2) An action can be commenced by filing the complaint by registered mail.

It is the date
CIVIL PROCEDURE of the mailing that is considered as the date of filing, and not the date of the receipt
[LAGGUI REVIEWER] 3)
thereof by the clerk of court.
The amount of damages in the body of prayer of the pleading must enable the clerk of
TRANSCRIBED GALLY NOTES WITH RENE NOTES court to compute the docket fees required.
BY:RENE CALLANTA 4) The court may allow the payment of the deficient docket fee within a reasonable
period but not beyond the applicable prescriptive period.
RULE I
With respect to actions, we have retained the provisions of the old code. With
Q. When does an action deemed commenced?
respect to some subject matter under the old rule, a party plaintiff can file only one
complaint based on one single cause of action. He cannot split its cause of action.
A. An action is deemed commenced upon the filing of the complaint. This is the
And when he splits his cause of action, the subsequent actions maybe the subject of
provision of the old rule. But this old rule that an action is deemed commenced as
a motion to dismiss. This rule has been retained in the New Rules in Civil Procedure.
of the date the complaint is filed has been amended to include a provision which
envisions a case when the action is already filed and is amended to include an
Example: (Splitting of causes of action which have been retained)
additional defendant.
Note: Same parties
A is a resident of Sulu, B is of Batanes. There is a piece of land located in
Example:
Sorsogon. The causes of action of A against B are as follows:
The case was filed Dec.2, 1997 by A against B only. Under this rule, the
1) sum of money involving P200,000.00
action is
2) reindivicacion over the lot valued at P50,000.00
deemed commenced on Dec. 2, 1997 in so far as only A and B are concerned.
On .
Q. Can A file a complaint against B joining in one complaint the action for sum of
Dec 3,1997 A filed an amended complaint including now C.
money and the action for reinvidicacion (if it can, with what court and place)?
A.
Q. When is this action deemed commenced?
A. Insofar as A and B are concerned, the action is deemed commenced on Dec. 2,
Let us vary the facts, the claim for money is P201,000.00. The value of the
1997. But insofar as it concerns A and C, the action is deemed commenced on Dec.
property is P19,000.00
3, 1997 (as to C).
Q. Can A file only one complaint incorporating therein the sum of money of
Q. Why do we distinguish the date of commencement of an action in this situation
P201,000.00 and reindivicacion of lot valued at P19,000.00?
where the is an additional defendant?
A. Because we have the law on prescription.
A. Sec. 5 Rule 2(rules on joinder of causes of action )
At the time the case was filed on Dec. 1, 1997, the action against B may not
A party may in one pleading assert, in the alternatives or otherwise, as many
yet have prescribed. But when the complaint was amended on Dec. 3, 1997, the
causes of action as he may have against an opposing party, subject to the following
action of A against B and C may have already prescribed. That is why it is necessary
conditions:
to consider the situation like this when the action is being commenced with respect
a. the party joining the causes of action shall comply with the rules on
to an additional defendant.
joinder of parties;
b. the joinder shall not include special civil action or actions governed by
RENE NOTES:
1) An action is commenced by the filing of the complaint and the payment of the special rules;
requisite docket fees within the prescriptive period, this notwithstanding that c. where the causes of action are between the same parties but pertain to
summons was served on the defendant after the prescriptive period. different venue of jurisdictions, the joinder may be allowed in the RTC
provided one of the cases of action falls within the jurisdiction of said
court and the venue lies herein; and
 d. where the claims in all the causes of action are principally for recovery of
money the aggregate amount claimed shall be the test of jurisdiction.
The rule on joinder is as follows:
A party may join two or more causes of action which he has in his favor in
only one complaint. So if A has 10 causes of action against B, instead of A
filing 10 separate action against B, he may be allowed to file only one
complaint, and incorporating therein all the 10 causes of action.
Q. Supposing his causes of action pertain to different venues or jurisdiction where
will
A, the plaintiff, file his 10 causes of action embodied only one complaint?
A. The rule is, if these 10 causes of action pertain to different venues, the action
may
be filed in the appropriate RTC provided that the venue of the action lies
therein.
In the former example, the first action was the sum of money involving
P200,000.00 only and the second cause of action is reinvidicacion involving
P50,000.00.
Since A is not obliged to allege all causes of action in one complaint, he
may elect to file two separate actions: 1) A vs. B for sum of money
2) A vs. B for reindivicacion.
Q. If he were to file this action for sum of money only, in what court of what
place
may A file the complaint?
A. You apply Rule 4 venue
Since this is a personal action for sum of money, the venue could be the
residence of plaintiff A, or the residence of the defendant B at the election of
A.
So this case can be filed either in Sulu or Batanes.
Q. In what court in Sulu or in Batanes may this action of A be filed?
A. Considering the amount which is only P200,000.00, this is within the
jurisdiction of
MTC. So this case can be filed either in the MTC of Sulu or in the MTC of
Batanes.
Q. If A were to file an action for reindivicacion, over this lot located is Sorsogon,
in
what place should A file the case?
A. We apply again Rule 4 Venue and that would be Sorsogon.
Q. In what court in Sorsogon should the action be filed?
A. Considering the value P50,000.00, this action should be filed only in RTC of
Sorsogon.
Let us assume however that A elected to file only one complaint involving
these sum of money of P200,000.00 and this property involving P500,000.00. The
court that has the jurisdiction over the sum of money of P200,000.00 is the MTC.
The court that has the jurisdiction over reindivicacion is the RTC of Sorsogon.
Q. Where can these two actions be filed?
A. Only in the RTC of Sorsogon. It cannot be filed in Sulu or Batanes. It can be
filed
only in Sorsogon.
Let us get the reverse
The value of sum of money is P200,000.00 and so this is within the jurisdiction of
the RTC. The value of the property here is P19,000.00, this is within the jurisdiction
of the MTC.
Q. Can you now join these two?
A. Yes, in the RTC of Sorsogon. Not in Sulu or Batanes, but in the RTC of
Sorsogon.
Example:
A resident of Sulu, sued B a resident of Batanes, in only one complaint
alleging therein these two causes of action:
1. For recovery of P200,001.00 sum of money,
2. For forcible entry over a piece of land located in Sorsogon valued at
P19,999.99.
Q. Can A join only in one complaint on these two (2) causes of action?
A. These two cannot be joined because one is an ordinary civil action (sum of
money) and the other is a special civil action (forcible entry). This is one of the
limitation of joinder of causes of action. A special civil action cannot be joined with
another action which is ordinary.
Example: A is a resident of Sulu, B of Batanes, C of Zamboanga. A loaned 1M to B,
and the loan is evidenced by a promissory note which B signed. The promissory
note matured without B paying the money notwithstanding. A has another cause of
action against B and C for another 1M pesos, a promissory note was also executed But if all these causes of action are joined in only one complaint, the totality
and signed by B and C. The promissory note also matured but they did not pay. or the language of the rule, the aggregate, of the amount furnish the jurisdictional
test. So, since the amount is P270,000.00, this is an action triable by the RTC. So
Q. Can A file only one complaint against both B and C incorporating therein these you file the action not in the MTC but in the RTC.
two
causes of action? (The action against B for 1M pesos and another action RENE NOTES
against B 1) In case the obligation is by installments, each installment constitute a cause of action
HOWEVER, if at the time of bringing of the suit, several installments are already due, all must be
and C for P1M)
included otherwise, others not included will be barred.
A. No, A cannot file only one complaint against B and C, otherwise, A will violate
one Before April 9, 1999, the jurisdiction of the MTC was limited to P100,000.00
of the limitations (Sec. 5 (a)) provided for in joinder of Causes of Action under and the RTCs in the amount in excess of P100,000.00. So under the old rule, before
Rule 2 Section 5. April 9, 1999, all claims (money claims) not exceeding P100,000.00 was triable by
If A is permitted to do so, it will be a violation of the provision on Rules on the MTC. All claims exceeding P100,000.00 were triable by the RTC. This is the
Joinder of Parties under Rule 3 Sec. 6. provinces.
C has nothing to do with the first promissory note executed by B. C has no Under the old rules, where the claim was for the money and the parties
interest on the first cause of action of A against B alone. thereto was the residents of Metro Manila, the jurisdiction of the RTCs in Metro
Manila was in excess of P200,000.00.
Example: A has the following causes of action for recovery of money against B, Beginning, however April 9, 1999, the jurisdiction of the MTC were
all in the promissory notes that matured on: expanded as follows: In areas outside Metro Manila, the jurisdiction of the MTCs
1. Jan. 10, 1998 P 20,000.00 extended up to P200,000.00. But in Metro Manila, Beginning April 9, 1999, the
2. Jan. 20, 1998 30,000.00 jurisdiction of the MTCs was P400,000.00 So, as of now the jurisdiction of the
3. Jan. 30, 1998 40,000.00 Metro Manila MTCs is P400,000.00. But in areas outside Metro Manila, the
4. Feb. 10, 1998 50,000.00 jurisdiction of the MTCs is up to P200,000.00 only. This now the new rule which
5. Feb. 15, 1998 60,000.00 implemented Sec. 5 of RA 7691. RA 7691 expanded the jurisdiction of the MTCs.
6. Feb. 20, 1998 70,000.00
=========
P270,000.00 Q.state the rule on permissive joinder of parties

A is a resident of Sulu and B of Batanes. B did not pay on Jan. 10, B did not
pay on each and every maturity. But A waited for the maturity on this loan due on
Feb. 20, 1998. Since he was not paid on Feb. 20, 1998, he now decided to file an
action involving all these sum of money.
Q. Should he (A) decide to file a case on Feb. 25, 1998, against B, in what court
should the action be filed?
A. It should be filed in the RTC of Sulu or in Batanes.
Where all the causes of action are principally for money, the type of
jurisdiction is the totality of the amounts in all the cases. If you were A and you
want to file only an action for the recovery of P20,000.00 you will file this with the
MTC. This is the same with respect to other causes of action. Individually, they are
triable by the MTC.
A. Sec. 6 Rule 3
All persons in whom or against whom any right to relief in respect to or
arising out of the same transactions is alleged to exist, whether jointly, severally, or
in the alternative, may except as otherwise provided in these Rules, join as plaintiffs
or be joined as defendants in one complaint, where any question of law or fact
common to all such plaintiffs or to all such defendants may arise in the action; but
the court may make such orders as may be just to prevent any plaintiff or
defendant from being embarrassed or put to expense in connections with any
proceedings in which he may have no interest.
The rule contemplates a situation where there are two or more persons in whom
a right to relief exist or against whom a right to relief exist. These two or more
persons can join in one complaint or can be joined as defendants in one complaint
provided that there exist between them a question of law common to both of them.
As the term suggests, joinder is not mandatory . It may be availed of by parties as
plaintiffs if they want to. If they do not want to join as parties, they cannot be * The non-joinder of an indispensable or a necessary party is NOT by itself ipso-fato a ground for the
compelled. dismissal of an action.
the court shall order joinder
non-compliance-ground for dismissal
Example:
A, B and C are owners of adjoining houses. X is a driver of a gasoline * If the court does not order the joinder of an indispensable party, the validity of the judgment may be
tanker. Because of the manner X drove the tanker, the driver struck a Meralco Post. questioned on appeal or certiorari.
As a result, the tanker turned turtle (naging pagong ang tanker) in the process, it
exploded. The fire burned the houses of A, B, and C. A can sue X for the loss of his Permissive Joinder-parties can either be joined in a single complaint or may themselves maintained or
be sued in separate suits. This rule also applies to counterclaims.
house. B can sue X for the loss of his own house. C can sue X for the burning of his
own house. If these were so, there will be now, three (3) complaints against X. On Requisites of Persmissive joinder of parties.
the other hand, A, B and C or A and B alone, or A and C, or B and C, sued X in one 1) right to relief arises out of the same transactions or series of transactions;
complaint. A and C sued X in one complaint, B and C sued X in one complaint, or 2) there is a question of law or fact common to all the plaintiffs or defendants; and
better still, they joined in one complaint against X. 3) such joinder is not otherwise prescribed by the provisions of the Rules on jurisdiction and
venue.
Q. Can they validly do that? Series of Transcations-separate dealings with the parties but all of which dealings are directly
A. Yes, they have each a separate cause of action against X. Under the rule on connected with the same type of subject matter of the suit.
joinder of parties, all of them can join in only one complaint.
Parties to an Action
Q. Why?
A. Right to relief exists in favor of all of them, A, B and C. Q. Who can be parties to an action?
A. Only natural persons or persons with judicial personality or entities authorized
Q. What is the basis of their right to relief of A against X? by
A. The basis of the right of A against X is the negligent act of X in driving. law.

Q. What is the basis of the right of B against X? Q. Is it enough that a person is a natural person or juridical person to entitle him
A. The same. The negligent act of X. to
sue and be sued?
Q. What is the basis of the right of relief of C against X? A. No. It is necessary that the party, natural or judicial be likewise a party in
A. The same, the negligent act of X in driving. interest.

If these were to be tried separately, if the parties A, B and C filed separately Where the person who sues is not the real party in interest, or where the party
the case, there will be only one issue that the court will resolve, which is common to sued is not the real party in interest, the complaint or suit cannot be maintained.
all of them. So they can join as parties. This is the rule on permissive joinder of
parties. Q. Who is considered a real party in interest?
A. It is defined in Sec. 2 Rule 3
Q. Can A, B and C be required or compelled to join in one complaint?
A. No. whether they will join or they will not join is a matter of them alone to Sec. 2 Rule 3
decide. They cannot be forced to join. A real party in interest is the party who stands to be benefited or injured by
the
Rene Notes:
judgment in the suit.
Compulsory Joinder-in the case of:
1) indispensable parties
2) necessary parties A real party in interest is the one who is benefited by the judgment. He is one
who may be prejudiced by the judgment or it is he who may avail of the
 judgment. the suit.

Example: Example: (Indispensable Party)

So, if A, a tenant of B sues to recover his land from C.
Q. Is A the real party in interest?
A. No. He is not, because whatever judgment that he may be rendered in this
case will not at all affect the real owner. A is not a real party in interest.
Testator X was survived by three (3) children A, B and C. A sued B alone for a
partition of alleging in fact the court declared A, B and C the owners of the estate
and ordered the estate to be divided into three equal parts. So A and B agreed on
how the estate be divided. They agreed that the estate shall be divided into three
equal parts as follows:

Supposing A is claiming ownership of a lot and he sues C, the tenant of B, A B C

to recover the ownership of the lot.

Q. Is C the real party in interest? Q. Is the judgment in the partition case binding on C?
A. No, because whatever judgment that may be rendered in favor of A cannot A. No, it is not binding.
bind the owner B. C is not the real party in interest.
When A and B showed C the 1/3 portion allotted to him, C said I do not
Q. Is it enough that a party be a natural or judicial and a real party in interest to like that, I like this part. No, this is mine.
be
entitled to sue or be sued? Q. What can C now do?
A. No. The party must likewise have the legal capacity to sue. Meaning, he has the A. C can file a case for the partition of the same estate asking that this be divided
representation that he claims to have. into
three (3) equal parts.
So if the person does not have the capacity which he alleges he has, he
cannot sue or he cannot be sued. But A and B said, It is pointless, there is already a declaration that this
property be divided into 3 and it was already divided into three (3). What else do
These are the requirements for suing or being sued: you like?
1. Natural person or judicial person;
2. Entity authorized by law to sue and be sued; Q. Is the reasoning of A and B correct?
3. Must be the real party in interest; and A. No, it is not correct. It is true that there was a division. But C does not like his
4. Must have the capacity to sue or be sued. part.

Q. What are the classes of parties to a suit? Q. Can C be compelled to accept his part?
A. We have the: A. No, because he was not a party to the case. He is not bound by the judgment.
1. Indispensable Parties; Why? Because he has a right to be heard when A and B divided this property in
2. Necessary Parties. the
manner they want.
Q. What is the distinction between the two?
A. In the case of an indispensable party, he must always be impleaded because As a co-owner he has the right to be heard on how the division should be
without his being impleaded as a party, whether a plaintiff or defendant, the made. Since, he was not heard, he can file a case.
subject matter of the suit cannot be terminated. He must always be there This is what we meant when we say that an indispensable party ought to
because be impleaded either as a plaintiff or defendant in order to terminate the subject of
without him, whatever judgment rendered do not terminate the subject matter the case.
of
 So, you see here, the first case did not terminate the question. It is only
when all the parties A, B and C have been impleaded in the case may it terminate.
So, when an indispensable party is not impleaded, in violation of that order
of the court, the complaint may be dismissed.
Q. Who is the necessary party?
A. A necessary party is one who ought to be impleaded in order to accord
complete
relief to all the parties or in order that the claim respecting the subject matter
of
the case can be fully adjudicated, nevertheless, his absence from the court as a
plaintiff or a defendant does not prevent the case from being settled insofar as
the
parties thereto are concerned.
If a case is filed and the necessary party is omitted, the case filed can be
terminated. But only partially. But if this omitted party could have been
impleaded, the subject matter of the case would be fully adjudicated.
EXAMPLE:
A is the creditor of B and C based in the promissory note signed by B and C for
P1M. The liability of B and C are merely joint not solidary. A sued B only. He did not
sue C because at that time when the case was filed C was no longer in the
Philippines. He for left abroad.
Q. Can this case between A and B be finally settled?
A. Yes. Even without C. But you will know that the better judgment will be
rendered in favor of A will cover only the part of B in the P1M. So the court will
decide the case awarding A only P500,000. The claim of A against C remain
pending, so that where C is already within the jurisdiction of the court, A can file a
case against him to recover from him his share in the P1M.
C here is merely a necessary party because even without him, this claim of
A against B can be settled.
In order, however, to settle the entire P1M, if C was with the jurisdiction of
the court at the time when the complaint was filed, A should have filed a complaint
against both B and C.
Q. What will be the effect of filing by A of his claim against B and C at the same
time?
A. His claim of P1M will be entirely settled in only one procedure. Whereas, in
alternative form, the case will be settled insofar as the parties are concerned.
That is why, when a party is a necessary party, but he is not impleaded, the
reason why he is not impleaded should be stated in the complaint.
Q. What for is the need to state why C was not impleaded?
A. So that the court could determine whether the reason for the non-inclusion
of C is valid or not. Should the court find the reason why C was not impleaded
to benefit the merit, the court will now order A to amend his complaint and implead
C.
Should A fail to comply in the order of the court.
Q. What is the effect of such non-compliance on the right of A to recover from
the
claim filed?
A. Such failure on the part of A to comply operates as a waiver of his claim
against C, so that should A eventually file a case against C, C can file a
motion to dismiss the complaint on the ground of waiver of the claim of A
against C on the failure of A to implead C in violation of the order of the
court.
Rene Notes:
1) spouses as parties
G.R.
- spouses sued jointly
Exceptions:
1) Abandons or fails to comply with marital obligations
2) Spouse disposes exclusive property
3) Regime of complete separation of property
2) class suit
Requisites of a class/representative suit
1) subject matter of the controversy is one of the common or general interest to many persons;
2) persons affected are so numerous that it is impracticable to bring them all before the court;
3) parties bringing the class suit are sufficiently numerous or representative of the class and can
fully protect the interests of the concerned.
Concept of Alternative Defendants
Q. When may a party plaintiff sue defendants in the alternative?
A. The rule is this:
A plaintiff may have the right but he is not certain or sure against whom
that right should be asserted. He knows he has the right. There are two or more
persons who may be liable to him in connection with his right. But he does not
know who of them is liable under this rule, he is entitled to sue all these persons in
the alternative.
Example:
A bought a machine from US. The carrier X brought this machine to the
Phils. for delivery to A. this machine did not reach A. He does not know who has
custody of this machine at the time it was lost. The fact is, there was supposed to
be an arrastre operator who should have taken upon its being unloaded in the port
of Manila. Was it lost while this machine was in the custody of the arrestre? He does
not know, but he has the right to recover the value of the machine. But who of
them is responsible, he does not know.
Q. What can A do?
A. A can sue X and Y (arrestre) at the same time. If it is not X who is liable, it
must be Y. If Y is not liable, it must be X.
This is the concept of alternative defendants.
Rene notes:
Unknown Identity or Name of Defendant
* Service of summons is by publication
Requisites:
1) there is a defendant
2) his identity or name is unknown
3) fictitious name may be used because of ignorance of defendants true name and such
ignorance is alleged in the complaint
4) identifying description may be used: sued as unknown owner, heir, devisee, or other
designation
5) amendment to a pleading when identity or true name is discovered
6) defendant is the defendant being sued, not a mere additional defendant
Death of a Party
Duty of counsel- inform court within 30 days
* The death of a client will require his substitution by his legal representative to be ordered by the court
wherein the case is pending, or even the appointment of an executor or administrator, but this time, by
a court of probate jurisdiction.
In the case of incapacity or incompetency of the party, this fact will merely entail the
appointment of a guardian ad litem by the court trying the case upon being informed thereof by counsel
of the parties, the parties themselves, or other reliable sources.
* No summons is required to be served on the substituted defendants. Instead, the order of substitution
shall be served upon the parties substituted in the action, otherwise, the court does not acquire
jurisdiction over the substitute party.
* The continuance of a proceeding when a party dies without a valid substitution amounted to lack of
jurisdiction and that the need of substitution is base on the right of a party to due process. HOWEVER,
if there is no notice of death of party and the court has no knowledge thereof, the proceedings are not
set aside.
* If there is failure to notify the fact of death: the case may continue and the proceedings will be held
valid, and judgment will bind the successors in interest.
* The court cannot compel the lawyer to continue with the trial after the lawyer has notified the court
of the death of his client. Otherwise, the entire proceeding is null and void; the court would have no
jurisdiction over the estate, the heirs and the executors or administrators.
Transfer of Interest
* Substitution of parties is not mandatory. Unless the substitution by or the joinder of the transferee is
required by the court, failure to do so does not w arrant the dismissal of the case.
* A transferee pendente lite is a proper and not an indispensable party.
Sec. 20 Rule 3
When the action is for recovery of money arising from contract, express or
implied, and the defendant dies before entry of final judgment in the court in which
the action was pending at the time of such death, it shall not be dismissed but shall
instead be allowed to continue until entry of final judgment. A favorable judgment
obtained by the plaintiff therein shall be enforced in the manner especially provided
in these rules for prosecuting claims against the estate of the deceased person.
This is a situation where a contract involving money was entered into: This
contract gave rise to the filing of a complaint against the debtor. When the case is
pending against the debtor, the debtor dies.
Q. What now will be the status of this case filed upon the death of the debtor, the
case not having been determined with finality? Can it continue or must be
dismissed?
A: Example:
A the creditor sued B to recover the loan, he extended. While this case was
pending, B died.
Under the old rule, upon the death of B, this case will be dismissed. How
could A protect his right over his claim, if it was already dismissed in this case? He
can now file his claim as an ordinary creditor in the proceeding, (estate or intestate
proceeding) for the settlement of estate of B. This rule presuppose that the estate
of B is under administration either in a testate proceeding or intestate proceeding.
So under RA 86 A should file his claim in this proceeding. So if there was a special
proceeding under #SP 34 for the settlement of estate, then A must file his claim in
this case.
Q. Is that so now?
A. No. The death of the debtor B does not extinguish the action. This will
continue. Of course with proper substitution of B by the administrator or executor if
there is any. If there is none, by his heirs. This case will continue litigation until
finality.
 In the event A wins the case and the judgment becomes final
Q. How will A enforce his right as adjudged by the court?
A. He will file the case where the settlement of Bs estate is pending, his claim
based on this judgment.
Q. Can the administrator or executor contest in that special proceeding this claim
now of A?
A. No, because it has already been settled by final judgment in that civil case.
This is the innovation under the new rules.
RENE NOTES:
Action on Contractual Money Claims
Requisites:
1) The action must primarily be for recovery of money, debt, or interest thereon, and not where
the money sought therein is merely incidental thereto.
2) The claim subject of the action, arose from a contract, express or implied, entered into by the
decedent in his lifetime or the liability for which had been assumed by or is imputable to him.
* If the defendant dies before entering a final judgment in the court where it was pending at that time,
the action shall not be dismissed but shall be allowed to continue until entry of final judgment thereon.
* Once a final judgment is entered against the estate of the deceased it shall be enforced as a money
claim without the need of proving the same.
Indigent Party
* The amount of docket and other lawful fees shall be a lien on any favorable judgment upon the
indigent party.
Rule 4: Venue of Actions
The rules on venue are now simplified. Why? Because the rules in venue
likewise involve inferior court and under the RTC. For purposes of venue, actions
may either be real or personal.
Q. What are the rules on venue involving real property?
A. When a suit involves title to, possession of or interest in real property, the
venue of the action lie in the proper court of the place where the real or a part of
the real property is located. This is true in cases involving title to, possession of or
interest in, real property.
In forcible entry cases, however, the venue of the action is the inferior court
of the place where real property or part of the real property is located. (MTC)
Take note that when it comes to the venue of the property suits involving
title to, possession of or interest in, real property, the venue is the proper court of
the place where the real property is located.
But when it comes to forcible entry, the court where the action must be
filed is specified and that is the inferior court. It does not say proper court.
Q. Why the difference in the case involving title to, possession of or interest in real
property, venue is the proper court?
A. Because under the new law, even the inferior court have jurisdiction cases
depending on the value of the property.
Where the value of the property involved in the reindivicacion cases does
not exceed P20,000.00, in areas outside Metro Manila, that action for reindivicacion
is tried by the inferior (MTC) not the regional trial court.
Where the value of the property exceeds P20,000.00, the action for
reindivicacion lands with the RTC.
In Metro Manila where the action is for reindivicacion for instance, and the
value of the property does not exceed P50,000.00, the venue is the inferior court.
This is the reason why the law does not specify what particular court the case
must filed when it involves title to, possession of or interest in real properties. But
when it comes to forcible entry, the rule is specific, only on MTC of the place where
the property or any part of the property is located.
In case of personal actions, the venue is the residence of the plaintiff or
any of the principal plaintiffs or the residence of the defendant or any of the
residence of the principal defendants at the option of the plaintiff. However, where
the defendant is a non-resident, the venue may also be the place where he can be
found.
In this last case, the venue could not be the residence of the non-resident
defendant for a simple reason that, a non-resident defendant does not reside in the
Phils. (as the term suggested, non-resident). That is why you cannot sue him in a
place where he is not a resident, but he may be found in the Phils. So, it is that
place where he may be found, that may be one of the venue.
Example:
If A file a complaint against B, for recovery of money and A is a resident of
Sulu and B is from Batanes. Whether the case is tried by the inferior court or by
RTC, A can file action either in Sulu or Batanes at his option.
Q. But if B is not a resident of the Philippines, but came to the Philippines for a
vacation and could be found in Bulan, Sorsogon, where may A, who is a resident of
Sulu file the case?
A. He may file the case in Sulu or in Bulan, Sorsogon.
 Where real property is located partly in one place and partly in another,
whether the action involves forcible entry or detainer, or an action for reindivicacion
its venue should be any of these places where property is located.
Example:
A vs. B for forcible entry or reindivicacion, the property was located in
Manila in part, Caloocan in part, Q.C. in part. So A can file the case in Manila,
Caloocan, in Q.C.
Example:
A vs. B, an action for declaration of nullity of the marraige of A and B. B the
husband is a non-resident defendant of the Philippines whose permanent address is
U.S.A., on the other hand, the wife is a resident of Manila.
Q. What will be the venue of this action?
A. Manila.
Example:
The action between A and B involved let us say, the recovery of a lot which
A claims as his but which B claims is his. This lot is partly located in Pampanga,
Bataan or Batangas. While A is a resident of Manila. The value of this property is
P19,999.99.
Q. What court has jurisdiction and a court of what place will be the venue?
A. MTC of Pampanga, or of Batanes or of Bataan.
Example:
A sued B, a non-resident of the Philippines. But at the time the action was
filed, B was found in Tawi-Tawi. A is a resident of Batanes. B is a permanent
resident U.S.
Q. If this action is filed, what will be the venue?
A. The venue is Batanes, or Tawi-Tawi at the election of the plaintiff.
Where the action involves title to, possession of or interest in real property,
the action may be filed in the appropriate or proper court of the place where the
property or part of the property is located, except where the action is one for
forcible entry, in which case, the action may be filed in the MTC of the place where
the property or part of the property is located.
If the action is personal , the venue of the action may be the residence of the
plaintiff or it there are two or more plaintiffs, the residence of the plaintiff or the
residence of the defendant or in case there are two or more defendants, the
residence of the principal defendant, at the option of the plaintiff.
Where the defendant is a non-resident defendant, but is found in the
Philippines, and the action is personal, the venue of the action may either be the
residence of the plaintiff or the place where the defendant is found.
In our example, the action was one for money, against the defendant B who
is a resident of U.S. But at the time the action was filed, he was found in Tawi-Tawi,
the action by A can be filed in Batanes, As residence or in Tawi-Tawi at the option
of A.
Q. Where the subject matter of a case is real property, is the rule that the venue
of the action involving it should be the place where the property is located or where
any part of the property is located absolute? So that in all cases, this rule must be
followed?
A. It is not absolute.
Q. The action involves possession of, interest or in title to real property but the
action is not forcible entry. Must the venue of this action be the place where the
property is located or where any part thereof is located or may there be a case
where what is located or may there be a case where what is involved in a suit is a
real property and yet the venue need not necessarily be the place where that
property is found or where any part thereof is found.
Example:
A and B are litigating who has the better right to timber concession located
in Cotabato. A is a resident of Manila and B of Batangas.
The action by A against B was filed with the Secretary of DENR. The
Secretary awarded the right to the timber land to A. B now contested the action of
the Secretary in awarding the right to A. B sued as well as the Secretary of DENR.
This action was filed by B in his residence which is Batangas RTC. The
Secretary now files a motion to dismiss on the ground that the venue is improperly
laid. The venue should be Cotabato.
If you are the judge, what will your correct ruling on the motion to dismiss filed by
the Secretary of DENR?
Issue: What is involved here is a motion to dismiss filed by the Secretary, he said
any action contesting my decision should be filed in the court of the place where
the property is located. Since the property is located in Cotabato, the venue
should be Cotabato, not the residence of B in Batangas.
Example:
The PHHC awarded the lot in Q.C. to a resident of Bacolod City. After A paid
so many installments on their lot, the PHHC unilaterally cancelled this award and
awarded the same lot to B. To annul that order of PHHC canceling the award to A, A
now sued PHHC which has its office in Q.C. and B, a resident of Manila in the RTC
of Bacolod City.
The prayer of A is for the cancellation of the resolution of PHHC canceling the
prior award to A and awarding the same lot to B.
PHHC and B now file a motion to dismiss on the ground of improper venue.
They contended that the proper venue of the action is Q.C., the location of the
property, not Bacolod City, the resident of plaintiff A. you are the judge, what will
be your correct resolution to the motion?
Example:
A and B agreed in 1990 that any action between them involving this lot in
Tawi-Tawi, be filed in Batanes. A being a resident of Manila and B of Bulan,
Sorsogon. The agreement was oral.
For a violation of Forcible Entry, A now sued B in Batanes although, we say,
that the lot is in Tawi-Tawi. B now filed a motion to dismiss, on the ground of
improper venue. He said that the action should be filed in the inferior court of Tawi-
Tawi, not in Batanes.
Q. You are the judge, what will be the correct ruling on the motion to dismiss?
A. Deny the motion to dismiss under Sec. 4 (b) Rule 4, the rule on venue shall not
apply where parties have not validly agreed in writing before the filing of the action
on the exclusive venue thereof.
In the above case, the agreement of A and B was an oral agreement.
Therefore the agreement is not enforceable.
1. The agreement between A and B is that any action arising from this lot located
in Tawi-Tawi must be filed only in MTC of Batanes. A now sued B in Batanes. B
now filed a motion to dismiss on the ground of improper venue being the property
located in Tawi-Tawi and therefore Tawi-Tawi should be the venue.
Rule on themotion to dismiss filed by B.
2. Agreement in writing between A and B provided as follows:: Any action arising
from this land in TawTawi, may be filed in Batanes. Contrary to this writing, A
filed the action in Tawa-Tawi. B now filed a motion to dismiss on the ground that
the venue is improperly laid because the agreement called for the venue to be in
Batanes. Rule on the motion.
A. Deny the motion to dismiss because the agreement used the word may.
Under the rule, the agreement to be valid must be one which is in writing and the
agreement on the venue must be exclusive venue.
Where the action involving real property concerns the title to the property,
or possession of real property or interest in real property, the venue is the place
where the property is located or where a part of the property is located.
Therefore where the action involving real property does not concern title to
the property or it does not concern the possession of real property or does not
concern an interest in real property, the rule that the action should be filed in the
place where the property is located does not apply. There are, therefore, cases
when what is involve is real property and yet the venue of the action need not be
the place where the property or a part of the property is located.
Example:
The action is filed by B against A and Secretary of DENR. The action filed by
B here is an action for certiorari against the Secretary of DENR and A. The subject
matter although involving real property is actually the judgment of the Secretary.
This is not an action involving title to, possession or interest in real property. The
action in effect is a personal action. So venue would be the residence of plaintiff B
or the residence of the Secretary, not Cotabato, the place where the lot is located.
In the case of the annulment of the award made by the PHHC, the venue
need not necessarily be Q.C. where the property is located. Since the action was
filed in Q.C. where the defendant PHHC reside. So the motion to dismiss filed in
Bacolod City is not proper because Bacolod City could be a venue.
Unlike jurisdiction which cannot be the subject of stipulation, venue can be
the subject of stipulation and therefore the parties can agree that the venue of a
particular action as filed and provided the agreement provides for an exclusive
venue.
So if the property is located in Twi-Tawi, but A and B agreed before any suit is filed
that the venue of the action arising therefrom be in Batanes and this agreement
was in writing before the action was filed, the action can be filed where the
property is located or in Batanes. Why? Because the wording of the agreement,
Batanes would merely be an additional venue, the venue agreement controls.
So in our example, A and B agreed in writing before any suit arise, that any
action involving this property located in Tawi-Tawi can be filed only in Batanes. In
violation of that written agreement, A filed suit in Tawi-Tawi where the property is
located. B now files a motion to dismiss for improper venue. Is the motion to
dismiss proper? Yes, because although the property is located in Tawi-Tawi, the
agreement called for an exclusive venue, i.e.only Batanes. The motion to dismiss
of B here should be granted.
The rules on venue mentioned in Rule 4 do not apply in certain cases, in
addition to these cases that i.e. an agreement in writing.
Q. Is there another situation when the rule on venue does not apply other than the RENE NOTES:
ground that there is an agreement is writing providing for a particular venue?
Venue of Actions
The Rules on venue do not apply when there is an agreement in writing
Real actions
providing for an exclusive venue. In addition to this, is there another situation - place where real property located
where the rules on venue mentioned in Rule 4 does apply because in this case, we
do not file the action, for instance, in the place where the property or a part of the Personal actions
property is located or in the place where the plaintiff or the defendant is residing at 1) residence of the plaintiff
the option of the plaintiff. 2) residence of the defendant
* Choice of the plaintiff
Is there such a situation?
Example: Real actions
A published a libel in Manila. B is a resident of Ilocos Norte. However, A was 1) action for the annulment or recision of a sale and the return of realty
a resident of Manila. People vs. A filed in Manila. B, subsequently filed in the RTC of 2) to compel the vendor to accept payment of the purchased piece of land
Ilocos Norte, his residence, an action for damages against A in manila. A now filed a 3) to compel the vendor to deliver the certificate of title of the land
motion to dismiss this action in Ilocos Norte. His ground is that the venue of the
Personal actions
action should not be in Ilocos Norte, it should be in Manila where the libel cases is 1) action to recover the purchased price of the land
filed but B countered this argument, the recovery of damages is a personal action, 2) an action to compel the mortgagee to accept payment and for the consequent cancellation of
therefore, under Rule 4, sec 2 (B) has the option to file any action either in my a real estate mortgage
residence or the residence of the defendant A at my (B) option. My option is to file 3) action to annul the cancellation of award of land in favor of the plaintiff
my action in Ilocos Norte.
So, the motion to dismiss is not proper Rule on the merits of the motion to Requisites for venue to be exclusive:
1) A valid written agreement
dismiss 2) Executed by the parties before the filing of the action; and
Ans. 3) Agreement to the exclusive nature of the venue.
The rules on venue found in Rule 4 do not apply in two cases:
1. When the parties agreed in writing before any action is filed the venue of * In the absence of qualifying or restrictive words, venue stipulation is merely permissive meaning that
the action be in a particular place. Meaning, when the agreement calls for the stipulated venue is in addition to the venue provided for in the rule.
an exclusive venue
When rules on venue NOT applicable
2. where the law provides for a specific venue. 1) when parties agreed in writing for an exclusive venue before any action is filed
2) where the law provides for exclusive venue
In the first case, where the agreement in writing does not provide for an ex. Libel
exclusive venue, but merely an additional venue, the action may be filed in the
proper venue according to Rule 4, or in the venue stated in the agreement. If the Libel Law
written agreement on venue provides for a specific and exclusive venue, only the - where a criminal action is filed in a particular venue, the civil action for damages arising from that
libel should likewise be filed in the SAME COURT where the criminal case is pending.
venue specified in the agreement can be the venue.
In the second case, the law itself provides, for a specific venue, then it should Means of Waiving venue: [FO, AR, VS, L]
be that venue provided for by law. 1) failure to object by means of motion to dismiss
The libel law provides that where a criminal action is filed in a particular venue, 2) affirmative relief sought in the court where the case is filed
the civil action for damages arising form that libel should likewise be filed in the 3) voluntary submission to the court where the case is filed
same court where the criminal case is pending. 4) laches
In our example, the libel case was filed in Manila. Any action for damages IF PROPERTY IS LOCATED AT THE BOUNDARIES OF TWO PLACES: file one case in either
arising form the libel filed must be filed in the place where the libel case was filed. place at the option of the plaintiff
Although B, in this case, is a resident of Ilocos Norte, he cannot file the action in
Ilocos Norte because the criminal case was filed in Manila. IF CASE INVOLVES TWO PROPERTIES LOCATED IN TWO DIFFERENT PLACES:
a) if the properties are the object of the same transaction, file in any of the two places.
b) if they are the subjects of two distinct transactions, separate actions should be filed in each place. 1) General
2) Denial in the form of a negative pregnant
WHEN ALTERNATIVE RELIEF IS SOUGHT venue would depend on the primary object of the
action. B. Affirmative Defenses in the Nature of Confession or Avoidance

