adverse party may require him to introduce all of it which is relevant to the part introduced, and
any party may introduce any other parts.
It is apparent then that the deposition of any person may be taken wherever he
may be, in the Philippines or abroad. o If the party or witness is in the Philippines, his deposition "shall be
taken before any judge, municipal or notary public" (Sec. 10, Rule 23, Rules of Court).
o If in a foreign state or country, the deposition shall be taken:
(a) on notice before a secretary or embassy or legation, consul general, consul, vice-consul, or
consular agent of the Republic of the Philippines, or (b) before such person or officer as may be
appointed by commission or under letters rogatory" Leave of court is not necessary where the deposition is to be taken before "a
secretary or embassy or legation, consul general, consul, vice-consul, or consular agent of the Republic of the Philippines," and the defendant's answer
has already been served After answer, whether the deposition-taking is to be accomplished within the
Philippines or outside, the law does not authorize or contemplate any intervention by the court in the process, all that is required being that
"reasonable notice" be given "in writing to every other party to the action . . . (stating) the time and place for taking the deposition and the name and
address of each person to be examined, if known, and if the name is not known, a general description sufficient to identify him or the particular class or
group to which he belongs. . . . " (Sec. 15, Rule 24). o The court intervenes in the process only if a party moves
1. to "enlarge or shorten the time" stated in the notice (id.), 2. "upon notice and for good cause shown," to prevent the
deposition-taking, or impose conditions therefor, e.g., that "certain matters shall not be inquired into" or that the taking
be "held with no one present except the parties to the action
and their officers or counsel," etc. or 3. to terminate the process on motion and upon a showing that
"it is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent
or party" Where the deposition is to be taken in a foreign country where the Philippines
has no "secretary or embassy or legation, consul general, consul, vice-consul, or consular agent," then obviously it may be taken only "before such person or
officer as may be appointed by commission or under letters rogatory. Section 12, Rule 23 provides as follows:
Sec. 12. Commission or letters rogatory. — A commission or letters rogatory shall
be issued only when necessary or convenient, on application and notice, and on such terms and with such directions as are just and appropriate. Officers may be
designated in notices or commissions either by name or descriptive title and letters
rogatory may be addressed "To the Appropriate Judicial Authority in (here name the country)."
COMMISSION: A commission may be defined as "(a)n instrument issued by a
court of justice, or other competent tribunal, to authorize a person to take depositions, or do any other act by authority of such court or tribunal"
LETTERS ROGATORY: Letters rogatory, on the other hand, may be defined as "(a)n instrument sent in the name and by the authority of a judge or court to
another, requesting the latter to cause to be examined, upon interrogatories filed in a cause pending before the former, a witness who is within the
jurisdiction of the judge or court to whom such letters are addressed"."
What matters is that the deposition is taken before a Philippine official acting by authority of the Philippine Department of Foreign Affairs and in virtue of a
commission duly issued by the Philippine Court in which the action is pending, and in accordance, moreover, with the provisions of the Philippine Rules of
Court pursuant to which opportunity for cross-examination of the deponent will be fully accorded to the adverse party
Dasmariñas also contends that the "taking of deposition is a mode of pretrial discovery to be availed of before the action comes to trial." Not so.
o Depositions may be taken at any time after the institution of any action, whenever necessary or convenient. There is no rule that limits
deposition-taking only to the period of pre-trial or before it; no prohibition against the taking of depositions after pre-trial. Indeed, the
law authorizes the taking of depositions of witnesses before or after an appeal is taken from the judgment of a Regional Trial Court "to
perpetuate their testimony for use in the event of further proceedings in the said court" and even during the process of execution of a final
and executory judgment Dasmariñas further claims that the taking of deposition under the
circumstances is a "departure from the accepted and usual judicial proceedings of examining witnesses in open court where the demeanor could be observed
by the trial judge;" that it is "inherently unfair" to allow APL, "a foreign entity suing in the Philippines, to present its evidence by mere deposition of its
witnesses away from the 'penetrating scrutiny' of the trial Judge while petitioner is obligated to bring and present its witnesses in open court subject
to the prying eyes and probing questions of the Judge." o Of course the deposition-taking in the case at bar is a "departure from
the accepted and usual judicial proceedings of examining witnesses in open court where their demeanor could be observed by the trial
judge;" but the procedure is not on that account rendered illegal nor is the deposition thereby taken, inadmissible.
o It precisely falls within one of the exceptions where the law permits such a situation, i.e., the use of deposition in lieu of the actual
appearance and testimony of the deponent in open court and without being "subject to the prying eyes and probing questions of the Judge."
o This is allowed provided the deposition is taken in accordance with the applicable provisions of the Rules of Court and the existence of any of
the exceptions for its admissibility — e.g., "that the witness if out of the province and at a greater distance than fifty (50) kilometers from
the place of trial or hearing, or is out of the Philippines, unless it
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appears that his absence was procured by the party offering the deposition; or . . . that the witness is unable to attend to testify
because of age, sickness, infirmity, or imprisonment, etc."— is first
satisfactorily established
The Regional Trial Court saw fit to permit the taking of the depositions of the witnesses in question only by written interrogatories, removing the proponent's
option to take them by oral examination, i.e., by going to Taipei and actually questioning the witnesses verbally with the questions and answers and
observations of the parties being recorded stenographically. The imposition of such a limitation, and the determination of the cause thereof,
are to be sure within the Court's discretion. The ostensible reason given by the Trial Court for the condition — that the deposition be taken "only upon written
interrogatories" — is "so as to give defendant (Dasmariñas) the opportunity to cross-examine the witnesses by serving cross-interrogatories."
o The statement implies that opportunity to cross-examine will not be
accorded the defendant if the depositions were to be taken upon oral
examination, which, of course, is not true. For even if the depositions were to be taken on oral examination in Taipei, the adverse party is
still accorded full right to cross-examine the deponents by the law, either by proceeding to Taipei and there conducting the cross-
examination orally, or opting to conduct said cross-examination merely by serving cross-interrogatories.
People v. Webb
Hubert Webb was one of the accused in the famous rape case. In the trial, he
filed a motion to take the testimony by oral deposition praying that he be allowed to take the testimonies of several personnel of the US Department of
Justice, Department of Motor Vehicles before the diplomatic officials of the Philippines in the US in lieu of presenting them as witnesses in court. He alleges
that their testimonies are crucial to establish his innocence. His basis of Sec 4 of Rule 23 of the ROC
The prosecution opposed, alleging that Rule 23 Sec 4 has no application in
criminal cases. The RTC denied Webb’s motion. Webb went to the CA by certiorari. CA ruled in favor of Webb, allowing the diplomatic officials of the
Philippines to take the depositions. Petitioner (prosecution) went to the SC via rule 65
Issue: Was the CA correct in allowing the diplomatic officials to take the oral
deposition? NO. CA INCORRECT.
SC first labored to define what a deposition is: It is the testimony of a witness taken upon oral question or written interrogatories, not in open court,
but in pursuance of a commission to take testimony issued by a court, or under a general law or court rule on the subject, and reduced to writing and duly
authenticated, and intended to be used in preparation and upon the trial of a civil or criminal prosecution.
It is a pre-trial discovery device by which one party (through his or her attorney) asks oral questions of the other party or of a witness for the other
party. The person who is deposed is called the deponent. The deposition is
conducted under oath outside of the court room, usually in one of the lawyers offices. A transcript - word for word account - is made of the deposition. The
testimony of a witness is taken in writing, under oath or affirmation, before
some judicial officer in answer to questions or interrogatories
o The PURPOSE OF TAKING DEPOSITIONS: 1.] Give greater assistance to the parties in ascertaining the
truth and in checking and preventing perjury; 2.] Provide an effective means of detecting and exposing
false, fraudulent claims and defenses; 3.] Make available in a simple, convenient and inexpensive
way, facts which otherwise could not be proved except with great difficulty;
4.] Educate the parties in advance of trial as to the real value of their claims and defenses thereby encouraging
settlements;
5.]Expedite litigation;
6.] Safeguard against surprise; 7.]Prevent delay;
8.] Simplify and narrow the issues; and 9.] Expedite and facilitate both preparation and trial.
o As can be gleaned from the foregoing, a deposition, in keeping with its nature as a mode of discovery, should be taken before and not
during trial. In fact, rules on criminal practice - particularly on the defense
of alibi, which is respondents main defense in the criminal proceedings against him in the court below - states that when
a person intends to rely on such a defense, that person must move for the taking of the deposition of his witnesses within
the time provided for filing a pre-trial motion. A circumspect scrutiny of the record discloses that the evidence to be obtained
through the deposition-taking would be superfluous or corroborative at best. A careful examination of Exhibits 218 and 219 readily shows that these are of the
same species of documents which have been previously introduced and
admitted into evidence in a previous trial court order It need not be overemphasized that the foregoing factual circumstances only
serves to underscore the immutable fact that the depositions proposed to be taken from the five U.S. based witnesses would be merely corroborative or
cumulative in nature and in denying respondents motion to take them, the trial court was but exercising its judgment on what it perceived to be a
superfluous exercise on the belief that the introduction thereof will not reasonably add to the persuasiveness of the evidence already on record.
Republic v. Sandiganbayan
PCGG filed a complaint for reconveyance, reversion, etc against Tantoco
Santiago and the Marcoses. After being served, Tantoco and Santiago, instead of filing answer, filed a motion to strike out some portions of the complaint and
for a bill of particulars. They then presented a motion for leave to file interrogatories under the ROC.
Basically, the sought an answer to the question as regards who among the
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PCGG commissioners approved or authorized their (Santiago and Tantoco) their inclusion. The Sandiganbayan denied the motion for BOP and the motion for
leave to file interrogatories opining that service of interrogatories before joinder
of issues and without leave of court is premature.
Therafter, Tantoco and Santiago filed with the SB a pleading denominated ―Interrogatories to Plaintiff‖, seeking factual details relative to specific
averments of the PCGG complaint (what specific acts were committed) and a motion for production of documents (seeking the records on the basis of which
the verification of the complajnt was made) Sandiganbayan admitted the interrogatories and granted the motion for production. PCGG opposed and went
to the SC
Issue: Was the SB correct in admitting the interrogatories? YES. Leave of court not required anymore.
Involved in the present proceedings are two of the modes of discovery provided
in the Rules of Court: interrogatories and inspection and production of things
The various modes or instruments of discovery are meant to serve o (1) as a device, along with the pre-trial hearing under Rule 20, to
narrow and clarify the basic issues between the parties, and o (2) as a device for ascertaining the facts relative to those issues.
The field of inquiry that may be covered by depositions or interrogatories is as broad as when the interrogated party is called as a witness to testify orally at
trial. The inquiry extends to all facts which are relevant, whether they be ultimate or evidentiary, excepting only those matters which are privileged.
The objective is as much to give every party the fullest possible information of all the relevant facts before the trial as to obtain evidence for use upon said
trial. The principle is reflected in Section 2, Rule 24 (governing depositions) which generally allows the examination of a deponent —
1) regarding any matter, not privileged, which is relevant to the subject of the
pending action, whether relating to the claim or defense of any other party
2) as well as:
(a) "the existence, description, nature, custody, condition and location of any
books, documents, or other tangible things" and (b) "the identity and location of persons having knowledge of relevant facts."
WHEN LEAVE OF COURT NOT REQUIRED: such modes of discovery as (a) depositions (whether by oral examination or written interrogatories) under Rule
24, (b) interrogatories to parties under Rule 25, and (c) requests for admissions under Rule 26, may be availed of without leave of court, and generally, without
court intervention. o The Rules of Court explicitly provide that leave of court is not
necessary to avail of said modes of discovery after an answer to the complaint has been served. It is only when an answer has not yet
been filed (but after jurisdiction has been obtained over the defendant or property subject of the action) that prior leave of
court is needed to avail of these modes of discovery, the reason being that at that time the issues are not yet joined and the
disputed facts are not clear.
WHEN LEAVE OF COURT REQUIRED: On the other hand, leave of court is required as regards discovery by (a) production or inspection of documents or
things in accordance with Rule 27, or (b) physical and mental examination of
persons under Rule 28, which may be granted upon due application and a
showing of due cause. The petitioner's (prosecution’s) objections to the interrogatories served on it in
accordance with Rule 25 of the Rules of Court cannot be sustained. o It should initially be pointed out that Tantoco/Santiago’s motion for
leave to file interrogatories was correct since leave of court was required when discovery is being availed of before an answer is
served. But there was no need for the private respondents to seek such leave to serve their Interrogatories to Plaintiff after they had filed
their answer to the PCGG's complaint, just as there was no need for the Sandiganbayan to act thereon.
there is also good cause for the production and inspection of the documents
subject of the motion for production. Some of the documents are, according to
the verification of the amended complaint, the basis of several of the material allegations of said complaint. Others, admittedly, are to be used in evidence by
the plaintiff. It is matters such as these into which inquiry is precisely allowed by the rules of discovery, to the end that the parties may adequately prepare
for pre-trial and trial. The only other documents sought to be produced are needed in relation to the allegations of the counterclaim. Their relevance is
indisputable; their disclosure may not be opposed.
RECAP
When leave of court required When not required
Depositions under Rule 24: depositions pending action when answer
to complaint has been served
Depositions under Rule 24: depositions pending action when answer
has not been filed but after jurisdiction has been obtained over defendant
Depositions under Rule 25: interrogatories to parties when answer
to complaint has been served
Deposition PENDING appeal under Rule 24
Request for admission under Rule
26: request for admission does not require court approval
Depositions under Rule 25:
interrogatories to parties when answer has not been filed but after jurisdiction
has been obtained over defendant
Rule 27: Motion for production of
inspection of documents or things
Rule 28: Motion for physical and mental examination of person
PO v. CA: A request for admission is redundant when the party from whom it is
sought has already admitted the same facts in his pleading. Additionally, he does
not have to make a second denial of those already denied in his answer to the
complaint.
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Execution: Rule 39
WHAT KIND OF
JUDGMENT IS
READY FOR
EXECUTION?
Final and executory judgments/orders
Final: when the order has completely disposed of the case and there’s nothing left to be done
Executory: The order can now be enforced because the appeal period has already expired.
Office of Court Admin v. Corpuz: Losing party must first
receive notice of judgment before the judgment can be executed [due process]
EXECUTION
ACCORDING TO
NATURE
As a matter of right: upon motion
When the judgment is final and executory
This is enforceable by mandamus because it is merely a ministerial function
As a matter of discretion (Sec 2)
1. Execution pending appeal: may only issue upon good grounds
Requisites:
a. Prevailing party must file motion b. Notice must be given to the adverse party
c. The trial court must still have jurisdiction over the case
d. The trial court must still be in possession of either the original record or the record on appeal, as the case
may be
If these are all done, the court of origin [tc] at its discretion, may order the execution of the final judgment or order before
the expiry of the period to appeal.
HOWEVER, when trial court loses jurisdiction, the motion for execution pending appeal may be filed in the appellate court.
To reiterate:
Before an appeal is perfected: Prevailing party must file the motion with the trial court that rendered the
judgment/final order After it has been perfected: with the appellate court
2. Partial, separate or several judgments: may be executed
on the same terms.
Immediately executory judgments: (meaning they are not
stayed by appeal) MTC judgment in forcible entry and unlawful detainer, RTC judgment on appeal against defendant,
judgment in action for injunction, receivership, accounting,
support.
