Jurisdiction

The Supreme Court shall have the following powers:

1. Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.

2. Review, revise, reverse, modify, or affirm on appeal or certiorari as the law of the Rules of Court may provide, final judgment and the orders of lower courts in:

a. All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.

b. All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation theretoc. All cases in which the jurisdiction of any lower courts is in issued. All criminal cases in which the penalty impose is reclusion perpetua or highere. All cases in which only an error or question of law is involved

3. Assign temporarily judges of lower courts to other stations as public interest may require.4. Order the change of venue or place of trial to avoid miscarriage of justice.5. Promulgate rules concerning the:

a. Protection and enforcement of constitutional rightsb. Pleading, practice and procedure in all courtsc. The admission to practice of law, the Integrated Bar; andd. Legal assistance to the underprivileged

6. Appoint all officials and employees of the Judiciary in accordance with the Civil Service Law

Jurisdiction vs. Judicial Power

The exercise of a judicial power is dependent upon the creation of a court. If there is no court created then there is no judicial power. The court is created by law or legislation. Judicial power is a passive power. The creation of a court necessarily follows that the court must be clothed and armed with a power. This power is the judicial power dependent upon the creation of the court.

Jurisdiction vs. Venue

Jurisdiction is the authority to hear and determine a case whereas venue is the ploace where the case is to be heard or tried.Jurisdiction is a matter of substantive law whereas venue is a matter of procedural law.Jurisdiction establishes a relation between the court and the subject matter whereas venue is a relation between a plaintiff and defendant, or petitioner and respondent.Jurisdiction is fixed by law and cannot be conferred by the parties whereas venue may be conferred by the act or agreement of the parties.

Manila Railroad vs. Atty. GeneralThe failure of a defendant to object to the venue of the action at the time of entering his appearance in the action shall be deemed a waiver on his part of all objections to the place or tribunal in which the action is brought, except in the actions referred to in the first sixteen lines of this section relation to real estate, and actions against executors, administratios, and guardians, and for the distribution of estates and payment of legacies.

Original Jurisdiction- Those courts in which, under the law, actions or proceedings may originally be commenced

- It is the power of the court to take judicial cognizance of a case instituted for judicial action for the first time under conditions provided by law

Appelate Jurisdiction

-- Courts which have the power to review on appeal the decisions or orders of a lower court

- It is the authority of a court higher in rank to reexamine the final order of judgment of a lower court which tried the case now elevated for judicial power.

Exclusive Jurisdiction

- It is the power to adjudicate a case or proceeding to the exclusion of all other courts at that stage.

Concurrent Jurisdiction

- It is referred to as confluent or coordinate jurisdiction, which is the power conferred upon different ranks, whether of the same or different ranks, to take cognizance at the same stage of the same case in the same or different judicial territories.

Special Jurisdiction

- It is the power of inferior courts to hear and decide petitions in the absence of the proper court in the province or city

- It is referred to as the interlocutory jurisdiction of inferior courts under the Judiciary Act.

Jurisdiction over the subject matter-this is conferred by law and unlike jurisdiction over the parties, cannot be conferred on the court by the voluntary act or agreement of the parties.Jurisdiction vs. Exercise of Jurisdiction

The authority to decide a case and not the decision rendered therein is what makes up jurisdiction. Where there is jurisdiction, the decision of all questions arising in the case is but an exercise of jurisdiction.

Jurisdiction is the power of the court itself but when such power is exercised then it is an exercise of jurisdiction.

The errors which a court may commit in the exercise of jurisdiction differ from errors of judgment. The former is reviewable in an orifinal action for certiorari, while the latter is correctible by appeal.Errors in jurisdiction render a judgment void or, at least voidable, while errors of judgment are grounds for reversal only if it shown that prejudice has been caused thereby.

Jurisdiction is conferred by law and cannot be conferred or waived by the parties and can be assailed at anytime. But not where estoppel by laches sets in.

What determines jurisdiction over the subject matter?The facts alleged in the complaint and the law in force at the time of the commencement of the action

determines the jurisdiction of a court.

the general rule remains that a court’s lack of jurisdiction may be raised at any stage of the proceedings, even on appeal. The reason is that, jurisdiction is conferred by law, and lack of it affects the very authority of the court to take cognizance of and to render judgment on the action. Moreover, jurisdiction is determined by the averments of the complaint, not by the defenses contained in the answer.

GR: Jurisdiction of a court is not affected by a new legislation laying jurisdiction over such proceedings to another tribunal.

XPN: Where the law expressly provides that it shall operate retroactively.

GR: Jurisdiction of the court over the subject matter of the action is determined by the allegations of the complaint, irrespective of whether or not the plaintiff is entitled to recover upon all or some of the claims asserted therein. Jurisdiction of the court cannot be made to depend upon the defenses set up in the answer or in the motion to dismiss; otherwise, the question of jurisdiction would almost entirely depend upon the defendant

XPN:There is one instance when the court, in determining its jurisdiction, may consider the defense set up by the defendant in his answer------ that is an ejectment case filed with the Municipal Trial Court where the defendant sets up the defense of agricultural tenancy by claiming that he is a tenant. In such situation, the court should not dismiss the case outright but must conduct a preliminary hearing on the said defense. If the court finds that there is indeed an agricultural tenancy relationship between the plaintiff and the defendant, then it must dismiss the case as the same falls within the exclusive jurisdiction of the Department of Agrarian Reform Adjudication Board.

P vs. DP files a complaint for collection of sum of money worth 500k. During the trial, P was able to prove 100k only

Q: Can the RTC still render judgment?A: Yes, the RTC can still render judgment. I maintain the positive view because the facts alleged in the complaint and the law in force at the time of the commencement of the action determines the jurisdiction of the court.

Laches is defined as the failure or neglect for an unreasonable and unexplained length of time, to do that which, by exercising due diligence, could or should have been done earlier, it is negligence or omission to assert a right within a reasonable length of time, warranting a presumption that the party entitled to assert it either has abandoned it or declined to assert it.Estoppels by laches may be invoked to bar the issue of lack of jurisdiction onlu in cases in which the factual milieu is analogous to that in the cited case. In such controversies, laches should have been clearly present; that is, lack of jurisdiction must have been raised so belatedly as to warrant the presumption that the party entitled to assert it had abandoned or declined to assert it.

Doctrine of laches = Stale Demands; based on the grounds of public policy

It has been held that after voluntarily submitting a cause and encountering and adverse decision on the merits, it is too late for the loser to question the jurisdiction or power of the court.

DOCTRINE OF PRIMARY JURISDICTION

The Doctrine of Primary Jurisdiction vests in an administrative tribunal the jurisdiction to determine a controversy involving a question requiring the exercise of sound administrative discretion. The resolution of the issues in a given case requires the expertise, specialized skills, and knowledge of the proper administrative bodies because of technical matters or intricate questions involved, then relief must first be obtained in an administrative proceeding before a remedy will be supplied by the courts even though the matter is within the proper jurisdiction of a court.

Where the jurisdiction is vested upon an administrative body, no resort to the courts may be made before such administrative body shall have acted upon the matter.

DOCTRINE OF ADHERENCE OF JURISDICTION

Jurisdiction once acquired continues until the case is finally terminated

Once the court acquires jurisdiction by virtue of a valid complaint, the jurisdiction shall continue up to the end of the case. Intervening facts will not deprive the courts of jurisdiction

Doctrine of Judicial Stability

A judge of a branch of one should not annul the order of a judge of another branch of the same court. Any branch even if it be in the same judicial district that attempts to annul a judgment of a branch of the CFI either exceeds its jurisdiction or acts with grave abuse of discretion amounting to lack of jurisdiction. The various branches of the Court of First Instance being co-equal cannot interfere with the respective cases of each branch, much less a branch’s order or judgment.

- Family Courts issuances of writs are enforceable only within its territorial jurisdiction or within the judicial region to which the Family Court belongs.

- A petition for habeas corpus may be filed in the Supreme Court, Court of Appeals, or with any of its members and if so granted, the writ shall be enforceable anywhere in the Philippines.

What is the test to be followed in determining whether the subject matter of the litigation is incapable of pecuniary estimation?

In determination whether the subject of litigation is incapable of pecuniary estimation, the nature of the principal action or remedy sought must first be determined. If it is primarily for recovery of sum of money, the claim is considered capable of pecuniary estimation, and the jurisdiction would depend on the amount of the claim.

But where the basic issue is something other than the right to recover a sum of money, or where the money claim is incidental to, or a consequence of, the principal relief being sought, the subject of litigation is deemed incapable of pecuniary estimation in terms of money, and is cognizable exclusively by the RTC.

