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CIVIL PROCEDURE

PART I
JURISDICTION
Jurisdiction is the authority or power to hear, try, decide a case (Cuenca vs. PCCGG, 535
SCRA 102) and to execute the judgment thereon (Echegaray vs. Secretary of justice, 301 SCRA 96).
It is not the power of a judge but of the court.
1. For a judgment to be valid, the judgment must have been rendered by a court having
jurisdiction over the following: (1) subject matter; (2) parties, (3) issues, and (4) res.
2. Jurisdiction over the subject matter This kind of jurisdiction is not procedural but a
matter of substantive law. This jurisdiction is CONFERRED by law. Nothing else can confer
jurisdiction except the law (De la Cruz vs. Court of Appeals, 510 SCRA 103; Guy vs. Court of
Appeals, December 10, 2007). If it is conferred by law, it cannot be conferred by waiver, agreement
by the parties or by acquiescence of the courts. It cannot be conferred by the rightness of the
decision made or by the regularity of its exercise. WHY? Because it is conferred ONLY by law.
Hence, whether or not the court has jurisdiction over the subject matter of an action instituted
before it is dependent upon the laws on jurisdiction.
3. Payment of filing/docket fees The rule as it stands now, requires the payment of the
requisite fees when a complaint is filed. It is not simply the filing of the complaint that vests the
court with jurisdiction over the action filed (even if by law, it has jurisdiction) but also by the
payment of the prescribed docket fee. The Supreme Court in several cases, has held that a court
acquires jurisdiction over the case ONLY upon the payment of the said fees (Manchester
Development Corporation vs. Court of Appeals, G.R. No. 75919, May 7, 1987; Nestle Philippines, Inc.,
vs. FY Sons, Inc., G.R. No. 150789, May 5, 2006). This strict rule, as enunciated in Manchester was
prompted by the peculiar circumstances of the case. Here, the Court noted a fraudulent scheme
to avoid payment of the docket fee by the plaintiffs deliberate omission of the amount of
damages sought in the prayer although alleged in the body of the complaint.
This ruling was relaxed in Sun Insurance vs. Court of Appeals ( 149 SCRA 562), when the
Court made a liberal interpretation of the rule by allowing a late payment of the docket fee as
long as it should not be made beyond the actions prescriptive period. It also declared in the
same case that any unpaid fees should be considered a lien on the judgment. In this case, there
is no evidence that the plaintiff tried to evade the payment of the docket fees.
Note: It should be noted that the pronouncements of the Court on the matter of docket
fees have always been influenced by the peculiar legal and equitable circumstances surrounding
each case. The rule is not as simple, as rigid or as uncomplicated as the Manchester case makes
it appear. There are other circumstances equally important. While the timely payment of docket
fees is jurisdictional, considerations of equity also come into the picture (Yuchengco vs. Republic,
333 SCRA 368).
4.
Objections to jurisdiction over the person of the defendant may be made initially either
in a motion to dismiss or in the answer as an affirmative defense. However, objections to
jurisdiction over the subject matter may, as a rule, be made at any stage of the proceedings, even
for the first time on appeal as long as estoppel by laches does not set in (Calimlim vs. Ramirez,
118 SCRA 399; Francel Realty vs. Sycip, 469 SCRA 430). Being estopped to question jurisdiction is
the exception rather than the rule.

5.
While jurisdiction over the subject matter is CONFERRED by law, it is DETERMINED
by the allegations of the complaint (Deltaventures Resources, Inc. vs. Cabato, 327 SCRA 521).
This means that in order to find out if the court has jurisdiction over a complaint filed
before it, the court must look into the allegations of the complaint and no other. The defenses in
the motions or in the answer of the defendant should not be considered. For this purpose, the
court shall hypothetically assume the truth of the averments in the complaint. If the complaint
alleges a claim of P500,000, the RTC has jurisdiction even if the defendant claims that his debt is
only P100,000. The truth and the falsity of the claim are not considered as factors in determining
the jurisdiction of the court because such matters are to be addressed in the trial of the case.
6. The MTC has exclusive original jurisdiction over claims not exceeding P300,000 in places
outside Metro Manila and not exceeding P400,000 within Metro Manila. In determining the
jurisdictional amount, do not include the following: (a) damages of whatever kind, (b) interests,
(c) attorneys fees, (d) litigation expenses, and (e) costs. Note that damages will be considered in
determining the jurisdictional amount when the main action is for damages. If damages is not
the main action, damages should be excluded.
Example: Mr. P filed an action for collection of a sum of money, thus: P350,000, the
amount of the note; litigation costs of P6,000; attorneys fees of P50,000; damages of P5,000. In
what court shall the action be filed assuming the parties are residents of Manila?
The case should be filed in the MeTC of Manila even if the total claim is P411,000. The
amount to be considered for jurisdictional purposes is only P350,000.
Follow the jurisdictional amounts above even if the case is an admiralty or a maritime
case. In matters of probate, the same jurisdictional amounts apply but the basis is the gross
value of the estate whether in personal or real property. Because of the amendments introduced
to BP 129 by R.A. 7691, the MTC may now handle probate cases even if a probate case is a
special proceeding (Sec. 19(4), BP 129 as amended by R.A. 7691). It is not correct to state that an
MTC has no jurisdiction over a special proceeding.
7.
Unlawful detainer and forcible entry cases are to be filed with the MTC which has
exclusive original jurisdiction over said cases regardless of the amount of rentals or damages
prayed for (even if the rentals or damages run into millions) (Sec. 34(2), BP 129 as amended by
R.A. 7691). This is an instance where the MTC can take cognizance of a special civil action.
Forcible entry and unlawful detainer are treated in Rule 70 as special civil actions (Sec. 33(2), BP
129 as amended by R.A. 7691).
Under the same provision of the law, when the defendant raises the issue of ownership
in his pleadings in an unlawful detainer or forcible entry case, the MTC still has jurisdiction over
the case. The MTC may still resolve the issue of ownership but only for the purpose of resolving
the issue of possession. The court shall do so if the question of ownership cannot be resolved
without deciding the issue of ownership (Sec. 33(2), BP 129 as amended by R.A. 7691).
8.
May an MTC now take cognizance over real actions or actions involving title to, or
possession of real property or of any interest therein? YES.
Under R.A. 7691, the answer is in the affirmative depending upon the assessed value of
the land involved in the litigation. If the assessed value of the land or interest therein does not
exceed P20,000 outside Metro Manila or does not exceed P50,000 within Metro Manila, the MTC
has original jurisdiction over the case (Sec. 33(3), BP 129 as amended by R.A. 7691). Thus, an
MTC can now have jurisdiction over cases involving ownership of land. Under the former law
these cases were under the jurisdiction of the RTC. Hence, an action for reconveyance of real
property, removal of a cloud in a title of real property, cancellation of title to real property and

similar actions shall fall within the jurisdiction of the MTC or the RTC depending upon the
assessed value of the land involved. Before the amendments introduced by R.A. 7691, they were
within the jurisdiction of the RTC because of express provision of the old law and also because
they were considered also as actions incapable of pecuniary estimation (Heirs ofValeriano Concha
vs. Spouses Gregorio Lumocso, G.R. No. 158121, December 12, 2008; San Pedro vs. Asdala, July 22,
2009).
Under the old law, there was no substantial effect on jurisdiction whether a case is one,
the subject matter of which was incapable of pecuniary estimation, under Sec. 9 (1) of BP 129 or
one involving title to property under Sec. 19(2) of BP 129. The distinction between the two
classes became crucial with the amendment introduced by R.A. No. 7691 in 1994 which
expanded the exclusive original jurisdiction of the first level courts to include all civil actions
which involve title to, or possession of, real property, or any interest therein where the assessed
value of the property or interest therein does not exceed P20,000.00, or in Metro Manila, does
not exceed P50,000.00 exclusive of interest, attorneys fees, damages of whatever kind, attorneys
fees, litigation expenses and costs. (Heirs ofValeriano Concha vs. Spouses Gregorio Lumocso, G.R.
no. 158121, December 12, 2008; san Pedro vs. Asdala, July 22, 2009).

9. Jurisdiction over a case of accion publiciana, also now depends upon the assessed value of
the property involved (Quinagoran vs. Court of Appeals, August 24, 2007; Atuel vs Valdez, 403
SCRA 517). However, even if cognizable by the MTC because of its assessed value, the case will
not be covered by a summary proceeding. Jurisdiction over an accion reinvindicatoria also
depends upon the assessed value of the land (Hilario vs. Salvador, 457 SCRA 815). These actions
are no longer the exclusive domain of the RTC.
10. An MTC may also hear and decide petitions for writ of habeas corpus in the absence of
all judges of the RTC in the city or province. This is the special jurisdiction of the MTC (Sec. 35,
BP 129 as amended by R.A. 7691). This case is another example of a special proceeding under the
jurisdiction of the MTC. The other special proceeding is a probate proceeding jurisdiction over
which depends upon the gross value of the estate.
11. The MTC also has a delegated jurisdiction (Sec. 34, BP 129 as amended by R.A. 7691). The
Supreme Court may assign the MTC to hear and determine cadastral and land registration cases
covering lots where there is no controversy or opposition, or in case of contested lots where the
value of which does not exceed P100,000.
The value of the land shall be determined first, by the affidavit of the claimant, or second,
if there are several claimants, by their agreement, or third, from the corresponding tax
declaration of the property. Note: The decision of the MTC under this delegated jurisdiction
shall be appealable in the same manner as decisions of the RTC. Hence, the decision is
appealable to the CA.
12.
All other cases not within the jurisdiction of the MTC or of any other court, tribunal,
person or body exercising judicial or quasi-judicial functions shall be filed with the RTC (Sec.
19(6), BP 129 as amended by R.A. 7691).This is because the RTC is a court of general jurisdiction.
13. The RTC now also has exclusive original jurisdiction over cases which used to be with
the jurisdiction of the Securities and Exchange Commission (R.A. 8799).
14. It also has jurisdiction over cases not capable of pecuniary estimation like rescission of a
contract, reformation of an instrument or annulment of a contract, or injunction as a main
action. It also has jurisdiction over an action for specific performance which is also an action
incapable of pecuniary estimation (Sec. 19(1), BP 129 as amended by R.A. 7691).

How about an action for specific performance OR damages? To know the jurisdiction,
look at the amount of damages. This is an instance where the damages shall be considered
(Cruz vs. Tan, 87 Phil. 627).But an action for specific performance alone or specific performance
AND damages is an action incapable of pecuniary estimation and the action shall be filed with
the RTC.
15. Jurisdiction over the plaintiff and defendant Jurisdiction over the plaintiff is acquired
when said plaintiff files the complaint. By seeking affirmative relief through the complaint, there is
an implied submission of the plaintiffs person to the jurisdiction of the court. Jurisdiction over
the plaintiff may be acquired even if he is not a citizen or a resident of the Philippines.
Note: Jurisdiction over the person of the defendant is relevant only in an action in
personam. In an action in rem or quasi in rem, what is needed is jurisdiction over the res (the thing
or the status).
Jurisdiction over the defendant is acquired by (a) a valid service of summons or (b) by
his voluntary appearance or submission to the jurisdiction of the court.
The defendants voluntary appearance in the action shall be equivalent to service of
summons (Sec. 20, Rule 14, Rules of Court).
Lack of jurisdiction over ones person may be invoked in a motion to dismiss alleging
such ground. If no motion to dismiss is filed, it may be raised as an affirmative defense in the
answer.
Under the previous rule, the objection to jurisdiction must be done by making a special
appearance in a motion to dismiss invoking the lack of jurisdiction over the person of the
defendant as the only ground. Adding any other ground in addition to lack of jurisdiction over
the defendant was construed as a voluntary appearance or submission to the jurisdiction of the
court. The rule as it is now, is different. Now, the inclusion in a motion to dismiss of other grounds
aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary
appearance. (Sec. 20, Rule 14, Rules of Court).
Illustration under the old rule: Defendant files a motion to dismiss. Ground: Lack of
jurisdiction over his person because of invalid service of summons. He adds another ground:
prescription. Under the old rule, defendant had voluntarily submitted to the jurisdiction of the
court by adding prescription as a ground. Under the new rule however, the inclusion of
prescription is not equivalent to voluntary appearance or submission to the jurisdiction of the
court.
16.
Jurisdiction over the issues This is the power of the court to try and decide issues
raised by the pleadings. In order to determine whether or not the court has jurisdiction over the
issues of the case, one must look into the pleadings. This jurisdiction means that the court must
only pass upon issues raised by the parties. If the issue raised by the parties is possession, the
court has no jurisdiction to pass upon the issue of ownership because it is not an issue in the case.
Thus, it is not correct for the court to order the lessee to vacate the premises where the lessor
did not include in his pleadings a claim for restoration of possession (Buce vs. Court of Appeals,
332 SCRA 151).
Sometimes however, issues may arise in the case even if the same are not raised in the
pleadings. This happens when the issues are tried with the express or implied consent of the
parties. When this happens, the issues shall be treated in all respects as if they had been raised
in the pleadings. (Sec. 5, Rule 10).

If for instance in an action for a sum of money, the complaint does not allege that a
demand to pay has been made upon the defendant before the action is filed, the defendant may
file a motion to dismiss the complaint for failure to state a cause of action. He may also invoke
the said objection as an affirmative defense in his answer if he chooses not to file a motion to
dismiss. If however, he interposes no objection to the defect in the complaint and during the trial
he likewise does not object to evidence that demand was made before the action is filed, the
matter of demand shall be considered as if it has been alleged in the pleadings.
If a party presents evidence on a matter not at issue in the pleadings, the other may
object to such evidence. The court may sustain the objection and exclude the evidence. However,
the same rule likewise allows the court, in the interest of substantial justice, to direct an
amendment to the pleadings so the pleadings may conform to the evidence. This is true despite
the objection to the evidence. The evidence will then be admitted after the amendments are
made (Mercader vs. DBP (Cebu Brance), 332 SCRA 82, 97).
17.
Summary procedure Not all pleadings are allowed under the Rules of
Summary Procedure. For example: A party cannot assert a permissive counterclaim although he
may assert a compulsory counterclaim. A reply, a third-party complaint or a complaint in
intervention cannot also be filed. The only pleadings allowed are the complaint, compulsory
counterclaim and cross-claim pleaded in the answer, and the answers thereto. (Sec. 3(A) II).
The answer to the complaint shall be filed and served within ten (10) days from service
of summons.
May the defendant file a motion for bill of particulars or a motion to dismiss? No. These
are not allowed. Exception: A motion to dismiss may be filed if premised on (a) lack of
jurisdiction or (b) the failure to comply with the barangay conciliation proceedings).
If the defendant does not file his answer, may the plaintiff file a motion to declare the
defendant in default? The answer is likewise, no! The remedy of the plaintiff is to move for the
rendition of judgment. Even without the requisite motion, the court may motu propio render
judgment (Sec. 6, II, Rules on Summary Procedure).
NOTE: As of November 25, 2002, the jurisdictional amount subject to summary
procedure is as follows: P100,000 or less (outside Metro Manila); P200,000 or less (within Metro
Manila). An action for forcible entry and an action for unlawful detainer are subject to summary
procedure.
18.
An error of jurisdiction is correctible by certiorari while an error of judgment is
correctible by appeal. When the error of the court consists in the appreciation of the facts or the
evidences adduced, this is an error of judgment. When the court acts without jurisdiction
because it actually has no jurisdiction, or even it initially it has jurisdiction but gravely abuses
said discretion or acts in excess of jurisdiction which tantamount to lack of jurisdiction, the
special civil action of certiorari is the appropriate remedy.
Errors of procedure that do not affect the courts jurisdiction are not reviewable by
certiorari. It is not also available for the re-examination of conflicting evidences or the reevaluation of the credibility of the witnesses. Caveat: It is settled that certiorari is not proper
when another remedy is available. So if appeal is available, forget about certiorari. This is the
general rule. However, if appeal would not be speedy or an adequate remedy, then certiorari
may be availed of.
As a general rule also, a motion for reconsideration should precede a recourse to
certiorari in order to give the trial court a chance to correct its errors. This requirement is not
absolute and may be dispensed with in any or a combination of the following situations: (a)

when the error of the court is patently void; (b) where the relief is extremely urgent; (c) where
the issue is one purely of law; (d) where the question of jurisdiction has been squarely raised,
argued before, submitted to, and met and decided by respondent court; (e) where the
questioned order is a patent nullity; (f) where there is a deprivation of the petitioners right to
due process.
Reminder: Certiorari under Rule 45 should not be confused with certiorari under Rule 65.
Among others, the most important distinction is the issue raised. In Rule 45, the issue is a pure
question of law; in Rule 65, the issue is whether or not the tribunal, board or officer acted with
grave abuse of discretion amounting to lack of jurisdiction. Rule 45 is certiorari as a mode of
appeal. Certiorari under Rule 65 is not a mode of appeal but a special civil action.

SOME BASIC CONCEPTS TO REMEMBER


1. Remedial law (also known as procedural law or adjective law) is not substantive law.
Substantive law creates, defines and regulates rights and duties but remedial law which
includes civil procedure, merely prescribes the methods of enforcing rights and obligations
created by substantive law. It is not possible to speak of remedial law without reference to
substantive law, since the latter is the basis of the former.
The rules embodied in the Rules of Court are not laws in the strict sense of the word
since they did not emanate from the legislature, but since they were promulgated under
authority of law, such rules have the force and effect of laws (Alvero vs. De la Rosa, 76 Phil. 428).
The Philippines uses the system of code pleadings as distinguished from the common
law system. In the system of code pleading, the procedural rules are set forth in a codified form
like the Rules of Court. In the common law system, the procedural rules are not written in
codified form (Marquez vs. Varela, 92 Phil. 373 (1972).
2.
The Supreme Court has the inherent power to suspend the Rules of Court (Redea vs.
Court of Appeals, G.R. No. 146611, February 6, 2007) but while the rules may be relaxed or even
suspended by the Supreme Court, it will only do so for persuasive and weighty reasons in order
to relieve a litigant of an injustice. The mere invocation of substantial justice is not a magical
incantation that will automatically compel the Court to suspend procedural rules (Cu-Unjieng
vs. Court of Appeals, 479 SCRA 594, January 24, 2006). What impels the Court to set aside its rules
is not a partys empty invocations of liberality but the merits of his position so that the same
may not be obstructed by mere deficiencies in form. If a petition has not an iota of merit in it,
there is nothing for the Court to bring to light at all (Muoz vs. People, 548 SCRA 473, March 14,
2008).
3.

