Civil Procedure

Define Complaint and state the primary

purpose of a pleading
Complaint is
the court by
The primary
apprise the
defendant of
the claim.

the first pleading filed with

a party called the plaintiff.
purpose of a pleading is to
adverse party, called the
the nature and the basis of

What is the so called right of action?

The right to file a suit is called a right of
action. The right of action which is
procedural in character is the consequence
of the violation of the right of the plaintiff.
Hence, the rule: There is no right of action
where there is no cause of action.
How do you determine the nature of the cause
of action?
The nature of the cause of action is
primarily determined by the allegations in
the body of the complaint AND NOT by
the prayer.
Is signing the complaint mandatory?
Yes, signing the complaint is mandatory
because an unsigned pleading produces no
legal effect.
Note: 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.
When is amendment of a pleading a matter of
right?
Amendment of a pleading is a matter of
right as long as the said amendment is
made before the other party has served a
responsive pleading.
May the plaintiff amend his complaint as a
matter of right even after a motion to dismiss
has been served?
He may. This is because a motion to
dismiss is not a responsive pleading.

Note: Subject to certain exceptions, the long

standing rule is that summons by publication is not
a recognized mode of service for the purpose of
acquiring jurisdiction over the person of the
defendant.
Under the Rules, if at any time before judgment, a
person NOT a party to the action believes that he
has a legal interest in the matter in litigation in a
case in which he is not a party, he may, with leave
of court file a COMPLAINT-IN-INTERVENTION
in the action if he asserts a claim against one or all
of the parties.
Can there be an ORAL judgment?
There is no oral judgment under the Rules.
It has to be in writing personally and
directly prepared by the judge, stating
clearly the facts and the law on which it is
based, signed by him, and filed with the
clerk of court.
How shall the Rules of Court be construed?
The Rules of Court shall be liberally
construed in order to promote their
objective of securing a just, speedy and
inexpensive disposition of every action
and proceeding.
Are the procedural rules under the Rules of
Court considered laws?
No. However, since they are promulgated
by authority of law, they have the force
and effect of law if not in conflict with
positive law. The Rules are subordinate to
statute, and in case of conflict, the statute
will prevail.
Discuss the prospective effect of the Rules of
Court
The Rules of Court are not penal laws and
are not to be given retroactive effect and
are to govern cases brought after they take
effect, except to the extent that in the
opinion of the court their application
would not be feasible or would work
injustice, in which event the former rule
shall apply.

Notes: The Rules of Court apply to civil actions,

criminal actions and special proceedings. The
Rules shall also apply in all courts, except as
otherwise provided by the Supreme Court.
The Rules of Court does not apply to the ff
actions or proceedings:
a.
b.
c.
d.
e.

Election cases;
Land registration cases;
Cadastral cases;
Naturalization cases; and
Insolvency proceedings except by analogy
or in a suppletory character and whenever
practicable and convenient.

Discuss the principle of judicial hierarchy

The judicial system follows a ladderized
scheme which in essence requires that
lower courts initially decide on a case
before it is considered by a higher court.
Specifically, under a judicial policy
recognizing the hierarchy of courts, a
higher court will not entertain direct resort
to it unless the redress cannot be obtained
in the appropriate courts.
What is the doctrine of non-interference or
doctrine of judicial stability?
This principle holds that courts of equal
and coordinate jurisdiction cannot
interfere with each others orders.
Constitutional vs Statutory court
A constitutional court is one created by a
direct Constitutional provision. Example
of this court is the Supreme Court of the
Philippines. A statutory court, on the other
hand, is one created by a law other than
the Constitution. All courts in the
Philippines except the Supreme Court are
statutory courts. They have been created
by statutory enactments.
Civil vs Criminal courts
Civil courts are those which determine
controversies between private persons.
Criminal courts are those which adjudicate

offenses alleged to have been committed

against the state.
Court of general and special jurisdiction
Courts of general jurisdiction are those
with competence to decide on their own
jurisdiction and to take cognizance of all
cases, civil and criminal, of a particular
nature. Courts of special (limited)
jurisdiction are those which have only a
special jurisdiction for a particular
purpose or are clothed with special powers
for the performance of specified duties
beyond which they have no authority of
any kind.
A court may also be considered general
if it has the competence to exercise
jurisdiction over cases not falling within
the jurisdiction of any court, tribunal,
person or body exercising judicial or
quasi-judicial functions. It is in this
context that the RTC is considered a court
of general jurisdiction.
Courts of original and appellate jurisdiction
A court is one with original jurisdiction
when actions or proceedings are originally
filed with it. A court is one with appellate
jurisdiction when it has the power of
review over the decisions or orders of a
lower court.
Metropolitan Trial Court, Municipal
Circuit Trial Court and Municipal Trial
Courts are courts of original jurisdiction.
These courts have no appellate
jurisdiction. The RTC is likewise a court
of original jurisdiction with respect to
cases originally filed with it but it is also a
court of appellate jurisdiction with respect
to cases decided by the Municipal Trial
Courts within its territorial jurisdiction.
The RTC is also a court of original
jurisdiction with respect to a petition for a
writ of amparo.
The CA is primarily a court of appellate
jurisdiction with competence to review
judgments of the RTC and specified quasijudical agencies. It is also a court of
original jurisdiction with respect to cases

filed before it involving issuance of writs

of certiorari, mandamus, quo warranto,
habeas corpus, and prohibition. It is also a
court of original jurisdiction (and
exclusive) over actions for annulment of
judgments of RTC.
The SC is also fundamentally a court of
appellate jurisdiction but it may also be a
court of original jurisdiction over cases
affecting ambassadors, public ministers
and consuls, and in cases involving
petitions for certiorari, prohibition and
mandamus. It may also be a court of
original jurisdiction in a petition for a writ
of amparo.
Original
and
distinguished:

exclusive

jurisdiction

Original jurisdiction means jurisdiction to

take cognizance of a case at its inception,
try it and pass judgment upon the law and
facts, while exclusive jurisdiction
precludes the idea of co-existence and
refers to jurisdiction possessed to the
exclusion of others.
Define concurrent jurisdiction
This type of jurisdiction also called
coordinate jurisdiction is the power of
different courts to take cognizance of the
same subject matter.
What is the primordial aim of the Katarungang
Pambarangay Law?
Its primordial aim is to reduce the number
of court litigations and prevent the
deterioration of the quality of justice
which has been brought about by the
indiscriminate filing of cases in the courts.
The parties must appear in person in all
Katarungang Pambarangay proceedings
without the assistance of counsel or
representatives, except for minors and
incompetents who may be assisted by
their next-of-kin who are not lawyers.