* Unlike the Complaint which alleges only ultimate facts, the Answer may cite legal provisions relied
VENUE JURISDICTION upon for defense
1. place where the action is instituted 1. power of the court to hear and decide a case
2. may be waived 2. jurisdiction over the subject matter and over the Q. What is the compulsory counterclaim?
nature of the action is conferred by law and cannot A. Sec. 7 Rule 6
be waived
A compulsory counterclaim is one which, being cognizable by
3. procedural 3. substantive
4. may be changed by the written agreement of 4. cannot be the subject of the agreement of the
the regular courts of justice, arises out or is connected with the transaction or
the parties parties occurrence constituting the subject matter of the opposing partys claim and does
not require for its adjudication, the presence of third parties of whom the court
cannot acquire jurisdiction. Such a counterclaim must be with jurisdiction of the
court both as to the amount and the nature thereof, except that in an original
Rule 6: Pleadings action before the Regional Trial Court the counterclaim may be considered
compulsory regardless of the amount.
Q. What are pleadings? What are the kinds of pleadings?
A. Sec.1 Rule 6 Q. What is a counterclaim?
A. Sec. 6 Rule 6
Pleadings are written statements of the respective claims and defenses of A counterclaim is any claim which a defending party may have against an
the parties submitted to the court for appropriate judgment. opposing party.

Example:
If A filed a case against B. Any claim by B against A is a counterclaim. It is a
claim by a party defending himself against a party who files a case against him.
Sec.2 Rule 6 (Pleadings Allowed)
1. complaint Two KINDS of counterclaims:
The claims of a party are asserted in a: 1. Compulsory Counterclaim
2. counterclaim 2. Permissive Counterclaim
3. cross-claim
4. third (fourth, etc.) party complaint, or These two are different for in their component elements and the effect of their
5. complaint-in-intervention not being pleaded.

The defenses of a party are alleged in the answer to the pleading asserting a
claim against him. An answer may be responded to by a reply.
RENE NOTES:
2 kinds of defenses that may be set forth in the answer
A. NEGATIVE DEFENSES
a. Specific denials
b. Insufficient denial or denial amounting to admissions
In the language of the rule, a counterclaim is compulsory when it is one
which is cognizable by the court and arises out or is connected with the transaction
or series of transactions which constitutes the basis of the action against him and
does not require for its adjudication the presence of the third person over whom the
court cannot acquire jurisdiction. However, where the counterclaim is a money claim
and the court in which the case is pending is the Regional Trial Court, the money
claim irrespective of the amount is a compulsory counterclaim.
 On the other hand, a permissive counterclaim is one which does not arise
out of or is connected with the transaction which is the basis of the subject of the
action.
Example:
A files an action against B for collection for sum of money. B, however, has an
action against A for recovery of lot. This action of B against A for recovery of a lot is
a permissive counterclaim. Why? Because it is not in any way related.
Q. Why is this permissive?
A. Because if B wants to he can file his counterclaim against A in the same action.
If he does not file it as a claim, this case filed against him.
Q. Can he file it separately, so that if he can file it separately there are now two
cases, A vs. B for recovery of lot.
A. Yes.
Q. Supposing he (B) does not file his counterclaim in this case against him, and
subsequently, B files a separate action, can A now file an action to dismiss a second
action on the ground that this action of B against A should not be pleaded as a
claim counter in nature in the civil case?
A. No, because this is a permissive counterclaim. B can file if he wants in to this
main action, he may not file if he does not want to file.
Q. When is counterclaim compulsory?
A. 1) A compulsory counterclaim is one which is cognizable by the court of
justice.
2) A counterclaim should be connected with the transaction which
constitutes the basis of the action of the plaintiff against the defendant.
3) This counterclaim does not require for its adjudication the presence of a
third person over whom the court does not require jurisdiction.
4) This counterclaim is within the jurisdiction of the court except that where
the counterclaim is a money claim and the action is filed in the RTC
irrespective of the amount whether within or not within the jurisdiction of
the court, the counterclaim is compulsory.
Example:
This is an action of A against B for the recovery of a lot. The counterclaim of B
against A is for the recovery of money which represents the unpaid wages of B
payable by A and the wages being the result of a contract of employer-employee
relationship.
Q. Is this money claim of B arising from the employer-employee relationship is not
cognizable by the court?
A. No, because the money claimed arising from the employer-employee
relationship is not cognizable by the courts of justice . This is cognizable by the
DOLE Labor Arbiter or the NLRC.
So, if A files his complaint and B pleads his money claim arising from the
employer-employee relationship, that counterclaim is not a compulsory
counterclaim. It cannot be filed in this case.
The counterclaim must be one which arises from the transaction which is
the basis of the action of the plaintiff against the defendant.
Example:
The action of B is for recovery of lot. The claim of B is for money arising
from a contract of loan being B the lender and A the borrower. Should B interpose
as a counterclaim this action for recovery of money here.
Q. Can that be validly done?
A. On the assumption that all the other elements are present, this is allowed.
Supposing, this is the MTC, the action is for reindivicacion because the value of
the property is only P200,000. This an action filed outside Manila.
Q. Is this counterclaim here allowed to be filed by B as a counterclaim in this
case?
A. Yes, because this is a claim that is compulsory.
But supposing B does not file a separate case against A for a recovery of
money such that if this is done, there will be now two (2) actions
Q. Can A validly file a motion to dismiss this complaint on the ground that since
this is a counterclaim, that should have been impleaded by B in the main case?
A. No, because this amount does not arise from the transaction constituting the
claim by A against B, this is a recovery of money. This is a permissive counterclaim
the fact that it is not pleaded in the answer in the main case, is not a ground to
dismiss it.
In this case, Bs counterclaim is not compulsory, but merely permissive.
Example:
The counterclaim of B consists of P200,000.00 but the counterclaim of B is
against A and C over this amount is solidary. B does not plead in his answer in the
main case claim and after B files his separate action against A and C to recover his
P200,000.00. A filed motion to dismiss on the ground that this should have been A. Yes, because the amount being claimed represents the value of the
impleaded in the main case because it arose from this main case. improvements introduced by B in this lot, which is the subject of the main case. So,
it is connected.
Q. Is the motion to dismiss proper?
A. No, because the presence of C is required in their litigation on this P200,000.00 Q. Does this action for recovery requires the presence of C, a third person over
and C is in U.S. and the Court does not acquire jurisdiction over him. whom the court cannot acquire jurisdiction?
A. No.
So, this counterclaim although arising from that action is merely a permissive
counterclaim not compulsory counterclaim because it requires for its adjudication Q. Is an action for recovery of a P201,000.00 one with the jurisdiction of the RTC?
the presence of a third person over whom the court does not acquire jurisdiction. A. Yes.

This is an action in the MTC. The counterclaim of B arising from this, lets So, in all these cases therefore, the elements of a compulsory counterclaim are
say, the value of the improvements which B introduced in this lot is P201,000.00. present.
He does not plead his counterclaim in this action. Instead, he files a separate action
on the recovery of P201,000.00. Now he files a motion to dismiss on the ground Q. What is the rule?
that this counterclaim being connected in the claim of A against B should be A. When a counterclaim is compulsory it must be pleaded in the answer,
pleaded. otherwise, that counterclaim is barred.

Q. Is the motion to dismiss proper? Example:

A. No, because the amount claimed though arising from the action exceeds the
jurisdiction of the MTC. The jurisdiction being only up to P200,000.00. So, it is not.
Supposing, however, that this case is filed in the RTC. And on the assumption
that the counterclaim of B against A arises out of this action of A against B, and the
counterclaim is only P50,000.00
Q. Is this counterclaim compulsory or permissive?
A. Compulsory. In the RTC, as long as the counterclaim is money, irrespective of
the amount, it is always compulsory.
Let us now take a case where the counterclaim is compulsory.
In the example that B sues to recover P201,000.00 representing the value
of improvements introduced on the lot which is the subject matter of the complaint
of A. What B did was to institute separate action against A for recovery of the
improvements. He did not plead this as a counterclaim in the action of A.
A now files a motion to dismiss on the ground that, the counterclaim is a
compulsory counterclaim, the fact that it not was pleaded in the main case, is a
ground to dismiss it.
Q. You are the judge, what will be your correct ruling on this motion of A to
dismiss the case?
A. Grant the motion, bec. a compulsory counterclaim not pleaded in the answer is
considered barred.

Example: Compulsory Counterclaim RENE NOTES:

Rules on Counterclaim
This is an action for the recovery of a lot. The counterclaim of B is for recovery
1) A counterclaim before the MTC must be within the jurisdiction of said court, both as to the
of the value of the property improvements which B introduced. amount and nature thereof.
2) In an original action before the RTC, a counterclaim may be considered compulsory
Q. Is it money claim by nature cognizable by a court whether MTC or RTC? regardless of the amount.
A. Yes. 3) If a counterclaim if filed in the MTC in excess of its jurisdictional amount, the excess is
considered waived.
4) The remedy where a counterclaim is beyond the jurisdiction of the MTC is to set of the
claims and file a separate action to collect the balance.
Q. Is it connected with the case filed by A against B for recovery of the land?
COMPULSORY COUNTERCLAIM PERMISSIVE COUNTERCLAIM
(1) one of which arises out of or is necessarily (1) It does not arise out of nor is it necessarily Rule in non-FORUM SHOPPING ( Under SEC. 5 RULE 7 )
connected with the transaction or occurrence that connected with the subject matter of the opposing The plaintiff or principal party shall certify under oath in the complaint or
is the subject matter of the opposing partys partys claim.
other initiatory pleading asserting a claim for relief, or in a sworn certification
claim.
(2) It does not require for its adjudication the (2) It may require for its adjudication the presence annexed thereto and simultaneously file therewith:
presence of third parties of whom the court of third parties over whom the court cannot a) That he has not thereto commenced any action or filed any claim involving
cannot acquire jurisdiction. acquire jurisdiction. the same issues in any court, tribunal or quasi-judicial agency and to the
(3) It is barred if not set up in the action. (3) It is NOT barred even if not set up in the best of his knowledge, no such other action or claim is pending therein;
action. b) If there is such other pending action or claim, a complete statement of the
(4) Need not be answered; no default. (4) Must be answered, otherwise, the defendant present status thereof; and
can be declared in default.
c) If he should thereafter learn the same or similar action or claim has been
Cross-claim
filed or is pending, he shall report the fact within five (5) days therefrom in
* filed against a co-party the court wherein his aforesaid complaint or initiatory pleading has been
* always arises out of the transaction or occurrence that is the subject matter either of the original filed
action or of a counterclaim therein. Failure to comply with the foregoing requirements shall not be curable by mere
* If it is not set up in the action, it is barred, except when it is outside the jurisdiction of the court or if amendment of the complaint or other initiatory pleading but shall cause for the
the court cannot acquire jurisdiction over third parties whose presence is necessary for the adjudication dismissal of the case without prejudice, unless otherwise provided, upon motion
of said cross-claim.
* The dismissal of the complaint carries with it the dismissal of a cross-claim which is purely and after hearing. The submission of a false certification or non-compliance with
defensive, but not a cross-claim seeking affirmative relief. any of the undertakings therein shall constitute indirect contempt of court, without
prejudice to the corresponding administrative and criminal actions. If the acts of the
Reply party or his counsel clearly constitute willful and deliberate forum shopping, the
same shall be ground for summary dismissal with prejudice and shall constitute
Effect of Failure to Reply: new facts that were alleged in the answers are deemed converted. Hence, direct contempt, as well as a cause for administrative sanctions.
the filing of the reply is optional except for the denial of the genuineness and due execution of an
actionable document used as defense in the answer.
Example:
Third (fourth, etc) party complaint A filed an action against B for forcible entry of a particular lot. While this
case was pending, A filed against B for reindivicacion involving the same lot.
THIRD-PARTY COMPLAINT CROSS-CLAIM
* seeks to recover form a non-litigant some relief * claim by a party against a co-party. Q. Is there a forum shopping on the part of A?
in respect to the opposing partys claim.
A. No, the two cases are different. One is for forcible entry and the other for
* Third party is not yet impleaded. * Cross-defendant is a co-party.
reindivicacion.
THIRD-PARTY COMPLAINT COMPLAINT IN INTERVENTION
* brings into the action a third person who was *same Example:
not originally a party. A filed an action against B in the RTC for reindivicacion. Branch 1 RTC of
* initiative is with the person already a party to * initiative is with a non-party who seeks to join Manila. In their action, A filed a petition for receivership. In Branch II of Manila, A
the action. the action. filed another action against B also for reindivicacion, for issuance of an injunction.
* TEST to determine whether the third-party complaint is in respect of plaintiffs claim:
(a) Where it arises out of the same transaction on which the plaintiffs claim is based, or although Q. Is there forum shopping on the part of A?
arising out of another or different transaction, is connected with the plaintiffs claim; A. No, there is none because the two cases involves different issues.
(b) Whether the third-party defendant would be liable to the plaintiff or to the defendant for all or party
of the plaintiffs claim against the original defendant; and Q. What is forum shopping?
(c) Whether the third-party defendant may assert any defenses which the third-party plaintiff has or A. Forum shopping takes two forms:
may have to the plaintiffs claim. 1) Where a party files the same action involving the same issues either
simultaneously or successively in more than one court.
 2) Where a party files two or more actions in different courts, the other action
filed in another court not being the result of an appeal or a petition for
certiorari.
Forum shopping is not allowed because this would be constituting to the judicial
process making mockery out of the rules. This is the reason why whenever the
party files a complaint or an initiatory pleading, he is required to accompany that
complaint or initiatory pleading with a certificate. We call the certificate the
certificate of non-forum shopping.
The certificate is signed by the plaintiff and if there are two or more plaintiffs
and one is a principal plaintiff and the other is not, the certificate must be signed by
the principal plaintiff. The contents of the certificate, the plaintiff or in the proper
case, the principal plaintiffs, certifies the following:
a) That he has not previously filed in another court, tribunal, quasi-judicial
body or any other agency, the same action involving the same issues.
b) That there is no pending action in any other court, tribunal, quasi-
judicial body or any other agency involving the same issues,and if there
is pending action in any other court, the status of this action pending in
the other tribunal agency or quasi-judicial agaency;
c) Should at the time he filed the pleading, he did not know of the
existence of pending of another action involving the same issues in
another tribunal court, agency or quasi-judicial body, but that he
subsequently learns that there is such a pending action involving the
same issues, he undertakes to notify the court of that fact that there is
a pending action, within five (5) days from his receipt or acquisition of
knowledge of the pendency of that action.
These are the three (3) matters certified by the plaintiff or the principal plaintiff.
Q. What are the sanctions against violations of this certificate?
A. Violations rule may consist of the following:
1) Failure to attach to the initiatory pleading in the complaint the required
certificate of non-forum shopping;
2) Statement in that certificate of non-forum shopping of a false certificate.
These are the forms of violation, either you do not accompany or you
accompanied the pleading but the certificate contains a falsehood.
3) The violation consists in the failure of the party to comply with his
undertaking thereafter.
Q. What is the undertaking there?
A. To notify the court to the fact that another action is pending in another court.
Therefore, the violations consists of three (3), i.e. non-submission, submitting a
false certificate and failure to comply with the undertaking to inform the court of the
pending case in another court.
Q. What are the sanctions?
A. The failure to accompany the pleading with a certificate results in a dismissal
without prejudice of the complaint or initiatory pleading upon a prior motion and a
prior hearing. In other words, where the pleading require a certificate is not
attached at, the court may not motu proprio dismiss the complaint. There should
first be a hearing either a motion of the defendant. In this case, the court may
dismiss it without prejudice.
Q. Is this all the sanction?
A. No,The counsel or the defendant may be held in contempt. And in the case of
the lawyer, he may be administratively proceeded against:
When there is a false certification, for instance, the certification stated that
there was no pending case involving the same issue in another court, when the
truth is there is.
Q. What is the sanction?
A. Not only the pleading be dismissed, not only may the lawyer be proceeded
against administratively, he may be proceeded against criminally.
Where the forum-shopping is deliberate.
Q. What are the sanctions?
A. The pleading will be dismissed with prejudice and the offending lawyer may be
held in direct contempt without prejudice to administrative proceeding against.
Take note that the party on whom the sanctions may be enforced is one
who does not comply with this certificate of non-forum shopping, only in a case
where the pleading which is not accompanied with the certificate is a complaint or
an initiatory pleading.
Where the pleading is other than the complaint, or an initiatory pleading , the
rule does not require that the pleading be accompanied by a certificate of non-
forum shopping. Consequently, where the counterclaim is compulsory, it does not
have to be accompanied by a certificate of non-forum shopping. Where the
counterclaim however, is permissive than the pleading must be accompanied by a
certificate of non-forum shopping.
 In the case of UST vs. Zula G.R.#129718 August 17, 1998 (294 S 380 ).
Only a complaint or an initiatory pleading. A compulsory counterclaim is not an
initiatory pleading. Why?
Q. When is a pleading initiatory?
A. As the term suggests, it is one, which is filed for the first time. Where a
counterclaim is compulsory it is not an initiatory pleading. Why? Because, you
cannot file a compulsory counterclaim unless there is a first complaint. That is why
a counterclaim is a reaction to the complaint. So, it is all again initiatory, because
you cannot file an independent action involving a compulsory counterclaim.
Where a counterclaim is compulsory, it must be pleaded in the answer,
otherwise, it is barred if it is filed in a separate action. But when it comes to a
permissive counterclaim, this is an initiatory pleading because it can be filed even
without a prior complaint having been filed against a permissive counter claimant.
So, in our example for instance, if A filed a complaint against B for recovery
of a lot B files a counterclaim for the value of the improvements over the land. So
you call this a compulsory counterclaim.
Q. Do you have to accompany this compulsory counterclaim of B with a certificate
of B with a certificate of non-forum shopping?
A. No, because this compulsory counterclaim is not an initiatory pleading. It is a
reaction. Without this complaint of A, there is no compulsory.
But supposing this were a counterclaim for recovery of money which B
loaned to A and B pleaded this claim of money as a counterclaim, you call this
permissive counterclaim.
Q. Do you have to accompany this permissive counterclaim with a certificate of
non-forum shopping?
A. (U.S.T. vs. Zula.) Yes.
Q. State the rule on Alternative causes of action or defenses.
A. Rule 8 Sec. 2
A party may set forth two or more statements of a claim or defense
alternatively or hypothetically, either in one cause of action or defense or in
separate causes of action or defenses. When two or more statements are made in
the alternative and one of them if made independently would be sufficient, the
pleading is not made insufficient by the insufficiency of one or more of the
alternative statements.
1) Where a person has one claim or one defense he can state that one claim
or one defense in two or more statements either hypothetically or in the
alternative.
2) Where two or more statements of a claim or a defense are made and one is
made independently of the other which is sufficient, the pleading is not
made insufficient by the insufficiency of the other statement of the claim or
the other defense.
Example:
A vs. B, this is an action for recovery of a piece of land. The defense of B is
that he (B) is the owner, because
1) he bought the land from A;
2) he inherited the land from C;
3) this lot was donated to him by D;
4) he acquired this by prescription.
Q. Could this be validly alleged as Bs defense?
A. Analysis: The defenses are inconsistent with each other.
B can allege these as his defenses in his answer. The statement of Bs
defense that he is the owner is made up of 4 inconsistent statements.
The rule says that if the statement of the claim or defense is sufficient in
itself, if made independently of the other, the pleading is not made insufficient by
the insufficiency of the statement.
RENE NOTES:
Facts that may be averred generally:
(a) conditions precedent (BUT there must still be an allegation that the specific condition precedent has
been complied with, otherwise, it will be dismissed for failure to state cause of action;
(b) malice, intent, knowledge, or other condition of the mind
(c) judgment of foreign courts, tribunals, boards, or officers (no need to show jurisdiction)
Facts that must be averred particularly:
(a) circumstances showing fraud or mistake in all averments of fraud or mistake
(b) capacity
* Two permissible ways of pleading an actionable document:
(a) By setting forth the substance of such document in the pleading and attaching said thereto as an
annex
(b) By setting forth said document verbatim in the pleading
* Where the actionable document is properly alleged, the failure to deny under oath the same results
in:
1) The implied admission of the genuineness and due execution of said document except:
(a) when the adverse party was not a party to the instrument; and
(b) when an order for the inspection of the document was not complied with.
2) The document need not be formally offered in evidence.
 answer. All those defenses, all those objections available but not so raised are
* Defenses that the opposing party may set up even after failure to deny under oath: deemed waived and abandoned.
(a) mistake;
(b) fraud;
(c) compromise; There are certain defenses or grounds of objections however which may not
(d) payment; be abandoned, either if they were not initially raised in a motion to dismiss or as an
(e) prescription; affirmative defense.
(f) want or illegality of consideration; or
(g) estoppel.
EXCEPTIONS to the G.R of FAILURE TO PLEAD
* BUT the following defenses are waived:
(a) forgery in the signature; For instance, the court has no jurisdiction over the subject matter of the
(b) want of authority of an agent or corporation; case. Suppose the case is already barred by the rule on res judicata. Suppose the
(c) want of delivery; or action has already, one that has prescribed. Suppose there is a lis pendencia and all
(d) the party charged signed the instrument in some other capacity. these four are redeemed either on the basis of the pleadings themselves or under
SPECIFIC DENIAL the basis of the evidence, the court can dismiss this action based on lack of
jurisdiction, res judicata, lis pendencia or prescription, or statue of limitation.
THREE WAYS OF MAKING A SPECIFIC DENIAL:
(a) BY specifically denying each material allegation of the party and of the other party and whenever Example:
possible, setting forth the substance of the matters relied upon for such denial; A vs. B, this is an action for forcible entry. The allegations are filed. This
case was filed in the RTC. So B did not file a motion to dismiss for lack of
(b) past admissions or past denial;
jurisdiction. Neither this lack of jurisdiction of the court to try the forcible entry case
(c) By an allegation of lack of knowledge or information sufficient to form a belief as to the truth of the alleged as an affirmative defense.
averment in the opposing partys pleading.
Q. Is jurisdiction here waived?
* A denial cannot be general, a general denial is regarded as admission on the facts stated in the A. No. Although not raised in the motion to dismiss, or although not raised as an
complaint.
affirmative defense, the court can still dismiss the case although lack of jurisdiction
* A negative defense must be a specific denial. Otherwise, the denial will be deemed as an admission was not so alleged.
and entitles plaintiff to a judgment on the pleadings Or where the evidence shows, if proceeded to trial, lack of jurisdiction or
Averments in the complaint NOT deemed admitted even if NOT specifically denied: where the evidence shows res judicata already, or where the evidence shows that
(a) Allegations as to the amount of damages (unliquidated); the action has already prescribed or the evidence shows that there is lis pendencia,
(b) Immaterial allegations; then the court can dismiss the action.
(c) Incorrect conclusions of fact; and

Averments deemed admitted if not specifically denied under oath: Default.