The Rules are to be liberally construed (Sec. 6, Rule 1, Rules of Court).

In many instances in the past, the Court allowed appeals filed out of time where the delay
was not due to the fault or negligence of the appellant as long as the appeals were impressed
with merit (Siguenza vs. Court of Appeals, 137 SCRA 570).
Also, while it is true that the pre-trial has already been terminated, the court may allow a
party to make additional markings of documentary exhibits since this is consistent with the
discretion of the court to dispense justice in accordance with the circumstances of the
proceedings before it (Frisco San Juan vs. Sandiganbayan, G.R. No. 173956, August 6, 2008).
4.
While the Supreme Court had held that payment of the docket fee within the
prescribed period is mandatory for the perfection of an appeal (Regalado vs. Go, G.R. No. 167988,
February 6, 2007), the non-payment of the docket fees merely gives rise to a discretion on the

court to either dismiss or take cognizance of the appeal and dismissal is not mandatory (Public
Estates Authority vs. Yuico , 351 SCRA 350, Villamor vs Court of Appeals, G.,R. No. 136858, July 21,
2004).
5. Rules of procedure may be made applicable to actions pending and undetermined at
the time of their passage, and are deemed retroactive only in that sense and to that extent. As a
general rule, the retroactive application of procedural laws cannot be considered violative of any
personal rights because no vested right may attach to nor arise therefrom (In the Matter to
Declare in Contempt of Court Hon. Simeon Datumanong, G.R. No. 150274, August 4, 2006).
6.
The Rules of Court shall not apply to (a) election cases, (b) land registration, (c)
cadastral, (d) naturalization, and (e) insolvency proceedings except by analogy or in a
suppletory character and whenever practicable and convenient. (Sec. 4, Rule 1, Rules of Court).
Administrative bodies are not bound by the technical niceties of the rules obtaining in a
court of law. Hence, administrative due process cannot be fully equated with judicial due
process (Samalio vs. Court of Appeals, 454 SCRA 462). Administrative bodies are not bound by the
technical niceties of law and procedure and the rules obtaining in the courts of law (Department
of Agrarian Reform vs. Uy, G.R. No. 169277, February 9, 2007).
In a naturalization proceeding for instance, the Court of Appeals can deny an application
for naturalization on the basis of documents not formally offered in evidence during the trial.
This procedure is contrary to Sec. 34 of Rule 132 providing that the court shall consider no
evidence which has not been formally offered but this rule however, does not apply to
naturalization proceedings (Ong Chia vs. Republic, 328 SCRA 749 [2000]).
While as a rule, affidavits whose affiants have not been cross-examined are hearsay, the
argument that the affidavits attached to the case are hearsay because the affiants were not
presented in court for cross-examination is not persuasive because the rules of evidence are not
strictly observed in proceedings before administrative bodies like the NLRC where decisions
may be reached on the basis of position papers only (Bantolino vs. Coca-Cola Bottlers, Phil., Inc.,
403 SCRA 699).
7.
Philippine courts are both courts of law and equity. (U.S. vs. Tamparong, 31 Phil. 321.
Equity cannot be invoked when there is a law applicable to a given case. (Smith Bell Co. vs. Court
of Appeals, 267 SCRA 530). For all its conceded merits, equity is available only in the absence of
law and not as replacement (Tankiko vs. Cezar, 302 SCRA 559). It is availed of only in the absence
of a law and is never availed of against statutory law or judicial pronouncements (Velez vs.
Demetrio, G.R. No. 128576, August 13, 2002; Bell vs. Court of Appeals, 267 SCRA 530; David-Chan vs.
Court of Appeals, 268 SCRA 677).

FUNDAMENTALS OF ORDINARY CIVIL ACTIONS


1.
Civil procedure starts with the filing of the complaint. Before filing the
complaint, the plaintiff must initially determine if he has a cause of action against the defendant.
Without this cause of action, he has no right to file a suit against the defendant because every
ordinary civil action must be based on a cause of action (Sec. 1, Rule 2).
2.
If a cause of action exists, the plaintiff may now start considering the preparation
of the complaint. But before doing so, he must determine the court that should take cognizance
of the action. This involves an inquiry into the laws on jurisdiction. He must also determine the
place where the action is to be filed. This means that he must know the venue of the action. He
must also know the persons to be impleaded. Hence, he needs to know the rules on parties. As a

starting point therefore, the plaintiff must know the concepts of action, right of action, cause of
action, jurisdiction, venue and parties before he files the action.
3.
In preparing his complaint, the plaintiff should remember that he should allege
only ultimate facts, i.e. the facts essential to a partys cause of action. (Sec. 1, Rule 6, Rules of
Court). This means that he should not allege conclusions of law and aver mere evidentiary facts.
Conclusions are for the court to make while evidentiary matters are reserved for the trial.
Conclusions and evidentiary matters in a pleading may be the subject of a motion to strike.
4.
The complaint must be signed by the plaintiff or counsel representing him. (Sec.
3, Rule 7, Rules of Court). The counsel who signs the complaint should be aware of the
significance of his signature. His signature constitutes a certificate by him that (a) he has read
the pleading, (b) that to the best of his knowledge, information and belief there is good ground
to support it, and (c) that it is not interposed for delay. (Sec. 3, Rule 7, Rules of Court). Remember
that an unsigned pleading has no legal effect (Sec. 3, Rule 7, Rules of Court). It is a mere scrap of
paper.
5.
The address of the party or of the counsel must not be a post office address. (Sec.
3, Rule 7, Rules of Court).
6.
The pleading need not be under oath. This means that a pleading need not be
verified, except when a verification is required by law or by a particular rule. A pleading is
verified by an affidavit that the affiant has read the pleading and that the allegations therein are true of
his personal knowledge or based on authentic records. (Sec. 4, Rule 7, Rules of Court).
It has however, been held that the absence of a verification or the non-compliance with
the verification requirement does not necessarily render the pleading defective. It is only a
formal and not a jurisdictional requirement. The requirement is a condition affecting only the
form of the pleading (Benguet Corporation vs. Cordillera Caraballo Mission, Inc., SCRA 381; Micro
Sales Operation Network vs. NLRC, 472 SCRA 328) and non-compliance therewith does not
necessarily render it fatally defective (Sarmiento vs. Zaratan, G.R. No. 167471, February 5, 2007).
All pleadings in a summary procedure are to be verified such as the pleadings in an action for
unlawful detainer and forcible entry (Sec. III (B) 1991 Rules on Summary Procedure) Other
examples are the special civil actions of certiorari, prohibition and mandamus (Rule 65).
7. Since a complaint is an initiatory pleading, it must be accompanied by a certification
against forum shopping. Note: A thorough preparation for the bar requires remembering the
contents of the certification against forum shopping in Sec. 5, Rule 7 of the Rules of Court.
Remember this provision by heart.
The certification is mandatory under Sec. 5 of Rule 7 but not jurisdictional (Robert
Development Corporation vs. Quitain, 315 SCRA 150) and must be signed by the party himself. It
cannot be signed by his counsel. (Digital Microwave Corp. vs. Court of Appeals, 328 SCRA 286).
This is the general rule and the prevailing rule, subject of course to the power of the Supreme
Court to suspend procedural rules.
In San Miguel Corporation vs. Aballa, 461 SCRA 392, only three out of the ninety seven
petitioners signed the certification of non-forum shopping. The Court ruled that the execution
of the certification by only three of the petitioners constitute substantial compliance with the
Rules because there is a common cause of action against San Miguel Corporation (See also Espina
vs. Court of Appeals, 519 SCRA 327; Pacquing vs. Coca-Cola Bottlers, Inc. 543 SCRA 344, January 31,
2008).

The failure to comply with the required certification is not curable by amendment and
shall be a cause for the dismissal of the action without prejudice unless ordered by the court to
be with prejudice. The general rule therefore, is to the effect that the dismissal is without
prejudice where the order is silent on the matter (Sec. 5, Rule 7, Rules of Court).
The dismissal for failure to comply with the requirements relative to the certification
against forum shopping cannot be done motu propio. The rule requires that the dismissal be
upon motion and after hearing (Sec. 5, Rule 7, Rules of Court). However, if the acts of the party or
his counsel clearly constitute willful and deliberate forum shopping, the same shall be a ground
for summary dismissal. Here, no hearing and motion is required. The dismissal in this case is also
with prejudice (Sec. 5, Rule 7, Rules of Court).
Where the dismissal is without prejudice, this means the action can be refiled even if it is
dismissed. When the complaint is dismissed without prejudice, the remedy of the plaintiff is not
to appeal. This is because an order dismissing an action without prejudice is not appealable. The
remedy provided for under Sec. 1 of Rule 41 is to avail of the appropriate special civil action
under Rule 65. This provision allows a petition for certiorari (Sec. 1(g), Rule 41, Rules of Court).
8.
After all those mentioned above have been considered and duly complied with,
the complaint may now be filed.
The filing of the complaint is the act of presenting the same before the clerk of court (Sec.
2, Rule 13, Rules of Court). It may be filed personally or by registered mail. (Sec. 3, Rule 13, Rules
of Court). The mailing through a private forwarding agency like Federal Express, LBC, Johnny
Air or UPS, is not allowed (Benguet Electric Cooperative vs. NLRC,209 SCRA 55).
9.
The rule in this jurisdiction is that when an action is filed, the filing must be
accompanied by the payment of the requisite docket and filing fees (Ballatan vs. Court of Appeals,
304 SCRA 34). The fees must be paid because the court acquires jurisdiction over the case only
upon payment of the prescribed fees. Without payment, the complaint is not considered filed
(Manchester Development Corp. vs. Court of Appeals, 149 SCRA 562). Payment of the full amount of
the docket fee is mandatory and jurisdictional (Ayala Land, Inc. vs. Carpo, 345 SCRA 379) This
rule was however, relaxed later by allowing the payment of the fee within a reasonable time but
not beyond the prescriptive period. (Sun Insurance Office Ltd. vs. Asuncion, 170 SCRA 274). If the
fees are not paid at the time of the filing, the court acquires jurisdiction only upon full payment
of the fees within a reasonable time as the court may grant, barring prescription (Ballatan vs.
Court of Appeals, 304 SCRA 34).
10.
When the complaint is filed and the prescribed fees are paid, the action is
deemed commenced (Sec. 5, Rule 1, Rules of Court). The filing of the action is significant. First,
the filing of the complaint enables the court to acquire jurisdiction over the person of the
plaintiff even if the plaintiff is not a resident of the Philippines. Second, it interrupts the running
of the prescriptive period (Art. 1155, Civil Code of the Philippines).
11.
Normally, it is the defendant who seeks the dismissal of a complaint. May the
plaintiff also have his own complaint dismissed?
The rule allows a dismissal at the instance of the plaintiff. Sometimes after filing the
action, the plaintiff, for reasons personal to him, may have regretted having filed the complaint.
When this happens, he may dismiss his own complaint.
If the dismissal is sought before the adverse party had served an answer or a motion for
summary judgment, he may have his own complaint dismissed by the mere filing of a notice of
dismissal. Upon such notice, the court shall issue an order confirming the dismissal (Sec. 1, Rule

17, Rules of Court). The court has no discretion on the matter. The court does not order the
dismissal. It merely confirms the dismissal because it is not really the court which dismisses the
action but the plaintiff himself.
May the plaintiff refile the case later on? He can. He can do so because such a dismissal
is, as a rule, a dismissal without prejudice. He cannot refile the case however, in the following
instances: (1) If the plaintiffs notice of dismissal states that it is with prejudice, or (2) If the
dismissed action based on or including the same claim has once been previously dismissed by
the plaintiff. The latter is often referred to as the two dismissal rule.
Example: Plaintiff filed an action against Defendant in the RTC. Before Defendant
responded to the complaint, Plaintiff filed a notice dismissing the complaint. A couple of
months after, he filed another complaint based on or including the same claim as the previous
complaint dismissed earlier. He once again filed a notice dismissing the second complaint before
Defendant served his answer to the complaint.
May he refile the complaint which was already dismissed twice? He may not refile the
same. The rule is clear. He is now barred from doing so under the two dismissal rule. Under the
Rules, the second notice of dismissal operates as an adjudication upon the merits (Sec. 1, Rule
17, Rules of Court).
After service of the answer or a motion for summary judgment, the plaintiff can no
longer have his action dismissed by mere notice. The plaintiff must now file a motion for the
dismissal of his complaint. (Secs. 1-2, Rule 1, Rules of Court). The dismissal is now subject to the
approval of the court.
What is the effect of the dismissal of the complaint on the counterclaim already pleaded
before the complaint was dismissed? Is the counterclaim also dismissed?
Consider the following example: Plaintiff filed a motion for the dismissal of his own
complaint. The defendant however, prior to the service upon him of the plaintiffs motion had
pleaded a compulsory counterclaim in his answer. The court dismissed not only the complaint
but the compulsory counterclaim as well. The court reasoned that where the complaint is
dismissed, the compulsory counterclaim becomes moot and has no more legal basis. Did the
court act correctly?
The court acted erroneously. Under the Rules, the dismissal is limited to the complaint
and is without prejudice to the defendants prerogative to prosecute his counterclaim in a
separate action or in the same action (Sec. 2, Rule 17, Rules of Court).
Since Sec. 2 of Rule 17 makes no distinction as to the counterclaim involved, even a
compulsory counterclaim is not deemed dismissed by the dismissal of the complaint. The
defendant may then prosecute his counterclaim despite the dismissal of the complaint in a
separate action or in the same action (Pinga vs. Heirs of Santiago, 494 SCRA 393).
12.

After the filing of his complaint, may the same be amended?

Instead of dismissing his complaint as explained in the immediately preceding


paragraph, the plaintiff may decide to amend his complaint. Amendment of his pleading is a
matter of right as long as the said amendment is made before the other party has served a
responsive pleading (Sec. 2, Rule 10). So if the plaintiff desires to amend his complaint before the
defendant serves his answer, the amendment may be done as a matter of right and the court has
no discretion on the matter. The amendment has to be accepted. If the court refuses to accept an

amendment made as a matter of right, the court may be compelled to do so through the special
civil action of mandamus.
Before the service of a responsive pleading, a party has the absolute right to amend his
pleading, regardless of whether a new cause of action or change in theory is introduced
(Bautista vs. Maya-Maya Cottages, Inc., 476 SCRA 416). Note that an amendment made as a matter
of right may, by the terms of Sec. 2 of Rule 10, be made only once.
May the plaintiff amend his complaint as a matter of right even after a motion to dismiss
has been served?
The plaintiff may amend his complaint. This is because a motion to dismiss is not a
responsive pleading (Paeste vs. Jaurigue, 94 Phil. 179; Republic vs. Ilao, 4 SCRA 106; Remington
Industrial Sales vs. Court of Appeals, 382 SCRA 499). Hence, his right to amend his complaint is
not affected by the filing of the motion to dismiss . However, after a responsive pleading has
been served, amendment must be made with leave of court (Sec. 3, Rule 10, Rules of Court). This
means for example, that after an answer has been served, an amendment may be done only with
leave of court.
Note that the rules on amendment apply also to the amendment of pleadings other than a
complaint. In the case of a reply to which no responsive pleading is available, the reply may be
amended as a matter of right within 10 days after it is served (Sec. 2, Rule 10).
Example: A complaint was filed. The defendant served an answer to the complaint. The
amendment is no longer a matter of right because an answer has already been served by the
defendant. The amendment would now require leave of court and the amendment has become a
matter of judicial discretion.
Be it remembered that although existing jurisprudence adopts a liberal policy on
amendments, the amendment will be denied if it is intended for delay. It may also be denied if it
would result in a change in the cause of action or defense or a change in the theory of the case,
where an amendment is no longer a matter of right.
Also, when the court has no jurisdiction over the subject matter of the action and the
amendment is for the purpose of conferring jurisdiction upon the court, the amendment shall
not be allowed. Since the court is without jurisdiction over the action, it has no jurisdiction to act
on the motion for leave to amend. Caveat:: The cases (Gaspar vs. Dorado, 15 SCRA 335; Campos
Rueda vs. Bautista, 6 SCRA 240), which prohibited amendments to a complaint for the purpose of
vesting the court with jurisdiction, involved cases where an answer to the complaint has already
been served. Because of the answer served, the amendment must now be made subject to
judicial discretion. Of course, common reason suggests that the court would have no jurisdiction
to allow the amendment of a complaint over which it has no jurisdiction. Thus, in one case, the
Supreme Court declared that the court not having jurisdiction over the original complaint, the
court has no power to act on the admission of the amendment complaint. (Rosario vs. Carandang,
96 Phil. 845).
Take note however, that there are decisions (Gumabay vs. Baralin, 77 SCRA 258; Soledad vs.
Mamangun, 8 SCRA 110), which allowed such amendments when the amendment is made as a
matter of right, i.e., before a responsive pleading has been served. It appears that the doctrine
that amendments cannot be made to cure lack of jurisdiction should be made to apply only to a
situation where a responsive pleading has already been served and not to a case where an
amendment is made as a matter of right (Bar 2005).