Pleadings are the written statements of the

respective claims and defenses of the
parties submitted to the court for
appropriate judgment. Under the Rules,
pleadings cannot be oral because they are
clearly described as written statements.
What are the pleadings allowed by the Rules of
Court?
a.
b.
c.
d.
e.
f.
g.

Complaint
Answer
Counterclaim
Cross-claim
Third (fourth, etc.) party complaint
Complaint-in-intervention
Reply

Note: Under the Rules on Summary Procedure, the

only pleadings allowed to be filed are complaint,
compulsory counterclaim, cross-claim pleaded in
the answer and answers thereto.
It is important to remember that the court may
grant a relief not prayed for as long as the relief is
warranted by the allegations of the complaint and
the proof.
What is the effect of an unsigned pleading?
An unsigned pleading produces no legal
effect. The court however, is authorized to
allow the pleader to correct the deficiency
if the pleader shows to the satisfaction of
the court, that the failure to sign the
pleading was due to mere inadvertence
and not to delay the proceedings.
Is verification of a pleading needed?
The pleading need not be under oath. This
means that a pleading need not be
verified. This is the general rule. A
pleading will be verified only when a
verification is required by a law or by a
rule.
How do you determine the existence of forum
shopping?

Discuss the nature of pleadings

 The test is to see whether in two or more

cases pending, there is identity of parties,
identity of rights or causes of action and
identity of reliefs sought.
Forum shopping exists when the elements
of litis pendentia are present or where a
final judgment in one case will amount to
res judicata in another.
Who executes the certification against forum
shopping?
It is the plaintiff or principal party who
executes the certification under oath. The
certification must be executed by the
party, not the attorney. It must be signed
by the party himself and cannot be signed
by his counsels.
A certification signed by a counsel is a
defective certification and is a valid cause
for dismissal.
What is the effect of non-compliance with the
rule on certification against forum shopping?
The dismissal for failure to comply with
the certification requirement is not to be
done by the court motu proprio. The rule
requires that the dismissal be upon motion
and after hearing.
Compliance with the certification against
forum shopping is separate from, and
independent of, the avoidance of forum
shopping itself.
There is no appeal from an order of
dismissal for failure to comply with the
required certification against forum
shopping. This is because an order
dismissing an action without prejudice is
not appealable.
Note: Service upon the parties counsels of record
is tantamount to service upon the parties
themselves, but service upon the parties
themselves is not considered service upon their
lawyers.
When does service by mail deemed complete?
Service by ordinary mail is complete upon
the expiration of 10 days after mailing,
unless the court otherwise provides.

Service by registered mail is complete

upon actual receipt by the addressee, or
after 5 days from the date he received the
first notice of the postmaster, whichever is
earlier.
Discus substituted service
This mode is availed of only when there is
failure to effect service personally or by
mail. This failure occurs when the office
and residence of the party or counsel is
unknown.
Substituted service is effected by
delivering the copy to the clerk of court,
with proof of failure of both personal
service and service by mail.
Note: An ex parte motion is one which does not
require that the parties be heard and which the
court may act upon without prejudicing the rights
of the other party.
What are the elements of a cause of action?
a. A right in favor of the plaintiff by
whatever means and under whatever law it
arises or is created;
b. An obligation on the part of the named
defendant to respect or not to violate such
rights; and
c. Act or omission on the part of such
defendant in violation of the right of the
plaintiff constituting a breach of the
obligation of the defendant to the plaintiff
for which the latter may maintain an
action for recovery of damages or other
appropriate relief.
Note: The failure to prove the negligence of the
defendant does not in any way indicate an
insufficiency of evidence. In a suit based on breach
of contract, especially a breach of contract of
carriage against a common carrier, the negligence
of the defendant is presumed. Besides, negligence
is not an element of a cause of action based on
breach of contract.
How do you determine the nature of the cause
of action?

 The nature of the cause of action is

determined by the facts alleged in the
complaint and not by the prayer therein.
How do you state the cause of action?
The pleading asserting the claim or the
cause of action must contain only the
ultimate facts. These facts must be stated
in a plain, concise, methodical and logical
form. Evidentiary facts must be omitted.
What are ultimate facts?
The ultimate facts refer to the essential
facts of the claim. A fact is essential if it
cannot be stricken out without leaving the
statement of the cause of action
insufficient.
What is an actionable document?
It is referred to as the document relied
upon by either the plaintiff and the
defendant. For example, in an action for
collection of a sum of money, the
actionable document would be the
promissory note executed by the
defendant in favor of the plaintiff. In an
action for foreclosure of mortgage, the
actionable document would be the deed of
mortgage.
How do you contest an actionable document?

allegations
pleadings.

of

the

adverse

partys

Note: Where the claim is based on an actionable

document like a promissory note, the genuineness
and due execution of the note are deemed admitted
where such matters are not specifically denied
under oath.
What is a splitting a single cause of action?
Splitting a single cause of action is the act
of instituting two or more suits for the
same cause of action.
Litis pendencia vs Res judicata
If the first action is pending when the
second action is filed, the latter may be
dismissed based on litis pendencia (ie,
there is another action pending between
the same parties for the same cause). If a
final judgment had been rendered in the
first action when the second action is
filed, the latter may be dismissed based on
res judicata, (ie, that the cause of action is
barred by a prior judgment).
What is joinder of causes of action?
Joinder of causes of action is the assertion
of as many causes of action as a party may
have against another in one pleading
alone. It is the process of uniting two or
more demands or rights of action in one
action.

The party who has no intent of admitting

the genuineness and due execution of the
document must contest the same by
specifically denying the genuineness and
due execution of the document under oath;
and setting forth what he claims to be the
facts.

Note: Under the Rules, 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. This situation follows the socalled totality test for the purpose of jurisdiction.

Is it proper for the court to render judgment

without trial?

The joinder shall not include special civil actions

or actions governed by special rules.

When no other issue exists in the case, the

court may render a judgment without a
trial through a judgment of the pleadings.
This judgment is rendered by the court,
where the answer fails to tender an issue
or otherwise admits the material

Where a party sues two or more defendants, it is

necessary for the causes of action to arise out of
the same transaction or series of transactions and
that there should be a common question of law or
fact.