Example:
A filed a forcible entry case in MTC against B. B lost so he appealed it to the RTC. RTC affirmed. Even if B appeals to the
CA, the judgment is already immediately executory.
EXECUTION
ACCORDING TO
MODE OF
ENFORCEMENT
1. Execution by motion: A final and executory judgment or
order may be executed on motion within 5 years from the date of its entry.
2. Execution by action: You must file an action if the 5 year period has already lapsed.
CAN ORDER OF
EXECUTION BE
APPEALED?
No. As per Rule 41, you have to file an appropriate civil action
under Rule 65.
CAN YOU STAY
EXECUTIONS AS A
MATTER OF RIGHT?
No. However, executions as a matter of discretion may be stayed.
Requisites:
a. Court approval of a supersedeas bond filed by the
(judgment debtor aka losing party) b. The bond must be conditioned upon the performance
of the judgment or order allowed to be executed in case it shall be finally sustained in whole or in part.
Ex: A won a collection case against B in a trial court. Within
the 15 day period for appeal, A motioned for execution pending appeal. B can file a supersedeas bond to stay
execution (pending appeal)
What is a supersedeas bond? Basically, it is a bond that a defendant/losing party puts up if he wants to defer
payment/compliance with a judgment until the appeal is over.
WHAT IS THE
EFFECT OF THE
REVERSAL OF AN
EXECUTED
JUDGMENT ON
APPEAL?
Where the executed judgment is reversed totally/partially or is
annulled on appeal or otherwise, the trial court, upon motion,
may issue orders of restitution or reparation of damages as equity and justice may warrant
Basically, court will tell the winning party to return what he
already got
WHAT ARE THE
MODES OF
EXECUTION?
1. By motion within 5 years from date of entry of judgment
2. By independent action called ―revival of judgment‖ after 5
years and before it has prescribed
WHAT ARE THE
RULES IN
EXECUTION IN CASE
OF DEATH OF A
1. When judgment creditor (winner) dies: His executor, administrator of successor-in-interest must apply for the
writ of execution 2. When judgment debtor (loser) dies AND it is for
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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PARTY? recovery of personal/real property: a. The writ shall be enforced/directed against
his executor, administrator or successor in
interest
b. The lien on the property may also be enforced
3. When judgment debtor dies AND execution has actually levied upon any of his property: the
properties may be sold for the satisfaction of the judgment obligation.
WHAT IS THE
LIFETIME OF THE
WRIT OF
EXECUTION?
As per Sec 14, it is 5 years because you have 5 years to file the motion for the writ to issue.
HOW ARE
EXECUTIONS FOR
JUDGMENTS FOR
MONEY ENFORCED?
IMMEDIATE
PAYMENT + LEVY +
GARNISHMENT
1. Immediate payment on demand: Basically, the
judgment debtor will be ordered to pay the full amount stated in the writ of execution. It can be through cash,
certified bank check payable only to the judgment creditor or through any other means acceptable to
the judgment creditor. 2. Satisfaction by levy: This arises when the judgment
debtor cannot pay all or part of the obligation in cash, bank check or other mode of payment. The sheriff will
levy upon the properties of the judgment obligor of every kind and nature.
Dagooc v. Erlina: You can’t use a promissory note to satisfy
a money judgment.
What is the meaning of levy?
It is the act whereby a sheriff sets apart or appropriates for the purpose of satisfying the writ of the execution, a part or
the whole of the judgment debtor’s property
What are the three different kinds of sales under the law?
Ordinary execution sale
Judicial foreclosure sale Extra-judicial foreclosure sale
Rules to keep in mind:
a) Judgment debtor may choose what will be levied upon b) If he does not choose, the sheriff shall levy on personal
property first if any and then the real properties if the personal properties are insufficient.
c) The sheriff must only sell so much of the property as is sufficient to satisfy the debt and lawful fees.
3. Garnishment of debts and credits: Another way of executing a judgment for money. It is a species of
attachment for reaching credits belonging to the judgment
debtor and owing to him from a stranger in litigation. It is
an attachment by which the plaintiff seeks to subject to his claim property of the defendant in the hands of a third
person or money owed by such third person or garnishee to the defendant.
Examples:
Credits (receivables), bank deposits, financial interests, royalties, commissioners and other personal property not
capable of manual delivery in the possession or control of third parties.
However, you can’t garnish public funds and wages. Also,
when bank deposits are garnished, it is not a violation of the bank secrecy law.
Rules to keep in mind:
a) The garnishment shall be made by notifying the third
party owing such debts or having in his possession or control such credits to which the judgment creditor is
entitled. b) In case there are two or more garnishees holding
deposits/credits sufficient to satisfy the judgment, the
judgment debtor, if available, may choose the garnishees. Otherwise, the judgment creditor will choose.
WHAT HAPPENS
WHEN THE
PROPERTY LEVIED
ON IS CLAIMED BY
ANOTHER PERSON?
RULE 39 SEC 16
Situation: Sheriff levies on a property that is claimed by a third party.
What must the third party do? Make an affidavit of his title
or right to possession, stating the grounds and serve it upon the officer making the levy.
When this is done, the sheriff/officer making the levy will not
be bound to keep the property.
However, when the judgment creditor (winner), upon the demand of the officer, files a bond approved by the court to
indemnify the third party at an amount not less than the value of the levied property, the officer can still keep it.
Also, the judgment creditor can claim for damages against a
third-party claimant who filed a spurious claim.
What are the remedies of the third party claimant if his claim is disapproved
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1. File a separate action to determine title or right of possession
2. File complaint for damages against the bond filed by the
judgment creditor
Other rules/nuances:
a) The officer is not liable for damages for the
taking/keeping of the property to any third-party claimant if the judgment creditor files a bond.
b) However, an action may be filed by the judgment creditor against the sheriff/levying officer as long as it is filed
within 120 days from the filing of the bond c) When the writ of execution is issued in favor of the
Republic of the Philippines or any officer representing it,
the filing of such bond (indemnity bond) is not required
d) In case the sheriff is sued for damages as a result of the levy, he shall be represented by the Solicitor General and
if he is held liable, the National Treasurer will pay for it.
SALE ON
EXECUTION
(NOTICE
REQUIREMENTS)
1. If perishable property: by posting written notice of time and place of sale at 3 public places for a reasonable time
2. If other personal property: posting in 3 public places for at least 5 days
3. In real property, by posting in 3 public places. If the value of the property is more than 50k, notice must be
published once a week for 2 straight weeks in one newspaper in circulation in the provine or city
4. In ALL cases, notice must be given to the judgment debtor at least 3 days before the sale except if it is
perishable. If it’s perishable, notice shall be given any time before the sale
Rules:
a) All execution sales must be made at a public auction to
the highest bidder. b) The judgment debtor, if present, may direct the order in
which the property shall be sold (remember, if enough has been sold to satisfy the judgment, no more should be
sold. If there is any excess, it shall go to the judgment debtor)
c) The judgment creditor can join in the auction. If he joins and no third party claim has been filed, he doesn’t have to
pay the amount of the bid if it does not exceed the amount of his judgment. If it does, he shall pay the
excess.
CONVEYANCE OF
THE PROPERTY
1. When it’s personalty and it is capable of manual
delivery: After payment, the officer making the sale must deliver it to the purchaser and execute a certificate of a
sale if required.
2. When it’s not personalty and it is not capable of manual delivery: After payment, the officer making the
sale must execute and deliver to the purchase a certificate
of sale. The certificate transfers all the rights that the
judgment debtor may have had (as of the date of levy/prelim attachment) to the buyer
3. If real property: A certificate of sale must be given upon payment showing the description of the property, the
price paid. The certificate must be registered 4. If property claimed by third-person: The certificate to
be issued shall state that there is a third-party claim
REDEMPTION Who may redeem real property sold?
1. The judgment debtor, his successor in interest in whole or in part of the property
2. A creditor having a lien by virtue of an attachment,
judgment, or mortgage on the property sold. He is called
the redemptioner
Period to redeem
1. Judgment debtor (or successor in interest): IF he is
exercising redemption ahead of the redemptioner within 1 year from the date of registration of certificate of
sale with the RD 2. Redemptioner exercising redemption ahead of
judgment debtor Also within 1 year from the date of registration
3. Redemptioner redeeming from another redemptioner Within 60 days from the last
redemption
The purchaser/last redemptioner entitled to:
1. Execution of final deed of sale by the sheriff: This is to enable purchaser or last redemptioner to consolidate his
title to the property and for the issuance by the RD of new title in his name
2. Physical possession of the property by means of writ of possession against judgment debtor or his successor
interest or against any occupant. This can be availed of AFTER filing of a case in which the judgment was
rendered and a writ of execution was issued.
WHEN WRIT OF
POSSESSION MAY
BE ISSUED
1. Sale at a public auction Where 12 month period has
already lapsed without any redemption
2. Land registration proceedings
3. Judicial foreclosure Debtor must be in possession and
no third person intervenes 4. EJ foreclosure
SATISFACTION OF
JUDGMENT This is where the case ends. The clerk of court enters the satisfaction of the judgment. When does he do this?
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1. Upon the return of a writ of execution showing full
satisfaction
2. Upon the filing of an admission to the satisfaction by the
judgment creditor/counsel 3. Endorsement of such admission by the judgment creditor
or his counsel
Cases:
Fiestan:
The formalities of a levy, as an essential requisite of a valid execution sale under Section 15 of Rule 39 and a valid attachment lien under Rule 57 of the
Rules of Court, are not basic requirements before an extrajudicially foreclosed
property can be sold at public auction.
At the outset, distinction should be made of the three different kinds of sales under the law, namely: an ordinary execution sale, a judicial foreclosure sale,
and an extrajudicial foreclosure sale, because a different set of law applies to
each class of sale mentioned. o An ordinary execution sale is governed by the pertinent provisions of
Rule 39 of the Rules of Court. o Rule 68 of the Rules of Court applies in cases of judicial foreclosure
sale. o On the other hand, Act No. 3135, as amended by Act No. 4118
otherwise known as "An Act to Regulate the Sale of Property under Special Powers Inserted in or Annexed to Real Estate Mortgages"
applies in cases of extrajudicial foreclosure sale. Levy, as understood under Section 15, Rule 39 of the Rules of Court in relation
to execution of money judgments, has been defined by this Court as the act whereby a sheriff sets apart or appropriates for the purpose of satisfying the
command of the writ, a part or the whole of the judgment-debtor's property
Manila Remnant:
Garnishment is a species of attachment for reaching credits belonging to the judgment debtor and owing to him from a stranger to the litigation. It is an
attachment by means of which the plaintiff seeks to subject to his claim property of the defendant in the hands of a third person or money owed by
such third person or garnishee to the defendant. The rules on attachment also apply to garnishment proceedings
A garnishment order shall be lifted if it established that:
(a) the party whose accounts have been garnished has posted a counterbond or has
made the requisite cash deposit; (b) the order was improperly or irregularly issued as where there is no ground for
garnishment 7 or the affidavit and/or bond filed therefor are defective or insufficient;
(c) the property attached is exempt from execution, hence exempt from preliminary attachmen9 or chanrobles virtual law library
(d) the judgment is rendered against the attaching or garnishing creditor.
Partial execution of the judgment is not included in the above enumeration of the legal grounds for the discharge of a garnishment order.
Campillo: A notice of levy on execution cannot prevail over an existing adverse
claim inscribed on the title. This is because the judgment creditor’s title is subject to the title of the judgment debtor.
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Rule 57: Preliminary Attachment
NATURE OF
PRELIMINARY
ATTACHMENT
Olib v. Pastoral/Davao Light
Attachment is defined as a provisional remedy by which the property of an adverse party is taken into legal custody, either at
the commencement of the action or at any time thereafter, as a security for the satisfaction of any judgment (keyword: S-S-J)
that may be recovered by the plaintiff or any other proper party.
AUXILIARY: It is an AUXILIARY remedy that cannot have an independent existence apart from the main suit or claim
instituted by the plaintiff against the defendant. Thus, the attachment must fail if the suit itself cannot be maintained.
USUALLY INCORPORATED in COMPLAINT: The
plaintiff/other proper party incorporates the application for
attachment in the complaint or other appropriate pleading. CAN BE ISSUED EVEN BEFORE ACQUIRING
JURISDICTION OVER DEFENDANT: as long as the action has been properly commenced.
NOTICE AND HEARING REQUIREMENTS: notice and hearing is not mandatory for the issuance of a writ of
attachment. The only requisite is that the court is satisfied upon consideration of the affidavit of the applicant that a
sufficient cause of action exists and that the case is one mentioned in Sec 1 of Rule 57.
EFFECT OF APPEAL: The consequence is that where the main
action is appealed, the attachment which may have been issued as an incident of that action is also considered appealed
AND so removed from the jurisdiction of the court appealed from.
NO PRINCIPAL CASE FOR ATTACHMENT: The attachment itself cannot be the subject of a separate case independent of
the principal action because of its auxiliary nature. ORDER OF JUDGE DENYING A MOTION FOR ANNULMENT
OF WRIT OF PRELIM ATTACHMENT IS INTERLOCUTORY: Hence, it cannot be appealed. Rule 65 is the remedy.
HOWEVER when the writ of prelim attachment becomes final by virtue of a final judgment in the principal case, the
writ itself is subject to appeal (jointly with the judgment rendered in the main case)
A bond is not deemed extinguished by reason alone of its non-payment (see below)
Order of attachment is considered discharged ONLY where the judgment has become final and executory and not when it is
still in appeal.
WHEN FILED? 1. At the commencement of the action (filing of the complaint OR
2. At any time before entry of judgment
GROUNDS 1. An action for recovery of specified amount of money or damages (but not moral and exemplary damages)on a cause
of action arising from a contract, quasi-contract, delict, quasi-
delict against a party who is about to depart from the
Philippines with intent to defraud creditors (usually a collection case or damages case)
2. An action for embezzled money/property: a. OR money/ property fraudulently misapplied (to his
own use) by a public officer, officer of a corporation, attorney, factor, broker, agent or clerk in the course
of his employment as such OR by any other person in a fiduciary capacity OR for a willful violation of duty
3. An action to recover property fraudulently or unjustly taken, detained, or converted when the property or any part
thereof has been concealed, removed or disposed to prevent
its being found or taken
4. An action involving fraud in contracting or performing obligations
5. An action against a party who has removed or disposed of his property or about to do so with intent to defraud his
creditors 6. 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
ISSUANCE AND
CONTENTS OF
ORDER
Sec 2 provides that:
An order of attachment may be issued either ex-parte OR
upon motion with notice and hearing in the court where the action is pending, or by the CA, or the SC.
