Rem Civ Pro

REMEDIAL LAW REVIEW 2007
INTRODUCTION TO REMEDIAL LAW REVIEW

(1st meeting)
in Metro Manila; or more than P300,000.00

outside Metro Manila
Jurisdiction is the sun around which the

remedial system revolves. Master the issue in
jurisdiction, you have already complied 50% of
remedial law.
Jurisdiction over person/ parties:

1. Plaintiff;
2. Defendant.
Exception: Special Proceedings, one may
oppose but he does not become a defendant
Exception to the Exception: In cases of
Habeas Corpus proceeding
In answering the exams, you have

determine:
1. What rule applies?
2. If there be no applicable rule, determine
jurisprudence to which it is related;
3. If the two abovementioned are
applicable, solve the problem under
principle of jurisdiction
to
the
not
the
Basis of Jurisdiction:
1. The Constitution, particularly section 5 of
Article 6;
2. BP 129 as amended by RA 7691;
3. RA 8369
4. RA 7639- Sandiganbayan- constitutionally
mandated court
What is Jurisdiction?
It is the authority to hear and decide a case
Distinguished from Exercise of Jurisdiction
It is the effect of that authority. These are
decisions, judgments, orders and resolutions.
Jurisdiction is conferred by law. It is the law
that gives authority
Kinds of Jurisdiction:
1. Over the subject matter
2. Over the person or property
3. Over the res
4. Over the issue
In criminal cases, there is what you called
territorial
jurisdiction.
Venue
here
is
Jurisdictional. In civil cases, venue is different
from jurisdiction
Not capable or pecuniary estimation, jurisdiction
is with the RTC
Jurisdiction over the subject matter7691
(actions involving title to or possession of real
property). If the claim is more that P400,000.00
How does the court acquire jurisdiction over

the:
1. Plaintiff?
Upon filing of the complaint. But
jurisprudence dictates the mere filing of the
complaint is not sufficient, payment of the
correct docket fees is required (Check Alday
vs FGU Insurance).
2. Defendant?
a. Valid service of summons;
b. Voluntary appearance. When the
defendant
voluntary
submitted
himself to the jurisdiction of the
court.
Rule 14 provides for the Summons to be served
to the defendant. The defendant maybe a
prisoner, incompetent, insane or a corporation.
(Check the Millenium case)
In Criminal cases, jurisdiction over the
accused is acquired through:
1. Lawful arrest; or
2. Voluntary Surrender
In cases of third/ fourth/ fifth party
defendant, court acquires jurisdiction over
them through:
1. Valid service of Summons;
2. Voluntary Appearance
In cases of an Intervenor, court acquires
jurisdiction over them upon approval or
granting of the motion to intervene.
Jurisdiction over the res is used only in certain
occasions such as when the jurisdiction over the
person of the defendant is not acquired.
Res means facts of the case or status of a
person.
Example:
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE

MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.
1. Annulment of Marriage- case may proceed.

Extraterritorial service of summons under
Section 14, 15 and 16 of Rule 14.
2. Actions involving property, may proceed
provided court acquire jurisdiction over the
real or personal property
a. An action for a sum of money. The
defendant cannot be summoned nor
voluntarily appeared. Apply Rule 57attachment or property to acquire
jurisdiction over the res. The plaintiff
can only execute the res. Pag
kulang, thats it because he did not
acquire jurisdiction over the person
of the defendant.
b. If jurisdiction over the person of the
defendant is already acquired, res
no longer necessary
Jurisdiction over the issue
Acquired through the allegations in the pleading
Example:
1. Unlawful detainer/ Forcible entry. The issue
here is possession de facto and not
ownership or when the issue of ownership is
raised in the pleadings, ownership must be
solved first to resolve possession.
2. Action for sum of money- no demand letterdefendant may dismiss the case
Jurisdiction over the subject matter:
Conferred by law- BP 129
Exercise of Jurisdiction
1. Original- for the first time to take cognizance
of the case
a. Exclusive- lies particularly with this
court and no other court
b. Concurrent- authority is share by
several courts. Eg. Certiorari,
prohibition and mandamus
2. Appellate
a. Exclusive; and
b. Concurrent
Principle of Jurisdiction:
1. Judicial Hierarchy;
2. The Supreme Court is not a trier of facts;
3. Supreme Court may take cognizance for the
first time of transcendental importance.
Example: Rule 45 appeal by certiorari- must
be brought on pure question of law but in the
case
of
Francisco
vs
House
of
Representative, that was not the case

(Impeachment case of Davide)
Delegated Jurisdiction
Jurisdiction of an inferior court taking
cognizance of cadastral and land registration
cases where the value of the property is not
more than P100,000.00 and there is no
opposition thereto.
Possible BAR QUESTION: San ang appeal
nito?
General rule is that decisions made by the
inferior courts must be appealed to the RTC.
Exception to this rule is the Delegated
jurisdiction, appeal in these cases is in the CA.
Special Jurisdiction
Exercise by inferior court in taking cognizance
for petition for bail or habeas corpus in the
absence of RTC judges, NOT in the absence of
RTC courts.
Limited Jurisdiction
Eg. Settlement of estate. Through a probate
court only. Probate is concern only with the
extrinsic validity of a will.
Residual Jurisdiction
Jurisdiction of a court in spite losing its
jurisdiction because of the perfection of an
appeal still retains it for purposes of preserving
the rights of the parties.
Section 9 Rule 41- Perfection of an appealWhen perfected?
Notice of appeal
Record on appeal- upon approval
Upon perfection of appeal, the court loses
jurisdiction over the subject matter, and may file
a motion for execution. Saan file? Sa trial court,
still exercises residual jurisdiction.
Regular courts:
1. Supreme Court
2. Court of Appeals
3. Regional Trial courts
4. Inferior courts
5. Sandiganbayan
Quasi Court:
1. Civil Service Commission
2. Commission on Election

3. Commission on Audit
Quasi Judicial Agencies
All other agencies that exercises judicial or quasi
judicial function. Rule 43 provides that the Court
of Tax Appeals and other quasi judicial bodies,
but that is already amended. CTA is already
elevated to the level of the CA. Remove that
already from Rule 43. Delete the CTA there.
Just remember this five (5):
1. Court of Appeals
2. Sandiganbayan
3. Commission on Election
4. Commission on Audit
5. Court of Tax Appeals
All other quasi judicial bodies, appeal to the
CA, except this five
Securities and Regulation Code, paragraph
5.2. originally cognizable by the SRC transferred
now to the RTC but pursuant to SC Circular,
integrated to the Commercial Courts or RTC.
NB: No more special criminal courts, the
only special courts are commercial and
family courts.
Sharia Courts- Muslim
1. Sharia Appellate CourtCA
2. Sharia District Court---RTC
3. Sharia Country Courts---Inferior Courts
Check RA 769
he raised the fact of jurisdiction, here there is

estoppel.
Q: What are the remedies of the defendant upon
judgment?
A: Appeal in Rule 40, 41, 42 and 45.
What are the grounds for new trial/ motion for
reconsideration?
Know the time post of the remedy!
1. When a complaint is filed, what is the first
remedy of the defendants?
a. Motion to dismiss under Rule 16
b. Dismissal of Action
i. Dismissal by notice (section
1)
ii. Dismissal
by
motion
(section 2)
c. Summary Judgment
i. As
to
defendantcounterclaim
ii. As to plaintiff- ask for
judgment on the pleadings
d. Upon resting of the prosecution, the
plaintiff may ask for demurrer to
evidence under Rule 30
2. From the Judgment
a. New trial
b. Motion for reconsideration
c. Ask for relief from judgment
d. Appeal under Rule 40, 41, 42 and
45.
3. If you lose in the appeal, your final remedy is
annulment of judgment
November 9, 2006
Q: What is the distinguishing feature, doctrinal
wise, in the cases of Duero vs CA as distinguish
in the doctrine laid down in Roxas vs CA? Are
they conflicting?
A: Both of them are about issues of jurisdiction
but in one case, the Supreme Court upheld the
decision of the lower court, in another one it
denied. Remember that the leading case in this
regard is the famous case of Tijam vs
Subunghanoy. We are being taught here about
the proper application of estoppel. The two
cases are not contradicting, in the Duero case,
the participation is that there is no jurisdiction
but in the Roxas case the participation is to ask
a favor and when he failed to obtain the same,
Knowing the sign post of remedy, the first

question you are going to answer is In what
stage of the proceeding is this problem?
If the stage of the proceeding is after
presentation of evidence, you already know
what is your remedy. After presentation of
evidence of the plaintiff, defendant can file
demurrer to evidence. But even before answer is
filed, your remedy is motion to dismiss for any
ground enumerated in section 1 Rule 16
In reading the cases, youll get to know what
stage you are now so youll not get lost in the
analysis. Before you go to the decision of the
Supreme Court, go first at the court at quo, what
happened there.

NB: The basis for declaration of default is

only one, that is failure to file an answer, if
your book still states as in default that is
no loner correct, wla na ung as in default.
There is only now Default.
General Rule is that jurisdiction may be raised
at any time, even first time on appeal.
Jurisdiction over the subject matter is conferred
by law. The law that conferred the Jurisdiction of
the Supreme Court is the Constitution. I ask you
to memorize section 5 of Article 8 of the 1987
Constitution.
Jurisdiction of the Supreme Court:
The law that confers jurisdiction upon the SC is
the Constitution under Sec. 5, Art. VIII.
Sec. 5. The Supreme Court shall have the ff.
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 or the Rules of Court may
provide, final judgments and 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
thereto.
(c) All cases in which the
jurisdiction of any lower
court is in issue.
(d) All criminal cases in which
the penalty imposed is reclusion
perpetua (or higher). (Note: the
or higher clause no longer
applies because there is no
more death penalty.)
(e) All cases in which only an

error or question of law is
involved.
Note: The jurisdiction of the SC can either be
exclusive original or appellate.
Q: Over what actions does the SC have original
exclusive jurisdiction?
A: The SC has exclusive original jurisdiction
over the ff:
Petitions for certiorari, prohibition, and
mandamus against:
1. Commission on Audit (COA)
2. Commission
on
Elections
(COMELEC)
3. Court of Appeals (CA)
4. Sandiganbayan
5. Court of Tax Appeals (CTA)
Concurrent jurisdiction?
Notes: A petition for certiorari, prohibition, and
mandamus is not always under the original
exclusive jurisdiction of the SC except when the
respondent thereto is any of the abovementioned 5 bodies because these bodies are
next to the SC in rank. BUT when you speak of
petitions for certiorari,
prohibition,
and
mandamus against the RTC, it is not exclusive,
rather it is concurrent with the CA.
A petition for habeas corpus and quo warranto is
not exclusive in the SC but is concurrent with the
RTC and CA.
Just remember these 5 bodies; All the rest are
outside the original exclusive jurisdiction of the
SC in petitions for certiorari, prohibition, and
mandamus.
Nevermind petitions for quo warranto and
habeas corpus because you never file a petition
for quo warranto against these bodies because
what is quo warranto? Usurpation of power
why would you file it against the CA?...and the
same thing with habeas corpusso, it cannot be
exclusive, but always concurrent.
Just remember CA, CTA, COA, COMELEC and
Sandiganbayan, all the rest is outside the
original and exclusive jurisdiction of the
Supreme Court if it is petition for certiorari,
prohibition and mandamus. But not quo

warranto and habeas corpus because you do

not file this petition with these bodies.
(e) cases in which only an

error or question of law is
involved.
Q: What is quo warranto?

A: It is usurpation of powers, why will you file it
with the CA and petition for habeas corpus. This
cannot be exclusive but always concurrent.
The term Review, Reverse, Revise, Modify or

Affirm must be define separately and distinctly:
1. Review- what does review consist of? It
consist of Reverse, Revise, Modify or Affirm.
The term review is a catch all provision.
Review means is to take cognizance of the
decision but does not cover resolution of the
lower body. Review means to look into.
2. Reverse- overturn a favorable judgment to
an unfavorable one or vice versa
3. Revise- revision, not a simple amendment
4. Modify- modification or amendment
5. Affirm- accept the decision of the lower
body
In the application of concurrent jurisdiction,

always remember the three (3) principles:
1. Hierarchy of Courts;
2. Supreme Court is not a trier of facts;
and
3. Transcendental Importance
Even if it is in its concurrent jurisdiction, it does
not mean that the party has an absolute right to
file it with the Supreme Court or Court of
Appeals, he has to consider the three
abovementioned principle.
Supreme Court Appellate Jurisdiction: (b)
section 5 Article 8
NB: Reclusion Perpetua or Higher; wala na
higher sa reclusion perpetua
(2) Review, revise, reverse, modify, or
affirm on appeal or certiorari, as the
law or the Rules of Court may
provide, final judgments and 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
thereto.
(c)
cases in which the
jurisdiction of any lower court is
in issue.
(d) criminal cases in which
the penalty imposed is reclusion
perpetua or higher. (Note: the
or higher clause no longer
applies because there is no
more death penalty.)
The first paragraph of section a paragraph 5 is

exclusive original jurisdiction of the Supreme
Court. Paragraph b refers to its appellate
jurisdiction. So this power to Review, Reverse,
Revise, Modify and Affirm is within the appellate
powers of the jurisdiction of the Supreme Court.
Q: What does the phrase review, revise,
reverse, modify, or affirm on appeal or
certiorari under Sec. 5, Art. VIII, Constitution
mean? To what kind of appeal is it referring to?
A: The word appeal is by ordinary appeal.
The word certiorari is appeal by certiorari as a
mode of appeal under Rule 45 because when
you speak of review, revise, reverse, modify, or
affirm it is in the exercise of appellate
jurisdiction of the SC; it must have come from a
lower court and not an original action under Rule
65 which is a special civil action and not a mode
of appeal. Do not be confused.
Q: What are the modes of appeal under Rule 41
section 2?
1. Ordinary Appeal;
2. Petition for review; and
3. Appeal by certiorari
But the kind of certiorari mentioned is a mode of
appeal because precisely when you speak of to
Review, Reverse, Revise, Modify and Affirm, it is
the exercise of appellate jurisdiction.
Q: So how could it be an original action when it
is certiorari?

A: Do not be confuse, certiorari there refers to

Rule 65 because Rule 65 is a special civil
action, it is not a mode of appeal.
Q: What is a mode of Appeal by certiorari?
A: Rule 45. So the statement there on appeal
ordinary appeal or certiorari---appeal by
certiorari---it cannot be a special civil action
because it is appellate jurisdiction of the
Supreme Court.
You do not go to the Supreme Court by ordinary
appeal, well we are talking of civil action. In
criminal action there is notice by appeal to the
Supreme Court. Since there is no more
automatic appeal because of the removal of the
death penalty, but it does not mean you can no
longer appeal to the Supreme Court, how? By
notice of appeal and when you speak of the
Constitution, it applies to both civil and criminal
cases.
Q: The Court of Appeals has only one original
exclusive jurisdiction and what is that?
A: Action for Annulment of Judgment of the
RTC. That is the only original exclusive
jurisdiction of the Court of Appeals.
Q: If you file an Action for Annulment of
Judgment of the MTC, where will you go?
A: To the RTC.
General Rule: There is no way a decision,
resolution or judgment of an inferior court can go
up to the CA or SC, all must go to the RTC.
Exception: When the inferior court exercises
delegated jurisdiction. It is the only instance that
the judgment of the MTC can be appealed to the
CA or Sandiganbayan. Inferior courts are not
included in section 1 of Rule 45.
Q: Under what Rule is the exclusive original
jurisdiction of the CA (annulment of judgment of
RTC)?
A: Rule 47-On what grounds?
1. Intrinsic Fraud- prescribed after 4 years from
discovery of fraud
2. Extrinsic Fraud- does not prescribed, limited
only by application of the principle of laches.
Appellate
Appeals
Jurisdiction
of
the
Court
of
All decisions, final orders, judgment of the RTC

and quasi judicial agencies. The exceptions to
this are the five (5), all the rest are found under
Rule 43. Just remove the CTA, because it is no
longer appealable to the CA but to the Supreme
Court.
NB: Decisions made by the Civil Service
Commission is appealable to the CA.
NB: HLURB is not in Rule 43 because appeal
therefrom is to the Office of the President.
From there, you go up to the CA.
Before, decisions of the NLRC are appealable to
the Supreme Court. In labor cases. Walang
appeal don. What is appealed to the SC is under
Rule 65. But because of the St. Martin Funeral
Homes case, appeal is now filed to the CA.
The decision of St. Martin Funeral Homes, as
reiterated in Rubber World case, is not actually
removing the jurisdiction of the Supreme Court
over decisions of the NLRC. But in St. Martin
Funeral Homes case, considering in a petition
for certiorari from the NLRC, question of facts
are waived and the Supreme Court is not a trier
of facts. It is more convenient to file the petition
with the CA. Two years thereafter, the Supreme
Court laid down a circular stating therein that
petition should now be filed in the CA,
otherwise it will be dismiss. Not appeal proper,
but under Rule 65. Rule 65 is not a mode of
appeal but a special civil action.
Regional Trial Court has eight subject
matter:
1. Incapable of pecuniary estimation (Russel
vs Vestil; Barangay San Roque case).
a. What is the determining factor whether
the action is capable or incapable of
pecuniary estimation? What should be
the nature?
When the money claim is incidental to
the action, then it is not capable of
pecuniary estimation BUT if the claim is
determinable in terms of money then it
is capable of pecuniary estimation.
b. Example: A filed a case against B for
completion of the house. B agreed to
build for A in the amount of
P250,000.00.
Which
court
has
jurisdiction over the case? The Regional
Trial Court has jurisdiction over the case

because it is an action for specific

performance.
The
amount
of
P250,000.00 is merely incidental to the
case.
c. Suppose in As prayer he said: 1.
Ordering B to complete the construction
of plaintiffs house; OR 2. Pay B the
amount of P250,000.00. Which court
has jurisdiction? No longer the RTC, it is
already the MTC because of the word
or. It is now determinable in terms of
money. In other words, the cause of the
transaction has been determined in the
very pleading which is P250,000.00. If
the prayer is for B to complete the
construction of the house and pay
P250,000.00, it is not capable of
pecuniary estimation.
d. Rule: if the case is determinable in
terms of money, then it depends as to
what is the claim. If the claim is
P300,000.00 and below-MTC; if the
claim is more than P300,000.00- RTC.
e. In the case of Russel vs Vestil, that is
precisely the issue here whether or not
the action to declare null and void a
deed of heirship and partition is capable
of pecuniary estimation. The Supreme
Court said NO! this is similar to specific
performance
and
in
specific
performance money is only incidental so
that whether or not there is a valid
ground to annul a deed of heirship and
partition, is not capable of pecuniary
estimation.
f. The same doctrine was enunciated in
the case of Barangay San Roque vs the
heirs of
Francisco.
Expropriation
proceeding is not capable of pecuniary
estimation while it is true that in an
expropriation proceeding there is
determination of just compensation but
that will come after the court has
resolved the issue of whether or not the
government
or
any
of
its
instrumentalities
is
entitled
to
expropriate the subject property or the
entity has complied with all the
requirements of expropriation. So this is
again not capable of pecuniary
estimation.
g. In cases like annulment of judgment,
whether the judgment is for a certain
amount of money, but when you file an

action for annulment of judgment it is
not capable of pecuniary estimation
because the principal issue here is
whether the judgment is annullable or
not, money becomes incidental.
h. So as to cases of foreclosure of
mortgage.
2. Actions involving title to or possession of
real property or any interest therein, where
the assessed value of the said property
exceeds P20,000.00; Metro Manila exceeds
P50,000.00. What is action involving title to
or possession of real property? Is annulment
of title an action involving title to property? It
seems so, but not anymore because of the
case of Russel vs Vestil and Barangay San
Roque. Before these cases came out, this
was really complicated.
NB: You must analyze the nature of the
action, and how do you do that?
According to the prayer. If the prayer for
money is only incidental, it is not capable of
pecuniary estimation. If the conjunction is
and, again it is not capable but if it is or it
is already determinable by the very
allegations of the pleadings and the value
determines whether it is within the
jurisdiction of the RTC or MTC.
NB: So by process of elimination, ano
nalang ang action involving title to or
possession of real property? It seems to
me that the only action is Recovery,
accion
publician
and
accion
reinvendicatoria because all the rest now
are capable of pecuniary estimation.
3. All cases which used to be within the
jurisdiction of the Juvenile and Domestic
Relations court are now within the
jurisdiction of the Regional Trial Court.
NB: BP 129 as amended by RA 7691 that the
Securities and Regulation Commission,
particularly section 5 paragraph 2, previously
handled by the SEC are now transferred to
the Regional Trial Court but not to the
regular courts, rather to the special Regional
Trial CourtCommercial Courts. There are
no more Intellectual Property courts because
they are already merged with commercial
courts.