An action for specific performance is incapable of pecuniary estimation, although it also prays for damages (because the claim for damages is merely incidental to the principal relief being sought). But where there is an alternative prayer for the payment of a sum of money in lieu of specific performance, jurisdiction should be based on the sum of money alternatively prayed for.

Declaration of nullity of the document denominated as “Declaration of Heirs and Deed of Confirmation of Previous Oral Partition” is incapable of pecuniary estimation, although the complaint also prayed for the partition of the land subject of the action, as said partition was merely incidental to the main action for declaration of nullity.

An action for appointment of an administrator (or administratrix) for an estate is incapable of pecuniary estimation and is therefore cognizable by the RTC. But probate proceedings for the settlement of estate are within the jurisdiction of either the RTC or MTC depending on the gross value of the estate.

An expropriation suit is incapable of pecuniary estimation regardless of the value of the property involved because its primary consideration is whether the government or any of its instrumentalities has complied with the requisites for the taking of private property. In the main, the subject of an expropriation suit is the government’s exercise of eminent domain, a matter that is incapable of pecuniary estimation. The value of the property to be expropriated is estimated in monetary terms, for the court is duty bound to determine the just compensation for it. This, however, is merely incidental to the expropriation suit.

An action for interpleader under Rule 62 is incapable of pecuniary estimation.

Other examples of actions incapable of pecuniary estimation are: action for support, action for annulment of judgment, actions questioning the validity of mortgage, action for rescission which is the counterpart of specific performance.

Where the complaint, although denominated in the title thereof as one for specific performance, shows that the plaintiff is asking that a deed of sale of a parcel of land be executed in his favor and that a Transfer Certificate of Title covering such land be issued to him, then the action is to be considered one for the recovery of real property and not for specific performance since the primary objective is to regain the ownership and possession of the parcel of land. Hence, the docket fees should be computed on the basis of the value of the property and the amount of related damages claimed, exclusive of interest.

In real action, the court’s jurisdiction is determined by the assessed value of the real property as alleged in the original complaint, BP 129 provides that if the assessed value of the real property subject of the suit does not exceed P20,000 (or P50,000 in M. Manila), the action falls within the jurisdiction of the Municipal Trial Court; and if it exceeds P20,000 (or P50,000 in M.Manila) the action is cognizable by the Regional Trial Court.

It is necessary to state in the original complaint the assessed value of t the property in order to determine whether the court in chich the action is filed has jurisdiction over the subject matter of the suit.

If the action involves ownership and possession of real property, the jurisdiction over the subject matter of the claim is determined by the assessed value, not the market value, thereof pursuant to BP 129.

To determine which court has jurisdiction over the action, the complaint must allege the assessed value of the real property subject of the complaint or the interest thereon.

If the respondent’s complaint is a real action, the Rule requires that the assessed value of the property, or if there is none, the estimated value thereof shall be alleged by the claimant and shall be the basis of computing fees.

HOW JURISDICTION OVER THE PARTIES IS ACQUIRED?

The jurisdiction over the plaintiff or petitioner is acquired by the filing of the complaint, petition or initiatory pleading before the court y the plaintiff or petitioner

The jurisdiction over the defendant or respondent is acquired by the voluntary appearance or submission by the defendant or respondent to the court or by coercive process issued by the court to him, generally by service of summons.

HOW JURISDICTION OVER THE RES IS ACQUIRED?

This is acquired by the actual or constructive seizure by the court of the thing in question, thus placing it in custodial egis, as in attachment or garnishment; or by the provision of law which recognizes in the court the power to deal with the property or subject matter within its territorial jurisdiction, as in land registration proceedings or suit involving civil status or real property in the Philippines of a non-resident alien.

JURISDICTION OVER THE ISSUES

This is determined and conferred by the pleadings filed in the case by the parties, or by their agreement in the pre-trial order or by stipulation, or, at times, by their implied consent as by the failure of a party to object to evidence on an issue not covered by the pleadings, as provided in Sec. 5, Rule 10.

Rules on Jurisdiction

The jurisdiction of the court is determined by the statute in force at the time of the commencement of the action, unless such statute provides for its retroactive application, as where it is curative legislation.

The settled rule is that jurisdiction of the court over the subject matter is determined by the allegations of the complaint, but this rule is not without exception.

The jurisdiction of the court, whether in criminal or civil cases, once it attaches cannot be ousted by subsequent happenings or events although of a character which would have prevented jurisdiction form attaching in the first instance.

The question of constitutionality of a statute must be questioned at the earliest opportunity except in criminal cases where the question may be raised at any stage and, in civil cases, if the determinations of the question is necessary for the decision of the case, even if raised for the first time on appeal.

The jurisdiction of a court over the subject matter is conferred only by the Constitution or the law and that the Rules of Court yield to substantive law.

Jurisdiction cannot be fixed by the agreement of the parties; it cannot be acquired through, or waived, enlarged or diminished by, any act or omission of the parties; neither can it be conferred by the acquiescence of the court.

Questions of jurisdiction may be raised for the first time on appeal even if such issue was not raised in the lower court.

A court motuproprio dismiss a case which is outside its jurisdiction.

The principle of estoppels by laches cane be availed of to bar attacks on jurisdiction.

In case for the recovery of the sum of money, as the collection of a debt, the claim is considered capable of pecuniary estimation because the obligation to pay the debt is not conditioned upon any specific fact or matter. But when a party to a contract has agreed to refund to the other party sum of money upon compliance by the latter of certain conditions and only upon compliance therewith may what is legally due to him under the written contract be demanded, the action is one not capable of pecuniary estimation and is within the jurisdiction of the RTC. The payment of a sum of money is only incidental.

Specific performance has alternative prayer for money – makes it capable of pecuniary estimation

The jurisdiction of the respective courts is determined by the value of the demand and not the value of the transaction out of which the demand arose; that is what the law says in unmistakable terms. The alternative prayer for specific performance is also of the same value, for, as said above, the alternative prayers would not have been made in the complaint if one was more valuable that the other; hence, the alternative performance prayed for, is capable of pecuniary estimation.

Sum of money and/or foreclosure of chattel more than judicial value – capable of pecuniary estimation

Although the purpose of an action is to recover an amount plus interest which comes within the original jurisdiction of the MTC, yet when the said action involves the foreclosure of a chattel mortgage covering personal properties valued at more than P10,000.00, the action should be instituted before the Regional Trial Court.

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What determines the jurisdiction of the court is the amount of the plaintiff’s claim, not the value of the personal property sought to be seized by replevin.

A claim of P20,000 as attorney’s fee is merely incidental to the main action, and therefore this amount is not determinative of the jurisdiction of the court.

HOW TO DETERMINE IF THE SUBJECT MATTER IS INCAPABLE OF PECUNIARY ESTIMATION

The nature of the principal action or remedy sought must be first be determined. If it is primarily for recovery of a sum of money, the claim is considered capable of pecuniary estimation, and jurisdiction would depend on the amount of the claim. But where the basic issue is something other than the right to recover a sum of money, or where the money claim is incidental to, or a consequence of, the principal relief being sought, the subject of litigation is deemed incapable of pecuniary estimation in terms of money, and is cognizable exclusively by the RTC. (Singson vs. Isabela Sawmill 88 SCRA 623)

An action for specific performance is incapable of pecuniary estimation, although it also prays for damages (because the claim for damages is merely incidental to the principal relief being sought). But, where there is an alternative prayer for the payment of a sum of money in lieu of specific performance, jurisdiction should be based on the sum of money alternatively prayed for.

The interpretation of the renewal contract in lease agreements; but there is non-payment of rental although the interpretation of renewal clause was also involved the jurisdiction is with the lower court (Teodoro vs. Mirasol)

Remedial Law vs. Substantive Law

Substantive law is that part of the law which creates rights concerning life, liberty, or property or the power of instrumentalities for the administration of public affairs.

Procedural law refers to the adjective laws which prescribe rules and forms of procedure in order that courts may be able to administer justice.

Substantive law creates, defines and regulates rights.

Adjective or remedial law prescribes the method of enforcing the rights or obtaining redress for invasion.

Substantive law is the law which gives or defines the right, and which, by means of proceeding, the court is to administer. Procedure is the mode of proceeding by which a legal right is enforced. (Bustos vs. Lucero 81 Phil 649)

The finality of a judgment does not mean that the Court has lost all its powers nor the case. By the finality of judgment, what the court loses is its jurisdiction to amend, modify or alter the same. Ever after the judgment has become final, the court retains its jurisdiction to execute and enforce it. There is a difference between the jurisdiction of the court to execute its judgment and its jurisdiction to amend. Modify or alter the same. The former continues even after the judgment has become final. For after the judgment has become final, facts and circumstances may transpire which can render the execution unjust or impossible.

The power to control the execution of its decision is an essential aspect of jurisdiction. It cannot be the subject of substantial subtraction for our Constitution vests the entirety of judicial power in one Supreme Court and in such lower courts as may be established by law.