Contents: Court will order sheriff to attach so much of the property in the Philippines of the party against whom it is
issued as may be sufficient to satisfy the applicant’s demand o BUT the party against whom it is issued MAY make a
DEPOSIT or file a bond, the amount of which should be enough to satisfy the amount in the order
bond vs. the ORDER of attachment
Sec 3 provides for the requirements for a writ of attachment to be issued: (AFFIDAVIT + BOND filed with the court)
1. AFFIDAVIT: by applicant or by another person who
personally knows the facts must show: a. a sufficient cause of action
b. one/more enumerated grounds are present c. there is no other sufficient security for the claim
sought to be enforced by the action d. the amount due to the applicant, or the value of
the property the possession of which he is entitled to recover, is as much as the sum for
which the order is granted above all
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counterclaims 2. BOND: applicant must give a bond executed to the adverse
party in the amount fixed by the court, with the condition that
the applicant will pay all the costs to the adverse party and all
damages which he may sustain by reason of the attachment if the court shall finally adjudge that the applicant was not
entitled thereto
WHEN ISSUED
EX-PARTE, REQUIREMENTS
WHEN ISSUED
EX-PARTE
BACKGROUND FIRST:
3 stages in writ of attachment
1. Grant of application for writ of attachment (no jurisdiction over
defendant is required) 2. Issuance of writ of attachment (no jurisdiction over defendant
is required)
3. Execution/implementation of writ of attachment (jurisdiction
over defendant is required he must be served summons)
Sec 5 provides for the following: manner of enforcing + provision
for counterbond
The sheriff enforcing the writ shall without delay attach, to await judgment and execution in the action, only so much of the
property in the Philippines of the party against whom the writ is issued as may be sufficient to satisfy applicant’s demand UNLESS
the attachee makes a deposit or gives a counter-bond executed to the applicant in an amount equal to the bond fixed by the court
in the order of attachment or to the value of the property to be attached bond to prevent attachment
IMPORTANT: There can be no levy on attachment unless it is
preceded or contemporaneously accompanied by service of summons
HOWEVER service of summons is not required where:
1. The summons could not be served personally or by substituted service despite diligent efforts
2. Defendant is a Philippine resident who is temporarily abroad
3. The defendant is a non-resident 4. The action is one in rem/quasi in rem (like in
Valmonte)
DISCHARGE OF
ATTACHMENT
1. Sec 12 (upon giving counterbond): After the writ of
attachment has been enforced, the attachee may move for the discharge wholly or in part upon filing a counterbond or cash
deposit to the attaching party in an amount equal to the
order of attachment 2. Other grounds (Sec 13)
a. BEFORE or AFTER Levy (kahit bago makuha): attachee may motion for an order to discharge
the attachment on the ground that it was improperly issued or irregularly enforced or that
the bond filed by attaching party is insufficient
3. If attaching party loses the case (judgment rendered
against him): all the proceeds of sales and money collected or received by the sheriff under the order of attachment AND
all property attached remaining ith the sheriff shall be delivered to the attachee and the order of attachment shall be
discharged
WHEN 3RD
PARTY CLAIMS
THE PROPERTY
ATTACHED
PROCEDURE:
1. Third party must make an affidavit showing his title to the
property OR right to possess it. 2. He must then serve the affidavit upon the sheriff while sheriff
has POSSESSION or BEFORE PUBLIC AUCTION
3. Once the sheriff is served the affidavit, he is no longer bound
to keep the property under attachment UNLESS the attaching party makes a bond to indemnify the third party claimant in a
sum not less than the value of the property levied upon. This
bond will protect the sheriff from liability for damages. 4. In case of disagreement as to such value, it shall be decided
by the court issuing the writ of attachment. 5. For a claim for damages by the third party/attachee against
the bond due to the taking or keeping of the property to prosper, it must be filed within 120 days from the date of
the filing of the bond (of the attaching party referred to in #3)
6. When attacher is RP, the filing of the bond in #3 is NOT required.
SATISFACTION
OF JUDGMENT
OUT OF
PROPERTY
ATTACHED
If attacher wins and gets a writ of execution on the judgment, the sheriff may sell the attached property to satisfy the judgment in
the following manner:
1. Paying to judgment creditor the proceeds of all sales of perishable or other property
2. If there’s a balance (if kulang), by selling so much of the property necessary to satisfy the balance
3. By collecting from all persons having in their possession credits belonging to the judgment debtor OR from collecting
debts due to the judgment debtor.
CLAIM FOR
DAMAGES ON
ACCOUNT OF IMPROPER,
IRREGULAR OR
EXCESSIVE
ATTACHMENT
When must it be filed?
IF in RTC/MTC
1. Before trial 2. Before appeal is perfected
3. Before judgment becomes executory
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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Such damages may be awarded only after proper hearing and shall be included in the judgment on the main case (even if attachee
loses in main case, he may still be awarded damages for improper,
irregular or excessive attachment)
IF in APPELLATE COURT
If appellate court judgment is in favor of attachee, he must claim
damages sustained during the pendency of the appeal by filing an application in the appellate court before the judgment of the
appellate court becomes executory.
The appellate court may allow the application for damages to be heard and decided by the trial court.
HOWEVER attachee is not prevented from recovering in the
same action the damages awarded him from any property of the attaching party not exempt from execution should the bond or
deposit given by the attaching property be insufficient
Davao Light and Power Co Inc, v. CA
Writs of attachment may properly issue ex parte provided that the Court is satisfied
that the relevant requisites therefor have been fulfilled by the applicant, although it may, in its discretion, require prior hearing on the application with notice to the
defendant; but that levy on property pursuant to the writ thus issued may not be validly effected unless preceded, or contemporaneously accompanied, by service on
the defendant of summons, a copy of the complaint (and of the appointment of guardian ad litem, if any), the application for attachment (if not incorporated in but
submitted separately from the complaint), the order of attachment, and the plaintiff's attachment bond
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Rule 58: Preliminary Injunction
Prelim
injunction
defined
A preliminary injunction is a preventive remedy.
It is an order granted at ANY stage of an action or
proceeding PRIOR to the judgment or final order, requiring a party, court, agency or person to REFRAIN from
doing particular act/acts. PRELIMINARY MANDATORY INJUNCTION: Requires the
performance of a particular act or acts.
Nature and
Purpose of Prelim
injunction
To preserve the status quo of the things subject of the action
or the relations between the parties and thus protect the rights of the plaintiff during the pendency of the suit.
It cannot protect contingent or future rights. The possibility of irreparable damage, without proof of violation of an actual
or existing right, is not a ground of injunction.
Grounds for issuance
A preliminary injunction may be granted when it is established that:
1. The applicant is entitled to the relief demanded and the
relief consists in the restraining the commission or continuance of the act or acts complained of, or in
requiring the performance of an act or acts, either for a limited period or perpetually
2. The commission, continuance or non-performance of the act or acts complained of during litigation would probably work
injustice to the applicant 3. That a party, court, agency, or a person is doing, threatening
or is attempting to do, or is procuring something to be done, some act or acts probably in violation of the rights of the
applicant respecting the subject of the action or proceeding, and tending to render the judgment
ineffectual
Technical Requirements: (verified+bond) 1. VERIFIED: The application in the action is verified and
shows facts entitling applicant to the relief demanded 2. BOND: UNLESS exempted by the court, the applicant files
with the court where the action or proceeding is pending, a bond executed to the party or person enjoined, in an
amount fixed by the court, to the effect that the applicant will pay to such party/person ALL damages which he may
sustain by reason of the injunction/TRO if the court should finally decide that the applicant was not entitled thereto.
PROCEDURE IN MULTI-SALA COURT: When an application for
a writ of PI or TRO is included in a complaint or initiatory pleading, the case, if filed in a multiple-sala court, shall be raffled
only after notice to and in the presence of the adverse party or person sought to be enjoined.
NOTICE IN CASE OF APPLICATION FOR PRELIM INJ IN MULTI-SALA COURT: In any event, the notice shall be preceded
or simultaneously accompanied by service of summons upon the
adverse party in the Philippines together with the
complaint/initiatory pleading
However, where the summons could not be personally served or by cannot be served by substituted service despite diligent efforts,
or the adverse party is a resident of the Phils and temporarily absent or when he is a non-resident, the requirement of PRIOR or
CONTEMPORANEOUS service shall not apply
WHEN BOND NOT REQUIRED: WHEN TRO is PRAYED FOR: The application for a TRO shall then be acted upon only after all
parties are heard in a summary hearing which shall be done
within 24 hours after the sheriff’s return of service and/or the
records are received by the branch selected by raffle and to which the records shall be transmitted immediately.
NOTE: In preliminary injunction, applicant’s bond is mandatory.
In TRO, applicant’s bond is not mandatory. Only summary hearing required.
Who may
grant preliminary
injunction
1. Where the action or proceeding is pending
As an example:
File in MTC (in cases of pending FEUD cases or actions not exceeding 20k/50k as the case may be
File in RTC (in cases of specific performance for example
2. If the action is already pending in the CA/SC, it may be issued by said court of any member thereof
HOWEVER you can’t file a petition for injunction as a main action
in the CA or SC (usually, actions under rule 65 get to the CA/SC and additionally, injunction is prayed for)
Sec 5: Preliminary
injunction not granted
without notice and its
exception
GR: No preliminary injunction shall be granted without hearing and prior notice to the party or persons sought to be enjoined.
EX:
1. 20 DAY TRO instead (by the TC): If it shall appear from
facts shown by affidavits or by the verified application that great or irreparable injury would result to the applicant
before matter can be heard on notice. In this case, the court may issue ex-parte a 20 day TRO (in this case, Prelim INJ
was prayed for but TRO will instead be granted) 2. 72 HOUR TRO in MULTI-SALA COURT: If matter is of
extreme urgency and the applicant will suffer grave injustice and irreparable injury, the executive judge of a
multi-sala court may issue a 72 hour TRO. After 72 hours, the
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judge before whom the case is pending will then decide whether to extend the TRO until the application for PRELIM
INJ can be heard. However, in no case shall the 72 hour TRO
exceed 20 days (including the 72 hours already)
a. In the event that the application for preliminary injunction is denied or not resolved within the
said 20 day period, the TRO is deemed automatically vacated. Its effectivity is non-
extendible without need of any judicial declaration to that effect and no court shall have
authority to extend or renew it on the same ground it was issued (however, TRO life can be
extended if BOTH parties ask for it) 3. CA TRO: if CA or a member thereof issues a TRO, it shall last
for 60 days from service.
4. SC TRO: If SC issues, it is effective until further orders
IMPORTANT: the trial court, the CA, the SB or the CTA that
issued a writ of prelim inj against a lower court, board, officer, or QJ agency shall decide the main case or petition within 6
months from the issuance of the writ.
Objections to or dissolution
of injunction
The application for injunction or restraining order may be denied, upon a showing of its insufficiency.
It may also be denied or, if granted, may be dissolved, on other grounds upon affidavits of the party/person enjoined
COUNTERBOND: It may also be further denied or if granted, may be dissolved IF after hearing that although the applicant
is ENTITLED to injunction or restraining order, the issuance or continuance thereof, would cause irreparable damage to the
party/person enjoined and the party/person enjoined files a bond in an amount fixed by the court with the
condition that he will pay all damages which applicant may suffer by the denial or dissolution of the injunction
or restraining order.
When final
injunction granted
IF AFTER TRIAL, it appears that the applicant is entitled to
have the act/acts complained of permanently enjoined, the court shall grant a final injunction perpetually restraining the
party or person enjoined from the commission or continuance of the acts or acts OR confirming the preliminary mandatory
injunction
When
injunction IMPROPER
1. PD 605: cases involving licenses and other permits issued b
public administrative officials for exploitation of natural resources
2. PD 1818: cases involving infrastructure and natural resources projects of public utilities operated by government
3. PD 385: against any government financing institution taking foreclosure of loans of which at least 20% thereof are
outstanding
a. EXCEPTION to these laws: When it does not involve administrative acts that involve exercise of discretion
in technical cases as when mere questions of law are involved, injunction will lie against these cases.
When
injunction
proper
1. Petition for relief (38)
2. Petition for CPM (65) (to restrain respondent)
3. Actions for annulment of judgment 4. Restrain continued breach of valid negative (don’t do)
obligation 5. Restrain abatement of nuisance per accidens while
determination of nuisance is pending
Cases:
1. Decano v. Edu: D was dismissed from service (as a janitor) by E. He was
merely a temporary appointee of an administrative agency. D then filed a petition for injunction and mandamus in Pangasinan RTC to prevent his
dismissal. The official station however of E, is in Quezon City so E was arguing that the Pangasinan RTC did not have jurisdiction. The SC held that where the
main action is the annulment of the action of the respondent AND injunction is merely ancillary, the trial court of the locality where questioned act (the
dismissal) to be implemented has jurisdiction. In this case, the implementation of the dismissal order was to be made in Pangasinan hence the court had
jurisdiction. 2. Versoza v. CA:
a. F owned a parcel of land. He mortgaged it to V. F failed to pay so V foreclosed.
b. To prevent this, F filed a complaint against V for annulment of mortgage with prayer for writ of prelim inj. It was initially
dismissed because of improper verification but F’s MR was granted and the amended complaint was admitted.
c. V filed a petition for certiorari, alleging that the TC committed GADLEJ in admitting the complaint. Certiorari was denied.
d. However, auction proceeded and V won the auction sale. After expiration of the redemption period, a TCT was issued in V’s name. V
then sold it to M who was issued his own TCT. e. In the meantime, F applied for a prelim inj against M, the new owner
as per the title. Court granted the injunction INSOFAR as F’s right to possess the land is concerned
f. The issue is w/n F is entitled to injunction when the act complained of has already been consummated (in this case, F wanted to ANNUL the
mortgage STOP the foreclosure but it was already done) i. SC Ruling: In this case, F was still the owner and was in
possession of the property at the time the original complaint was filed (annulment of mortgage)
ii. GR: where the acts sought to be enjoined have already been performed prior to filing for injunction, the consummated acts
cannot be restrained iii. EX: However, where the acts are performed AFTER the
injunction suit is commenced, a defendant may not as a matter of right proceed to perform the acts sought to be
restrained. He proceeds at his own peril. In this case, he still
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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proceeded with the foreclosure and the eventual sale to M notwithstanding the fact that F already brought an injunction
suit to restrain him from doing so.
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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Rule 59: Receivership
WHAT IS
RECEIVERSHIP?
Normandy v. Duque: A receiver is a representative of the
court appointed for the purpose of preserving and conserving
the property in litigation and prevent its possible destruction or dissipation (if it was instead left in the possession of any othe
parties)
The receiver is not the representative of any of the parties but of all of them to the end that their interests may be equally be
protected.
PRELIMINARY
CONSIDERATIONS
An application for receivership must be VERIFIED.
This application is filed by one or more persons He/They must file it in the court where the action is
pending.
After which, they may be appointed by the court as
receivers where the action is pending, by the CA, or by the SC, or by a member of CA/SC
CASES WHERE
RECEIVERSHIP
MAY BE
APPOINTED
D-DANGER M-MORTGAGE
P-PENDENCY OF
APPEAL
A-AID EXECUTION C-CARRY OUT
JUDGMENT O-OTHERS
DAMPCO
The cases may be divided into three groups. First group would
be during a pending action (1&2). Second group would be AFTER judgment (3) and miscellaneous (4)
1. When it appears from the application 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
or proceeding 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 2. When it appears in an action by the mortgagee for the
foreclosure 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 have so stipulated
in the contract of mortgage 3. After judgment to preserve the property
a. during the pendency of the appeal, or b. to dispose of it according to the judgment, or
c. to aid execution when the execution has been returned unsatisfied or the judgment debtor
refuses to apply his property in satisfaction of the judgment
d. to carry out the judgment into effect 4. In other cases, when it appears that the appointment of a
receiver is the most convenient and feasible means of preserving, administering or disposing 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 be subject to the control of the said court
OTHER TYPES OF
RECEIVERSHIP
1. Receivership in aid of execution of judgment under Rule
39:
2. Bank receivership
3. Insolvency receivership
DUE PROCESS
REQUIREMENT
Notice and hearing is required before a receiver is appointed.