(a) Allegations as to usury in the complaint Default Used to be covered by Rule 18. Rule 18 was limited to default, but
(b) The authenticity and due execution of actionable documents thereto. Rule 18 now which covered default, there is another subject of Rule 9.

Rule 9: Effect of Failure to Plead Q. What is the rule of default?

General Rule: All of actions and defenses available at the time the
pleading is filed, if not raised in the motion to dismiss or as affirmative defense in
an answer are deemed waived or abandoned.
So the general rule therefore is, if you have defenses or objections, if you
will file, allege all them either in a motion to dismiss or alternative defenses in an
A. Default here means, the failure of the defendant who was validly served a
summons to file the answer within the reglamentary period.
So, if for instance, A vs. B was summoned on Dec. 10, 1999. He has only a
period until Dec. 25, 1999 or Dec. 26, 1999 assuming that Dec. 26, 1999 is a
working day within which to file the answer or only appropriate pleading. If B was
validly served under Rule 14, and fails to file the answer within that period or fails
to file any appropriate pleading within that period, we may say that B has already
incurred in default.
ALTERNATIVE AND SUCCESSIVE REMEDIES OF A PRTY DECLARED
IN DEFAULT
a) file a verified motion in set aside the order of default of any time after
discovery of the FAME and before judgment
b) if he did not file one or the same was denied, he would file a motion for
a new trial at any time after service of judgment by default and within
30 days therefrom
c) if he fail to file said motion or the same was denied, he could perfect
his appeal from and on merits of said judgment by default within the
balance of said 30-day period
d) if he failed to take any of said steps, he could file a petition from relief
of judgment within 60 days from notice of the judgment but within 6
months from entry thereof.
Where the defendant has not been validly summoned, under Rule 14, he
cannot be declared in default.
Q. How will A here secure the default of B?
A. He must file a motion in court.
Q. Can the court moto proprio declare B in default?
A. No. Even if B has not filed an answer, the court cannot moto proprio declare
the defendant in default. A must file a motion.
Q. Is B, under the new rules, entitled to a notice of the hearing of the motion to
declare in default?
A. Yes. This is now the amendment to the old Rule 18.
Under the old Rule 18, the jurisprudence thereunder, a motion to declare a
defendant in default could be validly heard without notice to the defendant. He was
not under the same rules and jurisprudence entitled to a notice of the hearing on
the motion. It means therefore, that a default motion, under the old rule, will be
held ex parte.
This is not now the rule. A here, the plaintiff, must file a motion, furnish B
with a copy of the motion and furnish B with a notice of hearing on the motion.
Ruling of the court on the motion
The court may deny or grant the motion.
Q. What are the effects of a declaration of default on the defendant?
A. There are many. In substance B loses many rights which pertain to a defendant
who has not been declared in default:
1) he cannot file an answer;
2) he cannot participate in the proceedings;
3) he cannot present evidence on his behalf;
4) he cannot cross-examine, (the witness of the plaintiff)
until he regains his standing as a defendant, because the order declaring him
in default is set aside, he is in effect outside the ring, looking at A doing his
thing.
So, a case where a defendant is not declared in default, is likened to a
boxing fight where both opponents are in the ring slugging it out. But in the
case of a defendant who has been declared in default, the only person in the
ring, is the plaintiff A and B, here the defendant is outside the ring looking at
what A is doing.
Q. What follows after the court has validly declared the defendant in default?
A. 1) The court may now render a judgment. The judgment may be either what is
solely in the allegations in the complaint without the court receiving evidence from
A, the plaintiff in support of the allegations.
2) The court may receive evidence and therafter render a judgment on the
basis of evidence presented by A.
Q. Are there limitations on the judgment that the court may render where the
defendant is declared in default?
A. Yes. The limitations are:
1) The judgment cannot award an amount to the plaintiff in excess of what
was claimed in complaint;
2) The judgment that the court may render can never be different from the
judgment prayed in the complaint.
Where a judgment is rendered without the defendant having been declared in
default, the judgment may be different from what has been prayed provided that
judgment is sustained by the evidence.
Example:
If B was not declared in default and the claim of A in his complaint for
damages is P1M, but what A proved was P1,000,000.01, the court may award A
P1,000,000.01 though it exceeds by one (1) centavo they are valid.
But in a default case, No!! even though the evidence of the plaintiff proved
that sustained damages P1,000,000.01, the court cannot award an amount in
excess of P1M (the amount claimed in the complaint).
Q. How may the defendant regain his standing as a defendant?
A. He must file a motion to set aside the order of default at any time before the
judgment has become final.
In other words, if the judgment has already become final, a motion to set aside
the order of default is no longer proper.
Q. What are the grounds of a motion to set aside a default order?
A. Since the default is by reason of failure of the defendant to file the answer,
there must be a reason why he failed to file the answer. And this must be the
reason he must alleged when he filed a motion to set aside the order of default.
Q. What are these?
A. You will say:
"I fail to file my answer because of the following:
1) Fraud was committed against me, so I did not file the answer.
2) An accident befell me. This accident prevented me from filing the
answer on time.
3) I committed a mistake and this mistake prevented me from filing the
answer
If he said I was negligent in not filing, but my negligence is excusable
because:
1)
2)
3)
These are the grounds, fraud, accident, mistake or excusable negligence,
which prevented the defendant of filing the answer. (FAME)
Q. Is it enough that these grounds be alleged in the motion to entitle the
defendant to a restoration to his status as a defendant?
A. No. The motion must be accompanied by the so-called affidavit of merit.
The affidavit of merit is composed of two (2) facts:
1) The facts constituting the fraud, the accident, the mistake, the excusable
negligence which prevented the defendant from filing the answer. So, the
defendant here must recite the facts constituting the fraud, mistake,
negligence or accident. He cannot simply say, I failed to file my answer
because there was fraud committed against me or that an accident befell
me or that I committed a mistake or that I was negligent and that
negligence is excusable. Why?
Because these are merely conclusions.
So you must state here, Fraud was committed against me, In what did
consist of? State there! Same thing with the accident, mistake or negligence.
2) The good defenses of the defendant to the action
So, in the affidavit of merits, the defendant must state there the facts
constituting his defense. He cannot simply say there, I have a good defense. No!
State there what are your good defenses.
Q. What is the reason why the affidavit of merit indicates therein the good defense
of the defendant is required?
A. The rule is based on this supposition.
The court must first examine the defenses of the defendant. To determine
whether it is proper or not proper to set aside the order of default and allow the
defendant to file his answer and adduced his evidence. Why? Because if the
affidavit of merit does not show that the defendant has good defenses so that even
if all those defenses alleged in the affidavit of merit were proven, but
notwithstanding he will not be still entitled to a judgment in his person, it would be
pointless to allow him to go to trial and prove to state which do not entitle him
anyway to any favorable ruling.
But if after the court has examined the proposed evidence as stated in the
affidavit of merit, and finds that if this evidence are established, the judgment may
be favorable to defendant, then the court will have a basis of allowing B (defendant)
to reacquire his status as a legitimate defendant.(This is the purpose.)
Q. Although a defendant has been validly summoned, can he nevertheless be
declared invalidly in default even if he did not file the answer?
A. YES. When the declaration of default is premature because at the time he was
declared B in default, the period of the filing of the answer has not yet expire.
Example:
The last day for B to file the answer is Dec. 26. The court declared B in
default on Dec. 24, 1999.
Q. Is the declaration in default proper?
A. No. B was not yet in default. Why? Because he has until Dec. 26, 1999 within
which to file the answer. So, when he was declared default on Dec. 24, 1999, he
has still an additional two (2) days within which to file the answer.
So B now files a motion to set aside this default order.
Q. Does he need to accompany his motion with an affidavit of merit?
A. No, not necessarily. Why> because the default order is illegal. You cannot
declare a defendant in default ahead of the expiration of the period of the filing of
the answer.
Q. Is the failure of the defendant to file the answer within the reglementary period
a ground to declare him in default in all cases?
A. No. There are certain cases where a defendant cannot be validly declared in
default even though he has not filed an answer within the reglementary period.
Q. What are these cases?
A. The cases are the following:
1) An action for a declaration of nullity or annulment of a marriage;
2) An action on legal separation.
In these cases where the defendant does not file the answer, the procedure to
be followed by the court is this, the court must require the prosecutor to intervene
and determine whether there was collusion between and among the parties, and
that if such prosecutor finds that there was no such collusions, to direct the
prosecutor to intervene for the purpose of seeing t it that the evidence of the
plaintiff they adduced is not manufactured or a product of a concoction, the fiscal
should determine.
Where there are two or more defendants, some of whom answered and some
do not, but the cause of action against the defendants is common to all, meaning,
the complaint alleges the cause of action common to all the defendants.
Q. What procedure should the court follow in determining the case?
Example:
A vs. B, C and D. A has a cause of action against B, C, and D. The cause of
action is common to all. Only B answered.
Q. How will the court proceed to try the case?
Is C and D declared in default? Yes.
A. Trial
Q. Does this mean therefore that the trial will no longer affect C and D?
A. The Rule is, the court will try the case on the basis of the answer filed by B.
The answer filed by B inures to the benefit of C and D. It is as if this answer filed by
B was filed not only for B but also for C and D.
This means to say therefore, that a judgment rendered binds all the
defendants. So, if B wins for instance, C and D might also win. If B looses, C and D
also loose.
This rule, however, presuppose that the action of A is against all these
defendants is common to them. So, you can declare C and D in default for their
failure to file the answer but the case shall be rendered against them on the basis
of Bs answer.
This is the essence of Rule 9.
Rule 10 : Amended Pleadings
Amendment may be a matter of right or not a matter of right, one that is
rest on the discretion of the court.
Amendment may also be of substantial matter or only on formal matters
Q. What are the rules of amendment?
A. They are as follows:
At any time before a responsive leading has been filed, the plaintiff may
file an amendment pleading once, as a matter of right . Meaning, the plaintiff does
not have to get a prior authority from the court to amend. He can amend without
getting a court order authorizing him to amend.
The plaintiff A filed his complaint against B on Dec. 1, 1998. The defendant
B was summoned on Dec. 7, 1998. So, he has a period ending Dec. 22,1998 within
which to file the answer in conformity of Sec. 1 Rule 11.
Sec. 1 Rule 11
The defendant shall file his answer to the complaint within fifteen (15) days
after service of summons, unless a different period is fixed by court.
Let us say that B filed the answer on Dec. 20 but served the copy of the
answer on A on Dec. 22, 1998. On Dec. 21, however, A now filed any motion
authorizing him to amend his complaint. So, there was no order for A to amend. B
moved that this amended complaint be stricken off the record on the ground that its
filing was not authorized because A did not have the authority of the counsel to
amend.
Q. Is the motion to strike by B, legally proper?
A. No. When A file the amended complaint on Dec. 21, the answer of B which was
filed on Dec. 20 was not yet served on A. It was served only on Dec. 22.
The rule is, at any time before a responsive pleading is served, the party
filing the pleading can amend once, as a matter of right. The right can be exercised
only once, not twice.

When the amended complaint was filed on Dec. 21, it is a matter of right,
meaning it can be exercise without a court order. When the answer of B was
already filed a day ahead or on Dec. 20.
But because the rule is very clear, there is a difference between filing and
serving under Rule 13, and under Rule 10, the starting point of the right to amend a
pleading is not the date of filing but the date of serving a copy of the pleading to
the adverse party.
The rule says, the right to amend before the responsive pleading is served
can be exercised only once. When a party therefore seeks to amend for the second
or subsequent times, his pleading, he can no longer do so as a matter of right. For
him to amend again for the second time or any subsequent time, he must obtain
prior leave of court.
Illustration:
January 10, 1999 A examined his amended complaint and found some
deficiencies thereunder which he now wanted to correct. And so the only way for
his correction would be to file a second amendment complaint.
Let us say that the last day for B to file his answer to this amended
complaint is January 15, 1999. B here filed his answer on January 13, 1999 and
served A a copy of the answer on January 15, 1999. A filed his second amended
complaint without leave of court.
Q. Could A validly file without leave of court that second amended complaint?
A. No.
Q. Why could A not since the answer for the amended complaint was not yet
served on him when he filed his second amended complaint?
A. Because the right to amend without leave of court can be exercised only once.
Q. Give us the instances when the pleading may be amended to conform with the
Evidence?
Sec. 5 Rule 10
When issues raised by the pleadings are tried with the expressed or implied
consent of the parties they shall be treated in all respects as if they had been raised
in the pleadings. Such amendments of the pleadings as may be necessary to cause
them to conform to the evidence and to raise these issues may be made upon
motion of any party at any time, even after judgment: but failure to amend does
not affect the result of the trial of these issues. If evidence is objected to at the trial
on the ground that it is not within the issues made by the pleadings, the court may
allow the pleadings to be amended and shall do so with liberality if the presentation
of the merits of the action and the ends of substantial justice will be subserved
thereby.
There are two situations where a pleading may be amended to conform to the
evidence: Instances when pleadings may be amended to conform to the evidence
1) when issues not raised in the pleading or in the trial order are tried
expressly or implicitly with the consent of the parties thereto;
2) when an issue not raised in the pleading or in the pre-trial order to be
proven by a party and objected to be tried if the presentation of the merits
of the case and substantial ends of justice are subserved thereby.
Example:
A vs. B. The complaint of A, he alleged among others that he gave a loan to
B. The loan is already overdue. Demands notwithstanding, B refused to pay. The
prayer of A is that judgment be rendered:
1) ordering B to pay A the amount loaned;
2) ordering B to pay damages to A.
The answer of B that he denies that he obtained from A. He likewise denies that
he was asked to pay A, no demand whatsoever having made. As Bs defenses, he
raised the following:
1) the action has already prescribed.
This is the only defense that B alleged.
During the trial A presented his evidence and the allegations. B presented his
evidence to prove his denial. He now tries to prove prescription. In addition, he
now tries to prove payment. In other words, B said that he already paid.
Q. Is payment an issue?
A. No. Because it was not raised in the pleading. Nothing was said in the answer
of B that he paid. The rule is you cannot prove a defense not alleged, you are
limited of proving only which you have alleged. Provided of course that, that is
disputed.
So, our rule here, under the ordinary rules of pleading particularly under
Rule 13 there having been no issue raised in the pleading with respect to payment,
then this payment cannot be proven. However, when B tried to prove this, A did not
object. On the other hand, A adduced evidence showing that there was no
payment.
Q. May the court now in deciding the case consider the evidence of payment
under this rule on amendments of pleadings to conform to the evidence?
A. The court may. It can consider it although there was no issue.
Q. In order to justify the court ruling or deciding what is allowed to do under Rule
10?
A. The court may now order A and B to amend their respective pleadings to
conform to the evidence on payment. So, B here will be allowed to amend the
answer to allege therein payment. A may now be allowed to amend his complaint to
allege non-payment to conform to the evidence.
Supposing the court did not order the amendment.
Q. Can it pass on the issue of payment?
A. Yes. The rule is, whether the pleadings have been amended or not to conform
with the evidence, the court can still rule on the issue that was impliedly or
expressly agreed upon to be tried by the parties.
So, the non-amendment of the pleading will not justify the court from refusing
to resolve this issue of payment. If there was already evidence of payment because
there was objection in this case, on the part of A that issue of payment can be
resolved by the court with or without the amendment of the pleading.
B now introduces his evidence of payment. However, A objected on the ground
that there was no allegation of payment under the cardinal rule on pleading, you
cannot prove what you have not allege. The court will say B is allowed to prove
and if A cannot show that the reception of the evidence of payment would prejudice
him. On the contrary, the court believes that presentation of evidence on this issue
of payment will be served the merits of the case or in the language of the law, the
ends of justice are subserved by the amendments.
RENE NOTES:
* When the complaint is amended, 2 situations may arise:
1) If the complaint merely corrects or modifies the original complaint, then the action is deemed
commenced upon the filing of the original complaint;
2) If the amended complaint alleges a new cause of action, then the new allegedly cause of
action is deemed commenced upon the filing of the amended complaint.
* Instances when amendment by leave of court not allowed:
1) when cause of action, defense or theory of the case is changed;
2) amendment is intended to confer jurisdiction to the court;
3) amendment to cure a premature or non-existing cause of action;
4) amendment for purposes of delay
Supplemental Pleading
Sec. 6 Rule 10
Upon motion of a party the court may, upon reasonable notice and upon
such terms are just, permit him to serve a supplemental pleading setting forth
transactions, occurrences or events which have happened since the date of the
pleading sought to be supplemented. The adverse party may plead thereto within
ten (10) days form notice of the order admitting the supplemental pleading.
Example:
A vs. B. When A file this case on Dec. 1, 1995, he could have allege only
facts that occurred before or until Dec. 1, 1995. He could not have ascertained in
that complaint of his dated Dec. 1,1995 facts which would have occurred Dec. 1,
1996. Why? Because he is not Nostradamus. He does not know what is tomorrow.
So, you cannot allege facts not yet existing at the time the pleading is filed.
Supposing there were facts already existing on Dec. 1 or before that, but
which A forgot to allege and which facts are material to his case.
Q. Can he change his pleadings? How?
A. Yes, by amended pleading to incorporate therein facts already existing at the
time of the filing of the pleading or at the time before the pleading is filed.
Q. What is a supplemental pleading?
A. A supplemental pleading is one embodying therein occurrences, facts and
events that transpired after the original pleading was filed.
So, in the example, where the suppose offer of B to settle was made on
Dec.1, 1996 and A wants to aver this in a supplemental pleading.
Q. Why supplemental?
A. Because this matter could not have been alleged on Dec. 1, 1995 because it did
not yet occurred. You will notice that the supplemental pleading is intended, as the
term suggest, to supplement or to add to the original pleading.
Unlike the amendment pleading, which supersedes the original pleading, a
supplemental pleading does not put out of existence the original pleading.
Example:
In an amended pleading of B, the moment this is filed and this is accepted,
the original pleading or complaint ceases to exist. It is no longer legally a part of the
record although it is there. It is there, but legally it is not there. It is non-existent.
You can physically see it but legally you are blind to it because an amended
pleading supersedes the original pleading.
Q. How about a supplemental pleading?
A. No, it does not supersedes. It is merely an additional. So that when a
supplemental pleading is filed, there are actually two pleadings now, the original
pleading and the supplemental pleading.
Example:
Dec. 1, 1995 A sued B the MERALCO in an action to enjoin it from
cutting off the electrical connection of A. A prayed that a restraining order be issued
while the case is going on. B, the MERALCO, alleged that A stole electricity by
installing in its electrical connections a jumper. The event which is that electricity
passing through the jumper is not recorded in the meter amounting to thousand of
pesos. A now filed an urgent motion asking the court to resolve the application for
restraining order. The court denied the TRO, so MERALCO now threatened to carry
out its original desire of cutting of the electricity. To avoid the cutting of the
electricity, A paid under protest.
The contention of A is that he did not steal it, and therefore he is
now entitled to the return of his money.
Q. Does he have to file a separate complaint to recover what he paid?
A. What he can do is file supplemental pleading alleging therein what happened.
Q. What happened here?
A. After he filed the complaint, the court denied his application for TRO, MERALCO
now threatened to cutoff his, electricity to avoid the cutting of the electricity, he
paid under protest.
Q. What is now As prayer?
A. As prayer is that MERALCO be ordered to return to him the amount he paid.
Q. Could he pray for that in his original complaint?
A. For obvious reasons, he could not have set forth that fact because it did not
have occurred when he filed the original complaint.
A supplemental pleading should be answered.
Q. When should it be answered?
A. A supplemental pleading should be answered within ten (10) days from the
notice of the order admitting supplemental pleading.
Q. What would be the basis now of B in filing the answer to the supplemental
pleading? How would B know the contents of the supplemental pleading?
A. The court furnishes B with a copy of supplemental pleading of A.
Under Rule 15, when a motion is filed, the pleadings sought to be
admitted are already attached to the motion, so the motion now carries the copy of
the supplemental pleading a complaint.
A now furnished B, when B received the order admitting the
pleading of A, he already had with him a copy. That is why, the ten (10) day period
is counted from the receipt of the order admitting the supplemental pleading.
B in this example, did not file the answer to the supplemental
pleading. A now filed a motion to declare him in default with respect to the
supplemental pleading. B now engaged Atty. Marte as his counsel.
Q. What legal procedure are you (Vanny) allowed to involve in order that this
motion of A to declare your client in default may be thwarted?
A. While it is true that the rule require a supplemental pleading to be answered,
the failure of the party to answer is not a ground to declare him in default. Why?
Because the answer he already filed to the original complaint serves as his answer
to supplemental pleading.
RENE NOTES:
AMENDED PLEADING SUPPLEMENTAL PLEADING
* refers to facts existing at the time of the * refers to facts arising after the filing of the
commencement of the action. original pleading.
* take the place of the original pleading * taken together with the original pleading.
* can be made as a matter of right as when no * always with leave of court
responsive pleading has yet been filed
Effects of Amendment Pleading
(a) Admissions in the superseded pleading can still be received in evidence against the pleader;
(b) Claims or defenses alleged therein but not incorporated or reiterated in the amended pleading are
deemed waived.
RULE 11:WHEN TO FILE RESPONSIVE PLEADINGS
Q. Give us the period within which a pleading may be answered:
1) Complaint 15 days after service of summons: 30 if foreign corp.; 60 days
if done thru extraterritorial service
2) Counterclaim 10 days form service
3) Cross-Claim - 10 days form service
4) Third Party Complaint 15 days after service of summons
5) A Complaint-in-Intervention 15 days form notice of the order admitting it
6) Answer-in a case where the motion to dismiss it is denied balance of
period required but not less than 5 days from receipt of notice of denial
7)Bill of particulars-within 10 days from the notice of the order
8)Supplemental pleading- within 10 days from service

