Civil Procedure by Dean Inigo

Distinguish Remedial Law from Substantive Law: Substantive law branch of law where rights are defined, created, and regulated Remedial Law prescribes the manner or method of enforcing rights or obtaining redress for their violation. Also called procedural law or adjective law. Aspects: Public aspect affords remedy in favor of the state against the individual or in favor of the individual against the state example criminal procedure- state vs individual; rule on habeas corpus individual vs state Private aspect- affords remedy in favor of individual against another individual example civil proc History: American origin 1st known ancestor Act 190 known as Code of Civil Procedure enacted on 8/1/1901 by the US and Phil Commission, until 1940 7/1/40- SC enacted the Rules of Court the old rules of court for 24 yrs until 1/1/64 1/1/64 SC enacted the Revised Rules of Court for 33 yrs until 7/1/97 7/1/97- SC enacted the New Rules on Civil Procedure Rule-making power of the SC: Authority from the 1935, 1973, 1987 Constitution Under the present law: art. 8 sec 5 par 5 SC shall have the power to promulgate rules on pleading, practice, and procedure. Limitations: The rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases 2. Uniform for all courts of the same grade 3. The rules shall not diminish, increase, or modify substantive rights 1. Substantive rights are created by substantive law, the rules should not amend such but could only interpret substantive laws RULE 1 General Provisions Applicable to all courts except as otherwise provided by the SC Example: summary rules on procedure is applicable to some cases in the MTC The rules shall not apply to election cases, cadastral, land registration, naturalization, insolvency proceedings Civil action- is one by which a party sues another for the enforcement or protection of a right or the prevention or redress of a wrong. It may either be ordinary or special both are

governed by the rules of ordinary civil actions subject to specific rules prescribed for special civil action. 1. 2. KIND OF CIVIL ACTIONS: Ordinary civil action governed by ordinary rules Special civil actions- governed by rules 62 to 71- interpleader, declaratory relief, certiorari, prohibition, mandamus, quo warranto, expropriation, foreclosure of mortgage, partition, forcible entry, unlawful detainer, and contempt, review of final decisions or resolutions of the COMELEC and COA-under rule 64 but governed by rule 65 on certiorari What makes an action special is because of the fact that there are specific rules prescribed for them which are not found in other rules but it is still governed by the rules on ordinary civil actions subject to the specific rules. In case of conflict the specific provision prevails but in case of silence, the ordinary rules apply. Example: Umberto vs CA petition for certiorari the petition was withdrawn before the respondent could answer the petition, then changed his mind refilled. Rule 65 is silent on the withdrawal of petition either with or without prejudice. SC applied the ordinary rules by analogy, certiorari is similar to appeal although it is not really an appeal. Under rule 50 if you withdraw the appeal, the judgment appealed from will now become final and executory, you cannot change anymore. A resolution granting the withdrawal of petition for certiorari is with prejudice and petitioner is precluded from bringing a second action based on the same subject matter by applying by analogy the rule on withdrawal of appeal.

OTHER CLASSIFICATIONS OF CIVIL ACTIONS: 1. Real Action an action where the issue or the subject is title, ownership, possession or interest over real property like accion publiciana, forcible entry, unlawful detainer, foreclosure of mortgage of real property, partition of real property -real action is founded on privity of real estate and seeks to recover a specific real property or its possession action affecting title to real property, partition, condemnation 2. Personal Action founded on privity of contract or recovery of personal property like an action for damages, action for a sum of money, action for quasi-delict -personal or substituted service of summons is necessary and not extraterritorial service -enforcement of contract, recovery of damages for the commission of an injury to the person or property, action for specific performance Mixed action where there is both real and personal example action for recovery of land with damages. If the damage is incidental it is more of real action.

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Local Action action can only be instituted in a particular place example real actions which are automatically local actions they can only be instituted in the place where the property is situated. 5. Transitory Action one which follows the party wherever he may reside. 6. Action In rem -is an action against the thing itself

-if the object of the suit is to bar all who might be minded to make an objection against the right sought to be established and if any in the whole world has the right to be heard on the strength of the alleging facts which shows an inconsistent interest, the proceeding is in rem -probate of a will, land registration proceedings, annulment of marriage-action affecting civil status, insolvency -land registration proceeding is in rem personal notice to the owner is not necessary to vest jurisdiction to the court because proper publication is sufficient -in the annulment of marriage, the res is the relation between the parties on their marriage(in rem/personal action) Personal and real determines venue In rem in personam- the binding effect of a decision the court may render over a party -involves personal status or property -non-resident defendant, in action in rem and quasi in rem, jurisdiction over his person is not essential, summons upon the defendant by publication may be served merely to satisfy the requirement of due process 7. In personam -is an action against a person on the basis of his personal liability -if the object of the suit is to establish a claim against some particular person, with a judgment which will bind his body or bar some individual claim or objection so that only certain person are entitled to be heard in defense, it is in personam Action for reconveyance and cancellation of TCT Ching v CA (in personam/real action} -action for injunction to restrain defendants from enforcing contracts (personal action/in personam -action for resolution of a contract of sale of real property -action to review the decision of DPWH Sec -action to recover title/possession of real property ching v ca (real action/in personam)unlawful detainer, accion publiciana, forcible entry- it binds only the parties -real action may at the same time be an action in personam not necessarily action in rem Example: an action to recover a parcel of land is real action but it is also in personam because it binds a particular person only although it concerns the right to tangible thing. Quasi in rem -is a proceeding which are not strictly and purely in rem, but are brought against the defendant personally, although the real object is to deal with particular property, or subject it to the discharge of claim asserted -a suit which has the purpose of selling or dispose the property of the defendant either it be in foreclosure of mortgage or when a property is attached -action to exclude non-resident defendant from any right or interest in the Phils -quieting of title -Against a non-resident who is not personally served and who does not appear, the relief must be confined to the res and the court cannot lawfully render personal judgment against him -quasi in rem is actually in personam it is directed only against a particular individual but the purpose of the proceeding is to subject his property to the obligation of lien burdening it. Private or Civil action lawsuit brought by a private citizen for the protection of a private right