It is incumbent upon the applicant to present evidence to
establish the condition precedent that the property is in danger of being lost, removed or materially injured unless receiver is
appointed to preserve it.
Otherwise put, applicant must present evidence to prove that
the cases enumerated above are indeed existing.
ADDITIONAL
REQUIREMENTS
APPLICANT’S
BOND
RECEIVER’S OATH RECEIVER’S BOND
1. Before an order appointing a receiver is issued, the
applicant is required to file a bond executed to the party against whom thee application is presented
a. Purpose: If the applicant procured the receivership without sufficient cause, the party
against whom it is directed will be compensated by the bond for the damages he may suffer due to
the order 2. Before a receiver enters his duties, he shall swear to
perform his duties faithfully and also file another bond attesting that he will faithfully discharge his duties in the
action and obey the orders of the court
INSTANCES WHEN
APPLICATION FOR
RECEIVERSHIP IS
DENIED OR A
RECEIVER IS
DISCHARGED
1. DISCHARGE IF WITHOUT CAUSE: Receiver may be
discharged if it is shown that his appointment was obtained without sufficient cause. This requires a motion filed by
the adverse party with prior notice to the receiver 2. DENY OR DISCHARGE IF COUNTERBOND IS FILED: If
adverse party files a counterbond, application for receivership may be denied or receiver may be discharged.
a. Counterbond: The adverse party will pay the applicant all damages he (applicant) may suffer by
reason of the acts, omissions or other matters specified in the application as ground for such
appointment 3. IF APPLICANT/RECEIVER’s BOND is INSUFFICIENT:
If either the applicant’s or receiver’s bond is found to be insufficient or if the sureties thereon fail to justify, the
application shall be denied or the receiver will be
discharged as the case may be.
SERVICES OF
COPIES OF BONDS
Both the applicant and the adverse party may be required/may
file bonds in accordance with this rule. Any person filing a bond
in accordance with this rule shall serve a copy on each interest
party, who may challenge to the insufficiency of the bond or of the sureties thereon.
GENERAL POWERS
OF RECEIVER 1. Power to bring and defend in his capacity as receiver
actions in his own name
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2. To take and keep possession of the property in controversy 3. To receive rents
4. To collect debts due to himself as receiver or to the fund,
property, estate, person or corporation of which he is a
receiver 5. To compound for or compromise the same
6. To make transfers 7. To pay outstanding debts
8. To divide money and other property that shall remain among the persons legally entitled to receive the same
9. Generally, to do such acts respecting the property as the court may authorized
What if the receiver wants to invest the funds in his
possession/control due to the receivership?
He must get a court order + written consent of all the parties to the action
IMPORTANT: No action may be filed by or against a receiver
without leave of court which appointed him.
WHEN CAN
RECEIVERSHIP BE
TERMINATED?
Whenever the court, on its own (motu proprio) or upon motion of either party, shall determine that the necessity of a receiver
no longer exists, it shall (after due notice to all parties and hearing them)
1. Direct the delivery of the funds and other property in the receiver’s possession to the person adjudged to be
entitled to receive them 2. Order the discharge of the receiver from further duty
as such 3. Allow the receiver reasonable compensation as the
circumstances may warrant
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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Rule 60: Replevin
ALL ABOUT
REPLEVIN
BA FINANCE +
CHIAO LIONG TAN
Replevin: It may refer to the action itself (action to regain
possession of chattels wrongfully detained) or a provisional
remedy (allow the plaintiff to retain the thing during the penedency of the action and hold on to it)
A writ of replevin is partly an action in rem and an action in
personam o In rem: insofar as the recovery of specific property
is concerned o In personam: insofar as the damages involved are
concerned The person in possession of the property sought to be
replevied is ordinarily the proper and only necessary party
defendant.
The 3rd parties claiming the property, but are not in possession thereof, is not required to be joined. However,
see digest of BA Finance below. It is different when 3rd party in possession is involved.
Primarily, the action for replevin is only possessory in character and determines nothing more than the right to
possession. HOWEVER when the title to the property is distinctly put in issue by the defendant’s plea, the question
of ownership may also be resolved in the same proceeding. Also, although a replevin action is one for recovery of
possession of personalty, the court can settle issues of
ownership, for the rerurn of the repleived property, or secure a judgment for the value of the property in the
case.
APPLICATION A party praying for the recovery of possession of personal
property may apply for an order for the delivery of such property to him at the following instances:
1. At commencement of the action 2. Any time before the answer
AFFIDAVIT/BOND
REQUIREMENT AFFIDAVIT:
The applicant must show by his own affidavit or that of some other person who personally knows the facts the following:
1. That the applicant is the owner of the property claimed, particularly describing it or that the applicant
is entitled to the possession 2. That the property is wrongfully detained by the
adverse party, alleging the cause of detention thereof to the best of his knowledge, information and belief
3. That the property has not been distrained or taken for a tax assessment or a fine pursuant to law OR
seized under a writ of execution or preliminary attachment (if seized, it must be shown that it is
exempt from seizure or custody) or otherwise placed
under custodia legis 4. The actual market value of property
BOND:
The applicant must also give a bond, executed to the
adverse party. It must be DOUBLE the value of the property.
The bond is also for the return of the property to the adverse party if the return is adjudged by the court
CAN IT BE ISSUED
AGAINST
PROPERTY IN
CUSTODIAL EGIS?
No. However, under rule 57 (attachment), property in custodia legis may be attached
ORDER TO
DELIVER
PROPERTY
Upon the filing of affidavit and the bond, the court shall issue an
order and the corresponding writ of replevin
The writ describes the personal property to be wrongfully detained and requiring the sheriff to take such property into
custody
SHERIFF’S DUTY: Upon receiving the order, the sheriff must serve a copy to the adverse party and take the property if it is
in his possession and retain it in his custody. IF the property or any party thereof is concealed in a building or
enclosure, the sheriff must demand its delivery.
IF it is not delivered, he must break open the building or enclosure to take the property into his possession.
NOTICE AND
HEARING
REQUIREMENT
The order of the writ of replevin is issued ex parte (w/o hearing) as long as the requisites (affidavit + bond) are
present.
WHEN MAY
PROPERTY BE
RETURNED
IF THE ADVERSE PARTY OBJECTS TO THE SUFFICIENCY
OF THE BOND/SURETIES: he cannot immediately require the return of the property (the court will decide first)
IF HE DOES NOT OBJECT: At any time before the delivery of
the property to the applicant, he may require the return of the property by filing a counterbond (executed to the applicant,
also double the value of the property)
HOW DOES THE
SHERIFF DISPOSE
OF THE PROPERTY
The property shall be delivered to the applicant in the following instances:
If within 5 days after the taking of the property by the
sheriff, the adverse party does not object to the sufficiency
of the bond, or of the surety or sureties thereon
If the adverse party objects and the court affirms its approval of the bond or approves a new bond
If the adverse party requires the return of the property but his bond is objected to and found insufficient and he does
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not file an approved bond
HOWEVER, if for some reason, the property is not delivered to
the applicant, the sheriff must return it to the adverse party
TAKE NOTE:
Property seized by the sheriff shall not to be delivered immediately to the applicant. Sheriff must retain in custody
for 5 days and shall return it to the defendant if he files a counterbond.
Counterbound must be filed within 5 days from the taking. The period is mandatory.
Cases:
1. BA FINANCE: A owed B 86k. A mortgaged his car (CM) and made a PN in
favor of B to secure the loan. B assigned the CM and the PN to C, a collection agency. B, mortgagor, failed to pay. The mortgaged car, however, was in the
possession of R, an adverse possessor and also a creditor of A. C filed for a writ
of replevin against R. This was denied because A, the original mortgagor-debtor, was not duly served summons hence no jurisdiction was
acquired over him. The SC held that he original mortgagor must be impleaded (hence is an indispensable party) in a case where a third party is
involved (in this case, R) to fully determine the rights of the parties. Applying it in the case at bar, A must be impleaded for C to properly maintain an action for
replevin against R, a third party adverse possessor. a. A chattel mortgagee, unlike a pledgee, need not be in possession of
the property unless and until the mortgagor defaults and the mortgagee seeks to foreclose. Since the mortgagee’s right of
possession is conditioned upon the actual fact of default, the inclusion of other parties (like the debtor or the mortgagor himself, may be
required in order to allow a full determination of the case) b. Hence, when a mortgagee seeks a replevin in order to effect the
eventual foreclosure of the mortgage, the default of the mortgagor must be shown by the mortgagee. The mortgagee must establish this
in order to avail of the writ of replevin. 2. Northern Motors v. Herrera
a. The mortgagee in a CM has a right to the possession of the property mortgaged upon default (or any breach of mortgage contract)
b. When the debtor defaults and the creditor wants to foreclose, he must take possession of the mortgaged property. By the debtor’s default
(once proven and substantiated), the mortgagee is entitled to possession of the mortgaged property.
c. However, if the debtor does not want to yield the property, the creditor must institute an action either effect judicial foreclosure, or
to secure possession (through writ of replevin) as a preliminary step to the sale.
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Comparison and Review of the 3 PROVISIONAL REMEDIES: PRELIMINARY ATTACHMENT, INJUNCTION and REPLEVIN
PRELIM
ATTACHMENT: Rule
57
REPLEVIN: RULE 60 INJUNCTION; RULE
58
GROUNDS One will suffice:
Action:
1.to recover specified
amount
2.involving
embezzled money
3.recover fraudulently
taken money
4.fraud in contracting
or performing
obligations
5.against party who
has removed or
disposed of property
to defraud creditors
6.non-resident
defendant
All must be
established:
1.That the applicant
is the owner of the
property claimed,
particularly describing
it or that the
applicant is entitled
to the possession
2.That the property is
wrongfully
detained by the
adverse party,
alleging the cause of
detention thereof to
the best of his
knowledge,
information and belief
3.That the property
has not been
distrained or taken
for a tax assessment
or a fine pursuant to
law OR seized under
a writ of execution or
preliminary
attachment (if seized,
it must be shown that
it is exempt from
seizure or custody) or
otherwise placed
under custodia legis
4. The actual market
value of property
One will suffice:
1. That the applicant
is entitled to the relief
demanded and the
relief consists in
restraining the
commission or
continuance of the act
or acts complained of
or in requiring the
performance of an
act/acts either for a
limited time or
perpetually
2.The commission,
continuance or non-
performance of the
act complained of
during litigation would
probably work
injustice to the
applicant
3.That a party, court,
agency or a person id
doing, threatening or
attempting to do, or
is procuring or
suffering to be done,
some act or acts
probably in violation
of the rights of the
applicant
AFFIDAVIT AND
BOND
Applicant must make
an affidavit and file a
bond (in favor of
adverse party)
Adverse party can file
a counterbond to discharge the
attachment
Applicant must make
an affidavit and file a
bond (in favor of
adverse party) BUT
bond must be double
the value
Adverse party can file
a counterbond to
have the property
returned
Verified application
and applicant must
file a bond (in favor of
adverse party)
NOTICE AND
HEARING
BEFORE
ISSUANCE
May be issued ex-
parte or upon motion
with notice and
hearing.
None required. Can
be issued ex parte
Notice and hearing
GENERALLY required.
However, if it is
shown that there is
possible great or
irreparable injury, a
20 day TRO may be
ordered
PROCEDURE AS
TO THIRD
PARTY CLAIM
Same.
What must third party (who’s claiming
attached property) do?
Make an affidavit stating his title and
grounds for his title/right to possess
Serve the affidavit on the sheriff when the sheriff still has possession of the property
A copy of the affidavit must be served on
the attaching property
What is the effect?
The sheriff shall not be bound to keep the
property under attachment
Remedy of attaching party
File a bond to indemnify the third party
claimant in a sum not less than the value of
the property levied
Not applicable
RECOVERY
AGAINST
SURETIES
Sec 20 of Rule 57 provides the following:
TRIAL COURT LEVEL: An application for damages on account of
improper, irregular or excessive attachment must be filed
o BEFORE the trial or
o BEFORE appeal is perfected or
o BEFORE the judgment becomes executory
(ALL) with due notice to the attaching party and his
surety/sureties
The damages may be awarded only after proper hearing and shall
be included in the judgment on the main case
APPELLATE LEVEL: Assuming the appeal as perfected IF the
judgment on the appellate court is favorable to the adverse party,
he must claim damages sustained during the pendency of the
appeal by filing an application in the appellate court, with notice to
the party in whose favor the remedy was issued or his
surety/sureties BEFORE the judgment of the appellate court
becomes executory
The adverse party MAY also recover in the same action the
damages awarded to him from any property of the attaching
property not exempt from execution should the bond or deposit
given by the attaching party is insufficient
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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Rule 61: Support Pendente Lite
WHEN CAN ONE
APPLY FOR
SUPPORT
PENDENT LITE
At the commencement of the action or proceeding OR
At any time prior to the judgment or final order
A verified application for support pendent lite may be filed by
any party stating the grounds for the claim and the financial conditions of both parties, and accompanied by affidavits,
depositions or other authentic documents in support thereof
COMMENT A copy of the application and all supporting documents shall be
served upon the adverse party who shall have 5 days to comment. Comment shall be verified.
HEARING
REQUIREMENTS
After comment is filed, or after expiration for period to file
comment, the application shall be set for hearing.
ORDER The court shall provisionally determine the facts and render
orders that justice may require.
IF application is granted, the court shall fix the amount of money to be provisionally paid or such other forms of support as should
be provided.
IF application is denied, the case shall be tried and decided as early as possible
ENFORCEMENT
OF ORDER IF the adverse party fails to comply with an order granting SPL, the court shall motu proprio or upon motion, issue an order of
execution against him.
This is without prejudice to being cited for contempt.
If a third person who furnished support to the applicant because the person ordered to do so did not, he may, after due notice
and hearing, obtain a writ of execution to enforce a right of reimbursement against the person ordered to provide such
support.
SUPPORT
PENDENT LITE IN
OTHER ACTIONS
1. Habeas corpus case filed by the mother on behalf of a minor child against the father, where the father has recognized the
child as his own and has not been giving him support 2. Rape cases for the offspring of the accused as a
consequence thereof.
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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(Special Civil Actions) Rule 62: Interpleader
WHEN IS
INTERPLEADER
PROPER?
1. Whenever conflicting claims upon the same subject matter
are or may be made against a person who claims no
interest (at all) in the subject matter OR 2. There are conflicting claims upon the same SM that
are/may be made against a person who claims an interest which is not disputed by the claimants
That person (called plaintiff-in-interpleader) may bring an
action against the conflicting claimants the compel them to interplead and litigate their several claims among themselves
(e.g. in lease contracts [two people claiming the right to collect rent], warehouseman)
Indispensable element of interpleader: conflicting claims
upon the same SM are/may be made against the plaintiff-in-interpleader who claims no interest whatsoever in the subject
matter.
Beltran v. People’s Homesite:
Purpose of Interpleader: A person who has property in his possession or has an obligation to render wholly or partially,
without claiming a right in both, comes to court and asks that the defendants (who have made upon him conflicting claims
upon the same property or who consider themselves entitled
to demand compliance with the obligation) be required to litigate among themselves in order to determine who is
entitled to the property or payment of an obligation.