The rule making power of this Court was expanded. This Court for the first time was given the power to promulgate rules concerning the protection and enforcement of constitutional rights. The Court was also granted for the first time the power to disapprove rules of procedure of special courts and quasi-judicial bodies. But most importantly, the 1987 Constitution took away the power of congress to repeal, alter, or supplement rules concerning pleading, practice and procedure.

An action for rescission of contract is one which is incapable of pecuniary estimation. Therefore, the docket fee for its filing should be the flat rate of 400.

Q: May a RTC annul the judgment of another RTC?

A: No. Only the Court of Appeals has jurisdiction to annul the judgment of a Regional Trial Court.

But if what is sought to be annulled is a judgment of the Municipal Trial Court, then the action for annulment should be filed with the Regional Trial Court because an action for annulment of judgment of a Municipal Trial Court is incapable of pecuniary estimation.

In an action for the recovery of property, the docket fee should be based on the value of the property sought to be recovered.

Note, however, that although the payment of the proper docket fee is a jurisdictional requirement, the trial court may allow the plaintiff to pay the same within a reasonable time but before the expiration of the applicable prescriptive or reglementary period. If the plaintiff fails to comply with this requirement, the defendant should timely raise the issue of jurisdiction; otherwise, he should be considered in estoppels.

Q: Suppose the plaintiff failed to pay the correct amount of docket fee, may the trial court dismiss the complaint?

A: No, the trial court may not dismiss the complaint. Instead, the trial court should allow the plaintiff to pay the correct amount of docket fee within a reasonable time but before the expiration of the applicable prescriptive of reglementary period. If the plaintiff fails to pay within the period granted to him by the trial court, then the defendant must move to dismiss the complaint on the ground of lack of jurisdiction. The defendant who fails to timely raise the issue of jurisdiction would be considered in estoppel.

If the demand does not exceed P300,000 (or P400,000 in M,Manila) the complaint should be filed in the Municipal trial court. The action is a personal action. In determining what court will have jurisdiction in personal actions, damages of whatever kind (as well as interest, attorney’s fees, litigation expenses, and costs) shall be excluded if they are merely incidental to, or a consequence of, the main cause of action.

Jurisdiction of the RTC – Where in a personal action the claim for damages is the main cause of action (or one of the causes of action), the amount of such claim shall be considered in determinind the jurisdiction of the courts.

The Supreme Court’s original jurisdiction to issue extraordinary writs should be exercised only where absolutely necessary, or where serious and important reasons therefor exist. The Supreme Court’s original jurisdiction to issue writs should be allowed only when there are special and important reasons therefor clearly and specifically set out in the petition.

Q: What are the cases that the Supreme Court should resolve en banc?

A: Cases in which the constitutionality or validity of any treaty, international or executive agreement, law or executive order, or presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.

2. criminal cases in which the appealed decision imposes the penalty of death

3. cases raising novel questions of law

4. cases involving decisions, resolutions, or orders of the Commision on Elections and Commission on Audit

5. Cases where the penalty to be imposed is the dismissal of a judge, officer or employee of the judiciary, disbarment of a lawyer, or either the suspension of any of them for a period of more than one (1) year or a fine of exceeding P10,000 or both

6. Cases where a doctrine or a principle laid down by the Court en banc or in division may be modified or reversed.

7. cases assigned to a division which in the opinion of at least three members thereof merit the attention of the Court en banc and are acceptable to a majority of the actual membership of the Court en banc.

8. all other cases as the Court en banc by a majority of its actual membership may deem of sufficient importance to merit its attention.

Rule 1

The Rules of Court have the force and effect of law. They are not penal statures and cannot be applied retroactively, although Procedural rules may be applied on cases pending at the time of their passage and retroactive in that sense.

Define the ff:

Civil Action – is one by which the party sues another for the enforcement or protection of a right or a redress of a wrong

Criminal Action – is one by which the State prosecutes a person for an act or omission punishable by law.

Special Proceedings – are the remedies by which the parties seek to establish a status, a right or a particular fact.

How is a civil action commenced?

A civil action is commenced by the filing of the original complaint in court. If an additional defendant is impleaded in a later pleading, the action is commenced with regards to him on the date of the filing of such later pleading, irrespective of whether the motion for its admission, if necessary is denied by the court.

A complaint is deemed filed onlu upon payment of the docket fee regardless of the actual date of filing in the complaint in court.

Action for redemption is a real action because it affects title to or possession of real property foreclosed.

Accionhipotecaria is a real action to foreclose a lien or a mortgaged.

Accionnegatoria is an action consisted in the right of the landowner to defend the free dominion of his tenement.

How shall the Rules be construed?

The Rules of Court shall be liberally construed in order to promote their objective of securing a just, speedy and inexpensive disposition of every action and proceeding.

The Supreme Court has the power to suspend or set aside its own rules in the higher interest of justice.

RULE 2

What is the basis of an ordinary civil action?

Every ordinary civil action must be based on a cause of action.

What is a cause of action?

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

What are the requisites of a cause of action?

The following are the requisites:

a. A right in favor of the plaintiff by whatever means and under whatever law it arises or is created;b. An obligation on the part of the defendant to respect and not to violate such right.c. An act or omission on the part of the defendant constituting a violation of the plaintiff’s right.

What is splitting a single cause of action?

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

What is the rule on splitting a single cause of action?

The rule is that a party may not institute more than one suit for a single cause of action.

If two or more suits are instituted on the basis of the same cause of action, the filing of one or a judgment upon the merits in any one is available as a ground for the dismissal of the others. In other words, the ground for the dismissal is either lispendens (if the action is still pending) or res judicata (if the judgment in one case has already become final).

What determines singleness of a cause of action?

In action ex delicto, the singleness of a cause of action lies in the singleness of the delict or wrong violation the right of another person. If only one injury results from several wrongful acts, only one cause of action arises.

In action ex contractu, the rule is:

a. For a single and indivisible contract, only one cause of action arises from a single breach or several breaches;b. For a contract providing for several obligations, each obligations not performed gives rise to a single cause of action. But if

upon filing of the complaint several obligations have already matured, all of them shall be considered as integrated into a single cause of action.

May a party join in one pleading several causes of action? (What is the rule on joinder of causes of action?)

Yes, subject to the ff conditions:a. The party joining the causes of action shall comply with the rules on joinder of partiesb. The joinder shall not include special civil actions or actions governed by special rulesc. Where the causes of action are between the same parties but pertain to different venues, 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 venue lies therein;

d. 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.

What is a joinder of causes of action?

A joinder of causes of action is the uniting of two or more demands or rights of action in a complaint.

May a complaint be dismissed on the ground of misjoinder of causes of action?

No. Misjoinder of causes of action is not a ground for dismissal of an action. A misjoined cause of action may, on motion of a part or on the initiative of the court, be severed and proceeded with separately.

RULE 3

Who may be parties in a civil action?

Whether as plaintiff or as defendant, only the following may be parties in a civil action:

a. Natural personb. Juridical personc. Entities authorized by law.

May a sole proprietorship be a party in a civil action?

No, because a sole proprietorship is neither a natural person nor a juridical person. It is not also an entity authorize by law to bring or defend a suit in court.

What is the remedy of the defendant is a sole proprietorship file against him a case in Court?

The defendant must file a motion to dismiss on the ground of lack of capacity to sue.

What is the plaintiff’s remedy?

The remedy of the plaintiff is for him to amend his complaint to implead the proprietor or owner in substitution of the sole proprietorship.

What if the plaintiff did not amend his complaint and defendant does not also move for the dismissal of the complaint?

The defendant cannot anymore raise the issue of lack of capacity to sue on appeal. Since the defect is formal, an amendment even at that stage may still be made pursuant to Sec. 4, Rule 10.

An entity without legal personality cannot sue under its name, but it may be sued. If it is sued, and it files an answer, then the individual names and addresses of the proprietors must all be revealed.

Suppose a entity without juridical personality wants to go to court to collect upon a promissory note, what is the remedy?

The person composing the said entity must bring the suit in their own names, not in the name of the entity.

May an action brought by a minor be dismissed on the ground of lack of legal capacity to sue?

No. A minor or person alleged to be incompetent may sue or be sued with the assistance of his father, mother, or guardian, or if he has none, a guardian ad litem.

May a foreign corporation sue or be sued in the Philippines?

A foreign corporation transacting business regularly in the Philippines without license cannot sue, but it can be sued in any court or administrative agency in the Philippines.

A foreign corporation may acquire a legal standing to sue by securing a license to transact business in the Philippines.