Question: If A and B both sign a promissory note

for 1 million and bind themselves to be jointly
liable for the debt in favor of C, there are two
distinct obligations within the same promissory
note, namely: a. the obligation of A to C for
500,000; and b. the obligation of B to C for
500,000.
Under Article 1208 of the Civil Code of
the Philippines, unless otherwise indicated
by the obligation or by law, the debt or
credit shall be presumed divided into as
many equal shares as there are creditors or
debtors. In other words, the obligation
under the promissory note in the
illustration is joint, not solidary.
Question: May C however, join A and B under one
complaint and thereby join the causes of action
against them?
Yes. The debt of A and the debt of B arose
out of the same transaction, i.e., the same
promissory note and would necessarily
give rise to a common question of law or
fact.
Note: The claim for attorneys fees and litigation
expenses and costs are not included in determining
the jurisdictional amount.
Question: A secured two loans from B, one for
500,000 and the other for 1,000,000 payable on
different dates. Both have fallen due. Is B obliged
to file only one complaint against A for the
recovery of both loans?
B is not obliged to file only one
complaint. A joinder of causes of action is
not compulsory but merely permissive. He
may, if he desires, file two actions for the
recovery of each loan.
Note: When the joinder refers to joinder of
indispensable parties, the joinder is compulsory.
What is a real action?
To be a real action, it is not enough that
the action must deal with real property. It
is important that the matter in litigation
must also involve any of the ff issues: title

to, ownership, possession, partition,

foreclosure of mortgage or any interest in
real property.
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.
May summon by publication enable the court to
acquire jurisdiction over the person of the
defendant?
Summons by publication, as far as
existing jurisprudence is concerned, will
not enable the court to acquire jurisdiction
over the person of the defendant. This
jurisprudential rule is however, subject to
the exceptions:
a.

If the resident defendant is

temporarily out of the country, he may
be served by publication with leave of
court.
b. If the identity of the defendant is
unknown or whose whereabouts are
unknown, service may, with leave of
court, be effected upon him by
publication in a newspaper of general
circulation.
In action in personam, is jurisdiction over the
person of the defendant required? How about in
a proceeding in rem or quasi in rem?
In an action in personam, jurisdiction over
the person of the defendant is necessary
for the court to validly try and decide the
case. In a proceeding in rem or quasi in
rem, jurisdiction over the person of the
defendant is not a pre requisite in order to
confer jurisdiction on the court provided
that the court acquires jurisdiction over
the res.
Jurisdiction over the res is acquired either
by the seizure of the property under legal
process, whereby it is brought into actual
custody of the law; or as a result of the
institution of legal proceedings, in which
the power of the court is recognized and
made effective.

Question: American tourist left the PHL with

hotel bills. 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 and judgment by default was rendered
against him. Is he bound by the judgment?
He is not bound by the judgment because
the same was rendered without
jurisdiction over his person. The summons
by publication did not enable the court to
acquire jurisdiction over him. Here, the
action is one in personam.
Note: In case the defendant does not reside and is
not found in the PHL, the remedy of the plaintiff,
in order for the court to acquire jurisdiction to try
the case is to covert the action into a proceeding in
rem or quasi in rem by attaching the property of
the defendant.
Define jurisdiction
Jurisdiction is the power and authority of
the court to hear, try and decide a case.
Jurisdiction is a matter of substantive law
because it is conferred by law.
Error of judgment vs Error of jurisdiction
An error of judgment is one which the
court may commit in the exercise of its
jurisdiction. Errors of judgment, on the
other hand, include error of procedure or
mistakes in the courts findings.
Where the court has jurisdiction, is a wrong
decision void?
No, it is not. The judgment cannot be
considered a nullity, and cannot therefore,
be collaterally impeached. Such a
judgment is binding on the parties unless
it is reversed or annulled in a direct
proceeding. But if there is a total want of
jurisdiction in a court, its proceedings are
an absolute nullity, confer no right and
afford o protection but will be pronounced
void when collaterally attacked.
What about if a judgment is rendered without
jurisdiction?

Any
judgment
rendered
without
jurisdiction is a total nullity and may be
struck down at any time, even on appeal;
the only exception is when the party
raising the issue is barred by estoppel.
How is jurisdiction over the subject matter
determined?
It is a settled rule that jurisdiction over the
subject matter is determined by the
allegations of the complaint whether or
not the plaintiff is entitled to his claims
asserted therein.
Note: Where a complaint seeking for the payment
of 1 million is filed in the RTC, but after
considering the evidence presented, the amount
owing to the plaintiff is only 300,000, an amount
within the jurisdiction of the MTC if originally
filed, the RTC has authority to render judgment on
the lesser amount.
The above rule does not apply in the reverse.
Where a complaint for the recovery of a loan of
300,000 is filed in the MTC, but after
consideration of the evidence, it is shown that the
amount recoverable is 1 million, an amount within
the jurisdiction of the RTC, the MTC cannot
render judgment for 1 million for want of
jurisdiction.
What is the doctrine of primary jurisdiction?
Under the doctrine of primary jurisdiction,
courts will not resolve a controversy
involving a question which is within the
jurisdiction of an administrative tribunal,
especially where the question demands the
exercise
of
sound
administrative
discretion
requiring
the
special
knowledge, experience and services of the
administrative tribunal to determine
technical and intricate matters of fact.
What is the doctrine of continuity
jurisdiction (adherence of jurisdiction)

of

Jurisdiction is referred to as continuing in

view of the general principle that once a
court has acquired jurisdiction, that
jurisdiction continues until the court has

done all that it can do in the exercise of

that jurisdiction.
Law which govern jurisdiction
Jurisdiction being a matter of substantive
law, the established rule is that the statute
in force at the time of the commencement
of the action determines the jurisdiction of
the court.
Note: The general rule remains: a courts lack of
jurisdiction may be raised at any stage of the
proceedings even on appeal.
How is jurisdiction over the plaintiff acquired?
How about that of the defendant?
Jurisdiction over the plaintiff is acquired
by his filing of the complaint in court.
Jurisdiction over the person of the
defendant, on the other hand, is obtained
either by a valid service of summons upon
him or by his voluntary submission to the
courts authority.
Question of law vs Question of fact
There is question of law when the doubt
or difference arises as to what the law is
on certain set of facts. There is a question
of fact when the doubt or difference arises
as to the truth or falsehood of the alleged
facts.
When does an issue arise even if not raised in
the pleadings?
This occurs when the parties try an issue
with their consent. Under the Rules of
Court, when issues not raised in the
pleadings are tried with the express or
implied consent of the parties, they shall
be treated in all respects as if they had
been raised in the pleadings.
Note: The MTC exercises exclusive original
jurisdiction over civil actions where the demand
does not exceed 300,000 (outside Metro Manila) or
not more than 400,000 (Metro Manila).