Sec. 1 Rule 11 Complaint
The defendant shall file his answer to the complaint within fifteen
(15) days after service of summons, unless a different period is fixed by the court.
Sec. 4 Rule 11 (Counter-claim and Cross-claim)
A Counter-claim or cross-claim must be answered within ten (10)
days from service
Sec. 6 Rule 11 (Third-Party Complaint)
The time to answer a third (fourth, etc.) party complaint shall be
governed by the same rule as the answer to the complaint.
Sec. 4 Rule 15 (Complaint in Intervention)
The complaint of intervention shall be filed within fifteen (15) days
from notice of the order admitting the same, unless a different period is fixed by the
court.
Sec. 4 Rule 16 (Motion to Dismiss)
If the motion is denied, the movant shall file his answer within the
balance of the period prescribed by Rule 11 to which he was entitled at the time of
serving his motion, but not less than five (5) days in any event, completed from his
receipt of the notice of the denial. If the pleading is ordered to be amended, he
shall file his answer within the period prescribed by Rule 11 counted from service
of the amended pleading, unless the court provides a longer period.
In a case of a bill of particulars where the motion was denied or where the
motion is granted, when the bill of particulars was filed.
Q. What is the period to file the answer?
A. Sec. 3 Rule 12 Bill of Particulars
If the motion is granted, either in whole or in part, the compliance
therewith must be effected within ten (10) days from notice of the order, unless a
different period is fixed by the court. The bill of particulars or a more definite
statement ordered by the court may be filed either in a separate or in an amended
pleading, sending a copy thereof on the adverse party.
Q. Where the defendant is a foreign corporation doing business in the Philippines.
Within what period must it file its answer?
A. Sec. 2 Rule 11
Where the defendant is a foreign private judicial entity and service of
summons is made on the government official designated by law to receive the
same, the answer shall be filed within thirty (30) days after receipt of summons by
such entity.
Q. Complaint, when should it be answered?
A. Within fifteen (15) days from service of summons to the defendant.
Q. How about a counter-claim, within what period should it be answered?
A. Within ten (10) days from service of the counter-claim on the defendant with
respect to the counter-claim. The defendant in a counter-claim is the plaintiff.
Q. How about the cross-claim?
A. Cross-claim must be answered within ten (10) days from service of this cross-
claim to the proper party answering is the cross-defendant.
A third-party complaint or a fourth-party complaint or any complaint for that
matter must be answered within fifteen (15) days from service of the summons.
Complaint in intervention must be answered within fifteen (15) days from
receipt by the defendants in intervention of the order admitting the complaint-in
intervention.
In a case of a complaint which was the subject of a motion to dismiss which
was denied. The defendant has a period representing the balance of the original
period he has.But in no event should the period be less than five (5) days.
In the case of a bill of particulars, the defendant whose motion for bill of
particulars, is denied or where the bill of particulars was granted, the period within
which the defendant must file the answer would be the balance of the 15-days
period within which he should have filed the answer but in no event less than five
(5) days.
In the case of the supplemental pleading, the answer must be filed within
ten (10) days from service of the notice admitting the supplemental pleading.
Pleadings to be amended shall do so with liberality if the presentation of the
merits of the action and the ends of substantial justice will be subserved thereby.
The court may grant the continuance to enable the amendments to be made.
RENE NOTES:
* The granting of additional time to the defendant to file an answer is a matter largely addressed to the
sound discretion of the court. They may extend the time to file the pleadings but may not shorten them.
* If the filing of an amended complaint is a matter of right, the 15-day period to answer is counted
from the service of the amended complaint.
* If the filing of an amended complaint is not a matter of right, then leave of court is required, hence,
the 10-day period to answer runs from notice of the court order granting the same.
*If no new answer is filed by the defendant in case an amendment has been made after he has filed his
answer, the original answer of the defendant may serve as the answer to the amended complaint and
hence, cannot be declared in default.
Rule 12: Bill of Particulars
Q. What is the concept of Bill of Particulars?
A. The complaint or a pleading may be vague or ambiguous. This being so, the
defendant may not possibly be in a position to file an answer. Before he files the
answer, he has a remedy to secure from the plaintiff a clear allegation of the facts,
the defendant considers as vague.
Example:
This is an action filed by A against B for recovery of a lot. The
allegation in the complaint alleges that A is the owner of the lot in QC. Which he has
always been in possession of, for a number of years until B ejected him (A)
therfrom.
Q. You are B, do you know what is this lot in QC?
A. In an action for recovery, the identity of the property must be stated. So the
owner itself requires that the identity by its boundaries (technical description). A
should have described in his complaint the boundaries, area etc. of the lot in
question.
If you were B, unless you know the description of this lot A is talking
about.
Q. So what are you allowed to do before you file the answer?
A. You want that land to be identified, so you file a motion to require A to submit
a bill of particulars.
Q. What is the purpose in asking the court to order A to submit a bill of
particulars?
A. Your purpose is to allow you to properly file your answer, because unless you
know the lot A talking about, you cannot possibly file an intelligent answer. So the
purpose therefore is to clarify an ambiguity in order to answer the complaint
intelligently.
Q. When may a motion for Bill of Particulars be filed?
A. At any time within the period for the filing of the answer. In this example,
within the period of the filing of the pleading, B can file a motion to require A to
submit a Bill of Particulars.
Q. What is the effect of the filing of the motion for Bill of Particulars on the
running of the period of the filing of the answer?
A. When a motion for Bill of Particulars is filed, the period for the filing of the
answer is suspended.
Q. What does it starts to run again?
A. It starts to run again when a motion for Bill of Particulars is denied and the
defendant received a copy of the order of denial or it starts to run again when, after
the motion has been granted, the plaintiff has filed a motion for Bill of Particulars
and the defendant receives a copy of the Bill of Particulars.
Within what period should an answer be filed following the denial of the motion or
following the receipt of the Bill of Particulars?
The rule says that:
The defendant is entitled to the balance of the period he was
entitled to, at the time he filed the motion, but in no event should the period be less
than five (5) days.
So, if for instance, A filed the action against B. B received the summons on Jan. 2,
1999. He filed a motion for a Bill of Particulars on Jan. 9, 1999, so that when he
filed the motion for a bill of particulars, he already consumed seven (7) days of the
original 15-day period. So, therefore he has eight (8) days. If B received on Jan. 10,
1999 the order denying the motion or he received on this day a copy of a bill of
particulars submitted by A. B has eight(8) days counted from Jan. 10, 1999.
Therefore, his last day for the filing of the answer would be on Jan. 18, 1999.
On the other hand, if B filed a motion for a bill of particulars on Jan. 15,
1999 and therefore he has already consumed thirteen days of the original 15 days
period, consequently he has only two (2) receiving days. When he received the
order of denial on Jan. 10, 1999, he received on this day a copy of a bill of
particulars, he has still five (5) day period until Jan. 15, 1999 within which to file the
answer.
Q. Why not Jan. 12, 1999, because that is the balance to which he is entitled to at
that time?
A. Because the rule says, in no event shall the period be less than five (5) days.
Q. What are the sanctions against the failure of the plaintiff to comply with the
order of the court directing him to file a bill of particulars?
A. Should A be directed by the court to file a bill of particulars, he must do so
within the period fixed in the order, but in no event should the period be less than
ten (10) days.
So, if the court does not fix the period within which A must file the bill, it is
understood that he has a 10-day period. That period cannot be shortened, it can be
extended, but never shortened.
The sanctions against the failure of a party plaintiff to file the bill of
particulars when ordered by the court, is, the court may order the stricking out of
the pleading to which the motion for bill of particulars refers. Or the court under
Sec. 3 Rule 17 may dismiss the action for failure to comply with an order.
Under the old rules, a motion for a bill of particular was a litigated motion
because thereunder, the court must set for hearing a motion for bill of particulars.
This is no longer the case. Under the new rules, the court can resolve the
motion for a bill of particulars ex parte or with notice to the adverse party. This is
why we have a provision that upon the filing of a motion for bill of particulars, the
clerk of court should refer the motion immediately to the court, unless the court
desires that that motion be heard with due notice with the adverse party.
RENE NOTES:
* If the defendant files an answer but fails to obey an order relating to a bill of particulars or in case of
insufficient compliance thereof, the answer may be stricken off the records and the defendant be
declared in default upon the motion of the plaintiff.
Rule 13: Service and Filing of Pleadings
Q. Give the desticntions between Service and Filing.
A. Sec. 2 Rule 13
Filing is the act of presenting the pleading or other paper to the clerk of
court.
Service is the act of providing a party with a copy of the pleading or paper
concerned. If any party has appeared by counsel, service upon him shall be made
upon his counsel or one of them, unless service upon the party himself is ordered
by the court. Where one counsel appears for several parties, he shall only be
entitled to one copy of any paper served upon him by the opposite side.
Filing (Manner)
1) personally to clerk of court
2) registered mail, not ordinary mail
Example:
Suppose a pleading is filed by JRS Express or LBC
Jan. 1, 1990 the pleading was delivered to JRS Express
Jan. 15, 1990 JRS Express delivered it to the court
The date it is considered filed is on Jan. 15, which is the date it is delivered
and received by the clerk of court and not on the date of deposit to JRS Express.
Example:
A vs. B 1) A resides in Sulu, B in Batanes. In Sulu, there is no registered
mail service, then a copy of the pleading can be served only by ordinary mail.
2) There is a registered service in Sulu, but there is none in Batanes.
Service can be effected by ordinary mail.
3) There is a registered service in Sulu, and there is also a registered mail
service in Batanes, service can be done only by registered mail
Q. How about final order, judgment, resolution, how can they be served?
1) Only by personal service and
2) By registered mail.
It can never be done by ordinary mail.
Reason: There is such a thing as a period of appeal or for the performance of
some legal acts. There must be a definite starting point
Where the service is by ordinary mail, there will be no definite starting point for
the period to appeal or to that other legal acts. Why? There is no record.
But when it is a registered mail, there is a record or whether it is a personal
service, there is a record.
But in the case of ordinary mail, there is none.
Q. Where a party wants to serve a copy of his pleading or other papers, either by
personal service or by registered mail for that matter, how can such pleading or
other papers be served? (You cannot serve it personally because, let us say, the
office the adverse party is not known, his residence is not known, he cannot be
served by registered mail or by ordinary mail, for the simple reason that, you do not
know where he is. How can he be served?
The party serving must serve his pleading or other papers on the clerk of
court by proving to the clerk of court, failure to serve personally or by mail.
Example:
B files a motion (this is litigated). So he has to notify A of the motion,
because a litigated motion cannot be resolved by the court unless there is proof of
service of a copy thereof to the adverse party. B cannot serve a copy of the motion
to A because the office of A is not known. His residence is not known also. He
cannot be furnished by mail (registered or ordinary). The hearing is set on Dec. 10,
1998. So, if B cannot prove that he served a copy of his motion to A, the hearing on
Dec. 10, 1998 cannot proceed because this is a litigated motion.
Q. What is the remedy available to B even if A was not personally served with the
notice of the motion, this motion can be heard on Dec. 10, 1998?
A. All that B does is to serve a copy of his motion to the clerk of court. But of
course, B has to prove that B could not serve it on As office or residence either
personally or by mail, registered or ordinary.
This is a remedy which does not appear to be appreciated by many
lawyers.
The service on the clerk of court on that day it was served to him is
equivalent to a service of to B.
Service by registered mail.
Q. When is service by registered mail deemed complete?
A.
Example:
A vs. B. A judgment was rendered against B. A copy of that
decision was sent to him by registered mail on Dec. 1, 1998. The postmaster sent to
B on Dec. 5, 1998 a notice to the effect that this mail is pending in the post office.
So, B received it on Dec. 5. B withdrew this mail on Dec. 20, 1998. So, within the
fifteen (15) days period for the filing of the notice on appeal, B filed a notice of
appeal on Jan. 4, 1999. Jan. 5, 1999 after receiving the copy of this notice of appeal
of B, A now filed a motion to dismiss the appeal on the ground that it was filed late
beyond the reglementery period. A contented that under Rule 13, B is deemed to
have received the copy of the decision on Dec. 5, 1998. And since he has only a 15
day period from Dec. 5, 1998 within which to file the notice of appeal, this period
expired on Dec. 20, 1998. Therefore, when it was filed on Jan. 5, 1998, 16 days
already passed.
On the other hand, B in opposing this motion of A argued that he (B)
actually received from the mail on Dec. 20, 1998 the judgment. Therefore, B has a
period of 15 days counted from Dec. 20, 1998, within which to file his notice of
appeal and the last day of this 15-day period is Jan. 4, 1999. So the motion of A is
not legally tenable.
Q. What would be the correct ruling on the motion of A?
A. Sec. 10 Rule 13 Emphasis on Last sentence
Personal service is complete upon actual delivery. Service by ordinary mail
is complete upon the expiration of ten (10) days after mailing, unless the court
otherwise provides. Service by registered mail is complete upon receipt by the
addressee, or after five (5) days from the date he received the first notice of the
postmaster, whichever date is earlier.
B was deemed to have received it legally five (5) days after Dec. 5, 1998,
although he physically received it on Dec. 20, 1998.
For purposes therefore of the appeal, the 15-day period is counted from
Dec. 10, 1998 not on Dec. 20, 1998.
Q. What rule will apply if we now consider that he received it legally and physically
on Dec. 20?
A. If there was no notice from the postmaster that he has a pending mail, per Sec.
10 of Rule 13, he has deemed to have receive it when he physically received it on
Dec. 20 in which case the appeal on Jan. 4 was deemed complied.
So, in the absence of a notice given by a postmaster, to the addressee, the
service is deemed complete upon actual receipt, but if there is a first notice and the
mail is not received within five (5) days from first notice, the service is deemed
complete upon the expiration of five (5) days from the first notice.
Priority in the Service of Pleadings Personal Service
Pleadings and other papers should be served whenever practicable by
personal service. Where service other than personal is resorted to, there must be an
accompanying explanation why the pleading was served by means other than
personal service.
Q. What will be the effect of failure to comply with Sec. 11 Rule 13?
A. Sec. 11 Rule 13
Whenever practicable, the service and filing of pleadings and other papers
shall be done personally. Except with respect to papers emanating from the court.
When a pleading is served other than personal service, and there is no
accompanying explanation of this, then this pleading is deemed not to have been
filed.
This sec. 11 Rule 13 is mandatory and this is exemplified in the case of
Solar Theme Entertainment Inc. vs. CA# 3200 August 5, 1998, 290 SCRA 605.
Effective June 1, 1999, this rule must be strictly followed.
So whenever you serve, you serve personally. If you do not serve
personally, then you have to state why you furnish by means other than personal
service. An omission of this explanation is fatal because this pleading shall be
considered as not having been filed.
 (a) Written admission of the party served; or
RENE NOTES: (b) Official return of the server; or
(c) Affidavit of the party serving
* Modes of Service
A. JUDGMENTS, FINAL ORDERS AND RESOLUTIONS
(a) By personal service; or Rule 14: Summons
(b) By service by mail;
(c) By service by publication, if party is summoned by publication and has
Summons is the compulsory process issued by the court notifying the
failed to appear in the action, judgment, final order or resolution. defendant that a case been filed against him and requiring him to file the answer
within the period stated in the summons with a warning that should he fail to
- They can be served only under the three modes. answer within the reglementary period, a judgment may be rendered against him
* - They CANNOT be served by substituted service. on the basis of the evidence that the plaintiff may advance.
B. PLEADINGS Q. What is the purpose of summons?
1. personal service
(a) Delivering personally a copy to the party or his counsel or;
A. 1. Summons is intended to vest in the court the jurisdiction over the person of
(b) Leaving a copy in counsels office with his clerk or with a person having the defendant. Unless a defendant is within the jurisdiction of the court, the court
charge thereof or; cannot validly render a judgment in the case.
(c) Leaving the copy between 8 a.m. and 6 p.m. at the partys or counsels This is similar in the case of an accused who has not been arrested and has
residence, if known, with a person of sufficient age and discretion residing not been arraigned. The court cannot render judgment against on accused who has
therein if no person found in his office, or if his office is unknown, or if he not been brought under its jurisdiction.
has no office.
2. service by mail The purpose of the summons therefore is, to confer to the court jurisdiction
(a) If no registry service is available in the locality, of either sender or over his (defendant) person.
addresses, service may be done by ordinary mail. Just to show you that the jurisdiction of a court to the person of the
(b) With proof of failure of both personal and service by mail. defendant is a must, is the fact that Sec. 1 Rule 16 includes in its enumeration
grounds of a motion to dismiss the fact that the court has not acquired jurisdiction
Completeness of a Service over the person of the defendant.
1. Personal Service So, when the court has no jurisdiction over the person of the defendant, the
- by handing a copy to defendant; or court cannot validly render judgment.
- tendering him a copy if he refuses
- complete upon actual delivery
Q. How is summons served?
2. Service by ordinary mail:
Complete upon expiration of 10 days after mailing, unless the court provides A. Summons is served either by 1) personal service: 2)by substituted service,3)
otherwise. service by publication or4) by any other means which the court finds it proper.
3. Service by registered mail:
(a) Complete upon actual receipt by the addressee; or There are four (4) means:
(b) After 5 days from the date he received the first notice of the postmaster, Personal service which is preferred.
whichever date is earlier.
Proof of Filing
* Filing is proved by its existence in the record of the case. If it is not in the record, and: Q. What does personal service consist?
- if filed personally: proved by the written or stamped acknowledgment of its filing by the A. It consist of actually giving to the defendant a copy of the summons, the
clerk of court on a copy of the same; or complaint and all other documents accompanying the complaint.
- if filed by registered mail: proved by
(a) the registry receipt and Q. Supposing the defendant said, Ayaw ko, I will not receive, the person serving
(b) The affidavit of the person who did the mailing. it kick it towards the defendant, is it served?
Proof of Service
* Proof of personal service:
A. Yes, even though the defendant did not sign. Whether he signs or not in the
acknowledgment of his receipt of the summons, hes deemed to have already been
served.
If you cannot serve it to him personally because you cannot find him in the
place where you thought you could find him. Then you resort to a substituted
service.
Q. In what way may substituted service be effected?
A. The sheriff or process server must leave the summons, the complaint and all
the other documents attached thereto with a person living in the house of the
defendant.
Q. With any person?
A. No, only a person of sufficient age and discretion.
Q. So, the process server goes to the house of the defendant but does not find the
defendant there because he is out but finds a neighbor who is visiting in that house
and leaves the summons with the visitor, is there a valid substituted service?
A. No, because that visitor is not a person living in that house.
You go the house of the defendant, nobody is there. Then you go to his
office, if the defendant is not there, leave that summons with the person in charge
of the office.
Q. What is the jurisprudence of substituted service?
A. Substituted service is the interrogation of the rights of the defendant.
Therefore, substituted service can be effected only when the defendant cannot be
served personally within a reasonable time.
Q. What time will it be reasonable?
Supposing the sheriff or process server went to the house of the defendant
once and did not find him there
Q. What is required of a sheriff or process server to do when he resorts to
substituted service?
A. He must state in his return of service, a return of service is the report that the
server, sheriff or process server renders to the court on what he did with that
summons (or sheriffs return- other term for return of service). The server, whether
he is the sheriff or the deputy sheriff or the process server, is required to render a
report on what he did.
Where the service is substituted, the sheriff, the process server or whoever
was commissioned to serve it must state in his report the following:
1. the impossibility of serving the summons personally;
2. the reason for such impossibility;
3. how the summons was effected; meaning therein the particulars such as the date
of service, on whom it was served and how it was served.
Unless all this data appear on the return, the substituted service is null.
Q. When may summons by publication be effected?
A. In the following cases, summons by publication may be effected:
1. where the defendant is sued as an unknown defendant;
2. where the whereabouts of the defendant is unknown; they could not be
ascertained notwithstanding diligence in ascertaining such whereabouts;
3. when the defendant is a resident defendant but is temporarily out of the
Philippines;
4. when the defendant is a non-resident defendant and the actions against
him be any of the following:
a. an action which involves the personal status of the plaintiff;
b. the subject matter of the suit is real property
The reliefs prayed for respecting the real property are as follows:
1. to exclude the defendant from any claim that he may
have over that property; or
2. where the property is a property of the defendant and
this property has been attached.
Q. How may a non-resident defendant be summoned when the case against him is
any of the case above-mentioned (action involving the civil status of the plaintiff or
an action involving real property in the plaintiff?
A. There are several ways of serving:
1. by personal service
This means to say that the court in the Philippines can send somebody abroad
to serve personally the summons.
2. by publication in a newspaper of general circulation for such period of time
that the court may deem proper. But in this case, a copy of summons and
the complaint and all the other papers attached to the complaint must be
sent by registered mail to the last known address of the defendant.
3. by any means that the court may find proper.
In the Cariaga vs. Malaya case, the then Judge Antonio Malaya of CFI Manila
ordered the defendant residing in USA summoned by registered mail. The
defendants received the registered summons. So they file a motion to dismiss
the complaint on the ground of lack of jurisdiction of the court over their * BUT where the defendant was declared in default to the original complaint and the plaintiff
persons. They argued that the summons effected then by means of registered subsequently filed an amended complaint, new summons must be served on the defendant on the
amended complaint, as the original complaint was deemed withdrawn upon such amendment.
mail was not a valid summons. They contented, in short, that summons cannot
be served by registered mail. * Service of Summons on Different Entities
Supreme Court overruled this contention. Supreme Court holding that under
Sec. 15 of Rule 14, service of a summons by registered mail is covered by the A. SERVICE ON ENTITY - upon any or all defendants being sued under common
phrase, any other means that the court may find proper. WITHOUT JURIDICAL name; or
PERSONALITY - person in charge of office
In the case of a foreign corporation doing business in the Philippines, the B. SERVICE UPON - serve personally and on guardian or any person
MINORS AND exercising parental authority over him;
period depends on whom was the summons served. INCOMPETENTS - in case of minors: by serving upon the minor,
If the summons was served on its agent or representative in the Philippines, regardless of age, AND upon his legal guardian, or
the period is fifteen days. also upon either of his parents.
If on the other hand, the summons was served on a government officer, - In case of incompetents: by serving on him personally
the defendant has a period of thirty (30) days from receipt of the summons AND upon his legal guardian, but not upon his parents,
within which to file an answer. unless when they are his legal guardians
- IN ANY EVENT, if the minor or incompetent has no
legal guardian, the plaintiff must obtain the
Where a defendant is summoned under Rule 14 under Sec. 15 thereof, the appointment of a guardian ad item for him.
defendant has a period of sixty (60) days from notice within which to file the C. SERVICE UPON - Serve an officer having management of the jail or
answer. PRISONER prison
D. SERVICE UPON - To the president, managing partner, general manager,
Sec. 15 Rule 14 DOMESTIC PRIVATE corporate secretary, treasurer or in-house counsel
JURIDICAL ENTITY - Service upon a person other than those mentioned is
invalid and does not bind the corporation.
When the defendant does not reside and is not found in the Philippines and E. SERVICE UPON - Serve on (15) resident agent; or if none;
the action affects the personal status of the plaintiff or relates to, or the subject FOREIGN PRIVATE - Govt official (30) designated by law; or
matter of which is, property within the Philippines, in which the defendant has JURIDICAL ENTITY - On any officer or agent of the corporation within the
or claims a lien or interest, actual or contingent, or on which the relief Philippines
demanded consists, wholly or in part, in excluding the defendant from any F. SERVICE UPON PUBLIC - In case defendant is the Republic of the Philippines
interest therein, or the property of the defendant has been attached within the CORPORATIONS by serving upon the Solicitor General
- In case of a province, city or municipality, or like
Philippines service may, by leave of court, be effected out of the Philippines by public corporations by serving on its executive head,
personal service as under section 6; or by publication in a newspaper of a or on such other officer or officers as the law or the
general circulation in such places and for such time as the court may order, in court may direct.
which case, a copy of summons and order of the court shall be sent by G. EXTRA-TERRITORIAL 1. Requisites
registered mail to the last known address of the defendant, or in any other SERVICE a) defendant does not reside or is not found within the
manner the court may deem sufficient. Any order granting such leave shall Philippines
b) the action either:
specify a reasonable time, which shall not be less than sixty (60) days after * affects the status of the plaintiff;
notice, within which the defendant must answer. * relates to or the subject of which is property within the
Philippines on which defendant has a lien or interest;
* demands a relief which consists wholly or in part in excluding
RENE NOTES: the defendant from any interest in any property within the
Philippines;
* Where the defendant has already been served with summons on the original complaint, no * property of defendant has been attached to the Philippines
further summons is required on the amended complaint IF it does not introduce new causes of
action. 2. Mode of Service
a) with leave of court served outside the Phil. By personal
 service; or
b) with leave of court served by publication in a newspaper of There are many incidents while a case is pending, incidents in connection
general circulation, in which case copy of the summons and
with which a party may want to secure a particular relief.
order of court must also be sent by registered mail to the last
known address of defendant; or
c) any other manner the court deem sufficient. Example:
H. SERVICE UPON Substituted service or with leave of court, personal service out of A vs. B.
RESIDENT TEMPORARILY the Philippines as under extraterritorial service. After this complaint was filed on Jan. 2, 1999, B now files a motion to
OUT OF THE PHILIPPINES dismiss.
* Where the defendant is a resident and the action is personam, summons by publication is invalid
as being violative of the due process clause.
Q. What does B want as a relief?
A. Dismissal of the complaint.
* Any form of appearance in court, by the defendant, by his agent authorized to do so, or by
attorney, is equivalent to service except WHERE such appearance is precisely to object to the Q. Will there be a trial on the merits of the case when this case will be dismissed/
jurisdiction o the court over the person of the defendant. A. None.
* Inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person
of the defendant5 shall not bee deemed a voluntary appearance.
Example:
Trial is set. Either A or B is not ready to go to the trial. So A or B wants the
trial to be cancelled. So that if the trial was set on Jan. 24, 1999, either A or B will
file with the court a paper asking therein that this date of hearing be cancelled.
Rule 15: Motions So, whatever relief you want to obtain from the court before the judgment,
Motion is defined as an application for a relief not embodied in the pleading. you can obtain that only by means of a motion. Why? Because you cannot
incorporate in your complaint or complaints in intervention this reliefs which will not
Q. What are pleadings? constitute a judgment on the merits of the case.
A. They are the complaint, counterclaim, cross-claim, third party complaint, So whatever you want to get from the court, you get that through a
complaint in intervention, or answer pleading called motion. That is why Sec. 1 Rule 15 defines a motion as an
application for a relief not included in a pleading.
Sec. 1 Rule 15 But if you want to obtain a judgment on the merit, you can prove that by
A motion is an application for relief other than by a pleading. means of a complaint, answer, counterclaim, etc.

Example: Q. What are the kinds of motions?