Principles regarding the right of foreign corporation to sue:

a. If a foreign corporation does business in the Philippines without a license, it cannot sue before the Philippine courtsb. If a foreign corporation is not doing business in the Philippines, it needs no license to sue before Philippine courts on

an isolated transaction or on a cause of action entirely independent of any business transaction.c. If a foreign corporation does business in the Philippines without a license, a Philippine citizen or entity which has

contracted with said corporation may be estopped form challenging the foreign corporation’s corporate personality in a suit brought (by the foreign corporation) before Philippine courts.

d. If a foreign corporation does business here in the Philippines with the required license, it can sue before Philippine courts on any transaction.

What is the “Isolated Transaction Rule”?

It is the rule that authorizes a foreign corporation conducting an isolated business to sue upon that isolated business, though it had no license to do business in the Philippines.

Who are real party in interest?

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

GR: every action must be prosecuted or defended in the name of the real party in interest. If the suit is brought not in the name of or against real party in interest it may be dismissed on the ground that the complaint states no cause of action.

If the suit is brought not in the name of or against the real party in interest, a motion to dismiss may be filed on the ground that the complaint states no cause of action.

Who is an indispensable party? ---- necessary party

An indispensable party is a party in interest without whom no final determination can be had of an action.

A necessary party is one who is not indispensable but who ought to be joined as a party if complete relief is to be accorded as to those already parties, or for a complete determination or settlement of the claim subject of the action.

In an action for partition of a property held in co-ownership, all the co-owners are indispensable parites as the partition will affect all of them. If one co-owner is omitted, any judgment partition may be rendered void.

Any one of the co-owners may bring an action for the recovery of the co-owned property. Only one of the co-owners, namely the co-owner who filed the suit for recovery of the co-owned property, is an indispensable party thereto. The other co-owners are not indispensable parties. They are not even necessary parties, for a complete relief can be accorded in the suit even without their participation, since the suit is presumed to have been filed for the benefit of all co-owners.

A transferee pendente lite of a property under litigation is merely a necessary party.

Who are pro-forma parties?

Pro-forma parties are those who are required to be joined as co-parties in suits by or against another party as may be provided by applicable substantive or procedural laws.

What are the requisites of a permissive joinder of parties?

The requisites are:

a. The right to relief arises out of the same transaction (or event) or series of transactions (or events);b. There is a question of law or fact common to all the plaintiffs or to all the defendants.

When is there a question of law?

There is a question of fact in a given case when the doubt or difference arises as to what the law is on a certain state of facts.

When is there question of fact?

There is a question of fact when the doubt arises as to the truth or the falsehood of alleged facts

The rule is that joinder of parties is only permissive, but when is it compulsory?\

Joinder of parties is compulsory or mandatory if the parties to be joined in an action are indispensable parties. But, class suit is an exception to the rule of compulsory joinder of indispensable joinder of parties. In a class suit, all those who belong to the class are indispensable parties, but not all of them need to be joined.

What is the effect if the indispensable party is not joined?

If it appears that an indispensable party is not impleaded, the court must order the plaintiff to amend his complaint for the purpose of impleading the indispensable party. If the plaintiff fails or refuses to include such indispensable party, or the latter (the indispensable party) cannot be sued, then the complaint may be dismissed.

The absence of an indispensable party renders all subsequent actions of the court null and void for want of authority to act, not only as to the absent parties but even as to those present.

Omission of a necessary party

Whenever in any pleading in which a claim is asserted a necessary party is not joined, the pleader shall set forth his name, if known, and state why he is omitted.

Suppose, the court finds the reason for the non-joinder of a party unmeritorious, what may the court do?

The court may order the inclusion of the party if jurisdiction of his person may be obtained.

What is the effect of a plaintiff’s failure to comply with the order of the court?

Plaintiff’s failure to comply with the order for the inclusion of a party, without justifiable cause, shall be deemed a waiver of his claim against the party.

A and B, solidary debtor, owes C some of money. The obligation became due and demandable. C filed a complaint against A in the RTC for collection. Is B an indispensable party?

No. B is not even a necessary party because C may obtain complete relief or complete settlement of his claim against one of the solidary debtors. Thus, C may enforce his entire claim against A alone, and A as a solidary debtor, may be compelled to pay the whole amount. The remedy of A, if sued alone, is to file a third-party complaint against B for contribution.

Where the obligation of the parties is solidary, either of the parties are indispensable, and the other is not even a necessary party because complete relief is available from either.

Indispensable Party vs. Necessary Party

a. If an indispensable party is not joined, the action cannot proceed, and if there is judgment, such judgment is not valid. On the other hand, if a necessary party is not joined, the action may still be proceed, but the judgment, although valid, does not resolve the whole controversy.

b. Non-joinder of an indispensable party may result in the dismissal of the action; while non-joinder of a necessary party may result in the waiver of plaintiff’s claim against him.

How may a party who should be joined as plaintiff but whose consent cannot be obtained be impleaded?

As an unwilling co-plaintiff, he may be impleaded as a defendant, and the reasons therfor shall be stated in the complaint.

Is misjoinder of parties a ground for dismissal of an action?

No. the misjoined party may simply be dropped by the order of the court, upon motion of any party or on its own initiative, at any stage of the action and on such terms as are just.

What about non-joinder of parties, is it a ground for dismissal of an action?

If the party who is not joined is an indispensable party, the court must order the plaintiff to amend his complaint for the purpose of impleading the indispensable party. If the plaintiff fails or refuses to include such indispensable party, or such indispensable party cannot be sued, then the complaint may be dismissed.

But if a party who is not joined is a necessary party, his non-joinder is not a ground for the dismissal of an action.

What are the requisites of a class suit?

The following are the requisites:

a. The subject matter of the controversy is one of common or general interest to many people;b. The parties affected are so numerous that it is impracticable to join all as partiesc. The parties bringing or defending the class suit are found by the court to be sufficiently numerous and representative as to

fully protect the interest of all concerned.

What is the remedy if a class suit is not proper?

If the class suit is not proper, the remedy of the parties is either to bring the suit individually or join them all as parties under the rule on permissive joinder of parties.

When an action does considered a class suit?

The complaint must allege:

a. The existence of a subject matter which is of common or general interest to many people; and b. The existence of a class and the number of persons belonging to that class.

What is the duty of a counsel if his client who is a party to a pending suit dies?

Whenever a party to a pending suit dies, and the claim is not thereby extinguished, it shall de the duty of his counsel to inform the court within 30 days after such death of the fact thereof and to give the name and address of his legal representative or representatives.

If the counsel fails to give notice of death, and, therefore, no legal representative is substituted for the deceased party, the court may still proceed with the case and all the proceedings therein shall be valid and binding upon the successors in interest.

But, where the notice of death is promptly given pursuant to the rules, but the court proceeded with the case without requiring substitution, all proceedings therein are void.

During a pendency of an action, the public officer dies, resigns, or ceases to hold office, may the action be continued against his successor?

Yes if within 30 days after the successor takes office or such time as may be granted by the court, it is satisfactorily shown that there is a substantial need for continuing it and that the successor adopts or continues or threatens to adopt the action of his predecessors, in which event the successor shall be substituted in the action after giving him reasonable notice of the application for substitution and opportunity to be heard.

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, it shall not be dismissed but shall instead be allowed to continue until entry of final judgment. The judgment will not be executed but shall be presented as a money claim based on judgment in the probate court.

An action to recover damages for injury to persons is not abated by the death of the defendant.

X and y owed Z 1 million. The debt had become due, x died. Z filed an action for collection of the sum of 1 million. Would the action prosper?

No. a creditor cannot sue the surviving spouse of a decedent in an action for the collection of a sum of money chargeable agains the conjugal partnership. The proper remedy for the creditor is to file a claim in the settlement of the estate of the decedent.

What is the rule if it is the plaintiff who dies?

If the action is purely personal to the plaintiff, his death abates the action. In all other instances where the plaintiff dies during the pendency of the litigation, the action will continue, but his counsel must give a notice of the plaintiff’s death so that his legal representatives or heirs may be substituted in the action.

When does transfer pendente lite occur?

It occurs when, during the pendency of an action in court, one of the parties transfers his interest over the subject matter of the action to another person. The person to whom the interest is transferred is called transferee pendente lite.

What is the rule on transfer of interest pendente lite?

The rule is that the action may be continued by or against the original party. The court may on motion direct the transferee to be substituted in the action or joined with the original party. The substitution is not mandatory but only permissive. A transferee pendent lite is merely a necessary. The judgment for or against the original party will benefit or bind the transferee. Thus, the action may be continued by or against the original party even without substitution or without the transferee being joined.

Even if the transferee pendent lite is not substituted in the action and is not joined as a party, he stands exactly in the shoes of the transferor and is bound by the any judgment or decree that may be rendered for or against the transferor.