4. Admiralty and Maritime cases. Should an

admiral always be a party to the case? What
is admiralty cases? What are maritime
cases? Carriage of Goods Sea Act.
Admiralty should not be confuse to someone
from the military, they are maritime cases.
But the jurisdictional amount now is
P300,000.00 and P400,000.00RA 7691.
Five years after and then five years after.
The last five years happened in 2004.
5. Estate proceedings. This is something new,
this was not included in the old rule. RA
7691inferior courts now has jurisdiction
already over Estate Proceedings and that is
whether it is testate or intestate. Do not limit
probate of a will to the RTC.
6. Marriage and marital relation is with the
RTC, although it is a certain kind of RTC
because it is the family court under RA
8369. So you correlate it with the jurisdiction
of the RTC under RA 8369.
NB: Let me just remind you of one provision
there that guardianship proceedings and
custody of minor proceedings and petition for
habeas corpus in relation thereto, it does not
necessarily follow that the Family Court has
exclusive jurisdiction over petition for Habeas
Corpus. If it is a petition for habeas corpus in
relation to custody or guardianship proceedings
then file it with the family courts. But if it is an
ordinary habeas corpus, not in any way related
to custodial proceedings or guardianship
proceedings, then it is the regular RTC.
Q: What are the Inferior Courts?
A: There are four (4): MeTC, MTC, MCTC and
MTCC.
Q: Distinguish a municipal trial court from
municipal circuit trial court?
A: A municipal trial court is one which is located
in a municipality with a fixed presiding judge. If
there is no judge permanently assigned there, it
is a circuit. There roving judges.
Note:
In inferior courts, there are two
proceedings that which are applicable: (1)
Regular procedure;
and (2)
Summary
procedure. That is why jurisdiction there gets

complicated because of these two procedures.
Q: What are the subject matter cognizable by
the inferior courts?
A: Actions involving personal property
Q: What are the actions cognizable by these
courts and governed by the Rules on Summary
Procedure?
A: Forcible entry and unlawful detainer;
Money claims limited to the amount of either
P300T or P400T, regular procedure but 100T
and below and 200T and below, Metro Manila,
summary procedure.
The Rules on Summary Procedure apply only in
inferior courts. As a general rule, there is no
summary procedure in the RTCs. So, even if
you hear that it is only summary in the RTC, it
is not the same as Summary Procedure. It only
means that there is no controversy in the action,
there is no opposition. It is handled by RTC but
it is summary. Do not apply the word summary
there as to mean Summary procedure.
Q: In criminal cases, what is the determining
factor to decide whether it is under the RTC or
the MTC?
A: The duration of imprisonment. If more than 6
years, RTC..less than 6 years, MTC. If the
penalty is only a fine, the determining amount is
P4,000above P4,000, RTCbelow P4,000,
MTC. BUT, if the penalty is BOTH imprisonment
and fine, the amount of the fine becomes
immaterial.
Note: Violations of BP 22 (Bouncing Checks
Law) are now governed by the Rules on
Summary Procedure irrespective of the amount
of the check and exclusively under the
jurisdiction of the MTC. The same thing with
Negligence under criminal law (Criminal
Negligence), any crime committed through
negligence resulting in damage to property is
exclusively by the inferior court irrespective of
the amount of damage to property. Violation of
Traffic Rules and Regulations, violation of the
Rental Laws these are all w/in the jurisdiction
of the inferior courts.
In cases of penalty of imprisonment not
exceeding 6 years, MTC, but when it is 1 year

and below, it is summary. In claims, if P300T

and below, it is MTC, but when it is P200T and
below, and P100T, if it is outside Metro Manila, it
is Summary.
Sandiganbayan:
A
Constitutionally
mandated court.
The determining factor here is not the imposable
penalty, but the salary grade of the accused. If
the salary grade of the accused is 27 and above,
it is w/in the jurisdiction of the Sandiganbayan.
Aside from that determining factor of salary
grade, it must be any of the following violations:
(1) Anti-Graft and Corrupt Practices Act; (2)
Executive Order 14 and 14-A (the PCGG cases);
(3) Criminal Law on Bribery and Sequestration
cases.
The salary grade is found in the
Classification and Composition Act of 1987.
Moreover, all of the aforementioned violations
must be committed in relation to ones office.
RULE 1
Sec. 4.
In what cases not applicable: In Cadastral
cases, Land Registration cases, and Election
Cases, the Rules of Court are only suppletorily
applicable because they have their own rules.
Sec. 6.
Proper Construction of the rules: Must not favor
either party but must favor the administration of
justice.
Sec. 5.
Commencement of the action: An action is
commenced upon filing of the complaint as far
as the plaintiff is concerned, but jurisprudence
tells us that something else is required
payment of the correct or prescribed docket
fees. This applies to all kinds of pleadings,
whether the pleading is initiatory or an answer to
a complaint w/c carries w/ it a counterclaim.
Alday v. FGU Insurance: It is only upon
payment of the correct docket fees that the court
acquires jurisdiction over the counterclaim.
Note: Remember that the Rules do not even
distinguish as to what kind of counterclaim it is,
whether compulsory or permissive. But in the
Alday case, the payment of the correct docket
fees
is
required
only
in
permissive
counterclaims. This seems to be the doctrine

now, notwithstanding a clear provision in the
Rules which makes payment of docket fees
necessary in compulsory or permissive
counterclaims. It is the defendant who shall file
a counterclaim and as far as the counterclaim is
concerned, the defendant is the plaintiff and the
plaintiff is the defendant, whether it is
compulsory or permissive.
The Rules were amended after the Alday case
was decided, but as it stands,the Rules provide
no distinction, the case provides a distinction,
and in practice, clerks of court do not charge any
docket fees as far as compulsory counterclaims
are concerned.
Barangay 24, Legaspi City v. Imperial: The
payment of the correct docket fees is even
required in cases of appeal. In this case, there
was already payment of the appellate docket
fees but it was insufficient and so it was
dismissed on the ground that the court did not
acquire jurisdiction over the appeal.
Note: Even if you paid, but what you paid was
not enough, still, the court does not acquire
jurisdiction over the subject matter of the case.
Q: As to the third-party defendant, when does
the action commence? If the parties to a case
are A, B, C, and D, how would you possibly
situate a third-party defendant, who among them
and how?
A: A files a complaint against B. B would like to
claim against C so he would include C as thirdparty defendant.
Q: If the original action was filed by A against B
and C, would C be a third-party defendant?
A: No. The third-party defendant in this case
would be one against whom the defendant files
a case in the same proceeding. So, If A files a
case against B and B files a case against C in
the same proceeding, C would be a third-party
defendant and if C would further file a case
against D, D would be a third-party defendant
and C would be a third-party plaintiff.
As far as A is concerned, the action is
commenced from the filing of the complaint and
the payment of the correct docket fees. As for
B, the defendant, the action is commenced from

the moment the court acquires jurisdiction over

him (upon valid service of summons or voluntary
appearance, as the case may be). As to C, the
third-party defendant, also upon valid service of
summons because he is also a defendantand
as long as you are a defendant, summons is
always necessary, otherwise, the court will not
acquire jurisdiction over the person of the
defendant.
BUT when you speak of
commencement of the action, payment of the
correct docket fees is jurisdiction over the
subject matter of the action and not over the
person of the defendant.
Q: If the action is filed by A against B and C,
they are co- defendants and in that action, if B
files a case against C, who would be B as to C?
A: Crossclaimant. In that situation, who would
be the counter-counter defendant? B. Why?
Because the complaint was filed by A against B
and C. The complaint by B against A is a
counterclaim. The answer to the counterclaim,
w/c is required in cases of permissive
counterclaims, is also against B, so B would be
the counter-counterclaimant. Do not confuse
this with a replyreply is different in that a reply
is not necessary.
Again, Commencement of the action is not only
from the filing of the proper pleading but also
after payment of the prescribed docket fees.
RULE 2
Sec. 2.
Cause of Action: The act or omission by which
a party violates a right of another.
Cause of Action v. Right of action:
A Right of Action springs from a Cause of Action;
it is a remedial right and it is the right to
commence and maintain an action.
Q: Between A and B who are plaintiff and
defendant, respectively, who has the cause of
action?
A: B because it was his act or omission w/c
violated the right of A.
Q: How would you explain that there must be
joinder of causes of action (Sec. 5) and in fact,
in the joinder of causes of action, it is
exceptional to the theory of one suit for a single

cause of action (Sec. 3)?
A: If the Rule defines cause of action as an act
or omission by which a party violates a right of
another, it must be in the defendant for he is the
one who violates the right of the plaintiff. But if it
is in the defendant, why is it that there must only
be one suit for a single cause of action when
the cause of action resides in the defendant? If
we do not clarify these things, we cannot
proceed because this is the difficulty as it is not
even discussed that is why you keep on interchanging one for the other Cause of Action and
Right of Action). Even in the Rules, the Cause
of Action is inter-changed with the Right of
Action. They are used interchangeably while
they are not supposed to be because the Rule is
very clear as to the definition of a Cause of
Action. The Right of Action belongs to the
plaintiff as against the defendant. The Cause of
Action brings about the birth of a Right of
Action .
So, when you say one suit for a single cause of
action (Sec.3), the word suit belongs to the
plaintiff. The cause of action belongs to the
defendant.
Examples of Cause of Action: Breach of
contract: The defendant breaches the contract
and because of that breach, he violated the right
of plaintiff. Suppose the breach is constituted by
non payment of obligation, so the act or
omission is non payment of the obligation. By
non payment of the defendant, the right of
plaintiff is violated. The plaintiff now has a right
of action against defendant. That is why we say
one suit for a single cause of action. The
Cause of Action is non payment. The right of
Action is a suit for payment of sum of money.
Sec. 4.
Splitting a Cause of Action:
Q: Using the same example, how do you split a
single cause of action?
A: One suit for collection of money and another
suit for damages. Here, the cause of action is
split because the damages arose from the nonpayment, a single cause of action. You cannot
bring two actions.

10
In a contract of lease, the lessee did not return

the property at the expiration of the contract.
That failure to return the property brought about
a right of action to the lessor. The lessor now
files an action for recovery of property, accion
publiciana, but aside from the property, he would
also like to recover the fruits thereof, unpaid
rentals. He cannot file another case of unpaid
rentals because it arose from the same cause of
action.
From one cause of action, should arise also one
suit only. But it can happen that between the
same parties, A and B, there are several acts or
omissions on the part of B. So instead of filing
several suits because the Rule provides one is
to one only, one suit for a single cause of action,
the Rules allow joinder of causes of action.
(Sec. 5)
Example of joinder of causes of action:
There are several violations done by B against
A.
Q: B borrowed money from A in the amount of
P10T January 2006. Again, B borrowed money
from A in the amount of P30T on March of the
same year. Again in September, P400T. How
many causes of action are there if B does not
pay all obligations?
A: There are three causes of action. How many
rights of Action? There are also three. How
many suits should A file against B? He may file
three, but may opt to file only one complaint. If A
opts to file only one complaint against B,
collection of sum of money in the amount of
P440T, it will be allowed under the principle of
joinder of causes of action.
Q: What are the requirements for joinder of
causes of action?
A: The requirements for a valid joinder of
causes of action are:
1. The party joining the causes of action shall
comply with the rules on joinder of parties;
2. The joinder shall not include special civil
actions or actions governed by special rules;
3. Where the causes of action are between the
same parties but pertain to different venues
or jurisdictions, the joinder may be allowed
in the RTC, provided one of the causes of
action falls within the jurisdiction of the said
court ant the venue lies therein, and
4. Where the claims in all the causes of action

are principally for the recovery of money, the
aggregate amount claimed shall be the test
of jurisdiction.
Q: In the said example, is there joinder of

parties?
A: No. There is no joinder of parties here
because there is only one-party plaintiff and oneparty defendant. There will be joinder of parties
if A files a case against X,Y, and Z so there will
be joinder of parties-defendants or A, B, C files a
case against X, there will be joinder of partiesplaintiffs, or A,B,C, plaintiffs against X,Y,Z,
defendantsthere will be joinder of parties.
joinder of parties means there must be plurality
of party-plaintiffs or party- defendants.
Q: If there is no joinder of parties here, then
why does the Rule require that in joinder of
causes of action, there must be compliance with
the Rules on joinder of parties? What is the rule
under Sec. 6, Rule 3 on Permissive joinder of
parties? What is the requirement for joinder of
parties?
A: There must be common question of fact or
law.
Q: Is that required in joinder of causes of
action?
A: Yes. When you join causes of action, there
must be commonality of fact or law. In the
example given, there is commonality of law.
The causes of action joined must be governed
by the same rules, so that a special civil action
cannot be joined with an ordinary civil action
because these two different actions are
governed by different rules.
If A intends to file collection for sum of money
against B and he also wants B to vacate the
premises w/c he leased unto him, he cannot join
an action for collection of sum of money and
unlawful detainer because the former is
governed by regular or ordinary rules and the
latter is governed by special rules, being a
special civil action. So in joinder of causes of
actions, all of the actions must be governed by
the same rules.

11
Q: Let us change the value in the example,

P10T; P30Tand P401T. If you were to file three
separate actions, where would you file them?
A: As to the P401T, in the RTC; As to the P10T,
in the MTC; and As to the P30T, also in the
MTC.
Q: If you join them, where will you file the
action?
A: In the RTC because of condition number 3
under the rules on joinder of causes of action.
Q: Suppose the amounts are P10T; P30T; and
P360T. Where will you file it?
A: Applying the fourth condition in joinder of
causes of action, the action shall be filed with
the MTC as the aggregate mount is only P400T.
Q: When is the rule on venue not applicable

(Rule 4, Sec. 4)?
A:
(1) In those cases where a specific rule or law
provides otherwise; or
(2) Where the parties have validly agreed in
writing before the filing of the action on the
exclusive venue thereof.
Note: Even in the agreement as to venue, it can
be interpreted either in the mandatory or
directory character, if it is not exclusivethere
must be the character of exclusivity. (ex:
exclusive of any other venue; etc.)
Note: Take note of the doctrines in Katon v.
Palanca and Manila Bankers Corporation case.
Q: Mr. A resident of QC filed a case against Mr.

B, resident of Baguio City for collection of a sum
of money in the amount P450T and an action
for recovery of property located in Batangas.
Can A join his causes if action?
A: Yes. Both are governed by the same rules,
although the first cause of action is a personal
action and the second is a real action. There is
no prohibition against joining personal with real
actions or an action in personam with an action
in rem.
RULE 3
Q: Which court has jurisdiction over the case if

you join them?
A: RTC because both actions are within the
courts jurisdiction.
Party in interest v. lagal standing

Party in interest is a matter of procedural law.
Legal standing is a matter of substantive law
A party in interest is a party who may be
benefited or injured in a suit directly. In Legal
standing, there is interest in the subject matter
although one may not be directly benefited or
injured by the suit.
Q: Suppose the claim for a sum of money is for

P100T, can you still join them? What court has
jurisdiction?
A: The RTC because one of the joined causes
of action is cognizable by the RTC.
Q: Where is the venue?
A: The venue of the action may be in QC,
residence of the plaintiff; or in Baguio, residence
of defendant; or Batangas, the location of the
property, at the option of the plaintiff. There is
no preference of real over personal or vice
versa. The option belongs to the plaintiff.
In the joinder of causes of action, you resolve
the issue of both jurisdiction and venue then you
refer to Rule 4: Venue of Actions.
Q: Who may be parties?

A: Natural persons, Juridical persons, and
those entities authorized by law (ex: estate of
the deceased).
Q: Who is a party in interest?
A: A party who may be benefited or injured in a
suit. The term real party-in-interest applies to
both plaintiff and defendant.
November 23, 2006

The case of FGU V. Alday is about counterclaim
and docket fees.
Q: Is non-payment of docket fees a ground for
dismissal?
A: Rules provide for payment of docket fees for
counterclaim irrespective whether the counter is
permissive or compulsory. The Rule provides no
distinction as provided in Rule 141 Sec. 7.
However in this case the Supreme Court
provided for a distinction.

12
Q: So if presented with this problem which

would you follow, the rules or jurisprudence? A
little background would help.
A: When the Supreme Court amended the rules
regarding docket fees it did not have any
distinction. The implementing circular however
became a subject of several protests which
required payment of docket fees of counterclaim
whether compulsory or permissive. Because of
the protests, the SC recalled the circular.
However in 2005, the IBP lifted their protest
giving way to strict implementation of Rule 141
Sec. 7. But up to now the clerks of court in
particular
when
there
is
compulsory
counterclaim no fees are collected. This is what
they do in practice. Hence it so appears now
that the present policy is in accordance with the
FGU decision.
Q: Tests to determine the nature of
counterclaim:
A:
1. When the issues arise from the same
transaction
2. Whether res judicata will bar subsequent
filing of claim by defendant
3. Evidence test rule whether the same
evidence is required
4. Whether there is logical relation between the
claim and counterclaim
Q: Kinds of Pleadings:
1. Complaint
2. Answer
3. 3rd party complaint
4. Counter claim
5. Reply
6. Intervention
Q: Who may file a counter counter-claim?
A: The plaintiff
Q: Suppose A filed a case against B, against
whom may B file a cross-claim?
A: No one because there is only a single
defendant.
Q: May B file a 3rd party complaint?
A: Yes against a party not an original party to
the action to which he sought for
indemnification, subrogation or other relief.
Q: Rules on counter-claim:
A:
1. The counterclaim must be within the
jurisdiction of the court both as to the nature
and as to amount.
2. You cannot anymore subdivide a counterclaim. A counter-claim which exceeds the
jurisdiction of the court must be dismissed.
RULE 7
Q: Parts of a Pleading
A:
1. Caption
2. Body
3. Relief
4. Signature and Address
5. Verification
6. Certification against non-forum shopping
Body
1. The part which states the right of action
2. Jurisdictional requirements:
a. That the plaintiff has a legal capacity
to sue and in the case of defendant
the capacity to be sued. If you do
not allege legal capacity the
complaint
is
immediately
dismissible.
b. In case of defendant, his address or
at least his whereabouts for service
of processes
c. The rule provides that allegations of
certain matters to be made with
particularity such as fraud and
mistake or with generality such as
malice, intent or judgment.
d. Allegations must alleged only
Ultimate facts which are the bases
on ones claim or defenses.
Actionable document
Q: Two (2) ways of pleading an actionable
document
A:
1. By setting forth the substance of such
document in the pleading and attaching the
document thereto as an annex; or
2. By setting forth said document verbatim in
the pleading if such document is not
lengthy.

13
Q: How to contest an actionable document

A: By denying specifically under oath. Failure to
deny results in the admission of the
genuineness and due execution of the
document.
Q: Exceptions?
A:
1. When the adverse party is not a party to the
instrument
2. When an order for the inspection of the
document was not complied with.
Q: Meaning of Genuineness
A: Means that the document is not spurious,
counterfeit or of different import on its face from
the one executed by the party.
Q: Meaning of Due execution
A: Means that the document was signed
voluntarily and knowingly by the party whose
signature appears thereon, that if signed by
somebody else such as representative that he
had the authority to do so, that it was duly
delivered and formalities complied with
Q: Four (4) criteria of authenticity and due
execution:
A:
1. Signature is not forged or falsified
2. The contents of the instrument is the same
at the time it was signed
3. That all formal requirements are considered
complied with
4. The same document has been signed and
delivered
Case of Benguet (doctrine)
If the authenticity and due execution of a
document is duly proved, it extends only to the
extrinsic validity of the document and not the
truth of the contents of the document, which is
the intrinsic validity. The records of the case
clearly shows that the documents were
contested.
SIGNATURE AND ADDRESS
Q: Purpose
A: To assert that the parties had read the
pleading and to know where the processes of
the court may be properly served. The signature
must be of the parties themselves
VERIFICATION
Q: Purpose
A: Same purpose as signature
Q: Is it not a surplusage since it has the same
purpose as signature?
A: No, because not all pleadings require
verification
Q: Which is more important, signature or
verification?
A: Signature is more important because when
the pleading is not signed the effect is that the
pleading is not deemed filed. The remedy is to
re-file. Lack of verification on the other hand is
not fatal. The remedy is to file an amendment. If
both are present, verification is confirmation of
the signature.
CERTIFICATION
AGAINST
FORUM
SHOPPING
The certifier attest that he has not commenced
any other action against the same parties with
the same issues, or if there is a case pending a
statement of the present status thereof or if he
should learn of a similar action or claim filed he
should inform the court within 5 days therefrom.
Q: What is the effect of lack of certification?
A: Dismissal under Rule 17, lack of certification
of non-forum shopping is not correctible by
amendment.
In practice some lawyers separate verification
from certification but some does not. Both the
verification and certification must be signed by
the parties themselves except if the party is a
corporation and the lawyer is the in-house
counsel.
In case of three or more plaintiffs, all of them
must sign the verification and certification.
NOTE: Certification of non-forum shopping is
very important because of it can be proved that
absence of such is malicious you can even be
cited in contempt.
Q: What is Forum-shopping?
A: Party seeks a favorable opinion in another
forum through means other that appeal or

14
certiorari by raising identical causes of action,

subject-matter and issues.
Q: Remedy?
A: Motion to dismiss based on litis pendentia or
res judicata
NOTE: Do not confuse forum shopping with prejudicial question. In forum shopping it involves
even the same case file in other tribunal. In prejudicial question it is necessary that one case is
civil and the other one criminal which is not the
issue in forum shopping.
RULE 9
Q: The following defenses are not waived even
if not raised in a motion to dismiss or answer
(cross refer to Sec. 8 Rule 15):
1) Lack of jurisdiction over the subject matter
2) Litis pendentia
3) Res judicata; and
4) Prescription of action
NOTE: A compulsory counter-claim not
interposed is barred except Sec. 10 Rule 11.
DEFAULT
Q: When may a party be declared in default?
A: After the lapse of period within which to file
an answer and defendant did not file an answer
seasonably.
Q: May a plaintiff be declared in default?
A: Yes plaintiff can be declared in default
relative to a counterclaim especially of the
counterclaim is permissive.
Q: A files a case against B for unlawful detainer.
B received summons Jan. 5 and on Jan. 25 B
has not filed any answer yet. May B be declared
in default?
A: No B cannot be declared in default because
the case is unlawful detainer which falls under
summary proceedings. In summary proceedings
a motion to declare a party in default is one of
the prohibited pleadings.
Q: Suppose the case is one for collection of sum
of money, may he now be declared in default? If
yes, how?
A: Yes B can be declared in default by As filing
of a motion to declare B in default.
Q: Two kinds of motion:

A:
1. Litigated
2. Non-litigated
NOTE: If it is established that defendant did not
receive a copy, it would be irregular for the court
to declare Defendant in default.
The phrase as in default no longer applies.
The only ground for declaration of default is
failure to file an answer seasonably.
Q: Remedy of defendant declared in default
A: File a motion to lift order of default
If denied: Motion for reconsideration
If denied: Certiorari under Rule 65 on
the ground of grave abuse of discretion
Q: Suppose there is no ground?
A: Wait for rendition of judgment by default, you
now have ordinary remedies such as appeal or
new trial or relief from judgment
NOTE: If the defendant is declared in default, he
loses his personality before the court but by
filing a motion his personality is restored.
Order of default is different from judgment
by default.
A judgment by default is always preceded by
order of default. There is only one exception to
this and that is Rule 29, Sec. 3, Par. C which is
refusal to comply with modes of discovery.
NOTE: Supreme Court always looks down on
default order so if confronted with this problem
your inclination should always be against default
orders.
There are no injunctive relief in default orders.
RULE 10
Q: Two (2) Classifications of Amendment:
A:
1. Amendment a matter of right or by leave
or court
2. Substantial or formal amendment
Q: Effect of amendment?
A: Amended pleading supercedes the original.

15
Q: Totally?
A: No, admissions in the original pleading may
be used as evidence.
Q: A files a case against B for collection of sum
of money. Summons was served Jan. 10 and B
filed an answer Jan. 20. May A still amend his
complaint?
A: Yes because the period to amend a complaint
as a matter of right is anytime before a
responsive pleading has been served. Filing and
service are two different things. Filing is with the
court while service is to the parties.
NOTE: Amendment as a matter of right is
absolute when the plaintiff has not yet received a
copy of responsive pleading. If a motion to
dismiss is filed, such is not a bar for a plaintiff to
amend his complaint.
RULE 10
Q: If A filed a case against B for a sum of money
and then there was no allegation as to a
demand, hence the issue of demand is not
within the jurisdiction of the court. During the
presentation of plaintiffs evidence, the witness
of the plaintiff would like to present as evidence
the demand letter, B objected the same on the
ground that it was not raised in the pleading and
therefore the court has no jurisdiction over the
issue. If you were the judge, how will you rule on
the objection?
A: You will grant the objection because the court
has no actually jurisdiction over the issue. In
granting the objection for denying the
presentation of such kind of evidence because it
is without jurisdiction of the court.
Q: As plaintiff, what will you do?
A: Under Rule 10 section 5, Amendments to
conform or authorize presentation of evidence,
the plaintiff may move for amendment and such
must be granted to by the court with liberality. So
even in this instance, at this point in time of the
proceeding (during trial), amendment is still
available. It is an amendment with leave of
court. If the court does not grant it, it can be
construed as grave abuse of discretion on the
part of the court which is adept to certiorari or
mandamus as the case may be.
As a general rule, the evidence must conform to

the pleading. This time, considering that the
evidence is not within the jurisdiction of the
court, it should be the pleading that must
conform to the evidence to authorize the
presentation of evidence. That is the meaning of
section 5 Rule 10.
Q: Suppose the amendment sought by the
plaintiff here is a change of cause of action, will
you grant it?
A: Even if it is a change of cause of action, it
must be granted with liberality. But as a general
rule, never with jurisdiction. Cause of action yes
but jurisdiction no.
Q: Why?
A: Because if for example you filed a case with
the RTC for sum of money in the amount of
P350,000.00. That is definitely outside the
jurisdiction of the RTC and you ask for
amendment with leave of court so that the RTC
will have jurisdiction, and changed the amount
claimed to P500,000.00, you cannot do that
because this is an issue of jurisdiction. You
cannot do that. Why? because remember, under
the latest jurisprudence on that matter,
jurisdiction over the subject matter is not only
conferred upon filing of the necessary pleading
but payment of the correct docket fees. So the
docket fees you paid for is only for the amount of
P350,000.00, and you want to change it to P1
million, you wont be allowed. It is an indirect way
of escaping the payment of the correct docket
fees. This is taken from the old Mar Copper
doctrine.
Q: How would you distinguish an amended
pleading from a supplemental pleading?
A: As to the purpose, an amended pleading
aims to change certain facts while in a
supplemental pleading you dont change
anything, you just ask for supplement. As held in
the Remington case, there is no need for the
issuance of a new summons because it did not
change the cause of action. If the pleading
changes the cause of action, then another
summons is necessary because as a general
rule, an amended pleading supersedes the
original pleading.