The jurisdictional amount does not include the

interest, damages of whatever kind, attorneys fees,
litigation expenses and costs.
What is the totality rule?
Under this rule, where there are several
claims or causes of action between the
same or different parties, embodied in the
same complaint, the amount of the
demand shall be the totality of the claims
in all the causes of action, irrespective of
whether the causes of action arose out of
the same or different transactions.
Is the RTC a court of general jurisdiction?
The RTC is a court of general jurisdiction
because all cases, the jurisdiction of which
is not specifically provided by law to be
within the jurisdiction of any other court
falls within the jurisdiction of the RTC.
Can a trial court motu proprio dismiss a case on
the ground of improper venue?
No, the trial court cannot motu proprio
dismiss a case on the ground of improper
venue. The court may dismiss an action
motu proprio in case of lack of jurisdiction
over the subject matter, litis pendencia, res
judicata and prescription, but not for
improper venue.
How do you determine venue?
In order to know the venue of a particular
action, the initial step is to determine 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 defendant
at the option of the plaintiff. If the
defendant is a non-resident, the venue is
the residence of the plaintiff or where the
non-resident defendant may be found, at
the election of the plaintiff.
If the action is real, the venue is local
hence, the venue is the place where the
real property involved, or any portion
thereof, is situated. However, when the
defendant is a non-resident and is not
found in the PHL, 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 or any
portion thereof is situated.
If a motion to dismiss based on improper venue
is denied, may the defendant appeal?
He cannot. An order denying a motion to
dismiss is merely interlocutory. It is final.
Venue vs Jurisdiction
Venue is the place where the case is to be
heard or tried; jurisdiction is the authority
to hear and determine a case;
Venue is a matter of procedural law;
jurisdiction is substantive;
Venue establishes a relation between
plaintiff and defendant, or petitioner and
respondent; jurisdiction establishes a
relation between the court and the subject
matter;
Venue may be conferred by the act or
agreement of the parties; jurisdiction is
fixed by law and cannot be conferred by
agreement of the parties;
Venue is not a ground for a motu proprio
dismissal while lack of jurisdiction over
the subject matter is a ground for a motu
proprio dismissal.
Who are indispensable parties?
An indispensable party is a real party-ininterest without whom no final
determination can be had of an action.
Without the presence of this party, the
judgment of a court cannot attain real
finality.
What is the effect of death of a party on the
attorney-client relationship?
The death of the client extinguishes the
attorney-client relationship and divests a
counsel of his authority to represent the
client. Accordingly, a dead client has no
personality and cannot be represented by
an attorney.

What is the duty of the counsel upon the death

of his client?
Whenever a party to a pending action dies,
it is the duty of the counsel of the
deceased party to inform the court of such
fact within 30 days after such death.
Is service of summons required to effect a
substitution in case of death of the client?
Service of summons is not required to
effect a substitution. Instead of service of
summons the court shall order the legal
representative of the deceased to appear
and be substituted for the said deceased
within 30 days from notice.
Derivative suit vs Class suit
A derivative suit is a corporate law
concept which is filed by a stockholder in
behalf of the corporation to protect the
interests of the latter and is asserted
because of the failure of the board of
directors, deliberate or otherwise to act in
protection of the corporation.
A class suit is a procedural device availed
of by persons having a common or general
interest in a subject matter and are so
numerous that it would be practical to join
all of them.
When is summon required after the complaint
is amended?
It is not the change of a cause of action
that gives rise to the need to serve another
summons for the amended complaint but
rather the acquisition of jurisdiction over
the persons of the defendant. If the trial
court has not yet acquired jurisdiction
over them, a new summons for the
amended complaint is required.
What is a supplemental pleading?
A supplemental pleading only serves to
bolster or add something to the primary
pleading. A supplemental pleading exists
side by side with the original. It does not
replace that which it supplements.

When is a dismissal made by the filing of a

notice of dismissal without prejudice?
A dismissal made by the filing of a notice
of dismissal is a dismissal without
prejudice, i.e., the complaint can be
refiled. This is the general rule. The
dismissal will however, be one with
prejudice in any of the ff situations:
a. The notice of dismissal by the plaintiff
provides that the dismissal is with
prejudice; or
b. The plaintiff has previously dismissed the
same case in a court of competent
jurisdiction.
Note: The dismissal of the complaint shall be
without prejudice to the prosecution in the same or
separate action of a counterclaim pleaded in the
answer.
In case of service of summons without copy of the
complaint, the SC while admitting that the service
of summons was defective, treated the defect as
having been waived by the defendants failure to
seasonably challenge the trial courts jurisdiction
over her person. She should have appeared to
challenge the jurisdiction of the court.
To whom may a service of summon be made in
case the defendant is a private domestic
juridical entity?
President, managing partner, general
manager, corporate secretary, treasurer OR
in-house counsel.
How should service be made in case the
defendant is a public corporation?
When the defendant is the Republic of the
Philippines, service may be effected on
the Solicitor General.
When the defendant is a province, city or
municipality, service may be effected on
its executive head, or on such other officer
or officers as the law or the court may
direct
How should service be made upon a defendant
whose identity or whereabouts are unknown?

If the identity or whereabouts are

unknown despite a diligent inquiry,
service may, with PRIOR LEAVE of
court, be effected upon the defendant, by
publication in a newspaper of general
circulation.
When is extraterritorial service of summons
made?
Extraterritorial service of summons
applies when the ff requisites concur: the
defendant is a non-resident; he is not
found in the Philippines; and the action
against him is either in rem or quasi in
rem.
Note: By its nature, when 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 the defendant.
What is the function of a bill of particulars?
A function of a bill of particulars is to
clarify the allegations in the pleading so
an adverse party may be informed with
certainty of the exact character of a cause
of action or a defense.
The bill of particulars submitted becomes
part of the pleading for which it is
intended.
What are the elements of a res judicata?
a. The former damage must be final;
b. The court which rendered it had
jurisdiction over the subject matter and the
parties;
c. The judgment must be on the merits;
d. There must be between the first and the
second actions, identity of parties, subject
matter and causes of action.
Note: Res judicata is a doctrine of civil law and
thus, has no bearing on criminal proceedings.
When must a specific denial be coupled with an
oath?
a. A denial of an actionable document;
b. A denial of allegations of usury in a
complaint to recover usurious interest.

10

If the adverse party desires to deny the

genuineness and the due execution of the
document, what must he do?
a.

To specifically deny the document, and to

set forth what he claims to be facts; and
b. To deny the document under oath.
If he does not specifically deny the document
under oath, he is deemed to have admitted the
genuineness and due execution of the promissory
note.
What is the nature of a counterclaim?
Counterclaim is any claim, which a
defending party may have against an
opposing party. It partakes of a complaint
by the defendant against the plaintiff. A
counterclaim is a pleading.
A counterclaim is described by the Rules
of Court as any claim.
When the defendant files a counterclaim
against the plaintiff, the defendant
becomes the plaintiff in the counterclaim
while the original plaintiff becomes the
defendant.