Indigent Party

An indigent party must file with must file with the court an ex parte application for authority to litigate as indigent party, and at the hearing on his application, he must satisfy the court that he has no money or property sufficient and available for food, shelter, and basic necessities for himself and his family.

In what action may the court require the appearance of the solicitor general?

In any action involving the validity of any treaty, law, ordinance, executive order, presidential decree, rules, or regulations, 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.

RULE 4

What is venue?

Venue refers to the place where the action is to be instituted and tried.

Venue vs. Jurisdiction

Venue refers to the place where the action is to be instituted; jurisdiction refers to the authority of the court to try and decide a case

Venue may be waived; jurisdiction (over the subject matter) cannot be waived.

What is the venue of real actions?

Real actions shall be commenced and tried in the proper court which has jurisdiction over the area wherein the real property involved is situated. Actions for forcible entry and unlawful detainer shall be commenced and tried in the municipal trial court of the municipality or city where the real property involved is located.

What is the venue of personal actions?

Personal actions may be commenced and tried where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, or in the case of a non-resident defendant where he may be found at the election of the plaintiff.

If the defendant is a non-resident defendant what is the venue of the action?

If the non resident defendant is in the Philippines the venue of the action shall be where

a. the plaintiff or any of the principal plaintiffs resides orb. where the non resident defendant may be found,

at the election of the plaintiff.

If the non-resident defendant is not found in the Philippines, and the action affects the personal status of the plaintiff or any property of the defendant located in the Philippines, the venue of the action shall be in the place where

a. the plaintiffs resides or b. where the property or any portion thereof is situated or found.

May the party to a civil action validly agree on the exclusive venue of the action?

Yes, provided the following requisites are present:

a. the agreement is in writing; andb. the agreement is made before the filing of the action

Exclusive Venue of the Action

If the stipulation does not contain restrictive words to indicate that the agreed place alone is the venue of the action, the parties do not lose the option to choose the venue. In the absence of such restrictive terms, the stipulation should merely construed as an agreement on additional venue, not as limiting venue to the specified place.

If the venue is improperly laid, how should the defendant raise the question of improper venue?

The defendant should raise the question of improper venue

a. in a motion to dismiss filed within the time for but before the filing of the answer; orb. in the answer as an affirmative defense, and thereafter the defendant may move for preliminary hearing thereon as if a

motion to dismiss has been filed.

If the objection to venue is belatedly made, it is deemed waived.

What are the instances when the rule on venue shall not apply?

a. In those case where a specific rule or law provides otherwise;b. Where the parties have validly agreed in writing before the filing of the action on the exclusive venue thereof.

RULE 6

Define pleadings.

Pleadings are the written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment.

A pleading may state either a claim or a defense.

The claims of a party are asserted in a complaint, counterclaim, cross-claim, third party complaint or complaint-in-intervention. While defenses of a party are alleged in an answer.

What is a complaint?

A complaint is a pleading alleging the plaintiff’s cause or causes of action.

What is a third party complaint?

A third party complaint is a claim that a defending party may, with leave of court, file against a person not a party to the action, called the third-party defendant, for contribution, indemnity, subrogation, or any other relief, in respect to the opponents claim.

What is an answer?

An answer is a pleading in which a defending party sets forth his defenses.

Give the kinds of defenses, and explain each.

They are:

a. Negative defenses – it is the specific denial of the material fact or facts alleged in the pleading of the claimant essential to his cause or causes of action.

b. Affirmative defense – it is an allegation of a new matter which, while hypothetically admitting the material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by him.

RULE 10

How is an amendment of pleading made?

Amendment is made ----

a. By adding or striking out an allegation or the name of any party; orb. By correcting a mistake in the name of a party or a mistaken or inadequate allegations or descriptions in any other

respect.

When is amendment (of a pleading) a matter of right? – by leave of court?

A party may amend his pleading once as a matter of right at any time before a responsive pleading is served or in the case of a reply, at any time within ten (10) days after it is served. After a responsive pleading has been served, substantial --- repeat, substantial ----- amendments may be made only upon leave of court.

Amendment may now substantially alter the cause of action or defense.

P filed a complaint against D. Within the reglementary period for filing an answer, D filed a motion to dismiss, serving P a copy thereof. May P still amend his complaint as a matter of right?

Yes, because a motion to dismiss is not a responsive pleading.

When may the trial court refuse amendment? What are the limitations to the right of a party to amend his pleading?

The trial court may refuse amendment in the following instances:

a. If a responsive pleading has already been served, and the motion for leave to amend is made with the intent to delay;

b. If the purpose of the amendment is to confer jurisdiction upon the court; orc. If the purpose of the amendment is to cure a defect of non-existent cause of action.

When it is evident that the court has no jurisdiction over the person and the subject matter, then the court may refuse amendment of the defective pleading and order the dismissal of the case.

If the court has no jurisdiction over the subject matter of the action, the only power that it has is to dismiss the case. A decision rendered by a court without jurisdiction is a total nullity.

What is “amendment to conform to the evidence?”

When issues not raised by the pleadings are tried with the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings, and there can be an amendment to conform to the evidence. The amendment may be made, upon motion of any party, even after judgment. But failure to amend does not affect the result of the trial of the issues.

What is “amendment to authorize presentation of evidence?”

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, to authorize the presentation of evidence.

A complaint that states no cause of action may be cured in one of two ways:

a. By presentation of evidence to prove the cause of action, in which the complaint may be amended to conform to the evidence; or

b. If the evidence is objected to and the trial court sustains the objection, by amendment of the complaint with leave of court to authorize presentation of evidence.

The failure of a party to raise a defense in his pleading may be cured in one of two ways:

a. By presentation of evidence to prove the defense that is not raised, in which case the answer may be amended to conform to the evidence; or

b. If the evidence is objected to and the trial court sustains the objection, by amendment of the answer with leave of court to authorize presentation of evidence.

What are the effects of an amended pleading?

The following are the effects:

a. An amended pleading supersedes the pleading that it amends;b. Admission in the superseded pleading may be received in evidence against the pleader.c. Claims or defenses alleged in the superseded pleading but not incorporated in the amended pleading shall be

deemed waived.

Amended Pleading vs. Supplemental Pleading

The filing of an amended pleading may either be a matter of right or with leave of court; the filing of a supplemental pleading is always with leave of court.

Amended pleading alleges facts that occurred before the filing of the original pleading; supplemental pleading alleges facts occurring after the filing of the original pleading.

Amended pleading supersedes the original pleading; supplemental pleading does not supersede the original pleading but assumes that the original pleading is to stand.

How may a defendant set up a counterclaim that is already existing at the time he files his answer?

He may set up such counterclaim by incorporating it in his answer.

But if the defendant (through oversight, inadvertence, or excusable neglect) fails to set up his counterclaim that is already in existence prior to, or at the time of, the filing of his answer, he may by leave of court set it up by amendment before judgment.

How may a defendant set up a counterclaim that matured after the filing of his answer?

He may set it up by supplemental pleading, with the permission of the court, before judgment.

A counterclaim that arises or matures after the defending party has filed his answer is a permissive counter claim.

Amendment for the first time is a matter of right before a responsive pleading is filed or, in the case of a reply, within 10 days after it was served. Amendment for the second or subsequent time must be always with leave of court even before the responsive pleading is filed or before the case is set in the calendar in court.

Even after a motion to dismiss has been filed by the defendant or such motion has been submitted for decision, the plaintiff can still amend his complaint as a matter of right, since a motion to dismiss is not a responsive pleading.

Amendment of the complaint may be allowed even if an order for its dismissal has been issued as long as the motion to amend is filed before the dismissal order became final.

The defense of prescription, which was not raised in a motion to dismiss nor as an affirmative defense in the original answer, may be validly set up for the first time in an amended answer.

Effect of the amended complaint

- The effect of the filing of the amended answer is the withdrawal of the original answer and its substitution by the former.

GR: Substantial amendment may be made only upon leave of court.

XPN: Such leave may be refused if it appears to the court that the motion was made with intent to delay.

Formal Amendments – a defect in the designation of the parties and other clearly clerical or typographical errors may be summarily corrected by the court at any stage of the action, at its iniatiative or on motion, provided no prejudice is cause thereby to the adverse party.

Amendments which are not proper and should be denied:

a. Where the court has no jurisdiction has no jurisdiction over the original complaint and the purpose of the amendment is to confer jurisdiction on the court by eliminating the objectionable portion.

b. Where the cause of action originally pleaded in the complaint was outside the jurisdiction of the court. The court must first have jurisdiction over the case before it can order such amendment.

c. If it would result in delayd. If it would change the cause of action or defense or change the theory of the case or are inconsistent with the allegations

in the complaint.e. If the plaintiff had no cause of action at the filing of the original complaint and the purpose of the amendment is to

introduce a subsequent-accrued cause of action.