16
Q: Even if it superseded the original pleading, is

there anything admissible from the original
pleading?
A: Admissions remain even when the original
pleading has been superseded pleading. What
kind of admissions are they? They used to be
extrajudicial admissions but jurisprudence now,
under the new rule, these are already
considered as judicial admissions. You have to
distinguish that because the effect of a judicial
admission is different from an extra judicial
admissions whereby the latter requires or calls
for proof, requires for offer. But because these
are judicial admissions, you need not to offer
them. It can be used by the court as basis of its
decisions, judgment or resolution.
RULE 11
Next rule is only about periods. The only thing to
remember here in Rule 11 are the following
days- 10 days, then 15 days, then 30 days and
finally 60 days. Tandaan nyo lang yon and we
are through with Rule 11. So this is about when
to file responsive pleading, take note they are
responsive pleading so if there is nothing to
respond to, a responsive pleading is not
necessary but if it is required, when are you
suppose to file them?
Q: So 10 days, what pleading must be filed
within the period of 10 days?
A:
1. Answer to the complaint when it is covered
by the Rules on Summary Procedure;
2. Answer to an amended pleading if the
amendment is not a matter of right;
3. Reply;
4. Answer to the counterclaim, cross claim and
answer to a complain in intervention;
5. Answer to a pleading after a bill of
particulars has been granted.
Q: Lets go to 15 days:
A:
1. Answer to a complaint under regular
procedure;
2. Answer to an amended complaint when the
amendment is a matter of right;
3. Answer filed by a third, fourth or fifth party
defendant as the case may be.
A: Remember that the one who answers it is

already within the jurisdiction of the court. Kaya
10 days nalang but the one who is suppose to
answer within 15 days is not yet within the
jurisdiction of the court like a fourth party
defendant is not within the jurisdiction of the
court. So he must be first before he is brought
within the jurisdiction of the court that is why you
have the 15 days period.
Q: How about the 30 day period?
A: There is only one instance- when the
defendant is a foreign corporation or foreign
private entity and summons was served to the
corporation through the government official in
the Philippines. The 30 day period must be
counted not from the receipt of the government
official but from the receipt of the defendant
itself, the corporation. Under section 13 of Rule
14, you will find out that a foreign private entity
can be served with summons in three (3) ways.
Kaya tatandaan nyo. If it is served to the
government official in the country, 30 days,
otherwise 15 days. This is the only 30 day
period, wala ng iba sa rules.
Now finally, we go the 60 day period- When
summons is served under section 15 of Rule 14
or what we call extra territorial service. But take
note, there is a cross reference in section 15,
that is 14 and 16. Before and after. That
summarizes Rule 11.
RULE 12
Rule 12 is only the Bill of Particulars. Bill of
Particulars maybe filed by any party that is
suppose to file a responsive pleading. Before
one files a responsive pleading and he wants to
be clarified on certain matters, then instead of
filing of the answer, he must file a motion for a
Bill of Particulars.
Q: Who may file a motion for a bill of
particulars?
A:
1. So this can be filed by the plaintiff with
regard to a permissive counterclaim.
2. This can be filed by the defendant with
respect to the complaint.
3. This may again be filed by the plaintiff if he
intends to file a reply.
Q: Why is the answer in a complaint in

intervention is only 10 days?

17
Q: Anyone who is bound or required to file a

responsive pleading may ask for a bill of
particulars. What does this mean?
A: It simply means that you are not clear on a
matter in his allegation, so clarify it.
Q: Suppose in the complaint of the plaintiff, the
plaintiff joined three (3) causes of action.
Assuming the defendant owns him P50,000.00,
on another occasion he owes him P130,000.00
and
another
occasion
he
owes
him
P300,000.00. There was no allegation of when
and how it was loaned.
A: That is a very clear case that calls for a bill of
particulars.
Although a bill of particulars is there in the rules,
but you will note that this is very academic. Im
telling you now because in actual practice you
dont ask for a bill of particulars. Good lawyers
wont ask for that. What will I do? Ill file a motion
to dismiss for lack of cause of action. If Im not
clear on the matter, motion to dismiss so hell
amend the pleading. Thus, you bought time. Like
default, if I were the plaintiff and he did not file
an answer, I will not move for declaration of
default. Why? I will ask for presentation of
evidence, after all if the party is in default, you
are delaying your own case. Why? because
there are many remedies to default and the
court will grant this remedies. Motion to set
aside the order of default, motion for
reconsideration then judgment and you go all
over again and when you move up to the
Supreme Court the latter will say, no default, the
party must be given due process. Dont fight it
out of technicalities, so remand the case for
further proceedings after fifteen (15) years.
Although these are very good problems in the
bar but later on, if you were in practice, how can
you avail of what you dont even know. Like in
the bill of particulars, it may not be that important
but it might be given in the bar.
Q: So when do you count the period?
A: When you file a bill of particulars, the period
to file a responsive pleading is stop and youll
only have the balance of the period within which
to file an answer if it is denied but if its granted,
you have to file a bill of particulars within the
period of 10 days but the 10 day period must be
counted from the receipt of the resolution
granting your motion for a bill of particulars.
Q: Suppose A filed an action against B and the

latter received the summons in January 1. So he
has ordinarily up to January 16 in which to file
an answer but on January 5, instead of filing the
answer he filed a motion for a bill of particulars.
The court granted the bill of particulars on
January 20, then the question is when should B
file the answer?
A: No answer yet because it is A who should
clarify because the bill of particulars is granted,
the order is directed to A to amend, to change
what is suppose to be change, and if he does
not, this may be ground for dismissal.
Now, after he has change, the 15 day period will
no longer apply. The 15 day period ordinarily
within which to file an answer no longer apply
because of that bill of particulars. So what
applies? You have only the balance of the period
but not less than 5 days. Pareho lang yan ng
motion to dismiss under Rule 16. Under Rule 16,
when the defendant files a motion to dismiss
and it is denied by the court, you do not appeal.
Why? It is an Interlocutory order. So the
defendant has only the remaining balance of the
period but not less than 5 days.
Do not apply the Domingo Mated doctrine, the
fresh day rule. This is a September 2005 case,
Domingo mated et al vs Court of Appeals
penned by Justice Corona. Bago yan ha,
September 14, 2005, this is the fresh day rule or
the fresh day doctrine. Baka lumabas sa bar,
atleast you know. It simply says that when a
motion to dismiss is filed and then the court
denies it or grants it as the case may be, of
course denied. You have the entire period all
over again, 15 days, not just the balance. But do
not apply it here in a bill of particulars and
motion to dismiss because the time to file the
answer is the remaining balance which must not
be less than 5 days.
So the old rule applies only to Rule 42, 43 and
45. Yun lang ang may fresh day doctrine. It
applies to Rule 41 as well. You have the entire
period all over again. In fact my opinion on the
matter is that it applies as well to Rule 64 and 65
because in Rule 65, a motion for reconsideration
is mandatory.
RULE 13

18
Rule 13 is about Filing and Service. In Service,

what do you use? Powder or lotion?
Q: What is Filing and what is Service? Which
comes first, Filing or Service? Distinguish.
A: As to initiatory pleading, filing comes first,
service later. Thereafter, service comes first and
filing later. So when you file a complaint,
initiatory pleading yan, you dont serve first
because it is the court that serves the same
together with the copy of the summons to the
defendant so filing comes first. But answer,
before the court receives the same for filing, you
must first establish that you have served a copy
thereof. Aside from initiatory pleading, ordinarily
processes that emanated from the court, filing
comes first then service later. For example,
judgment. A judgment that emanates from the
court, this is first filed and then served a copy to
the party. Resolutions and orders, they are first
filed and then served.
We are going to discuss three (3) topics under
Rule 13, so first is Manner or Mode of Filing
and Manner or Mode of Service. The second
topic is completeness of Filing and
completeness of service. And the third topic is
proof of Filing and Proof of Service. If you
can answer that, tapos nanaman ang Rule 13.
Q: What is the mode or manner of Filing?
A: There are two (2):
1. Personal Filing; and
2. Filing by Registered mail.
You have to distinguish now because in service
it is different. How do you personally file?
Q: How about service, what are the modes?
A: There are three (3):
1. Personal Service;
2. Substituted Service; and
3. By mail. Under mail, it is divided in two
kinds, either registered or ordinary mail.
Importante eto because you might ask
regarding completeness and proof. So magdidiffer yon, as to completeness and proof.
What is Personal Service? And by mail? Have
you ever mail by registered mail?
By Substituted Service. Do not confuse this with
substituted service of summons.
Q: To whom do you leave a copy? Which Clerk

of Court?
A: In every court, when you say RTC, isa lang
yon. Kasi ang concept nyo pag sinabing RTC,
ang dami nyon. Isa lang yon, but several
branches. Every Regional Trial Court in a judicial
region has only one clerk of court. But each
branch has what you called a branch clerk of
court. This city here in Metro Manila, for example
here in Makati, there are more than 50
branches, but in Manila or Quezon City there are
maybe a hundred I supposed or even more.
Each branch has a branch clerk of court. This
Substituted Service is not with the branch clerk
of court but the Chief Clerk of Court. If your book
says in the branch clerk of court, thats wrong. It
should be the Chief Clerk of Court and the latter
is the one in charge with all the branches. In fact
the sheriff is under the clerk of court. That is
substituted service.
Q: What do you have to establish to avail of
substituted service?
A: That is section 8, do not confuse that with
section 9. You cannot avail of section 8 if the
subject matter to be serve are final resolution or
judgment, that is under section 9. Service of
judgment, service of final order under section 9
is different from service of pleadings under
section 8. In section 8, there is substituted
service of pleadings but when you go to section
9, you do not avail of substituted.
Q: What is the provision of section 9? It is
through publication. So that the period for finality
of the resolution or judgment starts to run only
after availment of section 9. In the case of
substituted service, that begins to run upon
receipt of the clerk of court of whatever pleading
is served.
Do not confuse that with Rule 14, personal
service is no longer used in summons. Personal
service is used now in Rule 13. If you go to Rule
14, they do not use anymore personal service
and you must follow that. It is already called
Service on the person of the defendant under
Rule 14. That is as to summons because
substituted service of summons is very different.
While here in service of pleadings, that is still
personal service. If you cannot find the person to

19
whom it must serve, you have to leave at the

residence where a person of sufficient age and
discretion is found, or in the office to a person in
charge thereof. These three (3) ways are is still
personal service of pleadings. Distinguish from
the service on the person of the defendant under
Rule 14.
Q: When is filing complete?
A:
1. In Personal filing, after actual delivery.
2. If it is by registered mail, the posting is the
date of filing. When you mail by registered
mail, the post office stamp is the date of
filing so that within the 15 day period for
example, the stamping is in the 15 th day, that
is within the 15 day period.
Q: When is service complete?
A: You have to distinguish whether it is by
ordinary mail or registered mail.
If it is by registered mail, from the actual receipt
of the mail or 5 days thereafter from the first
notice of the postmaster. The post office sends
three notices, it is the first and not the last. Hindi
eto unlawful detainer. In Unlawful detainer, you
count the one day period from the last demand,
dito first notice. In substituted service, upon
actual receipt of the clerk of court.
Q: Proof of filing
A:
1. If it is personal filing, the stamp made by the
clerk of court.
2. If it is by registered mail, proof is the registry
receipt.
Q: Proof of Service
A: Take note of the requirement, now of an
affidavit of the sender, especially if you are filing
with the court of appeals or the supreme court
under Rule 66 of the Rules of Court, that is a
ground for the dismissal of your petition if you do
not include an affidavit of service. If you do not
include as proof that you have serve to the
adverse party the affidavit of the sender together
with the registry receipt stamp, that is a ground
of the dismissal by the Court of Appeals or the
Supreme Court.
Q: There are many instances when you try to
establish that you have filed a pleading with a
court, the court cannot find anymore the
pleading you have filed. Should the record of the

court prevail over your personal record?
A: You present your own copy kasi karamihan
ngayon nakakaligtaan.
Let me give a special mention to section 11. It
says there priority of personal service. Of the
many modes we have discuss, the Rules seems
to prioritize personal service, why? This is new
in the 1997 Rules. If you cannot avail of
personal service, you have to make an
explanation stating therein the reasons why you
cannot avail of personal service. Service and
filing cannot be made without that written
explanation.
What is the historical background regarding this
amendment of Rule 13, these addition to the
rules? Because several practicing lawyers would
try to delay for one reason or the other, some
reasons are valid but most reasons are not.
They would not expedite the administration of
justice. So the Supreme Court amended the
Rules modestly and moderately by simply
prioritizing personal service. For example here in
Makati, in the same building, the plaintiffs
counsel is in the 4th floor while the defendant is
in the 1st floor. What do they do? They mail
pleadings to buy time. No amount of reason will
invalidate your delay, if that is the case. Although
the court would not mind it, but now with this
rule, that must be practiced. The rule calls for a
valid reason as long as he has a reason and the
usual reasons are for convenience and
practicality or lack of personnel to serve the
same or there are other reasons I find like
because of the horrendous traffic in Metro
Manila.
Rule 14
Rule 14 is very, very important. As a warning,
summons is singular, the plural is summonses. I
am warning you that because one of my friend
examiners did not correct the examination
booklet anymore because it states summons
are, he said this examinee is not yet ready to
become a lawyer. He underscores that, grade
49. Even if you get 90 in the Bar, if you have 49,
you are already disqualified and only because of
that grammar. Again, Summons is singular, the
plural is Summonses. Also an examiner in
Criminal Law, who in the same manner, did not
bother to check the examination booklet

20
because of the word stafa was misspelled. So

be very careful with your grammar.
the person of the defendant or substituted

service.
Q: What is a Summons?
A: Is a process issued by the court and served
upon the defendant for the purpose of acquiring
jurisdiction over him and to direct him to file
responsive or an answer.
Q: After he has done that, what should he do?

A: The sheriff will file a return.
Q: What is the purpose of a Summon?

A: There are only two ways by which the court
acquires jurisdiction over the person of the
defendant:
1. Valid Service of Summons. Remember that
it must be VALID. When you say service of
summons that is wrong because even if you
serve the summons and the same but the
service is invalid, the court did not acquire
jurisdiction.
2. Voluntary Appearance
To whom is the Summons addressed?
Together with the summons is a copy of the
complaint.
Q: Who serve the summons?
A: The sheriff.
Q: How does the sheriff serve summons? What
are the modes of service of summons?
A:
1. Service on the person of the defendant
2. Substituted service
3. Extraterritorial Service (under section 14, 15
and 16)
a. Service on the person of the
defendant
b. Substituted Service
c. Publication
d. By any other modes authorized by
the court
Note: There is no service of summons by
registered mail
Q: Why is there no service of summons by
registered mail?
A: Because the purpose of service of summons
is to acquire jurisdiction over the person of the
defendant and if it is by mail, it is dependent
already on the mail proper. The court will not
allow that. So the sheriff who is task to serve the
summons will serve the same either service on
Q: What is this return?

A: This is one of the most important words in
special proceedings like habeas corpus. Ano
nakalagay sa return? Alam nyo crucial yan,
because when the sheriff files a return that he
served summons by substituted service, it
requires that he must have exerted effort and his
effort is futile that is why substituted service is
availed of. Like and Habeas Corpus, you recall
your lessons in habeas corpus, very prominent
yung return, there is a return as a plea and a
return as an evidence.
Q: Aside from the sheriff, who may serve
summons?
A: Any officer authorized by the court.
Q: Can the plaintiff serve the summons?
A: The rule says the sheriff, the deputy sheriff
and any person authorized by law, kung
susundin nyo lang yon, you rationalize.
In the analysis of service of summons, you have
to know to whom it must be served. So you have
to consider the defendant. Remember under
section 1 of Rule 3, that the defendant of parties
to an action may either be a natural person, a
juridical person or any entity authorized by law.
You apply that in cases of defendant. In fact we
discuss about necessary and indispensable
party, so the first thing you have to ask Who is
the defendant? because the mode of service
somehow depend who the defendant is.
Q: If the defendant is a minor to whom should
the summons be served?
A: To the minor and the parents or guardian as
the case maybe.
Q: So how many summons?
A: Two (2) summonses. If you only serve it to
the parents, that is wrong, it will be an invalid
service of summons. The rule says service on
the minor AND service on the parents or
guardian or guardian ad litem.

21
Q: If the defendant is an insane or an

incompetent, to whom summons must be
served?
A: Personally to the insane or incompetent and
personally to the guardian.
Q: Why will you serve the summons to an
insane defendant? Loko loko na isserve mo pa
ng summons?
A: Because an insane person is not insane all
the time. They have lucid interval. But an
imbecile is different from an insane because the
former is not qualified but the latter is qualified,
therefore there is no provision regarding an
imbecile. If you are given a choice between an
imbecile and an insane, you choose the latter,
must be insane.
Q: If the defendant is a prisoner, to whom
summons be served?
A: To the prisoner himself or to the deputized
sheriff. So he is not within the concept
authorized by law because the rule says
authorizes the sheriff or the warden. The rule
itself authorizes the warden or one charged with
the jail to serve it but it is served to the prisoner
or upon the prisoner not to the sheriff. It is only
the sheriff or the warden who is authorized by
the rules to serve it. He is deputized. These are
natural persons. The rule says it must be served
upon the person of the defendant themselves
but does it follow that it cannot be serve through
substituted service? It can. So if ever it is served
upon the warden, it is already substituted
service. Take note of that. It is no longer service
upon the person of the defendant but rather
substituted service. Why? because that is where
the defendant resides, so you serve it on the
person in charge thereof. So nagiging
substituted service. Magandang catch yon if it is
given in the problem.
Q: What kind of service is service upon the
prisoner?
A: The answer is the rule requires personal
service or service upon the person of the
prisoner because the rule says service on the
prisoner through the warden. Service on the
warden because he is in charge thereof. Even in
cases of this special kind of defendant, service
of summons may still be made through
substituted service.
Q: What are the requirements for substituted

service? Where do you serve substituted
service?
A: At the residence of the defendant to a person
of suitable age and discretion residing therein.
The place must be the residence of the
defendant and you just cannot leave it to anyone
there in the residence, it must be a person
residing therein and must be of suitable age and
discretion. There are many cases to that effect.
Q: If you cannot find his residence, or there is no
residence or the residence is unknown?
A: At the office of the defendant to a person in
charged thereof.
Q: If you leave it to a security guard in the office
of the defendant, suppose in a condominium
unit, the office is at the 4 th floor, pag pasok ng
sheriff sabi ng guard do ho pwede, tapos
iniwan sa kanya ng sheriff, valid?
A: That is not valid because the security guard
is not in charge thereof. For example are the
cases of Millenium and EB Villarosa doctrine.
Substituted service means the service is not
anymore to the person of the defendant but
rather to someone else whether residing in his
residence and must be of suitable age and
discretion or to someone in charge of his office
at his office to be valid.
And another basic requirement is after
complying or after exerting earnest effort to
serve summons on the person of the
defendant. So that is substituted service. You
will note, going to Rule 13 that substituted
service of pleading is handing over the pleading
to the clerk of court, personal service therein
includes service in the office and in the
residence.
Q: You will note that in summons, it is the
residence and then office, in Rule 13 it is office
then residence, why is that so? Have you ever
thought of that why ganun ang priority?
A: Because when summons is supposed to be
served, there is no counsel yet so the priority is
the residence while in pleading, there is already
a presumption that he is already protected or he
has already a counsel of choice. Counsel de
parte kaya ganun.

22
Q: There is another defendant which is a

corporation and under this heading, the
corporation can either be of two kinds:
A:
1. Public corporation; and
2. Private corporation
a. Domestic private entity; and
b. Foreign private entity
Q: In public corporation, to whom must
summons be served?
A: Correlate this with section 17 Rule 3. In local
government unit, the head of the state. If it is a
province the governor, vice governor. If it is a
city, the city mayor or vice mayor. If it is the
municipality, the municipal mayor and in cases
of the barangay, the barangay captain. You can
also serve it on the vice mayor in the absence of
the mayor. So any officer of that public
corporation, summons may be served. But you
have to establish that it was received. Yan ang
importante don. That can be done through the
return of course.
In private corporation, if it is a foreign
corporation, summons may be served to the
agent of the corporation or the government
entity charged with the said corporation or any
agent authorized by the corporation.
Q: Is there any difference among these three?
Who is that Philippine government officer
authorized to receive summons?
A: In cases of insurance corporation, summons
may be served to the insurance commissioner or
if it is a bank, to the governor of the Central
Bank. If the foreign corporation is authorized to
do business here in the Philippines, then it is
necessary that he has an agent here, so you
serve it to him. But going back under Rule 11,
the period to file a responsive pleading, if it is
served upon the government officer, 30 days
from the receipt not by the government officer
but by the corporate defendant. If it is served
upon the agent, 15 days lang. If it is served upon
the representative, it is also 15 days.
If it is a domestic private corporation, summons
may be served to the president, the managing
partner, general manager, corporate secretary,
treasurer and the in-house counsel. Note that
this is exclusive under the Villarosa doctrine.
You better memorize that because the
doctrine now is it is exclusive, the
enumeration there is exclusive. As held in the

case of Mason vs CA which reiterated the
Villarosa doctrine.
Lets go back to the modes because another
situation here is when the defendant is outside
the country. When the defendant is outside the
country, normally what comes into your mind is
that service of summons must also be made
outside the country as well. That is why you call
it extraterritorial service of summons under
section 15. You connect that with section 14 and
16 because they have the same mode when the
whereabouts of the defendant is unknown or
when the defendant is temporarily outside the
country.
What is the case of Valmonte vs CA?
When you speak of extraterritorial service under
section 15, it does not follow that you must
always have to do it with publication, No!
The first mode of extraterritorial service is
service on the person of the defendant. So even
if she is a residence of Washington, they could
have ask the sheriff by giving him a round ticket
to Washington, and serve the summons there.
That is within the range but of course it is very
impractical, youll never do that because the
sheriff will not accept it and ask for another ticket
for his wife.
The second mode is through substituted service
but who will substitute for that? Now your course
is through publication.
Q: But look at the any other mode that may be
authorize by the court what is this? Can you
give me an example of this?
A: This is upon the discretion of the court but
what are the instances of doing that? Through
the Philippine Embassy, through the courier
(LBC, Fedex), but it must always be by leave of
court, Yan ang importante. Sometimes when you
ask the court for any other mode, it will tell you
send it by registered mail.
Q: So when you are asked can there be
summons by registered mail?
A: Ordinarily not but it can fall under any other
mode directed by the court as long as you
present to the court the registry receipt. That
would fall under any other mode directed by the
court.