13. What is the effect of the amendment of a pleading? An amended pleading


supersedes the pleading that it amends (Sec 8, Rule 10, Rules of Court).
If the old pleading is superseded, is a new summons required to be served upon the
defendant? Answer: Although it is well settled that an amended pleading supersedes the
original one, and is no longer considered part of the record, it does not follow that new
summons should be served. Where the defendant has already appeared before the court by
virtue of the summons in the original complaint (as when defendant had filed a motion to
dismiss or an answer), the amended complaint may be served upon him without need for
another summons even if new causes of action are alleged in the amendment. Conversely, a
defendant who has not yet appeared must be served with summons. It is not therefore, the
change of the cause of action that gives rise to the need to serve new summons (Viason
Enterprises Corporation vs. Court of Appeals, 310 SCRA 26).
14.
There are times when there are issues raised in the trial which have not been
raised in the pleadings of the parties. If said issues are tried with the express or implied consent
of the parties, they shall be treated in all respects as if they had been raised in pleadings (Sec. 5,
Rule 10, Rules of Court). This gives rise to a situation where the issues raised in the trial and the
evidences thereto do not conform to the issues in the pleadings of the parties. As a remedy,
existing rules allow a party to move for an amendment of the pleadings so they may conform to
the evidence.
Now, what if the pleadings are not amended to conform to the evidence? This is not a
problem at all. Since the issues have already been tried with the consent of the parties, the
failure to amend the pleadings does not affect the result of the trial of such issues (Sec. 5, Rule
10, Rules of Court).The pleadings are hence, deemed amended by implication.
What if evidence to a matter not in issue in the pleadings is offered in the course of the
proceedings and the other party objects on the ground that the evidence is irrelevant because it
pertains to a matter not in issue? May the court sustain the objection?
It is submitted that the court may sustain the objection but it may also however, allow
the amendment of the pleadings if the presentation of the merits of the action and the ends of
substantial justice will be observed thereby. It may likewise grant a continuance to enable the
amendment to be made (Sec. 5, Rule 10, Rules of Court).
Where the complaint was filed at a time where no cause of action has yet accrued in favor
of the plaintiff, may an amendment cure the defect?
The amendment cannot cure the defect. The reason for this is plain: There is no cause of
action to cure where there is none in the first place.
The curing effect of an amendment under Section 5 is applicable only if a cause of action in
fact exists at the time the complaint is filed, but the complaint is defective for failure to allege the essential
facts. This means that the curing effect will apply in a situation where there was in fact a cause of
action and the only problem was the insufficiency of the allegations in the complaint.
It thus follows that a complaint whose cause of action has not yet accrued cannot be cured
or remedied by an amended or supplemental pleading alleging the existence or accrual of a
cause of action while the case is pending. Such an action is prematurely brought and is,
therefore, a groundless suit, which should be dismissed by the court upon proper motion
seasonably filed by the defendant. The underlying reason for this rule is that a person should
not be summoned before the public tribunals to answer for complaints which are premature
(Swagman Hotels and Travel, Inc. vs. Court of Appeals, 455 SCRA 175).

15.

Are amended pleadings the same as supplemental pleadings?

They are not. Supplemental pleadings allege facts which occur after the original pleadings
have been filed. Note that supplemental pleadings must allege facts pertaining to the original
cause of action in the complaint.
Example: P files foreclosure proceedings on a loan of D based on a promissory note
secured by a real estate mortgage. D counters by claiming damages against P. While the action
was pending, P files another foreclosure proceedings on a loan also of D based on another
promissory note secured by a real estate mortgage. The second loan was based on a different
transaction. D now seeks the admission of a supplemental pleading which he filed in the first
suit alleging additional damages as a result of the second foreclosure suit. Should the
supplemental pleading be admitted? Answer: It should not be admitted. The so-called
supplemental pleading does not relate to the cause of action of the first foreclosure suit. Here
there are different causes of action based on totally unrelated transactions.
16. When the complaint is filed and the requisite legal fees have been paid, the clerk of
court shall issue the summons to the defendant (Sec. 1, Rule 14, Rules of Court). The service of
summons is required so the court may acquire jurisdiction over the person of the defendant (in
an action in personam) and to comply with the requirements of due process. Another way of
acquiring jurisdiction over the person of the defendant is his voluntary appearance in the action.
Voluntary appearance shall be equivalent to service of summons (Sec. 20, Rule 14, Rules of Court).
17.
Although under the Rules, the defendant is required to answer the complaint
within fifteen (15) days from service of summons (Sec. 1, Rule 11), the defendant need not
answer. If there are matters in the complaint, which are vague or ambiguous or not averred with
sufficient definiteness, he may file a motion for bill or particulars under Rule 12. It is not
procedurally correct to file a motion to dismiss on the mere ground that the complaint or any
other pleading does not contain particulars or is ambiguous.
If the motion for bill of particulars is granted, the court shall order the submission of a
bill of particulars. If the order is not obeyed, the court may order the striking out of the pleading
or portions thereof to which the order was directed (Secs. 4 & 5, Rule 12, Rules of Court).
18.
Even when the allegations are now clear enough to enable the defendant to file
his responsive pleading because the adverse party has already submitted a bill of particulars,
the defendant need not file his answer immediately. He must first explore the possibility of
filing a motion to dismiss under Rule 16. If there is no ground for a motion to dismiss, he has to
file his answer.
When a motion to dismiss is filed, all grounds available at the time the motion is filed
must be invoked in the motion. This is required under the omnibus motion rule. Grounds not so
invoked are deemed waived. The grounds not waived however, are lack of jurisdiction over the
subject matter, litis pendencia, res judicata and prescription (Sec. 8, Rule 15; Sec. 1, Rule 9).
When a motion to dismiss is not filed, the grounds for a motion to dismiss may be
availed of as affirmative defenses in the answer (Sec. 6, Rule 16). No defense is waived because
no motion to dismiss was filed. Note: There is a difference as to effects between filing and not
filing a motion to dismiss in relation to waiver of defenses.
19.
If the defendant does not file his answer within the time required by the Rules, he
may be declared in default under the provisions of Sec. 3 of Rule 9. If the defendant answers but
admits all the material allegations of the complaint, the answer is said not to tender an issue.
There is therefore, no issue of fact that could be the subject of a trial. In this case, the plaintiff or

claiming party should file a motion for judgment on the pleadings (Rule 34, Rules of Court). If the
answer tenders an issue but the issue is not genuine as when the issue is one involving mere
accounting or the exact amount of damages, the remedy is a motion for summary judgment (Rule
35).
20. If the defendant does not file an answer, he may upon proper motion, be declared in
default. Take note that it is the failure to answer within the reglementary period that supplies the
basis for declaring the defending party in default. Hence, it is error to declare an answering
defendant in default. Remember: The court cannot motu propio declare the defendant in default. A
motion has to be filed by the plaintiff (Sec. 3, Rule 9, Rules of Court).
What is the remedy of the party declared in default? The party declared in default may
file a motion to set aside the order of default upon proper showing that his failure to do so was
due to FAME (fraud accident, mistake or excusable negligence). This motion must be under oath and
must be accompanied by an affidavit of merit, i.e., an affidavit that declares that the defaulting
defendant has a meritorious defense. Although not specifically mentioned in the Rules, it would
be good practice to attach the answer of the defendant to the motion to set aside the order of
default.
While normally, the affidavit of merit must accompany the motion, it has been held that
this affidavit may be dispensed with if the defendant who fails to file an answer was never
served with summons. In such a case, the order declaring him in default is VOID because the
court did not acquire jurisdiction over the person of the defendant. This situation is a proper
subject of certiorari proceedings because of the jurisdictional issue involved (Ponio vs. IAC, 133
SCRA 577). The principles in default do not apply where the order of default is invalid because
of lack of or invalid service of summons (Laus vs. Court of Appeals, 219 SCRA 688). Also, if there
is a pending motion for extension of time to file an answer, this means that the period to file an
answer has not yet lapsed. It is therefore, improper to file a motion to declare the defendant in
default at this stage.
In De Guia vs. De Guia, 356 SCRA 287, the requirement of an affidavit of merit was
liberally interpreted. Here, the requirement for the affidavit was deemed substantially complied
with when the answer filed contained the defenses of the defendant and the answer was verified
(under oath).
What is the effect of the declaration of default on the rights of the party declared in
default?
A party in default cannot participate in the trial but he is entitled to notice of subsequent
proceedings (Sec. 3(a), Rule 9). He must be also notified of the motion declaring him in default as
well as the order of default. Under Sec. 3 of Rule 9, he is entitled to notices because a default
order does not mean a waiver of all the rights of the defendant. By his default, he is not deemed
to have been completely thrown out of court.
After the defendant is declared in default, must the plaintiff be required to present his
evidences to support his material allegations?
The matter is addressed to the discretion of the court. The court may either (1) render
judgment on the basis of the complaint, or (2) require the plaintiff to present evidence ex parte
(Sec. 3, Rule 9).The reception of evidence may be delegated to the clerk of court.
What is the extent of the relief to be awarded in a default judgment? May the court
award P1 million where the prayer of the complaint seeks for only P500,000?

In default judgments, the court may not. A judgment rendered against a party declared
in default shall NOT exceed the amount or be different in kind from that prayed for. This is true
even if during the reception of evidence the plaintiff proves a higher amount of damages than
what has been alleged in the complaint. Also, unliquidated damages shall not be awarded (Sec.
3(d), Rule 9).
What are those cases where no default is allowed?
These are: (1) actions for annulment of marriage; (2) actions for legal separation, and (3)
action for declaration of nullity of marriage.
Instead of declaring the non-answering defendant in default, the court shall order the
prosecuting attorney to determine whether or not a collusion exists between parties, and if there
is none, to intervene for the State to see to it that the evidence submitted is not fabricated.
In a summary procedure, where the defendant does not file his answer to the complaint,
the remedy is not to file a motion to declare the defendant in default. This motion is prohibited
(Sec. 19(h), Rules on Summary Procedure). The remedy is to file a motion to render judgment. This
rendition of judgment may also be done by the court motu propio (Sec. 6, Rules on Summary
Procedure).
21. The answer contains the defenses of the defendant.
These defenses are of two kinds: negative and affirmative defenses.
The negative defenses are stated in the form of specific denials. The specific denials are
described in Sec. 10 of Rule 8. There is a need to study this provision well.
If the denial is not one of those described, the denial is deemed to be general. A general
denial is an admission. If all the material allegations of the complaint are denied by way of a
general denial, the effect is an admission of those allegations. Under Sec. 11 of Rule 8, material
allegations, (except unliquidated damages), not specifically denied are deemed admitted. Since
the allegations are deemed admitted, there is no more triable issue between the parties. The
plaintiff may now file a motion for judgment on the pleadings.
A negative pregnant does not qualify as a specific denial because it is deemed an
admission. Example: A complaint alleges : Plaintiff extended a loan to Defendant in the amount
of P500,000 on July 27, 2009 in Manila. The defendant in his answer alleges: Defendant
specifically denies that Plaintiff extended a loan to Defendant in the amount of P500,000 on July
27, 2009 in Manila. The answer is a mere repetition of the allegations made in the complaint.
The answer is vague as to what it really denies. Is it the existence of a loan that is denied? Is it
the amount? The date? The place? The effect of this kind of denial is an admission.
One type of a specific denial is where the defendant alleges that he Is without knowledge
or information sufficient to form a belief as to the truth of a material averment made in the complaint.
This type of specific denial must be made sincerely and in good faith.
Example: Mr. D actually signs a promissory note in favor of Mr. P. Because Mr. D failed
to pay despite demand, suit was brought against him. The complaint duly pleaded the
promissory note as an actionable document. Mr. D denies the alleged promissory note by
averring lack of knowledge of the note. This averment is clearly one in bad faith and shall be
considered as an admission because it is absurd for Mr. D not to know of the promissory note he
himself actually signed.

22. What is an actionable document?


An actionable document is one which is the basis of either a claim or a defense
If a complaint was filed based on a promissory note the promissory note is the basis of
the action and is the actionable document.
An actionable document must be properly pleaded. How then would the promissory
note be alleged in the complaint?
It must be done in the following manner: The substance of this promissory note shall be
set forth or stated in the pleading AND the original or copy thereof shall be attached to the
pleading as an exhibit. When attached as an exhibit the promissory note shall be deemed a part
of the pleading. The copy of the document may also with like effect be set forth in the pleading
(Sec. 7, Rule 8, Rules of Court).
Now, what shall the adverse party do if he desires to contest the document?
The adverse party has to do two things: (a) specifically deny the document, set forth
what he claims to be the facts, and (b) deny the document under oath. Without an oath, he is
deemed to have admitted the genuineness and due execution of the promissory note. Because of
this admission, he can no longer deny that the note was forged or that he had no authority to
execute the instrument. These defenses are barred by the admission.
May he however, still defend by showing that the note was executed by fraud, or that the
note has prescribed or was already paid?
Yes, he can. These defenses are not barred by the admission.
A denial under oath is not required in certain cases as (a) when the adverse party does
not appear to be a party to the instrument, or (b) when the order to allow the inspection of the
original document is refused (Sec. 8, Rule 8). In any of these instances, a mere specific denial is
sufficient.
23.

What is a judgment on the pleadings?

A judgment on the pleadings is proper where the answer of the defendant fails to tender
an issue, or otherwise admits the material allegations of the other partys pleadings. Actually no
issue is tendered when the defendant admits the material allegations of the complaint.
This admission arises when (1) there is an actual admission of the allegations, or (2) the
defendant makes a general denial instead of a specific denial.
Note: Judgment on the pleadings is not proper in the following actions: (1) declaration of
nullity; (2) annulment of marriage; or (3) legal separation. In these case, the material facts
alleged in the complaint shall always be proved (Rule 34, Rules of Court).
24.
If the defendant has a claim against the plaintiff, he incorporates in his answer a
pleading called a counterclaim. This is a pleading, which a defending party files against the
opposing party (Sec. 6, Rule 6, Rules of Court). It is therefore, a claim by the defendant against the
plaintiff. In a counterclaim, the original defendant becomes the plaintiff, and the original
plaintiff, the defendant. A counterclaim may either be compulsory or permissive. Remember that
a compulsory counterclaim will be barred if not invoked or set up in the same action (Sec. 2,
Rule 9). It does not require a certification on non-forum shopping and does not have to be
answered by the plaintiff because it is not an initiatory pleading unlike a permissive

counterclaim which requires a certification against forum shopping, payment of the docket fees
and must be answered by the plaintiff. If no answer is served on the permissive counterclaim,
the plaintiff may be declared in default upon motion, for failure to serve an answer to the
permissive counterclaim.
If there are two or more defendants, one defendant may file a claim against a codefendant. This is done through a pleading called a cross-claim (Sec. 8, Rule 9). A cross-claim not
set up in the same action shall be barred (Sec. 2, Rule 9).
If the defendant wants to bring in a person who is not yet a party to the suit, he may do
so with leave of court and file a third-party complaint (Sec. 13, Rule 6). No leave of court is
required to file a counterclaim or a cross-claim.
The plaintiff may wish to answer the defendants answer. This answer is a pleading
called reply (Sec. 10, Rule 6). A reply is not mandatory. Even if no reply is filed, the allegations of
the answer are anyway deemed controverted or denied. The rules actually make the denial for
the plaintiff. A reply is advised if the answer uses an actionable document as a defense and the
plaintiff wants to deny the genuineness and due execution of the document. In this case the
reply must be under oath.
Sometimes, someone who is not a party to the action feels and believes that he has a
legal interest in the matter in litigation, or in the success of either of the parties, or an interest
against both. In this case, he may, with leave of court, join the action and he may do so by filing
a pleading in intervention. It is important to remember that one must however, intervene before
the trial court renders judgment and not after the judgment (Rule 19, Rules of Court).
- Mr. P sues Mr. D for a sum of money. Mr. D also claims that he incurred expenses to
defend himself as a result of the unjustified complaint of Mr. P. The claim of Mr. D is a
counterclaim. Since this counterclaim arises from the complaint, it is called a compulsory
counterclaim. This counterclaim must be set up in the same action. If not set up, it will be forever
barred.
- Plaintiff filed an action to recover ownership and possession of a land occupied by
defendant. Judgment was rendered against defendant. Later, defendant filed an action to
recover the cost of the improvements he introduced in the land. This claim shall be barred. This
claim should have been set up as a counterclaim in the action filed by plaintiff. It is now barred
because the counterclaim is compulsory (Baclayon vs. Court of Appeals, 182 SCRA 761).
- Plaintiff filed an action for a sum of money against defendant. The latter claims that
plaintiff is liable to him for damages arising from a quasi-delict, which occurred prior to the
filing of the action. The claim of defendant is a permissive counterclaim. It has no connection to
the subject matter of the complaint. It is not barred even if not set up in the action because it
could be the subject of an independent action.
- Plaintiff, lessee filed an action for specific performance against lessor in the RTC so the
latter would comply with certain obligations in the lease contract. Lessor filed a counterclaim for
unlawful detainer on the ground of expiration of the lease. Is this a compulsory counterclaim?
It is not. A compulsory counterclaim must be within the jurisdiction of the court both as
to amount and nature. The counterclaim is within the jurisdiction of the MTC, which has
jurisdiction over cases of unlawful detainer. An unlawful detainer case must be independently
filed in the MTC and not by way of counterclaim in a case. Also, if the counterclaim is a labor
claim, it cannot be cognizable by a regular court. In this case, the counterclaim, even if with a
subject matter related to that of the complaint, is still permissive.