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10. Public Action taken by the government against one who usurps governmental prerogatives, or when an entity misuses its franchising or corporate powers. DISTINCTION BETWEEN ACTION AND SPECIAL PROCEEDING: Action a. a persons right is alleged to exist and have been violated b. there is specific plaintiff and defendant c. formal rules and formal standard court procedures govern both civil and criminal actions Special Proceedinga. a right is alleged to exist, there may be no violation since what is sought is the establishment of a right, status or fact. b. There are no specific contending parties, except those persons who seek to establish their rights or status c. Specific rules of procedures for each special proceeding are followed. Procedures are not as formal as those observed n civil or criminal lawsuits. -special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact. -governed by rule 72 to 109 settlement of estate of deceased persons, adoption, change of name, correction of entries in the civil registry, guardianship, escheat, etc DISTINGUISH A CIVIL ACTION FROM A SPECIAL PROCEEDING a civil action is an ordinary demand while a spec pro is a remedy by which a party seeks to establish a status, a right, or a particular fact 2. a civil action is governed by pleadings but in spec pro there are no pleadings only petition initiated by the petitioner but the rules on pleading generally does not apply. It can be opposed but there is no answer or counterclaim 3. a civil action is generally adversarial. There is definite plaintiff or petitioner versus a definite defendant. In spec pro, there is a party petitioner but there is no definite party defendant or respondent because it is directed against the whole world. 4. The period to appeal in civil action is 15 days with notice of appeal while in spec pro the period to appeal is 30 days and aside from notice of appeal, the law requires the filing of a record on appeal. 1. COMMENCEMENT OF ACTION: sec. 5 A civil action is commenced by filing of the complaint and the payment of correct docket fee LIBERAL CONSTRUCTION OF THE RULE sec 6 -inorder to promote their objective of securing a just, speedy, and inexpensive disposition of every action -Remedial law should be liberally construed inorder that the litigant may have ample opportunity to pursue their respective claims so that possible denial of substantial justice due to legal technicalities may be avoided

-Procedural rules like all rules are required to be followed except only where the most persuasive of reasons, they may be relaxed to relieve a litigant of an injustice not commensurate with the degree of his thoughtlessness in not complying with the procedure prescribed. -A litigation is not a game of technicalities but this does not mean that the Rules of Court may be ignored at will and at random to the prejudice of the orderly presentation and assessment of the issues and their just resolution. -motion for new trial is deficient in form because no affidavit of merit was attached as required to support the claim of honest mistake and excusable neglect When may lapses in the literal observance of the Rules of court be excused? When they do not involve public policy When they arose from an honest mistake or unforeseen accident When they do not prejudice the adverse party When they do not deprive the court of its authority RULE 2- CAUSE OF ACTION -is the act or omission by which a party violates a right of another 1. 2. 3. 4. ELEMENTS: A right pertaining to the plaintiff A correlative obligation on the defendant Violation of plaintiffs right Damaged suffered by the plaintiff Damage without injury does not create any cause of action

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Right of action is the right of the plaintiff to bring an action and prosecute an action ELEMENTS: 1. The plaintiff must have a cause of action 2. The plaintiff must have performed all conditions precedent to the filing of the action There can be no right of action when there has been a wrong, a violation of a legal right. There can be no right of action unless there is a cause of action. DISTINCTIONS BETWEEN CAUSE OF ACTION AND RIGHT OF ACTION: A cause of action is the delict or wrong committed by the defendant while a right of action is the right of the plaintiff to institute the action 2. A cause of action is created by substantive law while right of action is regulated by procedural law 3. A right of action may be removed or taken away by the running of the statute of limitations, prescription, estoppel which do not affect the cause of action Example debtor borrows money and he did not pay- cause of action, after 10 yrs the contract prescribed and you cannot recover anything anymore 1.

Sometimes we say that the action has prescribed, what has prescribed is the right of action and not the cause of action. Sec 3- one suit for a single cause of action Sec. 4- Splitting a cause of action is the practice of dividing one cause of action into different parts LITIS PENDENCIA -the filing of one is available as a ground for the dismissal of the others rule 16 there is another action between the same parties for the same cause of action -Requisites of LITIS PENDENCIA a. identity of parties or at least representing same interest in both actions b. the identity of rights asserted and relief prayed for, relief founded on the same facts c. the identity of the 2 cases such as that judgment in one would amount to res judicata in the other RES JUDICATA -a judgment upon the merits in any one is a ground for the dismissal of the others-barred by prior judgment Requisites: The former judgment or order must be final It must be a judgment on the merits that is, it was rendered after a consideration of the evidence or stipulations submitted by the parties at the trial of the case It must have been rendered by a court having jurisdiction over the subject matter and the parties There must be, between the first and the second actions, identity of parties, of subject matter and of cause of action. Philosophy or reason against splitting a single cause of action: To prevent repeated litigations between same parties with regard to the same subject matter To protect the defendant from unnecessary vexations and To avoid costs incident to numerous suits. How to determine singleness of a cause of action -it is determined by the singleness of the delict or wrong committed by the defendant regardless of the various remedies that the law will grant the injured party. Example: violation or a breach of contract could give rise to civil action for specific performance or for rescission of contract Danao v CA SC ruled that a mortgage creditor may institute against a mortgage debtor either a personal action to collect the debt or a real action to foreclose mortgage property Recto Law on Sales the remedies of an unpaid seller of personal properties are three but the choice of one automatically bars resort to the other In a contract:

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General rule there is only 1 cause of action, it may be violated only once even if it contains several stipulations Exceptions: 1. A contract which provides for several stipulations to be performed at different times gives rise to as many causes of action as there are violations. Example: one promissory payable in installments at different times. Every installment is one cause of action 2. All obligations on installment which have matured at the time of the suit must be interpreted as one cause of action in one complaint and those not so included will be barred 3. Even when there are several stipulations in a continuing contract, when the failure to comply with one of several stipulations constitutes a total breach. Example: 1st installment fell due but the debtor repudiates the entire note. A case must be filed for the entire amount of loan whether due or not. Sec 5 Joinder of causes of action A party may in one pleading assert, in the alternative or otherwise, as many causes of action as he may have against the opposing party, subject to the following conditions: The party joining the causes of action shall comply with the rules on the joinder of parties -the condition imposed is there must be a common question of fact or law involved in their claims -example 2 or more passengers riding on the same bus meeting an accident. Each passenger has a cause of action but they can be joined in one complaint- thus there is joinder of parties under rule 3 sec 6 and joinder of causes of action under rule 2 sec 5 The joinder shall not include special civil action or actions governed by special rules -an ordinary civil action cannot be joined with special civil action Where the causes of action are between the same parties but pertain to different venues or jurisdictions, the joinder may be allowed in the RTC provided one of the causes of action falls within the jurisdiction of said court and the venue lies therein -example O encroached in 2 parcels of land 1 parcel is P20T the other is P1M triable by MTC and RTC can be joined in the RTC -example O encroached in Iloilo with assessed value of P20T and kalibo with assessed value of P1M the venue is in RTC Kalibo -example O encroached one month ago on one parcel and 2 yrs ago on another parcel forcible entry on the 1st case and accion publiciana on the 2nd- they cannot be joined Where the claims In all the causes of action are principally for recovery of money, the aggregate amount shall be the test of jurisdiction -TOTALITY RULE 1 case for only 1 cause of action 1 case for more than one causes of action More than 1 case for one cause of action not allowed 1. TWO TYPES OF JOINDER: Alternative joinder- when the cause of action is either one or the other where relief is from either one.

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Example: importer of goods- delivered in damaged condition, the owner can file 2 possible causes of action one against the stevedoring operator under the theory of depositary or an action against the carrier under the code of commerce Example: a passenger riding in a public utility vehicle, puv collided with another vehicle the passenger is not sure as to who is at fault- the cause of action is culpa aquiliana against the driver of another vehicle but if the driver of the puv is at fault culpa contractual. The passenger may file one complaint incorporating the two causes of action 2. Cumulative joinder- when seeking relief for all example a creditor files a case to collect 3 unpaid promissory notes he is not claiming from either but from all pn. Rule 3 sec 13 alternative defendants- plaintiff is uncertain against who of several persons he is entitled to relief, he may join all of them as defendants in the alternative Rule 8 sec 2 alternative causes of action a party sets two or more statements of claim or defense alternatively or hypothetically Rule 2 sec 5 joinder of causes of action Rule 3 sec 6 joinder of parties Rule 2 sec 6 misjoinder of causes of action is not a ground for dismissal of an action it may be severed on motion or motu proprio and proceeded with separately Rule 3 sec 11 misjoinder of parties same Remedy procedure or type of action which a person may avail of in the course of his suit Relief redress, protection, award or coercive measure which a person asks the court to grant as a consequence of the wrong committed by the other person RULE 3 PARTIES TO CIVIL ACTION 1. 2. 3. Who may be parties: Natural Juridical Entities authorized by law Example: -entity without juridical personality they may be sued under the name by which they are generally or commonly known -Labor union

Parties to a civil action: 1. Real party in interest- one who stands to be benefitted or injured by the judgment in a suit Rule 3 sec 2 unless otherwise authorized by law or the rules, every action must be prosecuted or defended in the name of the real party in interest -the principal must be named and not the atty in fact is the real party in interestX, represented by Y 2. Permissive party 3. Representative - sec

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Indispensable party Necessary party In a breach of contract, the real party in interest are the parties to the contract except when there is stipulation in the contract favorable to a third person stipulation pour autrui Sec. 3 Representatives as parties- the beneficiary shall be included in the title of the case and shall be deemed to be the RPI. An agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without joining the principal except when the contract involves things belonging to the principal. Example: trustee, guardian, executor, or administrator It Is a well-settled rule that an estate can sue or be sued thru an executor or administrator in his representative capacity Sec. 4 spouses may sue or be sued jointly except as provided by law. Altho the defect is not fatal but merely formal- amendment of the complaint is needed Art. 3 of the family code in case of exclusive property of a spouse Sec. 5 minor or incompetent person may sue or be sued with the assistance of father, mother, guardian, or guardian ad litem

Sec. 6 Permissive joinder of parties all persons in whom or against whom any right to relief in respect to or arising out of the same transaction or series of transactions is alleged to exist whether jointly or severally may join as plaintiffs or defendants Conditions: 1. There is a right to relief in favor of or against the parties joined arising out of the same transaction or series of transactions 2. There is a common question of fact or law common to all the parties joined -common evidence, issues, witnesses -it is not mandatory as it is permissive as allowed Joinder of parties is either permissive (sec 6 rule 3) or compulsory (sec 7, rule 6) Advantages: Promote convenience in trial Prevent multiplicity of suits Expedite the termination of litigation Attain economy of procedure joinder of causes of action without joinder of parties = yes/ loan on installment-1 defendant joinder of parties at all times with joinder of causes of action joinder of parties without joinder of causes of action= no sec 7 compulsory joinder of indispensable parties-without whom no final determination can be had sec 8 necessary party-who ought to be joined if complete relief is to be accorded