A plaintiff may move to amend his complaint even if the same was dismissed on motion of the defendant provided the dismissal order is not yet final.

Sec. 5. When issues not raised by the pleadings are tried with the express or implied consent of the parties, they shall be treated in all respect as if they had been raised in the pleadings.

Where the court acquires jurisdiction over the issues even if the same are not alleged in the original pleadings of the parties, i.e., where the trial of said issues is with the express or implied consent of the parties. The court may treat the pleading as if it had been amended to conform to evidence, although it had not been actually amended.

A court may rule and render judgment on the basis of the evidence before it even though the relevant pleading had not been previously amended, so long as no surprise or prejudice is thereby cause to the adverse party.

An amended complaint may be admitted since the amendment is to make the pleadings conform to the evidence.

RULE 11 WHEN TO FILE RESPONSIVE PLEADINGS

What are the periods for filing of responsive pleadings?

The following are the periods:

a. Answer to the complaint – 10 days after the service of summons if the case is governed by the Rule on Summary Procedure

b. Answer to the complaint – 15 days after the service of summonsc. Answer to the amended complaint – 15 days after service of a copy thereof if amended complaint is filed as a matter of

right; 10 days from notice of the order admitting the amended complaint if the filing thereof requires leave of court.d. Answer to a defendant foreign juridical entity – 15 days if summons is served on its resident agent; 30 days from receipt

by the home office of the summons if summons is served on the government official designated by law to receive summons

e. Answer to third(-fourth), etc.) party complaint – 15 days from service of summonsf. Answer to the complaint-in-intervention – 15 days from service of summonsg. Answer to counterclaim/ cross claim – 10 days from service thereof ( but if counterclaim is compulsory, it need not be

answered)h. Answer to the supplemental complaint – 10 days form notice of the order admitting the supplemental complaint;

i. Answer where the summons is served through any of the modes of extraterritorial service on a non-resident defendant who is not in the Philippines – within reasonable time which shall not be less than 60 days after notice as the court may specify in its order granting leave to effect extraterritorial service of summons;

j. Reply – 10 days from service of the pleading responded to.

A complaint is not a responsive pleading; it is a pleading the filing of which commences civil action. But, when should a complaint be filed?

It should be filed upon the accrual of the cause of action, or at any time thereafter but before such cause of action is barred by prescription.

May the trial court extend time within which to file responsive pleadings?

Upon motion and on such terms as may be just, the court may extend the time within which to file responsive pleading. In fact, the court may also allow an answer or other pleading to be file after the time fixed by the Rules of Court.

In cases governed by the Revised Rule on Summary Procedure, the court cannot extend the time for filing responsive pleadings.

May the trial court shorten the time within which to file responsive pleadings?

No, the court cannot shorten the time within which to file responsive pleadings, except in quo warranto cases. In quo warranto, the court “may reduce the period provided by these Rules for filing pleadings xxx.”

While the court can extend the time for filing of responsive pleadings, they can not shorten the time to do so.

Where the last day of the reglementary period falls on a Sunday or holiday, the pleading may be filed or the required act may be done on the succeeding business day.

In the computation of the reglementary period, the date when the pleading is filed and the date of receipt of the judgment or order thereon are to be excluded.

A counterclaim or cross claim need not be answered if it is based on or is inseparable from the defenses raised by th opposing party, or merely allege the opposite of the facts of the complaint.

RULE 12 BILL OF PARTICULARS

What is the purpose of a bill of particulars?

Its purpose is to make more definite any matter not averred with sufficient definiteness in a pleading to enable the adverse party to properly prepare his responsive pleading.

The office of a bill of particulars is limited to making more particular or definite the ultimate facts in a pleading, not to supply evidentiary matters.

The purpose of a bill of particulars is to enable the defending party to properly prepare his responsive pleading.

Because the complaint was shabbily crafted, the allegations therein are ambiguous, vague, indefinite, and uncertain. What is the remedy of the defendant?

The remedy of the defendant is to file a motion for a bill of particular, pointing out the defects complained of, the paragraphs wherein they are contained, and the details desired.

But, if because of such ambiguity, vagueness, indefiniteness, or uncertainty, the complaint fails to state a cause of action, then the remedy of the defendant is to file a motion to dismiss on the ground that the complaint states no cause of action under Rule 16, Sec. 1(g).

When may the party file a motion for a bill of particulars?

A party may file a motion for a bill of particulars before he responds to a pleading. Thus, a defending party may, before filing his answer, move for a bill of particulars. But if the pleading is a reply, he must file his motion within ten days from service thereof.

Needless to say, a defendant who has already filed an answer cannot anymore file a motion for a bill of particulars.

What does the rule require the clerk of court to do upon the filing of a motion for a bill of particulars?

Upon the filing of the motion for a bill of particulars, the clerk of court must immediately bring it to the attention of the court which may either dent or grant it outright, or allow the parties the opportunity to be heard.

A motion for a bill of particulars is a litigable motion and should therefore contain a notice of hearing. But, it is one motion which the court may deny or grant outright even without a hearing.

On motion of the defendant, the court ordered the plaintiff to file a bill of particulars. When and how may the plaintiff comply with the order of the court?

The plaintiff must comply with the order of the court within ten (10) days from notice of the order, unless the court has fixed a different period.

The plaintiff may file the bill of particulars either in a separate pleading or in an amended pleading, serving the adverse party with a copy thereof.

Is a bill of particulars a pleading?

No, it is not a pleading, but it becomes part of the pleading for which it is intended.

If the plaintiff does not obey the order of the court or in case of insufficient compliance, the court may order the striking out of the pleading or the portions thereof to which the order was directed.

The court may even dismiss the complaint under Sec. 3, Rule 17 for failure of the plaintiff to obey an order of the court.

If a defendant files a motion for a bill of particulars, when must he file his answer?

Note that his motion for a bill of particulars may either be granted or denied. After service of the bill of particulars (if his motion is granted) or after notice of his denial of his motion, the defendant must file his answer within the period to which he was entitled at the time of the filing of his motion, which shall not be less than five days in any event.

The bill of particulars may be filed either in a separate or in an amended pleading, serving a copy therof on the adverse party.

A motion for a bill of particulars must be filed within the reglementary period for the filing of a responsive pleading to the pleading sought to be clarified.

A motion for the bill of particulars directed to a reply must be filed within 10 day, since a responsive pleading is not required for a reply as, in fact, the filing of the reply itself is optional or permissive.

The filing of a motion for a bill of particulars interrupts the time to plead, but only if it is sufficient in form and substance.

RULE 13 FILING AND SERVICE OF PLEADINGS, JUDGMENTS, AND OTHER PAPERS

Define: a.) Filing; b.) Pleading

Filing is the act of presenting the pleading and other paper to the clerk of court.

Service is the act of providing a party with a copy of the pleading or paper concerned.

If a party appears by counsel, upon whom shall service be made?

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

What are the modes of filing of pleadings, motions, judgments, resolutions, orders, or other papers?

The following:

a. Personal filing. By delivering the copy personally to the Clerk of Court.b. Filing by registered mail. Note that filing by ordinary mail is not allowed.

What are the modes of service of pleadings or motions?

The following:

a. Personal service. By delivering personally a copy to the party or his counsel, or by leaving it in his office with his clerk or with a person having charge thereof. If no person is found in his office, or his office is not known, or he has no office, then by leaving the copy between the hours of eight in the morning and six in the evening, at the party’s or counsel’s residence, if known, with a person of sufficient age and discretion then residing therein.

b. Service by mail, which may either be by registered mail or by ordinary mail. Note, however, that service may be done by ordinary mail if no registry service is available in the locality of either the sender or the addressee.

c. Substituted service. By delivering the copy to the Clerk of Court, with proof of failure of both personal and service by mail.

What are the modes of service of judgments, final orders, or resolutions?

The following:

a. Personal serviceb. Service by registered mailc. Service by publication, but only if the party is summoned by publication and he did not appear in the action.

On July 16, 2001, a copy of the judgment was sent to the defendant by ordinary mail. When does the judgment become final and executor?

The judgment will never become final and executor because the service thereof is fatally defective. Service of judgments and final orders by ordinary mail is not authorized.

Under Sec. 9 of Rule 13, the modes of service of judgments, final orders or resolutions are as follows:

a. By personal service;b. By registered mailc. By publication, at the expense of the prevailing party, only if the defending party was summoned by publication and

has failed to appear in the action.

VALID JUDGMENT

One requisite of a valid judgment is that it must be in writing. If a judgment is not in writing, as when it is merely dictated in open court, there can be no way it could be served on the parties through any of the modes authorized by the rules for service of judgments.