A vs. B. A. There are two (2) kinds of motion:
You have a complaint then an answer and after trial you have the judgment 1. Non-Litigated motion
or decision. The relief prayed for by A is that a judgment be rendered against B 2. Litigated motion
declaring A owner of the land and ordering B to turn over to A the possession of
the land, ordering B to pay him damages. A non-litigated motion is one, which a court can act upon without hearing
In so far as B is concerned, the relief prayed for by B is the dismissal of the the adverse party because the adverse party does not have the right to oppose
complaint of A. A prayed that he (B) declared the owner of the land. application for relief and should the court resolve this motion without hearing the
adverse party is nevertheless not prejudiced.
May either of the parties secures any relief other than a judgment, between
the tie this case is pending and times this case is decided. Example: (Non-litigated Motion)
B the defendant files a motion for extension of time within which to file the
A. Yes, in between the course of the proceedings, there be many relief a party answer.
may prayed for but not a judgment.
Q. Does A, the plaintiff have the right to resist this motion such that if he has, this
motion cannot be heard unless he (A) be first notified.
A. A motion for extension of this is one, which the court can resolve ex parte.
Meaning, without the presence of the adverse party. Why? Because even
though the court acts on the motion, it will not in anyway prejudice the right of A.
So, A may resist the motion. It is non-litigated. It can be heard without notice of A.
Where, however, the motion is litigated, the court cannot validly act on the
motion, without the previous notice on the adverse party, without giving the
adverse party the opportunity to object therein. Why? Because a litigated motion
adversely affects the right of the adverse party. Consequently, unless the adverse
party is notified of the hearing of that motion, the court cannot hear it, and if the
court hears it, the hearing is void.
Example: (Litigated Motion)
A vs. B. B files a motion to dismiss. The court resolves his motion to dismiss
without a prior notice given, the plaintiff A.
Q. Is the action of the court in resolving the motions without giving notice to A
proper?
A. No, because this is a litigated motion.
Q. Why is it litigated? What would be the effect if the court would now grant the
motion to dismiss?
A. The complaint will be dismissed even without being heard. This is not proper.
The hearing without notice of A, the plaintiff, will prejudice A. Why? Because had he
been notified and would have objected and his objection may be considered by the
court, then therefore, the motion to dismiss may be denied.
So we say that in a motion to dismiss, A the plaintiff has the right to be
heard or to resist the motion and unless the motion is heard in accordance with
Rule 15, the court cannot validly rule on the motion.
When a party files a motion for the admission of a pleading, that party must
attach to the motion the pleading desired to be admitted.
Example:
A vs. B. B files a motion to amend the complaint. The amendment not being
a matter of right so in this motion, A should already attach the copy of the
amended pleading. The advantage is this, the period for the filing of responsive
pleading is shortened, unlike the old rule, under the old rule, if a party wanted to
file a motion for the admission of an amended complaint, he could file the amended
complaint only after the court has already granted the motion. So, there will be
considerable delay. Under the new rule now, no more, if you want the pleading to
be admitted, attach that to your motion.
A motion must be set for hearing not later than ten (10) days from the date
of its filing. So if the motion is filed Dec. 1, 1998, the latest date this motion will be
set for hearing is Dec. 11, 1998. It could not be set Dec. 12, because it exceeds
already. This is if you follow strictly the rule.
There is one exception however to this rule, and that is a motion for
summary judgment. Under the rule on summary judgment, the motion should be
set for hearing in such a manner that a ten 10-day period must elapse between the
services of the motion to the adverse party and the date of the hearing. In other
words, under the rule on summary procedure, you cannot set your motion for
hearing earlier than ten days. It must done so within 10 days.
RENE NOTES:
Kinds of Motions
a) Motion ex parte made without the presence of a notification to the other party because the
question generally presented is not debatable
b) Motion of course where the movant is entitled to relief or remedy sought as a matter of discretion
on the part of the court
c) Litigated Motion one made with notice to the adverse party to give an opportunity to oppose
d) Special motion motion addressed to the discretion of the court
General Rule: A motion cannot pray for judgment
Exceptions:
1. Motion for judgment on the pleadings
2. Motion for summary judgment
3. Motion for judgment on demurrer to evidence
General Rule:
3-day notice rule-service of the copy of motions should be made in such a manner as shall ensure its
receipt at least three days before the hearing
Exceptions:
1. Ex parte motions
2. Urgent motions
3. Motions agreed upon by the parties to be heard on shorter notice or jointly submitted by the parties
4. Motions for summary judgment which must be served at least ten days before its hearing
* Any motion that does not comply with sections 4, 5 and 6 of Rule 15 is a mere scrap of paper, should
not be accepted for filing, and if filed, is not entitled to judicial cognizance and does not affect any
reglamentary period involved for the filing of the requisite pleading.
Rule 16: Motion to Dismiss
Q. When should a motion to dismiss be filed?
A. At anytime within the period for pleading but before the answer has been filed.
Grounds of Motion to Dismiss are specifically mentioned on Sec. 1
1. lack of jurisdiction of the court over the person of the defendant
2. lack of jurisdiction of the court over the subject matter of the case
3. improper venue
4. lack of legal capacity of the plaintiff to sue
5. Litis pendentia
6. extinction of claim by reason of payment, abandonment, waiver or any other
ground of extinction of the obligation
7. the claim is barred by statute of fraud or barred by res judicata
8. the action is barred by prescription
9. No cause of action
10. failure to comply with certain conditions precedents
With respect to jurisdiction over the person of the defendant, you know
very well that, unless the court acquire jurisdiction over the person of the
defendant, the court cannot validly render a judgment.
There are two (2) ways the court may acquire jurisdiction over the person
of the defendant:
1. By the issuance of the summons and its valid service on the
defendant;
2. By the voluntary appearance of the defendant before the court.
With respect to voluntary appearances the voluntarines of the appearance
may be manifested by the filing of the pleading with which a party seeks a relief
other than the dismissal of the complaint based on lack of jurisdiction of the court
over the persons of the defendant.
Example:
A sued B. B was not summoned. Upon hearing, however, he was sued. So,
he filed in court a motion for extension of time to file the answer. The court granted
the motion; B did not file the answer. The plaintiff now moves that B declared in
default. B opposes the motion saying that the court has not acquired jurisdiction
over his erson because he was not summoned.
Q. Is the contention of B correct?
A. No, because when B filed a motion for extension of time to file the answer, he
prayed for a relief and that is the extension of the time. By so filing the motion, he
voluntarily recognized the jurisdiction of the court over his person.
Example:
B, the defendant was not validly summoned. He nevertheless filed a motion
to dismiss on the ground that the court has not acquired jurisdiction over his
person. He prayed for the dismissal of the complaint. The motion was denied.
Q. Is B deemed to have voluntarily submitted himself to the jurisdiction of the
court by filing this motion to dismiss?
A. No, because precisely he contested the jurisdiction of the court over his person.
Let us assume in this example that B files a motion to dismiss on several
grounds, the foremost of these is that, the court did not acquire jurisdiction over his
person because no valid summons was served on him. In addition to this ground,
he also invoke the following:
1) the venue is improperly laid;
2) the facts alleged in the complaint do not constitute a cause of action.
Q. The motion was denied, is B deemed to have submitted himself to the
jurisdiction of the court?
A. No, where the motion to dismiss is based on lack of jurisdiction of the court
over the person of the defendant, because he was not validly summoned, but in
addition to this ground he adds other grounds, the filing of the motion does not
amount to a submission of himself to the jurisdiction of the court.
Under the old rule, if a defendant files a motion to dismiss, on the ground that
he was not validly summoned and therefore the court has never acquired
jurisdiction over his person, and in addition, added other grounds such as improper
venue or failure of the complaint to state the cause of action, he is deemed to have
submitted himself to the jurisdiction of the court.
Q. What is meant by, lack of jurisdiction of the court over subject matter of the
case?
A. Jurisdiction of the court over the subject matter of the case simply means that
the court has under the law the authority to decide that particular case. Jurisdiction
is conferred by law.
See B.P. Blg. 129 The Judiciary Reorganization Act of 1980 as amended.
Sec. 19 Enumerates the cases triable by RTC
Sec. 33 Enumerates the cases triable by inferior court
Where, therefore a court tries a case which is not among those enumerated
under the law as within the competence to try, we say that the court has no
jurisdiction over the subject matter and therefore that is a ground to dismiss.
Example:
Under B.P. 129 Sec. 33 as well as under Rule 17 and under the Rule on
Summary Procedure, an action for forcible entry and detains is triable exclusively by
the MTC.
A sued B for forcible entry. He files this in the RTC.
Q. Is B here within his rights to file a motion to dismiss based on the ground of
lack of jurisdiction of the court to try the case?
A. yes
Q. A vs. B, filed a suit for declaration of nullity of marriage. This was filed in the
MTC. But an action for declaration of nullity of marriage is one triable by the RTC. B,
now can file a motion to dismiss.
A. Yes
Q. May there be a situation when a court does not have jurisdiction over the
subject matter of the case and yet the court can validly try and decide the case?
A. Yes, there is such a thing as estoppel by laches in jurisdiction.
When does the court not have jurisdiction but it can decide validly the case.
This is best illustrated in the case of Tijam vs. Sibunghanay. This case, A suit
was filed by A against B in CFI of Manila to recover an amount. The amount sought
to recover was one within the jurisdiction of the MTC, but the parties went to trial.
No one raised the question of lack of jurisdiction of the court. So the case was
decided in favor of A. The judgment became final. The judgment sought to be
against C was acted as surety of B. C resisted the action. He went to trial never
raising the question of lack of jurisdiction of then CFI of Manila. C allowed the case
to be tried as against him to enforce his liability as a surety of B. C elevated the
matter to the CA. CA affirmed the judgment of CFI against C. C filed a motion for
reconsideration. Denied! It was only thereafter that he now files a motion
questioning the jurisdiction of the court to decide the case. Reason: CFI of Manila
did not have jurisdiction to render a judgment because the subject matter was
within the jurisdiction of the MTC not the CFI. Therefore, C argued that jurisdiction
can be raised at anytime on appeal. CA denied. The matter reaches the SC. Issue:
Whether the judgment of CFI affirmed by CA is valid?
SC ruled that the judgment is valid. Reason: While it is true CFI has no
jurisdiction to try the case, the parties went to trial without raising the question of
jurisdiction and because of the long passage of time between the rendition of the
judgment and the time the motion questioning the lack of jurisdiction was raised,
was already too long. C is estopped already to question the lack of jurisdiction of
the CFI.
In another case, judgment was rendered by the trial court. The amount
involved is more than P200,000. B appealed to CA. A, the prevailing party, went to
CA have this appeal litigated. At the time of the appeal, jurisdiction over cases
involving more than P200,000. is lodged with SC. A now contented that the appeal
of B would not be entertained by CA for lack of jurisdiction of CA.
SC ruled that because of the doctrine of estopped by laches, A by agreeing
that that this appeal be litigated in CA is estopped to question the appellate
jurisdiction of CA.
Here is now the motion to dismiss by B filed in this case of A. B here is the
movant.
Q. What are the requirements?
A. All the grounds enumerated under Rule 16 as grounds for motion to dismiss
must be averred in the motion to dismiss. On the strength of the omnibus motion
rule.
So, if you have five (5),you must allege all of them, because if you do not
allege all the others already available but not raised are deemed waived. So, if you
have five (5) grounds and you raised only three (3), the remaining two (2) are
deemed waived. Therefore, they cannot be proceeded after the motion is filed.
Of course A has a right to oppose. He can file his opposition. The trial of the
motion to dismiss may require the presentation of the evidence of the movant. So,
B may present his evidence to support his motion. A may also adduce his evidence.
Therefore, the court will resolve the case. The court may either order the
amendment of the complaint or dismiss the complaint. If he dismisses, it means it
grants the motion to dismiss. It cannot defer ruling on a motion to dismiss on the
ground of the motion is not indubitable.
Under the old rules, the court could defer ruling on a motion to dismiss of
the ground that the basis therefore is not indubitable.
This is not now. The court must, take positive stand to order amendment,
grant the motion or deny the motion.
Let us assume however that instead of filing a motion to dismiss, the
defendant files an answer.
Q. What is the defendant allowed to do if he files an answer with respect to the
grounds of a motion to dismiss?
A. The rule is, the defendant may allege in his answer as defenses all the grounds
of a motion to dismiss.
 In our example B, instead of filing a motion to dismiss, he filed an answer.
If in the answer he alleges as defenses the grounds for a motion to dismiss, for
instance, improper venue, or lack of legal capacity.
Q. Can B prove this ground alleged in his defenses even before A presented
evidence?
A. Under Rule 30 on Trial, it is the plaintiff who starts presenting the evidence. It
is not the defendant. Unless for some valid reasons the court may order the trial to
be reversed.
Q. But in this case, without reverse order of trial under Rule 30, may B be allowed
to prove his defenses even before A has proven his case?
A. Yes.
B after filing the answer, he may now file a motion for a preliminary hearing
on the defenses. It is as if he filed a motion to dismiss. If the motion for preliminary
hearing the evidence of A can now receive the evidence of B with respect to those
defenses.
However, the court will grant the motion for a preliminary hearing on the
defenses is a matter of discretion on the part of the court. It is not a right of the
defendant. It is a matter governed by the discretion of the court. Therefore, the
court can grant the motion and in this case, it will receive evidence on the defenses
or it may deny hearing.
Supposing the motion to dismiss was heard during which the parties
presented their evidence and the motion to dismiss is denied.
Q. What is the effect of the denial on the evidence of the parties adduced during
the hearing of the motion?
For instance, during the hearing of the motion, B presented X, Y and Z and
A presented C, D and E, the motion to dismiss was denied. What becomes now the
testimony of X, Y and Z, C, D and E?
The rule is their testimonies will be deemed reproduced automatically
during the trial on the merits of the case.
Let us assume in this example, the court have the defenses founded to be
established, the case will dismissed even without A having presented his evidence.
Let us suppose that in the answer, B pleaded a counterclaim against A.
Q. What becomes the counterclaim with the dismissal of the complaint of A?
A. Where a complaint is dismissed, the counterclaim is automatically dismissed. On
the theory that a counterclaim derives its life from the complaint. This means if the
complaint no longer exist, there is no longer any legal basis, which a counterclaim is
supposed to stand. This is the old rule.
The new rule now is,where the defendant alleged as defenses in his answer
grounds for a motion to dismiss is granted , the counterclaim pleaded in the answer
is not dismissed. The dismissal is limited to the complaint. This means therefore
that, even though there is no longer any complaint, which will serve as the basis of
a counterclaim, the counterclaim survives the dismissal.
Q. If the counterclaim can subsist, in what proceeding can it be prosecuted
considering that the main case is already been dismissed?
A. Dont worry, because the law has given the defendant two (2) options:
1. he can move the counterclaim be litigated in the same case; or
2. B may file an independent civil case based on that counterclaim.
Q. If the motion to dismiss is granted, can the plaintiff re-file the case?
Supposing the complaint was dismissed on the ground of improper venue, the
complaint does not state the facts constituting a cause of action.
Q. Can the case be re-filed?
A. The rule is, depending on the ground of the motion to quash, that where the
dismissal of complaint arising from a grant of a motion to dismiss may bar the re-
filing of that case in the following cases:
1. res judicata
2. unenforceability of the contract to the bond based on the Statute of
frauds
3. the claim has been paid, abandoned or waived or otherwise
extinguished
4. Prescription
In all these cases, the order of dismissal is res judicata. It becomes final.
The action cannot be revived.
On the other hand, if the ground of the motion to dismiss is other than any
of these grounds already mentioned, the order dismissing is not res judicata,
therefore, the same complaint may be re-filed.
Q. When the motion to dismiss has been denied, within what period should the
defendant filed the answer?
A. Under the old rule, the defendant was given anew 15 days from receipt of the
order denying the motion to dismiss. In other words, he was given a new period of
15 days.
This is not the rule now. Under the new rules, he shall be granted a period
representing the balance of the period following the service of the motion. You no
longer count the period from the day you filed the motion to dismiss. You count
now the period from the date the motion to dismiss was served. (Judge Lagui was
wondering whether this could have been an error. This word service could have
been meant filing because it is the usual period. Look at Rule 12, when motion of
a Bill of Particulars is denied and that the defendant is to answer, the remaining
period is counted from the balance of the pleadings counted from the day he filed
the moiton.
Look at Sec. 4 Rule 16
If the motion is denied, the movant shall file his answer within the balance
of the period prescribed by Rule 11 to which he was entitled at the time of serving
his motion, but not less than five (5) days in any event, computed from his receipt
of the notice of the denial. If the pleading is ordered to be amended, he shall file
his answer within the period prescribed by Rule 11 counted from service of the
amended pleading, unless the court provides a longer period.
Would not this word serving meant filing. If we apply literally this
provision, the situation would be like this
Example:
A vs. B.
B was summoned Dec. 8, 1998. Under Rule 11 Sec. 1, B has a period
ending Dec. 23, 1998 within which to file the answer. He (B) filed his motion to
dismiss on Dec. 15, 1998 but served a copy of that motion on A on Dec. 17, 1998.
The motion to dismiss was denied in an order dated Jan. 10, 1999. B served this
order on Jan. 15, 1999.
Q. So, within what period should B file the answer?
A. If you apply Rule 16, Sec. 4, you count the period from Dec. 17, 1998. So, if
that is the case, he would have only 6 days counted from Jan. 15, 1999 so the end
would be on Jan. 21, 1999. But if youre counting on the date of filing of the
motion, he had eight (8) days. So 8 days would give you until Jan. 23, 1999.
(Judge Laggui is still wondering up to this very moment you are reading this note
whether this word serving would have been an error. It could have meant filing 1. ORDER GRANTING motion to dismiss is a
because the usual counting of the period starts from the date of filing, not the date
of serving. All other provision of the Rules make the filing the basis, not serving.
This is only the provision which makes the starting point the date of service.
But we have to follow because there is no reason why we should not
follow.)
But in all events, irrespective of the number of days left, the minimum is five (5).
So that in our example, if we apply this rule, he (B) furnished a copy on A
Dec. 23, 1998, there was no day anymore left of the original 15-day period. So,
when he received the order of denial on Jan. 15, 1999, he (B) can still file the
answer within five (5) days from Jan. 15, 1999 or on Jan. 20, 1999.
Where the evidence of the parties is received in support of the motion to
dismiss and/or support of the position to the motion and the motion is denied, and
the trial should thereafter proceed.
Q. What now becomes of the evidence received during the hearing?
A. Evidence will be automatically reproduced as evidence of the parties during the
trial of the merits of the case.
That means to say therefore, X, Y and Z, who testified on the motion to
dismiss, when court decides the case on the merits, the court can consider the
testimonies of X, Y and Z even though X, Y and Z no longer appear during the trial
on the merits of the case.
RENE NOTES:
MOTION TO DISMISS UNDER RULE 16 MOTION TO DISMISS UNDER RULE 33
(demurrer to evidence)
* grounded on preliminary objections * based on insufficiency of evidence.
* may be filed by any defending party against * may be filed only by the defendant against the
whom a claim is asserted in the action. complaint of the plaintiff.
* should be filed within the time for but prior to * may be filed only after the plaintiff has
the filing of the answer of the defending party to completed the presentation of his evidence.
the pleading asserting the claim against him.
Effect of motion to dismiss:
- A motion to dismiss hypothetically admits the truth of the facts alleged in the complaint.
However, such admission is limited only to all material and relevant facts which are well
pleaded in the complaint.
* An action cannot be dismissed on the ground that the complaint is vague or indefinite. The remedy of
the defendant is to move for a bill of particulars or avail of the proper mode of discovery.
EFFECTS OF ACTION OF MTD REMEDY
1. appeal from the order of dismissal
final order
2. ORDER DENYING the motion to dismiss is 2. certiorari and prohibition if there is grave abuse
interlocutory of discretion amounting to lack or excess of
jurisdiction
Rule 17: Dismissal of Actions
Q. What are the situations covered by Sec. 1, 2, 3, and 4?
A. The situations covered by Rule 17 are dismissal of a complaint or a
counterclaim or a cross-claim or of a complaint in intervention or of a third-party
complaint.
Sec. 1 contemplates a situation where the plaintiff initiates the dismissal of the
action.
Sec. 2 covers the situation where the plaintiff still initiates the dismissal of the
action, which is different, whereas under Sec. 1, he can dismiss as a matter of right
without court authority. In Sec. 2, he cannot dismiss without court authority.
In Sec. 3, it is a dismissal of the action of the plaintiff either at the instance of the
defendant or at the instance of the court.
In Sec. 4, it is the dismissal of the counterclaim or cross-claim.
Q. How does Sec. 1 operate?
A. There are two (2) situations covered:
The rule says, that anytime before an answer or a motion for summary
judgment has been served on the plaintiff, the plaintiff may dismiss his action by
filing a notice of dismissal.
Q. What is the effect of this notice of dismissal?
A. The notice of dismissal produces a dismissal without prejudice. This means that
plaintiff can re-file the case.
Q. When can he not re-file the case by reason by his having filed a motion of
dismissal?
A. When in his notice of dismissal he started that the dismissal is with prejudice.
However, the rule says, where the plaintiff has filed a notice of dismissal but
he previously filed a notice of dismissal. This means to say that he filed a notice of
dismissal for the second time.
Q. What does the rule say?
A. The dismissal filed for the second time produces a dismissal with prejudice. It
means to say that, where the complaint is dismissed for the second time because of
a notice of dismissal filed the second time, the dismissal is with prejudice. This
means to say therefore that the plaintiff cannot re-file the action for the third time.
(TWO DISMISSAL RULE)
Q. What is the action that the court must take when a notice of dismissal is filed?
Will it order the dismissal of the complaint?
A. No. All that it does is to issue an order confirming the fact that the plaintiff
dismissed the complaint.
Under the old rules, the court was not required to do anything upon the filing
of the notice of dismissal. Why? Because the filing of the notice of dismissal
automatically dismisses the complaint. And so, if you did not know Rule 17 and you
went over the record of the case where a notice of dismissal was filed, you would
not know what is the status of the case.
But in this innovation now requiring the court to issue an order confirming
the dismissal. A person goes over the record will now know what happened with his
case. Because with that confirmation, it would now be clear that the case was
dismissed.
Example:
Dec. 1, 1997, A filed an action against B who was summoned Dec. 5, 1997.
Under Sec. 1 Rule 11, B has until Dec. 20, 1997 within which to file the answer. Let
us assume that B filed the answer on Dec. 15, 1997. However, on Dec. 16, 1997, A
filed a notice of dismissal.
Q. Could A file his notice of dismissal on Dec. 16 considering that the answer was
filed on Dec. 15?
A. Yes, because it (answer) was not yet served. It was served only on Dec. 17.
Q. What is the effect of this dismissal of A?
A. It is a dismissal without prejudice except when the notice of dismissal stated
that it is with prejudice.
Q. On Dec. 16 when the notice of dismissal was filed, what happened now with
the complaint filed on Dec. 1?
A. It is automatically dismissed.
Q. Does the court have to the order the dismissal?
A. No. All that the court has to do is to confirm the dismissal. But there will be no
legal objection if the court issues an order not only confirming the dismissal but also
an order of dismissal. It is unnecessary.

Dec. 20, 1997, A re-filed the same case. B was summoned on Jan. 10,
1998. B now filed the answer Jan. 20, 1998. B has a period until Jan. 25, 1998.
However, B served on A, a copy of the answer on Jan. 25, 1998. On Jan. 22, 1998,
A filed the second notice of dismissal.
Q. What is the effect of the second notice of dismissal?
A. It is a dismissal with prejudice.
Q. Supposing in the notice of dismissal filed on Jan. 22, A said it is with prejudice,
will the resulting dismissal be also without prejudice?
A. NO, because it is not for the plaintiff to characterize the effect of the dismissal
as provided by law.
Q. Why is the dismissal with prejudice now?
A. Because Sec. 1 says, a dismissal produces a dismissal with prejudice if filed by
a person who previously filed a notice of dismissal.
This is now a dismissal with prejudice regardless of what A stated in the
notice of dismissal.
Q. Supposing the court issued the order saying that the dismissal is without
prejudice, is that order valid?
A. No, because the court cannot characterize the effect of the second dismissal.
The law provides the effect. It is always a dismissal with prejudice.
March 10, 1998, A filed a case against B. B now files a motion to dismiss on
the ground of res judicata. He now says this third complaint is barred by res
judicata. The second dismissal produced by the filing on Jan. 22, 1998 is a dismissal
with prejudice.
Q. Is the contention of B correct?
A. Yes. This must be now dismissed because this is barred by the second
dismissal.
This section embodies the so-called Two Dismissal Rule.
Sec. 2 Rule 17 is still a dismissal at the instance of the plaintiff, however
its dismissal is no longer a matter of right. If ever any dismissal is granted, it must
be on application of the plaintiff and upon approval of the court.
Q. When may a plaintiff dismiss his action with leave of court?
A. After a responsive pleading have already been served on the plaintiff or after a
motion for summary judgment has already been served on the plaintiff. He can no
longer dismiss as a matter of right. He can dismiss it only upon application of the
plaintiff and upon approval by the court of the motion.
But the dismissal under Sec. 2 Rule 17 even if granted by the court, maybe
subject to certain conditions that the court may impose.
Q. What is the effect of the dismissal under Sec. 2 Rule 17?
A. It is still a dismissal without prejudice unless the court provides otherwise.
Q. Should a compulsory counter-claim be pleaded in the answer, what would be
the effect of the dismissal under Sec. 2 Rule 17 on the counterclaim?
A. The counterclaim is not dismissed.
Q. In what proceeding may it therefore be prosecuted?
A. It may be prosecuted in the same case provided that within 15 days from
receipt of motion to dismiss, the plaintiff manifest to the court that he desires that
the counterclaim be litigated in the same case, otherwise, the counterclaim maybe
litigated in a separate action.
Example:
Q. B either serve on A his answer or his motion for summary judgment on Dec.
10, 1998. On Dec. 15, 1998, A now files a motion of dismissal without leave of
court. Can he validly do that?
A. No.
Q. But can he still file it?
A. Yes, but with a proper motion that he be allowed to dismiss. That motion
maybe granted by the court. If the court grants it, the court may impose a condition
for the dismissal.
Q. Why is it no longer a matter of right on the part of the plaintiff to file a notice
of dismissal after he has been served the answer or a motion for summary
judgment?
A. Where B has a counterclaim, B has a right to have that counterclaim be
litigated and resolved. So, if he (B) objects, the court may grant the motion but
subject now to the dismissal of the action.
Q. What would be the effect of a motion of A to dismiss his complaint?
A. If the motion is granted on the counterclaim the dismissal of the action is
limited to the complaint. The counterclaim is unaffected. B, therefore, can litigate
the counterclaim either in the same case or B may file in a separate action to
enforce the counterclaim.
Q. When may B prosecute his counterclaim in the same case?
A. If within 15 days from receiving the notice of dismissal, he manifests to the
court that he desires that his counterclaim be litigated in the same case, otherwise,
the counterclaim must be litigated in a separate action.
This Sec. 2 Rule 17, with respect to the effect of the dismissal on the
counterclaim traces its rules to the case of B.A. Finance vs. CA
Facts:
A, the corporation sued B. On pre-trial, A failed to appear. On motion of B,
A was declared non-suited and the complaint dismissed. After the dismissal of the
complaint, B now moved that a date is set on the reception of his evidence on the
counterclaim. (Motion for Hearing on the Counterclaim)
A opposed the motion on the ground that, under the rules and
jurisprudence then obtaining, the dismissal of the complaint carries with it
automatically the dismissal of the counterclaim. The theory being that, a compulsory
counterclaim derives its life from the complaint. If the complaint therefore no longer
exist, there is no longer any basis for the counterclaim to subsist. The RTC
sustained the opposition applying the rule then. B now elevated the matter to CA,
questioning the order of the RTC. CA ruled that the order was wrong. Meaning in
substance, that the dismissal of the complaint of A and B could no longer litigate
and prove his counterclaim. So the dilemma cause by this ruling is this What then
would be the remedy of a defendant with respect to his counterclaim if the
complaint is dismissed? There can be no way by which the defendant-
counterclaimant can prosecute his counterclaim. This was an obiter dictum. (This is
not the ruling of the court, its a side issue.)
Justice Bellosillo, the ponente suggested this remedy. Where the complaint
is dismissed, and the defendant has a counterclaim, this should be the procedure to
be adopted by the defendant. So that he can prosecute his counterclaim.
Simply, that the plaintiff be declared non-suited.
Q. What is the effect of a non-suit?
A. The plaintiff cannot prove his complaint. But the complaint subsists. It is there
but it cannot be proven.
Do not move for the dismissal of the complaint.
Q. What next should be done by B following the declaration of non-suit of the
plaintiff?
A. He should now move that A, the plaintiff be declared as in default with respect to
the counterclaim.
Under the old rule then (Sec. 2 Rule 20), the failure of a defendant to
appear for a pre-trial may be a ground to declare him as in default with respect to
the counterclaim. So, the defendant with respect to the counterclaim is A. Since A
did not appear for the pre-trial, he may now be considered as having failed to
appear for the pre-trial on the counterclaim. What B should do here is to move that
A be declared as in default with respect to the counterclaim.
If A now be declared as in default with respect to the counterclaim, the next
move of B now is to prove with his evidence his counterclaim. Why? Because A is
merely non-suited, the complaint is there, it is not dismissed. A cannot only prove it,
but it is there. So, with the complaint still subsisting although it can no longer be
proven, there would still be a basis for the counterclaim.
This is the basis of this rule now that the dismissal under Sec. 2 Rule 17 of
the complaint does not operate as a dismissal without prejudice unless either the
plaintiff manifest in his motion that the dismissal be with prejudice or that the court
orders that the dismissal is with prejudice.
When you say with prejudice, it means that the complaint cannot be
received or re-filed.
This is the concept of dismissal under Sec. 2 Rule 17.
Q. What is the dismissal under Sec. 3 Rule 17?
A. This time, the dismissal is no longer at the instance of the plaintiff. It is now at
the instance either of the defendant or of the court itself.
There are three (3) grounds for a dismissal under Sec. 3 Rule 17:
1. the failure of the plaintiff to appear for hearing on a day during which
he is supposed to present his evidence in chief on his complaint;
2. the failure of the plaintiff to prosecute for an unreasonably period of
time his action;
3. the failure of the plaintiff to comply with this Rules or with the order of
the court.
Q. What is the nature of dismissal under this case?
A. A dismissal under Sec.3 Rule 17 is a dismissal with prejudice unless the court
provides otherwise.
When the dismissal order is not qualified, it simply says that the complaint
be dismissed pursuant to Sec. 3 Rule 17, the dismissal is with prejudice.
Take note that the absence of the plaintiff for a hearing is not in itself a
ground for a dismissal under Sec. 3 Rule 17. It is an absence during the hearing
during which he is supposed to present his evidence in chief on his complaint. His
absence on any other hearing is not a ground for dismissal under Sec. 3 Rule 17.
Example:
Following the pre-trial, the case was set for hearing on Dec. 10, 1998. A
received the notice of hearing. On this day (Dec. 10), he is supposed to present his
evidence in chief, meaning, his initial evidence on his complaint. He does not appear
for the hearing on this day without valid reason.
Under Sec. 3 Rule 17, the court can dismiss the action of A, or on motion of
B, the court may dismiss the action.
Q. Supposing on the hearing on Dec. 10, 1998 is for the reception of evidence of B
or the reception of the rebuttal evidence of A, but A was not present on this day,
may the complaint of A be dismissed under Sec. 3 Rule 17?
A. No; for the simple reason that it was no longer his turn to present the evidence
in chief on this day. It was the turn of B. The complaint cannot be dismissed
because this situation presupposes that A already presented his main evidence, or
his evidence in chief, or part of his evidence in chief. Because let us assume that A
did not finish his presentation of his initial evidence in chief. Subsequently, he was
absent and the motion of the defendant the court ordered that the presentation of
the evidences of the plaintiff so he was unable to complete, but he had partially
produced his evidence.
Q. Can the action now be dismissed?
A. No.
Supposing on Dec. 10, 1998 A was supposed to present his rebuttal
evidence, but he did not appear.
Q. May his action now be dismissed?
A. No, because his absence amounts merely to a waiver of the presentation of his
rebuttal evidence. He already produced his evidence in chief, which will be the basis
of that judgment
The failure of plaintiff to prosecute for an unreasonably long period of time.
Remember that under Rule 18, after the last pleading has already been
filed, it is the duty of the plaintiff to move ex parte for a pre-trial to be held. It is no
longer the duty of the clerk of court under the new rules to set the case for pre-
trial. It is now the duty of the plaintiff to see to it that after the last pleading has
been filed, a pre-trial be held.
If the plaintiff does not move to set for pre-trial case following the filing and
service of the last pleading and the intervening period between the filing and
service of the last pleading and the inaction of the plaintiff and in the view of the
court unreasonable, then the court motu proprio may dismiss the action, or on
motion of the defendant, the action may be dismissed. Or, a trial has been set
following a pre-trial, but the trial on the merits is postponed, no fixed date was set
in the order of the court, A simply waits for the court to set the case for hearing. He
does not reset it but still remain unconcern the action may be dismissed.
Q. How long a period of time should elapse following the filing of the complaint in
order that the inaction of the plaintiff to prosecute it may be considered an inaction
for an unreasonably long period of time?
A. There is no fix period considered as reasonable. Each case must have to be
determined according to the peculiar circumstances of the case.
So, in some cases of an inaction for a year would be unreasonable. There
is no fix period. It depends upon the appreciation of the court according to its
peculiar circumstances.
The failure of the plaintiff to comply with the rules (Rules of Court) and
with the order of the court.
You dont realize how potent a weapon is this in the hands of the court
because orders are meant to be carried out, or to be implemented. They are
commands from the court and therefore should not be taken lightly.
Q. So, what are the penalties?
A. Take for instance this actionable documents. Under the rule, where an action or
defense is placed in an actionable document, a copy of that document must always
be attached to the pleading or the text of the document should be quoted verbatim
in the pleading without the necessity of attaching to the pleading a copy thereof or
an action based on an actionable documents.
When there is no compliance with this rule such that neither is the text of
the document quoted in the pleading nor a copy of the document is attached to the
pleading, this is a plain violation of the rule on actionable documents.
So, under Sec. 3 of Rule 17, this failure of the plaintiff to comply with the
order of the court may give rise to dismissal. Take note, however, that the order
referred to it must be a lawful order. One that is authorized by the Rules.
But this is not a requirement.
RENE NOTES:
Two Dismissal Rule
* The second notice of dismissal operates as an adjudication on the merits, when filed by a plaintiff
who has once dismissed in a competent court an action based on or including the same claim
- also applicable to special proceedings
* The court is not required to issue an order of dismissal but is required only to issue an order
confirming the fact that the plaintiff dismissed the complaint.

-When voluntary dismissal applicable:
1. Before a responsive pleading is served
2. Before a motion of summary judgment is served
3. If none, before introduction of evidence at trial or hearing
SECTION 2
1. dismissal is at the instance of the plaintiff;
2. dismissal is a matter of procedure, without
prejudice unless otherwise stated in the order of
the court or on plaintiffs motion to dismiss his
own complaint;
3. dismissal is without prejudice to the right of the
defendant to prosecute his counterclaim in a
separate action unless 15 days from notice of the
motion he manifests his intention to have his
counterclaim resolved in the same action.
SECTION 3
1. dismissal is not procured by plaintiff though
justified by causes imputable to him;
2. dismissal is a matter of evidence, an
adjudication on the merits;
3. dismissal is without prejudice to the right of the
defendant to prosecute his counterclaim on the
same or separate action.
A. None. So, the case is now ready for pre-trial.
Q. Supposing the last pleadings required are not filed, with the period of filing
thereof already expired, may the pre-trial be held?
A. Yes. The rule is this, pre-trial may be held upon the filing of the last pleading
without the last pleading having been filed.
Where the last pleading has not yet been filed, and the period for filing
thereof does not yet expire, pre-trial is premature.
Q. What things shall be considered in pre-trial?
A. They are specified in the rules.
Under the Old Rule, it was the duty of the Clerk of Court to set the case for
pre-trial upon the filing of the last pleading or the expiration of the period for the
filing thereof. This rule is no longer obtains.

The rule now is, the duty to move that the pre-trial be set, is now lodged
RULE 18: PRE-TRIAL with the plaintiff.
Example:
A B C D Q. What are the things to be considered during the pre-trial?
1. Complaint 1. Answer to As 1. Answer to As 1. Answer to Bs A. There is a enumeration in the Code. Substantially, they are as follows:
complaint complaint third party to consider the possibility of a settlement of the case;
complaint to consider the possibility of stipulations of facts to be arrived at;
2. Counterclaim 2. Counterclaim 2. Answer to Cs the possibility of the rendition of a judgment on the pleading or of a
against A against A third party summary judgment
complaint the limitation of the issues;
3. Cross-claim 3. Answer to Bs 3. Counterclaim the marking of the exhibits;
against C cross-claim against B stipulations of as to waiver of objections to documentary exhibits
4. Third party that may be presented;
against D and all other matters that may lead to speedy disposition of the
(After these, the pleadings are filed.) case.
2. Answer to 5. Reply to As 5. Reply to As 4. Reply to the
counterclaim of B answer to answer to answer of the The preliminary purpose of pre-trial is to terminate as soon as possible a
counterclaim counterclaim counterclaim case so that if a case can be settled during the pre-trial, so much the better, but
3. Answer to Cs 6. Reply to Cs 6. Answer to Bs there is no such settlement, that stipulations that may be agreed upon, the marking
counterclaim answer to cross- cross-claim of exhibits, the waiver of objections to the admissibility of exhibits, the limitations of
claim the issues will all contribute towards the early disposition of the case.
7. Answer to
counterclaim of D Notice:
For purposes of the pre-trial, the parties must be notified of the pre-trial
Q. Is there any other pleading required to be filed after these pleadings have been date. If they are represented by a counsel, there is no need for the parties to be
filed? notified. Why? Because in this case, their respective counsel will be the one to be
notified of the pre-trial and it is now the duty of the counsel to notify their
respective clients of the pre-trial.
Q. Why is there a need for the presence of the parties during a pre-trial?
A. Because, among the many purposes of a pre-trial is to allow the parties to sit
down together and enter into a settlement if they can.
Normally, a lawyer cannot enter a settlement on behalf of their clients unless
they are specifically armed with written authority. So, only the parties can agree on
the settlement. This is the reason why they must be present.
Q. Supposing a party is notified of a pre-trial but does not attend the pre-trial, but
his lawyer does, will the action now of the plaintiff or defendant for that matter
during the pre-trial carry with it a sanction against the absent party?
A.
Example:
A vs. B.
A was notified of the pre-trial. A was not present during the pre-trial, but
lawyer, Atty. X, was.
Q. What is the sanction against A?
A. His complaint may be dismissed with prejudice.
Supposing it is B who was absent, his lawyer, Atty., Y was present.
Q. What is the sanction against B?
A. The plaintiff A will now be allowed to present his evidence ex parte, meaning in
the absent of defendant B.
Let us reverse.
A was present during the pre-trial, but his counsel, Atty. Y was not.
Q. Will the absence of the counsel now entitle B to present his evidence?
A. No.
Q. Supposing B was present, Atty. Y was not, will that now allow A to present his
evidence?
A. No.
It is the absence of the parties, not their respective counsels that may give
rise to the imposition of the corresponding sanction against the absent party.
Q. May there be a situation, however, where a party can be absent from a pre-
trial and yet the absence will not give rise to the corresponding sanctions?
A. Yes. When the absence of the party is justified or when the absent party is
represented by a person who is duly authorized in writing to act for the party for
purposes of pre-trial.
So, if A cannot personally appear, he may commission another person to
appear for him for purposes of the pre-trial. For instance, his lawyer may appear for
him provided that Atty. X carries with him a written authority.
In the same way if B is not present, he can appoint a third person. He may
appoint his lawyer, Atty. Y to act for him, provided Atty. Y carries with him a written
authority.
Q. Is it enough that the person authorized carries with him a written authority in
order that he can validly appear for the litigant for purposes of pre-trial?
A. No. Because the written authority must specify these three (3) specific powers
of the agent.
So if A appointed Atty. X as his agent for purposes of pre-trial or if B appoint
Atty. Y as his agent for purposes of pre-trial, the power of attorney of Atty. X or
Atty. Y, must state the following:
that X or Y is authorized to the following (X for A or Y for B):
1. the authority to settle the case by way of a compromise;
2. the authority to enter into stipulations of facts or admission of
documents
3. the authority to submit the case to other alternative modes of
disputes resolution.
The written authority must specify these three (3) authorities, otherwise,
the written authority is incomplete for purposes of pre-trial.
So, if an agent appears for the plaintiff or a defendant with a written
authority, but the written authority does not specify all these three (3) authorities,
this written authority is incomplete and he cannot legally appear for the plaintiff or
defendant, as the case may be.
Q. What is the sanction against the failure of a party to appear a pre-trial?
A. If it is the plaintiff who is absent and the absence is unjustified or that he has
no authorized agent, the sanction is this his complaint is dismissed with prejudice.
If it is the defendant who is absent, the sanction is, the plaintiff is allowed to
present his evidence ex parte, meaning in the absence of A.
The natural consequence of this is if B has any counterclaim, then the
counterclaim, will be dismissed because of his (B) action.