In this case, the residents of Subdivision A filed a complaint for interpleader so that Corp A and Corp B could settle their
conflicting claims over the management and ownership of the land where Subdivision A sits. This was denied however,
because Corp A and Corp B did not have conflicting claims as regards the plaintiffs-in-interpleader. They only had conflicting
claims as between themselves. Corp A or Corp B did not make any claims (for rentals) against the residents of Subdivision A.
ORDER Upon the filing of the complaint, the court shall issue an order requiring the conflicting claimants to interplead with one
another.
If the interests of justice require, the court may also direct in such order that the SM be paid or delivered to the court
SUMMONS Summons shall be served on the conflicting claimants
MOTION TO
DISMISS
Within the time for filing an answer, each claimant may file a
motion to dismiss on the ground of the impropriety of the
interpleader citing the grounds mentioned in Rule 16. If MTD is granted, plaintiff-in-interpleader can appeal. If MTD is
denied, petition for certiorari rule 65.
IMPORTANT: ―5 days in any event” applies in interpleader.
How?
The period to answer shall be tolled and if the MTD is denied,
the movant may file his answer within the remaining period, which shall not be less than 5 days in any event, reckoned
from the notice of denial.
ANSWER/DEFAULT
/ PLEADINGS
Each claimant shall file his answer setting forth his claim within
15 days from service of summons.
If any claimant fails to plead within the time fixed, the court may, on motion, declare him in default and bar him from any
claim with respect to the SM.
Cross-claims, counterclaims, 3rd party complaints and responsive pleadings can be filed
After the pleadings of the conflicting claimants have been filed, and pre-trial has been conducted, the court shall proceed to
determine the rights of the claimants
FEES Docket/lawful fess shall be paid by the party who filed the
complaint
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Rule 63: Declaratory Relief and Similar Remedies
WHO MAY FILE A
PETITION FOR
DECLARATORY
RELIEF?
Any person interested under the following may bring an action
in the appropriate Regional Trial Court (RTC has EXCLUSIVE
jurisdiction) to determine any question of construction or validity of AND for a declaration of rights and duties under
DISCRETIONARY [for court to take cognizance]
1. A deed (private docs) 2. A Will (private docs)
3. A Contract/written instrument (private docs) 4. A statute, EO or regulation, ordinance or any other
government regulation (public issuances)
An action for the following may also brought under this rule:
MANDATORY [for court to take cognizance] 1. Reformation of an instrument
2. To quiet title to real property and remove clouds 3. To consolidate ownership under CC Art 1607
Requisites:
1. Existence of justiciable controversy
2. The controversy is between persons whose interests are adverse
3. That the party seeking relief has a legal interest in the
controversy 4. The issue involved is ripe for judicial determination
Ollada v. Central Bank: A complaint for declaratory relief will
not prosper if filed after a contract, statute or right has been breached or violated.
PARTIES INVOLVED All persons who have or claim any interest which would be affected by the declaration shall be made parties. No
declaration, except as provided, prejudice the rights of persons who are not parties to the action
WHEN SOLGEN
REQUIRED In any action which involves the validity of a statute, EO or regulation, the Solgen shall be notified by the party assailing
the same and the Solgen shall be entitled to be heard
WHEN IT IS ABOUT
LOCAL
GOVERNMENT
ORDINANCES
When it is involving the validity of the local government
ordinance, the corresponding prosecutor/atty of the LGU shall be also heard and notified (like the Solgen)
However, if such ordinance is alleged to be unconstitutional,
the Solgen shall also be notified and entitled to be heard
IS COURT ACTION
DISCRETIONARY? Except in actions for reformation, quieting of title or consolidation of ownership, the court motu proprio or upon
motion, may refuse to exercise the power to declare rights and to construe instruments in any case where a decision would
not terminate the controversy which gave rise to the action OR in any case where the declaration or construction is NOT
necessary and proper under the circumstances
WHEN CONVERTED
INTO AN ORDINARY
ACTION
If before the termination of the case for declaratory relief
(during pendency), a breach or violation of an instrument or statute, eo or regulation, ordinance should take place, the
action may be converted into an ordinary action and the parties shall be allowed to file such pleadings as may be
necessary or proper
*Note: Can’t nullify laws, contracts, etc.
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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Rule 64: Review of Judgments and Final Orders or Resolutions of the COMELEC and the COA
WHAT IS THE
REMEDY WITH
REGARD TO
JUDGMENTS, FINAL
ORDERS OR
RESOLUTIONS OF
THE COMELEC
AND COA?
Certiorari under Rule 65 to the Supreme Court
Garces v. CA: SC can only take cognizance of COMELEC/COA
Judgments, Final orders or Resolutions only when the COMELEC/COA makes the j, fo or r in the exercise of its
adjudicatory or quasi-judicial powers.
In this case, the question brought forth under rule 65 to the SC involved an administrative controversy. COMELEC’s
decisions, to be able to be brought to the SC, must be in the exercise of its quasi-juidical functions (like an election dispute)
CONCERNING MRS When COMELEC division renders a decision in the exercise of
its quasi-judicial or adjudicatory power, an MR must be made
first.
Order of Remedy:
COMELEC Division Decision -> MR -> COMELEC En Banc ->
Rule 65 to the SC (review of judgment)
HOWEVER (instance where rule 65 from division decision)
COMELEC Division Decision -> If made with GADLEJ, no more need for MR, can go directly to SC under petition for certiorari
Note: COMELEC Rules of Procedure provides that no MR of an
en banc decision is allowed except in election cases.
TIME TO FILE
PETITION
30 days from notice of the j, fo, r sought to be reviewed.
Filing of MR has interrupting effect.
IMPORTANT: at least 5 days in any event applies in Rule 64
If MR is denied, the aggrieved party may file the petition for
certiorari (not answer) within the remaining period, which shall not be less than 5 days in any event, reckoned from notice of
denial.
*Compare with Rule 65 (in rule 65, after your MR is denied you have new 60 day period)
COMMENT If the SC finds the petition sufficient in form and in substance, it shall order the respondents (COMELEC/COA) to file their
comment.
The SC may also dismiss the petition outright IF
1. Filed manifestly for delay
2. Questions raised are too unsubstantial to warrant further proceedings
EFFECT OF FILING The filing of the petition for certiorari shall not stay the
execution of the j, fo or r sought to be reviewed UNLESS the
SC deems otherwise
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Rule 65: Prohibition and Mandamus
PROHIBITION The rule provides that when the proceedings of any tribunal,
corporation, board, officer or person whether exercising
judicial, QJ or ministerial functions acted in excess/without jurisdiction or committed GADLEJ and there is no appeal or
any other plain, speedy and adequate remedy in the ordinary course of law, an aggrieved party may file a petition for
prohibition, commanding the respondent to desist from further proceedings in the action or matter specified
Broken down into keywords:
1. Proceeding of tribunal, corp, board, officer, or person
exercising judicial, quasi-judicial or ministerial functions
2. Excess of jurisdiction or GADLEJ
3. No appeal OR any other plain, speedy and adequate remedy
4. Order is for the respondent to DESIST from doing an act to be done.
Difference of Excess of Jurisdiction and Grave Abuse of
Discretion
Excess of Jurisdiction: the court, board or officer has jurisdiction over a case but has transcended the same or acted
without authority
Grave abuse of discretion: the court, board or officer has
exercised its power in an arbitrary manner by reason of passion or personal hostility. It must be so patent and gross.
Purpose of Prohibition: To prevent the unlawful and
oppressive exercise of legal authority. It is not to correct error of judgment but a preventive remedy aimed to restrain the
doing of some act to be done
However, as stated in Holy Spirit Homeowners Assoc v. Defensor: Prohibition will lie against judicial or ministerial
functions, but not against legislative or quasi-legislative functions (when attacking the validity of an IRR of an
administrative agency) The proper remedy would be an ordinary action for its nullification, which falls under the
jurisdiction of the RTC. Other remedies available would be to ask the RTC to issue a writ of injunction or a TRO.
Note: Remember, as per the Constitution, the SC may review,
revise, reverse, modify or affirm on appeal or certiorari, final judgments and orders of lower courts in “all cases in which the
constitutionality/validity of any x x x law x x x or regulation is
in question”
MANDAMUS The rule provides that when any tribunal, corporation, board,
officer or person unlawfully neglects the performance of an act
which the law specifically enjoins/order as a duty resulting
from an office, trust, station OR unlawfully excludes another from the use and enjoyment of a right or office to which such
other is entitled, and there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law,
the aggrieved person may file a petition for mandamus, commanding the respondent, immediately or some other time
to be specified by the court, to do the act required to be done to protect the rights of the petitioner and to pay the damages
sustained by the petitioner by reason of the wrongful acts
Broken down into keywords:
1. TWO ASPECTS: a. Tribunal, corporation, board, officer or
person unlawfully neglects an act which
the law commands him to do OR b. T,B,C,O or P unlawfully excludes another
from the use and enjoyment of a right or office to which he is entitled
2. No appeal OR any other plain, speedy and adequate remedy
3. Mandamus cannot lie against discretionary functions (See Sharp v. LBP below)
4. Mandamus is available only to compel the doing of an act specifically commanded by law. Exception would
be if there is GADLEJ (See digests below) 5. Clear legal right of petitioner must be shown
6. The imperative duty of the respondent to perform the must also be shown
COMMON
REQUISITES OF
PROHIBITION AND
MANDAMUS
1. Petition must be verified 2. Petition must be filed within 60 days from notice of the
judgment, order or resolution. IF MR/MNT was filed and it was denied, another 60 days given from notice of denial
3. Petition must assign errors of jurisdiction and NOT errors of judgment
4. When and where filed (see below) 5. Petition must contain certification of non-forum shopping
6. R65 Sec 5: Respondents: When petition relates to acts/omissions of a judge, court, QJ agency, tribunal,
corporation, board, officer, or person, the petitioner shall join as private respondent, the person/persons interested
in sustaining the case.
The costs awarded in such proceedings awarded to petitioner shall be against the private respondents only.
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
79
Unless otherwise specifically directed by the court where the petition is pending, the public respondents shall not
appear in or file an answer or comment to the petition or
any pleading therein.
If the case is elevated to a higher court by either party,
the public respondents shall be included therein as nominal parties. However, they shall only appear in the
proceedings if directed by the court
Where filed? 1. If the petition relates to an act or omission of a MTC
or of a corporation, board, officer: RTC exercising jurisdiction over the territorial area (or also CA or
Sandiganbayan, w/n it is in the aid of the court’s appellate jurisdiction)
2. If petition involves act or omission of a quasi-
judicial agency: CA
3. If election cases involving an act or omission of a MTC/RTC: COMELEC in aid of its appellate jurisdiction
4. Remember, however, that Rule 56 provides that the SC
also has original jurisdiction over petitions for mandamus, prohibition and certiorari. Depends on the situation.
Cases:
1. Sharp International Marketing v. CA:
UCBP entered into a contract to sell a piece of land with Sharp. It would be
converted into a deed of absolute sale upon payment of 3M. However, before Sharp even acquired the land, Sharp offered to sell it to the
Government for 65M. The administrative agency involved approved the sale. A deed of sale was entered into by the President of Sharp and the
Secretary of Agarian Reform. All that was left was for the LBP President to sign the deed of sale, the bank being the one to release the public funds to
acquire the property. The President of LBP did not want to sign the deed of sale. The Secretary
even sent a team to reassess the land. Sharp filed a petition for mandamus to order LBP President to sign.
SC held that this was a discretionary function on the part of the LBP President since it was up to him to approve the compensation to be paid to
Sharp. Also, SC held that the action for mandamus cannot lie if what is sought to
be enforced is alleged contractual obligations under a disputed contract --- disputed not only on the ground that it had failed to reach perfection, but
on the ground that it was illegal and against public interest.
2. Henares Jr. v. LTFRB and First Philippine Holdings v. Sandiganbayan
GR: Mandamus does not lie to require anyone to fulfill contractual obligations or to compel a course of conduct or to control or review the
exercise of discretion. The law must specifically order the act to be done.
EX: When in the exercise of discretionary duty, there is GADLEJ. In the First Philippine Holdings Case, although the motion for intervention is
discretionary on the court, its denial was tainted with GADLEJ as movant
was able to prove its interest in the SM of the litigation and the court still
denied the motion for intervention. Intervention was allowed by the SC.
In Holy Spirit, what ordinary action should you file to assail the constitutionality of an IRR?
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
80
Rule 66: Quo Warranto
What is quo
warranto
A writ requiring the person to whom it is directed to show what
authority they have for exercising some right or power (or
"franchise‖) they claim to hold.
Against whom
can quo warranto be
filed
An action for usurpation of a public office, position or franchise
may be commenced by a verified petition brought in the name of the Republic of the Philippines AGAINST:
1. A person who usurps, intrudes into, or unlawfully
holds or exercises a public office, position or franchise
2. A public officer who does or suffers an act which, by law, constitutes a ground for the forfeiture of his office
3. An association which acts as a corporation within the
Philippines without being legally incorporated or without
lawful authority to act (SEC now has jurisdiction over this)
WHEN MUST SOLGEN/Public Prosecutor FILE THE CASE? 1. When directed by the President
2. Upon complaint when he has good reasons to believe that any case specified above (1-3) can be established
by proof. 3. By himself when he has good reasons to believe that
any case specified above (1-3) can be established by proof.
WHEN MAY SOLGEN/Public Prosecutor FILE THE CASE (w/
leave of court?) 1. At the request of another person but in this case, the
officer bringing the action may first require an indemnity for the expenses/costs of the action
WHEN MAY AN INDIVIDUAL FILE THE CASE?
1. When a person claiming to be entitled to a public
office/position usurped or unlawfully held or exercised by another may bring an action for quo warranto in his
own name. He must show that he is entitled to the office held by the respondent. Petitioner WANTS
respondent’s position. In contract, in mandamus, petitioner is merely excluded from an office by another,
and that person is not necessarily claiming title/intruding/usurping that office. Respondent has
clear legal duty to do something and he doesn’t.
Note: If petitioner wins quo warranto and respondent is ousted, he can immediately execute duties of the office. However, if
respondent refuses, he can file an action for damages by reason
of the usurpation OR have respondent held in contempt.
VENUE If SOLGEN commences:
1. RTC manila
2. CA
3. SC
If someone other than solgen like individual or public prosecutor 1. RTC exercising jurisdiction over the territory where
respondent resides 2. CA
3. SC
Period for filing
When against a public officer or employee it must be commenced within 1 year after the cause of
such ouster (of petitioner or the person the respondent ousted)
commenced within 1 year after the right of the petitioner to hold such office or position arose
When action for damages against respondent within 1 year after entry of judgment establishing
petitioner’s right to the office
EXC: When the delay to file action was caused by the State itself.