Q: In an action quasi in rem the defendant was summoned by publication. He filed his answer in due time and went to trial. The trial court rendered a judgment. May this judgment be served upon the defendant by publication?

No, because although he was summoned by publication, he appeared in the action by filing his answer and, then, going to trial

What is the rule on priorities of service and filing of pleadings and other papers?

The rule is that whenever practicable, the service and the filing of pleadings and other papers shall be done personally. Except with respect to papers emanating from the court, a resort to other modes must be accompanied by a written explanation why the service or filing was not done personally. A violation of this rule may be cause to consider the paper as not filed.

The rule on priorities of service as stated above is mandatory. The rule gives the discretion to consider a pleading or paper as not filed if the other modes of service of filing were resorted to and no writtern explanation was made as to why personal service was not done.

Q: What is the reason for priority of service and filing of pleadings and other papers?

The reason are:

a. To expedite action or resolution on a pleading, motion, or other paper; b. To do away with the practice of some lawyers who, wanting to appear clever, resort to less than ethical practice,

such as serving or filing pleadings by mail to catch opposing counsel off-guard, thereby leaving him with little or no time to prepare his responsive pleading or opposition.

Q: When is a service complete? (What is the rule regarding completeness of service?)

If by personal service, it is complete upon actual delivery

If by ordinary mail, it is complete upon expiration of ten (10) days after mailing, unless the court otherwise provides.

If by registered mail, it is complete upon actual receipt by the addressee, or after five (5) days from the date he received the first notice of the postmaster, whichever date is earlier.

If by substituted service, it is complete at the time of the delivery of a copy to the clerk of court.

Q: What is lis pendens? Notice of lis pendens?

“Lis pendens” is a Latin term which literally means “a pending suit or a pending litigation.” A notice of lis pendens is an announcement to the whole world that a particular real property is in litigation, serving as a warning that one who acquires an interest over the said property does so at his own risk, or that he gambles on the result of the litigation over the said property

Q: May a notice of lis pendens be sought as a principal action for relief? (Is there an action for annotation of lis pendens)

There is no such action as one for “annotation of lis pendens.” A notice of lis pendens is not and cannot be sought as principal action for relief. The notice is but a n incident to an action, an extrajudicial one to be sure. It does not affect the merits thereof. it is intended merely to constructively advise, or warn, all people who deal with the property that they so deal with it at their own risk, and whatever rights they may acquire in the property in any voluntary transaction are subject to the results of the action, and may well be inferior and subordinate to those which may be finally determined and laid down therein. As a settled rule, notice of lis pendens may be annotated only where there is an action or proceeding in court which affects title to ro possession of real property.

Q: Suppose the Register of Deeds denies the annotation of the notice of lis pendens on the ground that, in his opinion, the action does not involve title to or possession of the subject property, what is the remedy of such denial?

The remedy against such denial is to appeal the same en consulta to the Commissioner of Land Registration. The resolution of the Commissioner may then be appealed to the Court of Appeals, which has exclusive jurisdiction to decide the same within the period and in the manner provided in RA 5434.

Q: In what action may a party record a notice of lis pendens?

In an action affecting the title or the right of possession of real property, the plaintiff and the defendant, when affirmative relief is claimed in his answer, may record in the Office of the Registry of Deeds of the province in which the property is situated a notice of the pendency of the action.

Section 76 of PD 1529 provides that a notice of lis pendens may be recorded in the following cases:

a. In an action to recover possession of real estate;b. In an action to quiet title thereto;c. In an action to remove clouds therefrom;d. In an action for partition; ande. In any other proceedings of any kind in court directly affecting the title to the land or the use or occupation thereof or the

buildings thereon.

The notice of lis pendens is proper in an action to enforce prior agreement for the development of a real property because it involves the use or occupation of real property.

Grounds for cancellation of the notice of lis pendens

a. For the purpose of molesting the adverse partyb. It is not necessary to protect the rights of the party who caused it to be recorded.

A notice of lis pendens is extrajudicial in the sense that it may be recorded in the office of the register of deeds without the approval of the court in which the action is pending. But once recorded, the notice of lis pendens may be cancelled only upon order of the court on any of the grounds mentioned above. Thus, the court cannot order the cancellation of the notice of lis pendens upon an ex parte motion (or without notice to the party who caused the notice to be recorded).

An attorney of record must notify the court of his change of address. The fact that counsel used a different address in a later pleadings does not constitute the notice required for indicating his change of address.

Where a party is represented by more than one counsel of record, service of notice on any of the latter is sufficient.

If a private carrier is availed of by the party, the date of actual receipt by the court of such pleading, and not the date of delivery to the carrier, is deemed to be the date of filing of that pleading.

Every judgment, resolution, order, pleading subsequent to the complaint, written motion, notice, appearance, demand, offer of judgment or similar papers shall be filed with the courts and served upon the parties affected.

If service of pleadings, motions, notices, resolutions, orders and other papers cannot be made by personal service or service by mail, service may be made by delivering the copy to the clerk of court, with proof of failure of both personal service and service by mail.

A judgment or final order served by ordinary mail does not become final and executor since the service is fatally defective.

Personal service of such judgment upon the party, instead of his counsel of record, is not permitted. Where a copy of the decision is served on a person who was neither a clerk nor one in charge of the attorney’s office, such service is invalid and the decision did not thereafter become executory.

Where a copy of the decision was sent to counsel at his address of record but the same was not received because he moved to another address without informing the court thereof, such omission or neglect will not stay the finality of the decision.

If it has been ascertained that a party’s counsel is dead or has permanently left the country and his withdrawn from the case without a substitute counsel having entered his appearance, and the whereabouts of the party represented by him can neither be ascertained nor the fact thereof obtained from the opposing party, and summons in that case had not been served by publication, then the service of the judgment by publication is not authorized and would not be valid. Substituted service cannot be availed of. The logical solution would be to authorize the trial court to effect service of the judgment by publication.

Completeness of Service

For service by registered mail, the completeness thereof is reckoned from the date of actual receipt of the first notice of the postmaster.

Personal service is complete upon actual delivery. Service by ordinary mail is complete upon the expiration of ten (10) days after mailing, unless the court otherwise provides otherwise. Service by registered mail is complete upon actual receipt by the addressee, or after five (5) days from the date he received the first notice of the postmaster, whichever date is earlier.

Proof of Filing

The filing of a pleading or paper shall be proved by its existence in the record of the case. If it is not in the record, but it is claimed to have been filed personally, the filing shall be proved by the written or stamped acknowledgment of its filing by the clerk of court on a copy of the same.

If filed by registered mail, by the registry receipt and by the affidavit of the person who did the mailing, containing a full statement of the day and place of depositing the mail in the post office in a sealed envelope addressed to the court, and with the instructions to the postmaster to return the mail to the sender after ten (10) days if not delivered.

When the service is not made personally, there must be a written explanation therefor, even if such explanation is by its nature acceptable and manifest.

Where no explanation is offered to justify the service of pleadings by other modes, the discretionary power of the court to expunge the pleading becomes mandatory.

The fact that an affidavit of service accompanied the petition is not substantial compliance with the requirement of proof of service. An affidavit of service is required merely as proof that the service has been made to the other parties in the case. It does not, however, explain why alternative modes of service other that personal service were resorted to.

Proof of personal service shall consist of:

a. A written admission of the party served; orb. The official return to server; orc. The affidavit of the party serving, containing a full statement of the date, place and manner of service.

Proof of service by ordinary mail shall consist of an affidavit of the person mailing of the facts showing compliance with section 7 of this rule.

Proof of service by registered mail shall consist of an affidavit and the registry receipt issued by the mailing office. The registry return card shall be field immediately upon its receipt by the sender, or in lieu of thereof the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee.

A notice of lis pendens may be recorded at the instance of the interested party at any time during the pendency of the action and not necessarily at the time of the filing of the complaint or the answer of the party concerned.

The party who had the notice annotated and who won the litigation over the property has the better right as against one who bought it with such annotations.

Lien vs. lis pendens

A lien is an existing burden or charge on the property, while a notice of lis pendens I sonly a warning that a claim or possible charge on the property is pending determination by the court.

A notice of lis pendens is proper only where there is an action or proceeding in court which affects the title to or possession of real property.

Lis pendens is proper in proceedings to declare an absolute deed of mortgage, or to redeem form a foreclosure sale, or to establish a trust, or suits for the settlement and adjustment of partnership interests in real property.

Where the complaint merely ask for the payment of construction services and material, with damages, the annotation of a lis pendens on the land is not proper. It is only a personal action for collection, without any averment of any enforceable right, interest or lien upon the subject property.

RULE 14 SUMMONS

Q: What is summons?

It is a writ addressed to the defendant, directing him to answer within the time fixed by the rules the complaint filed against him by the plaintiff, with a notice that unless he so answers, plaintiff will take the judgment by default and may be granted the relief applied for.