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RULE 141 LEGAL FEES SECTION 1. Payment of fees. Upon the filing of the pleading or other application which initiates an action or proceeding, the fees prescribed therefor shall be paid in full. Sec. 7. Clerks of Regional Trial Courts . a) For filing an action or a permissive OR COMPULSORY counter-claim, CROSS-CLAIM, or money claim against an estate not based on judgment, or for filing a third-party, fourth-party, etc. complaint, or a complaint-in-intervention, if the total sum claimed, INCLUSIVE OF INTERESTS, PENALTIES, SURCHARGES, DAMAGES OF WHATEVER KIND, AND ATTORNEYS FEES, LITIGATION EXPENSES AND COSTS and/or in cases involving property, the FAIR MARKET value of the REAL property in litigation STATED IN THE CURRENT TAX DECLARATION OR CURRENT ZONAL VALUATION OF THE BUREAU OF INTERNAL REVENUE, WHICHEVER IS HIGHER, OR IF THERE IS NONE, THE STATED VALUE OF THE PROPERTY IN LITIGATION OR THE VALUE OF THE PERSONAL PROPERTY IN LITIGATION AS ALLEGED BY THE CLAIMANT, Sec. 19 Rule 141. Indigent litigants exempt from payment of legal fees. - Indigent litigants (a) whose gross income and that of their immediate family do not exceed an amount double the monthly minimum wage of an employee and (b) who do not own real property with A FAIR MARKET VALUE AS STATED IN THE CURRENT TAX DECLARATION of more than THREE hundred thousand (P300,000.00) pesos shall be exempt from the payment of legal fees. The legal fees shall be a lien on any judgment rendered in the case favorable to the indigent litigant unless the court otherwise provides. To be entitled to the exemption herein provided, the litigant shall execute an affidavit that he and his immediate family do not earn a gross income abovementioned, nor they own any real property with the fair value aforementioned, supported by an affidavit of a disinterested person attesting to the truth of the litigants affidavit. The current tax declaration, if any, shall be attached to the litigants affidavit. Any falsity in the affidavit of litigant or disinterested person shall be sufficient cause to dismiss the complaint or action or to strike out the pleading of that party, without prejudice to whatever criminal liability may have been incurred. (16a) Sec. 22. Government exempt. -- The Republic of the Philippines, its agencies and instrumentalities are exempt from paying the legal fees provided in the rule. Local governments and government-owned or controlled corporations with or without independent charters are not exempt from paying such fees. However, all court actions, criminal or civil, instituted at the instance of the provincial, city or municipal treasurer or assessor under Sec. 280 of the Local Government Code of 1991 shall be exempt from the payment of court and sheriffs fees. (page 211 of the Manual for Clerks of Court)

RULE 35 Summary judgment is a method for promptly disposing a civil action when there is no genuine issue as to any material fact. Distinctions between summary judgment Rule 35 and judgment on the pleadings Rule 34 1. IssueSummary judgment no genuine issue to be tried, there are denials but not genuine Judgment on the pleadings-no issue at all to be tried, no issue because everything is admitted 2. Basis Summary judgment only pleadings, complaint, answer Judgment on the pleadings pleadings, affidavit, deposition, admissions 3. Who can invoke Summary judgment only invoked by the plaintiff/claimant because answer of defendant fails to tender and issue Judgment on the pleading- available to both claimant and defendant Motion prays for relief other than through a pleading. A judgment is prayed in a pleading not in a motion. Gen. rule: a motion can not pray for immediate judgment Exception: rule 33 demurrer to evidence, rule 34 judgment on the pleading, rule 35 summary judgment RULE 36 Judgments, final orders and entry 3 stages of civil action: 1. Formulation of issues stage-complaint, answer, issues are joined, pre-trial rule 18 2. Proving of allegations stage trial rule 30 3. Judgment stage Essential requisites of a valid judgment: Jurisdiction over the subject matter Jurisdiction over the person of the defendant Jurisdiction over the issues Validly constituted court Lawful hearings Formal Requisites: In writing Directly prepared by the judge State clearly and distinctly the facts and the law in which it is based Signed by the judge and filed with the clerk of court Memorandum decision- a decision which adopts the decision or resolution contained in the decision or resolution appealed from

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Sin per juicio judgment contains only dispositive portion and reserves the making of findings of fact and conclusion of law in the subsequent judgment Conditional judgment subject to performance of condition precedent and is not final until the condition is performed Incomplete judgment is a judgment which leaves certain matters to be settled in subsequent proceedings. Judgment nun pro tunc- it is a judgment now for then. Its function is to record some act of the court done in the former time which was not carried into the record and the power to make such entries is restricted to placing record which has actually been taken to make the record to speak the truth. Judgment upon a compromise- judgment which the law encourages because it is a judgment with the consent of the parties for purpose of effecting a settlement; the compromise agreement becomes the judgment as long as it is not contrary to law. Compromise is a mutual concession to avoid litigation Judgment upon confession- admission or confession of liability REMEDIES OF LOSING PARTY: 1. Motion for reconsideration Period: within 15 days from receipt of notice of judgment Grounds: damages is excessive, evidence is insufficient to justify judgment, decision or final order is contrary to law sec. 1 rule 37 No second motion for reconsideration 2. Motion for new trial Period: within 15 days from receipt of notice of judgment Grounds: a)fraud(extrinsic fraud), accident, mistake, excusable negligence which could not have been prevented by ordinary prudence b) newly discovered evidence which could not have discovered or produced during the trial even with reasonable diligence Requirement: supported by affidavit of merit-stating the circumstances constituting the fraud and mistake and the meritorious cause, action, or defense(specifics) -in writing, stating grounds, a written notice served by movant to adverse party Pro forma motion is one filed for the sake of form it does not specifically point out findings or conclusions thus it shall not toll the running of the reglementary period of appeal. Effect: granting- original judgment shall be vacated and the action shall stand trial de novo Recorded evidence-material and competent to establish issues shall stand

Second motion for new trial-sec. 5 rule 37-it is considered an omnibus motion-include all grounds then available, grounds not existing when the 1st motion was made Partial new trail or reconsideration sec. 7 rule 37 only if severable without interfering with the judgment upon the rest 3. PETITION FOR RELIEF FROM JUDGMENT-sec. 1 rule 38 Period: 60 days after party learns of decision but not more than 6 months from the time of its entry Grounds: FAME Requirement: verified petition, affidavit of merits SPECIAL CIVIL ACTION OF CERTIORARI Period: 60 days from receipt of judgment Grounds: a) without jurisdiction b) in excess of jurisdiction c) grave abuse of discretion -resorted to where there is no other speedy adequate applicable remedy in the ordinary course of law -after judgment is already final and executory RULE 38 RELIEF FROM JUDGMENT, FINAL ORDERS OR OTHER PROCEEDINGS When is judgment becomes final Section 1 Rule 36. Rendition of judgments and final orders. A judgment or final order determining the merits of the case shall be in writing personally and directly prepared by the judge, stating clearly and distinctly the facts and the law on which it is based, signed by him, and filed with the clerk of the court. Sec. 2 Rule 36. Entry of judgments and final orders. If no appeal or motion for new trial or reconsideration is filed within the time provided in these Rules, the judgment or final order shall forthwith be entered by the clerk in the book of entries of judgments. The date of finality of the judgment or final order shall be deemed to be the date of its entry. The record shall contain the dispositive part of the judgment or final order and shall be signed by the clerk, with a certificate that such judgment or final order has become final and executory. Effects of finality: 1. The prevailing party is entitled to have execution issue as a matter of right. 2. The court rendering judgment automatically loses jurisdiction over the case and therefore the court has lost power to change or alter the judgment 3. Res judicata immediately applies Separate trials-sec. 2 rule 31 the court may order separate trial of any claim, cross-claim, or counter-claim- in furtherance of convenience and avoid prejudice Effect: filing of separate motion for new trial sec. 8 rule 37 -the court may enter a judgment of final order as to the rest or stay enforcement of such judgment until after the new trial.