23
December 06, 2006

Summons is how the court acquires
jurisdiction over the person of the defendant.
Q: How is summons served?
1. Service on person of the defendant
Note: It is not called personal service
anymore to distinguish it from sec. 6
pleadings and judgment but rather it should
be called Service in person of the
defendant. In 1964 rule we call that
personal service but under the present rule
it is now known as service in person of the
defendant. So if you say personal service it
will be marked wrong because there is no
more personal service of summons,
technically speaking, because the rule
already calls it service in person of the
defendant.
Note: There is no service by mail of
summons, the rationale thereof is that the
completeness of the service would be
doubtful and since summons is the way by
which the court acquires jurisdiction of the
person of the defendant hence jurisdiction
may not be acquired, and there is always a
question.
A: It depends, because what is required is a

person who is of sufficient age and
discretion. The age refers to one who has
discretion. So even if he is a minor but he
has discretion he can still received
summons. Age here does not mean age of
majority. Definitely a child of 2 cannot
receive it due to lack of discretion but a
student of 15 years old may receive it
because he has discretion.
Q: Can a janitor in the office receive it?
Why?
No, because he is not in charge of the office,
such summons must be served to a person
in charge of the office.
Q: Can a secretary receive it? Yes, because
ordinarily secretaries are the ones in charge
in the office and there are a lot of
jurisprudence that tells us that receipt of
secretary of summons is a valid service.
Q: In the residence?
A: Any person who is a resident thereof and
of sufficient age and discretion.
3. Publication
When one whose whereabouts are unknown
(sec 14) or where one is temporarily outside
the country (sec 16) summons by publican
may be done. But in the case of Mason vs.
CA, you have to consider the kind of action
in order to avail that mode of service
available, so that service of summons by
publication is not allowed in action strictly in
personam.
Eg.
Action
for
specific
performance, damages, claims etc.
Q: If Mr. A married to Ms. B who is a nurse
in Saudi Arabia and Mr. A has filed an action
for annulment of their marriage, how can
summons be served? A: Summons by
publication may be done on the ground that
annulment of marriage is a personal action
but not an action in personam. The subject
matter of an annulment case is the status of
a party from that being married wanting to
revert back to singlehood. Status as subject
matter is not strictly in personam, service of
summons may be done by publication and
together with furnishing a copy of the
summons and complaint in the last known
address which is the address in fact of the
plaintiff.
Q: May a minor receive summons?
4. Extraterritorial Service
2. Substituted service
Q: Is there a substituted service of
pleadings? How do you distinguish
substituted service of summons with
substituted service of pleadings?
A: Yes. Substituted service of pleadings and
other processes is to the clerk of court. That
substituted service is at the place of
residence or at the place of business or
office.
Q: In the office, who should received it?
A: The person who is in charge thereof.

24
Note: The mode of extraterritorial service is

also by way of publication.
Q: There are 3 ways of extraterritorial
service of summons.
a. Service in person of the
defendant
b. Publication together with the
sending of the copy of the
summons and the complaint at
the last known address of the
defendant
c. any other mode as directed by
the court
Note: There is no service of summons by
registered mail. If the court order that it must
be mailed to the Philippine embassy where
the defendant may be residingthat falls
under sec 16.
Q: What if the court ordered that summons
be served by registered mail, shall it be
valid?
A: Yes it is valid but not because registered
mail is allowed but because it is a mode of
service ordered by the court. Or if the court
deems it proper to order the sheriff to send
the sheriff there, but that would be already
service of person of the defendant.
Note: Under extraterritorial service there is
no substituted service under sec 15
Q: Where is service of summons deemed
completed?
A: Service on person of the defendant and
substituted service is completed upon actual
receipt. Note that in substituted service it is not
the defendant who received it, it may only by
representation but actual receipt of the
representatives completes the service. If the
service is by publication, it is deemed completed
upon the completion of the publication.
Q: How is the completion of the service of
summons by publication proved? A: Completion
thereof may be proven by affidavits of any
person involved in the publication of said
summons, eg the editor, circulation manager,
publisher etc. any affidavit of said person will
establish proof of service of summons.
Q: Who are the persons or different kind of

defendants to whom summons must be served?
A: It must be served to the prisoner through the
warden. It must be served to a minor,
incompetent and its parent or guardian. It must
be served to an insane and parent or guardian.
When we go to another defendant, an artificial
being, a corporation, we divide it into 2, which
can be a foreign corporation or domestic
corporation. The rule now is quite strict to a
defendant of a private domestic corporation.
Cases of Baliwag transit which you have
studied, of Palsak enterprises, those of Phil oil,
of Medialay vs Fernando no longer apply. They
were all overturned by the strict provision of the
rule.
Q: These defendant corporations, private
domestic corporation are required to be served
only through specific individuals who are these
persons?
A: Service may be made on the president,
managing partner, general manager, corporate
secretary, treasurer, or in-house counsel. In the
old rules summons may be made on the cashier
and agent, but in the present rules they are not
included anymore.
Q: What is the Villarosa doctrine?
NOTE: Remember that there is no prohibition
regarding substituted service when defendants
are public corporation in other words substituted
service is not disallowed, meaning it can be
availed of. However there is an exact
jurisprudence in the matter so indirectly we can
apply the doctrine laid down in Mason vs CA as
well as Jose vs Boyo.
Q: Where it was established that in order that
the service of summons be considered valid the
following must concur:
A:
1. that it must be actually received;
2. that the person who received it must be duly
authorized;
3. and that there must be evidence to the effect
of 1 and 2;
4. but most importantly you must establish the
relationship of the person who received it
with the corporation.

25
Somehow, this relaxes the doctrine under

Villarosa, because the doctrine in Villarosa if we
strictly implement it, all the corporations could
never be sued.
Q: If you sue SMC and summons would be
served to the 6 as enumerated under Sec 11,
will you ever find them?
A: Before you reach anyone of them you have to
pass through several rooms, through several
personalities just to serve the summons. Note:
substituted service is not prohibited although
there is no clear cut jurisprudence on the subject
matter, as of now there is none.
Q: To whom was the summons served in the
Villarosa? In Millenium vs Tan to whom was it
served?
NOTE: Remember that if a corporation is the
plaintiff, the address of the corporation should
not be the branch office, it must always be the
principal office. That is why MERALCO for
example, there are several offices through out
the country, that if you want to send summons
upon MERALCO you have to serve it in the
principal office and not in any of its branches. Be
sure that the defendant is properly identified
branch manager so that you can served it
properly.
The other mode in which the court acquire
jurisdiction over the person of the defendant is
through VOLUNTARY APPEARANCE.
Q: When is a defendant deemed to have
voluntarily submitted to the jurisdiction of the
court?
A: When the defendant files a pleading other
than a motion to dismiss.
Q: Is filing a motion cannot be construed that the
defendant voluntary submitted to the jurisdiction
of the court? Irrespective of the ground for the
motion to dismiss?
A: When the defendant asks for affirmative relief
from the court he is considered to voluntarily
submitted to the jurisdiction of the court hence
there is voluntary appearance.
It started in the case of Medialey vs Fernando
when a defendant file a motion to dismiss on the
ground of lack of jurisdiction he is not
considered to have submitted himself to the

jurisdiction of the court but if over and above the
ground of lack of jurisdiction he avails of other
grounds for a motion to dismiss then he is
considered to have submitted himself to the
jurisdiction of the court.
This jurisprudence is no longer correct because
in the doctrine of the La Naval case states that if
a defendant files a motion to dismiss on the
ground of lack of jurisdiction and other grounds
he is not considered that he has submitted
himself to the jurisdiction of the court.
And the latest case on the matter is that of
Millenium Industrial vs Tan which says that in
order for the court to acquire jurisdiction over the
person of the defendant by voluntary
appearance, there must be an unequivocal
submission (and intentional submission) of
himself to the jurisdiction of the court. So if it is
equivocal then the court does not acquire
jurisdiction.
These somehow modified the old doctrine which
says that when a defendant secures or ask for
affirmative relief he submit himself to the
jurisdiction of the court. That doctrine was
modified by Millenium vs Tan. Because even if
you seek affirmative relief but you do not
categorically submit yourself to the jurisdiction of
the court. This seems contradictory, Why?
Because if you are seeking affirmative relief from
the court you want to the court to give you relief
but at the same time you are questioning the
jurisdiction of the court to give you relief.
NOTE: Under the grounds enunciated in Sec 1
Rule 16, that cannot happen but remember that
under said grounds are not exclusive, there are
other grounds for motion to dismiss. In fact in
sect 1 the filing of motion to dismiss is before
filing an answer but it does not follow that after
answer you can no longer file a motion to
dismiss. You can still file a motion to dismiss on
other grounds.
Q: Where can you find that? Rule 17 sec 3 on
dismissal of action those are other grounds:
A: If, for no justifiable cause, the plaintiff fails to
appear on the date of presentation of his
evidence in chief on the complaint, or to
prosecute his action for an unreasonable length

26
of time, or to comply with these Rules or any

order of the court, the complaint may be
dismissed upon motion of the defendant or upon
the courts own motion, without prejudice to the
right of the defendant to prosecute his
counterclaim in the same or in a separate action.
This dismissal shall have the effect of
adjudication upon the merits, unless otherwise
declared by the court.
In these cases you can file a motion to dismiss
even after an answer has been filed even during
the hearing of the case.
Q: If a defendant files a motion for extension of
time to file an answer, is that voluntary
appearance?
A: When a defendant files a motion for
extension of time to file an answer, he is
deemed to have submitted himself to the
jurisdiction of the court. As if he has already filed
an answer, because filing an answer is voluntary
appearance. Even if defendant has not recieved
the summons but he filed an answer to the
complaint, he submits himself already to the
jurisdiction of the court under Sec 20 of rule 14.
and it has been construed when the defendant
instead of filing an answer files a motion for
extension of time to answer he has deemed to
file an answer under the doctrine that he
voluntary submitted himself to the jurisdiction of
the court but not when he files a motion to
dismiss even if his motion to dismiss is
grounded on other grounds other than lack of
jurisdiction. With more reason therefore, that if a
defendant files a motion to dismiss on the
ground of lack of jurisdiction the court does not
acquire jurisdiction over the person. That is not
voluntary appearance.
Q: Is a motion the same as a pleading?
A: Sec 1 Rule 15 a motion is an application for
relief other than a pleading. Meaning a motion is
different from a pleading. It is not a pleading
technically speaking.
Q: A and B parties to a case, upon receipt of
summons by B, instead of filing an answer he
files a motion to dismiss, is he deemed to have
voluntarily submitted himself to the jurisdiction of
the court?
Q: We said that motion is not a pleading

because in a motion we always ask for relief.
Motions are of 2 kinds they are?
A: Litigated and non-litigated motions.
1. A litigated motion is one which requires a
hearing while a non-litigated motion is one
which does not require a hearing.
2. Non-litigated motions does not require a
hearing because they are not prejudicial to
other parties. Eg motion for continuance,
motion for postponement although under a
circular of the SC a motion for
postponement may not be litigated but you
have to pay P100 for the postponement.
Litigated motions require hearing because
they prejudice other parties. Eg motion for
reconsideration
NOTE: When we talk about litigated motions it
does not automatically follow that the court will
set it for actual hearing like presentation of
evidence, it merely means that the other party is
given the opportunity to answer, respond,
comment.
NOTE: Sec 4, 5 and 6 are mandatory under
Rule 15. every motion must be set for hearing,
notice of hearing shall be served upon all parties
concerned, and proof of service must be
presented otherwise lack of any shall make the
motion a mere scrap of paper. Note that it must
also comply with sec 2 that is must be in writing
because it is a litigated motion.
Q: What is the proof of service in motions?
A: Rule 13, it depends upon how you served it.
1. If you served it personally, in actual receipt
the signature of the recipient.
2. If served by registered mail, the registry
receipt.
3. If served by ordinary mail in the absence of
registered mail then 10 days from the
deposit to the post office.
Q: What is the time frame for hearing and
notice?
A: Notice must be given 3 days before actual
hearing and hearing must be set within 10 days
from filing of the motion.
Suppose you file it in dec 5, hearing shall be set
not later than dec 15 except if the service is by

27
registered mail because in registered mail

chances are that it would not be received by the
party in that period. So it would be a case to
case basis, that is a very general rule that is
subject to a lot of exceptions the 10 day period.
But not the 3 day notice rule, that is not subject
to exception that is differentiated from the 10 day
setting rule.
Q: What is the 3 day notice rule?
A: The 3 day notice rule requires that 3 days
prior to the set hearing the notice should have
been received by parties. The 3 days notice rule
is not about the notice but it is about the receipt
of notice by the adverse party.
Therefore, the 3 days notice rule requires that
the notice must be received by the adverse party
at least 3 days before the scheduled hearing.
That would show you that the 10 day setting rule
is not mandatory. Because cannot be complied
with if service was done through registered mail.
Note the 3 day notice rule is notice made by the
movant, the court does not notify anymore. It is
the movant that sets the date for hearing and the
party must have received it 3 days before the
scheduled hearing.
Q: Oral motions are they litigated or nonlitigated?
A: Non-litigated
Q: What is the omnibus motion rule?
A: Sec 8 Rule 15 a motion attacking a pleading,
order, judgment or proceeding shall include all
objections then available, and all objections not
so included shall be deemed waived subject to
the provisions of rule 9 sec 1.
Q: Exceptions to the Omnibus Motion rule?
A:
1. Court has no jurisdiction over the subject
matter;
2. That there is an action pending between the
same parties for the same cause; or
3. That the action is barred by a prior judgment
or by the statute of limitations.
Q: To whom do you address the notice of the
hearing?
A: To the clerk of court, however the rules says
that the notice is not to the clerk of court, it must
be to the adverse party who ever the counsel of
the plaintiff. But jurisprudence however because

it is the plaintiff who sets it in the calendar for
hearing whether to approve it or not, the SC in
many line of cases has decided that that kind of
notification (addressed to clerk of court) is
substantial compliance provided that you state
copy furnished to counsel of the plaintiff by
registered mail pursuant to sec 11 of rule 13
because of distance.
Note: The priority of service is personal service
and if by registered mail explain why you are
sending it by registered mail and not personal
service.
Rule 16
Q: What are the grounds for a motion to
dismiss?
A: Rule 16 Sec 1. Within the time for but before
filing the answer to the complaint or pleading
asserting a claim, a motion to dismiss may be
made on any of the following grounds:
a. that the court has no jurisdiction over the
person of the defending party
b. that the court has no jurisdiction over the
subject matter of the claim
c. that venue was improperly laid
d. that the plaintiff has no legal capacity to sue
e. that there is another action pending between
that same parties for the same cause
f. that the cause of the action is barred by a
prior judgment or by the statute of limitations
g. that the pleading asserting the claim states
no cause of action
h. that the claim or demand set forth in the
plaintiffs pleading has been paid, waived,
abandoned, or otherwise extinguished
i. that the claim on which the action is founded
is unenforceable under the provisions of the
statute of frauds
j. that a condition precedent for filing the claim
has not been complied with
Q: What is the statute of frauds?
Q: What are these condition precedent?
A:
1. Non compliance of barangay conciliation
proceedings; and
2. When the action is between relatives and no
earnest effort for amicable settlement has
been availed of.

28
Under the barangay conciliation proceeding

which used to under PD1508 which was later
repealed but it still applies this barangay
conciliation proceeding because the provisions
has been granted to the local government code.
It is required that before any action is filed with
the court it must first pass through the barangay
conciliation proceedings.
Q: What are the 6 exceptions?
a. an action wherein 1 of the parties is a
government instrumentality
b. when a public officer is involved and the
action involved his public office
c. where one of the parties is a corporation
d. If the parties resides in different cities or
municipalities except when they voluntarily
submit themselves in the proper forum and
the barangay in which they reside is
adjacent to each other. So even if the parties
reside in different cities or municipalities but
they reside in a barangay who is adjacent to
each other there is still a need for barangay
conciliation.
e. When the action avails any of the provisional
remedies
NOTE: So the general rule before an action be
admissible in court is that there must be a
certificate to file an action from the barangay
attesting to the fact that it has passed through
the barangay conciliation proceedings and that
there was no settlement in such proceeding.
The 2nd condition precedent is where an action
involves member of the same family and not
earnest effort for amicable settlement were
availed of.
Q: Who are members of the same family? How
about the in-laws?
A: Only family members of ascendants,
descendants and collateral relatives up to the 2 nd
degree (brothers and sisters). In-laws are not
included in family relations. Relationship by
affinity are not included. Note that this is
irrespective of where they reside, there must still
be earnest effort for amicable settlement.
NOTE: Dismissal of action on the ground of
condition precedent for filing has not been
complied with is without prejudice which means
an action regarding the same action may be filed

again.
NOTE: Remember that prior to the case of Ebel
vs Amin (?) barangay conciliation proceedings
was jurisdictional but because of the case .
The barangay requirement for conciliation, the
absence of which is no longer jurisdictional.
Which means that because it is not anymore a
matter of jurisdiction, if you dont contest it you
are considered to have waived it.
Q: Then on what is it grounded?
A: It is grounded on what is called prematurity.
Because of the fact that it is premature the
courts now does not dismiss the case but only
suspends the proceeding subject to compliance
with the barangay conciliation.
NOTE: There is a provision in Rule 17 regarding
unlawful detainer and forcible entry, sec 12
thereof, where it specifically state that it would
be premature to file an unlawful detainer or
forcible entry case without complying with the
condition precedent. Although it says subject to
any the same, the exceptions that weve
enumerated if that is present then there is no
need for barangay conciliation.
Now venue improperly laid as the 4 th ground.
Venue is also not jurisdictional, it is only
jurisdictional in criminal cases but in civil cases it
is not jurisdictional. That is why when you look at
a motion to quash under criminal procedure
venue is a ground because venue is
jurisdictional.
Venue is also waivable, a night before the
1997 rules, if you want to invoke venue as a
ground for motion to dismiss, you have to file a
motion to dismiss in invoking it, now no longer
even if you do not file a motion to dismiss on the
ground of improper venue you are not barred
from invoking improper venue as an affirmative
defense in your answer.
Jose vs Boyon there was no valid service of
summons
Jurisdiction by subject matter conferred by law
specifically by the constitution, BP129, and
RA7691.

29
Q: What are the requirements of litis pendencia?

What are the requirements of litis pendencia as
ground for motion to dismiss?
a. identity of parties
b. identity of subject matter
c. identity of cause of action
The term same parties here identical parties.
Same parties in litis pendencia and res judicata
does not refer to identical parties, it only refers
to identity of interest.
Q: If the case is between A and B judgment
rendered in favor of A over a property supposing
it is an action publiciana regarding property A
was the plaintiff B the defendant. 3 or 4 years
after the son of A who is X filed a case against
the son of B who is Y. the case now is not
between A and B but between X and Y. can you
ask for motion to dismiss on res judicata?
A: Yes. Remember it is not identity, similarity of
parties does not mean identical parties but
identical subject matter, identical cause of
action, and identical interest. But take note of
the requirement of identity of subject matter, it is
strict identity of subject matter.
So that if A and B quarreled over a parcel of land
located in Makati under an action publiciana
case and then A and B over the same quarreled
over the property located in cebu under the
same cause of action which is action publiciana
there is no res judicata or litis pendencia. If that
is barred by prior judgment or estoppel but not
under each other term which is conclusiveness
of judgment because res judicata is of 2 forms,
the first one is estoppel or bar by prior judgment,
this is the strict kind of res judicata. The other
one is conclusiveness of judgment, where do
you find that? Sec 47 Rule 39 distinction by res
judicata bar by prior judgment as distinguished
from conclusiveness of judgment.
A: It depends upon the movant. He can asked

for the dismissal of either case. Any case may
be prayed for the dismissal by the party.
Lack of cause of action is a misnomer because
as discussed before cause of action is the lack
or omission. This should be lack of right of
action. This should not be confused with
insufficiency of cause of action. Because there
are some books which says that insufficiency of
cause of action is a ground for motion to
dismiss, that is wrong. It is lack of cause of
action which is ground for motion to dismiss.
Q: Why is it so?
A: Because in insufficiency of cause of action
there is a cause of action but there was error
only in the presentation. And because there was
only error in the presentation it is subject to
amendment. Remember that a motion to dismiss
is not a responsive pleading and therefore
amendment is still a matter of right. But if it is a
lack of cause of action then definitely there is no
cause of action.
Q: Lack of cause of action should be
distinguished from lack of legal personality to
sue.
A: One resides in the cause of action while the
other resides with the person. A corporation
example who sues without the proper board
resolution that is lack of legal personality to sue.
A minor who sues without the assistance of
parent or guardian or guardian ad litem it is
suing without legal personality to sue. In lack of
legal personality it lies in the person, it is
inherent with the person while the lack of cause
of action is inherent in the right of the person.
Q: What are the requirements of res judicata?
A:
1. there must be a valid judgment must be
rendered by a court of competent jurisdiction
If a party moved for the dismissal of the case

through litis pendencia it is presumed that there
is more than 1 action pending between the
parties.
2. valid judgment must be based on the merit

of the case
3. that there is identity of parties, cause of
action, and subject matter
Q: Which action should be dismissed? The 1st or

the 2nd?
Q: What is judgment of the merits?

A: Judgement based on the evidence presented
to the court

30
Q: Is it necessary that there should be a

hearing?
A: Judgment of the merits does not require a
hearing, it merely means that all the parties were
given the opportunity to defend and to assert
their claim. That is why a judgment of a pleading
is a judgment on the merit, a judgment by
default is also a judgment on the merit.
Judgment by compromise is a judgment on the
merit, a summary judgment under the rules 32
33 34 are judgment on the merit even if there is
no actual hearing. As long as the parties were
given the opportunity to defend and to assert
their claim.
Q: Which of these grounds are when such are
used the dismissal is always with prejudice?
A:
a. Res judicata;
b. That the claim or demand set forth in the
plaintiffs pleading has been paid, waived,
abandoned, or otherwise extinguished;
c. That the claim on which the action is
founded is unenforceable under the
provisions of the statute of frauds
Q: What are the statute of frauds? What are
unenforceable obligation? Enumerate them.
Under Rule 16 you file a motion to dismiss
before an answer. You have to file an answer
after receipt of summons within 15 days if
regular 10 days if summary.
Q: What is the effect if the motion to dismiss is
denied?
A: Then you must file your answer within the
balance of the period.
Q: Summons was received by the defendant B
on dec 5, he has until dec 20 within which to file
an answer. On dec 18 he filed a motion to
dismiss which was later denied, when should he
file his answer?
A: Note the denial was dec 18, it is not receipt of
such denial. Answer should be filed 5 days after
the receipt of the denial. Notice of denial could
be received on febraury. The rule says you have
the balance of the period but not less than 5
days from notice.
Q: What notice is referred to there?
A: Notice of the denial of the motion to dismiss.