Take note that during the pre-trial, the rendition of a judgment, summary in
character or the rendition of a judgment on the pleadings may be proper.
Q. Can the court immediately following the pre-trial render a summary judgment
or a judgment on the pleadings?
A. Take note that what the Rules authorized to be done during the pre-trial is only
to consider the possibility, not that the court will immediately render a summary
judgment or that the court will render a judgment on the pleading. Why? Because
there are requirements before a judgment summary in nature or a judgment on the
pleadings can be rendered to be complied with.
For instance, in the case of a judgment on the pleading, there must be a
motion filed for the rendition of a judgment. Likewise in the case of a summary
judgment under Rule 35, there must be a motion for the rendition of a summary
judgment. So, the court cannot immediately following a pre-trial, render a judgment
on the pleading for a judgment summary in nature. There must first be a hearing in
accordance with the pertinent rules.
Pre-trial Brief
The rule requires that the parties must file a pre-trial brief.
Q. What is the sanction against the failure of a party to file a pre-trial brief?
A. The rule says that, the failure to file a pre-trial brief may be given the effect the
failure of a party to appear for a pre-trial.
So, when the plaintiff for instance does not file its pre-trial brief, his
complaint may be dismissed. If the defendant does not file his pre-trial brief, the
plaintiff will be allowed to present his evidence ex parte. This is the sanction.
Q. When must the pre-trial brief be filed?
A. A pre-trial brief must be filed at least three (3) days before the pre-trial.
Meaning that, at least three (3) days before the pre-trial, the pre-trial brief must
have already been filed and served on the adverse party.
Take note also that a pre-trial brief requires certain matters to be specified
therein. Among others, the following are required to be stated in a pre-trial brief:
1. the numbers of witnesses of a party;
2. the gist of the proposed testimony of a witness;
3. copies of documents that may be offered for admissions;
4. the pre-trial brief must state the purpose for which the documents are
offered.
This requires that the gist of the testimony of a witness or that copies of
documents intended to be submitted in evidence attached to the pre-trial brief is
requirement that finds the justification in Rule 132. Rule 132 requires that before a
witness testify, the purpose of the offer must be specified and that no evidence
shall be admitted unless it is formally offered and the purpose of the offer is
justified. This is the basis of this requirement. So, the pre-trial brief must include
the gist of the testimony of a witness or the purpose for which the documents are
offered in evidence.
Following the inclusion of a pre-trial, the court is required to issue a
corresponding pre-trial order.
Q. What is a pre-trial order? What is its importance?
A. The pre-trial order is a resum of what transpired during the pre-trial. In
effect, it is a summary of what happened. If there are stipulations in the pre-trial,
those stipulations are reflected in the pre-trial order.
Q. What is the importance of a pre-trial order?
A. The pre-trial order governs the subsequent course of the trial so that, the trial
will be limited only to those issues that have been raised in the pre-trial order.
While this Rule 18 does not expressly state that the pre-trial must specify the
issues, Rule 30 implies that the pre-trial order must specify the issues. Why?
Because under Rule 30, the presentation of evidence of the party is limited to the
issues raised in the pre-trial order. So that if there are only two (2) issues
mentioned in the pre-trial order, no party is allowed to introduce evidence on any
matter other than on these two (2) issues. If there is a third issue, any party cannot
prove it as a matter of right because they are limited only to prove the issues raised
in the pre-trial order.
Of course we take into account also another rule that is the rule on
amendment of the pleadings to conform to the evidence. Issues that may not have
been raised during the pre-trial may be tried during the trial under these two (2)
situations:
1. a party tries the issue and the other does not object; as a matter of fact
he conforms, and in the case this issue can be tried
2. a party seeks to prove an issue which is not incorporated in the pre-trial
order, the adverse party objects but the court finds that the
presentation of that merits of the case would best be sub-served by
allowing this issue to be proven, subject to the amendment of the
pleading to conform with the evidence.
These are the exceptions to the rule that unless otherwise specified in the
pre-trial order, no issue can be tried.
Q. What is the significance of this rule that the pre-trial order governs the
subsequent course of the trial and the pre-trial order cannot be amended unless
necessary, to avoid injustice being committed?
A. Where a pre-trial order has already been issued, that pre-trial order cannot be
changed, so the trial will now be governed in accordance with the pre-trial order.
However, this pre-trial order may be modified, if necessary to avoid
injustice being committed if trial is limited to what is stated in the pre-trial order.
Q. What would be the justification for an intervention?
A. The party intervening may have an interest against the plaintiff in this case. He
may be interested in the success of B or he may have an interest adverse to A, and
therefore he has an interest against for A and B or he may be so situated that any
disposition of the property in the hands of the court affect him. So, he can now
intervene in this case. So that he can protect whatever rights he alleges he has.

RENE NOTES: Q. When will C in our example file a motion for intervention?
What are considered at pre-trial A. At any time before a judgment has been rendered in the case.
1. possibility of an amicable settlement
2. submission to alternative modes of dispute resolution
a. arbitration The motion for intervention will have to be heard in accordance with Rule
b. mediation 15 (Motions). This means to say therefore, that C will notify both A and B of the
c. conciliation hearing of this motion for intervention.
3. simplification of the issues
4. amendment to the pleadings Q. What may the pleading (intervention) that he (C) can file?
5. possibility of obtaining stipulation of facts or admissions of facts
A. It may be a pleading in intervention called a complaint in intervention.
6. limitation of the number of witnesses
7. reference to a commissioner
8. possibility of judgment of the pleading If he (C) joins A against B or if he has an interest against both A and B, so
- need for motion he will file a complaint in intervention. Or he may file an answer in intervention if he
9. possibility of summary judgment joins B as against A, he will file an answer in intervention. Whatever pleading he will
- need for motion file, when a complaint in intervention or an answer in intervention, that pleading
10. dismissal of action
must be attached to the motion for intervention. So, the motion for intervention is
11. suspending the proceedings
12. other matters that may aid in the prompt disposition of the action accompanied either by the complaint in intervention or by the answer in
intervention. This will now be heard by the court.
* The pre-trial and trial on the merits of the case must be held on a separate dates.
Q. Will the court grant or deny the motion for intervention?
Rule 19 :Intervention A. The answer depends on the answer to the following questions:
1. will the intervention delay the case between A and B?
A vs. B. They are litigating for a piece of land. A says, I am the owner. B
2. may the right of C, C protected in a proceeding other than in this case
says, I am the owner. So, the issue is, who is the owner? However, a third
between A and B?
person, claims that he is the owner of the lot in question.
If the answer to the first question is yes, meaning, the intervention will
Q. How can C protect his right over this land?
delay the disposition of the case, then the court may deny the motion.
A. C may come in to the picture as an intervenor. Unless, he (C) is allowed to
If the answer to the second question is yes, then the court may deny the
intervene in this case, his right will be adversely affected and he has no way of
motion for intervention.
protecting himself because he is outside the kulambo.
If the answer to both questions is no, meaning, the intervention will not
delay the right of C cannot be protected in another proceeding, then the court may
Q. What is the remedy?
grant the motion for intervention.
A. File a motion for intervention.
Q. If the intervention filed by C is a complaint in intervention require an answer?
Q. Can anybody just file a motion for intervention?
A. Yes. A and B if they are the defendants in the intervention may file an answer
A. No.
to the complaint in intervention.

Q. Within what period must they file?
A. They must file the answer to the complaint in intervention within fifteen (15)
days from receipt of the order of the court admitting the motion for intervention.
Q. How will A and B know what the allegations are in the complaint in intervention
since they are not summoned under Rule 14 with respect to the complaint in
intervention?
A. Remember what we said earlier when C filed the motion for intervention,
attached to the motion was already a copy of the complaint in intervention.
So, even before they receive the order granting the motion for intervention,
A and B already have with them the copy of the complaint in intervention.
Remember that the complaint in intervention is not served on A and B by summons.
It was served to them by C, by furnishing them a copy.
After the intervention is allowed, then the court can hear the case, the case
is between A and B and thereafter, the intervention.
Q. In an intervention and an independent action in the sense that if the complaint
is dismissed, the complaint in intervention may likewise be dismissed or is a
complaint in intervention one that can be treated independently of the main case so
that regardless of the outcome of the main case, the intervention remains
unaffected?
A. (Unanswered Judge Lagui became ill)
When he returned
We have two (2) cases of this:
1. Expropriation case
Municipality of Norzagaray filed an action against X, Y and Z for
expropriation of lot. While this case was pending, the mayor of Norzagaray
manifested his intention to withdraw the complaint. Why? Because the municipality
was unable to procure the presidential approval of the exercise of the municipality
of the right to expropriate. The law at that time require a presidential approval on
the exercise by the municipality of the right to expropriate. The people of certain
barrio of Norzagaray, Matictic, having heard of the intention of the mayor to
withdraw filed now an intervention motion. Why did this Matictic people want to file
an intervention motion? Because through this lot sought to be appropriated was a
road, which the people of Matictic used in going to the highway. But they had to
pay the owners passage fee. So, it was to their interest therefore that this property
be expropriated so that they would be relieved of the burden of paying. The Mayor
however, did not file formally a motion to withdraw the complaint. Because of this,
the court motu proprio dismissed the complaint for failure to prosecute and of
course for lack of presidential authority. The dismissal took place before the court
could rule on this motion for intervention. He dismissed the case outrightly. The
matter reached the SC.
Issue: Whether the intervention of Matictic people could still survive because of the
dismissal.
Rule: The intervention could no longer be entertained because of the dismissal of
the case.
Years later another case involving the foreclosure of mortgages, of real and
chattel.
X obtained various loans from different mortgages and to guarantee the
payment, X constituted real estate mortgages and chattel mortgages. Among the
many assets of X subject of the mortgages was a building (GEA Building).
On this building where installed were aircon units which subject of a chattel
mortgage in favor of Y. This building was eventually sold to C. Y now filed a suit
against C for replevin for the recovery of this aircon units claiming that he (Y)
furnished the aircon units to X, and which X gave Y by way of chattel mortgage.
While this case was pending, A filed a motion for intervention on the ground
that if he (A) supplied X the money with which X acquired these aircon units. The
motion for intervention was granted and so A now filed the complaint in
intervention which as a matter of fact was amended later on. In the meantime, Y
and C entered into an amicable settlement. By reason of this settlement, this
complaint of Y was dismissed. Later on Y questioned the propriety of the court
having authorized the amendment of the complaint in intervention of A. With the
dismissal of the case, this intervention of A can no longer subsist on the theory that
an intervention is merely an adjunct of the main case. This is the theory.
This contention was overruled.
The matter reached the SC.
Issue: Whether the trial court was correct in still maintaining this intervention of A
notwithstanding the dismissal. SC said that this dismissal of the complaint of Y
against C did not affect at all the intervention of A. In other words, the intervention
of A still continue even if after the main case has already been dismissed.
Reason: Since A was already allowed to intervene, he acquired a right to participate
and therefore, that right cannot be adversely affected by the agreement between Y
and C. Their agreement was binding only on themselves, it did not bind A.
Q. What do you notice upon these two (2) cases?
A. Apparently, they are contradictory, because in the first, with the dismissal of
the complaint, the intervention could no longer be maintained. In the second, the
dismissal of the main complaint notwithstanding, the intervention could be
maintained.
Q. But are they in fact conflicting?
A. This is how Justice Regalado, our commentator in Remedial Law, tried to SUBPOENA SUMMONS
reconcile the two. And he came out with a conclusion that actually there is no * an order to appear and testify or to produce * order to answer complaint
books and documents
contradiction between the two. * may be served to a non-party * served on the defendant
* needs tender of kilometrage, attendance fee and * does not need tender of kilometrage and other
Q. How did he reconcile? reasonable cost of production fee fees
A. In the Matictic case, when the complaint was dismissed, there was as yet no SUBPOENA AD TESTIFICANDUM a process directed to a person requiring him to attend and to
intervention to speak of. Why? Because the court never ruled on the intervention; testify at the hearing or the trial of an action, or at any investigation conducted by competent authority,
and therefore, the barrio people of Matictic never became intervenors. And so, they or for the taking of his deposition.
have no right whatsoever that could be affected by the dismissal.
SUBPOENA DUCES TECUM a process directed to a person requiring him to bring with him
But in the case of Metrobank, there was already an intervention allowed at books, documents or other things under his control.
the time dismissal of the main complaint was effected. So, the right of the
intervenor could no longer be adversely affected by whatever agreement the Who may issue subpoenas:
original parties have because it (Metrobank) was not a party to the agreement. a. Court before whom the witness is required to attend
The Rule is clear, an agreement or a contract binds only parties thereto, its b. Court of the place where the deposition is to be taken
c. Officer or body authorized by law to do so in connection with investigations conducted by
heirs and successors in interest.
said officer or body
So with these, it would seem that as long as an intervention has been d. Any Justice of the SC or of the CA in any case or investigation pending within the
allowed, it can be determined independently of the main case. The original Philippines
comment on this rule is that a motion for intervention is merely an auxiliary
proceeding giving risk to the implication that if the main case of which it is merely * The clerk of court shall issue under the authority of the judge.
an auxiliary, ceases to exist because of the dismissal, the intervention would
* No prisoner sentenced to DEATH, reclusion perpetua or life improsonment shall be brought out
likewise be dismissed.
of a penal institution UNLESS authorized by the Supreme Court.
In this Metrobank case, it would seem that its no longer correct.
Going back to the last example where C is interested, the court will hear Subpoena duces tecum may be quashed upon proof that:
the case of A and B and receive the evidence of the parties, then the court will also a. It is reasonable and oppressive;
receive the evidence of C and thereafter decide the case. So, it is like a three- b. The articles sought to be produced do not appear prima facie to be relevant to the issues;
cornered flight like that of KARAMBOLA. c. The person asking for the subpoena does not advance the cost of production of the articles
desired.
RENE NOTES:
Subpoena ad testificandum may be quashed:
Who may intervene
1. if the witness is not bound thereby
a. one who has legal interest in the matter in litigation
2. no tender of witness fee or kilometrage
b. one who has legal interest in the success of either parties
c. one who has interest against both parties
Consequences of an Unjustifiable refusal to obey subpoena:
d. one who is so situated as to be adversely affected by a distribution or other disposition of
a. The court which issued the subpoena may issue a warrant for the arrest of the witness and
property in the custody of the court or of an officer thereof
make him pay the cost of such warrant and seizure, IF the court should determine that this
disobedience was willful and without just cause;
INTERVENTION INTERPLEADER b. The refusal to obey the subpoena shall be deemed a contempt of the court issuing it.
* an ancillary action. * an original action
* proper in any of the four situations mentioned in * presupposes that plaintiff has no interest in the
this Rule. subject matter of the action or has an interest Rule 22:Computation of time
therein, which in whole or in part, is not disputed Rule 22 refers to the computation of a period fixed by the law, by the rules,
by the other parties to the action or by an order of the court.
* defendants are already original parties to the * defendants are being sued precisely to implead Sec. 1 says:
pending suit them. In computing any period of time prescribed or allowed by these Rules, or
Rule 21: SUBPOENA
by order of the court, or by any applicable statute, the day of the act or event from
which the designated period of time begins to run is to be excluded and the date of
performance included. If the last day of the period, as thus computed, falls on a
Saturday, a Sunday or a legal holiday, the time shall not run until the next working
day.
Just know what Article 13 of the Civil Code says on the matter.
Article 13 of the New Civil Code
When the law speak of years, months, days or nights, it shall be
understood that years are of three hundred sixty five days each; months of thirty
days; days, of twenty-four hours; and nights, from sunset to sunrise.
If months are designated by their name, they shall be computed by the
number of days, which they respectively have.
In computing a period, the first day shall be excluded, and the last day
included.
Example: A vs. B.
A was summoned Dec. 16, 1999. Under Sec. 1 of Rule 11, B has a period of
fifteen (15) days from service of summons on him.
Under the provisions of Article 13 of the New Civil Code. exclude the first
and include the last rule, you compute this 15-day period from Dec. 17, 1999. So
you will have up to Dec. 31, 1999. But Dec. 31 is usually a legal holiday, so the next
day will be Jan. 1, but Jan. 1 is also a holiday, so the 15-day period will expire on
the following day, assuming that Jan. 2 is not a Saturday or is not a Sunday or is
not a legal holiday in the place where the court sits.
Q. What does Sec. 1 of Rule 22 say?
A. In computing a period, the day of the act or event from which the period starts
to run is excluded.
This is what actually Article 13 of Civil Code is saying: The day of
performance is included.
Q. What is the day of performance here?
A. The filing of the answer.
But under Article 13, the day of performance here is the last day. Exclude
the first, include the last.
Where an act effectively interrupts the running of a period, the allowable
period shall start to run the day following the receipt of the notice of the cessation
of the cause thereof.
Q. What does this mean? (This provision is very complicated.)
A. Sec. 2 Rule 22
Should an act be done which effectively interrupts the running of the
period, the allowable period after such interruption shall start to run on the day
after notice of the cessation of the cause thereof.
The day of the act that caused the interruption shall be included in the
computation of the period.
Example:
B was summoned Jan. 2, 1999. Under Sec. 1 of Rule 11, B has a period
ending Jan. 17, 1999. This is the day of performance (Jan.17, 1999). Let us assume
however that B filed on Jan. 7, 1999, a motion to dismiss.
Q. What is the effect of the filing on Jan. 7, 1999 on the running of this period
starting Jan. 3 and ending Jan. 17?
A. It suspended the running of the period. Since there were five (5) days of the
15-day period under Sec. 1 Rule 11, there were ten (10) days remaining because
between Jan. 2 and Jan. 7, a 5-day period has already elapsed. There was a period
of ten (10) days remaining.
This10-day period remaining of the original 15-day period is the so-called
allowable period referred to in Sec. 2 Rule 22.
On the assumption that this motion to dismiss is denied,
Q. What is the effect of the denial of the motion to dismiss on the remaining
period within which to file the answer?
A. It will start to run. It will resume its running. Why? Because it started but when
the motion to dismiss was filed, the running was interrupted but when the motion to
dismiss was denied, the running must resume. (Hinto! tapos Takbo!)
Q. When will this allowable period start to run?
A. Let us assume that B received the order of denial on March 10, 1999.
We say that when the order of denial the period of 10-day starts to run.
Why? What interrupts it?
The period was interrupted by this order March 10, 1999. This is the cause
of the cessation of the stopping of the running.
Q. What is the allowable period that starts to run after this order denying the
motion to dismiss was issued?
A. The law says, this allowable period shall start to run the day following the
receipt of the notice of the cessation of the period.
So, in our example, this allowable period starts to run the day following the
receipt. So, this starts to run March 11, 1999 (10 days starting March 11 is March
21, 1999).
 This is still an application of Article 13 which is exclude the first, include
the last day.
(The committee wanted to be different, probably)
Conclusion: Rule 22 did not actually amend Art. 13 of NCC, except in one respect,
there is now an expressed provision in the rules that when the last day of
performance is a Saturday, a Sunday, or a legal holiday in the place where the court
sits, the date of performance is moved to the next working day.
Take note that the legal holiday referred to here is the legal holiday in the
place where the court sits.
So if the court sits in Manila, and the last day in Manila is Dec. 20, which is
not a holiday, but in Q.C., Dec. 20 is a holiday.
Q. Will the last day of performance be moved to the next working day?
A. No, because the holiday is not in the place where the court sits, which is in
Manila.
Modes of Discovery
Rules 23, 24, 25, 26, 27 and 28.
Q. What are the modes of discovery?
A. As the term suggests, these modes of discovery are remedies the law allows a
party to a case to avail of for the purpose of getting in advance knowledge of facts
related to a case which the adverse party may have knowledge of so that when trial
proceeds, a party to a case already knows what the adverse party may have.
Actually therefore, these modes of discovery are intended to allow a party
to discover what the other party has, because if these rules on discovery were not
allowed, a party to a case would know nothing about the adverse partys case
except those which are alleged in the pleading.
So, if A, the plaintiff and B, the defendant, all that A would normally know
about the case in so far as he is concerned is what appears in the answer or
pleading of B.
In the case of B, all that he could know in so far as A is concerned is what
appears in the complaint or pleading of A.
So, rules of relevant facts would be limited to what is disclosed only in the
pleadings.
But with the modes of discovery we mentioned, A may be able to know
facts that B may have; B may be able to know facts that A has, so that when the
trial proceeds, each party already know what the other party has.
This is the concept of discovery. This practice is widely used in U.S. So, if A
and B are litigants, before trial, A could already know all the facts about A; B could
already know all the facts about A. So that when the trial comes, there is nothing
that is not known to the adverse party. This is how extensively these remedies are
utilized in U.S.
While these rules have been with us, for decades, they were never
appreciated. Why? Very few avail of it. This is why, to compel the resort to modes
of discovery, there are certain sanctions that the court may impose on a party who
fails to comply with the rules written interrogatories; with the rules on request for
admission.
Rule 23: Deposition Pending Action
This is denominated as Deposition Pending Action. This contemplates a
situation where a case is already pending in court. While the case is pending in
court, the party may now discover facts either from the adverse party or from any
other persons.
Example: A vs. B (They are litigating a piece of land)
A suspects that B may present as his (B) witness X against him (A). A would
want to know in advance what X is going to say.
Q. What is the remedy available to A; so that even before trial A will already know
what X will say so, when he will be called upon to testify?
A. A can resort to Rule 23 (Deposition Pending Action)
Q. Is it necessary for A to obtain leave of court in order that he can take the
deposition of X?
A. The rule is this:
If no answer has as yet been served on A , then A must file first a motion
asking for leave to take the deposition of X.
If an answer has already been served on A , A can now take the deposition
of X without leave of court.
So, whether leave of court is required on that would depend on an answer
to a question was an answer already serve on the plaintiff? If there was none,
leave of court is required; if there was, no leave of court.
Q. If A now were to take the deposition of X, what can be the subject matter of
the inquiries made by A?
A. The rule is:
A can take deposition of X on any matter related to the claim of A or related
to the defense of B, provided these matters are not privilege in character . Meaning,
that where the matter sought to be inquired by A from X are privilege, they cannot
be the subject of inquiry, and therefore X may not answer that.
Q. Supposing it is B who suspects that A will present Y as his witness, can B also
take the deposition of Y?
A. Yes.
Q. So, what do we conclude on from this?
A. The right to take a deposition belongs to both parties. It does not belong only
to one.
Q. If you were A now, how will you proceed taking the deposition of X?
A. The first is for A to send B a notice to take depositions.
The deposition may either be on oral examination or on written
interrogations.
Q. Let us assume that A would want to take the deposition of X, what will this
notice to take deposition contain?
A. The notice will be worded this way:
To B, defendant,
Greetings
Pls. Be notified that the undersigned plaintiff A will take deposition on oral
examination of X before the notary public Z at his office at 123 Timog Ave., Q. C. on
Jan. 10, 1999 at 8:00 AM
Signed A
B received the notice.
Q. What will happen on Jan. 10, 1999 at 8:00 AM?
A. X and the lawyer of A, if he has any, or A will appear before the notary public.
Q. How about B?
A. He may appear if he wants to. He may disappear if he wants to. In other
words, he may appear if he likes, he may not appear if he does not like. Whatever
his wishes are, the plaintiff A can proceed with the deposition of X as long as B was
notified.
Q. How will A compel the presence of X before the notary public on Jan. 10, 1999
at 8:00 AM?
A. A can file with the court in Q.C. a motion for the issuance of subpoena to X so
that X will be subpoena.
The rule in a subpoena to a witness in deposition taking may be issued by
the court in the place where his deposition is taken.
Q. What happens on Jan. 10, 1999 in the office of the notary public Z?
A. A will now question X on anything related to the claim of A or related to the
defense of B provided they are not privileges.
Q. How about B?
A. If B were present or his lawyer is present, B or the lawyer can cross-examine X,
then X may again be questioned by A or by As lawyer. This is the second
examination called the re-direct examination. After he (A) finished the re-direct
examination, X may again be examined by B or his (Bs) lawyer, we called this word
examination the re-cross examination.
Q. What do you notice?
A. In examination of deponent, X in our example, is the same examination that
may be conducted as if he were actually before the court in which the case is
pending.
Let us assume in our example that B received the notice but did not appear
either personally or through counsel. So that in our example, X testified in the
absence of B or the counsel of B.
Q. May B be allowed nevertheless to question X after X finished his direct
testimony?
A. Yes.
Q. But how about if B is not there?
A. Its no problem because of personally appearing in court, B can send his written
questions to the notary public. The notary public will now read these questions to X
one by one and X will answer them also one by one.
Let us assume that the deposition is going on. Let us assume also that Bs
counsel is present while As counsel is questioning X, a question appears to be
objectionable to B.
Q. Can he (Bs counsel) object?
A. Yes.
Q. Will the notary public however, rule on the objections?
A. No, he will simply record the objection. Unlike the judge, the notary public or
whoever is the deposition officer, is not allowed to rule on the objection.
Q. Following the conclusion of examination of X, what shall be done now?
A. The testimony of X as stenographically recorded during the proceedings, will
now be transcribed. After its transcription, the transcript is shown to X for him to
read or for that transcript to be read to him.
If there are parts in the transcript which he desires to change, then he can
change them out in this case, the deposition officer or a notary public or a judge for
that matter will have to indicate in the records the reason why X changed his
answers.
X may sign or may not sign the transcripts. He may not sign if, for instance,
lets say he agree that there is no need, or X himself for any reason may refuse to
sign. In any event when X refuses or fails to sign, the notary public or the judge
who acted as the deposition officer, must have to sign the transcript. After the
signing of the transcript or if the deponent refused to sign, that is therefore, after
the certification by the notary public or the deposition officer, the proceedings are
concluded, the deposition officer forwards now the records of the deposition taking
to the court where the case is pending.
So, if I were the deposition officer, I will now forward to the court the entire
records. If there were exhibits presented during the deposition taking the deposition
officer should also forward it to the court.
Q. Is there a duty on the part of the deposition officer to notify the parties of the
fact that he has forwarded the records to the court?
A. Yes. The law requires that the deposition officer must notify the parties of the
fact that he already sent the copies of the deposition record to the court.
Q. Are the parties entitled to receive a copy of the transcript of the testimony of
the witness, in the example of X? (Is A entitled to receive a copy? Is B entitled to
receive a copy of the branch record?)
A. Yes, provided he pays for the cost thereof. This is only by way of deposition
through oral examination.
Under the Rule, A can take also the deposition of X by written
interrogations.
Q. How would this be done?
A. A takes the deposition of X by written interrogations.
Q. How will this notice to take deposition of X by written interrogatories be
worded?
A. This is how it will be done:
B, defendant
Greetings!
You are hereby notified that the undersigned plaintiff A will take the
deposition of X by means of written interrogatories.
Attached herewith is the direct written interrogatories.
Signed by
A
Q. What is this direct written interrogatories?
A. It is that document that X has asked all the questions on direct examination.
You call this the direct interrogatories.
So attached now to the notice is a copy of the direct interrogatories by A.
This is now furnished to B.
Q. What is he (B) authorized to do following his receipt of the notice and of the
direct interrogatories?
A. If B desires, he may within ten (10) days from his receipt of the notice and the
direct interrogatories also furnish A a so-called cross-interrogatories. He will give
this cross-interrogatories to A.
Q. What are these cross-interrogatories?
A. They are the questions, which B would have asked to be answered by X on
cross-examination.
A now has with him the cross-examination interrogatories of B.
Q. What is A now allow to do, following his receipt of the cross-interrogatories?
A. Within five (5) days from his receipt of the cross-interrogatories, A may serve
on B another set of interrogatories, the so-called re-direct interrogatories. This
would have been the question which A would ask X have had been personally
questioned by A.
So, A will serve on B a copy of his re-direct interrogatories.
Q. What is the right of B upon receipt of this re-direct interrogatories of A?
A. Within three (3) days of his (B) receipt of the re-direct interrogatories, B may
serve on A a set of questions again, you called the re-cross interrogatories.
Q. So, what do you notice now?
A. A has with him all sets of interrogatories:
1. Direct-Interrogatories (A)
2. Cross-Interrogatories (B)
3. Re-Direct Interrogatories (A)
4. Re-Cross Interrogatories (B)
Q. What shall A do with all these sets of interrogatories?
A. He will now proceed to the deposition officer together with X. What for? So that
the notary public will now question X or the notary public or the judge who acted as
a deposition officer.
So, X is there now he is now sworn by the notary public or the judge.
Q. What will the notary public or the judge do?
A. This is what the notary public or the judge will do: He will now take the first
set, the so-called direct-interrogatories. He will now read question no. 1 to X. Then
X will answer. So, the deposition officer or notary public will read one-by-one the
questions and X will answer them one-by-one. This is what the notary public will do.
The proceeding after X finished answering the four (4) sets of interrogatories will be
the same as if X testified on oral interrogatories. This means to say that the
testimonies of X will be transcribed. The transcript will be given to him to read or to
be read to him. He will sign, if he wants to sign. He will make corrections, if he
wants to make corrections. Thereafter, the deposition officer will forward to the
clerk of court where the case is pending the entire records of the case. This is how
he deposition is taken.
Q. How will the deposition of X be used?
A. It will be used in accordance with Sec. 4 Rule 23. Introduce all of it which is
relevant to the part introduced and any party may introduce any other part.
Let us assume that the deposition of X was already taken. This was already
received in the clerk of court, Dec. 1, 1998. Trial is on Dec. 15, 1998. On this day
(trial), A and B are supposed to present their evidence. A said, Your Honor, my
witness is X, he already had given his deposition. His deposition is now here in
court, which I now asked to be marked as exhibit A. I will not present X anymore.
Your Honor, I will now present his deposition, in lieu of his personally testifying in
court.
Court: What does B said on the manifestation of A?
B: Your Honor, A does not know Rule 23.
Notwithstanding that he (A) claimed that he has been a lawyer for fifty (50)
years, he does not know Rule 23.
Court: Why?
B: Your, Honor, the law is clear, this deposition can be used, only under the
conditions
mentioned in Sec. 4 of Rule 23 as evidence.
Court: Right, Youre correct.
Ruling: The manifestation is out-of-order. Exhibit A cannot be used.
Q. Is the observation of the court correct?
A. Yes. As long as a deponent is alive and kicking, his deposition cannot be used
in court. Why? Because a deposition is used only in anticipation of the inability of
the deponent to testify in court . But as long as he is alive, he cannot use his
deposition, except for purposes under Sec. 4 of Rule 23.
Q. For what use will the deposition of X be utilized?
A.
Let us assume that B presented as his witness X. In our premise, the
deposition of X was taken by A. So, X is a witness of A for purposes of that
deposition.
Sec. 4 Rule 23
At the trial or upon the hearing of a motion or an interlocutory proceeding,
any part or all of a deposition, so far as admissible under the rules of evidence, may
be used against any party who was present or represented at the taking of the
deposition or who had due notice thereof, in accordance with anyone of the
following provisions:
a. Any deposition may be used by any party for the purpose of
contradicting or impeaching the testimony of deponent as a witness;
b. The deposition of a party or of any one who at the time of taking the
deposition was an officer, director, or managing agent of a public or
private corporation, partnership or association which is a party may be
used by any adverse party for any purpose;
c. The deposition of a witness, whether or not a party, may be used by
any party for any purpose if the court finds:
1. that the witness is dead; or
2. that the witness resides at a distance more than one hundred
(100) kilometers from the place of trial or hearing or is out of
the Philippines, unless it appears that his absence was procured
by the party offering the deposition; or
3. that the witness is unable to attend or testify because of age,
sickness, infirmity, or imprisonment; or
4. that the party offering the deposition has been unable to
procure the attendance of the witness by subpoena; or
5. upon application and notice, that such exceptional
circumstances exist as to make it desirable, in the interest of
justice and with due regard to the importance of presenting
the testimony of witnesses orally, in open court, to allow the
deposition to be used; and
d. If only part of the deposition is offered in evidence by a party, the
adverse party may require him to utilize X as his witness.
Q. Can that be done?
A. Yes, it can be done. Why? Because the rule says, a party who takes the
deposition of another does not make that party his witness.
So, X is not a witness for purposes of the trial of the merits of the case. He
is now a witness of B.
Q. How may this deposition of X be utilized by A?
A. Take note that under Sec. 4 of Rule 23 par.(a), Any deposition may be used by
any party for the purpose of contracting or impeaching the testimony of deponent
as witness.
The deposition of a party may be used by anyone. A can use that deposition
of X but only for one purpose to impeach X.
Q. Can A utilize the contents of the deposition of X to prove the truth of what is
stated there?
A. No, he cannot do that unless the exceptions will apply (Sec. 4 Rule 23).
In our example, the only use of deposition of X in the hands of A is to impeach
X, nothing more.
Q. What is impeachment?
A. Impeachment is the process whereby a party tries to make evidence against
him worthless by showing that the witness or the evidence is not credible.
In our example, the only use by A of the deposition of X is to show that X is
not a credible witness.
Supposing the issue is: What is the color of the dog of B?
A said,The dog is blue.
B said, The dog is red.
X said while testifying for B. The dog of B is red. But in his deposition, he
said the dog of B is blue.
Q. Will this statement now prove that the dog is blue and that there A can
introduce that in evidence to prove that the dog is blue?
A. No. This is usable only in the hands of A to contradict the statement of X in
court that the dog is red. This is only to show that X is not telling the truth. But by
this showing, A does not concede that the dog is blue. He simply said that X is
telling a lie.
Remember how a witness may be impeached or recall by a party against
whom the evidence is given may impeached a witness giving the evidence by any of
the following means:
1. by contrary evidence;
2. by evidence that the reputation of the witness for honesty, integrity and
truth is bad;
3. by evidence that a witness has given statements contrary to what he
said in court prior inconsistent statements;
4. that a witness has been previously convicted of a crime.
Q. When, however, may a deposition be used, not only for purposes of
impeachment, but for any other purpose?
A. Let us assume in our example that the deponent is no longer X, but B himself.
Q. Can A take the deposition of his adverse party?
A. Yes, that can be done.
Q. In the hands of A, for what use may this deposition of B be taken?
A. The rule says, for impeaching and any other purposes.
Let us assume now that B testified. A now examines him on cross-examination.
Q. How can A use the deposition of B?
A. 1. to impeach B;
2. for any and all other purposes.
For instance, there is something said in the deposition of B favorable to A.
Q. Can A introduce in evidence this deposition of B even if he (B) is alive?
A. Yes.
Supposing in the deposition of B, he said, This land used to be the
property of C, the father of A. So, this statement may be favorable to A because it
will give credence to his claim that he inherited this lot from C. This would be
favorable to him.
So in this case, A may introduce this deposition even if B is alive.
Q. What then is the difference, if there is any, between the use of a deposition of
an ordinary witness and the use of the deposition of a party to a case?
A. In the case of an ordinary witness, it is used only for one purpose, that is to
impeach. In a case of a party, for two (2) purposes: (1) to impeach; and (2) for any
other purpose.
Q. When can the deposition of witness either an ordinary witness or a party to a
case to be used to prove the truth of what is said there?
In other words, our proponent here is X. When can this deposition of X be
introduced as evidence to prove the truth of what is stated there?
 A. 1) when X is already dead; or if alive, cannot testify
2) he lives in a place more than 100 km away from the court where he is
supposed to be summoned to testify.
Under the rules of summons, a party who resides in a place more than 100
km away from the court to which he is summoned, he is not obliged to obey the
summons.
In this case, X resides more than 100 km away from the court room, he
cannot be compelled to appear and so his deposition may be used to prove the
truth of what is stated there or if X cannot be subpoena unless the failure to
subpoena X was the result of the manipulation on the part of A himself (if he is the
one presenting) or there are some circumstances that may be established which
would make the presentation of the deposition justified.
Rule 23 Sec. 4 (C) says:
the deposition of a witness, whether or not a party, may be used by any party for
any purpose if the court finds:
1. that the witness is dead; or
2. that the witness resides at a distance more than 100 km away from the
trial or hearing or is out of the Philippines, unless it appears that his
absence was procured by the party offering the deposition; or
3. that the witness is unable to attend or testify because of age, sickness,
infirmity or imprisonment; or
4. that the party offering the deposition has been unable to procure the
attendance of the witness by subpoena; or
5. upon application and notice, that such exceptional circumstances exist
as to make it desirable, in the interest of justice and with due regard to
the importance of presenting the testimony of witnesses orally in open
court, to allow the deposition to be used; and
Under this section, even though the witness is alive, deposition may be
used under any of these circumstances:
Our example here presupposes that the witness is in the Philippines.
Supposing now, A wants to take the deposition of X who is in the US.
Q. Can that be done?
A. Yes, it can be done. The deposition can be done.
Procedure:
A will give notice to B that he will take a deposition of X in the US. The
deposition of X must be taken before the Secretary of the Embassy. Legation or the
consul general or the consul or a vice consul or any other officer in the foreign
service of the Republic of the Philippines in the US.
Supposing we have no consular officers, or we have no embassy in the US.
Q. How may the deposition of X be taken by the so-called commission? How will A
go about securities commission?
A. He will file a motion in court asking that the commissioner be authorized to
receive the testimony of X.
The court will name the particular person who will take the deposition in the
US of X.
In one case, Dasmarias Garments vs. Reyes (1988), the plaintiff wanted to
take the testimony of his witness residing in Taiwan. So, he filed an application with
the trial court in Manila where the case was pending for the appointment of the
commissioner. Why? Because at that time we did not have, as we do not now have,
any diplomatic relation with Taiwan as we recognize the One-China Policy, and
there is only one China i.e. Red China. Taiwan is a mere province of, according to
Red China, of Red China. So, since we have diplomatic relation with Red China, we
cannot, for obvious reason, recognize, Taiwan as another state.
So, we did not have an embassy or a consular office in Taiwan. But we
have an office there euphemistically called MECO. This is supposed to be an office
taking charge of the commercial interest of the Philippines in Taiwan.
So, Dasmarias filed a motion asking that the deposition of his witness be
taken. The Manila Trial Court granted the motion. So, the defendant elevated the
matter to the SC.
Issue: Whether the Manila court can order the MECO to take the deposition of X,
(witness of Dasmarias).
Held: Under this rule (Rule 23), the SC sustained the ruling of the Manila Trial
Court.
So, as distinguished from a situation where we have a consular officer or
when we have diplomatic relations, where the deposition of a witness have been
taken before those persons already named, even without prior leave of court. In the
case of a commission, the deposition cannot be taken by the commissioner unless
there is an authority from the court.
Letters Rogatory
Q. What is meant by letters rogatory?
A. Example:
A wants to take the deposition of X in Timbuktu. We do not have any
consular office there. We do not have diplomatic relation there. We have no
nothing.
Q. How can the deposition of X be taken in Timbuktu? Rule 24: Depositions before Action
A. By letters rogatory, the deposition of X may be taken.
A party before any action has been instituted in court may take the
Q. What is letters rogatory? deposition of himself or of a third person for the purpose of preserving that
A. In our example, A now will file a motion in court asking that letters rogatory be testimony for use in the event a case would later be filed.(Depositions in
issued for the purpose of having the testimony of X taken on written interrogatories. Perpetuam Rei Memoriam )
The court grants the motion.
This letters rogatory are letters to the court. The court where the case is Example:
pending, say RTC of Manila, will now address a letter to, lets say, the Chief Justice A has a piece of land. B has a piece of land too joining As lot. A and B are
of Timbuktu. neighbors. Their respective properties are divided by fence. The only trouble is, A
Greetings!!! and B did not believe that good fences makes good divide. Why? They first put up
You are hereby requested to take the deposition or written interrogatories a bamboo fence. So, here comes a typhoon. B now puts up this fence but intrudes 1
of X who lives within your territorial jurisdiction. ft. into the property of A. Another typhoon truck, the typhoon went down. B again
Attached are the interrogatories. put up another fence, this time intruding another 1 ft. Imagine how many typhoons
We shall render to you the same assistance when requested. we have in one year. So, A anticipates that if all these expected typhoon will
materialize, there will be a time when he will no longer have any inch of land to stay
Letters rogatory is a letter from one court to another court, requesting the on. By that time he will already be fenced out of the property.
court of the place to take the deposition of X.
This is how Rule 23 works! Q. What is the remedy?
A. To file a case.
RENE NOTES:
Q. But who will file the case?
Persons before whom depositions may be taken: A. A said, I may file the case. But I dont have the money right now. How can I
file a case? So, he is waiting for B to file a case. But B is not going to file a case
- Within the Philippines:
because he is still waiting for the many typhoons to come. So, he cannot compel B
(a) judge
(b) notary public to file a case.
(c) any person authorized to administer oaths, as stipulated by the parties in writing In the meantime, he expects that by that time a case is filed, either by
himself against B or by B against himself, he may already be six ft. under the
- Outside the Philippines ground, or if he is alive, his expected witness X may also be already six ft. under the
(a) on notice, before a secretary of embassy or legation, consul general, consul , vice consul, or ground.
consular agent of the phil.
(b) before such person or officer as may be appointed by commission or letters rogatory
Q. What is the remedy? So that when the case shall have been filed, and X is
(c) any person authorized to administer oaths, as stipulated by the already gone, that testimony of X can still be used as evidence? (because it was
parties in writing preserved).
COMMISSION LETTERS ROGATORY How will this preservation be made?
* issued to a non-judicial foreign officer who will * issued to the appropriate judicial officer of the
A. A lives in Sulu; B resides in Batanes.
directly take the testimony foreign country who will direct somebody in said
foreign country to take down testimony
* applicable rules of procedure are those of the * applicable rules of procedure are those of A B
requesting court foreign court requested to act Sulu Batanes
* resorted to IF permission of the foreign country * resorted to IF the execution of the commission
is given is refused in the foreign country Q. What is the remedy now available to A, so that his testimony or the testimony of
* leave of court is not necessary * leave of court is necessary
X will be preserved?
A. He will now file a case against B in the places where he (B) resides i.e. Batanes.
(But A is from Sulu? Never mind that is what the law says.)
Q. In what court will this case be filed by A?
A. The rule does not say. It simply says court.
Q. MTC? RTC?
A. An action of this nature to preserve the testimony is an action, which is
incapable of pecuniary estimation.
Remenber Sec. 19 of B.P. # 129, an action incapable of pecuniary
estimation is within the jurisdiction of the RTC.
So, while this rule does not specifically state that the action should be filed
in the RTC, the action by reason of its nature should be filed in the RTC.
Q. What will be the allegations?
A. Well principally A will allege the reason why he wants his testimony or that of
his witness X be preserved. He would state in the petition the facts which he wants
to prove.
Q. What is his prayer?
A. His prayer is that the court may authorize him to take his deposition or to take
the deposition of X.
Q. How will B know that a petition against him has been filed?
A. Well, the rule requires A to furnish B with a copy of his petition and the notice
of hearing thereof. The hearing must be set by A on a date which is not earlier than
20 days from service by A on B of the copy of the petition and of the copies of
hearing.
Q. Once the petition is filed, what will the court do?
A. The court will now issue a summons to B notifying him of the date of hearing
as set in the notice of B. This will be served on B in the manner that the summons
is served to a defendant under Rule 14. So while the rule does not specifically state
the summons should be issued and served in accordance with Rule 15.
Q. What will happen on the day set for hearing? Will there be a trial, in the sense
that evidence may be received by the court for A and B?
A. Look at the provision, there is nothing said on the following:
1. That B has the right to file an answer for an opposition.
There is nothing said. The rule does not say that B or A will be allowed to
present evidence. The rule says that the court will hear the petition and if granting
the petition will avoid failure of justice court will grant the petition.
Q. What is the meaning of that?
A. The court in granting the petition will now authorize A to take his deposition or
to take the deposition of X or any witness for that matter in accordance with the
rule either by means of oral pending appeal, examination or written interrogatories.
This is how Rule 24 works.
Q. How will the deposition of either A or X be used?
A. In the same manner a deposition is taken under Rule 23, in other words, Sec. 4
of Rule 23 will apply in so far as the deposition of A or his witness is concerned.
This is the gist of Rule 24.
Q. Why do you call it deposition before action?
A. Because at the time it was taken there was yet no case. This was only taken in
anticipation that a case may later on be filed.
RENE NOTES:
* Depositions under this Rule are also taken conditionally, to be used at the trial only in case the
deponent is not available.
* Depositions under the Rule do not prove the existence of any right and the testimony perpetuated is
not in itself conclusive proof, either of the existence of any right nor even of the facts to which they
relate, as it can be controverted at the trial in the same manner as though no perpetuation of testimony
was ever had. However, in the absence of any objection to its taking, and even if the deponent did not
testify at the hearing, the perpetuated testimony constitutes prima facie proof of facts referred to in the
deposition.
* If deposition is taken under this Rule, it may be used in any action involving the same subject matter
subsequently brought.
Rule 25: Written Interrogatories to Parties
Q. What are interrogatories? (written)
A. Questions (Nakasulat)
Q. Is there an oral interrogatories?
A. Naturally. If you examine a court witness, the interrogation is oral.
(questioning)
Q. When may a party address written interrogatories to the adverse party?
A. Sec. 1 of Rule 23 applies to Sec. 1 of Rule 25
Sec. 1 of Rule 23
By leave of court after jurisdiction has been obtained over the defendant or
over property which is the subject of the action, or without such leave after an
answer has been served, the testimony of any person, whether a party or not, may
be taken at the instance of any party, by deposition upon oral examination or
written interrogatories. The attendance of witnesses may be compelled by the use
of a subpoena as provided in Rule 21, depositions shall be taken only in accordance
with these rules. The deposition of a person confined in prison may be taken only
by leave of court on such terms as the court prescribes.
Sec. 1 Rule 25
Under the same conditions specified in Sec. 1 of Rule 23, any party desiring
to elicit material and relevant facts from any adverse parties shall file and serve
upon the latter written interrogatories to be answered by the party served; or if the
party served is a public or private corporation or a partnership or association, by
any officer thereof competent to testify in its behalf.
Q. When must a party reply to written interrogatories?
A. The party to whom the written interrogatories were sent must answer then
within 15 days from service to him of the interrogatories.
Supposing the written interrogatories include questions that are improper,
for instance those are questions for the ownership of the land. A vs. B. The
questions asked by A is in his interrogatories relevant to the matters concerning the
claim of A and defenses of B. But here comes another question, How many wives
do you have?
Q. Is the number of wives relevant to the matter on issue?
A. Of course not because they are not litigating in the number of wives.