Note: A permissive counterclaim must be answered, otherwise the plaintiff may be


declared in default as to the permissive counterclaim. A docket fee must also be paid. And a
certification against forum shopping must be attached to the counterclaim.
- A depositor sued the bank and its cashier for money deposited with the bank. The
bank alleges it never received the money from the cashier. What should the bank do?
The bank should file a cross-claim against the cashier.
-Plaintiff sues the judgment creditor and the Sheriff for selling plaintiffs property. What
may the sheriff do? The Sheriff may file a cross-claim against the judgment creditor.
- P sues D, and S, the surety of D. Against whom may S, the surety have recourse?
Against D. S may then file a cross-claim against D.
- P sues D on a promissory note. D lent the money he borrowed to T. What may D do?
D may file a third-party complaint against T for contribution.
- S sells a car to B. Later O sues B to recover the car because he is the true owner of the
same. B may file a third-party complaint against S to enforce the warranty against eviction.
- P, whose store was burned filed a claim against the insurance company. The insurance
company refused to pay and defended by claiming that the loss was due to the willful act of P.
The insurance company then filed a third-party complaint against the re-insurance company for
indemnity. May the re-insurer assert as a defense that the plaintiff, P, caused the loss?
It can. A third party defendant under Sec. 13 of Rule 6 may allege in his answer defenses,
which the third-party plaintiff may have against the original plaintiff. Note: The third-party
defendant may not however, ordinarily file a counterclaim against the original plaintiff, P for
lack of privity UNLESS the counterclaim is shown to be in respect to the original plaintiffs
claim against the third-party plaintiff.
- Debtor and surety signed a promissory note jointly and severally. If a complaint is filed
by the creditor against the surety alone, how may the latter claim against the debtor? By filing a
third-party complaint against the debtor. Note: If both were sued as defendants, the proper
pleading would be a cross-claim.
- P sues D for damages arising out of a vehicular accident. D claims that it was T who
was the proximate cause of the mishap. D may file a third-party complaint against T for
subrogation.
- Creditor files an action against Debtor No. 1 alone who together with Debtor No. 2
signed a note as solidary debtors. Debtor No. 1 may file a third-party complaint against Debtor
No. 2 for contribution. Note: In a solidary obligation, the plaintiff need not implead the other
debtor because anyone among the debtors may be required to pay the entire debt. The other
debtor is neither an indispensable party nor a necessary party as far as the creditor is concerned.
- P sues D for recovery of a parcel of land. D acquired the land from E who in turn
acquired it from F. May D file a third-party complaint against F? No. There is no privity between
D and F. D should file a third-party complaint against E and E should file a fourth-party complaint
against F.
Note: The filing of a third-party complaint requires leave of court. Also, a third-party
complaint seeks affirmative relief. No such relief is sought for in a petition for declaratory relief,
which merely seeks a declaration of ones legal rights and duties under a statute, executive

ordinance, or governmental regulation. However, in one case, it was held that a counterclaim
may be filed in a petition for declaratory relief (Visayas Packing vs. Reparations Commission 155
SCRA 542).
- P sells five trucks to XYX Partnership. Before he was paid the purchase price, the
partnership was dissolved. In a suit involving the judicial winding up of the partnership assets,
what may P, a non-party do to protect his interest? P may file a pleading in intervention.
- Creditor sues S, the surety of D in a monetary obligation. May D, the principal debtor
intervene?
He may. A judgment against S will prejudice D because S will have to sue D for
reimbursement.
- A and B are locked in a civil dispute over a parcel of land. C claims the land as his but
he is not a party to the action. What may C do? He should file a pleading in intervention. Note:
Intervention must be with leave of court, hence, a motion for leave to intervene must be filed. It
is not an independent action, but is attached only to the existing litigation.
The intervention must be done before the rendition of judgment (Sec. 2, Rule 19, Rules of
Court).
25.
A reply is the last possible pleading that could be filed in the action. It is the
responsive pleading to an answer. You do not file a reply to a counterclaim or cross-claim. What
you do is to file an answer, not a reply. A reply is not mandatory if your purpose is to deny the
new matters alleged in the answer. Even if not filed, the allegations of new matters by the
defendant in his answer are deemed controverted or denied anyway (Sec. 10, Rule 6, Rules of
Court). The failure to file a reply will not result into an admission of the material allegations of
the answer (because said allegations are deemed denied) but the failure to file an answer to the
complaint will involve an implied admission of the material allegations of the complaint.
A reply must however, be filed if the defendants defense is based on a document duly
pleaded. The reply should be filed because if such document, which forms the basis of the
defendants defense, is not specifically denied under oath, its genuineness and due execution
shall be deemed admitted. To avoid this admission the reply must contain a specific denial.
Further, the reply must be under oath (Toribio vs. Bidin, 134 SCRA 162).
An old case held that if the defendants answer alleges the defense of usury, a reply
under oath must be made. If not, the allegation of usury will be deemed admitted (Sun Bros. vs.
Caluntad, 16 SCRA 895). It is submitted that the phraseology of the present rule on the matter
has made the applicability of the Sun Bros. case suspect. Under Sec. 11 of Rule 8 what needs to
be specifically denied under oath is an allegation of usury in a complaint to recover usurious
interest and not a defense of usury in the answer.
26.
After the last pleading has been served and filed, it shall be the duty of the
plaintiff to promptly move that the case be set for pre-trial. The motion is an ex parte motion.
Because it is an ex parte motion, notice need not be served on the defendant. Remember that the
filing of the motion to set the case for pre-trial is the duty of the plaintiff. It is not the duty of the
defendant. Remember too that to move for a pre-trial before the last pleading has been filed is
premature. Thus, when there is an unresolved motion to dismiss or a motion for bill of
particulars, or when no answer has yet been filed, a pre-trial conference is premature (Rule 18,
Rules of Court).
The plaintiff must appear in the pre-trial (Sec. 4, Rule 18, Rules of Court). What is the
consequence of the non-appearance of the plaintiff?

Unless excused, or when a representative appears in his behalf duly authorized in


accordance with the Rules, the failure to appear by the plaintiff shall be a cause for dismissal of
the action. Under the previous Rules, the plaintiff who fails to appear is declared non-suited. This
term no longer appears in the Rules.
Mr. Plaintiff did not appear in the pre-trial without a valid excuse and the action is
dismissed. He wants to know from you if he can refile the case. What would your advice be?
I would advise him that he cannot refile the case. This is the general rule. The dismissal
as a rule is a dismissal with prejudice. The only way the plaintiff can refile the case is when the
order of dismissal itself declares that the dismissal is without prejudice (Sec. 5, Rule 18).
If the dismissal is with prejudice and the plaintiff can no longer refile the case, what
remedy is left to the plaintiff?
He can appeal from the order of dismissal. Why? The remedy is appeal from the order of
dismissal because the dismissal for failure to appeal in a pre-trial hearing being with prejudice, is
an adjudication on the merits. It is final in character and not a mere interlocutory order ( Sec. 5,
Rule 18, Rules of Court).
The plaintiff appeared in the pre-trial. The defendant did not. What may the court do?
The court may order that the plaintiff be allowed to present his evidence ex parte and
render judgment on the basis thereof. In the previous Rules, the defendant in this case was
declared as in default. The words, as in default, no longer appear in the present Rules.
Note that the rules require the parties to file their pre-trial briefs and serve the same on
each other at least three (3) days before the pre-trial. Suppose the plaintiff failed to file the
required brief and the court dismissed the action, did the court act correctly?
It did. The failure to file the pre-trial brief has the same effect as the failure to appear at
the pre-trial. The remedy of the plaintiff is to file a motion for reconsideration showing that his
failure to file a pre-trial brief was due to fraud, accident, mistake, or excusable neglect (Saguid
vs. Court of Appeals, 403 SCRA 678).
During the pre-trial conference, the defendant manifested that he has no interest in any
form of amicable settlement. The case was set for a second pre-trial conference. Notice was duly
sent. Defendant did not appear. The court issued an order allowing the plaintiff to present his
evidence ex parte because of the defendants failure to appear. Did the court act correctly? It did
not. Once a party manifests his opposition to an amicable settlement, said party may no longer
be compelled to attend another pre-trial conference (Pioneer Service vs. Hontanosas, 78 SCRA 448;
Insurance Company of North America vs. Republic, 21 SCRA 887).
27.
Before the trial, any party may avail of any of the modes of discovery from Rules 2329. Note that the modes of discovery also applies to a criminal case. Example: A party may move
for the production and inspection of documents or things (Rule 27) or move for a physical or
mental examination of persons (Rule 28).
The rules of discovery are cumulative, not alternative. The fact that a party has resorted
to a particular method of discovery will not bar him from using other methods (Fortune Corp. vs.
Court of Appeals, 299 SCRA 376).
Note that while the rule requires that only ultimate facts must be alleged in a pleading,
the modes of discovery may inquire into evidentiary facts. Let us suppose that a motion for bill
of particulars filed by the defendant was denied. May he avail of the modes of discovery even if
the matters desired in the denied motion are the same matters sought to be discovered? He may.

A bill of particulars is for the purpose of clarifying the allegations of the adverse partys
pleading. Yet the bill of particulars would refer only to ultimate facts since evidentiary facts are
not proper in a pleading. On the other hand, the modes of discovery could elicit evidentiary
facts on the matters subject of the prior motion for bill of particulars.
What may be the uses of a deposition?
A deposition may be used to impeach or contradict the testimony of the deponent. If the
deponent is an adverse party, his disposition may be used not only to impeach him but also to
show admissions on his part.
Plaintiff takes the depositions of X. There was no proof that he would not be available
during the trial.
(a) May his deposition be taken?
It may be taken. His inability to attend the trial does not preclude the taking of his
deposition. Such matter is not a requirement for the taking of a persons deposition.
(b) By taking the deposition of X, does X now become the witness of the plaintiff?
He does not. A party shall not be deemed to make a person his own witness for any
purpose by taking his deposition. (Sec. 7, Rule 23).
The plaintiff served upon the defendant a written request for admission of the genuineness
of several documents as well as relevant and material facts. The defendant ignored the request.
What is the effect?
Each of the matters of which an admission is requested shall be deemed admitted ( Sec.
2, Rule 26, Rules of Court). The admission however, shall apply only to the pending action and
shall not constitute an admission in any other proceeding or for any other purpose (Sec. 3, Rule
26).
A party is also required to serve upon the adverse party written interrogatories. What is
the consequence for failure to do so.?
A party not served with written interrogatories may not be compelled by the adverse
party to give testimony in open court, or to give a deposition pending appeal (Sec. 6, Rule 25,
Rules of Court). If a party served with written interrogatories does not serve an answer to the
interrogatories, the court on motion and notice may strike out the pleading of that party or a
part of it, dismiss the proceeding or enter a judgment by default against that party, even if he is
the plaintiff because the rule does not distinguish as to the kind of party (Sec. 5, Rule 29).
28.

What is the effect of failure to file and serve request for admission?

Unless otherwise allowed by the court for good cause shown and to prevent a failure of
justice, a party who fails to file and serve a request for admission on the adverse party of
material and relevant facts at issue which are, or ought to be, within the personal knowledge of
the latter, shall not be permitted to present evidence on such facts (Sec. 5, Rule 26, Rules of Court).
29.
After trial (Rule 30), the court shall now render a judgment. A losing party may
avail of certain remedies for the protection of his rights. These remedies are:
(a) Before the finality of the judgment, a party may avail of (1) a motion for reconsideration
(Rule 37); (2) a motion for new trial (Rule 37); or (3) an appeal (Rules 40-45).

The appeal may be (i) an ordinary appeal under Rules 40-41; (ii) a petition for review under
Rule 42; (iii) a petition for review under Rule 43; or (iv) a petition for review on certiorari under
Rule 45.
(b) After the finality of the judgment, a party may avail of (1) a petition for relief (Rule 38); (2) an
annulment of judgment (Rule 47); or (3) a petition for certiorari (Rule 65). Note: The availability
of these remedies means that a party still has remedies even if the judgment is already final and
executory.

CAUSE OF ACTION
1. A cause of action is the act or omission by which a party violates the rights of another
(Sec. 2, Rule 2, Rules of Court; Monzon vs. Spouses Relova vs. Addio Properties, Inc., G.R. No. 171827,
September 17, 2008).
A cause of action requires the following elements: (a) a right of the plaintiff; (b) an
obligation on the part of the defendant to respect or not to violate such right; (c) an act on the
part of the defendant violating the right of the plaintiff (Philippine National Construction
Corporation vs. Court of Appeals, 514 SCRA 569).
2. In determining the existence of a cause of action, only the statements in the complaint
may be properly considered. It is error for the court to take cognizance of external facts or to
hold preliminary hearings to determine its existence (Diaz vs. Diaz, 331 SCRA 302, 316 [2000]).
The failure to state a cause of action must appear on the face of the complaint and its existence
may be determined only by the allegations of the complaint, consideration of other facts being
proscribed and any attempt to prove extraneous circumstances not being allowed (Viewmaster
Construction Corporation vs. Roxas, 335 SCRA 540). Note however, that the annexes to the
complaint may be considered in determining whether or not a complaint states a cause of action
because such annexes are considered parts of the complaint (Sea-Land Service, Inc. vs. Court of
Appeals, 327 SCRA 135 ).
P sues D on a culpa aquiliana theory. D moves to dismiss on the ground that the
complaint fails to state a cause of action. In the hearing of the motion, the court required the
plaintiff to present evidence on his claims to determine whether or not the complaint states a
cause of action. Is the court correct?
The court is not correct. The allegations of the complaint will tell whether or not the
complaint states a cause of action. Failure to state a cause of action does not mean that the
plaintiff has no cause of action. It only means that the plaintiffs allegations are insufficient for
the court to know that there was a violation of his rights by the defendant. Thus, even if indeed
the plaintiffs right was violated, if the same is not set forth in the complaint, the pleading fails
to state a cause of action even if there really is a cause of action.
3.
Under Rule 16, the ground for dismissal in relation to a cause of action is NOT
lack of a cause of action or no cause of action. The ground is that the pleading asserting
the claim STATES NO CAUSE OF ACTION (Sec. 1(g), Rule 16; San Lorenzo Village Association, Inc.
vs. Court of Appeals, 288 SCRA 115).
In Enojas vs. COMELEC, 283 SCRA 229), the Court held that the ground for dismissal
based on the fact that the pleading asserting the claims states no cause of action is different from
the ground that the case of the claimant should be dismissed for lack of a cause of action. The first
is raised in a motion to dismiss under Rule 16 before a responsive pleading is filed and can be
determined only from the allegations of the pleading and not from evidentiary matters. The
second is raised in a demurrer to evidence under Rule 33 after the plaintiff has rested his case

and can be resolved only on the basis of the evidence he has presented in support of his claim
(See also Dabuco vs. Court of Appeals, 322 SCRA 853 ).
4.
The examinee needs to master the kinds of actions specially the distinction
between a real and a personal action and the distinction among an action in personam, quasi in
rem or in rem.
An action in personam is directed to a particular defendant to make him liable, to require
him to perform a particular act or to require him to refrain from a particular act. An action for
injunction, specific performance, unlawful detainer, forcible entry, an action for a sum of money
or for damages are examples of in personam. A probate proceeding, cadastral or land registration
proceeding, an action for annulment of marriage, or an action for a declaration of nullity of
marriage are in rem actions. An action for foreclosure of real estate mortgage, partition, or
attachment proceedings are in the nature of quasi in rem proceedings.
Note: The nature of the action is not dependent upon the name given by the pleader. It is
dependent upon the allegations of the complaint.
Thus, where the allegations of the complaint state that the actual transaction between the
parties was not a sale but an equitable mortgage, the trial court correctly resolved the matter in
issue even if the action was erroneously labeled as an action for reformation (Lorbes vs. Court of
Appeals, 351 SCRA 716).
PERSONAL/REAL ACTIONS AND VENUE
1.
The distinction between a real action and a personal action is important for the
purpose of determining the VENUE of the action.
2.
A personal action is transitory, i.e., venue depends upon the residence of the
plaintiff or the defendant at the option of the plaintiff. A real action is local, i.e., venue depends
upon the location of the property involved in the litigation. An action is real when it is founded
upon the privity of real estate. That means that realty is the subject matter of the action.
3.
It must be remembered that not every action involving a real property is a real
action because the realty may only be incidental to the subject matter of the suit. To be a real
action, it is not enough that it must deal with real property. It is important that the matter in
litigation must also involve any of the following issues: (a) title (b) ownership, (c) possession,
(d) or any interest in real property.
4.
An action for damages to real property, while involving realty is a personal action
because although it involves real property, it does not involve any of the issues mentioned.
An action to recover possession of real property (ejectment) plus damages is a real action
because possession of the real property is involved.
An action to recover possession of a personal property is a personal action.
An action for a declaration of the nullity of marriage is a personal action (Tamano vs.
Ortiz, 291 SCRA 584).
An action for specific performance is a personal action (Siosoco vs. Court of Appeals, 303
SCRA 186).
Although a complaint is entitled to be one for specific performance, the action is actually
a real action for the recovery of land where the plaintiff asks that a transfer certificate of title
covering said land be issued to him. The action must therefore, be filed where the property is

situated. Also, if the action is denominated as one for specific performance, but the plaintiff
seeks for the issuance of a deed of assignment in his favor of certain shares of stocks to regain
ownership and possession of said shares, the action is not one for specific performance but a
personal action for the recovery of property. The docket fee therefore, should be computed
based on the value of the property and not based on the docket fee for specific performance
(National Steel Corporation vs. Court of Appeals, 302 SCRA 522, 530).
5.
If the question involves the venue of an action, the examinee must follow the
following steps: (a) Ask first whether the action is real or personal. (b) After determining the
nature of the action, then apply the rules on venue under Rule 4.
For instance, an action to annul a sale of a land and to recover the land located in Baguio
City must be filed in Baguio City. For the purpose of venue determination, the action is a real
action and must be filed in the place where the property is situated regardless of the residence
of the parties (Emergency Loan Pawnshop, Inc. vs. Court of Appeals, G.R. No. 129184, February 28,
2001). An action to rescind a sale of a land must be filed in the place where the property is
located.
6.
An action for ejectment must be filed where the property subject of the action is
situated. Do not consider the residence of the parties.
7.
Improper venue: Although the venue is technically improper, the venue will be
deemed proper if the defendant does not object. Since venue is not a matter of substantive law
but is primarily for the convenience of the parties it would be up for the defendant to question
the venue. If he does not raise the issue of venue, the Court has no authority to motu propio
dismiss a case for improper venue.
Remember that unless and until the defendant objects to the venue in a motion to
dismiss, the venue cannot be truly said to be improperly laid, because the venue although
technically wrong may be acceptable to the parties for whose convenience the rules and venue
have been devised. The trial court cannot preempt the defendants prerogative to object to the
improper laying of the venue by motu propio dismissing the case (Dacuycoy vs. Intermediate
Appellate Court, 195 SCRA 644).
The trial court cannot motu propio dismiss a case on the ground of improper venue. The
court may dismiss an action motu propio in case of lack of jurisdiction over the subject matter,
litis pendencia, res judicata and prescription, but not for improper venue. (Rudolf Lietz Holdings,
Inc. vs. Registry of Deeds of Paraaque City, 344 SCRA 680).
Exception: In cases covered by summary procedure, the court may dismiss a case
outright on any of the grounds apparent in the complaint. This of course includes improper
venue. The dismissal here need not be preceded by a motion to dismiss because it may be done
by the court motu propio (Sec. 4, 1991 Rules of Summary Procedure).
In a case in the RTC, the defendant filed a motion to dismiss based on lack of jurisdiction
over the subject matter. The court however, dismissed the action based on improper venue.
Correct?
No! The court cannot motu propio dismiss an action based on improper venue unless the
case is covered by the Rules on Summary Procedure. There is no summary procedure in the
RTC.
8.
Venue can be stipulated upon and may have the effect of changing the rules on
venue provided for in the Rules.