What are the elements in order for a

counterclaim to be compulsory?
a. It arises out of, or is necessarily connected
with the transaction or occurrence which
is the subject matter of the opposing
partys claim;
b. It does not require for its adjudication the
presence of third parties over whom the
court cannot acquire jurisdiction; and
c. The court has jurisdiction to entertain both
as to the amount and nature.
What is a permissive counterclaim?
The most treated feature of permissive
counterclaim is its absence of a logical
connection with the subject matter of the
complaint, i.e., it does not arise out of, or
is not connected with the plaintiffs cause
of action.
Compulsory
counterclaim

counterclaim

vs

Permissive

A compulsory counterclaim which a party

has at the time the answer is filed shall be
contained in the answer because a
compulsory counterclaim not set up shall
be barred; a permissive counterclaim is
not subject to above rule.
A compulsory counterclaim is not an
initiatory
pleading;
a
permissive
counterclaim is considered an initiatory
pleading.
A permissive counterclaim should be
accompanied by a certification against
forum
shopping;
a
compulsory
counterclaim does not require the
certificates mentioned.
A permissive counterclaim must be
answered by the party against whom it is
interposed otherwise, he may be declared
in default as to the counterclaim; failure to
answer a compulsory counterclaim is not a
cause for a default declaration.
The docket and other lawful fees should
be paid for a permissive counterclaim;
traditional jurisprudence has consistently
held that docket fees are not paid for a
compulsory counterclaim.
Distinctions between a counterclaim and a
cross-claim
A cross-claim is a claim against a coparty; a counterclaim is a claim against an
opposing party; and
A cross-claim must arise from the
transaction or occurrence that is the
subject matter of the original complaint or
counterclaim. A counterclaim may or may
not arise out of the subject matter of the
complaint.
State the period to answer a cross-claim?
A cross-claim must be answered within 10
days from service.
Nature of intervention
Intervention is a legal proceeding by
which a person who is not a party to the
action is permitted by the court to become
a party by intervening in a pending action

11

after meeting the conditions and

requirements set by the Rules of Court.
This third person who intervenes is one
who is not originally impleaded in the
action.
Rules for intervention
The ff requisites must be complied with
before a non-party may intervene in a
pending action:
a.

There must be a motion for intervention

filed before rendition of judgment by the
trial court. A motion is necessary because
leave of court is required before a person
may be allowed to intervene.
b. He movant must show in his motion that
he has a legal interest in the matter in
litigation, the success of either of the
parties in the action, or against both
parties.
That the movant is so situated as to be
adversely affected by a distribution or
other disposition of property in the
custody of the court or of an officer
thereof.
That the intervention must not unduly
delay or prejudice the adjudication of the
rights of the original parties and that the
intervenors rights may not be fully
protected in a separate proceeding.
When is the time for intervention?
The motion to intervene may be filed at
any time before rendition of judgment by
the trial court.
When is filing a reply advisable?
When the defense in the answer is based
upon a written instrument or document,
said instrument is considered an
actionable document. Hence, the plaintiff
has to file a reply under oath if he desires
to deny specifically the genuineness and
due execution of the actionable document
if he wants to avoid an admission of such
matters.

Under the Rules, the genuineness and due

execution of the instrument shall be
deemed admitted unless the adverse party,
under oath, specifically denies them, and
sets forth what he claims to be facts.
What are the requisites before a party may be
declared in default?
a. There must be a motion to declare the
defending party in default filed by the
claiming party; and
b. Summons has been validly and previously
served upon him;
c. The defending party must have failed to
file his answer within the reglementary
period or within the period fixed by the
court;
d. There must be proof of the failure to file
the answer;
e. The defending party must be notified of
the motion to declare him in default; and
f. There must be a hearing of the motion to
declare the defendant in default.
Under the Rules, when a party is declared in
default, the court may do either what?
a. to proceed to render judgment, or
b. to require the plaintiff to present his
evidence ex parte
Note: The choice of which action to take is a
matter of judicial discretion.
What are the remedies of a defending party
declared in default?
a.

Remedy after notice of order and before

judgment
The defendant must file a motion under
oath to set aside the order of default and
show that the failure to answer was due to
fraud, accident, mistake, or excusable
negligence, and that the defendant has a
meritorious defense, i.e., there must be an
affidavit of merit.
b. Remedy after judgment and before
judgment becomes final and executory
The defendant may file a motion for new
trial under Rule 37. He may also appeal

12

from the judgment as being contrary to the

evidence or the law.
c. Remedy after the judgment becomes final
and executory
The defendant may file a petition for relief
from judgment under Rule 38.
Note: Under the Rules, when there is no genuine
issue as to any material fact, other than for
instance, the amount of damages, and the moving
party is entitled to a judgment as a matter of law, a
summary judgment may be rendered.
Distinctions between a judgment
pleadings and a summary judgment

on the

a. In a judgment on the pleadings, there is an

absence of a factual issue in the case
because the answer tenders no issue at all.
A summary judgment, on the other hand,
involves an issue, but the issue is not
genuine.
b. A motion for judgment on the pleadings is
filed by a claiming party like a plaintiff or
a counterclaimant. A motion for summary
judgment may be filed either by the
claiming or the defending party.
c. A judgment on the pleadings is based on
the pleadings alone. A summary judgment
is based on the pleadings, affidavits,
depositions and admissions.
Is a pre-trial mandatory in civil cases?
YES
How is a pre-trial called?
In a civil case, it is not the court which
initiates the setting of the case for a pretrial. It is set at the instance of the
plaintiff. Under the Rules, it shall be the
duty of the plaintiff, not of the defendant,
to promptly file a motion to set the case
for pre-trial. This motion is an ex parte
motion. This means that the motion need
not be the subject of a hearing.
The ex parte motion to set the case for
pre-trial is to be made by the plaintiff after
the last pleading has been served and
filed.

What is the effect of failure to appear by the

plaintiff?
The failure of the plaintiff to appear shall
be cause for the dismissal of the action.
The dismissal shall be with prejudice
except when the court orders otherwise.
What is the effect of failure to appear by the
defendant?
The failure of the defendant to appear
shall be cause to allow the plaintiff to
present his evidence ex parte and for the
court to render judgment on the basis of
the evidence presented by the plaintiff.
Distinction as to pre-trial in civil cases and pretrial in criminal cases
The pre-trial in a civil case is set when the
plaintiff moves ex parte to set the case for
pre-trial. The pre-trial in a criminal case is
ordered by the court and no motion to set
the case for pre-trial is required from
either the prosecution or the defense.
What is the purpose of discovery?
The modes of discovery are designed to
serve as an additional device aside from a
pre-trial, to narrow and clarify the basic
issues between the parties, to ascertain the
facts relative to the issues and to enable
the parties to obtain the fullest possible
knowledge of the issues and facts before
civil trials and thus prevent the said trials
to be carried on in the dark.
It is intended to make certain that all
issued necessary to the disposition of a
case are properly raised.
What are the modes of discovery under the
Rules of Court?
a. Depositions pending action
b. Depositions before action or pending
appeal
c. Interrogatories to parties
d. Admission by adverse party
e. Production or inspection of documents
and things

13

f.