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Separate judgment-sec. 5 rule 36-when more than one claim for relief is presented in an action -upon determination of issues material to a particular claim and all counterclaims arising out of the transaction subject matter of the claim -the court may render separate judgment disposing such claim -the action shall proceed as to the remaining claims Discretionary execution- sec. 2 rule 39-on motion by the prevailing party -notice to the adverse party -the court has jurisdiction over the case and is in possession of either orig record or record on appeal -even before the expiration of period to appeal DEPOSITIONS: Prohibitions in deposition taking: 1. You cannot examine the deponent on any privileged matter 2. Deponent can only be examined on any matter that is relevant 3. Leave of court is not necessary when it is related to pending case 1. 2. Proceedings can deposition be used: Trial of the case In supporting or opposing the motion -the deposition can be used against the party who was present -notice to the adverse party is required -adverse party has the right to attend the deposition taking and may also ask question Letters rogatory - an instrument whereby the foreign court is informed of the pendency of the case and the name of the foreign witnesses, it is requested to cause their deposition to be taken in due course of law for the furtherance of justice with an offer to take the same if requested by the foreign court. Commission- an instrument issued by a court of justice or other judicial tribunal to authorize the person to take a deposition or do any other act by authority of such court or tribunal. RULE 39 EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS Execution- is the remedy provided by law for the enforcement of judgment -done by filing a motion for execution of judgment by the prevailing party

How can a court issue order when it has already lost jurisdiction over the case? One of the effects of finality of judgment is that the court loses jurisdiction over the case, it means that the court can no longer change the judgment but the court can act on that case for the purpose of enforcing judgment. 1. Nature of execution: Compulsory execution it is execution as a matter of right Sec. 1 rule 39 a)-on motion -upon a judgment or order that disposes of the action or proceeding -upon the expiration of the period to appeal therefrom if no appeal has been duly perfected b)-if the appeal has been perfected and finally resolved, -the execution may be applied in the court of origin -on motion of the judgment obligee -submitting certified copies of the judgment or final order or orders sought to be enforced and of the entry thereof -with notice to the adverse party c)-on motion in the same case -the appellate court may direct the court of origin to issue the writ of execution -when the interest of justice so requires Interlocutory judgment or order has not yet disposed of the action or proceeding -cannot be the subject matter of execution -EXCEPTION: support pendente lite rule 61 can be moved for execution 2. Discretionary execution under sec. 2 rule 39 or execution pending appeal a) -On motion of the prevailing party -with notice to the adverse party -filed in the trial court while it has jurisdiction over the case -is in the possession of either the original record or the record on appeal -the court may in its discretion order execution of a judgment or final order -even before the expiration of the period to appeal -upon good reasons to be stated in a special order -after due hearing b) Execution of several, separate, or partial judgments sec. 2b rule 39 -same as execution of a judgment or order pending appeal How it is enforced: 1. Execution by motion Sec. 6 rule 39 -a final and executory judgment or order may be executed on motion -within 5 yrs from date of its entry -after the lapse of such time, and before barred by the statute of limitations

-a judgment may be enforced by motion -within 5 yrs from the date of its entry -and thereafter by action -before it is barred by statute of limitations 2. Execution by independent action -after 5 yrs, the judgment becomes dormant without execution -procedure is to file another civil action for revival of judgment -after the lapse of such time, which is 5 yrs, and before it is barred by statute of limitations -art. 1144 civil code, judgment may be enforced only within 10 yrs 3rd party claim or the remedy of terceria -an affidavit made by a 3rd person who claims to be entitled to the property which is in the custody of the sheriff by virtue of a writ of execution or writ of preliminary attachment or an order of replevin -injunction, to annul level, to prevent auction sale Remedies of a 3rd person: 1. Invoke supervisory power of the court which authorized such execution 2. Terceria citing rule sec. 16 3. Any proper action to vindicate his claims to the property Instances where the court may refuse to execute final decision: 1. When there has been a change in the situation of the parties which makes execution inequitable. Example: receivership is a supervening event -inorder for the supervening event doctrine to apply the event must have happened after the finality of the judgment 2. Judgment was novated by subsequent agreement between the parties -the parties can still enter into amicable settlement even after final judgment and their agreement could be different from the judgment. The agreement novated the judgment. Stay of discretionay execution sec. 3 rule 39 -upon approval by the proper court -a sufficient supersedeas bond filed by the party against who it is directed -conditioned upon the performance of the judgment or order Judgments not stayed by appeal sec. 4 rule 39(as a matter of right) -judgments in actions for injunction, receivership, accounting, and support and other judgments as are declared to be immediately executory -unless ordered by the trial court -on appeal, the appellate court in its discretion -may make an order suspending, modifying, restoring, or granting the injunction, receivership, accounting or award of support -summary rules- decision of the MTC in a civil case is appealed to RTC