Example: A vs. B. Q. What is the remedy available to B here?

Let us say that A wants to address written interrogatories to B. A can
address this written interrogatories to B either with or without leave of court. If no
answer has yet been served by B on A, the written interrogatories may be taken
only with leave of court. If an answer has already been served on A, written
interrogatories may be served without leave of court.
Q. What can be the subject of the written interrogatories?
A. The subject may be one that relates to the claim of the plaintiff or one that
relates to the defense of the defendant, provided that these matters are not
privileged.
Q. How many questions may be addressed in written interrogatories?
A. There is no limit. The only limitation is that the question relate to the claim of
the plaintiff or to the defense of the defendant and they are not privileged.
A. File a motion to strike out that question. A motion praying therein that B, be
not require answer.
Q. What is the effect of that motion on the part of B to strike out that improper
question to the running of the period for the filing of the reply?
A. The period is suspended.
RENE NOTES:
* A judgment by default may be rendered against a party who fails to answer written interrogatories.
* General Rule: Unless a party had been served written interrogatories, he may not be compelled by
the adverse party:
a) to give testimony in open court
b) give a deposition pending appeal
Exception: When the court allows it for good cause shown and to prevent a failure of justice.

Q. So, if you have 1,000 questions to ask, ask the 1, 000 questions. If you have Depositions upon Written Interrogatories to Interrogatories to Parties under Rule 25
Parties under Rule 23 Sec. 25
only 999 questions, can you again send another written interrogatories consisting As to Deponent 1. party only
only of one question? 1. a party or ordinary witness
A. No. The rule is, a party can send only one set of written interrogatories . The As to procedure 2. no intervention. Written interrogatories are
number of questions is not limited. It could be as many questions as a party can 2. with intervention of the officer authorized by directed to the party himself
conceive of as long as his questions are related to the claim of the plaintiff or to the the Court to take deposition
defense of the defendant provided they are not privileged. As to scope 3. only one set of interrogatories
3. direct, cross, redirect, re-cross
Interrogatories 4. 15 days to answer unless extended or reduced
Q. Is there an exception to this rule that only one set of written interrogatories 4. no fixed time by the court
may be sent?
A. The general rule is, only one set of written interrogatories may be sent.
RULE 26: Admission By Adverse Party
However, in the discretion of the court, another set of written Example:
interrogatories may be sent.
 Let us say that A and B are litigating over a piece of land. The claim of A is
that he bought this lot from D. The claim of A is that this sale is evidenced by a
deed of sale purportedly signed by D. This document however, is a private
document. A may also have declared this lot for tax purposes (tax declaration) and
A have paid the taxes on this land.
Under the rules on request for admission , the rules said after the issues
have been joined, any of the parties may now address to the adverse party a
request for admission. In this request, the party sending the request ask the party
to whom the request is sent, to admit the truth of the matters of fact stated in the
request or the genuineness of the document the copy of which is attached to the
request.
This is how it is done
Let us assume that the answer of B has already been served. In his answer,
B denied the material allegations of the complaint. So, issues are now joined.
Q. When is an issue joined?
A. When the parties are certained and it is disputed
Example:
If A said, the color of the dog is blue. B said, the color of the dog is red.
This is an issue because they dispute on the color of the dog.
So, in our example, the issue is, who is the owner of the land. Why?
Because A says, I am the owner. B said, No, you are not the owner.
A will have to prove that he is the owner. So, he will have to prove that he
is the owner. If he (A) follows the rules in evidence, he has to prove every facts in
accordance with the rules in evidence.
For instance, we have a rule on how to prove a private document. The Rule
says, Sec. 20, Rule 138, No document offered as authentic document shall be
admitted in evidence unless the genuineness and due execution of that document is
proven.
Q. How will these rules on discovery have shortened the time for proving facts in
accordance with these rules in Evidence?
A. After A have already received for instance, the answer and issues having been
joined, this is what he will do, he will address a request for admission, B defendant.
Greetings!!
You are hereby requested to admit under oath within 15 days from receipt
thereof the truth of the following facts:
1) A declared a lot for tax purposes per tax declaration #1234, City of
Manila.
2) A has been paying the taxes of his lot as evidenced by tax receipts,
copies of which are annexes A, B and C.
3) The genuineness of the document, copy of which is attached as annex
D
Copies of these private documents are now attached for admission.
More particularly this is what A ask B in that request for admission.
You are hereby requested to admit that the signature over the name B in Annex B
is the genuine signature of B.
A now is in possesion of these documents (The request for admission to which was
attached a copy of the documents.)
Q. What is the duty of B upon receipt of the request?
A. Within the period granted to him under the written request, but no less than 15
days, B, if he denies the truth of these facts, he denies that A has declared his land
for tax purposes, if he denies that the signature over the name of B is his signature,
he will say there, B denies the truth of the matters stated in the written request an
denies that the signature over the name B in annex D is his signature.
B serves his answer to A.
Q. What will B do with that copy of answer?
A. He must file it in court. (This is an innovation now, it was not so under the old
rule)
So, B will file his answer to the request and serve a copy thereof on A.
Q. What would be the effect of the failure of B?
A. To deny under oath the truth of these matters of facts, (the genuineness of the
signature), He is cleared to have admitted the truth of those matters of facts. He is
cleared to have admitted that the signature over the name of B is the genuine
signature of him.
Q. What would be the effect now of the failure of B to answer in demand within
the period mentioned in the request?
A. The truth of the matters of facts, the genuineness of that signature is cleared
to have admitted them consequently.
Q. Will A still have to prove during the trial that he declared the land for tax
purposes, that he paid the taxes, will he (A) still prove the signature over the name
of B is the genuine signature of B?
A. No more. Why? Because these are admissions of facts judicially made. The rule
is, facts judicially admitted do not require proof and cannot be contradicted, under
the party making the admission is allowed to withdraw the admission because he
can show that the admission that he made was a result of a palpable mistake or
that he did not actually make an admission.
Let us assume that B after he failed to deny made oath the genuineness of
that document.
Q. Can he (B) now prove during the trial that the signature is a forgery, that he
did not affix that signature?
A. No, why? Because you are not allowed to contradict your admission.
So you will now appreciate how this request for admission can help discover
the facts. This request for admission will shorten the proceedings. Why?
Because if there is no denial under oath of the genuineness of that
signature, there is no need for A to prove it, if there is no denial of he truth
that A has declared the lot for tax purposes, there is no denial of the truth
of the fact that A paid the taxes, A does not have to prove these facts
anymore. They are deemed proven.
Take note however, that there is a limited use for an admission. This
admission of B is only for the purpose, in this case (A vs. B). It cannot be
used as evidence against B in another proceeding.
Under the rules on evidence, A cannot present B as his witness. This is
allowed but this right of a party to utilize the adverse party as a witness is
no longer absolute in the sense that there may be instances when a party
cannot call on the adverse party as his witness.
For instance in our example, A called on B as his witness, B objected.
Reason: A did not send me any request for admission. B said, Under Rule
26, I cannot be compelled to be a witness of A. I can only be compelled to
be a witness of A if A sent one request for admission on matters of facts of
which I have of personal knowledge. Ruling object of B is sustained. He
cannot be compelled.
Q. Is the ruling correct?
A. Yes. Why? Because under the new rule now modifying the rules on evidence,
before A can call on B as his witness, A should have first addressed to B request for
admission of matters in issue of which B has personal knowledge. So A cannot call B
to prove these matters within the knowledge of B unless A previously sent a request
for admission to B on this matter.
RENE NOTES:
* The effect of a failure to make a reply to a request for admission is that each of the matters of which n
admission is requested is deemed admitted.
* each matter must be denied SPECIFICALLY under oath setting forth in detail the reason why he
cannot truthfully admit or deny.
USE: An admission under this section is for the purpose of the pending action only and cannot be used
in any other proceedings.
Rule 27 : Production or Inspection of Documents or Things
Supposing in our example, A alleges in his complaint that he brought this lot
in question from C, the father of B. B wants to see this supposed deed referred to in
the complaint of A has evidence of his claim that he bought this lot from C. B said,
A can you kindly lend me for my securing this document you mention.
Q. Do you think A will agree?
A. Of course, in all probability A will refuse. He will say, You will have the
opportunity to see this document in court when I present it as evidence. In the
meantime, you (B) doubt that your father C sold this property. Since this is a
document material to the claim of A.
Q. Does A have the duty to produce this document even before the trial for the
scrutiny of B, so that before the trial B can now have an idea whether this is a
genuine document or not?
A. Remedy, Rule 27
Under this rule, a party to a case for good reason shown may file a motion
requesting the adverse party to produce a document or object under the control or
custody of the adverse party. For what purpose? So that the party asking for the
production of document may examine the document, may copy the document may
photograph the document.
Q. Is there a particular time when this motion on the part of B may be filed?
A. No, unlike a deposition pending action or written interrogatories or request for
admission, which fix a period within which his remedies may be amended of, Rule
27 does not specify the period when a party can avail of this remedy.
Q. If you were B in this example, how would you avail of the benefits of Rule 27?
A. This is what you will do:
 File a motion that A be required to produce that deed of sale he referred to.
State in your motion the fact that this document referred to in the complaint
contains evidence material to the case that this document is under the custody or
control of A. State the reason why you want to examine it, and therefore pray that
A be ordered to produce the document.
Of course, the motion must be filed in accordance with Rule 15, it must be
heard, i.e with due notice of A.
On the day of the hearing, the court will hear the parties and thereafter will
rule on the motion whether to deny the motion in which case A will not be ordered
to produce the document or grant the motion, in which case the court will require A
to do the following:
1. to produce the document before a specified person on a specific time,
so that B can examine the document, photograph the document, copy
the document if he (B) wants. Normally, when an order is issued by the
court directing a party to produce the document, the document
specifies the officer before whom the document should be produced.
Normally, it is the clerk of court who is designated as the officer before
the document should be produced.
So in our example, the court may report A to produce that document before its clerk
of court on a particular date and hour. The order will direct A to allow B to go over
the document, copy the document, photograph the document. When? On the date
and hour mentioned in the order. Where? Before the person named in the order.
Q. Can B however take hold of this document and bring it home for scrutiny?
A. No, he is only authorized to examine it before the clerk of court.
Q. What will be the advantage of this examining?
A. If after B examining the document believes that that is a forgery, he can take
steps to have this matter inquired into. So he can now, for instance, move that A be
required to submit this document for examination by a handwriting expert.
This rule equally applies within respect to real property or an object for that
matter.
Let us assume that A wants to see the land in question, which is now in the
possession of B, for what purpose? To determine, for instance, how big is the area
thereof developed or planted by B so that A can estimate the damages, that he may
have sustained by reason of his having been deprived of the fruits of the property.
Q. If you were A, you would approach B to allow you enter and see the land and
have it surveyed. Do you think B will allow you?
A. He will not.
Q. What is the remedy?
A. A will file a motion.
Q. What is the prayer in the motion?
A. That B be ordered to allow A to enter upon the land survey, etc.
So with the entry now of A upon the land, he will be able to determine the
extent of the cultivation of B.
See, how their discovery will help A!!!
RENE NOTES:
PRODUCTION OR INSPECTION OF SUBPOENA DUCES TECUM
DOCUMENTS OR THINGS
* essentially a mode of discovery * means of compelling production of evidence
* the Rules is limited to the parties to the action * may be directed to a person whether a party or
not
* the order under this Rule is issued only upon * may be issued upon an ex parte application.
motion with notice to the adverse party
Rule 28: Physical and Mental examination of Persons
Rule 28 contemplates a situation where the mental condition or physical
condition of a party is an issue. And the determination of that issue is required in
order that a proper judgment can be rendered.
Example:
W sued the husband H for declaration of nullity of marriage on the ground
of fraud. Why? Because whereas before marriage, H represented himself to be more
than able to perform what is expected of a husband to the effect and dismay of W.
The representation turned otherwise. Why? Because what was represented to be a
deadly weapon turned out to be a dead weapon. So the answer of H is Anong
sinasabi ng asawa ko sa complaint ay hindi naman totoo.
So W moved, by filing a motion that H be directed to submit himself to an
examination of his physical condition before Dr. X. Of course this motion must be
with due notice to H. The examination was conducted out of curiosity, H obtained
the copy of the report of Dr. X. Upon reading it, he has almost fainted. Why?
Because the result confirmed the allegation of the wife. But H is one who is easily
daunted by this adverse report, he said, Tarantadong doktor ito. Saan kaya nag-
aral ito hindi marunong. Kaya ko! Kaya ni Mister! So he wanted to disprove. So
what did he do? He engaged Dr. Y. What for? To examine him also on the matter in
connection with which Dr. X examine him. The examination was finished. He got
also a copy of the report, you could just imagine what happen now! Whereas when
he got a copy of the report of Dr. X, he nearly fainted, now that he received the
copy of the report of Dr. Y, he actually fainted! Why? Because the result of Dr. Ys
examination confirmed the findings of Dr. X.
Trial.. interrogatories are addressed refused to answer, what are the sanctions against
W now called on Dr. Y. So in announcing the purpose for which she offered
the testimony of Dr. Y, W said W your honor, offers the testimony of Dr. Y to prove
that H cannot do it. H said I object to Dr. Ys testifying, I have not given him my
consent to testify, so under the rules on evidence, he cannot. The court overruled
the objection and allowed Dr. y to testify on his findings.
Q. Is the ruling of the court correct?
A. Yes. Because by obtaining the copy of the report of Dr. X, H waived the benefit
that he may have over the testimony of Dr. Y.
So this is therefore a rule (Rule 28), which should be taken into account in
relation to the rule on the confidentiality of the communication between a patient
and a doctor. You remember the rule that a doctor of medicine, an obstetrician, a
surgeon cannot without the consent of his patient testify on the following:
1. The advice that the doctor gave to the patient;
2. The treatment that the doctor administer to the patient;
3. The information that the doctor obtained in the course of attending
professionally to the patient when information was necessary to enable
the doctor to properly attend to the patient and which information if
revealed, would embarrass the patient.
So this rule does not apply when Rule 28 is involved. Rule 28 therefore,
qualifies the provision.
RENE NOTES:
* Where the party examined requests and obtains a report on the results of the examination the
consequences are:
(a) he has to furnish the other party a copy of the report of any previous or subsequent examination of
the same physical and mental condition; and
(b) he waives any privilege that he may have in that action or any other involving the same controversy
regarding the testimony of any other person who has so examined him or may thereafter examine him.
Rule 29 : Refusal to Comply with Modes of Discovery
Rule 29 enumerates the sanctions that may be imposed by the court where
a party does not comply to any of these modes of discovery.
For instance, under Rule 23, when a witness in a deposition refuses to be
sworn to or refuses to answer,
Q. What are the sanctions?
A. Under Rule 25 (Written Interrogatories) when a party to whom written
him.
Under Rule 26, when a party to whom the request for admission is sent,
denies the truth of the matters stated therein and subsequently the party making
the request proves it.
Q. What are the sanctions against the party to whom the request was given?
A. When a party refuses to allow, in disobedience to a court order, the adverse
party to examine a document or and object or to permit an entry into premises.
Q. When a party refuses to submit himself when ordered by a court to
examination of his physical or mental condition, what are the sanctions?
A. In gist, these are the sanctions:
Under Rule 29, the party who refuses may be arrested, the only instance
where a party refuses may not be arrested is the case of the party who is required
to submit himself to physical or mental examination, under Rule 28 when he
disobeys, he cannot be arrested; in all other cases the refusing party may be
arrested.
Second, a party may be declared in default;
Third, a judgment may be immediately rendered;
Fourth, a complaint may be dismissed;
Fifth, a party may not be allowed to introduce evidence to support
Support a fact;
Sixth, a contention of a party in connection with certain matters
would be deemed established in accordance with his claim;
Seventh, the party who refuses may be ordered to pay the expenses
Party including attorneys fees.
Rule 30: Trial
Unless otherwise provided by the court the order of trial is as follows:
The evidence of the parties is limited to the issues in the pre-trial order.
The only issues which the parties are allowed to present their evidence are
those specified in the pre-trial order. That is why the pre-trial order if there are only
two issues the parties cannot present any evidence on any other issues except on
the issues in the pre-trial order. However, you take into account Rule 10 which 1. Answer to complaint counterclaim vs. A
allows amendment on pleadings to conform to the evidence. 2. B rebut evidence of A
Just a reminder: there are two instances where issues are not raised in the 3. Cross-claim vs. C
pleadings may be tried in the court: 4. 3rd party complaint
1. where an issue is tried by a party without objection on the part of the 5. Ans. reply to counterclaim claim of C
adverse party;
2. when an issue is tried by a party with the objection of the adverse C.
party, but the court finds that the presentation on that merits of the 1. Answer to complaint of A
case would best be served by allowing evidence to be received in this 2. Counterclaim vs. A
case. 3. Answer counterclaim of B
D.
So, in these two (2) cases, these issues though not raised in the pleading 1. Answer 3rd party complaint of B
may be proven during the trial. 2. Counterclaim vs. B