Inapplicable to intra-
corporate disputes
Rules of court does not apply to quo warranto cases against persons who usurp an office in a PRIVATE corporation. RA 8799
is the governing law for that action
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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Rule 67: Expropriation
DISTINCTION
BETWEEN
EMINENT
DOMAIN AND
EXPROPRIATION
Eminent Domain: inherent power of the State to take private
property upon payment of just compensation
Expropriation: The process by which government takes the
property
STAGES OF
EXPROPRIATION
1. Filing of verified complaint (purpose of expropriation, join
defendants owning/claiming title to the land, specify who are occupying in case it’s already titled to the State)
2. Entry: (Conditions) a. Upon filing or any time thereafter, plaintiff may
enter/take possession upon deposit of amount equal to assessed value of property for tax
purposes. It can be in money unless the court
authorizes a certificate of deposit of a government
bank of the Philippines payable on demand. b. When the government or its authorized agent
makes the required deposit, the TC has a
MINISTERIAL DUTY to issue a writ of possession. 3. Objections:
a. If defendant has any objection to the filing of or the allegations in the complaint, or any objection or
defense to the taking of his property, he shall serve his ANSWER within the time stated in summons.
b. In complaint for expropriation, ONE CAN’T FILE a MOTION TO DISMISS, CROSS-CLAIM,
COUNTERCLAIM or THIRD PARTY complaint c. A defendant waives ALL his defenses and objections
not so alleged BUT the court, in the interest of justice, may permit amendments to the answer to
be made not later than 10 days from the filing thereof.
4. Order of expropriation a. If objections/defenses overruled or no one comes
to defend, the court may issue an order of expropriation, declaring that plaintiff has lawful
right to TAKE the property sought to be expropriated
b. A final order sustaining the right to expropriate the property may be appealed by any party aggrieved
thereby. However, this appeal will not prevent the court from determining just compensation.
i. PERIOD: 30 days from notice notice of appeal
c. Further, this appeal will not delay the entry upon the property upon the order of expropriation
i. HOWEVER, if appellate court finds that plaintiff has NO RIGHT to expropriation,
judgment shall be rendered ordering the
RTC to enforce the restoration to defendant
5. Ascertainment of just compensation: will be done by
court appointed commissioners (max 3)
a. Objections to commissioners’ appointment shall be filed within 10 days from service and shall be
resolved 30 days after all commissioners received the copy
b. Report must be filed by commissioners 60 days from the date they were notified of appointment.
Defendants given 10 days to object to findings of report.
c. Upon expiration of 10 days to object, or even before as long as everyone filed their objections,
Court may render judgment based on the report,
recommit the same to the commissioners for
further report or set aside report and appoint new commissioners
d. Order of just compensation may be appealed. i. PERIOD: 30 days from notice record on
appeal
JUST
COMPENSATION Just Compensation: The equivalent for the value of the property at the time of its taking.
RA 8974 mandates immediate payment of the initial just
compensation PRIOR to the issuance of the writ of possession in favor of the government.
Municipality of Binan v. Garcia
There are two (2) stages in every action of expropriation.
o FIRST: Determination of authority of plaintiff to expropriate. Can end with either an order of expropriation or
dismissal. Both are FINAL orders. o SECOND: Determination of just compensation for the property
sought to be taken. Done with assistance not more than 3 commissioners.
This order is also FINAL.
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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Rule 68: Foreclosure of REM
MODES OF
FORECLOSURE
REM:
1. Judicial: Rule 68 2. EJ: Act 3135 as amended by Act 4118
CM
1. Judicial: Rule 68: Replevin under rule 60 may be
availed of to secure possession of property before its sale
2. EJ: Act 1508
COMPLAINT Complaint for foreclosure should set forth the details of the
mortgage, description of mortgaged property, amount claimed to
be unpaid thereon, names of all who have/claim to have interest
in the property et al
PARTIES Indispensable:
1. Mortgage debtor 2. Mortgagor or owner of the mortgaged property (IF the
mortgagor is NOT the debtor/the executor of the deceased mortgagor)
3. The executor/administrator of a deceased owner of the property mortgaged (with the approval of the court)
4. The heir to whom the mortgaged property was adjudicated
What happens when the above are not joined? Not a ground for
dismissal. Court will order plaintiff to implead them. If he doesn’t, then the action will be dismissed.
Necessary: All persons having/claiming an interest in the
property subordinate in right to that of the holder of mortgage
1. Junior (second) mortgagees 2. Subsequent attaching creditor
3. Purchaser of mortgaged property
What happens when necessary party is not joined? Foreclosure is ineffective as against them and they retain the equity of
redemption in their favor. A separate /independent foreclosure proceeding is required
WHAT IS THE
EQUITY OF
REDEMPTION?
It’s basically the period that the mortgagee has to pay his debt.
Sec 2 provides that: If upon the trial in such action, the court finds the facts set forth in the complaint to be true, it shall
ascertain the amount due to the plaintiff upon the mortgage debt
and shall render judgment for the sum so found due and ORDER THAT the same be paid to the court or to the judgment creditor
within a period of NOT LESS THAN 90 days NOR MORE THAN 120 DAYS from entry of judgment and that in default of such
payment, the property will be sold in public auction.
Right of Redemption: The right of the mortgagor in case of extrajudicial foreclosure to redeem the mortgage property
within a certain period (1 year) after it was sold for the satisfaction of the mortgage debt so generally, it follows that
there is NO right of redemption in judicial foreclosure except when mortgagee is a bank.
Equitable Right of Redemption: the right of the mortgagor in
case of judicial foreclosure to redeem the mortgaged property AFTER his default but BEFORE the confirmation of the sale
o NOTE: In this case however, after the confirmation,
it can still be redeemed if the mortgagee was a
bank
RIGHT OF
REDEMPTION IN
EJ
FORECLOSURE
Requisites for valid redemption: 1. Redemption within 1 year from registration of sale
2. Payment of purchase price plus 1% int per month thereon if any, paid by purchaser
3. Written notice of redemption served on officer who made the sale
WRIT OF
POSSESSION Upon finality of the order of confirmation or upon the expiration of the period of redemption allowed by law, the
purchaser or last redemptioner shall be entitled to possession of the property UNLESS a third party is actually holding the same
adversely to the judgment debtor. The said purchaser/last redemptioner may secure a writ of possession, upon motion,
from the court that ordered the foreclosure.
HOWEVER, if mortgagee is a bank, purchaser may enter upon and take possession of property immediately after confirmation
of the sale
Petition for writ of possession is not a new action. It is only incidental. It’s a mere motion. It is ministerial, ex-
parte and non-litigous. There is no need for notice to adverse party.
A bond is required to be filed for it be issued when it is within the 1 year period of redemption (EJ
FORECLOSURE)
APPEALABLE
ORDERS
1. Judgment on foreclosure (Sec 2)
2. Order of confirmation of sale (Sec 3) 3. Deficiency judgment
NOTICE OF APPEAL
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
83
Cases:
1. Banco Filipino v CA: Filing of court action to enforce redemption has effect of
preserving redemptioner’s rights and freezing expiration of one year period to
redeem (EJ FORECLOSURE) 2. De Vera v. Agloro: Under law on EJ Foreclosure, if mortgagor fails to redeem
within 1 year period, the buyer in the public auction may file a motion for the issuance of a writ of possession. On the strength of the sheriff’s certificate of
sale, the she sheriff is duty-bound to place the buyer at the public auction in actual possession of the foreclosed property after the consolidation of title in
the buyer’s name. for failure of the mortgagor to redeem 3. PNB v. Sanao: The judge to whom an application for writ of possession is filed
need not look into the validity of the mortgage or the manner of its foreclosure. In the issuance of a writ of possession, no discretion is left to the TC. Any
question regarding the cancellation of the writ in respect to the
validity/regularity of the foreclosure sale OR the mortgage should be
determined in a subsequent proceeding 4. REMEMBER, after the consolidation of title in the buyer’s name for failure of the
mortgagor to redeem, the writ of possession becomes a matter of right. Mandamus will lie.
PERIODS OF
REDEMPTION (RIGHT
OF REDEMPTION)
Judicial Foreclosure Extrajudicial
Foreclosure
Mortgagee banks non-
banks
banks non-
banks
Individual
debtors/mortgagors
1 year from
registration
of sale
X 1 year from
registration
of sale
1 year from
registration
of sale
Juridical persons as
debtors/mortgagors
1 year from
registration
of sale
X Until
registration
of
certificate
of sale or 3
months
from sale
whichever
is earlier
1 year from
registration
of sale
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
84
Rule 69: Partition
WHAT IS
PARTITION?
Partition, in general, is the separation, division and assignment
of a thing held in common among those to whom it may
belong.
The purpose of partition is to put an end to co-ownership or co tenancy, etc (it presupposes a co-ownership HENCE no co-
ownership, partition cannot lie)
It seeks a severance of the individual interests of each co-owner, vesting in each a sole estate in specific property
and giving to each one a right to enjoy his estate without supervision or interference from the other.
Action for partition raises to issues to wit:
1. Whether plaintiff is co-owner of the property 2. Assuming that he is, how will the property be divided
among the plaintiff and co-owners
Indispensable parties: all the co-owners
Rules of partition apply to PERSONAL PROPERTY also, as far as practicable.
NOTE: in an action for partition, a party shall recover from
another his just share of rents and profits received by such
other property from the real estate in question.
WHO HAS
JURISDICTION
OVER PARTITION?
RTC:
Personal Property: exceed 300/400 Real Property: exceed 20/50
MTC:
Personal Property: equal to or below 300k/400k (in/out MM)
Real Property: equal to or below 20k/50k (in/out MM)
ORDER OF
PARTITION
If after the trial, the court finds for plaintiff, it shall order the
partition of the real estate among all parties in interest.
Afterwards, if the parties agree, they make the partition among themselves through proper instruments of conveyance. The
court shall then confirm this agreed upon partition.
IS THE FINAL
ORDER DECREEING
PARTITION AND
ACCOUNTING
APPEALABLE?
YES. It may appealed 30 days from the date of entry of
judgment. (RECORD ON APPEAL because MULTIPLE APPEALS can occur)
The three stages in the action for partition that can be
appealed:
1. Order of partition where the propriety of partition is determined
2. Judgment as to the accounting of the fruits/income of the property
3. Judgment of partition
WHEN IT COMES
TO ESTATE OF A
DECEDENT, WHO
CAN EFFECT
PARTITION?
1. The heirs themselves extrajudicially
2. The court in an ordinary action for partition, or in the course of administration proceedings
3. The testator himself 4. The third person designated by the testator
WHAT HAPPENS
WHEN THE
PARTIES ARE
UNABLE TO AGREE
UPON THE
PARTITION?
Court will appoint at least 3 commissioners (competent and
disinterested) to make the partition
Job of Commissioners: to view, examine real estate, hear the parties as to their preference, set apart the same
to the parties in lots/parcels afterwards Binding force of report: Report to the court is not binding
until confirmed o Upon filing of the report, interested parties will be
given notice and allowed 10 days to file objects to the report
o When the 10 days expire, or even before it expires but the interested parties have filed their
objections, the court may, upon hearing, accept the report and render judgment
in accordance therewith remand it back to the commissioners for
further report set aside and appoint new
commissioners accept/reject report partially
Court can also assign the real estate/portion to just one of the co-owners: When the commissioners see that
partition cannot be effected without prejudice to the interests of the parties, the court may order the property
assigned to one of the parties willing to take the same o PROVIDED he pays the others
o PROVIDED further that if one the parties ask that the property be sold instead, then the
commissioners will sell the property in auction
Difference when partitioners don’t agree or agree.
If they agree -> give copy of partition to the courts and court will confirm
If they don’t agree, commissioner.
If there are 10 co-owners, only 8 were sued, the action will not be dismissed. Plaintiff must implead the other two!
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
85
Rule 70: Forcible entry and Unlawful Detainer
There are 3 different actions to recover possession of REAL
property
FORCIBLE
ENTRY AND
UNLAWFUL
DETAINER:
POSSESSION
ONLY
To be discussed more in detail below.
In a nutshell, it is an ejectment proceeding which is a summary action for recovery of physical possession where the
dispossession has not lasted more than year
Forcible entry: Prior possession is required (demand also required)
Unlawful detainer: Prior possession NOT required (demand not necessary all the time: when contract expires, etc)
Rules on summary procedure apply to FEUD no need for trial,
testimony, periods are different answer: 10 days ONLY
ACCION
PUBLICIANA:
REAL RIGHT
OF
POSSESSION
It is the plenary action for the recovery of the real right of possession, which should be brought in the proper court (as the
case may be) when the dispossession has lasted for more than one year
It is the proper remedy where
the cause of dispossession is not among the grounds for FEUD (F-I-S-T-S)
when dispossession has lasted for more than one year
It is an ordinary civil proceeding to determine the better right of possession independently of title.
ACCION
REIVINDICATOR
IA: OWNERSHIP
(INCLUDES
POSSESSION)
It is an action for the recovery of ownership
WHO MAY
INSTITUTE AN
ACTION FOR
FEUD
1. FORCIBLE ENTRY: A person deprived of any land or building
(real property) by force, intimidation, strategy, threat or stealth
2. UNLAWFUL DETAINER: (lawful at start, then it became unlawful) Lessor, vendor, vendee or other person against
whom the possession of any land or building is unlawfully withheld after the expiration or termination of the right to
hold possession, by virtue of any contract, express or implied a. OR the legal representatives or assigns of any such
lessor, vendor, vendee
BUT:
Unless stipulated, an action for FEUD by the lessor may be commenced only (one will suffice) count period from last
demand except: RACAZA v. GOZUM (see below) after demand to pay/comply with conditions of the lease
and to vacate is made upon the lessee OR
serving written notice of such demand upon the person
found on the premises OR if no person is found, by posting such notice on the
premises Lessee must fail to comply after 15 days in the case of land and 5
days in case of buildings (for lessor to be able to commence action)
JURISDICTION
OF COURTS 1. When filing an action for FEUD, go to MTC/MetC/MTCC
always holds true regardless of value of property
a. Exception: Laches: Where the FEUD suit was filed in the RTC but the defendant did not move to
dismiss the complaint for lack of jurisdiction and
instead filed his answer and went to trial, estoppel by laches set in.
2. When filing an action for accion publiciana, look at the value of the property first
a. If not exceeding 20k/50k as the case may be, go to MTC/MeTC/MTCC
b. If exceeds 20k/50k as the case may be, go to RTC
WHAT MUST BE
AVERRED
Complaint must aver facts constitutive of FEUD
This is important as these allegations confer jurisdiction on the
court. If the allegations don’t show facts constitutive of feud, the proper RTC may be the right court.