-immediately executory unless the appellate court will stop the execution Effect of reversal of executed judgment sec. 5 -on motion -trial court may issue such orders of restitution or reparation of damages as equity and justice may warrant Good reasons in discretionary execution: 1. When there is danger of the judgment becoming ineffectual 2. If the action is one for support Posting of a bond is not a good reason Effect of PERFECTION OF APPEAL: sec. 9 rule 41 a) by notice of appeal -deemed perfected as to him upon filing of the notice of appeal in due time -the court loses jurisdiction over the case upon the perfection of the appeals filed in due time and the expiration of the time to appeal of the other parties b) by record on appeal -deemed perfected as to him with respect to the subject matter thereof upon approval of the record of appeal filed in due time -the court loses jurisdiction only over the subject matter upon approval of the records on appeal filed in due time and the expiration of the time to appeal of the other parties -In either case prior to the transmittal of the original record or the record on appeal The court may issue orders(residual powers of the court) -for protection and preservation of rights of the parties which do not involve any matter litigated by the appeal -approve compromises -permit appeals of indigent litigants -order of execution pending appeal sec. 2 rule 39 -allow withdrawal of appeal Execution of several, separate, or partial judgments sec. 2b rule 39 -may be executed under same terms and conditions as execution of judgment or final order pending appeal. Execution pending appeal may be proper for enforcing collection of actual damages but nor for payment of moral or exemplary damages -amount is certain, there are receipts REMEDY OF DEFENDANT to stay the execution pending appeal: Sec. 3 rule 39 stay of discretionary execution -the defendant will ask the court to fix the supersedeas bond to stop the execution pending appeal

-exception: special compelling reasons justifying the execution pending appeal outweigh the supersedeas bond filed by the defendant example: judgment for support Sec. 7 rule 39 execution in case of death of party a) judgment obligee execution upon appln of his executor or adm or successor in interest b) Judgment obligor against exec, adm, suc int recovery of real or personal prop or lien enforcement c) Judgment obligor-after exec is actually levied upon his prop-same may be sold for satisfaction of judgment oblig; officer to account any surplus to exec or adm Sec. 9 rule 39 execution of judgments for money a)-immediate payment on demand -judgment obligor to pay in cash, certified check payable to judgment oblige b) satisfaction by levy if judgment obligor cannot pay all or part of the oblig -the officer shall levy upon the properties of the judgment obligor of every kine and nature not exempt from execution -option of the obligor, if not -the officer shall 1st levy on the personal properties -then real properties Real property, stocks, shares, debts, credits, and other personal property or any interest in either real or personal property may be levied upon in like effect as under a writ of attachment c) garnishment of debts and credits the officer may levy on debts due the judgment obligor and other credits, including bank deposits, financial interest, royalties, commissions, and other personal property not capable of manual delivery in the possession and control of third parties. Levy shall be made by serving notice upon the person owing such debts -or having in his possession or control such credits to which the judgment obligor is entitled. Garnishee shall make a written report to the court within 5 days from the service of the notice of garnishment -the garnished amount in cash or certified bank check issued in the name of judgment obligee shall be delivered directly to the judgment obligee within working 10 days from service of notice on said garnishee Levy-is a prerequisite to the auction sale. Sec. 10 rule 39 execution of judgments for specific act a) conveyance, delivery of deeds, or other specific acts, vesting title -the court may direct the act to be done at the cost of the disobedient party b) sale of real or personal property c)delivery or restitution of real property-within 3 days d)removal of improvements-

sec. 11 rule 39 execution of SPECIAL JUDGMENTS -judgment requires the performance of any act other than those mentioned in the 2 preceding section Two types of judgment: Special-is a judgment which requires the defendant to do an act other than payment of money or delivery of property - can be enforced by contempt if the defendant refuses to comply with the judgment Ordinary-if the judgment orders the defendant to pay money, like colln case or to deliver real or personal property -not a ground for contempt Sec. 13. Property exempt from execution. Except as otherwise expressly provided by law, the following property, and no other, shall be exempt from execution: (a) family home as provided by law, or the homestead in which he resides, and land necessarily used in connection therewith; (b) Ordinary tools and implements (c) 3 horses, or 3 cows, or 3 carabaos, or other beasts of burden; (d) clothing and articles, excluding jewelry; (e) Household furniture and utensils, of a value not exceeding p100t; (f) Provisions for individual or family use sufficient for four months; (g) The professional libraries and equipment not exceeding p300t in value; (h) 1 fishing boat and accessories not exceeding the total value of p100t (i) So much of the salaries, wages, or earnings of the judgment obligor of his personal services within the four months preceding the levy as are necessary for the support of his family; (j) Lettered gravestones; (k) Monies benefits, privileges, or annuities accruing or in any manner growing out of any life insurance; (l) The right to receive legal support, or money or property obtained as such support, or any pension or gratuity from the Government; (m) Properties specially exempt by law. But no article or species of property mentioned in his section shall be exempt from execution issued upon a judgment recovered for its price or upon a judgment of foreclosure of a mortgage thereon. Example: construction of family home amt spent for materials was loaned subjt to execution Sec. 14. Return of writ of execution. The writ of execution shall be returnable to the court issuing it immediately after the judgment has been satisfied in part or in full. If the judgment cannot be satisfied in full within thirty (30) days after his receipt of the writ, the officer shall report to the court and state the reason therefor. Such writ shall continue in effect during the period within which the judgment may be enforced by motion. (5yrs)

The officer shall make a report to the court every thirty (30) days on the proceedings taken thereon until the judgment is satisfied in full, or its effectivity expires. The returns or periodic reports shall set forth the whole of the proceedings taken, and shall be filed with the court and copies thereof promptly furnished the parties. Sec. 15. Notice of sale of property on execution. Before the sale of property on execution, notice thereof must be given as follows: (a) In case of perishable property -posting three (3) public places, preferably in conspicuous areas of the municipal or city hall, post office and public market in the municipality or city where the sale is to take place, for such time as may be reasonable, considering the character and condition of the property; (b) In case of other personal property, three (3) public places above-mentioned for not less than five (5) days; (c) In case of real property, -by posting for twenty (20) days in the three (3) public places above-mentioned a similar notice particularly describing the property and stating where the property is to be sold, and if the assessed value of the property exceeds fifty thousand (P50,000.00) pesos, -by publishing a copy of the notice once a week for two (2) consecutive weeks in one newspaper selected by raffle, whether in English, Filipino, or any major regional language published, edited and circulated or, in the absence thereof, having general circulation in the province or city; (d) In all cases, written notice of the sale shall be given to the judgment obligor, at least three (3) days before the sale, except as provided in paragraph (a) hereof where notice shall be given at any time before the sale, in the same manner as personal service of pleadings and other papers as provided by Section 6 of Rule 13. Sec. 16. Proceedings where property claimed by third person. -If the property levied on is claimed by any person other than the judgment obligor or his agent, -and such person makes an affidavit of his title thereto or right to the possession thereof, stating the grounds of such right or title, -and serves the same upon the officer making the levy -and a copy thereof upon the judgment obligee, -the officer shall not be bound to keep the property, -unless such judgment obligee, on demand of the officer, -files a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the property levied on. In case of disagreement as to such value, the same shall be determined by the court issuing the writ of execution. -No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefor is filed within one hundred twenty (120) days from the date of the filing of the bond.