Physical and mental examination of

persons

When is leave of court required and not

required for taking a deposition pending
action?
Leave of court is not required after an
answer has been served but leave of court
is required before the service of an answer
but after jurisdiction has been acquired
over the defendant or over the property
subject of the action.
When is trial unnecessary?
a. Where the pleadings of the parties tender
no issue at all, a judgment on the
pleadings may be directed by the court;
b. Where from the pleadings, affidavits,
depositions and other papers, there is
actually no genuine issue, the court may
render a summary judgment;
c. Where the parties have entered into a
compromise or an amicable settlement
either during the pre-trial or while the trial
is in progress;
d. Where the complaint has been dismissed
with prejudice;
e. Where the case falls under the operation
of the Rules on Summary Procedure;
f. Where, the parties 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
evidence.

order granting the motion is reversed, the

defendant loses his right to present
evidence.
Demurrer to evidence in civil case vs Demurrer
to evidence in a criminal case
a. In a civil case, leave of court is not
required before filing a demurrer. In a
criminal case, a demurrer is filed with or
without leave of court.
b. In a civil case, if the demurrer is granted,
the order of dismissal is appealable. In a
criminal case, the order of dismissal is not
appealable because of the constitutional
policy against double jeopardy.
c. In a civil case, if the demurrer is denied,
the defendant may proceed to present his
evidence. In a criminal case, the accused
may adduce his evidence only if the
demurrer is filed with leave of court. He
cannot present his evidence if he filed the
demurrer without leave of court.
What if there is conflict between the dispositive
portion and the body of the decision?
The general rule is that where there is a
conflict between the dispositive portion or
fallo of the decision and the body of the
decision, the fallo controls. This rule rests
on the theory that the fallo is the final
order while the opinion in the body is
merely a statement ordering nothing
(Poland Industrial Limited vs National
Development Company).

What is the effect of denial of the demurrer to

evidence?

What is the period within which to render a

decision?

If the demurrer is denied, the defendant

shall have the right to present his
evidence. This means that the denial of the
demurrer to evidence does not deprive the
defendant to adduce evidence in his
behalf.

All cases filed must be decided or

resolved by the Supreme Court within 24
months from the date of their submission
for decision, and unless reduced by the
Supreme Court, within 12 months for all
lower collegiate courts and 3 months for
all other lower courts.

What is the effect of granting of the demurrer

to evidence?
If the demurrer is granted, the case shall
be dismissed. However, if on appeal the

When is the date of the entry of judgment?

The date of the entry of judgment is the
date when the judgment becomes final and

14

executory regardless of the date when the

physical act of entry was done.
What are the available remedies to the
aggrieved party?
a. Before a judgment becomes final and
executory, the aggrieved or losing party
may avail of the ff remedies:
1. Motion for reconsideration;
2. Motion for new trial; and
3. Appeal
Note: A judgment becomes final and executory
upon the expiration of the period to appeal
therefrom and no appeal has been perfected.
b. After the judgment becomes executory,
the losing party may avail of the ff.
1. Petition for relief from judgment;
2. Action to annul a judgment;
3. Certiorari; and
4. Collateral attack of a judgment.
What are the grounds for a motion for
reconsideration?
The motion for reconsideration must be in
writing, a written notice of which must be
served on the adverse party, and may be
anchored on any of the ff grounds:
a. That the damages awarded are
excessive;
b. That the evidence is insufficient to
justify the decision or final order; or
c. That the decision or final order is
contrary to law.
What is a pro forma motion?
A pro forma motion is one which does not
satisfy the requirements of the rules and
one which will be treated as a motion
intended to delay the proceedings.
In the cases where a motion for
reconsideration was held to be pro forma,
the motion was so held because it was a
second motion for reconsideration, or it
did not comply with the rule that the
motion must specify the findings and
conclusions alleged to be contrary to law
or not supported by the evidence, or it
failed to substantiate the alleged errors, or

it merely alleged that the decision in

question was contrary to law, or the
adverse party was not given notice
thereof.
Discuss the fresh period rule in case of denial of
the motion
If the motion is denied, the movant has a
fresh period of 15 days from receipt or
notice of the order denying or dismissing
the motion for reconsideration within
which to file a notice of appeal.
What is the remedy when a motion for
reconsideration is denied?
The remedy from an order denying a
motion for reconsideration is not to appeal
from the order of denial. The order is not
appealable. The remedy is to appeal from
the judgment or final order itself subject
of the motion for reconsideration.
What are the grounds for a motion for new
trial?
a. Fraud, accident, mistake or excusable
negligence which ordinary prudence could
not have guarded against and by reason of
which such aggrieved party has probably
been impaired in his rights; or
b. Newly discovered evidence, which he
could not, with reasonable diligence, have
discovered and produced at the trial, and
which if presented would probably alter
the result.
May a second motion for reconsideration be
allowed? How about a second motion for new
trial?
While a second motion for reconsideration
is not allowed, a second motion for new
trial is authorized by the Rules.
When is appeal made? Is an interlocutory order
appealable?
An appeal may be taken only from
judgements or final orders that completely
disposes of the case. An interlocutory

15

order is not appealable until after the

finality of the judgment on the merits.
How do you make an appeal?
The appeal is taken by filing a notice of
appeal with the court that rendered the
judgment or final order appealed from and
by serving a copy of the notice to the
adverse party. Thus, if the judgment was
rendered by the Metropolitan Trial Court,
the notice of appeal must be filed with
said court, not with the RTC.
Note: Within the period for taking an appeal, the
appellant shall pay to the clerk of court which
rendered the judgment or final order appealed
from, the full amount of the appellate court docket
fee.
The Court of Appeals has jurisdiction over orders,
directives and decisions of the Office of the
Ombudsman in administrative disciplinary cases
only. It cannot, therefore review the orders,
directives or decisions of the Office of the
Ombudsman in criminal or non-administrative
cases.
What are the remedies after a judgment has
become final and executory?
1. The 1997 Rules of Civil Procedure
provides the ff remedies for aggrieved
parties against a judgment that is already
final and executory, namely:
a. Petition for relief from judgment
under Rule 38; and
b. Petition for annulment of a judgment
under Rule 47.
2. In addition to the above, jurisprudence has
likewise recognized an additional relief
through a direct action of certiorari, and a
collateral attack of a judgment that is void
on its face.
What are the grounds for a petition for relief?
1. When a judgment or final order is entered
into, or any other proceeding is thereafter
taken against the petitioner in any court
through fraud, accident, mistake or
excusable negligence; or