If receipt is Feb 5 then you have till Feb 10 to file
an answer.
Q: If the motion to dismiss is denied, can B the
movant appeal its denial? Why?
A: Because it is not appealable being an
interlocutory order. He must file his answer,
although if there is a grave abuse of discretion
he may file certiorari under rule 65. but suppose
it is granted, thus favorable to B.
Q: What is the remedy of A?
A: You can appeal.
Q: Why can you appeal an order granting but
you cannot appeal an order denying?
A: Because an order of granting the motion to
dismiss is deemed to be a final order hence it is
appealable.
Q: What is appealable?
A: Only final orders are appealable.
December 7. 2006
Q: What are the remedies in case a motion to
dismiss is denied?
A: The remedies are:
1. Filing of a motion for reconsideration;
2. Filing a special action for certiorari under
rule 65 in case of abuse of discretion
amounting to lack of jurisdiction; and in the
absence of such
3. File his answer to the complaint.
Note appeal is not available in the denial of a
motion to dismiss because it is an interlocutory
order.
Q: If the motion to dismiss is granted what is the
remedy of the plaintiff?
A: He may file an appeal.
Q: Why does the rule allow the plaintiff to appeal
but disallows the defendant to appeal?
A: Because an order denying an appeal is
merely an interlocutory order while an order of
granting a motion to dismiss is already a final
order or resolution.
NOTE: It must be remembered that only final
order or resolution may be appealed. And

31
because of the fact that there is no other remedy

under the ordinary course of law from the part of
the plaintiff, that is why the rule gives him the
right to appeal.
NOTE: Remember that the enumeration stated
under sec 1 of rule 16 is EXCLUSIVE. There are
no other grounds of a motion to dismiss under
Rule 16. In other words there are other grounds
for dismissal of actions under other rules but not
under rule 16 because as it is so provided this
motion to dismiss under rule 16 can only be
availed of BEFORE answer is filed. After that
you can no longer avail unless for a very, very,
very meritorious reason. Just remember that you
can no longer file a motion to dismiss under sec
1 rule 16 AFTER you have filed an answer.
Q: How about the omnibus motion rule where in
the exemption is jurisdiction?
A: It is a ground available at any time, even
during certiorari or on appeal that is
exceptional, very extraordinary. Although there is
an exception to the exception unless you are
estopped. Guerero v CA (?)
Q: May a court not resolve a motion to dismiss
and order the same to be resolved together with
the case?
A: No, because sec 3 rule 16 the court shall not
defer the resolution of the motion for the reason
that the ground relied upon is not indubitable.
Q: What is the rationale of the rule of such non
deferment of resolution of a motion to dismiss?
A: To prevent delay, if the court has no
jurisdiction then it would only be waste of time
for the court to continue.
Now if the court has no jurisdiction why would
the court rule on something it has no authority?
It is not even residual jurisdiction. It is a waste of
time, money and effort for the court in deferring
the resolution of the motion on the ground of
lack of jurisdiction. After all, if he renders any
judgment without jurisdiction then the judgment
is totally and absolutely null and void.
Rule 17
DISMISSAL OF ACTIONS
Sections 1 and 2 are dismissal of actions by the

plaintiff.
Q: Why would the plaintiff who was in the first
place cause the action would cause the
dismissal of the action?
A: It should be emphasized that in rule 17 there
is no grounds stated, in all others they all speak
of grounds. The rule does not state any grounds
for the plaintiff to ask the dismissal of the case
because it would always be good for the entire
society as a whole if there are less cases. And
there are one to a million grounds that a plaintiff
may use to dismiss a case. He may even state
that he was wrong in filing the case.
Q: If A files an action against B in RTC Makati,
claiming P250k and before summons has been
serve to him, he realized that the trial court has
no jurisdiction over the subject matter, so he
filed a notice (sec 1) of the dismissal of action.
And it was dismissed and he again filed the case
for a sum of money against the defendant this
time for P500k before the RTC because some
obligations has matured. And in the end before
summons has been served he found out that the
defendant B, is the best friend of his former
girlfriend, who asked him to drop the case. He
could not refuse because several years ago, she
also does not refuse.. and again A filed a
notice for the dismissal of the case. Then later
on he found out that B was courting his former
girlfriend. Can he again filed a 3rd case against
B? A: He can still file, the 2 dismissal rule will
not apply if any dismissal is due to lack of
jurisdiction over the subject matter. The 1st notice
of dismissal is due to lack of jurisdiction over the
subject matter that therefore will deprive the
adverse party to question the 2 dismissal rule.
The 2 dismissal rule will apply only to causes
other than jurisdictional.
Q: When A files a notice of dismissal, when will
the dismissal take effect?
A: It will take effect upon issuance of the order
of the court confirming the dismissal of the case.
NOTE: That order of the court is mandatory
without which the dismissal does not take effect.
Unlike the rules prior to the 1997 rules, there
was no need for the order of confirmation but
under the present rules, the order of
confirmation is necessary to effect the notice of

32
dismissal. Notwithstanding the fact that there

was no one who was prejudiced here.
prejudiced to the defendant that

compulsory counterclaim continues.
Dont be confused here in what we studied

about amendments, it is a matter of right which
is about also the same period before answer has
been served. So even if answer is filed if it has
not been served still the notice is applicable.
A file a case claiming 1M, B the defendant says

I dont owe you in fact you owe me! B filed
counterclaim of 3M, in the claim atty fees 100k
in the counterclaim, atty fees 300K. Suppose it
is true, it has already caused prejudice to the
defendant, the defendant already paid his
lawyer. He can never go back to his lawyer and
say return to me the 300K I paid you the
lawyer would say I will return you my wife but
not my 300K
Section 2 is no longer by notice but by motion

by the plaintiff. But this time answer is already
been filed and served to the plaintiff.
Q: So that if the answer contained a counter
claim what is the effect if the motion to dismiss
filed by the plaintiff is granted?
A: The motion to dismiss merely affects the
claim of the plaintiff and not the counter claim of
the defendant.
Q: What kind of counter claim is that?
A: The rules apply whether compulsory or
permissive counter claim
Q: What is the nature of a compulsory
counterclaim as distinguished to that of a
permissive counterclaim?
A: A compulsory counterclaim is one which
arises from the same transaction or series of
transaction as that of the claim. While a
permissive counterclaim is one which does not
arises from the same transaction or series of
transaction as that of the claim
Q: So can there be a compulsory counterclaim
without a claim?
A: No, a compulsory counterclaim only exists
because a claim exists.
Q: So if you remove the claim, on what legal
footing will the compulsory counterclaim stand?
So why do you say that in spite of the dismissal
of the complaint, a compulsory counterclaim still
exist and continues?
A: Because although the plaintiff has caused for
the dismissal of the original claim he has already
laid the ground for the counterclaim. If the
defendant filed a counterclaim and plaintiff
decides to withdraw his claim he has already
laid the ground for the counterclaim of the
defendant. But the legal rule here under
jurisprudence, because it has already caused
is
why
NOTE: It should be emphasized that prejudice

has been caused here, that is why Sec 2 does
not distinguished whether the counterclaim is
compulsory or permissive. Whether the
counterclaim is compulsory or permissive, the
dismissal by a motion of the plaintiff is limited
only to the complaint.
Q: So what happens to the counterclaim?
A: The defendant has the option whether the
counterclaim be prosecuted in a separate action
or that it be resolve in the same action by giving
notice to the court within 15 days by a motion
manifesting his preference to have his
counterclaim resolved in the same action.
Sec. 3 Dismissal by the Defendant or by the
Court.
These are the only instances where the
dismissal can be done motu proprio. In all cases
of the dismissal we have studied it must be by
motion or notice but here it can be done motu
proprio.
Q: What are these instances?
A:
1. If, for no justifiable cause, the plaintiff fails to
appear on the date of the presentation of his
evidence in chief on the complaint; or
2. Failure to prosecute his action for an
unreasonable length of time; or
3. Failure to comply with the Rules or any
order of the court
4. If an action is governed by summary
procedure the court can dismiss an action
motu proprio, even without any motion.
Q: If there is a motion filed?

33
A: Good, it would be much better, it does not

prohibit a motion to give effect.
Q: How unreasonable is unreasonable length of
time?
A: The unreasonable length of time depends
upon the discretion of the court, there is no hard
and fast rule. It depends upon the circumstance
surrounding the case.
Do not be mislead by the word evidence in chief,
evidence in chief is not only on the part of the
plaintiff, there is also evidence in chief on the
part of the defendant.
NOTE: Sec 3 also applies as counterclaim,
crossclaim or any other complaint even
intervention.
There are 3 grounds there, but let me add
another under the rules on summary procedure,
if an action is governed by summary procedure
the court can dismiss an action motu proprio,
even without any motion.
Rule 18
PRE TRIAL--AMENDED PRETRIAL
The term preliminary conference is not limited
now in actions governed by summary procedure
because in the amended Rule 18, they are now
using the term preliminary conference. Now
there are preliminary conferences in both
actions governed by summary procedure and by
the rules governed by regular procedure.
Q: Is there pretrial in criminal proceedings?
A: Yes, Rule 118. Both in civil and criminal
cases, pretrial is mandatory. Unlike before it was
mandatory only in civil cases but not criminal
cases. Under the present rule pretrial is
mandatory in both civil and criminal cases.
Section 1
After the last pleading has been served and
filed, it shall be the duty of the plaintiff to
promptly move ex parte that the case be set for
pretrial. Hence it is no longer the duty of the
court but the duty of the plaintiff after the last
pleading has been filed which is a reply, if reply
is necessary. If no reply is file the plaintiff now
can file a manifestation and motion to set the
case for pretrial copy furnished of course.
This motion is not litigated because there is no

prejudice to the other party, like motion of
postponement but it is still necessary to furnish a
copy of your pleading/motion to the adverse
party.
Q: What is the purpose of pretrial?
A: Under section 2:
a. the possibility of an amicable settlement or
of a submission to alternative modes of
dispute resolution
b. the simplification of the issues
c. the necessity or desirability of amendments
to the pleadings
d. the possibility of obtaining stipulations or
admissions of facts and of documents to
avoid necessary proof
e. the limitation of number of witnesses
f. the advisability of a preliminary reference of
issues to the commissioner
g. the propriety of rendering judgment on the
pleadings, or summary judgments, or of
dismissing the action should a valid ground
therefore be found to exist
h. the advisability or necessity of suspending
the proceeding
i. such other matters as may aid in the prompt
disposition of the action
Q: What is the objective of pretrial?
A: The purpose is to expedite the proceeding.
If the plaintiff does not file a motion for pretrial it
is incumbent upon the court to set it for pretrial.
So the plaintiff is now given the preference here
as to when to set it. But now you dont
immediately hold the pretrial but rather you have
what you call mediation and conciliation
proceeding. This is the main amendment to the
pretrial rule. You already went to the barangay,
then to the court, the court will still refer you to a
pseudo barangay, I call it pseudo barangay
because the conciliators and mediators are not
lawyers, some of them are retired court
personnel. But it is not necessary that they have
legal background because the objective here is
to help the parties meet and come out with a
settlement. Still the objective is to expedite the
proceedings and to avoid trial in court and in
effect it would declog the dockets of the court.
Q: If there is no settlement what will happen?

34
A: They will return to the court, they have the

maximum of 30 days to arrived at an amicable
settlement. This 30 day period is extendable to
another 30 days and if there is still no settlement
the conciliator will refer the case back to court.
Once you go to court you proceed to preliminary
conference, before the branch clerk of court.
And what happens in sec 2 of rule 18 that is now
the procedure in the branch clerk of court
marking of evidence, simplification of issues,
stipulations
and
admission,
naming
of
witnesses, agree on judicial affidavit etc but
before the clerk of court do that, he would still try
to arrived at a settlement.
defendant may move for the dismissal of the

case. If the defendant is absent, the plaintiff may
move to be allowed to present evidence ex parte
and on the basis of which the court may render
judgment.
Q: What is the meaning of judicial affidavit bago

yan la pa sa rules?
A: Judicial affidavit is that the parties do agree to
have testimonies through judicial affidavit then
submission of affidavits will suffice to constitute
the direct testimonies of witnesses subject to
cross examination.
Saguid doctrine
Lack of counsel is not a persuasive ground to
set aside the order of as in default. It was also
ruled not to belittle the pretrial because it may
make or break your case.
NOTE: Remember that those which have not

been marked in the preliminary conference as a
general rule shall not be admitted and those
which has not been named as witnesses for the
parties could not testify. After these the branch
clerk of court will set a date for pretrial proper.
During pretrial proper, court would again try if
settlement can be made. If no settlement,
records in the preliminary conference shall be
the basis of the pretrial order. The pretrial order
is mandatory that it can be a ground of new trial
on the basis of irregularity, if the court proceeded
without a pretrial order. In the pretrial order it
would state the issues, the facts admitted,
limiting the issues kaya pagdating ng trial
maiksing maiksi na. but despite of these
umaabot pa rin ng 10 years ang mga trial.
Q: Under rule 18 the parties are mandated to be
present, what are the effects if a party is not
present?
A: If the plaintiff is not present it is ground for the
dismissal of the case, this is not one of the
grounds in rule 16 neither among the grounds
under rule 17. In rule 18 non appearance of the
plaintiff when so duly notified, in fact he was the
one who set it for pretrial, then he does not
appear and he does not have any representative
who has SPA to settle a settlement then the
NOTE: In the old rule it is a ground for the

declaration of a party as in default. Ngayon,
as we were discussing rule 9, WALA NG AS
IN DEFAULT ORDER.
People v Perez
Admissions in the pretrial are binding between
the parties
Rule 19
INTERVENTION
Q: What is the rule in intervention?
Q: What is the basis of intervention?
A:
1. Interest over the subject matter of the
litigation;
2. Interest in the plaintiffs cause;
3. Interest of the defendants cause or lack of
interest in both causes of that of the plaintiff
and the defendant.
Q: How will you illustrate these three (3)
situation? A filed a case against B for recovery of
parcel of land, accion publiciana. X is intervenor,
what may be the 1st situation on the part of X
who intervened?
A: X is the possession of said land or he may be
a tenant or he may be a mortgagee or he may
be an attaching creditor. Having interest on the
subject matter.
Q: What about the 2nd ground?
A: X is mortgagor then he has an interest.
Q: 3rd instance?
A: He could have been adversely affected by a
distribution or disposition of the property.

35
X is the true owner of property then the

adjudication of the property to A or to B would
adversely affect his right.
Q: If the intervenor is interested in the success
of the plaintiff, what should he file?
A: Complaint in intervention
Q: If the interest of the intervenor is in the
success of the defendant, what should he file?
A: Answer in intervention
Q: If hes interest is adverse to both plaintiff and
defendant what should he file?
A: Complaint in intervention
NOTE: Remember that in intervention, it can
only be filed by leave of court. And under the
rules when you file a motion for leave of court
you already attached your complaint in
intervention or answer in intervention. But you
cannot immediately file your compliant in
intervention or answer in intervention you have
1st to file a motion for leave to admit
complaint/answer in intervention and in your
motion attached already the intervention. Then
that would be the basis on granting your motion.
Q: If the motion is granted by the court what
happens now? Who will be the plaintiff and
defendants?
A: Depends upon the interest of the intervenor, if
he is interested in the cause of plaintiff, he shall
be a co plaintiff and defendant is still defendant.
If he is interested in the cause of defendant, co
defendant. But if his interest is adverse to both
he is the plaintiff and both of them are
defendant.
Note: It does not say before entry of judgment,

but before RENDITION of judgment.
Yao vs Perello
Q: Requirements of an intervention
A:
a. Legal interest (sec 1 rule 19);
b. Whether the adjudication of the rights of the
parties may be delayed or prejudiced;
c. That the intervenors right cannot be
protected in a different proceeding;
Note: In the delay aspect here even if it can be
proceeded upon or against a separate
proceeding but it would only delay the resolution
of the issue then it is incumbent upon the court
to admit the intervention. This is what
distinguishes from the doctrine laid down in the
Pinlac case.
You can only file an intervention in a case if it is
still within the period allowed by the court but
over and above, you have to establish your legal
interest in the intervention, the three (3)
requisites. And it would not cause delay.
Q: What would have happened if Judge Perello
allowed the intervention of Yao?
A: It would delay the adjudication of the case.
And the fact that the right invoke by Yao is not a
clear right, not distinct and questionable. In an
intervention your right must be clear, distinct and
beyond questionable. And it can be threshed out
in another proceeding, Yao may file another
action. It will not prejudice him if he files another
action.
Pinlac vs CA
NOTE: It must be remembered that the

intervenor is an outside party.
Q: How can the court acquire jurisdiction over
the person of the intervenor?
A: By that very motion for leave you already
submit yourself in the jurisdiction of the court.
Take note of the payment of docket fees.
Kailangan ito kasi you are an outsider here. You
have to pay the docket fee especially if you have
a claim depending to the amount of your claim.
Q: So the intervenor now files his intervention?
When can he file this intervention?
A: Any time before rendition of judgment.
Q: Service of summons through publication

allowed on the following circumstances:
A:
1. When the whereabout of the defendant is
unknown;
2. When the defendant is temporarily outside
the Philippines and
3. In extraterritorial service.
Here publication was allowed because there
were several parties and by leave of court
service by publication was made because some
of the parties whose whereabouts are unknown.

36
the case for judgment.

Defective publication because published not in a
newspaper of general publication.
SC allowed intervention of the RP when it is
against the rule because filed when the case
was already in the CA. SC allowed the
intervention because if not allowed it will cause
delay and if allowed it will not delay.
January 04, 2007
So you must have heard in Criminal Procedure
about the Speedy Trial Act, which only slowed
down the administration of justice because it
tended to expedite procedure that it only slowed
down.
Rule 30 speaks of trial. In the practice of law,
trial is the easiest part.
Q: There are 3 parts in the practice of law:
A:
1. Preparation of the pleadings
2. Trial
3. Execution
The easiest part is trial because you can always
prepare. The next is pleading, because you have
to research. The more difficult part is execution
which is Rule 39. And even academically
speaking, its quite difficult (Rule 39).
In trial, after all the pleadings have already been
accounted for, including the pre-trial order, the
clerk of court now schedules trial. There are
instances in the Rules where there is no more
trial. But that doesn't mean that parties are
denied their day in court.
There are judgments that do not pass through
trial and still these judgments may be
considered to be subject to res judicata. In
summary judgments, there is no trial. In
judgment of the pleadings, there is actually no
trial.
And the very good example are actions
governed by the rules on summary procedure in
civil cases. In fact or in effect, trial is already
prohibited. Because after submission of the
position papers, the rule provides that judgment
be rendered within 30 days from submission of
So trial is necessary because it provides the

parties opportunities to present their side but it
does not necessarily follows that without it there
is denial of due process.
Now, trial may either last that short or that long.
It all depends upon the nature of the case. But
as long as possible, you will note that the Rules
already tried to expedite the proceedings by
trying to cut short the trial period. One of the
new laws is the Speedy Trial Act but it is not fully
or truly implemented.
Q: You will note that in Rule 30, that under the
present rules there are only 2 grounds for
postponement. What are the 2 grounds for
postponement of trial?
A:
1. Postponement of trial on the ground of
absence of evidence.
2. Postponement of trial on the ground of illness.
Remember, these two are the only grounds for
postponement.
Q: What kind of evidence?
A: Documentary evidence, testimonial evidence,
and real or object evidence.
Q: When Rule 30 speaks of absence of
evidence, what kind of evidence does it refer to?
A: Refers to any kind of evidence, whether it is
testimonial, documentary or real or object
evidence.
Q: How would you distinguish that therefore
from absence of a party or counsel? Is that not
equivalent to absence of testimonial evidence, if
the party is not available to testify?
A: Absence of party or counsel is only limited to
illness. So that if a party or counsel is abroad,
that is the absence of evidence. What I'm trying
to drive at here is that the rule is very stringent
regarding now postponement, limiting the
grounds. In fact these limitations are the only
limitations.
Q: If you avail of illness as a ground, what is
required?
A:
1. A motion stating the ground relied upon must

37
be filed; and
2. The motion must be supported by an affidavit
or sworn certification showing:
a. The presence of such party or
counsel at the trial is indispensable;
and
b. That the character of his illness is
such as to render his nonattendance excusable.
Q: Whose affidavit?
A: By anybody. In fact now, the practice in court
is to have a medical certificate duly notarized.
Although the court cannot absolutely require
such certificate because there are conditions
which do not require medical attention.
Example:
LBM of lawyers. But if you say pneumonia, then
it is time that you submit a medical certificate.
Q: How long should the postponement be?
A: One month or three months in all. But that is
not really followed, it is only in paper. Although,
academically you have to know these things.
At trial, the rules also provide for the order of
trial. That order of trial must be distinguished
from order of presentation of evidence under
Rule 132.
Q: What is the order of trial? (Section 5)
A:
1. Plaintiffs shall adduce evidence in support of
his complaint
2. Defendants shall adduce evidence in
support of his defense, counterclaim, crossclaim and 3rd party complaint;
3. 3rd party defendant, if any, shall adduce
evidence of his defense, counterclaim,
cross-claim and 4th party complaint;
4. 4th party, and so forth, if any, shall adduce
evidence of the material facts pleaded by
them.
Q: Why does the rule do not provide for an
intervenor?
A: Because the intervenor would present
evidence after all the parties have presented
their evidence. Because the intervention can be
done anytime before rendition of judgment. So
he cannot be provided for in the Rules because
you do not know when the intervention will
come. The intervention may be after the

presentation of the evidence by the prosecution,
it can be in the middle or after the prosecution
has rested.
As long as the intervention has not get into the
picture, the court cannot determine as to when
to present evidence.
Q: Distinguish that from the order of the
presentation of witness (Rule 132).
A:
1. Direct examination.
2. Cross examination.
3. Re-direct examination.
4. Re-cross examination.
Q: The court should receive evidence from the
party. May the court or the judge delegate
reception of evidence?
A: Yes. Only in 2 instances. 1. In defaults and 2.
ex parte presentation which is ordered by the
court through a motion.
Q: To whom?
A: To the clerk of court who must be a member
of the bar, which means a lawyer.
Q: How should the trial be conducted? What is
the guideline in the conduct of the trial? Is there
something to be followed?
A: The trial must be conducted as to what is
stated in the pre-trial order. Pre-trial order is
mandatory so that if the court does not issue a
pre-trial order, that can be an irregularity which
is a ground for new trial under criminal
procedure and not civil procedure. Because in
civil procedure, new trial is limited to FAME,
newly discovered evidence.
Rule 31 - Consolidation and severance
Q: What is consolidation?
A: Consolidation involves several actions having
a common question of law or fact which may be
jointly tried.
Q: A files a case for specific performance
against B before the RTC Manila. Can there be
consolidation?
A: None. Because there can only be
consolidation if there are more than one case.
Q: Can there be severance in the same example

38
as above?
A: Yes.
Q: What are the 3 forms of consolidating cases?
A:
1. Recasting
2. Consolidation proper
3. Combination of both recasting and
consolidation proper
Q: Give an example of a possible consolidation.
A: Example given, A files a case for collection of
sum of money against B before the RTC Manila.
A filed another case for specific performance
arising from a different performance before the
RTC Makati.
Q: How are you going to consolidate those
cases as cited above? Paano ba ang magconsolidate? Do you file an action for
consolidation, motion or petition? Paano ba
ginagawa?
A: Hindi ba ang caption ng kaso ay Republic of
the Philippines, RTC Branch 35 Makati City. A
plaintiff vs. B defendant. Civil case # so and so.
Pag ni-recast mo yun, kasi 2 different kinds of
action. When you grant consolidation, isa na
lang ang caption. A vs. B Civil case # so and so.
Then A plaintiff vs. B defendant Civil case # so
and so. Isa na lang. Ni-recast mo. Parehong
dramatis personae.
It doesn't necessarily follow that you can only
consolidate if A is the same plaintiff vs B is the
same defendant. It can be A vs B or A vs X
because the rule says common question of facts
or law. The word "same parties" there is not
identical parties.
But how do you really consolidate in the
example you have given. Collection for sum of
money in RTC Manila and Specific Performance
in RTC Makati. You can file in either court a
MOTION FOR CONSOLIDATION on the basis
of Section 1 of Rule 31. It is discretionary upon
the court and it is not a matter of right. If the
court finds that it will facilitate the trial, if it will
amount to saving time, money and effort, there
are the same evidence to be presented the court
can grant it. Otherwise if it is prejudicial to the
case, the court can deny it.
Remember, eto ok na ito kasi parehong NCR
ang cases. Even if one case is filed in Manila
and another is filed in Baguio, still you can
consolidate it. One case filed in Legaspi City for

vehicular accident and another filed between the
same plaintiffs and different defendants in
Quezon City, consolidation is allowed.
Q: But if the case is filed before the MTC and
another case filed in RTC, consolidation is NOT
POSSIBLE. Why?
A: Because the issue is jurisdictional.
Jurisdiction is conferred by law and not by the
agreement of the parties.
But if it is just a matter of venue, consolidation is
allowed because venue can be subjected to the
agreement of the parties. So that is recasting.
NOTE: In consolidation, if the Makati court has
granted the consolidation, the Manila court will
bring the records to the Makati. Different
pleadings but the same court which tries the
same. Unlike recasting, nilalagay mo na lang sa
same
pleading.
Complicated
cases,
consolidation is not allowed because it can be
prejudicial.
1. There can be no consolidation if the action is
cognizable by different courts of different
jurisdictions neither can there be severance.
2. There can be no consolidation if there is
only one action. But if there are more than
one action, consolidation is possible.
Provided you can establish common
question of fact or law. Remember what we
have studied in joinder of causes of action, it
is permissive.
Very common case of consolidation is ejectment
or unlawful detainer under Rule 70.
Q: Here is A, A files a case against X, Y, and Z
who are the tenants in 3 different apartment
units. The contract between A and X is different
from A and Y and A and Z. Can you join causes
of action?
A: No, because these are different contracts. So
you file different cases against them. But once
you have filed them, you ask for consolidation.
But chances are it cannot be recasted but can
only a simple consolidation. Original cognizable
by the MTC. Wherever you file it, it will be
consolidated with the lowest number which was
the first case you filed.
Q:
What
is
severance?
What
are
the

39
requirements for severance? If the case is A vs.