However, as held in Hilario v. CA, a complaint for unlawful
detainer is sufficient if it contains the allegation that the withholding of possession or refusal to vacate is unlawful, without
necessarily using the words of the law (example: ―Plaintiff verbally asked defendants to remove their houses on the lot of
the former but the latter refused and still refuse to do so without just and lawful grounds‖ SUFFICIENT for unlawful detainer)
EFFECT OF
CLAIM OF
OWNERSHIP ON
MTC
JURISDICTION
Hilario v. CA
At present, all FEUD cases have to be tried pursuant to the revised rule of summary procedure regardless of whether or
not the issue of ownership is alleged by a party Lower courts (MTC,METC,MCTC,MTCC) retain jurisdiction
over ejectment cases even if the question of possession
cannot be resolved without passing upon the issue ownership o The lower courts however, can only pass upon the
issue as to ownership for the sole purpose of
determining possession
o Hence, an adjudication made therein by the inferior court should be regarded as merely provisional in
nature IT DOES NOT BAR AN ACTION BETWEEN THE SAME PARTIES INVOLVING TITLE/OWNERSHIP
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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over the land
WHAT ARE
CASES THAT DO
NOT
PREJUDICE AN
EJECTMENT
SUIT
1. INJUNCTION: Injunction suits instituted in the RTC by
defendants in ejectment actions in the MTC do not abate the
ejectment suits (injunction as a principal action)
2. ACCION PUBLICIANA: An accion publicaina does not suspend an ejectment suit against the plaintiff in the (accion
publiciana case) 3. WRIT OF POSSESSION: A writ of possession case where
ownership is the principal issue before the RTC does not preclude the execution of the judgment in an unlawful
detainer suit where the only issue involved is the material possession of the premises
4. QUIETING OF TITLE: Not a bar to an ejectment suit involving the same property
5. SPECIFIC PERFORMANCE w/ DAMAGES: Does not affect
ejectment action (to compel renewal of lease conract)
6. REFORMATION: does not suspend ejectment suit (e.g. from deed of absolute sale to sale with right to repurchase)
7. RECONVEYANCE (accion reivindicatoria)
8. ANNULMENT OF SALE, TITLE OR DOCUMENT
POSSESION BY
TOLERANCE
Heirs of Magpily: Possession by tolerance is lawful BUT such
possession becomes unlawful when the possessor by tolerance refuses to vacate upon demand made by owner.
This is because a person who occupies the land of another at the
latter’s tolerance or permission, without any contract between them, is necessarily bound by an implied promise to vacate upon
demand. If he fails to vacate upon demand, an action for ejectment is the proper remedy.
WHEN TO
COUNT 1 YEAR
PERIOD OF
DISPOSSESSION
When it’s for forcible entry: From date of ACTUAL entry EXCEPT when there is stealth. In case of stealth, from discovery of the
entry
When it’s for unlawful detainer: From the date of the last demand to vacate
Exception: Date of original demand to vacate if the subsequent demands are merely in the nature of
reminders of the original demand (see Racaza v. Gozum below)
WHAT ARE THE
DAMAGES THAT
CAN BE
RECOVERED IN
A FEUD CASE?
Fair rental value or the reasonable compensation for the use and occupation of the leased property
Dumo v. Espinas: Considering that the only issue raised in ejectment is that of rightful possession, damages which could be
recovered are those which the plaintiff could have sustained as a
mere possessor, or those caused by the loss of the use and
occupation of the property AND NOT the damages which he may have suffered but which have no direct relation to his loss of
material possession.
IS THE Sec: 19 (appeal under section 40)
JUDGMENT
IMMEDIATELY
EXECUTORY?
GR: a judgment in a FEUD case is immediately executory
EX: (when it can be stayed: PERFECT APPEAL +
SUPERSEDEAS BOND + DEPOSIT) when defendant perfects
an appeal and the defendant who wants to stay execution files a sufficient supersedeas bond, approved by the MTC and
executed in favor of the plaintiff (in the FEUD case) to pay rents, damages, costs, etc and during the pendency of the appeal, the
defendant deposits with the appellate court the amount of rent de from time to time under the contract (if any) as determined by
the MTC judgment but if he fails to pay from time to time, execution will lie.
Sec 21: Immediate execution on appeal to CA/SC (appeal under
42 where RTC affirms MTC decision ruling for PLAINTIFF)
The judgment of the RTC against the defendant shall be immediately executory, without prejudice to a further appeal
that may be taken therefrom (RTC can immediately issue writ of execution without prejudice to an appeal being given due
course)
Benedicto v. CA: Even if RTC judgments in unlawful detainer
cases are immediately executory, preliminary injunction may still be granted to stay the immediate execution upon showing that
there exists a right to be protected and that the acts against which the writ is to be directed violate said right (in other words,
execution pending appeal can be enjoined through preliminary injunction)
INJUNCTION: Upon motion of the plaintiff, within 10 days from the perfection of the appeal to the RTC, the RTC may issue a writ of preliminary
mandatory injunction to restore the plaintiff in possession IF 1. the court is satisfied that the defendant’s appeal is
frivolous or dilatory 2. or that the appeal of the plaintiff is prima facie
meritorious
PLEADINGS
ALLOWED
1. complaint
2. Compulsory counterclaim and cross-claim pleaded in the answer (and answers to these cross/counter claims)
ACTION ON
COMPLAINT
UPON FILING
The court may, from an examination of the allegations in the complaint and such evidence as may be attached thereto, dismiss
the case outright on any of the grounds for the dismissal of
actions which are apparent therein.
If no ground for dismissal is found, court will issue summons.
TIME TO FILE
ANSWER
Defendant must file answer 10 days from service of summons
ANSWER Affirmative and negative defenses not pleaded in the answer
are deemed waived except lack of jurisdiction over SM (because it’s conferred by law)
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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Cross-claims and compulsory counterclaims not asserted in the answer are barred
The answer to counterclaims or cross-claims shall be served
and filed within 10 days from service
Upon failure to answer, the court, on its own or upon motion of
plaintiff, shall render judgment as may be warranted by the facts alleged in the complaint and to what is prayed for therein.
PRELIMINARY
CONFERENCE At least 30 days after the last answer is filed, a preliminary conference shall be held and the provisions on pre-trial will be
applicable.
The failure of the plaintiff to appear in the prelim conference shall be cause for dismissal.
o The defendant who appears in the absence of the
plaintiff shall be entitled to judgment on his
counterclaim o All cross claims shall be dismissed
If defendant fails to appear, the plaintiff will also be entitled
to judgment. However, this does not apply where one of two or more defendants sued under a common cause of action
who pleaded a common defenses shall appear
PROHIBITED
MOTIONS
(you can MR in interlocutory orders, you can rule 65 final order)
Difference of Labastida and Racaza (they were both lease contracts but the grounds for ejectment in Racaza and Labastida were different)
====================================================
When to count one year period?
1. Forcible entry: from actual entry except when there is stealth
2. Unlawful Detainer: from last demand to vacate a. Exception: Period counted from date of original demand if the
subsequent demands are merely in the nature of reminders or reiterations of the original demand
Labastida case v. Racaza case:
Racaza: expiration of the lease
Labastida: contract of lease did not expire yet, but there was a violation of the
terms and conditions of the lease (in this case, defendant is the lessee) exceptional situation
Quinagoran v. CA: Now as it stands, the RTC doesn’t ALWAYS have jurisdiction over cases of accion publiciana. You must still look at the relevant amount.
Hence, if the assessed value of the real property involved does not exceed P50k in Metro Manila, and P20k outside of Metro Manila, the MTC exercises jurisdiction over
actions to recover possession of real property. Moreover, the MTC exercises jurisdiction over all cases of forcible entry and unlawful detainer
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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Rule 71: Contempt
DIRECT
CONTEMPT
A person guilty of
a. misbehavior in the presence of or near a court as to obstruct or interrupt the proceeding before the same,
b. disrespect toward the court c. offensive personalities towards others
d. 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
PUNISHMENT:
punished by fine or imprisonment (not exceeding 10 days) or both
IF it is RTC or higher
If it is lower court, then by fine or imprisonment not exceeding 1 day or both.
REMEDY: A person adjudged in direct contempt by any court
may not appeal therefrom but certiorari or prohibition is an available remedy. The execution of the judgment of contempt
shall be suspended pending resolution of such petition (for certiorari/prohibition) provided the person adjduged shall file a
bond
INDIRECT
CONTEMPT After a charge in writing has been filed and an opportunity to the respondent to comment thereon within a certain period, a person
guilty of the following acts may be held in indirect contempt:
a. misbehavior of an officer of a court in the performance of his official duties or in his official transactions
b. disobedience 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 into 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 c. Any abuse of or any unlawful interference with the processes
or proceedings of a court not constituting direct contempt d. Any improper conduct tending, directly/indirectly to impede,
obstruct or degrade administration of justice e. Assuming to be an attorney or an officer of a court, and
acting as such w/o authority f. Failure to obey a duly served subpoena
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.
HOW COMMENCED:
1. Either motu proprio by the court against which the contempt
was committed OR 2. Any other formal charge requiring the respondent to show
cause why he should not be punished for contempt 3. By a verified petition with supporting particulars and upon full
compliance with the rules for filing initiatory pleadings in civil actions
WHERE FILED:
1. If against RTC or higher (or official thereof): with such court
2. If lower court: in the RTC of the place where the lower court
is BUT it may be initiated in the lower court also subject to appeal to the RTC.
PUNSIHMENT:
IF against RTC or higher: max 6 months or fine or both IF against lower: max 1 month or fine or both
CASE The use of falsified and forged documents constitutes indirect
contempt. (Dolores v. Formoso)
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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Rule 41: Appeal from RTC Rule 42: Petition for review
from RTC to CA
Rule 43: Appeal from QJ to
CA
Rule 45: Appeal by certiorari
to SC
From where RTC - CA RTC (appellate) - CA QJ Agency - CA RTC/SB/CTA/CA – SC
Grounds Nothing. Just file notice of appeal/record on appeal
Questions of fact, law or mixed Questions of fact, law or mixed Questions of law only
Review discretionary on SC.
Period (from NOTICE of judgment, award,
order)
15 days – notice 30 days - record
15 days 15 days 15 days
Extension to file (when it’s NOT from
MR/MNT but it’s from the decision itself)
RoC does not provide 2 extensions 15 days each 2 extensions 15 days each
*Only one MR allowed
One time extension of 30 days for justifiable reasons
Fresh period rule [of 15 days] (when
MR/MNT denied)
Yes. But non-extendible Yes. Extendible by 15 more days Yes. Extendible by 15 more days
Yes. Extendible by 15 more days
IAPOA? (residual
powers of lower court)
Yes Yes No No
PPQ? (denial motu proprio)
No (you’re just filing notice/record anyway)
Yes Yes Yes
Effect of appeal on judgment
Will stay GR: Will stay EX: Cases decided under
summary proceedings
Will not stay.
Remedy to stay: TRO
Depends on SC.
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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Situation Example Remedy
Aggrieved by final judgment or
order of MTC
A filed a case for unlawful detainer against B. B lost. Rule 40 (MTC-RTC)
Aggrieved by RTC final j/o in its
appellate jurisdiction
Upon B’s appeal to the RTC of his unlawful detainer case.
He still lost.
Rule 42 (RTC – CA)
Aggrieved by RTC final j/o in its
original jurisdiction
A filed a case for specific performance with damages
against B. B lost.
Rule 37 (MR/MNT if grounds present)
Rule 41(RTC-CA)
Aggrieved by denial of MR by RTC A filed a case for specific performance against B in RTC. B
lost. B filed an MR/MNT. Court denied.
Rule 41 (RTC – CA)
Note: Can’t file Rule 65. Must appeal the judgment itself
(the one that held that B lost and must do specific
performance)
Aggrieved by denial of MR/MNT by
RTC when the subject of denial is interlocutory
A filed a case for specific performance against B. B,
instead of filing answer, filed a Motion to Dismiss. It was denied so B filed an MR as against the denial of the motion
to dismiss. RTC still denied it.
Rule 65 (certiorari either in CA/SC)
Note: Why? Because the order denying the MTD is merely
an interlocutory order. The subject of the MR is interlocutory.
Aggrieved by the following: 1. An order denying a petition
for relief or any similar
motion seeking relief from
judgment
2. An interlocutory order
3. An order disallowing or
dismissing an appeal
4. An order denying a motion to
set aside a judgment by
consent, confession or
compromise on the ground of
fraud, mistake, duress or any
other ground vitiating consent 5. An order of execution
6. A judgment or final order for
or against one or more
several parties or in separate
claims, counterclaims, cross-
claims and third-party
complaints, while the main case
is pending, unless the court
allows an appeal therefrom
7. An order dismissing an action
without prejudice
Rule 65 certiorari to RTC/CA/SC as the case may be.
Aggrieved by j/fo of a QJ agency A was relieved from his post in an administrative agency.
He appealed to the CSC. CSC denied.
Rule 42 (QJ – CA)
Aggrieved by j/fo under Labor Code (NLRC, Sec of Labor,
Director of Bureau of labor Relations)
A was fired from his job. He argues that it was illegal dismissal. He goes to the NLRC. He lost.
Rule 65 (certiorari) to CA
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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Aggrieved by DOJ Secretary decision in petition for review of
prosecutor’s resolution
Criminal charges were filed against A. Prosecutor found probable cause. A went to the DOJ Sec. DOJ Sec affirmed
prosecutor’s findings.
Rule 65 (certiorari) to the CA
PO aggrieved by OMB decision in
Administrative Cases
OMB suspended Mayor X. Rule 43 (QJ-CA)
PO aggrieved by OMB finding
probable cause to file information against him
OMB found probable cause to file information against
Mayor Y for violation of RA 3019.
Rule 65 (certiorari) to the SC
Aggrieved by RTC, CA, SB and
CTA decision and question of law is involved
Rule 45 (appeal by certiorari to SC)
Aggrieved by RTC or MTC final and executory judgment/order OR
appeal was lost (judgment OR loss of appeal was due to FAME)
Rule 38 (petition for relief from judgment in MTC/RTC as the case may be)
Aggrieved by RTC/MTC final order and MNT/Appeal/Petition for relief
and other remedies are not anymore available
Rule 47 (petition for annulment of judgments or final orders and resolutions)
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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Civpro tips:
What are the provisional remedies and which ones can be issued ex-parte?
1. Rule 57: Preliminary attachment: can be issued ex-parte
2. Rule 58: Preliminary injunction: can be issued ex-parte 3. Rule 59: Receivership: can’t be issued ex-parte
4. Rule 60: Replevin: can be issued ex-parte 5. Rule 61: Support pendente lite: can’t be issued ex-parte
Basically, 57, 58 and 60.
Distinguish between levy and garnishment
Levy Garnishment
The act whereby a sheriff sets apart or appropriates for satisfying the command
of a motion of execution, a part of the
whole of the judgment debtor’s property
Species of attachment for reaching credits belonging to the judgment
debtor and owing to him from a stranger
to the litigation. It is an attachment by means of which the plaintiff seeks to
subject to his claim property in the hands of a third person or money owed
by such third person or garnishee to the defendant.
Discuss the rules on issuance of TRO by the MTC, RTC, CA and SC as to
periods and places of effectivity.
MTC RTC CA SC
Effectivity Within
territorial jurisdiction
of said court
Within territorial
jurisdiction of said court
Binding to
parties anywhere in
the Philippines
Binding to
parties anywhere in
the Philippines
Duration 20 day TRO 20 days [great or
irreparable injury]
OR
72 hour in multi-sala court [extreme
urgenc grave injustice/irreparable
injury]
60 day
duration
Effective
until further orders
A obtained a loan from Bank X, secured by a mortgage. He failed to pay so
the bank foreclosed. A failed to redeem thus title was issued under the
bank’s name. The court issued a writ of possession in favor of the bank. A
filed a complaint for annulment of the foreclosure with a prayer for injunction.
Will injunction lie? What is the effect of the action on the writ of
possession?
No. Injunction will not lie. The court, in this case, is not doing something probably in the violation of A’s rights as PNB was already entitled to possession of the property
as a matter of right. Further, A’s action has no effect on the writ of possession. As held in PNB v. Sanao, the judge to whom an application for writ of possesson is
filed need not look into the validity of the mortgage or the manner of its foreclosure.