2. When the petitioner has been prevented

from taking an appeal by fraud, accident,
mistake or excusable negligence.
What are the grounds for annulment of a
judgment?
a. Extrinsic fraud; and
b. Lack of jurisdiction.
Note: If based on extrinsic fraud, the action must
be filed within 4 years from its discovery. If based
on lack of jurisdiction, the action must be brought
before the action is barred by laches or estoppel.
Discuss Certiorari
It is also called as 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 in
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.
Direct attack vs Collateral attack
A direct attack of a judgment is made
through an action or proceeding the main
object of which is to annul, set aside or
enjoin the enforcement of such judgment
if not yet carried into effect; or if the
property has been disposed of, the
aggrieved party may sue for recovery.
A collateral attack is made when, in
another action to obtain a different relief,
an attack on the judgment is made as an
incident in said action. This is proper only
when the judgment, on its face, is null and
void, as where it is patent that the court
which rendered said judgment has no
jurisdiction.
Note: If there is a conflict between the dispositive
portion of the decision and the body thereof, the

16

dispositive portion controls irrespective of what

appears in the body.
What are the modes of execution of a
judgment?
a.

Execution by motion if the enforcement of

the judgment is sought within 5 years
from the date of its entry; and
b. Execution by independent action if the 5year period has elapsed and before it is
barred by the statute of limitations.
Prob: A, a resident of Dagupan City, secured a
favorable judgment in an ejectment case against X,
a resident of Quezon City, from the Metropolitan
Trial Court of Manila. The judgment entered on
June 15, 1991, had not been executed.
In July 1996, A decided to enforce the judgment of
the Metropolitan Trial Court of Manila. What is the
procedure to be followed by A in enforcing the
judgment?
A may file an action to revive the
judgment. Under the Rules, a judgment
may be executed by mere motion only
within 5 years from the entry of the
judgment. Since the 5-year period has
elapsed, an action to revive the judgment
is the proper remedy.
Define provisional remedies
Provisional remedies are temporary,
auxiliary, and ancillary remedies available
to a litigant for the protection and
preservation of his rights while the main
action is pending. They are writs and
processes which are not main actions and
they presuppose the existence of a
principal action.
What are the purpose of provisional remedies?
Provisional remedies are resorted to by litigants for
any of the ff reasons:
a.

To preserve or protect their rights or

interests while the main action is pending;
b. To secure the judgment;
c. To preserve the status quo; or

d. To preserve the subject matter of the

action.
What are the kinds of provisional remedies?
a.
b.
c.
d.
e.

Preliminary attachment
Preliminary injunction
Receivership
Replevin
Support pendent lite

What are the kinds of attachments?

a.

Preliminary attachment is one issued at

the commencement of the action or at
anytime before entry of the judgment as
security for the satisfaction of any
judgment that may be recovered in the
cases provided for by the Rules. Here, the
court takes custody of the property of the
party against whom the attachment is
directed.
b. Garnishment is a kind of attachment in
which the plaintiff seeks to subject either
the property of the defendant in the hands
of a third person called the garnishee, to
his claim or the money which said third
person owes the defendant. By means of
garnishment, the plaintiff reaches credit
belonging to the defendant and owing to
him from a third person who is a stranger
to the litigation.
c. Levy on execution it is the writ issued
by the court after judgment by which the
property of the judgment obligor is taken
into custody of the court before the sale of
the property on execution for the
satisfaction of a final judgment. It is a
preliminary step to the sale on execution
of the property of the judgment debtor.
What are the elements required by the Rule to
justify a preliminary attachment?
a.

There is a removal or disposal of the

property, and
b. The removal or disposal must be with
intent to defraud the creditor.
How to prevent the attachment of a property?
a.

By depositing with the court from which

the writ was issued an amount equal to the

17

value of the bond fixed by the court in the

order of attachment or an amount equal to
the value of the property to be attached,
exclusive of costs, or
b. By giving a counterbond executed to the
applicant, in an amount equal to the bond
posted by the latter to secure the
attachment or in an amount equal to the
value of the property to be attached,
exclusive of costs.
What is a preliminary injunction?
It is an ancillary or preventive remedy
where a court requires a person, a party or
even a court or tribunal either to refrain
(prohibitory) from or to perform
(mandatory) particular acts during the
pendency of the action. It is merely a
temporary remedy subject to the final
disposition of the principal action.
Prohibitory vs Mandatory injunction
a. Injunction is prohibitory when its purpose
is to prevent a person from the
performance of a particular act. It is
mandatory when its purpose is to require a
person to perform a particular act.
b. In prohibitory injunction, the act has not
yet been performed. In mandatory
injunction, the act has already been
performed and this act has violated the
rights of another.
c. In prohibitory injunction the status quo is
preserved. In mandatory injunction, the
status quo is restored and this refers to the
last peaceable, uncontested, status prior to
the controversy.
Prohibitory injunction vs Prohibition
Prohibitory injunction is a provisional
remedy that is directed to a litigant, not to
a tribunal and is issued to require said
party to refrain from a particular act.
Prohibition is a special civil action
seeking a judgment commanding a
tribunal, corporation, board or officer to
desist from further proceeding in the
action because it has no jurisdiction, is
acting in excess of jurisdiction or has

gravely abused its discretion amounting to

lack of jurisdiction.
Mandatory injunction vs Mandamus
Mandatory injunction is directed to a party
litigant, not to a tribunal and is issued to
require a party to perform an act to restore
the last peaceable uncontested status
preceding the controversy.
Mandamus is a special civil action seeking
a judgment commanding a tribunal, board,
officer or person to perform a ministerial
duty required to be performed by law.
Note: Preliminary injunction is granted at any
stage of the proceedings PRIOR to the judgment or
final order.
May a preliminary injunction be issued ex
parte?
NO. A writ of preliminary injunction
cannot be issued without a prior notice
and hearing. Under the Rules, No
preliminary injunction shall be granted
without hearing and prior notice to the
party or person sought to be enjoined. It
cannot be issued ex parte.
May a grant of a writ of preliminary injunction
be appealed?
An order granting a writ of preliminary
injunction is an interlocutory order, not a
final order. An interlocutory order does
not dispose of a case completely but
leaves something to be done. The grant of
the writ is therefore not appealable. The
special civil action of certiorari is
therefore, the correct remedy.
What is the purpose of a receivership?
The purpose of a receivership as a
provisional remedy is to protect and
preserve the rights of the parties during
the pendency of the main action, during
the pendency of an appeal or as an aid in
the execution of a judgment when the writ
of execution has been returned unsatisfied.
Replevin vs Support Pendente Lite