The parties may stipulate on the venue as long as the agreement is (a) in writing, (b)
made before the filing of the action, and (3) exclusive as to the venue. Thus, a stipulation that
any suit arising from this contract shall be filed exclusively in Quezon City precludes the
filing of the case in any other place.
A stipulation that the parties agree to sue and be sued in the courts of Manila has been
held not to be exclusive. (Polytrade Corporation vs. Blanco, 30 SCRA 187). Where the stipulation is
not exclusive, then the effect is merely to add Manila as a possible venue aside from the
residence of the plaintiff and the residence of the defendant.
Example: P resides in Manila. Defendant resides in Quezon City. The written contract
stipulates that any suit arising from a violation of a contract shall be filed only in Pasay City. P
sues D for damages arising from an alleged breach of contract. Action was filed in Quezon City.
Is venue improper?
Venue is improper. The stipulation to file the action only in Pasay City has the effect of
ruling out the residences of the parties as possible venue of the action because of the exclusive
character of the stipulation. The suit cannot therefore, be filed anywhere other than in Pasay
City.
9.

What is the effect if the stipulation merely provides: shall be filed in Pasay

City?
The effect is merely to add Pasay City as a venue aside from Manila and Quezon City.
Hence, aside from Manila and Quezon City, another venue of choice is Pasay City. When the
venue stipulated is not restrictive or exclusive, the stipulated venue becomes an additional
venue aside from the possible venues provided for in the rules.
10.
appeal?

If a motion to dismiss based on improper venue is denied, may the defendant

He cannot. An order denying a motion to dismiss is merely interlocutory. It is not final.


Only final orders or judgments maybe appealed from. The normal remedy is to file an answer
and interpose the ground as an affirmative defense, go to trial and appeal from the adverse
judgment. However, if the denial is tainted with grave abuse of discretion amounting to lack of
jurisdiction, the remedy is certiorari and prohibition (Emergency Loan Pawnshop vs. Court of
Appeals, 353 SCRA 89).
11.
The property of the judgment debtor located in Makati City was foreclosed.
Where should the action be filed if the plaintiff resides in Manila and the defendant in Quezon
City?
The action shall be filed in Makati City, the place where the property is situated.
Foreclosure of real property is a real action.
12..
Venue is procedural and not substantive. In civil cases, venue is not a matter of
jurisdiction (Heirs of Pedro Lopez vs. de Castro, 324 SCRA 591). Venue becomes jurisdictional only
in a criminal case. In the latter, where the information is filed in a place where the offense was
not committed, the information may be quashed for lack of jurisdiction. This is not so in a civil
case where improper venue is not equivalent to lack of jurisdiction. Because venue in a civil case
is merely procedural, the parties can waive it.
13.
It has been earlier mentioned that to determine the venue, determine first if the
action is personal or real. If it is personal, venue is transitory. Hence, the venue is the residence
of the plaintiff or the residence of the defendant at the election of the plaintiff (Sec. 3, Rule 4,

Rules of Court). If the action is real, the venue is local, hence, the venue is the place where the
real property is situated (Sec. 1, Rule 4). However, when the defendant is a non-resident and is
not found in the Philippines and the action affects the personal status of the plaintiff or any
property of the defendant located in the Philippines, the venue is the residence of the plaintiff or
where the property involved is situated (Sec. 3, Rule 4).
14.
Reminder: If the question shows that venue is improper, do not file a motion to
dismiss anchored on lack of jurisdiction. Venue has nothing to do with jurisdiction in a civil
case. Hence, if a case for unlawful detainer is filed in MTC Laguna when it should have been
filed in MTC Cavite where the property is located, the action filed in Laguna may be dismissed
by the court on the ground of improper venue but not on the ground of lack of jurisdiction
because every MTC has jurisdiction over cases of unlawful detainer. Do not inject into your
answer the concept of territorial jurisdiction. It is irrelevant in civil cases. Territorial jurisdiction
applies only in criminal cases where venue is also jurisdictional. This is not so in a civil case
where the concept of venue is distinct from the concept of jurisdiction.

ACTION IN PERSONAM, IN REM AND QUASI IN REM


1. An action in personam is not necessarily a personal action nor is a real action
necessarily an action in rem.
An in personam or an in rem action is a classification of actions according to the object or
the binding effect of the action. It is in rem when directed against or binds the whole world, not
just a particular person. It is in personam when directed against a particular defendant so he may
be bound to be liable to the plaintiff. Example: An action for injunction is in personam.
A personal and real action is a classification according to foundation of the action. If it is
founded upon interest in personal property or damages, the action is personal. If it is founded
upon an interest in real property, the action is real.
An action for ejectment is a real action because it involves possession of real property
and hence, founded upon an interest in real property but is in personam because it is directed
against a particular defendant. In this action, it is only the defendant who is sought to be
excluded from the premises, not the whole world.
An action for annulment of marriage is a personal action because it is not founded upon
an interest in real estate, but it is an in rem action because the issue of the status of a person is
one addressed to the whole world and not primarily to make the defendant liable to the
plaintiff.
An accion reinvindicatoria which is an action to recover real property based on the right of
ownership is a real action because it involves title to or possession of real property. It is also in
personam because it is directed against a particular defendant and binds only the parties to the
action or their successors in interest.
2.
Why is there a need to make a distinction between an action in personam and an
action in rem/quasi in rem?
This distinction is vital for a party to know whether or not jurisdiction over the person of
the defendant is required and consequently, in order to determine the applicable service of
summons.
Jurisdiction over the person of the defendant is vital when the action is in personam. In
this kind of action, jurisdiction over the person of the defendant is mandatory. In an in rem or

quasi in rem action, what is required is jurisdiction over the res and not jurisdiction over the
person of the defendant.
Where the defendant is a resident of the Philippines and the action against him is in
personam, jurisdiction over him is acquired by faithfully complying with the summons under
Sec. 6 of Rule 14 (service in person) or in case this type of summons is not feasible, by availing of
Sec. 7 of Rule 14 (substituted service).
Be reminded that substituted service is not the general rule. It applies only if service in
person cannot be done within a reasonable time despite the honest and earnest efforts of the
sheriff. Jurisprudence requires that efforts be exhausted to serve the defendant in person and
such efforts need be stated in the sheriffs return. Compliance with this requirement is
mandatory to justify a subsequent substituted service (Manotoc vs. CA, 499 SCRA 21). If service
in person is made upon the defendant in his residence and he is not found therein at the time of
service, it is not proper to leave the summons outright with a person residing therein even if
that person is of sufficient age and discretion. Reason: No efforts had been made to find and
serve the defendant in person. The sheriff immediately resorted to substituted service and this is
not proper.
3.
Summons by publication, as far as existing jurisprudence is concerned, will not
enable the court to acquire jurisdiction over the person of the defendant (Pantaleon vs. Asuncion,
105 Phil. 761; Citizens Surety & Insurance Co., Inc. vs. Nieto, 125 SCRA 758, Consolidated Plywood vs.
Breva, 166 SCRA 589). There are however, exceptions to this rule where the defendant is a
resident of the Philippines.
(a) Where the resident defendants identity is unknown or his whereabouts are
unknown (Sec. 14, Rule 14; Santos vs. PNOC, September 23, 2008);
(b) Where the resident defendant is temporarily out of the Philippines (Sec. 16, Rule 14).
These exceptions apply in ANY ACTION, hence, even if the action is in personam.
Note: Summons may be dispensed with if the defendant voluntarily appears because
under Sec. 20 of Rule 14, voluntary appearance is equivalent to service of summons.
4.
If the defendant in an action in personam is a non-resident, jurisdiction over his
person is acquired only by service of summons upon him in person within the Philippines
(Asiavest Limited vs. Court of Appeals, 296 SCRA 529) or by his voluntary appearance in the action.
Summons by publication will not acquire jurisdiction over him whether he is in the Philippines
or outside the country.
Now, if the action is in rem, or quasi in rem like foreclosure of real estate mortgage,
jurisdiction over the person of the defendant whether he be a resident or a non-resident
defendant, is not required because what is necessary is jurisdiction over the res. The proceedings
may continue even if jurisdiction over the defendant is not acquired as long as there is
jurisdiction over the res but the recourse of the plaintiff would only be against the property.
Hence, if the debt is P1 million and the property foreclosed was sold for only P800,000, the
creditor/mortgagee cannot recover the deficiency because recovery of the deficiency is a
recovery of a sum of money which by nature is one in personam.
However, if the defendant in the foreclosure suit is in the Philippines, the better move is
to have the defendant summoned in the manner provided for a defendant in an action in
personam even if the action is technically in rem or quasi in rem so that the jurisdiction of the court
will be acquired not only over the res but also over his person. Thus, the non-resident defendant
shall be served with summons in person in the Philippines and the resident defendant shall be
served in accordance with Secs. 6 and 7 of Rule 14 as in in personam actions. By so doing, the

plaintiffs right to any claim would not be confined to the property but would extend to claims
against the person of the defendant like claims for the deficiency or damages, if any. Also, if the
defendant in the foreclosure suit voluntarily appears in the action like by filing an answer
interposing affirmative defenses with a counterclaim, his appearance puts his person within the
jurisdiction of the court. Hence, the creditor may be entitled to any deficiency judgment.
5.
In an action in rem or quasi in rem against a non-resident defendant who is at the
same time not in the Philippines, the summons by service in person (Sec. 6, Rule 14) and
specially substituted service (Sec. 7, Rule 14), cannot be availed of. The summons that would
apply would be extraterritorial service of summons under Sec. 15 of Rule 14. Under this
provision, summons by publication is available. The summons by publication is coupled with a
registered mail of the summons and the order of the court directed to the defendant at his last
known address. Other modes of summons are also available pursuant to Sec. 15, Rule 14).
Personal service as in Sec. 6 shall also be available as well as any mode of service which the
court may deem sufficient. The last mode is so comprehensive to include any other means
provide the court considers it sufficient under the circumstances like possibly summons by mail,
etc. Reason: The purpose of the summons is not to acquire jurisdiction over the defendant
(which is unnecessary in actions in rem or quasi in rem) but only for due process or notice.
6.
If a non-resident is sued for collection of a sum of money, jurisdiction over his
person is mandatory, the action being one in personam. Jurisdiction over his person can be
obtained only by service of summons upon him in person within the country if he does not
make a voluntary appearance (Asiavest Limited vs. Court of Appeals, 296 SCRA 529). Substituted
service would not work because he has neither a residence in the Philippines nor a place of
business. A residence or a regular place or business is required to effect substituted service.
Note for emphasis that jurisdiction over the person of the defendant is mandatory in this
case because an action for a sum of money is an action in personam. Mere summons by
publication will not enable the court to have jurisdiction over him.
If for example, the suit against such a non-defendant is a suit for annulment of his
marriage to a Philippine resident, a suit for annulment may prosper despite the absence of the
non-resident defendant in the Philippines. This is because the action for annulment is an action
in rem. Summons by publication together with registered mail in the defendants last known
address will suffice because what the court merely needs is jurisdiction over the res. Other forms
of summons (extra-territorial service) provided for in Sec. 15 of Rule 14 may also be available
(Romualdez-Licaros vs. Licaros, 401 SCRA 762).
In an action for specific performance against a non-resident who does not reside in the
Philippines, summons by publication will not enable the court to acquire jurisdiction over him.
An action for specific performance is an action in personam (Gomez vs. CA, 425 SCRA 98).
7.
When the defendant is a non-resident and he is not found in the country, and the
action is in rem or quasi in rem, summons may be served upon him extra-territorially in
accordance with Rule 14, Section 15.
Under this provision, (sec. 15, Rule 14), there are four (4) instances when extraterritorial
service of summons is proper, namely:
(a)
when the action affects the personal status of the plaintiff; (b) when the action
relates to, or the subject of which is property within the Philippines, in which the defendant
claims a lien or interest, actual or contingent; (c) when the relief demanded in such actions
consists, wholly or in part, and excluding the defendant from any interest in property located in

the Philippines; and (d) when the defendant non-residents property has been attached within
the Philippines.
Note that the above actions are either in rem or quasi in rem. Under Sec. 15 of Rule 14,
extraterritorial service therefore, can only be effected when the action is either in rem or quasi in
rem and the defendant is a non-resident who at the same time is not found in the Philippines.
Jurisdiction over the person of the defendant here is not required. This explains why summons
by publication may be effected in these kinds of actions. Instead of jurisdiction over the person
of the defendant, the rule merely requires jurisdiction over the res. Publication (coupled with the
required registered mail at the defendants last known address), is allowed to enable the court to
acquire this type of jurisdiction. If the action however, against the non-resident defendant is in
personam, extraterritorial service cannot be availed of. Recall that when the defendant in an
action in personam is a non-resident, personal service of summons within the state is essential to
the acquisition of jurisdiction over the person. This cannot be done if the defendant is not
physically present in the country. The court thus, cannot acquire jurisdiction over his person. So
when the action is for the recovery of damages against the non-resident defendant, the
summons by publication is ineffective and will not enable the trial court to acquire jurisdiction
over the person of the defendant. Any judgment rendered against him is therefore, null and
void for lack of jurisdiction over the defendant (Banco do Brazil, 333 SCRA 545).
Assume that a German tourist while in the Philippines, incurred hotel bills of P2 million.
Without paying his bills, he surreptitiously left the country. The hotel filed an action for a sum
of money and with leave of court effected summons by publication. The defendant made no
appearance in any form. Judgment was rendered against him. Comment on the judgment.
Judgment was rendered without jurisdiction over his person. The summons by
publication did not enable the court to acquire jurisdiction over him because the action is an
action in personam.
Mr. D is a balikbayan, a former Filipino and now a naturalized Canadian citizen. He
visited the country to attend the funeral of his father from whom he inherited a parcel of land.
He obtained a loan while in the Philippines and executed a real estate mortgage on his inherited
land. He left without paying the debt. An action to foreclosure the mortgage was filed. How
may the court obtain jurisdiction over the person of Mr. X? There is no way unless he makes a
voluntary appearance. He is already out of the country. Besides, jurisdiction over the person of
the defendant is not necessary under the facts of the case because the action for foreclosure is
not an action in personam. Foreclosure suits are in rem or quasi in rem actions. In these kinds of
actions, jurisdiction over the person of the defendant is not necessary. Summons by publication
or any other mode of extra-territorial service of summons would be sufficient for the court to
acquire jurisdiction over the res.
May the court therefore, validly render a judgment in the foreclosure proceedings?
The court can. It has jurisdiction over the res as long as any of the modes of summons
provided for under Sec. 15 of Rule 14 on extra-territorial service is complied with. If however, a
deficiency exists after the foreclosure sale, the deficiency cannot be recovered under the
summons used because such recovery is in the nature of a proceeding in personam and
jurisdiction over the person of the defendant was not acquired.
8.
There are instances where a non-resident defendant has properties in the
Philippines. In an action in personam, as when the suit is for a sum of money or for damages,
there is no problem in acquiring jurisdiction over his person if he is in the Philippines because
he may be served summons by using the service under Sec. 6 of Rule 14 (service in person). If
however, he is already out of the country when the summons is to be served, service in person

would not be possible if the purpose is to acquire jurisdiction over his person. Summons by
publication would likewise be ineffective to acquire jurisdiction over his person. The remedy is
to file the suit and at the same time avail of the provisional remedy of attachment. Following
established principles, jurisdiction over the person of the defendant would no longer be
required when there is a writ of attachment over the defendants properties because the suit
has assumed the status of an action quasi in rem which merely requires jurisdiction over the res.
Summons by publication or other modes of extraterritorial service would now be available and
thereafter, the suit can proceed despite the absence of the defendant because it would now be
the property and not the person of the defendant which would be the object of the judicial
power.

SPLITTING/JOINDER OF CAUSES OF ACTIONS


1.
Splitting a single cause of action is disallowed by the Rules because it breeds
multiplicity of suits.
To illustrate: The act of a defendant in taking possession of the plaintiffs land by means
of force and intimidation gives rise to two remedies: (a) recovery of possession, and (b) damages
arising from the loss of possession. These remedies cannot however, be the subject of two
separate actions and must be alleged and claimed in only one complaint. Only one action should
be brought. To file a separate action for each remedy is to split a single cause of action. Since the
rule is that all remedies should be alleged in a single complaint, it goes without saying that
those not therein included in the action filed cannot be the subjects of subsequent complaints
because they are barred. Hence, an action for forcible entry should include not only the plea for
restoration of possession but also claims for damages arising out of the forcible entry. The claim
for damages cannot be filed separately (Progressive Development Corporation, Inc. vs. Court of
Appeals, 301 SCRA 637).
2.
Splitting a single cause of action is a ground for dismissal based on litis
pendentia. If a final judgment had been rendered when the second action is filed, the latter may
be dismissed based on res judicata. The rule against splitting a single cause of action applies not
only to complaints but also to counterclaims and cross-claims. To interpose a cause of action in a
complaint and also invoke it in a complaint against the same person or party would be splitting
a single cause of action (Mariscal vs. Court of Appeals, 311 SCRA 51).
Examples: (a) A complaint for the quieting of title (claim of ownership) of the land must
include any claim for the income and fruits of the land. The claim for income is merely
incidental to the claim of ownership and cannot be the subject of a separate action.
(b) An action for partition and a claim for improvements on the land cannot be split in
two separate complaints. When you file an action for partition, you have to claim the value of
the improvements in the same action.
(c) Where a note is secured by a mortgage, the creditor has a single cause of action.
Although the loan and the mortgage are two separate agreements, the mortgage is subsidiary to
the debt or loan and both refer to the same obligation. The creditor therefore, cannot file both an
action for foreclosure of the mortgage and another action to collect a sum of money.
(d) Where an obligation is to be performed at different times and therefore, divisible,
each breach is a distinct cause of action. This situation occurs in obligations to be performed in
installments where each default of an installment gives rise to a distinct cause of action. Each
default may therefore, be the subject of a separate suit. If however, suit is filed only after several
breaches, all such breaches should be embodied under a single complaint only. Also, where the

breach is total as when the defendant gives notice of his refusal to comply with the contract at
the outset, there is an anticipatory breach and there can only be one action filed.
3.