No discretion is left to the TC in the issuance of a writ of possession. After the
consolidation of title in the buyer’s name for the failure of the mortgagor to redeem, writ of possession becomes a matter of right. It is enforceable by mandamus.
B, a student, filed an action for declaratory relief against her school to
determine whether she deserves to graduate with honors. Is this action tenable?
No. A petition for declaratory relief is an action which any person interested under a
deed, will, contract, or other written instrument, whose rights are affected by statute, executive order or regulation, or ordinance, may, before breach or violation
thereof, bring to determine any question of construction or validity arising from the instrument or statute and for a declaration of his rights or duties thereunder.
No. There is no justiciable controversy that is ripe for judicial determination. A
justiciable controversy is defined as adefinite and concrete dispute touching on the legal relations of parties having adverse legal interest which may be resolved by a
court of law through the application of a law.
The requisites for a petition for declaratory relief as held in jurisdprudence area as follows:
1. Existence of justiciable controversy
2. The controversy is between persons whose interests are adverse 3. That the party seeking relief has a legal interest in the controversy
4. The issue involved is ripe for judicial determination
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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C obtained a loan from D. C defaulted in payment and refused to comply with D’s demand. D filed a collection case, especially after learning that C
was planning to go abroad and was selling her properties. What can D pray
for in the complaint? Aside from the amount of the loan, can D ask for
damages?
D can ask for a preliminary attachment. As provided in Rule 57 Sec 1, a plaintiff or any proper party may have the property of an adverse party attached as security
for the satisfaction of any judgment in an action for the recovery of a specified amount of money or damages, other than moral and exemplary, on a cause of
action arising from contract against a party who is about to depart from the Philippines with intent to defraud his creditors. Therefore, D can ask for preliminary
attachment but not moral or exemplary damage.
Give the two stages in the action for expropriation. How are both appealed?
As held in Municipality of Binan v. Garcia
There are two (2) stages in every action of expropriation. FIRST: Determination of authority of plaintiff to expropriate.
o Can end with either an order of expropriation or dismissal. Both are FINAL orders.
o REMEDY: record on appeal within 30 days from notice SECOND: Determination of just compensation for the property sought to
be taken. Done with assistance not more than 3 commissioners. o This order is also FINAL.
o REMEDY: record on appeal 30 days from notice
F secured a judgment in a damage suit against D from the RTC. The judgment was entered on January 1, 2007. It has not been executed. On
April 15, 2007, F decided to enforce the judgment.
How will F enforce the judgment? If F wanted to execute on April 3, 2006,
what should she do?
Rule 39 Sec 6 provides the following:
BEFORE FIVE YEARS FROM ENTRY: may be executed on motion AFTER FIVE YEARS FROM ENTRY + BEFORE PRESCRIPTION BARS:
enforced by action (independent action for execution) o Note: This revived judgment may also be enforced by motion
within 5 years after the date of its entry and after 5 years, by action also.
G is a lessee of a building owned by L paying a rental of 100k a month. L died and since then, G has not paid rents amounting to 1M, because 2 heirs
of L are claiming both rental payments. What action should G take, before
what court and against whom in order to protect his interest?
G should file an action for interpleader against the two heirs in the RTC (the court is
dependent on the amount for it is an action that involves the title to or possession of real property or any interest therein) A complaint for interpleader is proper
whenever conflicting claims upon the same subject matter are made against a person who claims no interest whatever in the SM or an interest which in whole or
in part is not disputed by the claimants. He may bring an action against the conflicting claimants to compel them to interplead and litigate their several claims
among themselves. In this case, he can bring an action against the two heirs to compel them to litigate their claims among themselves so that he will finally know
who he should pay the rents to.
F obtained a loan from X to buy machines for her garment factory. F executed a chattel mortgage over said machineries. However, F defaulted
in the payment of the loan. X sought the delivery of the machines so that they can be sold at foreclosure sale but F refused, contending that it would
result into a stoppage of business. What are X’s legal remedies?
As held in the case of Northern Motors v. Herrera: Because of F’s default, X, as the creditor and chattel mortgagee, has two remedies
1. Writ of Replevin: A party praying for the recovery of possession of personal
property may, at the commencement of the action or at any time before answer, apply for an order for the delivery of property to him upon showing in
an affidavit that the applicant is entitled to the possession thereof, that the adverse party is wrongfully detaining the property, that the property has not
beein distrained or taken for a tax assessment or a fine or seized under a writ of execution or preliminary attachment or otherwise placed from custodial egis
and additionally, the market value of the property. Applicant must also give a
bond. This is to secure possession as a preliminary to the sale contemplated in the chattel mortgage law.
2. Effect judicial foreclosure of the mortgage
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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M filed an unlawful detainer case before MTC of Rizal against T for refusing to vacate the leased premises after the expiration of the lease contract and for non-
payment of rentals. As counterclaim, T claimed moral damages in the amount of
1M.
a) May MTC proceed to try the case including the claim for 1M?
Yes. RoC provides that original exclusive jurisdiction over unlawful detainer cases.
The claim for damages is only incidental to the principal case of unlawful detainer. However, as held in the case of Maceda v. CA, a counterclaim in the MeTC/MTC
beyond its jurisdictional limit may be pleaded ONLY by way of defense, but not to obtain affirmative relief
b) In case T is adjudged to vacate the premises and to pay the accrued
rentals in arrears, how can she stay the execution?
The GR is that a judgment in a FEUD case is immediately executory. However, it can be stayed upon the execution of the following acts:
1. T must perfect his appeal (to the RTC under rule 40) within the reglementary period
2. T must file a sufficient supersedeas bond, approved by the MTC and executed in favor of M to pay rents, damages, costs, etc
3. T must also make periodical deposit with the appellate court the amount of rent due from time to time under the contract (if any) as
determined from the MTC judgment
Additionally, the case of Benedicto v. CA provides that preliminary injunction to be granted to stay the immediate execution upon showing that there exists a right to
be protected and that the acts against which the writ is to be directed violate said right.
c) Distinguish forcible entry from unlawful detainer
Forcible Entry Unlawful Detainer
The plaintiff has prior possession and
he is deprived thereof by FISTS
Defendant unlawfully withholds
possession of the property after the expiration of his right thereto under any
contract, express or implied.
No prior possession by plaintiff required!
No demand to vacate is required Demand to vacate is required
To count 1 year period of dispossession,
count from date of actual entry except when there is stealth
To count 1 year period of dispossession,
from the date of last demand to vaate.
d) If T raises questions of ownership, what is its effect on MTC’s jurisdiction?
None. As held in Hilario v. CA, all FEUD cases have to be tried pursuant to the
revised rule on summary procedure regardless of w/n the issue of ownership is alleged by a party. The lower courts retain jurisdiction over FEUD cases even if the
question of possession cannot be resolved without passing upon the issue of ownership. The lower courts however, can only pass upon the issue as to ownership
for the sole purpose of determining possession. Hence, an adjudication made by the lower court is merely provisional in nature.
F filed an ejectment case against G. G was ordered to vacate the property.
However, after leaving the property, G secretly re-entered the property and built a shanty thereon. What can F file against G? How must proceedings be
commenced and where should the charge be filed?
As provided in Rule 71, G’s acts fall squarely under the provisions on indirect contempt. Disobedience of or resistance to a lawful writ process order or judgment
of the court by a person who, after being dispossessed or ejected from any real property by the judgment of any court of competent jurisdiction, enters such real
property for the purpose of executing acts of ownership or possession, or if a person who, in any manner, disturbs the possession given to the person adjudged to be
entitled thereto is liable for indirect contempt. Hence, F can file indirect contempt charges against G.
Proceedings for indirect contempt can be initiated motu proprio by the court against
which the contempt was committed OR by a verified petition with supporting particulars involving documents or papers required. It shall be filed with the RTC of
the place where the lower court (MTC in this case) is sitting, but the charge may also be filed in the lower court itself.
In case of sum of money filed by B against P, the RTC granted ex-parte B’s
prayer for issuance of writ of attachment. The writ was immediately
implemented by the sheriff. P filed a motion to discharge the writ on the ground that it was issued or implemented without prior service of
summons. B opposed on the ground that the writ can be applied for and granted at the time of commencement of action or at any time thereafter,
and that, in any event, the summons eventually served cured whatever irregularity that might have attended the enforcement of the writ.
Rule on the conflicting contentions.
Davao Light v. CA
Writs of attachment may properly issue ex parte provided that the Court is
satisfied that the relevant requisites therefor have been fulfilled by the applicant, although it may, in its discretion, require prior hearing on the application with notice
to the defendant; but that levy on property pursuant to the writ thus issued may not be validly effected unless preceded, or contemporaneously
accompanied, by service on the defendant of summons, a copy of the
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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complaint (and of the appointment of guardian ad litem, if any), the application for attachment (if not incorporated in but submitted separately from the complaint),
the order of attachment, and the plaintiff's attachment bond.
Therefore, no levy on attachment pursuant to a writ of attachment shall be enforced UNLESS
1. It is preceded or contemporaneously accompanied by service of
summons 2. Service of summons together with a copy of the complaint, the
application for attachment, the applicant’s affidavit and bond nd the order and writ of attachment, on the defendant within the Philippines
However, don’t forget that service of summons is not required where:
1. The summons could not be served personally or by substituted service
despite diligent efforts 2. Defendant is a Philippine resident who is temporarily abroad
3. The defendant is a non-resident or 4. The action is one in rem/quasi in rem (like in Valmonte)
As to the argument that the service of summons was cured, it must be remembered
that in the implementation of a writ of attachment, jurisdiction over the defendant is mandatory.
May a petition for prohibition be filed to prevent the enforcement of the
implementing rules and regulations issued by a government agency, the ultimate relief sought being the nullification thereof.
In Holy Spirit Homeowners Association v. Defensor, a petition for prohibition is not
the proper remedy to assal an IRR issued in the exercise of quasi-legislative function.
Prohibition is an extraordinary writ directed against any tribunal, corporation, board, officer or person, whether exercising judicial, quasi-judicial or ministerial functions,
ordering said entity or person to desist from further proceedings when said proceedings are without or in excess of said entity’s or person’s jurisdiction, or are
accompanied with grave abuse of discretion, and there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law.
Prohibition lies against judicial or ministerial functions, but not against legislative or
quasi-legislative functions. Generally, the purpose of a writ of prohibition is to keep a lower court within the limits of its jurisdiction in order to maintain the
administration of justice in orderly channels. Prohibition is the proper remedy to afford relief against usurpation of jurisdiction or power by an inferior court, or when,
in the exercise of jurisdiction in handling matters clearly within its cognizance the inferior court transgresses the bounds prescribed to it by the law, or where there is
no adequate remedy available in the ordinary course of law by which such relief can be obtained. Where the principal relief sought is to invalidate an IRR, the remedy is
an ordinary action for its nullification, an action which properly falls under the jurisdiction of the Regional Trial Court.
The ordinary action for nullification was not specified by the SC.
Difference of Rule 45 and Rule 65
Rule 45 – Petition for review on
certiorari (appeal by certiorari)
Rule 65 – Petition for certiorari (special civil action of certiorari)
Involves correction of errors of judgment
Involves errors of jurisdiction
Mode of appeal Special civil action
Petition based on question of law
Petition raises issues as to w/n the
lower court acted w/o jurisdiction or in excess of jurisdiction or with
GADALEJ
Involves review of the judgment
award or final order on the merits
Directed against an interlocutory order of the court where there is
no appeal or any other plain, speedy and adequate remedy
Must be made within the
reglementary period
Filed not later than 60 days from
notice of judgment, order or resolution appealed from
Stays the judgment or order appealed from
Unless a writ of preliminary
injunction or TRO is issued, does not stay the challenged proceeding
Petitioner and respondent are
original parties to the action, lower court or quasi-judicial agency not
impleaded
Parties are the aggrieved party
against the lower court, quasi-
judicial bodies and prevailing party
MR not required
MR or MNT required. If MR or MNT
filed, period shall not be interrupted but another 60 days
shall be given to the petitioner
Court is in the exercise of appellate
jurisdiction and power of review Court exercises original jurisdiction
Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C
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Where the “at least 5 days in any event” applies
1. Bill of Particulars
2. Motion to dismiss
3. Interpleader 4. Review of judgments and final orders of COA
Two aspects of Mandamus. In the second aspect, when will the action be
mandamus and when will it be quo warranto?
The two aspects are as follows:
1. When one unlawfully neglects the performance of an act which the law specifically orders as a duty resulting from an office, trust or station
2. When one unlawfully excludes another from the use and enjoyment of a right or
office to which such other is entitled.
A quo warranto proceeding is a demand made by the state upon some individual or
corporation to show by what right they exercise some franchise or privilege appertaining to the State. An action for usurpation of a public office, position or
franchise may be commenced by a verified petition brought in the name of the Republic of the Philippines AGAINST a person who usurps, intrudes into, or
unlawfully holds or exercises a public office, position or franchise.
Hence, it will be quo warranto when there is usurpation/unlawful exercise of a public office, position or franchise. In mandamus, the respondent doesn’t have to hold the
position and doesn’t have to claim title to it while in quo warranto, respondent must be unlawfully holding/exercising it.
Rule 65 Sec 7:
The court in which the petition is filed may issue orders expediting the proceedings,
and it may also grant a TRO or a writ of preliminary injunction for the preservation
of the rights of the parties pending such proceedings.
The petition (for certiorari, mandamus or prohibition) shall not interrupt the course of the principal case unless a TRO or injunction has been issued, enjoining the
public respondent from further proceeding with the case.
The public respondent (court/officer/agency) shall proceed with the principal case within 10 days from the filing of a petition for certiorari absent a TRO/injunction.
Failure of the public respondent to proceed with the principal case may be a ground for an administrative charge.
Depositions
When leave of court required When not required
Depositions under Rule 24:
depositions pending action when answer to complaint has been served
Depositions under Rule 24:
depositions pending action when answer has not been filed but after jurisdiction
has been obtained over defendant
Depositions under Rule 25:
interrogatories to parties when answer to complaint has been served
Deposition PENDING appeal under
Rule 24
Request for admission under Rule
26: request for admission does not require court approval
Depositions under Rule 25:
interrogatories to parties when answer has not been filed but after jurisdiction
has been obtained over defendant
Rule 27: Motion for production of
inspection of documents or things
Rule 28: Motion for physical and mental
examination of person
WHEN A DEPOSITION OF A WITNESS, WHETHER OR NOT A PARTY, MAY BE USED BY ANY PARTY FOR ANY PURPOSE deposition may be used without
the deponent actually being called to the witness stand: when the court finds that (D-A-A-S-E-100)
a. The witness is dead b. The witness resides more than 100km from the place of trial or hearing
c. The witness is abroad UNLESS it appears that his absence was procured by the party offering the deposition
d. The witness is unable to attend or testify because of age, sickness, infirmity or imprisonment
e. That the party offering the deposition has been unable to procure the attendance of the witness by subpoena
f. Upon application and notice, in exceptional circumstances wherein the
testimony of the witness is important
A bought a lot from B. By mistake, A built a house on the adjoining lot
owned by C. C discovered the structure and she filed a case of forcible entry against A. Will it prosper?
No. FISTS must be a ground for forcible entry. If mistake is the reason for the
alleged wrongful intrusion, a case for forcible entry will not prosper.
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