18

 Replevin may be a main action or a

provisional remedy. As a principal action,
its ultimate goal is to recover personal
property capable of manual delivery
wrongfully detained by a person.
Support pendent lite is an amount of
support provisionally fixed by the court in
favor of the person or persons entitled
thereto during the pendency of an action
for support. Here, the main actionis for
support and support pendent lite is the
provisional remedy.
Note: When the judgment finds that the person
giving support is not liable therefore, the court
shall order the recipient to make a restitution of
what has been received with legal interest from the
date of actual payment.
Should the recipient fail to do so, the person who
gave the support may file an action against the
person legally obliged to give such support.
Define interpleader
An interpleader is a special civil action
filed by a person against whom two
conflicting claims are made upon the same
subject matter and over which he claims
no interest, to compel the claimants to
interplead and to litigate their conflicting
claims among themselves.
Prob: LTA Inc. is the lessee of a building owned
by Mr. Tenorio paying rental of 10,000 a month.
The owner died on May 10, 1988 and since then,
LTA has not paid the monthly rentals, now
amounting to 40,000 because two women are both
claiming to be widows of Tenorio and are
demanding rental payments.
What legal action may LTAs counsel take before
what court and against whom to protect LTAs
interest?
LTAs counsel should file an action for
interpleader against the two women and
pray that the court resolve their conflicting
claims. The action should be filed in the
MTC because the subject of the action is
an amount within the jurisdiction of said
court.

What is a petition for certiorari under Rule 65?

A petition for certiorari under Rule 65 is a
special civil action. It is not a mode of
appeal. It is an original action independent
from the principal action which resulted in
the rendition of the judgment or order
complained of.
Note: Suffice it to say that a petition for certiorari
is not a remedy to correct errors of judgment.
Certiorari will issue only to correct errors of
jurisdiction.
Certiorari vs Appeal
a. The writ of certiorari is proper to correct
errors of jurisdiction committed by the
lower court, or grave abuse of discretion
which is tantamount to lack of
jurisdiction. Appeal, on the other hand, is
proper where the error is not one of
jurisdiction but an error of law or fact
which is a mistake of judgment.
b. An appeal when filed invokes the
appellate jurisdiction of the court; a
petition for certiorari invokes the original
jurisdiction of the court;
c. An appeal is filed within the period for
appeal (usually 15 days from notice of the
judgment or within 30 days where a
record on appeal is required); a petition
for certiorari is filed within 6 days from
notice of judgment order or resolution;
d. An appeal is a continuation of the original
case; a petition for certiorari is an original
and independent action;
e. The parties to an appeal are the original
parties to the case; a petition for certiorari
impleads the tribunal, court, board or
officer.
What are the essential requisites for a petition
for certiorari?
a. The petition is directed against a tribunal,
board or officer exercising judicial or
quasi-judicial functions;
b. That such tribunal, board or officer has
acted without or in excess of jurisdiction
or with grave abuse of discretion;

19

c.

There is neither appeal nor any plain,

speedy and adequate remedy in the
ordinary course of law for the purpose of
annulling or modifying the proceeding.

May a party resort to certiorari when appeal is

still available?
The general rule precludes the filing of a
petition for certiorari when appeal is still
available. It is however, implied from the
Rules that certiorari may be allowed when
it is shown that appeal does not appear to
be a plain, speedy and adequate remedy in
the ordinary course of law and will not
promptly relieve a party from the injurious
effects of the order complained of.
Distinctions between certiorari under Rule 45
and certiorari under Rule 65
a. Certiorari under Rule 45 although called a
petition for review on certiorari, is a mode
of appeal, while certiorari under Rule 65
is a special civil action that is an original
and independent action and not a mode of
appeal.
b. Certiorari under Rule 45 is but a
continuation of the appellate process over
the original case. Certiorari under Rule 65
is not a part of the appellate process but an
independent action.
c. Because it is a mode of appeal, certiorari
under Rule 45 seeks to review final
judgments or final orders while certiorari
under Rule 65 may be directed against an
interlocutory order or matters where no
appeal may be taken from.
d. Certiorari under Rule 45 as a rule, raises
only questions of law, while certiorari
under Rule 65 raises questions of
jurisdiction because a tribunal, board or
officer exercising judicial or quasi-judicial
functions has acted without jurisdiction or
in excess of jurisdiction or with grave
abuse of discretion amounting to lack of
jurisdiction.
What is the nature and purpose of prohibition
as a remedy?

Prohibition is an extraordinary writ

commanding a tribunal, corporation,
board or person, whether exercising
functions that are judicial, quasi-judicial
or ministerial, to desist from further
proceedings when said proceedings are
without or in excess of its jurisdiction, or
with grave abuse of its discretion, there
being no appeal or any other plain, speedy
and adequate remedy in the ordinary
course of law.
Prohibition distinguished from injunction
An injunction is directed against a party to
the action. Prohibition, on the other hand,
is directed to the court or tribunal
directing it to refrain from the
performance of acts which it has no
jurisdiction to perform.
Define quo warranto
Quo warranto literally means by what
authority and the object is to determine
the right of a person to the use or exercise
of a franchise or office and to oust the
holder from its enjoyment, if his claim is
not well-founded, or if he has forfeited his
right to enjoy the office.
What is a dragnet clause or blanket mortgage
clause?
A mortgage contract may have a provision
in which the mortgage is a security for
past, present and future indebtedness. This
clause is also known as a dragnet clause or
blanket mortgage clause.
The SC ruled that mortgages given to
secure future advancements are valid and
legal contracts (Prudential Bank vs
Alviar).
Forcible entry vs Unlawful detainer
In forcible entry, the possession of the
defendant is illegal from the very
beginning having deprived the actual
possessor of his possession by force,
intimidation, threat, strategy or stealth.

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 In unlawful detainer, the possession by the

defendant is legal in the beginning which
however, subsequently becomes illegal
because of the expiration or the
termination of the right to have
possession, by virtue of any contract,
express or implied.

What is the remedy of a person adjudged in

direct contempt?

A person adjudged in direct contempt may

not appeal therefrom. His remedy is a
petition for certiorari or prohibition
directed against the court which adjudged
him in direct contempt.

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