One significant rule under causes of action is joinder of causes of action.

According to the Rules of Court, A party may in one pleading assert, in the alternative
or otherwise, as many causes of action as he may have against an opposing party (Section 5,
Rule 2, Rules of Court).
To illustrate: D is the debtor of C for P150,000 due on September 5, 2008. D likewise owes
C P350,000 due on September 13, 2008. D has not paid the debts despite demand. Each debt is a
separate cause of action because each is the subject of different transactions. However, under the
rule on joinder of causes of action, C may file a single suit against D for the collection of both
debts, despite the claims being separate causes of actions and having arisen out of different
transactions. Remember that when there is only one plaintiff and one defendant, you do not
have to ask whether or not the causes of actions arose out of the same transaction or series of
transactions. This question is only relevant when there are multiple plaintiffs or multiple
defendants.
In the hypothetical just discussed, is C obliged to join the causes of action against D?
No. C is not obliged to do so. He may file a single suit for each of the claims or simply a
single suit for both because joinder of causes of action is not compulsory. It is merely
permissive. In case C decides on the joinder, the suit shall be filed in the Regional Trial Court
because the jurisdictional amount is within that courts jurisdiction. When 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 (Sec. 5(d), Rule 2, Rules of Court).
Assume that aside from the above claims, C as lessor also wants to eject D from the
apartment occupied by D as lessee. May the action for unlawful detainer be joined with the
claims for money?
The answer is NO. This is because the action for unlawful detainer is a special civil
action. This kind of action cannot be joined with ordinary actions. The joinder does not include
special civil actions or those actions governed by special rules.
Example: The causes of actions against D in favor of P are: P1 million based on a note; P1
million based on torts; and foreclosure of a real estate mortgage. May the causes of action be
joined? Yes, but excluding foreclosure of real estate mortgage which is a special civil action and
is governed by special rules.
4.
When there are two or more defendants, or one or more plaintiffs, the causes of
action against the defendants can be joined if there is a compliance with the rules on joinder of
parties under Sec. 6 of Rule 3. This provision requires that the right to relief should arise out of
the same transaction and that there exists a common question of law or fact. This requirement
does not apply when there is only one plaintiff and one defendant.
Suppose C is the creditor of D for P300,000 and also of E for P200,000. Both debts are
due and these debts have been contracted separately. May C join D and E as defendants in the
same complaint?
The answer is NO. Where a party sues two or more defendants, it is necessary for the
causes of action against both to arise out of the same transaction and that there should be a
common question of law or fact. The debt of D is a transaction different from the debt of E.

Suppose P is a passenger in a passenger bus owned by O and driven by D. Because of


the negligence of D, P sustained injuries when the vehicle fell into a ditch by the roadside. May
P join O and D as defendants in the same complaint based on torts?
Yes. The liability of O and that of D arose out of the same transaction (same accident)
which gives rise to a common question of law or fact.
In a promissory note signed jointly (not solidary) by the makers (debtors), in favor of the
same creditor, there are as many debts as there are debtors. Hence, if B and C jointly promise to
pay P, their creditor P1 million, there are two debts of P500,000 each. There are therefore, two
distinct causes of actions. P may file an action against one of them only to recover the share of
each. However, since, their debts arose out of a single transaction (same promissory note
signed), P may join his causes of action against both under one complaint.

PARTIES
1.
A suit must be defended and prosecuted in the name of the real party in interest
(Sec. 2, Rule 3, Rules of Court).
For instance, under Art. 1768 of the Civil Code of the Philippines, a partnership has a
juridical personality separate and distinct from that of each of the partners. Hence, if the
contract was entered into by the partnership in its name, it is the partnership, not its officers or
agents which should be impleaded in any litigation involving property registered in its name. A
violation of this rule will result in the dismissal of the complaint for failure to state a cause of
action (Aguila vs. Court of Appeals, 319 SCRA 345).
The mere failure to include the name of a party in the title of the complaint is not fatal
because the Rules of Court requires the courts to pierce the form and go into the substance and
not be misled by a false or a wrong name in the pleadings. The averments are controlling and
not the title. Hence, if the body indicates the defendant as a party to the action, his omission in
the title is not fatal (Viason Enterprises vs. Court of Appeals, 310 SCRA 26).
2.
In an action for forcible entry, the possessor/lessee is the real party in interest as
plaintiff and not the owner/lessor. The issue in an action for forcible entry is mere possession.
The defendant therefore, cannot contend that it should be the owner who should file the suit.
However, in an action for damages to the property leased, the owner/lessor is the real party in
interest as plaintiff.
3.
Can a foreign corporation sue in the Philippines? It can, depending on the facts.
If it is a foreign corporation engaged in business in the Philippines, it needs a license to engage
in said business. If it has a license to engage in business in the Philippines, it can sue and it can
be sued. If it is engaged in business in the Philippines, and does not have a license to engage in
business, it can be sued but it cannot sue (Sec. 133, Corporation Code of the Philippines). If it is not
engaged in business in the Philippines, it does not need a license for that purpose simply
because it is not engaged in business. But it can sue in the Philippines on an isolated transaction
or for the purpose of protecting its goodwill or trade name.
4.
Mr. X, a pedestrian was injured in the collision of two vehicles. He suffered
injuries but does not know with certainty which vehicle caused the mishap. What should Mr. X
do if he wants to sue? He should sue the vehicle drivers/owners in the alternative (Sec. 13, Rule
3, Rules of Court.
5.
P delivered some goods to D pursuant to a contract. The goods were delivered to
E, the designated agent of D. D did not pay P. D contends that he has not received the goods. E

claims otherwise and insists that D had received the goods. Should P sue D or should he sue E?
P should sue both but in the alternative.
6.
B bought a car from S on installment. A chattel mortgage was executed on the car
in favor of S to secure the obligation. Before the payment was completed, B sold the car to D. It
was agreed that D would be responsible for the monthly installments. May S sue D alone in the
foreclosure suit or replevin suit?
He cannot. B must be made defendant. B is an indispensable party. The foreclosure or
replevin is premised in the default of B, the debtor. S would have no right to foreclose the
mortgage or repossess the car without establishing the default of B.
In the immediately preceding problem, if only D is impleaded as a defendant, what may
D do? D may move for the issuance of an order requiring S to amend his complaint and implead
B. If the court issues an order to implead B and S fails or refuses to comply with the order of the
court, then D should move for the dismissal of the case under Rule 17, Sec. 3. The ground
would be failure to comply with the order of the court. Note that failure to comply with the
order may be a ground for a motu propio dismissal but the mere failure to implead a party or
non-joinder (as well as misjoinder) is not a ground for dismissal (Sec. 11, Rule 3, Rules of Court).
7. Requisites of a class suit: (a)The subject matter is one of common or general interest
to many persons, and (b) the persons are so numerous that it is impracticable to join all of them
as parties. When these requisites are present, the suit may be brought by the class as plaintiffs or
against the class as defendants.
A class suit will not lie when the numerous occupants of a parcel of land are sued for
ejectment from the land because their interest is not common to all. The interest of each
defendant is only with respect to the portion he claims and occupies (Berses vs. Villanueva, 25
Phil. 473; Sulo ng Bayan, Inc. vs. Araneta, 72 SCRA 347).
8. Death of a party: When a party dies, the attorney has no further authority to act for
the deceased in the absence of a retainer from the heirs or legal representative of the deceased
(Lawas vs. Court of Appeals, 146 SCRA 173). Under Sec. 16 of Rule 3, the only remaining duty of the
attorney is to notify the court of the death of his client. Failure to make the notification may
subject the attorney to disciplinary action if the action is one that survives (like money claims
arising from contract or torts). He is obliged to give to the court the names and addresses of the
legal representatives to the court of names and addresses of the legal representatives of the
deceased by his legal representative or by his heir. This order of substitution is necessary for the
court to acquire jurisdiction over the substitute. (Ferreria vs. Vda. De Gonzales, 104 Phil. 143).
If the action does not survive (like the purely personal action of support, annulment of
marriage and legal separation), the court shall simply dismiss the case.
9.
When the action is for the recovery of money arising from contract and the
defendant dies before entry of final judgment, the court shall not dismiss the suit. It shall
continue and his legal representative or legal heir shall substitute the deceased. If the plaintiff
obtains a favorable judgment, said judgment shall be enforced as a money claim against the
estate of the deceased (Sec. 20, Rule 3). It would not then be proper to file a motion for the
issuance of an order or writ of execution.
PLEADINGS
1.
A compulsory counterclaim if not set up is barred while a permissive counterclaim
even if not set up is not barred. Because a permissive counterclaim does not arise out of the
same transaction as that of the complaint, if can be brought as a separate action in itself. A

docket fee must be paid for the permissive counterclaim. It must be also answered by the
adverse party to prevent default. If also needs a certificate against forum shopping. A
compulsory counterclaim need not be answered and does not need a certificate against forum
shopping.
2.
Every pleading must be signed by the party or counsel representing him stating
the address which should not be a post office box (Sec. 3, Rule 7).
3.
The signature of counsel is extremely significant. The signature of counsel signifies
that (a) he has read the pleading, (b) that to the best of his knowledge, information and belief,
there are good grounds to support it, and (c) that is not interposed for delay.
4. It is a rule of pleading that the prayer for relief though part of the complaint, is not
part of the cause of action and the plaintiff is entitled to as much relief as the facts may warrant.
It is the material allegations of fact of the complaint, not the legal conclusions in the prayer that
determine the relief to which the plaintiff is entitled. The court shall grant relief on the basis of
the allegations in the pleading and the proof even if no such relief is prayed for (UBS Marketing
Corporation vs. Court of Appeals, 332 SCRA 534); Bangko Filipino Savings and Mortgage Bank vs.
Court of Appeals, 332 SCRA 241).
Example: The prayer is for P3 million and for such other relief as may be deemed just
and equitable. The amount proved during the trial is P5 million without objection from the
adverse party. May the court award P5 million?
The court may award P5 million where no objection is interposed to the evidence of P5
million. It is as if the issue of P5 million was raised in the pleadings. Exception: A judgment
rendered against a party in default shall not exceed the amount or relief different in kind from
that the prayed for (Rule 9, Section 3(d)).
5.
A party is not required to specify the provisions of law relied upon. If he does so
specify it but is mistaken, this will not preclude him from obtaining relief in the case provided
that the facts stated and proved justify such relief.
6.
A counsel cannot certify to the certificate against forum shopping. As a rule, it
should be the plaintiff or the principal party. If the plaintiff is a corporation, it should be signed
by any of its authorized directors or officers (Digital Microwave Corporation vs. Court of Appeals,
328 SCRA 286). This rule is subject to a liberal interpretation and has not been strictly required
in the interest of substantial justice.
7.
Forum shopping consists of filing multiple suits involving the same parties for the
same cause of action, either simultaneously or successively for the purpose of obtaining a
favorable judgment. But there is no forum shopping where the cause of action before the
Ombudsman is for violation of the Anti-Graft and Corrupt Practices Act while the cause of
action before the trial court is for collection of money plus damages (Leyson vs. Office of the
Ombudsman, 331 SCRA 227).
8. Failure to comply with the required certification against forum shopping is a cause
for dismissal of the action but only upon motion and hearing. The defect is NOT curable by
amendment (Barroso vs. Ampig, Jr., 328 SCRA 530, 536).
9.
A reply is not mandatory because even if there is no reply, the allegations of new
matters in the answer of the defendant are deemed controverted, meaning, DENIED (Sec. 10,
Rule 6, Rules of Court). A reply however, is advisable when the defense is founded upon an
instrument (actionable document) as described under Sec. 7and Sec. 8 of Rule 8. In such a case

the reply must specifically deny the instrument under oath otherwise the genuineness and due
execution of the instrument will be deemed admitted. Note that a denial of an actionable
document must always be under oath to avoid an implied admission of its genuineness and due
execution (Sec. 8, Rule 80.
Note: Allegations of usury in a complaint to recover usurious interest must also be denied under
oath. (Sec. 11, Rule 8).

SUMMONS
1.
Service of summons is the means of acquiring jurisdiction over the person of the
defendant in an action in personam and a means by which the due process requirement of notice
of the constitution is complied with. The rules require not just a mere service of summons. The
modes of service must be strictly followed in order that the court may acquire jurisdiction over
the person of the defendant. (Umandap vs. Sabio, Jr., 339 SCRA 243; Gan Hock vs. Court of Appeals,
197 SCRA 223).
2.
With respect to foreign corporations, when a foreign corporation has designated
a person to receive summons in its behalf pursuant to the Corporation Code, that designation is
exclusive and service of summons on any other person is inefficacious (H.B. Zachry Company
International vs. Court of Appeals, 232 SCRA 329).
3.
As to domestic corporations, the rule is: Summons must be served ONLY upon
persons enumerated in Sec. 11 of Rule 14 (president, general manager, managing partner,
corporate secretary, treasurer, and in-house counsel). The enumeration is exclusive. Service
upon any other person will not enable the court to acquire jurisdiction over person of the
defendant (E.B. Villarosa vs. Benito, 312 SCRA 7; Mason vs. C.A., G.R. No. 144662, October 13,
2003).
Previous rulings which allowed service through a clerk (Golden Country Farms vs. Sunvar
Development Corporation, 214 SCRA 295; G & G Trading vs. Court of Appeals, 158 SCRA 466), a
bookkeeper (Pabon vs. NLRC, 296 SCRA 7), the secretary of the President (Viason Enterprises vs.
Court of Appeals, 310 SCRA 26), or the cashier (Talsan vs. Baliwag Transit, Inc., 310 SCRA 156), NO
LONGER APPLY because they were decided based on the old rule which allowed service upon
an agent of a domestic private juridical entity. The persons referred to in old cases were
considered agents, the term being very broad in its meaning. The present rule in Section 11 of
Rule 14 no longer includes an agent as one upon whom service of summons may be made.
3.
Service in person on the defendant is the preferred mode of service. (Sec. 6, Rule
14). If the defendant refuses the service, the server should not resort to substituted service. He
must TENDER it to him. Tendering is a part of service in person (formerly called personal
service). If the defendant cannot be served in person within a reasonable time, only then may
substituted service under Sec. 7 of Rule 14 be availed of. (See rule on substituted service).
The sheriff or server must first exert all efforts to serve the defendant in person. If this
effort fails, then substituted service can be made. This effort must be stated in the proof of
service. This is required because substituted service is in derogation of the usual mode of
service (Laus vs. Court of Appeals, 219 SCRA 688; Umandap vs. Sabio, Jr., 339 SCRa 243; Samartino
vs. Raon, 383 SCRA 664, 670, [2002]). It is only when the defendant cannot be served personally
that substituted service may be made. It is however, necessary that the pertinent facts attendant
to the service of summons must be stated in the proof of service, otherwise substituted service
in lieu or personal service cannot be upheld (Hamilton vs. Levy, 334 SCRA 821).

Failure to faithfully comply with the requirements of substituted service renders the
service ineffective (Miranda vs. Court of Appeals, 326 SCRA 278).
4. Extra-territorial service of summons in Sec. 15 of Rule 14, applies when the defendant
is a non-resident who is not found in the Philippines AND that the action against him is either
in rem or quasi in rem. If the action is in personam this mode of service will not apply. There is no
extraterritorial service of summons in an action in personam (Kawasaki Port Service Corporation vs.
Amores, 199 SCRA 230; Banco Do Brasil vs. Court of Appeals, 333 SCRA 545).
When the action is in personam, jurisdiction over the person of the defendant is necessary
for the court to validly try and decide a case. However, when the defendant is a nonresident,
personal service of summons within the Philippines is essential to the acquisition of jurisdiction
over him (Banco do Brasil vs. Court of Appeals, 333 SCRA 545).
Example: Mexicano, a tourist in the Philippines, by the employment of force and
intimidation, contracted a marriage with Filipina, a hotel receptionist. When Mexicano left for
Mexico, Filipina filed an action for annulment of marriage with damages of P3 million. With
leave of court, extra-territorial service of summons by publication was effected. Mexicano did
not appear. The court decreed the annulment of the marriage and awarded damages. Was the
judgment correct assuming all the requisites for the proceedings were complied with?
The judgment may be correct insofar as the decree of annulment is concerned. The
action is an action in rem. In this kind of action, jurisdiction over the res is sufficient. Jurisdiction
over the person of the defendant is not essential in this case, so whether or not there was
jurisdiction over Mexicano does not affect the authority of the court to decide on the issue of
annulment as long as the proper extra-territorial service of summons was made. However, the
judgment of the court awarding damages in favor of Filipina is not binding on Mexicano. By its
nature, a claim for damages is in personam. The court is without jurisdiction to award damages
unless it has first acquired jurisdiction over the person of Mexicano. The only ways by which
this type of jurisdiction may be acquired in the case at bar is either through service in person
upon Mexicano in the Philippines OR by his voluntary appearance in the action. Neither of
these prevailed in the case under consideration in the action. (Very important: See modes of service
in particular situations like minors, prisoners, etc.).