B and there can be no consolidation, can there
be severance?
A: Yes, there can be a severance. Usual
concept by lawyers is that the opposite of
consolidation is severance. But it is not. In
severance, there is only one action. In
consolidation, there must be at least 2 cases.
this kind of severance.
Q: How will severance apply in the example

given?
A: If there is a counterclaim filed by B against A
and the court finds that it would be prejudicial to
join the issues in one trial, then the court may
allow a severance of action.
Q: What are the instances of trial by

commissioner? (Section 2)
A:
1. Examination of a long account;
2. Taking of an account is necessary;
3. Question of fact, other than upon the
pleading arises; or
4. Carrying a judgment or order into effect.
NOTE: There can be NO consolidation between

civil and criminal actions. There is even no
consolidation in criminal cases.
Q: You recall when we were studying joinder of
causes of action, A files a case against B for
sum of money in the amount of P100,000.
Another cause of action in the same complaint
for P200,000 and another for P300,000. Where
should we file it?
A: In the RTC because of the totality rule. So
there is only one complaint but there are 3
causes of action kasi the obligations incurred by
B are different. One was January, the other is
March and the other is April. Now, A can ask for
severance. Meaning to say, he asks for separate
trials as far as the obligation of B with regard to
P100,000, with regard to P200,000, and with
regard to P300,000. That is an example of
severance.
Or it can happen that B files a 3rd party
complaint. Isang kaso pa lang ito, hindi pa
nagiging 2. Now, the 3rd party defendant may
ask for severance.
Or can there be cross-claim. Suppose if A files a
case against B and C, then B files a cross-claim
against C then C files a counter cross-claim
against B. C may ask for severance of his
counter cross-claim.
Remember that in severance, isa lang ang
kaso. In consolidation, there must at least be
two.
Rule 36 (separate judgments) contemplates
Rule 32 - TRIAL BY COMMISSIONER

Q: How do you distinguish this from trial with
assessor?
A: Trial with assessor is not included in the
present rules. The distinction is that trial with
assessor is still trial by the judge with the help of
the assessors while in trial by commissioner it is
trial, not by the judge, but by the commissioners.
NOTE: A commissioner refers to either a

referee, auditor or anybody appointed by the
court. The best illustration of trial by
commissioner is found in Rule 67 (Expropriation)
and Rule 69 (Partition) because the
commissioner their is mandated by the court.
Q: How would you distinguish the power of a
commissioner from that of a deposition officer?
A: A deposition officer cannot rule on the
admissibility of the evidence while a
commissioner may be allowed to rule on the
admissibility of the evidence submitted. A
commissioner has the judicial power, practically
that of a judge. It can even issue subpoenas. It
can rule on the objections. But not a deposition
officer.
A commissioner, before taking his job, must take
an oath. That oath contains the powers
entrusted to him.
NOTE: I would like you to give emphasis to one
section there regarding the 10-day period notice.
Because ordinarily the period in motion is 3
days, but there in the ORDER OF REFERENCE
it is 10 days.
Q: Distinguish Order of Reference from Order of
Confirmation.
A: The order of reference is the order granted by
the court appointing a commissioner to try a

40
case while the order of confirmation which we

studied under Rule 17 is the order confirming
the notice of dismissal. There is an order of
confirmation under Rule 68 (Foreclosure of Real
Estate Mortgage).
Just to illustrate, trial by commissioner, it is
even mandatory under Rule 67 (Expropriation).
You will note that there are 2 stages in
expropriation. First stage is to determine
whether the land is or may be subjected to
expropriation, will be used for the common good.
Second stage is the determination of just
compensation. You will note from Rule 67 that
the determination of just compensation is not left
to the court but rather the court should appoint 3
commissioners. And these 3 commissioners will
now investigate, hear, conduct hearing and
arrive at a report. Take note that under Rule 32,
the commissioner there also will have to submit
a report.
Q: And that report, is that binding upon the
court?
A: No. That is not binding upon the court.
Q: What are the options left to the court? Go to
Rule 67, there are at least 4 options.
A:
1. The court may accept it.
2. The court may reject it.
3. The court may accept it in part and reject it
in part.
4. The court may remand it for further
proceedings to the commissioner.
Ganun din dito sa Rule 32 regarding sa
commissioner.
So
the
report
of
the
commissioner is not binding on the court. And in
fact all the parties must be furnished with the
report. And there is a period of time the parties
can question that. But even if the parties do not
question that, the court may totally reject the
report. Although a commissioner is more
powerful than a deposition officer.
Rule 33 - DEMURRER TO EVIDENCE (VERY
IMPORTANT SUBJECT MATTER IN THE BAR)
Q: What is the meaning to demur?
A: To impugn. To question.
NOTE: Demurrer to evidence applies to both
civil and criminal cases.
Q: What are the similarities and what are the

differences in the application of demurrer to
evidence in civil and criminal cases?
A: Similarities:
1. In both civil and criminal cases, you file a
demurrer to evidence after the plaintiff has
rested its case or after the prosecution, in
criminal cases, has rested its case.
2. In both civil and criminal cases, they have
the same grounds, which is the insufficiency
of evidence.
3. In both civil and criminal cases, it is
available only to the defendant or the
accused.
Differences:
1. In civil case, the quantum of evidence
needed is preponderance of evidence while
in criminal case, it must be proof beyond
reasonable doubt.
a. Q: So is it harder to file
demurrer to evidence in criminal
case?
No. It is easier because the
proof needed is proof beyond
reasonable doubt. Kasi mataas
ang quantum of evidence
needed sa criminal cases, so it
is easier.
b. Which is more weighty or
ano'ng
mas
mabigat
na
ebidensya, e mas madaling and
demurrer.
2. In civil cases, there is no need a motion for
leave of court while in criminal cases, you
can file a demurrer either with leave or
without leave of court.
3. In civil cases, if the motion is granted it
amounts to dismissal of the case while in
criminal cases, if the motion is granted it
amounts to acquittal of the accused.
4. Because it amounts to acquittal, in criminal
cases there is no appeal while in civil cases
there is appeal.
5. If the ground of the motion, in civil cases, is
appealed and then it is reversed, the
defendant loses the right to present
evidence while in criminal case if demurrer
to evidence was filed with leave of court and
was denied the accused may present his
evidence and if the demurrer to evidence
was filed without leave of court and was
denied the accused can no longer present

41
his evidence and submits the case for

decision based on he prosecution's
evidence.
Q: Which court?
A: In criminal cases, the trial court while in civil
cases, the appellate court.
NOTE: Remember it is always available to the
defendant or the accused. And in civil cases,
after the presentation of plaintiff's evidence and
then the defendant files a demurrer to evidence
and it is granted the plaintiff will not take that
sitting down. Definitely the plaintiff will appeal, if
the appellate court affirms it well and good but if
it is reversed then the defendant loses its right to
present evidence.
Radiowealth v. Del Rosario doctrine: When
the Court of Appeals reverses the trial court and
denies the demurrer to evidence, it is the duty of
the CA to proceed with the trial and render
judgment. The CA cannot remand the case to
the trial court for further proceedings. Also,
Radiowealth loses the right to present evidence.
You do not even have to file a writ of execution
with the appellate court except in execution
pending appeal under Section 2 of Rule 39. But
even if you file it with the appellate court, the
appellate court will have to order the trial court to
issue the writ of execution.
NOTE: Do not confuse this with execution
because the appellate court cannot execute
judgments but always the trial court.
Radiowealth is now the ruling with regard to
reversal of the appellate court of the demurrer to
evidence.
NOTE: Remember that demurrer now is under
Section 23 of Rule 119 of the new criminal
procedure. It is wrong to state in criminal cases
you can only file demurrer with leave of court
because Section 23 of Rule 119 specifically
provide that while the accused may file demurrer
to evidence with or without leave of court. What
you have to look here into is if the accused files
a demurrer to evidence without leave of court he
files it at his own risk. Why? Because in case of
denial he loses his right to present evidence.
However, Radiowealth is a civil case.
In case of reversal or an order of dismissal, in a

demurrer to evidence, the appellate court must
now render judgment and does not have to
remand it because there is no more evidence to
receive. The defendant having lost his right to
present evidence.
Demurrer in criminal cases is illustrated in
the case of Bernardo vs. Court of Appeals.
And it is here in this case that the distinction
between criminal and civil cases has been
established.
Bernardo v. CA doctrine: Atty. Miravite had a
heated argument with the judge. The lawyer
asked to file for a demurrer to evidence, in open
court. The judge denied the demurrer. Then the
lawyer again asked for a demurrer to evidence
but was again denied. The doctrine here in this
case is that when you file a motion for a
demurrer to evidence without leave of court you
risk of waiving your right to present evidence.
You better be careful in filing a motion for a
demurrer to evidence especially in civil cases. In
criminal cases, as long as you file a motion for
leave and remember what did we study on Rule
15 on motions that when you file a motion for
leave you have to already attach a copy of your
demurrer. So that under the present practice,
when your motion for leave to file demurrer to
evidence is denied, do not insist because your
demurrer will just be denied.
Rule 34 - JUDGMENT ON THE PLEADINGS
Q: When may the court render a judgment on
the pleadings?
A: When an answer fails to tender an issue, or
otherwise admits the material allegations of the
adverse party's pleading.
We have studied one of the cases the Allied
case. We have studied it under modes of
discovery a request for admission.
The defendant files an answer. Therefore the
one who asks for judgment on the pleadings
should be the plaintiff.
Q: May a defendant ever ask a judgment on the
pleadings?
A: Yes. With regard to permissive counterclaim.
Why? Because a permissive counterclaim

42
requires an answer while a compulsory

counterclaim does not require an answer
because the allegations therein are deemed
controverted.
Q: How would you distinguish summary
judgments (Rule 35) from judgment on the
pleadings (Rule 34)?
A:
1. In judgment on the pleadings, it simply
means that the judgment is based solely on
the pleadings. And what are these
pleadings, it is the complaint, the answer
and sometimes the reply. Those are the only
bases. That's why a judgment on the
pleadings is not availed of in the Allied case
but rather summary judgment. In summary
judgments, the judgment is based not only
on the pleadings but on affidavits,
depositions and admissions.
2. While in Rule 34, it is totally bereft of an
issue while in Rule 35 there is an issue, only
that the issue is not genuine. There are
issues but the issues are irrelevant and
immaterial.
In summary judgments, apparently, although an
expanded judgment on the pleadings by even
saying that there can be judgment on the
pleading to be moved even by the defendant as
far as permissive counterclaim is concerned. But
take note that specifically in Rule 35, it speaks of
a claim by the plaintiff as well as in Section 2
principally by the defendant.
In the Allied case which illustrates a

summary judgment, there is a request for
admission but the request was never answered.
There was an order from the court to answer the
request. It was never complied with. Therefore a
summary judgment may be asked.
Rule 36 - JUDGMENTS, FINAL ORDERS AND
ENTRY THEREOF
A judgment may be final but not executory. But
once it is executory it must necessarily be final.
Q: So what is a final judgment as distinguished
from an executory judgment?
A: A judgment may be final but not executory but
once a judgment is executory is must

necessarily be final. Because a final judgment is
one where the trial court is left with nothing else
to do. The court has completed its task. It has
nothing else to do on the part of the court. It has
disposed of the case. Judgment has become
final.
But it is not yet executory because the period to
appeal or to reconsider or to retry the case has
not expired yet. Only after the expiration of the
period for new trial, reconsideration or appeal
will the judgment become final and executory.
NOTE: Graphically, if you write a circle, that
circle represents an executory judgment. Within
that circle is another smaller circle representing
a final judgment. Two circles, one inside the
other. if you have the bigger circle, necessarily
you have the smaller circle. But you can have
the smaller circle without the bigger circle.
Is that a sufficient analogy? Want a stronger
analogy? If the smaller circle represents sex, the
bigger circle represents love, once there is love
necessarily there must be sex but there can be
sex without love.
In Rule 36, the final order referred to in here
is executory not just final.
Q: What are the requirements for a judgment?
A:
1. It must be in writing (walang judgment na
oral);
2. The judgment must be personally written by
the judge; and
3. The judgment must be entered. Because a
judgment which is not entered has only
become final but not executory.
4. That every judgment the facts and the law
on which its disposition was anchored and
based.
It is not just a procedural requirement, but this is
even a constitutional requirement.
Section 2, second sentence, Rule 36 is
IMPORTANT which is "THE DATE OF
FINALITY OF THE JUDGMENT OR FINAL
ORDER SHALL BE DEEMED TO BE THE
DATE OF ITS ENTRY".
Q: Explain this sentence.

43
A: It means that when the judgment has become

executory, the date where the judgment has
become executory shall be the date of its entry.
Q: What do you mean by entry of judgment?
A: An entry of judgment is the recording of the
judgment by the clerk of court in the book of
entries of judgment. Bawat korte may libro ng
entries of judgment.
If the judgment was rendered by the RTC Manila

on January 5, 2005, let us assume that all the
parties to that case received a copy of the
judgment on January 10, so the parties have
until January 25 (15 days) to file Motion for New
Trial, Motion for Reconsideration, or Appeal.
After January 25, the judgment has become
executory.
Q: Suppose the clerk of court entered or
recorded the judgment in March 15, 2007, when
is the entry of judgment?
A: The entry of judgment is January 25. Ito ang
ibig sabihin ng second sentence of section 2 of
Rule 36. Hindi kabaliktaran. So the judgment
was entered January 25 and not March 15.
Q: What is the rationale of the law?
A: Otherwise if it is the actual recording which is
the entry of judgment then the finality of the
judgment and its executory character will
depend upon the will of the clerk of court. The
entry, when the period to appeal has expired.
Q: Why is the entry of judgment is important?
A: It is very important because there are
procedural actions which is counted from its
entry of judgment.
Q: Why execution?
A: Judgment can be executed only by motion
within a period of 5 years from entry of
judgment. Petition to relief can only be done
within a period of 6 months from entry of
judgment. Kaya importante yun. Kaya hindi yung
actual recording although the meaning of entry
is the actual recording but the entry is reckoned
when the judgment has become final and
executory. When the period for reconsideration,
or appeal has not been availed of and has
expired.
Q: What are the different kinds of judgment?

A:
1. Judgment upon compromise;
2. Judgment upon confession;
3. Judgment upon the merits;
4. Clarificatory judgment;
5. Judgment non pro tunc (now for then);
6. Judgment sin perjuicio;
7. Judgment by defaulty (Sec. 3, Rule 9);
8. Judgment on the pleadings (Rule 34);
9. Summary judgment (Rule 35);
10. Several judgment (Sec. 4, Rule 36);
11. Separate judgment (Sec. 5, Rule 36);
12. Special judgment (Sec. 11, Rule 39);
13. Judgment for specific acts (Sec. 10, Rule
39);
14. Judgment on demurrer to evidence (Rule
33);
15. Conditional judgment; and
16. Final judgment
January 10, 2007
RULE 37
NEW
TRIAL
OR
MOTION
FOR
RECONSIDERATION.
This is the remedy of the judgment obligor after
the judgment has become final but not
executory.
Q: Is it mandatory?
A: No. It is not mandatory except in certiorari as
special civil action.
NOTE: A motion for reconsideration is not
mandatory. The remedy is available but you may
or may not avail of it unless the rule asks that
you must first file a motion for reconsideration.
Ordinarily, if the case is pending before the
appellate court, a motion for reconsideration is
advisable.
Q: The time frame, when can one file a motion
for reconsideration or a motion for new trial?
A: In cases of notice of appeal, within 15 days or
in cases of record on appeal, within 30 days.
When you go to special civil action, you will note
that there are certain appeals which must be
taken by record on appeal because there are
several stages in an action. In fact the best
example for a record on appeal is special
proceedings in settlement of estates.

44
Q: But ordinarily it is 15 days. What is the point

of reference of the 15 days?
A: From receipt or notice of judgment.
You file an appeal or motion for reconsideration
or motion for new trial. We are dealing only with
motion for new trial or reconsideration. Under
the present rules, the grounds have been
delineated. They have been separated unlike
before prior to the 1997 rules they have the
same grounds. But now if you file a motion for
new trial, you have to file it on a valid ground. If
you file a motion for reconsideration, you have to
file it on a valid ground.
NOTE: If you file a motion for new trial on the
ground of either under a motion for
reconsideration, your motion will be considered
as a motion for reconsideration. On the other
hand, if you file a motion for reconsideration on
any of the grounds under new trial, your motion
will be treated as a motion for new trial.
So your ground is crucial because they have
been separated already. But both speak of
different grounds.
Q: What are the grounds for motion for
reconsideration?
A:
1. Excessive award of damages;
2. Evidence is insufficient to justify the decision
or final order; or
3. Decision or final order is contrary to law.
Q: What are the grounds for a motion for new
trial?
A:
1. Fraud, accident, mistake or excusable
negligence which ordinary prudence could
not have guarded against and by reason of
which such aggrieved party has probably
been impaired in his rights; or
2. Newly discovered evidence, which he could
not, with reasonable diligence, have
discovered and produced at the trial, and
which if presented would probably alter the
result.
In answering the grounds for a motion for new
trial, you have to complete the grounds as stated
under Section 1 Rule 37. Kulang daw pag fraud,
mistake, accident, or excusable negligence or
newly-discovered evidence lang. You have to
qualify and that qualification is the complete

sentence under the two paragraphs of Section 1
of Rule 37.
Q: When is negligence excusable?
A: It is excusable: First, as to subject matter. If
the subject matter is not that serious, it can be
excused. But watch out for that kind of
explanation of excusable negligence because
you must have read certain jurisprudence saying
that procedural rules should not be a deterrent
to the proper administration of justice. So that it
should give way to the substantive rights of
individuals. That is a very sweeping statement
because there are certain procedural rules that
must be complied with.
So there is no hard and fast rule as to when
negligence is excusable. It must be considered
on a case to case basis.
Q: What mistake is referred here?
A: Mistake of fact and not mistake of law.
Because in mistake of law it amounts to
ignorance of the law. So it must be mistake of
fact or misappreciation of facts. In criminal law
you have studied aberratio ictus. Because in civil
law, it says ignorance of the law excuses no
one.
Q: How about accident?
A: Unforeseen, unexpected, or sudden
occurrences. How about death, is it accident?
Death is not an accident. Death is the most
certain uncertainty. So it can never be
accidental. Sometimes it becomes accidental
because you don't know when it will strike. How
about missing the bus, train or airplane? No.
Now let's go to a very important ground which is
fraud. Fraud here is not any kind of fraud but
rather an extrinsic fraud to be differentiated from
intrinsic fraud.
Q: When is there extrinsic and when is there
intrinsic fraud?
A: Extrinsic fraud connotes any fraudulent
scheme executed by a prevailing party outside
of the trial against the losing party who because
of such fraud is prevented from presenting his
side of the case while an intrinsic fraud refers to
acts of a party during the trial which does not
affect the presentation of the case.

45
probably alter the result.

Q: Give an example.
A: Extrinsic fraud: If A (witness) was paid not to
appear before the court for trial. Intrinsic fraud:
When the signature of the party was forged.
Remember: we are talking here of new trial.
Meaning to say there has been a trial because
you are asking for another trial. If you are asking
for another trial because of fraud, the fraud must
have happened outside the proceeding. That is
what is meant by extrinsic, outside the
proceeding.
Q: But if it is intrinsic, it is within the proceeding.
Why is it not a ground for new trial?
A: Because you should have questioned it right
there and then but you did not. So you waive
your right. For example, during the proceeding
the other party presents a forged document or a
fictitious document and it was admitted.
Because right there and then you should have
questioned it but because you didn't question it
the evidence has been admitted, you have
considered to have waived your right. That is the
meaning of intrinsic fraud.
NOTE: All 3 requisites must characterize the

evidence sought to be introduced at the new
trial.
People v. Li Ka Kim doctrine (Criminal case):
Requisites of newly-discovered evidence:
1. The evidence is discovered after trial;
2. Such evidence could not have been
discovered and produced at the trial even
with the exercise of reasonable diligence;
and
3. The evidence is material, not merely
cumulative, corroborative, or impeaching,
and of such weight that, if admitted, would
likely change the judgment.
The ground of newly-discovered evidence for a
motion for new trial is not only available in civil
cases but also to criminal cases under Rule 121.
Q: What kind of evidence does the rule refer to?
A: Any kind of evidence may be used. Either
testimonial, documentary or real evidence may
be used.
Q: The other ground is newly-discovered

evidence, but how do you qualify that newlydiscovered evidence?
A: Use the wordings of the rule. Paragraph b,
Section 1 of Rule 37 states that "Newlydiscovered evidence, which he could not, with
reasonable diligence, have discovered and
produced at the trial, and which if presented
would probably alter the result."
Q: But there is a requirement, if it is testimonial

evidence, when you file a motion what is
required?
A: When you file for the motion for new trial, you
have to attach the affidavits.
There are two cases, which I have assigned,

illustrating the specific requirements for newlydiscovered evidence. One is a civil case and the
other is a criminal case.
Q: How about real evidence?

A: Describe the real evidence. If it is capable of
manual delivery, bring it in court.
Mendezona v. Ozamis doctrine (Civil Case):

Requisites of newly-discovered evidence:
1. The evidence had been discovered after
trial;
2. The evidence could not have been
discovered and produced during trial even
with the exercise of reasonable diligence:
and
3. The evidence is material and not merely
corroborative, cumulative or impeaching and
is of such weight that if admitted, would
Q: How about documentary?

A: You have to attach a certified copy of the
document that was newly-discovered.
So any kind of evidence may be newlydiscovered. But in applying for that newlydiscovered evidence, you have to comply with
the affidavit.
NOTE: Also, in the ground of FAME, you also
have to comply with an affidavit requirement of
affidavit of merits. You have to state in your
affidavit what constituted fraud, accident,
mistake or excusable negligence. The court may
either deny or grant your motion.

46
Q: If it is denied, what is the remedy?

A: You appeal from the judgment. Because this
is an ad interim remedy.
Q: If it is granted, what is the effect of that?
A: Previous judgment is vacated. But this trial de
novo must not be understood as trial de novo
prior to the 1997 rules because trial de novo
back then was complete setting aside of the
decision or judgment or final order. Under the
present rules it is relative, you set aside the
dispositive portion of the judgment but the
evidence which have been admitted will remain
and there is no need for retaking them.
This is different from motion for reconsideration.
Because if your motion for reconsideration was
denied, your remedy was appeal also or even
new trial as the case may be if you want to
because they have different grounds already.
Q: But if it was granted, does it set aside the
judgment?
A: No. It only corrects the judgment. Because
look at the grounds for motion for
reconsideration, it is more of an amendment.
There is no trial de novo here.
Q: Can you file a second motion for
reconsideration?
A: No. Except the Supreme Court, where you
can file a second, third or even fourth motion for
reconsideration.
Q: Can you file a second motion for new trial?
A: Yes. Only grounded on newly-discovered
evidence. You cannot file a second motion for
new trial on FAME because they were already
present or forms part within the the proceeding
not outside the proceeding. So if you are given a
problem, always remember that the second
motion for new trial is solely grounded on newlydiscovered evidence. Because when you file a
motion for new trial on the ground of newlydiscovered evidence for the first time, FAME
was already existent. But if you file a motion for
new trial on the ground of FAME, for the first
time and it was denied, it is possible that you will
still file a second motion for new trial on the
ground of newly-dicovered evidence.
Q: But not in a motion for reconsideration. And
that is precisely the rationale why there is no
second motion for reconsideration. Why?