-The officer shall not be liable for damages for the taking or keeping of the property, to any third-party claimant if such bond is filed. -Nothing herein contained shall prevent such claimant or any third person from vindicating his claim to the property in a separate action, or prevent the judgment obligee from claiming damages in the same or a separate action against a third-party claimant who filed a frivolous or plainly spurious claim. -When the writ of execution is issued in favor of the Republic of the Philippines, or any officer duly representing it, the filing of such bond shall not be required, and in case the sheriff or levying officer is sued for damages as a result of the levy, he shall be represented by the Solicitor General and if held liable therefor, the actual damages adjudged by the court shall be paid by the National Treasurer out of such funds as may be appropriated for the purpose. *terceria or 3rd party claim-is an affidavit asserting that he is the owner of the property levied -other remedies: case for injunction, an action to annul the levy or action to annul/prevent auction sale complaint in intervention can be done only during the trial before judgment-thus a separate action is necessary -separate action by the 3rd party The 3rd party cannot file directly in court a motion to recall the execution or nullify the execution of the property levied- because he is not a party to the lawsuit-the remedy is to file a COMPLAINT IN INTERVENTION in the subject case if the case is still on trial before judgment thus there a separate action is necessary. Intervenor-has an interest in the property subject matter of the controversy, has interest in the success of either or an interest against and he is adversely affected by any disposition of property within the custody of the court. 3 remedies of the 3rd person whose property was seized by the sheriff to answer for the obligation or the judgement debtor: 1995 case evangelista vs. kenserger 242 scra 702 1. invoke the supervisory power of the court which authorized such execution sy v. viscaya1815478 -only for obvious wrongful act of the sheriff in attaching the property 2. terceria citing rule 39 sec. 16 3. any proper action to vindicate his claims to the property Is the judgment obligee/creditor allowed to participate in the auction sale? Yes under sec. 21 rule 39 Apply the law on compensation- no exchange of payment except: -When his bid is higher than his judgment- he has to pay the cash for the excess -if there is a 3rd party claim to the property he has to pay the amount under sec. 21 when the purchaser is the obligee, and no 3rd party claim has been filed, he need not pay the amount.

Can an auction sale be attacked/nullified or declared null and void? -generally NO there is presumption of regular performance of duty by the sheriff except in 2 instances: 1. where the auction sale is declared illegal and void or attended by serious irregularity-like no publication, no notice 2. when the price is shockingly inadequate and is shown a better price can be obtained at the said sale Shocking to the senses-the remedy is cancelling the sale and order another auction only when the property sold is PERSONAL property. REASON: you lose ownership over the property -it will not apply is the property sold is REAL you have no cause to complain because you have the right to redeem and your redemption price is also lower. So there is no prejudice to the judgment obligor. Conveyance to purchaser of personal property not capable of manual delivery sec. 24 rule 39 -personal property- title transfers after payment of the purchase price and delivery upon him. Delivery is either physical or symbolic. Real property-ownership is transferred not after the auction sale but after expiration of the right to redeem under sec. 25 Under sec. 23 and 24 what is conveyed in the auction sale is not the ownership of the property but the law says: certificate of the sale conveys to the purchaser all rights which the judgment obligor has in such property as to the date of levy or execution for preliminary attachment. In auction sale there is no warranty on the part of the sheriff under rule 29 unlike in private transacton the vendor warrants ownership. SC explained that at the sheriffs sale the sheriff does not sell the land advertised to be sold but the sheriff simply sells what interests in that land the judgment debtor has. CONVEYANCE of REAL PROPERTY sec. 25 rule 39 -right of redemption expires in one year from the date of registration of the certificate of sale Sec. 26 in the certificate of sale to be issued by the sheriff, shall make express mention of the existence of such 3rd party claim Sec. 27. Who may redeem real property so sold. may be redeemed in the manner hereinafter provided, by the following persons: (a) The judgment obligor, or his successor in interest in the whole or any part of the property; (b) A creditor having a lien by virtue of an attachment, judgment or mortgage on the property sold, or on some part thereof, subsequent to the lien under which the property was sold. Such redeeming creditor is termed a redemptioner. Sec. 28. Time and manner of, and amounts payable on, successive redemptions; notice to be given and filed. The judgment obligor, or redemptioner, may redeem the property from the purchaser, at any time within one (1) year from the date of the registration of the certificate of sale,

-by paying the purchaser the amount of his purchase, with one per centum per month interest thereon in addition, up to the time of redemption, together with the amount of any assessments or taxes which the purchaser may have paid thereon after purchase, and interest on such last named amount at the same rate; and if the purchaser be also a creditor having a prior lien to that of the redemptioner, other than the judgment under which such purchase was made, the amount of such other lien, with interest. Property so redeemed may again be redeemed within sixty (60) days after the last redemption upon payment of the sum paid on the last redemption, with two per centum thereon in addition, and the amount of any assessments or taxes which the last redemptioner may have paid thereon after redemption by him, with interest on such last-named amount, and in addition, the amount of any liens held by said last redemptioner prior to his own, with interest. The property may be again, and as often as a redemptioner is so disposed, redeemed from any previous redemptioner within sixty (60) days after the last redemption, on paying the sum paid on the last previous redemption, with two per centum thereon in addition, and the amounts of any assessments or taxes which the last previous redemptioner paid after the redemption thereon, with interest thereon, and the amount of any liens held by the last redemptioner prior to his own, with interest. Written notice of any redemption must be given to the officer who made the sale and a duplicate filed with the registry of deeds of the place, and if any assessments or taxes are paid by the redemptioner or if he has or acquires any lien other than that upon which the redemption was made, notice thereof must in like manner be given to the officer and filed with the registry of deeds; if such notice be not filed, the property may be redeemed without paying such assessments, taxes, or liens. Note: In obligation granted by a bank, the general banking act sec 78 shall govern since it is a special law applicable to banks, in case of redemption, the bank rate for the commercial rate imposed by bank prevails. Sec. 39 rule 39 All rents, earnings and income derived from the property pending redemption shall belong to the judgment obligor until the expiration of his period of redemption. 2 documents which are executed under the law in case of real property: 1. certificate of sale under rule 25 rule 39 2. deed of conveyance sec. 33 rule 39 after one year period has expired, without redemption Writ of possession a writ issued by the court to the purchaser against the defendant who refuses to vacate property Provisions in aid of execution- sec. 36 to 43 Sec. 36 examination of judgment obligor when judgment is unsatisfied Sec. 37 examinatin of debtor of judgment obligor