DEFAULT
1.
Default may occur when the defending party fails to file his answer within the
reglementary period. It does not occur from the mere failure of the defendant to attend the trial.
Take note that the defending party cannot be declared in default without the requisite motion.
The court cannot motu propio declare the defendant in default (Sec. 3, Rule 9, Rules of Court).
2.
A declaration of default is not an admission of the truth or the validity of the
plaintiffs claims (Monarch Insurance vs. Court of Appeals, 333 SCRA 7); Vlason Enterprises
Corporation vs. Court of Appeals, 310 SCRA 26).
3.
Under the rules, when a party is declared in default, the court may either
proceed to render judgment or require the plaintiff to present his evidence ex parte. A party in
default is entitled to notice of subsequent proceedings but he is not entitled to take part in the
trial (Sec. 3, Rule 9).
4.
Remember too that the judgment to be rendered against the party in default shall
not exceed the amount or be different in kind than that prayed for. Unliquidated damages
cannot be awarded. Note also that there is no default in an action for annulment or declaration
of nullity of marriage or for legal separation even if the defendant fails to file an answer.

5.
A party declared in default may file a motion under oath to set aside the order of
default upon proper showing of FAMEN (fraud, accident, mistake or excusable negligence). He
must also show that he has meritorious defense and which must be stated in an affidavit of
merit (Sec. 3(b), Rule 9). The current judicial trend is to avoid defaults and thus, courts are
enjoined to be liberal in setting aside orders of default (Ampeloquio vs. Court of Appeals, 333
SCRA 465.).
6.
If a judgment by default has already been rendered, the defendant may file a
motion for reconsideration of the judgment, file a motion for new trial or file an appeal. These
remedies apply only before the judgment by default becomes final and executory.
If the judgment by default has already become final and executory, the above remedies no
longer apply. Instead the defendant may avail of a petition for relief, action to annul the
judgment or a petition for certiorari under Rule 65.

PRE-TRIAL
1.
A pre-trial is mandatory in civil cases (Sec. 2, Rule 18, Rules of Court) in summary
procedure (Secs. 7 and 14, 1991 Rule on summary Procedure) and in the trial courts in criminal
cases (Sec. 1, Rule 118, Rules of Court). The motion is to be filed within 5 days from the service of
the last pleading (Administrative Circular No-3-99, January 15, 1999). If the plaintiff fails to file
said motion within the given period, the branch clerk of court shall issue a notice of pre-trial
(A.M. No. 03-1-09 issued on July 13, 2004 and effective August 16, 2004).
2.
In a civil case, the plaintiff has the duty to file a motion to set the case for pre-trial
after the last pleading has been served and filed. This motion is an ex parte motion. If the period
for the filing of the last pleading has not yet lapsed, it is premature to file the motion to set the
case for pre-trial.
3.
The notice of pre-trial shall be served on the counsel. If the party has no counsel,
the notice shall be served upon him. The counsel served with the notice is charged with the
duty of notifying the party represented by him (Sec. 3, Rule 18, Rules of Court).
4. At the start of the preliminary conference, the judge shall immediately refer the parties
and/or their counsel to the PMC mediation unit for purposes of mediation if available. If the
mediation fails, the judge will schedule the continuance of the pre-trial conference (A.M. No. 031-09 issued on July 13, 2004 and effective August 16, 2004).
Note: See purposes of a pre-trial in Sec. 2 of Rule 18 like the possibility of amicable
settlement or of a submission to alternative modes of dispute resolution, the simplification of
the issues, the limitation of the number of witnesses and others.
5.
Under the rules issued on July 13, 2004, the parties, during the pre-trial may
already agree on the specific dates for a continuous trial. The One-Day Examination of Witness
Rule during the trial shall be strictly adhered to subject to the courts discretion to grant
extension. The pre-trial shall likewise determine the most important witnesses (The most
Important Witness Rule) to be heard and to limit the number of witnesses. The facts to be
proven by each witness and the approximate number of hours per witness shall be fixed. In the
pre-trial, the court may order the delegation of the reception of the evidence to the branch clerk
of court or the referral of the case to trial by commissioner.
6. In the pre-trial , the court shall determine the propriety of rendering a judgment on
the pleadings or a summary judgment based on the disclosures made at the pre-trial, evidence
identified and admissions made during the trial.

7.
It shall be the duty of the parties and their counsel to appear at the pre-trial. The
non-appearance of a party shall be excused if a valid cause is shown. The party absent shall
designate his representative who shall appear in his behalf and is fully authorized in writing to
enter into an amicable settlement, to enter into alternative modes of dispute resolution, and into
stipulations or admissions of facts (Sec. 4, Rule 18, Rules of Court).
8.
The failure of the plaintiff to appear shall be cause for the dismissal of the action.
This dismissal shall be with prejudice, unless otherwise ordered. Hence, if dismissed, the action
may not be refiled as a rule. If it is the defendant who fails to appear, the non-appearance shall
be cause to allow the plaintiff to present his evidence ex parte and for the court to render
judgment on the basis thereof (Sec. 5, Rule 18, Rules of Court).
9.
The parties shall file with the court and serve upon the adverse party, a pre-trial
brief which shall be done in such a manner as to ensure its receipt at least three (3) days before
the date of the pre-trial (Sec.6, Rule 18, Rules of Court). The failure to file the pre-trial brief shall
have the effect of non-appearance (Sec. 6, Rule 18, Rules of Court).

TRIAL
1.
A trial is not indispensable to a judgment which can be rendered even without a
trial as when the court renders a judgment on the pleadings or a summary judgment or a
judgment upon a compromise. In fact, under Sec. 6 of Rule 30, the parties may agree in writing,
upon the facts involved in the litigation, and submit the case for judgment on the facts agreed
upon, without the introduction of the evidence. This agreement may lead to a judgment without
a trial.
2.
The order of trial indicates that it is the plaintiff who shall present his evidence
ahead of the defendant (Sec. 5, Rule 30, Rules of Court). There is no rule however, which
precludes the court to allow the defendant to present evidence on his affirmative defense as
when in a suit for collection of a sum of money, the defendant may be allowed to prove first the
fact of payment.
3.
A motion to postpone the trial because of absence of evidence shall be done upon
an affidavit showing the materiality of the evidence or its relevancy and that due diligence has
been used to procure it (Sec. 3, Rule 30, Rules of Court). Hence, in writing. The trial shall not be
postponed if the adverse party admits the facts to be given in evidence even if he reserves the
right to their admissibility or objects to it.
4.
A motion to postpone a trial on the ground of illness of a party or counsel if it
appears upon affidavit or sworn statement that the presence of such party or counsel at the
trial is indispensable and that the character or illness is such as to render his non-attendance
excusable (Sec. 4, Rule 30, Rules of Court).

DEMURRER TO EVIDENCE
1.
This is a form of a motion to dismiss filed after the defendant has completed the
presentation of his evidence, the defendant may move to dismiss the complaint on the ground
that the plaintiff has shown no right to relief upon the facts and the law (insufficiency of
evidence).

2.
If the motion is denied, the defendant shall then present his evidence. This right to
present evidence is not waived. If it is granted, the case shall be dismissed. However, if on
appeal the order granting the motion is reversed, the defendant loses his right to present
evidence (Rule 33, Rules of Court). It has been held that it is not correct for the appellate court
reversing the order granting the motion (demurrer) to remand the case to the trial court for
further proceedings. The appellate court should, instead of remanding the case, render
judgment on the basis of the evidence submitted by the plaintiff (Radiowealth Finance Corporation
vs. Del Rosario, 335 SCRA 288).
An order denying a demurrer to the evidence is interlocutory and is therefore, not
appealable. It can however, be the subject of a petition for certiorari in case there is, on the part
of the court, a grave abuse of discretion or an oppressive exercise of judicial authority (Katigbak
vs. Sandiganbayan, 405 SCRA 558).
2.
A party who files a demurrer to evidence in an election case cannot insist on the
right to present evidence when the demurrer is denied. The provision of the Rules of Court
governing demurrer to evidence does not apply to an election case (Gementiza vs. COMELEC,
G.R. No. 140884, March 6, 2001).
3.
A demurrer to evidence in a civil case may be filed without leave of court but a
demurrer in a criminal case may be filed either with or without leave of court.
If the demurrer in a criminal case is denied, the accused may present evidence in his
defense only if he filed the demurrer with previous leave of court. If the demurrer was filed
without leave of court, the accused is deemed to have waived his right and he submits the case
for judgment on the basis of the evidence for the prosecution (Sec. 23, Rule 119, Rules of Court).

JUDGMENTS
1.
When a judgment becomes final and executory, it becomes immutable and
unalterable. The court loses jurisdiction over the judgment to amend (except for clerical errors)
or alter the same but it retains jurisdiction to EXECUTE it during its lifetime (Equatorial Realty
Development, Inc. vs. Mayfair Theater, 332 SCRA 139 [2000]; NHA vs. Heirs of Isidro Guivelondo, 404
SCRA 389).
2.
When the trial court orders payment of attorneys fees not decreed in the
judgment, such variance with the terms of the judgment, renders the order void (Lizardo, Sr. vs.
Montana, 332 SCRA 163).
3.
A judgment upon a compromise has all the force and effect of any other
judgment, hence, conclusive upon the parties and their privies (Golden Donuts vs. NLRC, 322
SCRA 294).
A judicial compromise, once stamped with judicial approval becomes more than a mere
contract binding upon them and having the sanction of the court and entered as its
determination of the controversy. It has the force and effect of any judgment (Yulienco vs. CA,
386 SCRA 30). It has the effects of res judicata, is immediately executory, and not appealable.
The remedy is to file a motion to set aside he compromise on any ground vitiating the consent
like fraud, duress or mistake (Salvador vs. Ortoll, October 18, 2000). While a judicial compromise
has the effect of res judicata, it cannot be executed except in compliance with a judicial
compromise (Art. 2037, Civil Code of the Philippines).
4.
The law of the case doctrine means that whatever has been irrevocably established
as the controlling rule of decision between the same parties in the same case continues to be the
law of the case, whether correct or not, so long as the facts of which such decision was

predicated continues to be the facts of the case before the court (Ducat vs. Court of Appeals, 322
SCRA 69).
5.
The entry of judgment refers to the physical act performed by the clerk of court in
entering the dispositive portion of the judgment in the book of entries of judgment after the
same has become final and executory. Under the 1997 Rules of Civil Procedure (Sec. 2, Rule 36),
the date of the entry of judgment is the date when the judgment becomes final and executory
regardless of the date when the physical act of entry was done.
REMEDIES AGAINST A JUDGMENT
Remedies Before a Judgment Becomes Final and Executory
(A)
Motion For Reconsideration (Rule 37) This is filed within the period for appeal
based on any of the following grounds: (a) damages are excessive; evidence is insufficient; or
that (c) the decision or order is contrary to law (Sec. 1, Rule 37, Rules of Court).
The motion shall be in writing and notice thereof must be given to the adverse party. It
must also contain a notice of hearing. In other words, it must comply with the rules on motion.
If it does not, it will be considered only a pro forma motion and will not have the effect of
suspending or interrupting the period to appeal.
The motion shall point out specifically the findings or conclusion of the judgment not
supported by the evidence or which are contrary to law. Mere general assertions that a ground
for reconsideration exists will not suffice, otherwise the motion shall be deemed a mere pro
forma motion.
If the motion is granted, the court may amend the judgment or final order accordingly. If
the motion is denied, do not appeal from the order denying the motion. An order denying a
motion for reconsideration is not appealable (Sec. 9, Rule 37). The remedy is to appeal from the
judgment or the final order pursuant to the provisions of Sec. 9 of Rule 37.
A second motion for reconsideration is not allowed under Sec. 5 of Rule 37. This
prohibition applies to a motion for reconsideration of a judgment or final order and does not
refer to a motion for reconsideration of an interlocutory order where the court may allow even
more than one motion for reconsideration.
A motion for reconsideration under Rule 37 cannot be used as a vehicle to introduce new
evidence. If you want to introduce new evidence, the remedy is to file a motion for new trial
(Cansino vs Court of Appeals, 409 SCRA 403).
(B)
Motion For New Trial (Rule 37) This is filed within the period to appeal based
on fraud, accident, mistake or excusable negligence (FAMEN) or newly discovered evidence.
Here the movant alleges that he lost because he was prevented from fully participating in the
proceedings or he was prevented from taking an appeal because of any of the grounds
mentioned. If he alleges fraud, he must only allege extrinsic fraud, not intrinsic fraud. This fraud
must be one employed to prevent the movant from ventilating his side in the proceedings. The
use of forged document by a party is not the fraud contemplated as extrinsic and cannot
therefore, be a ground for a motion for new trial.
Another ground is newly discovered evidence which could not have been discovered
and produced at the trial. Take note that the evidence is not really a new one but one newlydiscovered.

When the ground is FAMEN, the motion must be supported by an affidavit of merit.
When the ground relied upon is newly discovered evidence, no affidavit of merit is required.
Instead, it shall be supported by affidavits of witnesses or by duly authenticated documents.
If the motion for new trial is granted, the original judgment shall be vacated and the
action shall stand for trial de novo. The recorded evidence in the former trials shall be used at the
new trial without need for retaking the same as long as that evidence is material and competent
to establish the issues.
If the motion is denied, do not appeal the order denying the motion for new trial. This is
because the order is not appealable (Sec. 9, Rule 37). The remedy is to appeal from the judgment
or final order (Sec. 9, Rule 37).
The fresh period rule If the motion for reconsideration or motion for new trial is
denied, the movant has a new period of 15 days to file an appeal if he so desires, counted from
receipt of the notice or order denying the motion. Hence, if he files a motion for reconsideration
on the 10th day from notice of the judgment and the motion is denied, he does not have only the
remainder of the 15 day period to appeal, but a fresh period of 15 days to file his appeal (Neypes
vs. Court of Appeals, September 14, 2005).
(C)
Appeal From Judgment Of MTC (Rule 40) An appeal from a judgment or final
order of an MTC shall be taken to the RTC exercising jurisdiction over the area.
The appeal is taken by filing a notice of appeal with the court that rendered the
judgment, which is the MTC. Do not file the notice of appeal with the RTC. In cases involving a
special proceeding or in case of multiple appeals, a record on appeal shall be required. Copies of
the notice of appeal and the record on appeal shall be served on the adverse party. Within the
period for appeal, the appellant shall pay to the clerk of the MTC the full amount of the
appellate docket fee and other lawful fees.
Periods for appeal: 15 days in case of by notice of appeal; 30 days in case record on
appeal is required. Period is counted from the notice of judgment.
A partys notice of appeal is deemed perfected upon the filing of the notice of appeal in
due time. In appeals by notice of appeal, the appeal is deemed perfected upon the approval of
the record on appeal filed in due time.
In appeals by notice of appeal, the court loses jurisdiction over the case upon the
perfection of the appeal in due time and the expiration of the time to appeal of the other parties.
In appeals by record on appeal, the court loses jurisdiction only over the subject matter thereof
upon the approval of the record on appeal filed in due time and expiration of the time to appeal
of the other parties.
If the trial loses jurisdiction over the case in accordance with the preceding paragraphs,
does this mean that the trial court can no longer issue orders related to the case?
The court can, as long as the orders are done PRIOR to the transmittal of the original
records or record on appeal. Thus, under the doctrine of residual jurisdiction, The trial court
may order an execution of the judgment pending appeal, approve compromises, permit appeals
of indigent litigants or allow a withdrawal of an appeal (Sec. 9, Rule 41 as applied to Rule 40 per
Sec. 4, Rule 40).
If the MTC dismisses a case pursuant to a motion to dismiss for lack of jurisdiction, the
dismissal is made without a trial on the merits. The plaintiff may appeal from the order of
dismissal because an order dismissing the action is final in character. If on appeal, the RTC finds

that the MTC correctly dismissed the complaint because it is the RTC which has jurisdiction, the
RTC shall affirm the dismissal but is mandated to TRY the case on the merits AS IF it was
originally filed with it (Sec. 8, Rule 40).
The same rule as above applies where the case was tried on the merits in the lower court
without jurisdiction over the subject matter. This means that the court shall also assume
jurisdiction over the case as if it was originally filed with it. The RTC may however, allow
amendment of the pleadings and admit additional evidence despite the previous trial in the
court below.
The RTC will require the appellant to file a memorandum. Failure to file a memorandum
is a ground for dismissal of the appeal (Sec. 7, Rule 40).
(D)
Appeal From The RTC To The CA (Rule 41) An appeal from the RTC may be by
(a) ordinary appeal under Rule 41; (b) petition for review under Rule 42; or (c) appeal by
certiorari/petition for review on certiorari under Rule 45.
The appeal called ordinary appeal, is one made from a judgment of the RTC in the
exercise of its original jurisdiction. This type of appeal is made by filing a notice of appeal with
the RTC within fifteen (15) days from notice of the judgment. If record on appeal is required, the
appeal period is 30 days.
(E) Petition For Review From RTC To The CA (Rule 42) This mode of appeal applies
when the decision of the RTC appealed from is one decided by it in the exercise of its appellate
jurisdiction. This means that the case originated from the MTC and appealed to the RTC
(Posadas-Moya vs. Greenfield Development Corp., 403 SCRA 530).
In filing a petition for review, a notice of appeal is not required. The appeal is done by
filing a verified petition for review directly with the Court of Appeals.
(F) Petition By Certiorari/Petition For Review On Certiorari From The RTC To The
Supreme Court (Rule 45) When the appeal raises pure questions of law, the appeal should be
addressed to the Supreme Court. A question of law arises when the doubt or difference arises as
to what the law is on a certain set of facts. A case, which does not raise purely questions of law,
does not merit attention of the Supreme Court (Cebu Womens Club vs. De le Victoria, 327 SCRA
533). Questions of fact are not proper subjects of this kind of appeal (Larena vs. Mapili, G.R. No.
146341, August 7, 2003). This mode of appeal applies when the decision of the RTc is in the
exercise of its original jurisdiction, and not one in the exercise of its appellate jurisdiction.
Note: In a Rule 45 appeal from a decision in a petition for writ of amparo or habeas data,
questions of fact may be raised.
A question of law exists when there is no doubt or controversy on what the law is on a
certain state of facts. There is a question of fact when the doubt or difference arises from the
truth or the falsity of the allegations of facts (Republic vs. Sandiganbayan, G.R. No. 102508, January
30, 2002).
In this mode of appeal, the petitioner does not have to pass the Court of Appeals. The
Supreme Court reviews only errors of law, not errors of fact. This is the general rule unless the
Court finds conflicts in the findings of facts of the Court of Appeals and the trial court. In this
case the Supreme Court may review the findings of facts of the courts below.
Note that the right to appeal is not a natural right or a part of due process. It is merely a
procedural remedy of statutory origin. There is no right to appeal unless there is a law which
authorizes it (Neplum vs. Orbeso, 384 SCRA 468).