Q: Is summons required for counter claim?

No, summons is not required for counterclaims, whether compulsory or permissive

Since summons is not required for permissive counterclaim, the plaintiff as defending party may be declare in default I fhe fails to answer the permissive counterclaim within 10 days from service upon him of such permissive counterclaim.

Also summons is not required for complaint for intervention.

Q: When may an alias summons be issued?

An alias summons may be issued by the Clerk of Court upon demand by the plaintiff –

a. If the summons has been lost;

b. If the summons is returned without being served on any or all of the defendants.

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

The trial court may acquire jurisdiction over the person of the defendant in one of the following ways:

a. By a valid service of summons upon him;b. By defendant’s voluntary appearance in the action

Although service of summons upon the defendant is defective, the court still acquires jurisdiction over his person if he voluntarily appears in the action – as when he files his answer or a motion for extension of time to file answer.

In an action for recovery of possession of real property, summons was sent to the defendant by registered mail. The defendant received the summons, together with a copy of the complaint, on March 1 2002. On March 14, 2002, he filed his answer. Did the court acquire jurisdiction over the person of the defendant?

Yes, not by service of summons because service of summons by registered mail is not authorized by the rules, but by his voluntary appearance in the action.

In the above example, the defendant cannot be declared in default if he does not file his answer within 15 days from March 1, 2002 because the service of summons upon him is fatally defective.

Q: What are the modes of service of summons?

The following:

a. Service in person to the defendantBy the handing a copy of the summons to the defendant in person or, if he refuses to receive and sign for it, by tendering it to him

b. Substituted serviceBy leaving a copy of the summons at the defendant’s residence with some person of suitable age and discretion then residing therein, or by leaving a copy of the summons at defendant’s office or regular place of business with some competent person in charge thereof. But substituted service may be resorted to only if summons cannot be served in person to the defendant within a reasonable time

c. Service by publication

Q: How may substituted service of summons be effected?

Substituted service of summons may be effected –

a. By leaving a copy of the summons at the defendant’s residence with some person of suitable age and discretion then residing therein,

b. By leaving a copy of the summons at defendant’s office or place of business with some competent person in charge thereof.

But substituted service is proper if for justifiable causes, summons cannot be serve on the defendant in person within a reasonable time.

The impossibility of service to the defendant in person must be indicated in the sheriff’s return or proof of service, otherwise substituted service is void.

Q: in what instances may service of summons by publication be made?

In the following instances, service of summons by publication may be made but only with leave of court:

a. Where the identity of the defendant is unknownb. Where the whereabouts of the defendant is unknownc. Where the defendant does not reside and is not found in the Philippines but the suit can properly be maintained against

him in the Philippines, it being in rem or quasi in rem; andd. Where the defendant resides in the Philippines but is temporarily out of the country.

A return of summons which shows that no effort was actually exerted and no positive step taken by the process server to locate and serve the summons personally on the defendants is an invalid substituted service of summons.

Only where the service of summons cannot be made in person on the defendant that substituted service may be resorted to. The proof of service of summons or process server’s return must:

a. Indicate the impossibility of service of summons in person on the defendant within a reasonable time;b. Specify the efforts exerted to locate the defendant;c. State that the summons was served upon a person of sufficient age and discretion who is residing in the address, or who

is in charge of the office or regular place of business of the defendant.

The failure to comply faithfully, strictly and fully with all the foregoing requirement renders the substituted service of summons ineffective.

EXTRATERRITORIAL SERVICE OF SUMMONS

Extraterritorial service of summons or summons by publication applies only when the action is in rem or quasi in rem.

An action in rem is an action against the thing itself, instead of against the defendant person. In action quasi in rem, an individual I named as defendant, but the purpose of the action is to subject that individual’s interest in a piece of property to the obligation or loan burdening it.

NON RESIDENT DEFENDANT

A non resident defendant who is not found in the Philippines, summons upon her should have been effected outside of the Philippines by:

a. By personal service;b. By publication in a newspaper of general circulation in such places and for such time as the court may order, in

which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant; or

c. In any other manner the court may deem sufficient

The foregoing are the modes of extraterritorial service of summons, and they may be effected only with prior leave of court.

Instances when a non-resident defendant who is not found in the Philippines be sued in the Philippines, and, therefore, the summons may be effected upon him by extraterritorial service.

a. When the action affects the personal status of the plaintiffb. When the action relates to, or the subject of which is, property within the Philippines, in which the defendant has

or claims a lien or interest, actual or contingentc. When the relief demanded in such action consists, wholly or in part, in excluding the defendant from any

interest in property located in the Philippines; andd. When the defendant’s property has been attached within the Philippines

How may summons be served on a resident defendant who is temporarily out of the country?

He may be served with summons as follows:

a. By substituted service;b. By personal service outside of the country, with leave of courtc. By publication, with leave of courtd. Any other manner the court may deem sufficient

Q: if the defendant is a resident defendant or a non-resident defendant who is in the Philippines, may summons be served upon him by registered mail?

No, because service by registered mail upon a resident defendant or upon a non-resident defendant who is in the Philippines is not one of the authorized modes of service of summons.

Summons by registered mail is valid only if served extrajudicially upon a non-resident defendant who is not found in the Philippines, or upon a non-resident defendant who is not found in the Philippines, or upon a resident defendant who is temporarily out of the country, provided the court deems such service of summons sufficient.

Q: Who may serve the summons?

The summons may be served:

A. By the sheriff, his deputy, other proper court officer, or for justifiable reasons by any suitable person authorized by the court issuing summons

B. By the officer having management of the jail or institution, if the defendant is a prisoner confined therein, in which case such officer is deemed deputized as a special sheriff for said purpose.

Q: To whom shall service of summons be made?

GR: Service of summons shall be made on the defendant

XPN: But if the defendant is

a. An entity without juridical personality – it may be effected upon all the defendants by serving the summons upon any one of them, or upon the person in charge of the office or place of business maintained in such name

b. A minor or incompetent – service shall be made upon him personally and on his legal guardian if he has one, or if non, upon his guardian ad litem

c. The Republic of the Philippines – service may be effected on the Solicitor Generald. A province, city or municipality or similar public corporations – service may be effected on its executive head or on

such other officers as the law or the court may direct

The estate of a deceased person may only be summoned through the executor or administrator of his estate for it is the executor or administrator who may bring or defend actions for the recovery or protection of the property or rights of the deceased.

FOREIGN PRIVATE CORPORATION

When the defendant is a foreign private juridical entity which has transacted business in the Philippines, service of summons may be made:

a. On its resident agent designated in accordance with law for that purpose; or b. If there is no such agent, on the government official designated by law to that effect; orc. On any of its officers or agents within the Philippines

Q: suppose the foreign private juridical entity has designated a resident agent to receive summons, may the summons be served on, say, the government official designated by law to received summons?

No. If the foreign private juridical entity has designated a resident agent to receive summons, such designation is exclusive, and service of summons is without force and gives the court no jurisdiction unless such service is made upon him.

If the foreign juridical entity has not designated a resident agent, service of summons may be made on the government official designated by law to that effect. These government officials are:

a. The insurance Commissioner, in the case of a foreign insurance company;b. The superintendent of Banks, in the case of foreign banking corporation;c. The Securities and Exchange Commission, in the case of other foreign corporation duly licensed to do business in

the Philippines

Whenever service of summons is so made, the government office or official served shall transmit by mail a copy of the summons or other legal process to the foreign corporation at its home or principal office. The sending of such copy is a necessary part of the service.

Q: if the defendant is a domestic private juridical entity (such as a corporation or a partnership), on whom may service of summons be made?

Service of summons may be made on its president, managing partner, general manager, corporate secretary, treasurer, or in house counsel.

Q: What is the doctrine of substantial compliance?

The doctrine of substantial compliance means that although the service of summons was made on a person not enumerated in Sec.11 of Rule 14, if it appears that the summons and the complaint were in fact received by the corporation, there is substantial compliance with the rule as its purpose has been attained.

The requisites for the application of the doctrine of substantial compliance are:

a. There must be actual receipt of the summons by the person served, i.e., transferring possession of the copy of the summons from the sheriff to the person served;

b. The person served must sign a receipt or the sheriff’s returnc. There must be actual receipt of the summons by the corporation through the person on whom the summons was

actually received

Note: But in Mason vs. CA GR 144662, Oct 13, 2003, the Supreme Court overturned this doctrine of substantial compliance. Therefore, summons upon a domestic private juridical entity (such as corporation or partnership) may be served only upon its president, managing partner, general manager, corporate secretary, treasurer, or in-house counsel. This enumeration is restricted, limited and exclusive, following the rule in statutory construction that expression unios est exclusion alterius.