Sec. 45- satisfaction of judgment -it is compliance with or fulfillment of the a mandate Execution is the method to enforce a judgment Satisfaction- refers to compliance with or fulfillment of the mandate of judgment Satisfaction of the judgment shall be entered by the clerk of court in the court docket, and in the execution book upon the return of a writ of execution showing full satisfaction of the judgment Sec. 47. Effect of judgments or final orders. The effect of a judgment or final order rendered by a court of the Philippines, having jurisdiction to pronounce the judgment or final order, may be as follows: (a) In case of a judgment or final order against a specific thing, or in respect to the probate of a will, or the administration of the estate of a deceased person, or in respect to the personal, political, or legal condition or status of a particular person or his relationship to another, the judgment or final order is conclusive upon the title to the thing, the will or administration, or the condition, status or relationship of the person; however, the probate of a will or granting of letters of administration shall only be prima facie evidence of the death of the testator or intestate; (b) In other cases, the judgment or final order is, with respect to the matter directly adjudged or as to any other matter that could have been raised in relation thereto, conclusive between the parties and their successors in interest by title subsequent to the commencement of the action or special proceeding, litigating for the same thing and under the same title and in the same capacity; and (c) In any other litigation between the same parties or their successors in interest, that only is deemed to have been adjudged in a former judgment or final order which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto. Paragraph A is the principle of res adjudicata as applied in judgment in rem Paragraph B and C are the application of the same doctrine with respect to judgment in personam Requisites of res adjudicata: 1. judgment or order invoked as res adjudicata must be final 2. court rendering the same must have jurisdiction over the subject matter and of the parties 3. judgment or order must be upon the merit 4. there must be between the two cases identity of parties, identity of subject matter, and identity of cause of action What is the effect in Rule 17 when a complaint is dismissed for failure to prosecute? -It shall have the effect of an adjudication upon the merits, unless order provides otherwise. Judgment or order must be upon the merits:

Dismissal without a trial is not an adjudication upon the merits EXCEPT in RULE 17 sec. 3 where the case was dismissed for failure of the PLAINTIFF to APPEAR during the TRIAL, to prosecute the action for an unreasonable period of time. SC said that the principle of res adjudicata should be discarded if its application would involve sacrifice of justice for technicality. Concept of BAR BY A FORMER JUDGMENT and the concept of CONCLUSIVENESS OF JUDGMENT Bar by former judgment is known as merger or bar and as claim preclusion- par. b (b) In other cases, the judgment or final order is, with respect to the matter directly adjudged or as to any other matter that could have been raised in relation thereto, conclusive between the parties and their successors in interest by title subsequent to the commencement of the action or special proceeding, litigating for the same thing and under the same title and in the same capacity; and 1.-two judgments matter directly adjudged and matter could have been raised 2. accdg to SC there must be identity of parties,subject matter, identity of cause of action 3. 1st judgment is a bar to matters directly adjudged or as to any matter that could have been raise in relation thereto Example: compulsory counterclaim not raised in the 1st action and filed in separate action is res adjudicata by applying the concept of barred by a former judgment

Conclusiveness of judgment is known as collateral estoppel and issue preclusion-par. c (c) In any other litigation between the same parties or their successors in interest, that only is deemed to have been adjudged in a former judgment or final order which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto. 1. matters actually litigated and adjudged 2. even if there is identity of parties, subject matter, but it is not necessary that there is identity of cause of action 3. 1st judgment is conclusive only as to matters directly adjudged in the 1st action Example: no identity of cause of action Loan payable in installment -1st installment fell due; debtor raised the defense of forgery but was decided as genuine -2nd installment due; debtor cannot raise forgery anymore since it was adjudicated on the 1st case -debtor cannot raise the defense of payment as adjudicated on the 1st case since the judgment is conclusive on matters directly adjudged but not matters which have not been adjudged. There is no identity of cause of action.

3 concepts on final judgment: 1. res adjudicata-finality of judgment, issues decided in the case, the decision becomes final and executory and cannot be litigated again by the same parties in a subsequent action involving the same subject matter. 2. law of the case- it is a principle which holds that a decision of appellate court on a case brought before it on appeal shall subsequently bind the same parties in the same case involving the same facts. -SC said: under the law of the case, once irrevocably established as the controlling principle or decision, continues to be that law of the case between the same parties in the same case. Such stability and conclusiveness given to final judgments of courts of competent jurisdiction are said to be grounded on reason of public policy. -law of the case refers only to one case which may or may not be invoked in subsequent cases 3. stare decisis-decisions of the SC are precedents. The purpose of this is to attain stability and judicial order.

Sec. 48. Effect of foreign judgments or final orders. The effect of a judgment or final order of a tribunal of a foreign country, having jurisdiction to render the judgment or final order is as follows: (a) In case of a judgment or final order upon a specific thing, the judgment or final order is conclusive upon the title to the thing; and (b) In case of a judgment or final order against a person, the judgment or final order is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title. In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact. How do you enforce? The usual procedure, you file a case against the same defendant here and the cause of action is enforcement of a foreign judgment. And then the Phil court will render a judgment enforcing it and then you can execute.