Appellate courts may not generally entertain questions of law or fact not raised in the
lower courts for that would constitute a change of theory not permissible on appeal (Capacite vs.
Baroro, G.R. No. 154184, July 8, 2003).
(G) Appeals from quasi-judicial bodies Appeals from judgments and final orders of
quasi judicial bodies/agencies are now required to be brought to the Court of Appeals under
the requirements and conditions set forth in Rule 43. This rule was adopted precisely to provide
a uniform rule of appellate procedure from quasi-judicial bodies (Carpol vs. Sulu Resource
Development Corp., G.R. No. 148267, August 8, 2002).
(H) Review of Judgments of the NLRC Judgments of the NLRC are to be brought first
to the CA by way of petition for certiorari under Rule 65 not under Rule 43 of the Rule of Court
(St. Martin Funeral Homes vs. NLRC, 295 SCRA 494).
(I) Decisions and final orders of the Sandiganbayan shall be appealable to the Supreme
Court by way of petition for review on certiorari under Rule 45 raising pure questions of law.
Certiorari under Rule 65 is not the remedy (People vs. Espinosa, G.R. Nos. 153714-20, August 15,
2003).
(J) A decision of a division of the Court of Tax Appeals is reviewable by the Court of Tax
Appeals en banc. From the CTA en banc the aggrieved party may file a petition for review under
Rule 45 in the Supreme Court (Sec. 11, R.A. 9282).
(K) In administrative disciplinary cases, the ruling of the office of the Ombudsman shall
be appealable to the Court of Appeals (Fabian vs. Desierto, 356 SCRA 787; Enemecio vs. Office of the
Ombudsman, 49 SCRA 82)
In criminal cases, the remedy from the adverse resolution of the Ombudsman is a
petition for certiorari under Rule 65, not a petition for review on certiorari under Rule 45
(Salvador vs. Mapa, G.R. No. 135080, November 28, 2007).
(L)
The judgments of the COA and the COMELEC are reviewable by a petition for
certiorari under Rule 65 filed with the Supreme Court (Rule 64, Rules of Court). Judgments of the
Civil Service Commission shall be appealable to the Court of Appeals under Rule 43.

NOTE: There are judgments or orders which are not appealable. As of December 27,
2007, the following are not appealable: (Sec. 1, Rule 41, Rules of Court).
(a)

An order denying a petition for relief or any similar motion seeking relief form
judgment;

(b)

An interlocutory order;

(c)

An order disallowing or dismissing an appeal;

(d)

An order denying a motion to set aside a judgment by consent, confession or


compromise on the ground of fraud, mistake or duress, or any other groud
vitiating consent;

(e)

An order of execution;

(f)

An judgment or final order for or against one or more of several parties or in


separate claims, counterclaims, cross-claims and third-party complaints, while
the main case is pending, unless the court allows an appeal therefrom; and

(g)

An order dismissing an action without prejudice.

Remedy: File the appropriate special civil action under Rule 65.

Remedies after the Judgment Becomes Final and Executory


(A) Petition For Relief (Rule 38) This remedy is availed only when the petitioner can no
longer appeal because the period for appeal has already lapsed. This is a verified petition filed
within sixty (60) days after the petitioner learns of the judgment AND not more than six (6)
months after such judgment or final order was entered. These periods must concur. The
petitioner should invoke any of FAMEN. Of course, an affidavit of merit is indispensable here. It
serves as the jurisdictional basis for the court to entertain the petition. This is filed in the same
court and in the same case, not in a higher court because this is not a mode of appeal.
Remember that the petition for relief is filed after the period for appeal has lapsed,
hence, the judgment is at that point, already final and executory. The mere filing of a petition for
relief does not bar the execution of the judgment. It does not stay the execution of the judgment.
This is because the judgment is already final and executory and can be subject to execution by
mere motion. To stay execution, a writ of preliminary injunction should be availed of or a
temporary restraining order under Rule 58. (Section 5, Rule 38)
A petition for relief will not be entertained where the failure of the petitioner to appeal is
due to his fault or negligence.
(B) Annulment of Judgment (Rule 47) This remedy is available only where the ordinary
remedies of new trial, appeal, petition for relief or appropriate remedies are no longer available
through no fault of the petitioner (Sec. 1, Rule 47). Hence, if such remedies were not availed of
due to the petitioners fault, the petition will be dismissed.
Grounds: (a) extrinsic fraud; and (b) lack of jurisdiction. If based on extrinsic fraud, the action
must be filed within four (4) years from its discovery. If based on lack of jurisdiction, it must be
brought before the action is barred by laches or estoppel (Sec. 2, Sec. 4. Rule 47, Rules of Court).
(C) Certiorari (Rule 65) Called a supervisory or superintending writ, this remedy is
availed of to annul or modify the proceedings of a tribunal, board or officer exercising judicial or
extra-judicial functions which has acted without or an excess of jurisdiction, or with grave abuse
of discretion amounting to lack of jurisdiction. For this petition to prosper, it is necessary to
allege and show that there is no more appeal, or any other plain, speedy, and adequate remedy
in the ordinary course of law.
As a rule, where appeal is available, certiorari cannot be availed of unless it can be
shown that appeal is not speedy, or adequate (Landbank vs. CA, 409 SCRA 455).
In other words, a petitioner must first exhaust all other remedies available before
resorting to certiorari. For example, if he can file a motion for reconsideration, then he must do
so instead of certiorari. (Pilipino Tel. Corp., vs. NTC, G.R. No. 138295, August 28, 2003). Certiorari
is not a substitute for a lost appeal. The remedies of appeal and certiorari are mutually exclusive
and not alternative or successive (Conejos vs. CA, 386 SCRA 142).
The task of a court in a certiorari proceeding is to determine whether the lower court
committed grave abuse of discretion (Marcopper Mining vs. Solidbank Corporation, 434 SCRA 134).
It is a remedy narrow in scope. It is not a general utility tool in the legal workshop. Its function
is to raise only questions of jurisdiction and not other. It cannot be used for any other purpose

(Landbank of the Phils. vs. CA, 409 SCRA 455). Do not file certiorari if your purpose is to raise a
factual issue or to ask for a re-evaluation of the facts and the evidence (PILTEL vs. NTC, 410
SCRA 82) because this is not a mode of appeal where you raise errors of judgment of a court.
The petition shall be filed not later than 60 days from notice of the judgment, order or
resolution. In case a motion for reconsideration was filed, the 60-day period starts not from the
notice of judgment but from notice of the denial of the motion for reconsideration (Docena vs.
Lapesura, 355 SCRA 658).
Certiorari cannot be availed of where the facts complained of merely constitute errors of
judgment. Even if the order of judgment is erroneous as long as the court acted within the
bounds of its authority, certiorari is not the remedy (Microsoft Corp. vs. Best Deal Computer Center
Corp., 389 SCRA 615). Errors of judgments are correctible by appeal.
In filing for a petition for certiorari, the hierarchy of courts must be observed. Hence,
even though the Supreme Court has concurrent jurisdiction with the CA and the RTC to issue a
writ of mandamus, prohibition or certiorari, litigants are advised against taking direct recourse
to the SC without initially seeking proper relief from the lower courts (Carpio vs. Sulu Resources
Dev. Corp., 386 SCRA 128).
The filing of a petition for certiorari does not interrupt the proceedings in the lower court
if no preliminary injunction or a temporary restraining order is obtained enjoining the said
court from further proceeding with the case. In the absence of an injunction or a TRO, the public
respondent (court or tribunal) shall proceed with the principal case within ten (10) days from
the filing of the petition. Failure to proceed may be a ground for an administrative charge (Sec.
7, Rule 65 as amended by A.M. No. 07-7-12-SC).
Do not confuse certiorari under Rule 45 from certiorari under Rule 65: The following are
some of the distinctions: (a) Rule 45 raises pure questions of law; Rule 65, questions of
jurisdiction. (b) Rule 45 is a mode of appeal; Rule 65, a special civil action. (c) Rule 45 is directed
against final judgment or orders; Rule 65 may be directed even against interlocutory orders. (d)
Rule 45 is filed within fifteen (15) days from notice of judgment; Rule 65 within sixty (60) days.
(e) Rule 45 requires no prior motion for reconsideration; Rule 65 does require it as a rule.
A motion for reconsideration is required before filing a petition for certiorari under Rule
65. This is a well-settled rule. Without a motion for reconsideration, the petition may be
outrightly denied. There are exceptions to this rule. Under the exceptions, a motion for
reconsideration will not be required. Examples: (a) when the order is a patent nullity; (b) where
the issue raised has been passed upon the court below; (c) in case of urgency because any delay
would prejudice the rights of the petitioner. (d) where the subject matter is perishable.

EXECUTION OF JUDGMENTS

1.
Execution shall issue as a matter of right when the judgment becomes final and
executory. A motion for execution has to be filed by the prevailing party. (Sec. 1, Rule 39, Rules of
Court). When a judgment becomes final and executory, it is the ministerial duty of the court to
issue a writ of execution(Torres vs. NLRC, 330 SCRA 311 [2000]).
2.
May a judgment be executed pending appeal? It may be executed despite the
pendency of the appeal as long as there are good reasons to be stated in the special order and
after due hearing. This execution pending appeal is called a discretionary execution (Sec. 2, Rule

39; Future Guarantee and Insurance Corporation vs. Court of Appeals, G.R. No. 1110701, March 12,
2002).
How can a discretionary execution be stayed? The party against whom the discretionary
execution is directed should file a supersedeas bond conditioned upon the performance of the
judgment allowed to be executed in case it is finally sustained. (Sec. 3, Rule 39). Assume that the
judgment executed pending appeal is reversed totally or partially on appeal, what shall the trial
court do? The trial court, upon motion, shall issue an order of restitution or reparation as equity
and justice may warrant (Sec. 5, Rule 39).
3.
How is a final and executory judgment executed? If within five (5) years from
the date of entry, the judgment maybe executed by mere motion. After five (5) years, the
judgment may be enforced only by filing an action to revive the judgment (Sec. 6, Rule 39).
4.
Normally, an appeal stays a judgment. Under the Rules however, a judgment in
injunction, receivership, accounting and support shall be immediately executory, and shall be
enforceable after their rendition and shall not be stayed by an appeal, unless otherwise ordered
by the trial court (Sec. 3, Rule 39). A judgment against the defendant in an action for unlawful
detainer or forcible entry is also immediately executory but it may be stayed by perfecting an
appeal, filing of the required supersedeas bond and making the periodic deposits in the
appellate court (Sec. 19, Rule 70, Rules of Court).
5.
An erroneous judgment is a valid judgment if the errors are not brought to the
attention of a higher court through appeal. Errors of judgment are correctible by appeal. There
is an error of judgment where the error is in the appreciation of the facts and the evidence.
Where the error is one of jurisdiction, appeal is not the remedy, but certiorari.
6.
An order of execution is not appealable (Sec 1(e), Rule 41). A party who desires to
assail an order of execution may instead file the appropriate special civil action under Rule 65
like certiorari (Sec. 1, last par., Rule 41).
7.
In executing a judgment for money, the sheriff shall demand from the judgment
obligor the full amount in cash or certified check payable to the judgment debtor. If the
judgment debtor has no cash or check, the officer shall levy upon his properties but the
judgment debtor has the option to choose which property shall be levied upon. If the option is
not exercised, the officer shall first levy on the personal properties and then other properties if
the personal properties are not sufficient (Sec. 9(b) , Rule 39).
The officer may also levy upon the bank deposits of the debtor, royalties, commissions,
or his credits and others not capable of manual delivery by serving notice upon the person in
possession of the same. This is called garnishment (Sec. 9(c), Rule 39).
8.
If the judgment is one for the delivery of real property like in unlawful detainer
or forcible entry, the officer shall demand upon the occupant to vacate the property within three
(3) working days (Sec. 10 (c), Rule 39).
The officer cannot require the occupant to vacate on the same day the writ is executed
even if a judgment in ejectment is immediately executory. Immediacy of execution does not
mean instant execution. If the occupant does not vacate despite the three-day notice, it is not
correct to file contempt proceedings against the occupant. Contempt is not a means of enforcing
a judgment as a rule. The writ is not directed to the occupant but to the sheriff. By not vacating,
the occupant did not violate the writ. What he violated was the notice of the sheriff. The remedy
of the sheriff is to oust the occupant with the aid, if necessary, of law enforcement officers (Barete
vs. Amila, 230 SCRA 219; Pascua vs. Heirs of Segundo Simeon, 161 SCRA 1). If however, after being
ejected from the property, the occupant later attempts to enter, actually enters or induces

another to enter the property from which he was ejected, he may be liable for indirect contempt
(Sec. 3(b), Rule 71, Rules of Court).).
9.
Note that, when the judgment directs the judgment obligor to perform an act
other than the payment of money or the delivery of personal or real property, this judgment is
categorized as a special judgment and if not complied with, may be a basis for contempt (Sec. 11,
Rule 39). Thus, if an officer disobeys a writ of mandamus, he may be punished for contempt.
10.
You are advised to look into those properties exempt from execution under Sec.
13 of Rule 39. Note however, that although the properties enumerated therein are exempt from
execution, they are not exempt if they are subject to execution because of non-payment of their
price if acquired through a sale or if they are subject to foreclosure of a mortgage on the
property.
11.
If the property levied upon by the sheriff is owned or claimed by a third person,
the claimant may make an affidavit of his title to the property levied upon stating therein the
grounds for his claim or assertion of right. The affidavit shall be served upon the officer making
the levy with copy of the same given to the judgment obligee. This process is called terceria.
Upon receipt of the affidavit, the officer shall discontinue with the levy. However, the officer
may proceed if the judgment obligee protects the officer by posting a bond in a sum not less
than the value of the property. If this bond is approved by the court, the officer can continue
with the levy. The remedy of the debtor then is to file an action against the sheriff such as an
action for damages with preliminary injunction or a TRO or an action for injunction as a main
action to protect his rights to the property. This action will not be deemed to be an interference
with the court that issued the writ of execution because the suit is against the sheriff performing
an illegal act and not directed against the power of the court. The rule allows the third party
claimant to vindicate his claim to the property levied upon even in a separate action (Sec. 16,
Rule 39, Rules of Court).
12.
When real property is sold on execution, the judgment obligor has 1 (one) year
from the date of the registration of the sale to redeem the property from the purchaser (Sec. 28,
Rule 39). This purchaser is not entitled to the rents, fruits or income of the property pending the
redemption and shall belong to the judgment debtor until the expiration of his period of
redemption (Sec. 32, Rule 39).
13.
When the return of the writ of execution shows that the judgment remains
unsatisfied, the judgment creditor may ask from the court an order requiring the judgment
debtor to appear so he may be examined as to his properties (Sec. 36, Rule 39). The court may
also require the appearance of a person or corporation who holds property for the judgment
debtor or is a debtor of the latter (Sec. 37, Rule 39). There is however, a limitation to this remedy.
The judgment obligor cannot be required to appear before a court which is outside the province
or city where the debtor resides. Thus, a Quezon City court cannot require the appearance of a
debtor residing in Bulacan (Sec. 36, Rule 39). Also the debtors of the judgment debtor or a
corporation or person who holds property of the debtor cannot be required to appear outside
the city or province of his/its residence (Sec. 37, Rule 39).
14.
The purchaser or a redemptioner shall not be entitled to receive the rents,
earnings and income of the property sold on execution, or the value of the use and occupation
thereof when such property is in the possession of a tenant. All rents, earnings and income
derived from the property pending redemption shall belong to the judgment obligor until the
expiration of his period of redemption. (Sec. 32, Rule 39)

15.
When a judgment is rendered against a party who stands as surety for another,
the latter is also bound from the time that he has notice of the action or proceeding, and an
opportunity at the suretys request to join in the defense (Sec. 46, Rule 39)
16.
The effect of a judgment or final order rendered by a court of the Philippines,
having jurisdiction to pronounce the judgment or final order, may be as follows:
(a)
In case of a judgment or final order against a specific thing, or in respect to the
probate of a will, or the administration of the estate of a deceased person, or in respect to the
personal, political, or legal condition or status of a particular person or his relationship to
another, the judgment or final order is conclusive upon the title to the thing, the will or
administration, or the condition, status or relationship of the person; however, the probate of a
will or granting of letters of administration shall only be prima facie evidence of the death of the
testator or intestate;
(b)
In other cases, the judgment or final order is, with respect to the matter directly
adjudged or as to any other matter that could have been raised in relation thereto, conclusive
between the parties and their successors in interest by title subsequent to the commencement of
the action or special proceeding, litigating for the same thing and under the same title and in
the same capacity; and
(c) In any other litigation between the same parties or their successors in interest, that
only is deemed to have been adjudged in a former judgment or final order which appears upon
its face to have been so adjudged, or which was actually and necessarily included therein or
necessary thereto.(Sec. 47, Rule 39)
17.
The effect of a judgment or final order of a tribunal of a foreign country, having
jurisdiction to render judgment or final order is as follows:
(a) In case of a judgment or final order upon a specific thing, the judgment or final
order is conclusive upon the title to the thing; and
(b) In case of a judgment or final order against a person, the judgment or final order is
presumptive evidence of a right as between the parties and their successors in interest by a
subsequent title.
In either case, the judgment or final order may be repelled by evidence of a want of
jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact. (Sec. 48,
Rule 39).

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