A: Because all the grounds are there already. So
why don't you include it in your first motion for
reconsideration. If you find out that the judgment
is contrary to law, that the award of damages is
excessive, that the evidence is insufficient, aren't
they all present when you file your first motion
for reconsideration (answer was yes), then why
didn't you include it? So there is no second
motion for reconsideration.
Question from a student: When your motion
for new trial was denied your remedy is appeal.
When you want to question the denial of the
motion for new trial, you can file a special civil
action of certiorari. Now, if your certiorari was
given due course, ordinarily the SC will remand
the case for further proceedings to the trial court.
If your appeal was also given in due course, the
appellate court will take cognizance of it. So
technically there are two cases pending before
two different courts but with the same issues,
subject matter and same parties. How are we
going to consolidate or resolve this issue?
Atty. Brondial did not squarely answer this
question. Though he recognized that for
academic reasons, this is allowed because they
have different grounds. But practically speaking,
it is a waste of time because if you file a petition
for certiorari under Rule 65, the SC, ordinarily,
does not resolve such issue within 15 days. So
you run the risk of having the period prescribed.
So why bother filing for a special civil action of
certiorari when it does not interrupt the running
of the reglementary period for appeal from the
denial of the motion for new trial. It is how these
cases can be consolidated that problem arises.
Anong kaso ang pipiliin mo?
RULE 38
PETITION
FOR
RELIEF
JUDGMENTS,
ORDERS OR OTHER PROCEEDINGS
Q: There are two forms of petition for relief:
A:
1. Petition for relief from judgment (Section 1)
and
2. Petition for relief from denial of an appeal
(Section 2).
Q: What are the grounds?
A: Fraud, accident, mistake, or excusable
negligence. The same grounds as the motion for

47
new trial. And because we have the same

grounds, the limitation is "had you the
opportunity to file a motion for new trial and you
did not file a motion for new trial due to your own
fault or negligence, you lose your right even of
filing a petition for relief."
These are not alternative remedies. Remove
from your mind that once you lose in your
motion for new trial or reconsideration and you
did not appeal you can file a petition for relief
because it is wrong. They have the same
grounds.
Q: What is important here is the time frame.
When?
A:
1. Within 60 days after the petitioner learns of
the judgment, final order, or other
proceeding to be set aside; AND
2. Not more than 6 months after such judgment
or final order was entered, or such
proceeding was taken.
Q: We studied under Rule 36 regarding entry of
judgment. When is judgment entered?
A: The entry of judgment is the date of finality. It
is not the actual recording of the judgment in the
book of entries. Judgment becomes final when
the period for appeal, new trial or
reconsideration has already expired and one did
not avail it, the judgment becomes final and
executory. And when the judgment has become
final and executory it is the date of entry. And
from that date of entry, you count 6 months
within which to file your petition for relief from
judgment.
Q: A was a judgment obligor (in other words he
lost in the case). No motion for new trial,
reconsideration or appeal was filed. Judgment
was entered on January 10. If you have 6
months therefrom, you have until July 10. But A
came to know of the judgment only on July 5.
The rule says he has 60 days from knowledge of
the judgment within which to file petition for relief
from judgment. Can A still file, in this instance, a
petition for relief from judgment?
A: Yes, A can still file a petition for relief from
judgment. A has only 5 days to file such petition.
Because both periods (60 days and 6 months)
must be complied with.
Q: If the entry of judgment was January 10 and

A came to know of it in January 20, until when
can he file a petition for relief from judgment?
A: March 20 or March 22 (if leap year). In other
words, 60 days lang. Hindi na bibilangin from
January 10 up to July 10 because you came to
know of the judgment on January 20. So both
periods must be complied with.
The rationale of the law is don't sleep on your
rights. You came to know of it already, you
should make a move. In other words, you must
know it within the 6 month period. Yan and ibig
sabihin ng batas.
NOTE: If you come to know of it, in our example,
by August, you can no longer file because the
entry of judgment was made on January 10. The
defense for lack of knowledge is unavailing
because the 6 month period must be complied
with.
One student wanted to clarify something: The 60
day and 6 month period were relaxed by the SC
in the case of Argana v. Republic (November 19,
2004).
That's new, Atty. Brondial will check on that.
Q: The other one is petition for relief from denial
of appeal. How is this?
A: The grounds (FAME) are the same. But
prayer here is that the appeal be given due
course.
Q: What happens if the petition for relief was
granted (either Sec 1 or Sec 2)?
A: In effect as if the court grants a new trial
under Section 1. Under Section 2, Rule 40-42
apply already. Since the appeal has been
granted, you have to elevate the records to the
appellate court.
NOTE: Please take note that when a party files
a petition for relief from judgment, the judgment
is already executory. In other words, by filing a
petition for relief from judgment, it will not stop
the executory character of the judgment. So the
judgment can be executed because the
judgment has become final and executory.
Q: So what is your remedy?
A: Together with your petition for relief, you avail
of the provisional remedy of the preliminary

48
injunction or TRO. Otherwise, if you don't do

that, the petition for relief will become useless
because it will not change the executory
character of the judgment.
Remember here that the petitioner for relief from
judgment, chances are would be the judgment
obligor. And because you were not able to get
an injunctive relief the judgment is executed.
Q: What happens now if the judgment is
executed and then the petition for relief was
granted without preliminary injunction?
A: Let me give a concrete example. Mr. A files
an action for the recovery of sum of money
against B for P1M. Judgment was rendered in
favor A. B did not file a motion for new trial,
reconsideration or appeal without his fault. So
his remedy is petition for relief from judgment.
But the judgment in favor of A was already
executory. B's injunctive relief was denied. So
the judgment was executed. Thereafter B was
granted the injunctive relief. Now what will
happen? B can file for claim for damages or
restitution. That's why petition for relief is not
often granted.
Mesina v. Meer doctrine: "Any court" only
means the MTC and RTC. It does not extend to
CA or SC. The CA and SC are governed by
separate rules. The SC said that Rule 38 is only
available before the MTC and RTC.
The SC cited the historical background for this.
Because prior to the 1997 rules, if the judgment
is rendered by an inferior court, the petition for
relief is filed with the RTC. If the decision is
rendered by the RTC, it is filed with the RTC.
Under the 1997 rules, petition for relief under
Rule 38, you file it where the case was decided.
So if it was decided with the MTC, you file it with
the MTC. If it was decided with the RTC, you file
it with the RTC.
NOTE: But take note, it is not a motion but a
petition. In other words, it is a separate action.
With that qualification that while it is a separate
action where you can file it anywhere, the
limitation is you file it in the court where the
judgment was rendered. Suppose, if it's the
MTC, you file it with the MTC and if it's the RTC,
you file it with the RTC. Unlike before, prior to
the 1997 Rules, if it is decided by the MTC, you
file the petition for relief with the RTC. If the

decision emanates from the RTC, you file it with
the RTC. Ngayon, pinantay na lang yan. And it
was because of Rule 5 on uniform procedure
before the court.
Mercury Drug v. CA doctrine:
Q: When do you count the 60-day period?
From notice. Notice to whom? Yun ang doctrine
dito. Notice to counsel is notice to client. Thus,
when there was already a lapse of period within
which to file the petition for relief, the client is
already barred from filing such petition.
Q: Incidentally, do you understand this notice?
Di ba, sabi sa petition for relief, you file it within
60 days when you learn of the judgment. Hindi
ba when you learn of the judgment, your remedy
is appeal? When do you learn the judgment,
when you receive a copy of the judgment. So,
does it follow that when you receive the copy of
the judgment, you don't appeal na lang but file a
petition for relief?
A: No. you cannot do that. Notice referred to
there, to the party who will file a petition for relief
is notice other than the regular notice coming
from the court. In other words, the petitioner
came to know of it other than the regular way.
Because an ordinary party or any party for that
matter, once you receive a copy of the judgment,
the natural and usual reaction would be to
appeal.
RULE 39
EXECUTION, SATISFACTION AND EFFECTS
OF JUDGMENT
This is execution of judgment and final order. I
told you before that there are 3 stages in the
process of law: preparation of pleadings, trial
and execution. And the most difficult is Rule 39
as well as the most important in practice.
Because no matte how good you are in the 1st
two stages but you cannot execute, you only win
by paper.
NOTE: A judgment which can be executed is
only a judgment which is not just final but also
executory.
Q: There are 2 kinds of execution:
1. As a matter of right and
2. Leave of court, otherwise
known

as
49
discretionary, or execution pending appeal.

Section 1 which is execution as a matter of
right.
Q: When do you execute it?
That is the most important element there. You
can execute it only within a period of 5 years
from entry of judgment. You can execute that
judgment only within a period of 5 years.
Thereafter you can no longer execute the
judgment, you have to first revive the judgment.
That's why some books say that there are two
ways to execute the judgment, either by motion
or by action. You find that in Section 6 of Rule
39.
So if the 5-year period is counted from entry of
judgment, the time of entry of judgment is very
very important. That's why we discussed that in
Section 2, second sentence of Rule 36. Pinaunderline ko sa inyo. Because this is where you
count the judgment to be executed by motion.
So when the judgment has become final and
executory, the judgment obligee (winner in the
case) will have to file a motion with the trial court
(where the main action was filed). In matters of
execution, no appellate court can issue a writ of
execution. Whether that appellate court is the
RTC, the CA or the SC, they cannot issue a writ
of execution. It must always go back to the court
of origin.
So there are 2 instances therefore. If the case is
filed with the MTC and judgment was rendered
by the MTC and the judgment was not appealed
and therefore became final and executory, you
file your motion for the issuance of the writ of
execution with the MTC.
If the judgment was appealed to the RTC. You
cannot execute it, as a matter of right because it
is not yet executory. And as long as the
appellate court is concerned, the judgment is not
yet final because the appellate court has
something else to do yet. Now suppose, the
appellate court affirm in toto the decision of the
MTC and there is no more appeal to the CA, the
judgment becomes final and executory.
Q: Which judgment?
A: The judgment affirming the decision of the
MTC.
Q: But what is the judgment that you are going

to execute? What you are going to execute is
the judgment of the MTC. So where will you file
the motion?
A: You file it with the MTC and not with the RTC.
The old rule says that in order for the trial court
to rule on your motion for the issuance of your
writ of execution, it must have the copies of the
records of the case because as you will find out
in Rules 40-42, when the case is appealed, one
of the requirements for appeal is to elevate the
records to the appellate court. And when the
appellate court affirms and it becomes final and
executory, ibabalik yung records sa baba.
Now, you don't have to wait anymore for the
records from the appellate court. You can file a
motion even if the records are still with the
appellate court in the trial court. But the
requirement is you get a certified true copy of
the judgment of the appellate court together with
the entry of judgment. And then you file it with
the trial court. So motion for the issuance of the
writ of execution must strictly comply with Rule
15 on motion, otherwise it must be in writing, it
must be set for hearing, and it must be served
on the adverse party (Sec 4 of Rule 15).
Q: Rationale?
A: To give the judgment obligor the chance to
contest it.
Q: And what is the basis for contesting?
A: Because remember, it is not discretionary on
the part of the court to issue or not to issue a
writ of execution. The issuance of the writ of
execution is ministerial on the part of the trial
court. So that if the trial court does not issue the
writ of execution, the trial court may be
subjected to mandamus. But under the present
rule, you don't have to recourse to mandamus
anymore because you file your motion with the
trial court simply attaching a certified copy of the
decision of the appellate court together with the
entry of judgment. Set it for hearing. And as a
matter of course, the trial court will issue the writ
of execution.
January 11, 2007
Argana v Republic of the Philippines (443

50
SCRA 184) November 19, 2004

So it is wrong to say. That statement is wrong in
the book because of that decision. I went over it.
I've read it. You must have read it too. And I
admonish you to read that case so you would
know.
FACTS:
This is the case against the heirs of the former
mayor of Muntinlupa Argana and company.
Marami ito. 8 individuals and 2 corporations are
the defendants here in the original case.
This is a case filed before the Sandiganbayan.
And the nature of the action was ill-gotten wealth
of former Mayor Argana of Muntinlupa City. Now
in the course of the hearing, definitely, because
this is an ill-gotten wealth case under EO 14-A in
relation to the creation of the PCGG. This
particular case, while it was in progress before
the Sandiganbayan, several pleadings were
filed. And you know before the Sandiganbayan,
the complainant or the plaintiff was the PCGG.
The PCGG was later on represented by the
OSG.
In the course of the hearing, after several
pleadings, motions and postponements filed,
they came out with a compromise agreement.
There was a compromise agreement between
the Arganas and the PCGG. This compromise
agreement principally states that 75% of the
properties of the Arganas will be ceded in favor
of the government and only 25% will remain with
the Arganas. Take note, percentage ang
pinaguusapan. 75% of the properties subject
matter of the case of ill-gotten wealth will be
given back to the government and only 25% will
remain with the Arganas.. The PCGG agreed
and the compromise agreement was executed
and even approved by President Fidel Ramos.
And so, on the basis of the compromise
agreement submitted to the Sandiganbayan, the
Sandiganbayan rendered a judgment on
compromise. So there was a judgment on
compromise. Later on, the OSG, upon review of
the compromise agreement, even after the
judgment of compromise has already been
rendered, found out that it was entered
fraudulently. In other words, the compromise
agreement was very very unfavorable to the
government. Why? Because the 75% property
ceded to the government was worth only about
Php 4 million. The 25% remaining with the
Arganas was worth Php 3.++ BILLION. In other
words, the 75% was only .15% worth of the
entire property while the 25% was worth

99.85%. So this was very unconscionable. It
was entered into in connivance with the PCGG
Commissioners and the heirs of Argana.
So upon the review of the OSG, the government
filed a motion to rescind together with a prayer
of annulment of the judgment on compromise.
Remember that a judgment on compromise is
immediately executory, it is not appealable. But
because this was entered in fraud of the
government, what the OSG did was to file a
motion to rescind the compromise agreement
with prayer of cancellation or nullification on the
judgment on compromise. Hindi pwedeng iappeal, certiorari has already lapsed because in
certiorari you have only 60 days. Matagal na ito.
The Sandiganbayan, looking into it, did not
dismiss the case but treated the motion to
rescind as a petition for relief from judgment.
Yun ang catch. The motion to rescind was
treated as a petition for relief from judgment
because there was a prayer for annulment of the
judgment on compromise. The respondent this
time (Arganas) says, if this is a petition for relief,
it was filed out of time, because under Section 3
of Rule 38, it must be filed within 60 days from
knowledge of the judgment and 6 months from
entry of judgment. Matagal na ito e. It is already
outside of the reglementary period. When the
Sandiganbayan went over the case, they
discovered that it was filed 67 days from
knowledge but within the 6 month period from
entry of judgment or from judgment. Because a
judgment on compromise, being immediately
executory, has no entry of judgment or the entry
of judgment becomes immaterial. So that the 60
day period being a judgment on compromise
and the 6 month period cannot be counted from
knowledge or entry but it must be counted (both
60 days and 6 month period) from rendition of
judgment. And counting from the rendition
judgment, being the time that the parties came
to know of it, 67 days have lapsed outside of the
60 day period.
SUPREME COURT DECISION:
The SC, on certiorari, said (and i would
emphasize this statement) both periods provided
for in Sec 3 of Rule 38 must be STRICTLY
complied with but nonetheless, it does not mean
that there is no exception to the rule. So the rule
remains that it must be complied with
STRICTLY. The 60 day period and the 6 month
period from knowledge and from entry of

51
judgment. This Argana case is an exception. And

in fact the rule in Section 3 of Rule 38 will not
strictly apply. Why? Because first, there is no
point from which knowledge should be counted
from or from which entry should be counted from
because it is a judgment on compromise. And
secondly, it was not a petition for relief per se but
it was a motion to rescind taken as a petition for
relief.
discretionary
execution
or
execution
pending appeal. So when you read those 3
terms, pare-pareho lang yun.
Q: Why did the SC make this as an exception?

A: First, because the government is involved.
For it will be disadvantageous to the
government. Second, Fraud was the reason.
Against the government.
Q: If it is ministerial, why is it required on the

part of the judgment obligee or the judgment
creditor to file a motion?
A: In order to afford the judgment obligor due
process. Because he may still file an objection.
Therefore, petition denied.

gobyerno. What do you expect?
Q: And what is the possible ground for

objection?
A: The finality of the judgment. Because as I
was saying, as far as the court is concerned the
judgment may become already executory but as
far as the judgment obligor the judgment is not
executory yet because it was not received by
him or he did not know about the judgment
having been received by other party or persons
other than himself.
Panalo
ang
NOTE: The Supreme Court can always relax

cases. Because the SC is not governed by the
Rules. Because one time the SC can decide
one way while on another time, the SC can
decide on another way. Like for example the
execution pending appeal we are dealing here.
Before, Old Age is not a good reason for
execution pending appeal, but later on, i think it
is 403 SCRA in the case of Far East Bank and
Trust Co. vs. Toh, Sr., the SC said that old age is
a good reason for execution pending appeal.
See? Bakit ganoon? You try to read the case
and look also who was the lawyer for Toh. The
lawyer for Toh was the very famous Mike Arroyo.
Those doctrinal cases never change. May side
changes but these are not ratio decidendi
decisions but an obiter dictum. Settled? So we
maintain na tama pa din ang lecture ko.
Villamor case 441 SCRA. Read it.
So let's proceed with execution.
Q: I was telling you yesterday that there are two
kinds of execution of a judgment.
A: GENERAL RULE is that a judgment which
can be executed must be a judgment not just
final but executory. In other words, the right to
appeal as well as the right for reconsideration or
new trial, the period has already lapsed.
So under Section 1, it is execution as a matter
of right. Under Section 2, it is execution by
leave of court, otherwise known as
Q: Under Section 1, when is it a matter of right?

A: When the judgment has become executory, it
is ministerial on the part of the trial court to issue
the writ of execution. Ministerial to issue the writ
of execution.
NOTE: Another thing we should remember here

is that only the trial court that can issue the writ
of execution. Whether that case has already
reached the SC, the SC cannot and should not
issue the writ of execution.
So if it started with the MTC, and it reached the
SC, when it comes to execution, it is still the
MTC which should execute.
Q: If it is the MTC or if it is the trial court, as the
case may be, which should execute? What is
necessary?
A: Simply a motion for the issuance of the writ of
the execution complying with Rule 15
particularly Sections 4-6. By then it is ministerial
on the part of the judge or the court to issue the
writ of execution.
Q: But suppose the case started with the MTC
but upon finality of the judgment, the judgment
was appealed to the RTC. And then the RTC
affirms the judgment, and the judgment obligor
never went up to the CA, therefore, the
judgment has become final and executory.
Which judgment has become final and
executory?

52
A: Technically, it is the judgment affirming the

decision of the MTC.
Q: But what are we suppose to execute?
A: Not the judgment of the RTC but the
judgment of the MTC.
Q: How do you go about it?
A: You still file your motion for execution with the
MTC. Never with the RTC. As a matter of
procedure, the MTC, which should now issue
the writ of execution, should await the records
from the RTC. But under the present rules there
is no need for that. Because by simply getting a
copy of the entry of judgment (which judgment?
the judgment affirming the judgment of the MTC)
as well as the judgment of the RTC, affirming the
judgment of the MTC, attaching the same to
your motion for execution filed in the MTC on
that basis, the MTC can already issue the writ of
execution.
Q: Suppose the MTC does not issue the writ of
execution, what is now your remedy?
A: Ordinarily, the remedy is mandamus.
Because the issuance of the writ of execution is
only a ministerial act. But under the present
rules, you don't have to file mandamus. It is very
easy now, you simply file a motion with the RTC
(which is the appellate court here) praying that
an order be issued directing the MTC to issue
the writ of execution. No need for mandamus.
Although mandamus is a remedy, but it is a very
lengthy procedure as a remedy.
Section 2 speaks of Execution pending
Appeal. So in the same example that I gave, the
MTC renders judgment, under Rule 40, that
judgment is appealable within a period of 15
days with the RTC. Within that period, the
judgment obligee wants to execute it pending
appeal he may file a motion for execution
pending appeal with the MTC.
Q: Suppose the appellant has already filed his
notice of appeal, since the notice of appeal
under Rule 40 must be filed with the Trial Court,
when should the motion for execution pending
appeal be filed?
A: Notwithstanding the filing of the notice of
appeal, the motion for the issuance of the writ of
execution must still be filed with the trial court, in
this instance the MTC, as long as the records of
the case have not been transmitted to the RTC.

This is what you call exercise of residual
jurisdiction.
Q: Suppose the records of the case, pursuant to
the notice of appeal, have already been
transmitted to the RTC, where will you file?
A: Since the notice of appeal renders loss of
jurisdiction over the subject matter as far as the
MTC is concerned, you file your motion for
execution pending appeal with the RTC.
Should the RTC resolve your motion in your
favor, nevertheless the RTC cannot issue the
writ of execution. It can only issue an order
directing the MTC to issue the writ of execution
pending appeal.
Q: How do you stay the execution of a
judgment?
A: You stay that by filing a supersedeas bond.
This is one meaning of a supersedeas bond
found in the Rules. Don't confuse that with the
supersedeas bond found in Rule 70 (unlawful
detainer and forcible entry). Because the
supersedeas bond referred to in Rule 70 is
equivalent to the amount of unpaid rentals. The
supersedeas bond here is in the amount subject
to the discretion of the court. We should answer
for any damages that the judgment or the
appellant might incur.
Q: What are the instance when a judgment
cannot be stayed? Why?
A: Because of their very nature. You find that in
Section 4. Injunction, Receivership, Accounting,
Support or such other judgments declared to be
immediately executory unless otherwise ordered
by the trial court.
To illustrate:
If you get an injunctive relief, it is a matter of
urgency. So if you stay the implementation of a
writ of preliminary injunction then you defeat the
very purpose for an injunctive relief. That is why
it cannot be stayed.
The same thing with support. Humihingi ng
support kasi mamamatay na sa gutom. But if
you can still stay that, you defeat the very
purpose of order of support.
NOTE: The writ of execution is not addressed to
any party but rather it is addressed to the sheriff,
that is why a party, for not complying with the

53
writ of execution, cannot be held liable for

contempt. Only the sheriff may be liable for
contempt because the writ of execution is
addressed to the sheriff. And the sheriff must
implement the writ of execution immediately. If
he does not implement the writ of execution, he
may be held liable for contempt of court.
Q: But suppose the sheriff found out that the
judgment obligee is dead?
A: Therefore the sheriff may cause, still, the
implementation of the writ of execution through
the executor, administrator or successor-ininterest of the judgment obligee.
Q: But in the case the judgment obligor is dead?
A: The writ of execution can only be
implemented
against
the
executor
or
administrator of the judgment obligor if the
action is for recovery of real or personal property
or for enforcement of a lien thereon. Why is this
so? Because of Section 1 of Rule 86 and
because of Section 20 of Rule 3 which we have
studied. Money claims, specially if it is based on
contracts, Section 20 - Contractual Money
Claims of Rule 3. Upon the death of the
defendant, the case shall not be dismissed but it
should continue up to entry of judgment. And no
writ of execution can issue because it will be
charged as a money claim against the estate
under Rule 86.
NOTE: That is why it's said there if a writ of
execution is supposed to be implemented
against a deceased judgment obligor, take note,
that it can be implemented against the executor
or administrator only, if the action is recovery of
real or personal property or enforcement of a
lien thereon. Otherwise, it should be filed as a
claim against the estate.
The sheriff, who is implementing the writ, is
bound to make a return. And the return must be
made copy furnished the judgment obligee
within a period of 30 days. And every 30 days
thereafter, if there is no full satisfaction yet of the
judgment.
Section 6 is important.
Q: These are the 2 ways by which a judgment
may be executed or a writ of execution may be
implemented.
A: The first way is by motion. And the second is
by action. The writ can only be executed by
motion, meaning to say you get a writ of

execution which you seek to implement by
motion from the date of the entry of judgment
and 5 years therefrom. So the time limit is only 5
years. Thereafter, you can no longer secure a
writ by motion, but if you want to implement the
judgment you have to file an action. And the
action that you have to file will be an action to
revive the judgment.
Let me illustrate:
If on January 1, 2000, judgment was entered,
the judgment obligee can only execute the
judgment by applying for the issuance of the writ
of execution through a motion which he can file
up to December 31, 2005 only. So 5 years ha,
from entry of judgment. So he can file it either in
2001, 2002, 2003, 2004 or 2005 because the
judgment was entered on January 1, 2000. If it is
already January 5, 2006, he can no longer ask
for the issuance of the writ of execution because
the writ will no longer issue through motion.
Q: So what can he do?
A: He files an action to revive judgment. He files
an action.
Q: Where should he file it?
A: It depends. It does not necessarily mean that
it is the trial court because this action is a
different action. You are seeking for a different
judgment, the judgment that you seek to revive,
once revived, is a separate and distinct
judgment from the original judgment. So if a
decision for money in the amount of the Php
500,000 was rendered by the RTC and entered
January 1, 2000, and you were able to secure a
writ of execution on December 2001 you can
only implement that writ of execution up to
December 31, 2005. If by January 5, 2006, you
were able to collect only Php 400,000 you
cannot use anymore the writ of execution issued
in 2001 to have it implemented in 2006.
Q: So what do you have to do?
A: Because there is still a deficiency judgment,
you file an action to revive judgment.
Q: Where will you file it?
A: Not with the RTC, because your claim is only
Php 100,000.
NOTE: Let me warn you again that there are 2

54
books in remedial law that say otherwise. They

say that the judgment is the same and therefore
it must be filed in the same court. I DISAGREE!
You better qualify what kind of judgment it is. If it
is a judgment for money, your claim is already
within the jurisdiction of a different court. But if it
is a judgment which is not capable of pecuniary
estimation, no choice, but you have to file it with
the RTC. But not in the same court. I'll not
mention to you the book. Kayo ng bahalang
maghanap dun. I've talked already to the author
of that book and he said he'll revise it.
So if by January 2006, the judgment obligee files
an action to revive judgment. And it was revived,
the revived judgment is separate and distinct
from the original judgment. This judgment must
again be entered and the entry of the revived
judgment must be the basis for execution of the
judgment either by motion or by action.
Suppose you file your action to revive judgment
in January 20, 2006, and it was revived by the
Court in February 5, 2006, and the entry of
judgment was entered 15 days after. The 5 year
period will start from February 20, 2006 and you
will have until February 19, 2011 within which
you can get a writ of execution by motion. If by
February 19, 2011 you have not gotten taking
writ of execution by motion, you can again avail
file an action to revive judgment. The judgment
that you seek to revive is the revived judgment.
This is a second revival of judgment. This is
possible.
There is no limit as to the number of revival of
judgment unless the prescription of 10 years
sets in.
Q: And where do you count the 10 year period?
A: From entry, not of the original judgment but of
the judgment that you seek to implement. So
you can only revive the original judgment which
was entered January 1, 2000 up until December
31, 2010. The judgment which you have revived
on January 2006 and entered in February 20,
2006, you still have until 2011 within which to
revive it by motion. But you can revive it either
by motion or by action only up to February 2016
because you count the prescription from the
entry of the revived judgment.
Tuloy-tuloy yan basta hindi lang mag-expire

yung 10-year period. But the 10-year period
must never be counted from the original one
because as i said a revived judgment is
separate and distinct from the original judgment.
Going back to the old doctrine of Luzon, kasi
binago yun, you can only revive once. But latest
jurisprudence has gone back to the original
ruling that you can revive as many times as
possible provided it does not prescribe.
Section 9. The writ of execution is addressed to
the sheriff. Then the sheriff must implement the
writ according to the tenor of the writ. That's why
it is required now that when you file a motion for
a writ of execution, you should state what you
want and the writ of execution must also state
what is to be executed. Walang generalities dito.
You cannot say, for example, "I move for the
execution of the judgment entered January 10,
2005." No, you have to state specifically that you
are praying for the issuance of the writ of
execution in the amount of Php 100,000 as
principal obligation, 20,000 as interest thereto,
10,000 as attorney's fees, 5,000 as cost of suit.
In other words, it must be specific, because the
writ of execution will also follow your motion.
And this is addressed to the sheriff.
Aside from the sums of money, if it is for sum of
money halimbawa, stated in the writ of
execution, the sheriff is also entitled to his legal
fees. Bago na ngayon, dati Php 4 per 100,000 or
1M.
Q: So, let's say it's a judgment for money. The
sheriff now, armed with a writ of execution, goes
to judgment obligor B. The judgment obligee is
A. A was able to get a writ of execution
addressed to the Sheriff X. So X now would go
to B. The sheriff implements the writ of execution
which the judgment amounts to Php 1M. Then B
goes in his room and gets his Php 1M cash and
pays directly to the sheriff. Is that a valid
satisfaction of judgment?
A: That is condition. Because payment to the
sheriff may not be a valid satisfaction of
judgment. It is only payment to judgment of
obligee. But in the course of the execution, if the
judgment obligee is not there, once the sheriff
receives the money in satisfaction of the
judgment, the rule provides that the sheriff

55
should turn the money over to the clerk of court

or deposit it with a reputable bank within a
period of 24 hours.
So when you get to become lawyers, never
execute a judgment in the afternoon. Because
the bank closes at 3pm and the clerk of court
closes, supposedly at 5pm but at 2pm the clerk
of court is not there anymore. So the sheriff
might keep it. That is not satisfaction of
judgment.
In the case of PAL, it was handed out to the
sheriff and the sheriff did not remit it to the
judgment obligee. PAL contended that there was
execution already but the judgment obligee
denied. The sheriff is nowhere to be found. The
SC said there is no satisfaction of judgment. It
must be given to the judgment obligee. So if
you're the judgment obligor, be careful. If you're
the judgment obligee, accompany the sheriff.
This is if it is in cash.
Q: If obligor, B, pays a check in the name of the
sheriff Juan Dela Cruz, is it valid?
A: No, it is invalid. It must be paid to the order of
the judgment obligee.
Q: Suppose it is payable to cash?
A: No it is not valid, because it is not handed to
the judgment obligee. If it is handed to the
sheriff, the sheriff will encash it, for sure.
The sheriffs now are like the tax collectors in the
Bible, most of them. Rule 39 is the Bible of the
Sheriffs. They know it. Most lawyers usually rely
on the sheriffs. The sheriffs abuse their power.
So we must be educated by studying it.
JOKE TIME by Atty. Brondial
I.
Atty. Brondial reiterates and educates his
students to become GOOD and CHRISTIAN
Lawyers.
Kaya maraming nagsasabi na walang lawyers
sa langit.
Man: (Pagdating dun) St. Peter, nandiyan ba si
Atty. Dela Cruz?
St. Peter: Wala dito, baka nasa impiyerno.
Man: (Punta ng impiyerno) Satan, nandiyan ba
si Atty. Dela Cruz?
Satan: Wala rin dito e, baka nasa purgatoryo.
Itanong mo kay St. Gabriel.
Man: (Punta ng purgatoryo) St. Gabriel,
nandiyan ba si Atty. Dela Cruz?

St. Gabriel: Wala!
Man: (Balik kay St. Peter) St. Peter wala siya sa
impiyerno, wala siya sa purgatoryo, wala rin dito,
nasan kaya yun?
St. Peter: Wala? Ano bang trabaho nun?
Man: Lawyer ho.
St. Peter: E yun naman pala. Walang kaluluwa
yun.
(Section C laughed!) Astig! Galing ng delivery ni
Brondial!
II.
St. Peter: Hoy Satanas, nasira yung bakod natin
dito. Marami kang engineer diyan, ipaayos mo
naman ito.
Satanas: Ayoko nga!
St. Peter: Sige ayaw mo ha. Ihahabla kita.
Satanas: Saan ka naman kukuha ng abogado?
E andito lahat sila.
(Again, Section C laughed) Astig!
So when you try to execute a judgment, then
accompany your client whether he is a judgment
creditor or debtor. Up to the end. Walang
iwanan.
There is another way of satisfaction of judgment,
and we call this GARNISHMENT. Garnishment
is much better that Levy.
Q: What is granishment?
A: It is taking legal custody of money, ordinarily
from a bank or financial institution. Under the
Rules, paragraph c of Section 9, in garnishment,
you simply furnish a copy of the writ of execution
and the entry of judgment together with a copy
of the judgment to the branch manager of the
bank or a financial institution. And when he
receives that, under the rule, he is bound, within
a period of 5 days, to inform the sheriff or the
court whether or not the judgment debtor has
money in the bank. And thereafter, 10 days after,
he has to remit the money to the judgment
obligee.
Mas madali ang garnishment kaysa sa levy.
Now the other one is what you call LEVY.
Q: How do you levy?
A: Levy is taking legal custody of either real or
personal properties.

56
Q: What can be subject of levy?

A: Real or personal properties.
If it is personal property, then the sheriff takes
actual custody of it if it is capable of manual
delivery. If it is not capable of manual delivery,
then the personal property must be duly
ascertained that it is in the place. By giving a
copy of the writ of execution to the one in charge
of that property and by that the property
becomes in CUSTODIA LEGIS.
If it is real property, it is a matter of annotation
in the office of the register of deeds of the place
where the property is located. That is how to
levy.
This example that Ive given is judgment for
money, but not all judgments are judgment for
money. So if this is a judgment for specific
performance, the sheriff must undertake that the
judgment obligor does something as ordered by
the court.
Suppose it is a judgment to withdraw money, it is
not a judgment for money but a judgment for
specific performance. So the sheriff must
accompany the judgment obligor and ask him to
withdraw money from the bank. And that in one
case, this is considered as a special kind of
judgment. In other words, it is a judgment which
cannot be performed by any other person except
the judgment obligor because if this can be
performed by other persons other than the
judgment obligor, and he does not want to do it,
then the Sheriff can ask other persons to do it at
the expense of the judgment obligor.
Example:
A judgment to build a house. That is a judgment
for specific performance. But the judgment
obligor does not want to build the house. Ask
someone to build the house at the expense of
the judgment obligor.
If it is a judgment for delivery of specific property,
then if the judgment obligor does not want to
deliver, then ask someone to deliver it in behalf
of the judgment obligor, and at the expense of
the judgment obligor.
Special mention must be made regarding
unlawful detainer. This is a judgment to vacate
and delivery of the property to the judgment

obligee. Remember that under Rule 70 the
execution of that judgment, you have to give at
least 3 or 5 days, in the case of residence and 3
or 5 days in the case of lot. So you cannot just
immediately oust the judgment obligor. You have
to implement the written execution by telling the
judgment obligor to vacate the premises within 3
- 5 days.
Q: If after 5 days, the sheriff goes back to the
judgment obligor and the judgment obligor is still
there, will the judgment obligor be liable for
contempt?
A: No. The sheriff must ask police officers or
must secure help from public authorities (NBI) to
forcibly eject the judgment obligor. But the sheriff
cannot cite the judgment in contempt because
the writ of execution is addressed to the sheriff.
Now the property is already vacated. Then after
10 - 30 days the sheriff came back and saw the
judgment obligor occupying the same property,
the sheriff can now cite the judgment obligor in
contempt.
Suppose in this ejectment case again, the
property owned by the judgment obligee is a
land. On the land is built a barong-barong built
by the judgment obligor. So you have to
demolish the premises.
Q: When you execute the judgment to vacate,
can you demolish the premises right away?
A: No you cannot do that. You have to secure
from the court a writ of demolition.
These are specific ways by which to execute a
judgment.
Q: So the sheriff, for sum of money in the
amount of P 1M, was not able to collect it from
judgment obligor B. So what should the sheriff
do?
A: He levies on the properties of the judgment
obligor.
Q: What properties should the sheriff levy on?
A: Either real or personal properties.
But under the rules now, the judgment obligor
has the option as to which property should first
be levied. And that privilege or option does not
belong to the judgment obligee or the sheriff but

57
belong to the judgment obligor.
keep it at home and use it for personal matters.
So when the sheriff goes to the house and

determines that the judgment obligor cannot pay
in cash or check, the sheriff has no other choice
but to levy on his property. If the sheriff chooses
the judgment obligor's car (Mercedes Benz) to
be levied, the judgment obligor can oppose or
contest. The judgment obligor can point to other
properties to satisfy his judgment debt. Like the
JVC flat screen TV which is already P299,000,
or the 15 cubic feet freezer which is already P
100,000, or the other car (Toyota, model 1965).
In other words, the judgment obligor has the
option.
If the sheriff personally uses the car and he was

accosted by a TMG Officer, and the latter finds
out that the car is a levied property, and the
sheriff uses the judge as an excuse (dinamay
ang judge). Both the sheriff and the judge were
administratively charged. The sheriff was
discharged and the judge was suspended.
Decided case yan by the SC. So keep the
property in the premises of the court, and
considering that you have levied on this
property, you have now to set the auction sale of
the property.
The problem is when the judgment obligor is not

present. Considering that no one can exercise
the option, so it is now incumbent upon the
sheriff to levy on any property that he sees. But
the sheriff must first levy personal properties
over real properties.
Q: If what the sheriff was able to levy only was a
Toyota 1965 Corolla, which is only P30,000 (out
of P 1M), the sheriff levies on real properties.
How does he go about it?
A: The sheriff goes to the register of deeds and
tries to examine whether there are properties in
the name of the judgment obligor. If there are,
the sheriff furnishes the register of deeds of a
copy of the writ of execution, together with the
judgment, and ask the register of deeds to
annotate on the original transfer certificate of
title belonging or in the name of the judgment
debtor. And by that levy, that is what you call
levy on real property. By that annotation, that
property is now in CUSTODIA LEGIS.
Suppose the property is not titled. So the sheriff
goes to the office of the Municipal or City
Assessor and get a copy of the tax declarations
in the name of the judgment obligor. And armed
with the copy of the tax declarations, the sheriff
goes back to the register of deeds and have it
recorded in the book of unregistered properties.
So that is how to levy an unregistered property.
Otherwise, if it is personal property, capable of
manual delivery, the sheriff takes it. So the
sheriff levies a Toyota Corolla car, he takes
actual custody of the car and drives it to the
court and keeps it there. The sheriff should not
Section 13 are those properties which are

exempt from execution. You just go over them.
Madaling tandaan because Section 13 of Rule
39 have 13 exempt properties.
Q: Have you ever wondered why it uses 3
horses, 3 carabaos, or 3 cows?
A: 1 kay tatay, 1 kay nanay at 1 para sa anak.
Because it is an ideal family and the perfect
family is the holy family (Joseph, Mary and
Jesus).
The horses contemplated herein are for the use
of the family. They are not race horses. Because
if you can keep race horses, the race horse's
value would be P 500K - P 1M.
Several years ago, Brondial gave an exam and
gave a question about levy. A very rich person
with 3 race horses. Pina-levy ni Brondial yun. He
asked kung pwedeng i-exempt yun. - The race
horses can be levied and what is contemplated
by the rules are horses used for livelihood. Even
if the horses, in kalesa, were used to be race
horses. They are still exempt.
Tools and implements in paragraph b of
Section 13 have a decided case. Here is a
security agency, was sued and judgment was
rendered for money. The agency could not pay
so the sheriff levied properties. The properties
levied were guns and ammunitions. The agency
filed a motion to quash the writ of execution on
the ground that these are tools in the implement
of the business. The SC said that these are not
exempt from execution because they are not
tools and implements contemplated by the rules.
Because the guns and ammunitions were used
for business. What the rules contemplate are

58
tools and implements used for livelihood.

Take note that there is no limit in annuities but
regarding libraries of lawyers, doctors, engineers
and teachers, the limit is P 300,000. That is very
small, one SCRA costs P 860.
Let me proceed to execution proper. Auction
sale.
Section 15. Notices.
Q: What are the requirements before auction
can be undertaken?
A: Remember 3 requirements and qualify them
as to what they are required.
1. Notice
2. Posting
3. Publication
Notice, irrespective of
auctioned, is mandatory.
what
is
to
be
Q: Notice to whom?
A: Notice to the judgment obligor. So that if
there is no notice to the judgment obligor, the
auction becomes irregular and may even be
invalidated.
Q: When is posting necessary depending on
what is to be auctioned?
A: Because the date of posting depends on the
object of auction.
If it is perishable goods, posting may be
required but only for a day or two.
If it is personal properties, capable of manual
delivery, it may be 5 days, otherwise, it may be
more depending now on the court.
Now, if the auction is of a real property,

publication is not needed. But when the property
is worth more than P50,000 then publication is
needed once a week in 2 consecutive weeks in
a newspaper of general circulation. In the case I
have assigned to you, in Pinlac v. CA, the SC
described what is a newspaper of general
circulation. Because if you don't comply with
that, then there is no valid publication, the
auction is irregular and may be invalidated.
It is further said that the auction sale must be
done between the hours of 9am - 2pm. And it
can be adjourned from time to time depending
on the agreements of the parties or if the parties
are not around, depending on the sheriff after
giving notice to the parties.
Have you attended an auction sale? You better
attend one because there are auction sales that
do not comply with the rules. Not that the sheriff
who does not comply with it but because of the
absentee lawyers, absentee obligors, or even
the absentee obligees. As lawyers, you must be
present so you can oppose if there are
irregularites because there are prices which are
unconscionable. Aside from the fact that the
judgment obligor has the option as to which
should be first sold. TV set, Freezer or other
properties that can easily satisfy his debt. If the
judgment obligor is absent, there can be
connivance between the sheriff and the
judgment obligee and connive with what
property to be auctioned and on what amount
the property can be auctioned at. As when there
are no other bidders, the sheriff may allow the
obligee to bid at a very low amount thus there
would still be a insufficiency judgment.
Q: Where should the posting be done?

A: There are places stated in the rules and they
are not mandatory. They are only suggestions.
The rationale behind the law is where as many
people as possible that can read it. Municipal
building, public market, post offices. Di ba may
public market din sa SM, pwede and posting
dito.
GENERAL RULE: If the judgment obligee is the

purchaser at the auction sale, the judgment
obligee is not bound to pay.
EXCEPTION: Section 16, where there is a 3rd
party claim. The judgment obligee, even if he is
the highest bidder, must pay because there is a
question as to ownership of property auctioned.
Although the problem is when the post is being

defaced or removed. The person who defaced
the post is liable for the amount of not more than
P 5,000. But it is very hard to search or even
identify the person who defaced the post.
Q: A 3rd party claim is different from a 3rd party

complaint. We've studied 3rd party complaint
already.
A: A 3rd party claim happens on auction sale on
execution, foreclosure, or attachment. We have

59
the rules which are inter-related. In Rule 39,

inter-relate it with Rule 57 on attachment and
Rule 68 on foreclosure of real estate mortgage.
Lahat ng ito ay may rule on 3rd party claim. And
they have practically the same provisions.
auction, the purchaser of the property may ask

for a deed of sale. And the deed of sale must be
executed by the sheriff and not the owner
anymore, because the property is in custodia
legis.
Q: So that if there is a 3rd party claim, how does

the 3rd party claim must go about it? A: He must
execute an affidavit stating that he is the owner
of the property. He gives that to the sheriff. The
sheriff copy furnishes the judgment obligee. If
the judgment obligee does not put up a bond,
then the sheriff will not be liable for the delivering
the property to the 3rd party claimant.
The right and interest of the purchaser retroacts

to the time of the judgment or preliminary
attachment. Correlate it with the rule on
preliminary attachment.
In replevin (recovery of personal property),

under Rule 60, there is also a 3rd party claim.
Remember, that before you can be granted the
writ of replevin, you have to file a bond.
Q: How much is the bond? T
A: Twice the value of the property. We will study
that once we get to Rule 60.
What Brondial is trying to say is that in replevin
there is a 3rd party claim. Aside from putting a
bond twice the value of the property, you have
to, still, put up another bond equivalent to the
value of the property.
Example:
Mercedes Benz car is worth P1M. Then in
replevin you have to put up a bond in the
amount of P3M (twice the value of the bond and
the another bond equivalent to the value of the
property) because of the 3rd party claim.
But in Rule 39, the bond must be equivalent to
the value of the property.
No damages may be filed against the sheriff
after a period of 120 days. 120 days means
prescription. So if you want to file for damages,
you have to file it within 120 days. The case is
Young v. Valdez.
So this is 3rd party claim, Section 16.
Then notices filed in Secs. 17, 18 and 19.
If what is sold is real property, it is mandatory

that a deed of sale must be executed and a
certificate of sale must be issued and registered
in the office of the register of deeds. That is very
important because the right of redemption
begins from the time that the certificate of sale is
registered with the office of the register of deeds.
The period, therefore, starts to run from the
registration of a certificate of sale and not from
the sale, auction or the levy. That is the right of
redemption.
In foreclosure of real estate mortgage under
Rule 68, there is no right of redemption. There is
only equity of redemption. And equity of
redemption is different from right of redemption.
Right of redemption is the authority or privilege
or right of the judgment debtor or obligor or
redemptioner to redeem the property within a
period of 1 year from the registration of
certificate of sale.
Q: Section 27, who may redeem?
A: 2 lang ang pwedeng mag-redeem.
1. judgment obligor or his succesors-in-interest.
2. redemptioner.
Please memorize the meaning or rather the
definition or description of what a
redemptioner is.
A redemptioner is one who has a lien over the
property subsequent to the lien under which the
property is sold. Brondial said he is just
paraphrasing the provision in paragraph b under
Section 27 of Rule 39.
Ang importanteng word ay ang "subsequent".
If what is auctioned is a real property, the

judgment obligor has the right of redemption.
If what is auctioned is personal property,
there is no right of redemption.
A car is a personal property, so if it is sold in an

60

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REMEDIAL LAW REVIEW 2007

INTRODUCTION TO REMEDIAL LAW REVIEW

in Metro Manila; or more than P300,000.00

Jurisdiction is the sun around which the

Jurisdiction over person/ parties:

In answering the exams, you have

How does the court acquire jurisdiction over

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1. Annulment of Marriage- case may proceed.

Representative, that was not the case

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he raised the fact of jurisdiction, here there is

Knowing the sign post of remedy, the first

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REMEDIAL LAW REVIEW 2007

NB: The basis for declaration of default is

(e) All cases in which only an

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REMEDIAL LAW REVIEW 2007

warranto and habeas corpus because you do

(e) cases in which only an

Q: What is quo warranto?

The term Review, Reverse, Revise, Modify or

In the application of concurrent jurisdiction,

The first paragraph of section a paragraph 5 is

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A: Do not be confuse, certiorari there refers to

All decisions, final orders, judgment of the RTC

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because it is an action for specific

amount of money, but when you file an

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4. Admiralty and Maritime cases. Should an

procedure. That is why jurisdiction there gets

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and below, it is summary. In claims, if P300T

counterclaims. This seems to be the doctrine

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the moment the court acquires jurisdiction over

exceptional to the theory of one suit for a single

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In a contract of lease, the lessee did not return

4. Where the claims in all the causes of action

Q: In the said example, is there joinder of

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REMEDIAL LAW REVIEW 2007

Q: Let us change the value in the example,

Q: When is the rule on venue not applicable

Q: Mr. A resident of QC filed a case against Mr.

Q: Which court has jurisdiction over the case if

Party in interest v. lagal standing

Q: Suppose the claim for a sum of money is for

Q: Who may be parties?

November 23, 2006

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