We go now to Rule 30 proper. A Answer to counterclaim of B and C

Unless otherwise stated by the order of the court, the order of trial is as B Answer to counterclaim of D
follows: C Answer to cross-claim of C
1) the plaintiff presents his evidence in support of his compliant;
2) thereafter the defendants will present their evidence on: Q. What are the pleadings of A?
a) their answer to the complaint, if there is any; A. A has only his complaint.
b) their counterclaim, if there is any;
c) their cross-claim, if there is any; Q. What is the pleading of B?
d) their third-party complaint, if there is any A. His answer to the complaint, his counterclaim against A.
3) thereafter, the parties against whom counterclaims or cross-claims
were pleaded, they may have to adduce their evidence in support of There being a counterclaim against him (A), the other pleading of A is his
their answer to these claims; answer or reply to the counterclaim of B.
4) thereafter, rebuttal evidence;
5) it may be followed by sub-rebuttal evidence; Let us apply the order of trial.
6) oral arguments; or Unless otherwise ordered by the court, the initial presentation of the
7) in addition thereto, memoranda; evidence in chief is commenced by A. So A now presents his evidence first
8) thereafter, decision. on his complaint. You call this as his evidence in chief. In other words, A
This is the order of trial. must produce evidence to support the factual allegations in his complaint,
which are disputed in the answer of B.
Let us apply it.
Q. Will A now prove his defenses to the counterclaim of B?
Example: A vs. B A. No. He (A) will limit himself to only his complaint. There will be a time for him
to adduce evidence on the second pleading.
A.
1. Complaint Evidence in Chief After A finished presenting his evidence on the complaint, B, if he wants to,
2. Answer to reply to Counterclaim Rebuttal may now adduce his evidence.
3. Answer to Reply to Counterclaim of B rebuttal evidence of B
Q. Why do we say If B wants to, he may adduce his evidence?
B. A. Because B is not compelled to present his evidence.

If A failed to adduce the quantum of evidence required to present, which is
preponderance of evidence, B does not have to introduce his evidence, and still he
(B) will win.
Let us assume that B elects to present his evidence.
Q. On what manners will he now present his evidence?
A. He will adduce his evidence first with respect to his defense in his answer. So
whatever defenses he alleges in the answer will be the subject matter of his
evidence. After he has presented his evidence on these matters alleged in his
answer, he may now adduce evidence on his counterclaim. After he has finished
presenting his evidence on his counterclaim, he will now rest his case, in so far as
the answer to a complaint is concerned.
Q. Will this end now the trial?
A. No, not yet. Why? Because A may present now his evidence on these matters
(Answer or reply to Bs counterclaim because if B did not, then we say, there is no
need for A to present his evidence in support of his answer to reply to the
counterclaim.
So the evidence in-chief now of B has also been terminated.
Q. What follows next?
A. Under the order Rebuttal evidence meaning A can rebut the evidence of B.
B can rebut the rebuttal evidence of A.
In actual practice, this is how it is done you will note that, per rule 30,
there is a separate stage for the presentation of evidence against the counterclaim,
or evidence against the cross-claim. There is another stage for the presentation of
the rebuttal evidence.
So, if we follow the order, there will be three (3) stages when A would
present his evidence.
1. When he present his evidence on his complaint.
2. When he present his evidence in support of his answer to the
counterclaim.
3. Later, his rebuttal to the evidence of B.
But in the actual practice where the parties are only the plaintiff and the
defendant, when A is proving his answer to the counterclaim of B, he may
at the same time present his evidence of B.
So, in actual practice, these two (A presents his evidence, and at the
presents at the same time the rebuttal are held simultaneously).
Q. What are these rebuttal evidence?
A. There may be evidence taken up when he presented his own evidence. So
those matters taken up in the evidence in-chief of B, may now be rebutted by A.
There may also be new matters taken up in the rebuttal evidence of A, in
which case B can rebut these rebutting evidence of A. You call these rebutting
evidence of B the Sub-rebuttal Evidence.
After the evidence is in, then the court may order the case submitted for
decision unless the court require parties either to orally argue or file a memorandum
or require both parties to do both (orally argue and submit a memoranda).
In our example for instance, there are two(2) defendants (B and C). Let us
assume that B filed a cross-claim against C.
Q. What will be the pleading of C?
A. The pleading of C will be his answer to the complaint of A, and he will have his
answer to the cross-claim of B.
Q. This being the case, what would be the added pleading of A?
A. He will have his answer or reply to the counterclaim of C.
Q. How about B, what are the pleadings will he have?
A. He will have his answer or reply to the counterclaim of C.
During the presentation of B of his evidence, since he has a cross-claim
against C, he will also produce his evidence in support of his cross-claim.
So you will notice if he (B) has a cross-claim, this is the order of
presentation of his evidence. His (B) evidence on his answer to the complaint of A,
his counterclaim against A, his cross-claim against C.
C now will also present his evidence. First he will adduce his evidence in
support of his answer to the complaint of A. He will present his evidence in support
of his counterclaim against A.
Q. Will he (C) now adduce evidence in support of his answer to the cross claim of
B?
A. Not yet. There will be a time for that.
 Let us assume that B has likewise a third-party complaint against D. Q. How about C, is there a counterclaim pleaded against him?
A. None, but there is a cross-claim. So C will produce his evidence in support of
Q. What will be the added pleading of B? his answer to the cross-claim.
A. He will have his 3rd party complaint.
Q. How about D, is there a counterclaim pleaded against him?
Q. How about the pleading now of D? A. None.
A. He will have his answer to the third party complaint of B. He will now have his
counterclaim against B. So, the only persons who will present their evidence in support of their
answers to the counterclaim or cross-claim are A, B and C.
Q. What then will be the added pleading of B?
A. He will have his answer or reply to the counterclaim of D. Following this, we go again to the same order Rebuttal, Sub-Rebuttal then
oral argument or memoranda or both, then decision.
Order of Trial..
The same things still with A in the order he presents his evidence to support This is the order of trial under Rule 30.
his complaint and nothing else.
Under Rule 30, the court may delegate the reception of evidence to a clerk
Q. How about B? of court who is a lawyer. T his settles the conflicting decisions of the SC on the
A. B will now introduce evidence on the following: question of whether or not a clerk of court can be commissioned to receive the
1. Answer to the complaint of A. evidence.
2. Counterclaim against A.
3. His cross-claim against C. In one line of decision held that the clerk of court have such authority.
4. His third-party complaint against D.
Another line of decision tells that the clerk of court have no such authority.
Q. How about C?
A. Same (as before) This provision now settles the question. The clerk of court can receive the
evidence provided the clerk of court is a member of the Philippine Bar.
Q. How about D?
A. He will present his evidence in support of his answer to the third party Q. May judgment be rendered by the court without a trial during, which the
complaint of B. He will now present his evidence in support of his counterclaim parties may not present their evidence anymore?
against B. A. Yes, this is possible when for instance the parties stipulate on facts and the
facts stipulated upon are enough to serve as basis of a judgment.
This terminates the presentation of the evidence in chief of A, B, C and D.
Q. May a judgment be rendered on the basis of the stipulations of facts?
Q. Following that, who now will present his evidence? A. Yes, provided the facts are sufficient as basis of a judgment.
A. The parties against whom a counterclaim or a cross-claim have been pleaded.
Grounds of Postponement
In our example, there is a counterclaim pleaded against A by B and C. So A You will note that under Rule 30 that a trial may be postponed on these two
now will produce his evidence in support of his answer to the counterclaims of B (2) grounds:
and C. 1. absence of evidence
2. illness of party or illness of a counsel
Q. How about B, is there a counterclaim pleaded against him?
A. Yes, the counterclaim of D.
Q. What is the requirement in order that a motion based on these grounds maybe
validly acted upon and granted by the court?
A. The rule requires that the motion must be supported by affidavit. In case the
ground is absence of evidence, the affidavit must state the materiality of the
evidence that is not produced and the efforts exerted to. But even then, if the
adverse party states that he does not have any objection to the facts supposed to
be established by the testimony of the absent witness, although he may later on
object to their admissibility the rule says, the motion for postponement should not
be granted.
The only problem on this rule is, it has been interpreted to be merely
directory.
Sometime however, during the incumbency of Chief Justice Marcelo Fernan,
SC issued a circular directing judges of the trial court to implement this rule on
postponement strictly meaning postponement should be granted except when there
is a compliance with this rule that any motion for postponement based on absence
of evidence should be accompanied with its required affidavit. The same thing is
true when the ground of postponement is the ailment of the lawyer or of the client
such motion for postponement may be granted or acted upon if it is supported by
an affidavit showing that the presence of a counsel or a party before the court is
necessary and that the character of the ailment is such as to excuse the non-
appearance of the ailing lawyer or litigant. Again, the only trouble with this is, it is
more often honored in its break than in its compliance. So, where a lawyer does not
feel like going to court, then he justifies it. He presents a medical certificate. Where
did he get this medical certificate? From a doctor friend who will say Anong sakit
gusto mo? these doctors are not realizing that for falsely certifying they incur
criminal liability under RPC. The lawyer is not realizing that for introducing in
evidence this fake medical certificate he can also be held criminally liable. And worst
of all, is a situation where the lawyer himself becomes a doctor. For instance, he
cannot find immediately a doctor friend, he makes his own medical certificate.
These things that actually happen practice. These are unethical practices!!!
Just stick to the rule and youll never go wrong!!!
RENE NOTES:
Notice of Trial
- Upon entry of the case in the trial calendar, the clerk of court notifies the parties at least five (5) days
before trial.
Limitation on Adjournments
- one month for each adjournment
- three months over all
Exception
Authorized by the Supreme Court administrator
General Rule: The judge must himself personally receive and resolve the evidence of the parties.
However, the reception of such evidence may be delegated under the following conditions:
(a) The delegation may be made only in defaults or ex parte hearings or an agreement in writing by the
parties;
(b) The reception of evidence shall be made only by the clerk of that court who is a member of the bar;
(c) said clerk of court shall have no power to rule on objections to any question or to admission of
evidence or exhibits; and
(d) He shall submit his report and transcripts of the proceedings, together with the objections to be
resolved by the court within ten (10) days from the termination of the hearing.
Suspension of Actions
Article 2030 NCC
Every civil action or proceeding shall be suspended
1. if willingness to discuss a possible compromise is expressed by one or both parties; or
2. if it appears that one of the parties, before the commencement of the action or proceeding, offered to
discuss a possible compromise but the other party refused to offer.
Rule 31: Consolidation or Severance
Q. When does consolidation take place?
A. If two or more cases have between or among them common questions of fact
or of law, they may be consolidated in one court.
Example:
A collision took place between the vehicles driven by A and the vehicle
driven by B. These were both passenger buses. As a result of the collision, damages
were suffered by the buses and the passengers. So A now sued B in the RTC of
Quezon. The passengers who were injured as a result of the collision, X, Y and Z,
sued A and B in the RTC of Cavite.
Q. What is the fact common to both cases?
A. They originated from one and the same incident, i.e the collision.
Q. May the two cases be joined?
A. Yes.
Q. In what court?
A. Either in the court of Quezon or in the court of Cavite.
In this particular case, SC ordered the consolidation of these two cases in
the RTC of Cavite. Why? For practical purposes to minimize expenses. Why? Those
who filed the case in Cavite are residents of Cavite. If they were to go to Quezon, if
these case is consolidated there, that would entail much expense to the party. On
the other hand, these parties in the court of Quezon both being bus companies
could afford the expenses of going to Cavite. If these cases were consolidated in
Cavite.
Q. What is the justification for the consolidation here?
A. There is a common question of fact or of law common in both cases.
See, what would happen if cases were tried separately. The possibility of a
judgment rendered by Quezon RTC being different from the judgment rendered by
the Cavite RTC insofar as the cause of the accident is concerned may be conflicting,
so to avoid this (the possibility of conflict) it is better that these two cases be tried
by only one court so that there will be no possibility of conflicting decisions.
When cases are consolidated in one sala,
Q. What would be the proper method for the court to adopt in resolving these
cases?
A. The court where the cases are consolidated may try all the cases at the same
time and render only one judgment.
In this example, the Cavite court could try the Quezon case and the Cavite
case at the same time, render only one decision as if these two cases are only one.
There is another method of consolidation. This presuppose that there are
several cases of the same nature. Under this option, the court where the cases are
consolidated may try only the principal case, to receive the evidence of the principal
case leaving unheard the other cases. Say, if there are five (5), under the second
mode of trying these cases, the first case (the principal of them) will be heard first,
leaving untried the four (4) other cases. After the main case has already been tried,
then the court will render only one judgment.
Q. Is a court obliged to hear cases for consolidation?
A. Under the old rule , if the Cavite Court did not want to hear Quezon case, the
Cavite court cannot be compelled to try. The theory is that the court cannot be
compelled to hear the case of another court.
Under the present ruling, no more. As a matter of fact when consolidation
is proper, consolidation is mandatory.
This is the concept of consolidation.
Q. What is severance?
A. It is the opposite of consolidation. In a case of severance, there may be several
claims or several reliefs in which case, instead of the court conducting a hearing on
all the claims at the same time it will limit itself to the hearing of a particular claim.
.
A vs. B. The complaint alleges three (3) causes of action. These different
causes of actions and you know under the rule, a party can join all these causes of
action against another in only one complaint subject only to the conditions of
joinder.
There is this complaint of A involving three (3) causes of action. Normally
the trial would be conducted on all these causes of action and thereafter the court
will render only one judgment.
But under this severance, court may hear only one cause of action
remaining unheard the other causes of action.
In our cases here, B now has a counterclaim against A in respect to his first
cause of action.
Under this rule on severance, the court will try this first cause of action,
including the counterclaim of B. After the reception of evidence in this first cause of
action, the court will now render judgment leaving undecided these two cases
(these two causes of action). Thereafter, the court again can hear these other
causes of action. In other words, it is a trial by installments.
In the meantime that this case is decided and these two other causes of
action are not yet decided.
Q. Can this be the subject of enforcement already on it, can be the subject of an
appeal?
A. Yes, but the court can suspend the enforcement pending the disposition of
these two other causes of action.
This is how the rule works.
RENE NOTES:
General Rule: Consolidation is discretionary with the trial court.
Exception: When consolidation a matter of duty:
1. when tried before the same judge;
2. if filed with different branches of the same court having jurisdiction and one of such cases has not
been partially tried.
Three Ways of Consolidating Cases
a) by recasting the cases already instituted, conducting only one hearing and rendering only one
decision;
b) by consolidating the existing cases and holding only one hearing and rendering only one decision;
c) by hearing only the principal case and suspending the hearing on the others until judgment has been
rendered in the principal case (Test-case method).
Rule 32: Trial by Commissioner
Q. What is the situation contemplated here?
A. Take note that under Rule 30 the reception of the evidence is by the judge
himself or the court may in case of a default case, delegate the reception of the
evidence to the Clerk of Court, who is a member of the bar.
Under Rule 32, the party who receives the evidence is other than the judge.
It is a third person called the Commissioner.
Q. When may the case be tried by a Commissioner?
A. Where the parties agreed in writing that a commissioner be appointed.
Supposing the parties did not agree in writing that a commissioner be
appointed or that one wants a commissioner to be appointed, but the other refuses,
or both refused to agree to a commissioner.
Q. May a commissioner nevertheless be appointed?
A. Yes. There are three (3) instances when the court can appoint a commissioner
even without the written agreement of the parties or even over the objection of the
parties. They are the following:
1. where there is a need for the reception of evidence consisting of a long
accounts either from one or both of the parties;
2. when the taking of the accounts is necessary for the purpose of informing
the court before judgment is rendered, or of purposes of carrying a
judgment into effect;
3. when a question of fact other than upon the pleadings arises upon motion
or otherwise in any of stage of a case.
This last situation contemplates that a motion is filed based on facts not on
record. Then in the hearing on this motion a commissioner may be appointed to
receive the evidence.
These are the three (3) situations where a commissioner may receive the
evidence even over the objection of the parties.
Q. What is the extent of the power of the commissioner?
A. The general rule is, his powers are specified in the order appointing him. What
he can do are specified.
Supposing, however, the order does not say anything with respect to the
limits of his authority.
Q. What then is the authority of the commissioner?
A. In effect, the commissioner here would be acting as if he were a judge actually
trying the case.
As a matter of fact, he may even resolve the objections to the admissibility
of evidence. That is why this is governed by this rule.
When a reference is made, the clerk shall forthwith furnish the
commissioner with the copy of the order of reference. The order of reference here
is the order issued by the court appointing a commissioner and stating the
commissioner what he is supposed to act on.
So, if the specific issue for instance is the only matter in connection with
which he is authorized to receive evidence, then it is only in respect to that issue he
may receive the evidence.
Example:
A vs. B. The court may refer the reception of evidence with regard to the
case in its entirety.
Supposing there are three (3) issues raised. The court may refer this case
to a commissioner for a trial of, lets say only of issue #1. So, this issue is the one,
which is referred to the commissioner. That is what referred to here as the order of
reference.
Sec. 3 Rule 32
When a reference is made, the clerk shall forthwith furnish the
commissioner with a copy of the order of reference. The order may specify or limit
the powers of the commissioner, and may direct him to report only upon particular
issues, or to do or perform particular acts, or to receive and report evidence only,
and may fix the date for beginning and closing the hearings, and for the filing of his
report. Subject to the specifications and limitations stated in the order, the
commissioner has and shall exercise the power to regulate the proceedings in every
hearing before him and to do all acts and take all measures necessary or proper for
the efficient performance of his duties under the order. He may issue subpoenas
and subpoena duces tecum, swear witnesses and unless otherwise provided in the
order of reference, he may rule upon the admissibility of evidence. The trial or
hearing before him shall proceed in all aspects as it would if held before the court.
So that in what he can do (underlined provision) if he is not restrained by
the order, he can rule on the admissibility of evidence. In short, the commissioner
conducts the hearing as if he were a judge. What the judge can do, generally, he
can do.
Q. What is the first then that the commissioner does when he receives the order
of preference involving parties to a conference?
A. Conference must be held not later than ten (10) days from his receipt from
order of reference.
Before the commissioner sets the date of the hearing, the parties will
appear before him, so he will conduct the trial.
So he finishes the trial.
Q. What shall he now do?
A. He will now prepare a report. Submit the report to the court.
Q. What is this report all about?
A. The report concerns the proceedings that were conducted before him. If he is
not prohibited by the order of preference, he can submit his findings of fact. It is as
if he was the one who evaluates the evidence.
So, he forwards then to the court the entire records including the
transcripts of the proceedings, the exhibits if there are any.
Q. What is the duty of the Clerk of Court upon receipt of this report?
A. The Clerk of Court is mandated to furnish to the parties A and B copies of the
report.
Q. What for?
A. So that A and B can make their comments on the report of their objections to
that report. They can do this within ten (10) days from their receipt of the copy of
the report.
Q. What shall be done with this report upon the filing of these
comments/objections or upon the expiration of the period of the filing thereof?
A. The court will now set the report for hearing. After the hearing, the court will
resolve the report, either to approve the report or disapprove the report, recommit
the report to the commissioner or require the parties to present their evidence
either before the commissioner himself or before the court itself.
Q. What is meant by this?
A. The report is not binding on the court, it is merely recommendatory.
Sec. 10 Rule 32
Upon the filing of the report, the parties shall be notified by the clerk, and
they shall be allowed ten (10) days within which to signify grounds of objections to
the findings of the report, if they so desire. Objections to the report based upon
grounds which were available to the parties during the proceedings before the
commissioner, other than objections to the findings and conclusions therein set
forth shall not be considered by the court unless they were made before the
commissioner.
Sec. 11 Rule 32
Upon the expiration of the period of ten (10) days referred to in the
proceeding section, the report shall be set for hearing, after which the court shall
issue an order adapting, modifying, or rejecting the report in whole or in part, or
recommitting it with instructions, or requiring the parties to present further
evidence before the commissioner or the court.
(Thereafter the court will decide the case.)
RENE NOTES:
* Refusal of witness to testify or give evidence deemed indirect contempt of the court which
appointed the commissioner.
Rule 33: Demurrer to Evidence
Q. What is the situation contemplated by this rule?
A. After the plaintiff has rested its case, it is now the turn of the defendant to
present his evidence.
In our example, A finished presenting his evidence. A said I now rest my
case, your Honor. Meaning, A has no further evidence to adduce. So, for instance,
his witnesses are X, Y and Z. Then he have exhibits A, B and C. So after these
three (3) (X, Y and Z) finished testifying, he (A) will formally offer his documentary
exhibits. A will say, I have no more testimonial evidence to offer, I now present
formally my documentary exhibits.
Court: What does B say?
B: I do not have any objection, Your honor.
Court: Proceed A
A: I offer, your honor, the following exhibits: A, to prove the following; B, to
prove; C..
Court: What does B say?
B: I have no objection. Or I object to Exhibit C.
(When you object always state the legal ground. You cannot say. I object and
then sit down.
Court: What is the ground?
B: Bahala na kayo judge!
You must state the ground for objections so that the court may rule on
whether the objection is proper or not, because an objection may be proper but the
ground is improper. It is proper to object, but the ground raised is improper. So the
court will overrule the objection. This is the reason why the objection should always
be stated with its respective ground. The objection can be ruled upon only on the
basis of the ground relied.
Court: Exhibits A, B and C are admitted.
Q. What is now the next thing for B to do?
A. It is now the turn of B to present his evidence if he wants to. Why if he wants
to?
Because he (B) may not like to present his evidence. You cannot compel him
because a party has to choose the evidence he presents. He cannot be compelled.
So, if he (B) does not want any evidence, no power on earth can compel him. But
instead of immediately saying, I will not present any evidence, he wants to test
whether the evidence of A is sufficient or not.
Q. What legal device is he allowed to utilize?
A. Demurrer to evidence.
Q. What is the concept of demurrer to evidence?
A. When B files a demurrer to evidence, he simply says in effect. The evidence of
A consisting of the testimonies of X, Y and Z and the document exhibits A, B and
C even if given all their weight they are utilized to is not simply sufficient to prove
the case of A. Therefore, it is useless for me to present my evidence because under
Rule 133, it is the duty of A to discharge the burden of proof and since he failed, its
not my duty anymore to prove my defense. This is the assumption when B files the
demurrer to evidence. The evidence of A is insufficient, therefore the complaint
must be dismissed.
The court has options in ruling on this demurrer to evidence. It may deny the
demurrer to evidence.
Q. What is the implication of its denial of the demurrer to evidence?
A. From the point of view of the court, the evidence of A is sufficient prima facie
to support his case.
The court may grant the demurrer.
Q. What is the implication of the order of the court granting the demurrer?
A. It is a pronouncement by the court that the evidence of A is not sufficient to
prove his case.
Q. What then would be the effect of grant?
A. The complaint of A is dismissed. But this order of dismissal may be appealed by
A.
The possibilities are, the appellate court may affirm the order of dismissal or
it may reverse the order of dismissal, it simply means that the appellate court
agrees with the trial court that the evidence of the plaintiff is insufficient. And so,
the complaint remains dismissed.
The trouble arises when the order says, the order of dismissal is improper.
Therefore, the order of dismissal is reversed.
Q. What is the implication of that?
A. The implication is, that the evidence of A is sufficient to prove his case. So, the
order of dismissal is set aside.
Q. What is the effect of the reversal order of dismissal on the right of B to present
his evidence? Can he present his evidence or not?
A. He cannot present his evidence, because by electing to file the demurrer to
evidence, he in effect submitted the case for decision solely on the basis of the
evidence of the plaintiff (A).
But supposing in our example at the time B filed the demurrer to evidence,
he said, in the event the demurrer to evidence is granted and the order of
dismissal is reversed, reserved the right to present my evidence.
Q. Will this reservation allow him to present his evidence?
A. No. You cannot reserve the right to present evidence in the event the order of
dismissal is reversed on the appeal.
RENE NOTES:
DEMURRER TO EVIDENCE MOTION TO DISMISS
* it is presented after the plaintiff has rested his * presented before a responsive pleading (answer)
case is made by the defendant
* the ground is based on insufficiency of evidence * it may be based on any of those enumerated in
Rule 16
TWO KINDS OF DEMURRER TO EVIDENCE
CIVIL CASES CRIMINAL CASES
1. defendant need not ask for leave of court 1. leave of court is necessary so that the accused
could present his evidence if the demurrer is
denied.
2. if the court finds the plaintiffs evidence 2. if the court finds the prosecutions evidence
insufficient, it will grant the demurrer by insufficient, it will grant the demurrer by
dismissing the complaint. The judgment of rendering judgment acquitting the accused.
dismissal is appealable by the plaintiff. If the Judgment of acquittal is not appeallable; double
plaintiff appeals and judgment is reversed by the
appellate court, it will decide the case on the basis
of the plaintiffs evidence with the consequence
that the defendant already loses his right to present
evidence. No res judicata in dismissal due to
demurrer.
3. if court denies demurrer, defendant will present
his evidence.
jeopardy sets in.
3. if court denies the demurrer
(a) if demurrer was with leave of court, accused
may present his evidence;
(b) if demurrer was without leave of court,
accused can no longer present his evidence and
submits the case for decision based on the
prosecutions evidence.
3) if he is not in a position to state whether he admits or denies the
allegations, he is required to state that he has no knowledge sufficient to
form a belief as to the truth of the allegation in the complaint. This kind of
denial is the effect of the specific denial. This kind of denial is the effect of
the specific denial.
Q. Did B complied?
A. No. This is a general denial.
Q. What is the effect of a general denial?
A. An admission of all the allegations.

Since the promissory note is an actionable document because that is the basis of
Rule 34: Judgment on the Pleadings the action of A,

This rule presupposes that the answer of the defendant does not tender
any issue. Before that, the answer against the material allegations in the complaint.
Example:
A vs. B. This is an action for recovery of sum of money. The complaint
alleges in substance that A extended a loan to B as evidence by a promissory note
signed by B. A copy of that promissory note is attached to complaint as Annex A.
B has not paid the loan notwithstanding demand on him to do so, the period for the
payment thereof having already become due.
Q. What is now the prayer of A?
A. That a judgment be rendered against B to pay the amount of promissory note.
Q. What is the effect of failure of B to deny under oath the genuineness and due
execution of this document?
A. He is deemed to have admitted the genuineness of the note. So, he now admits
for his failure to deny under oath the promissory note.
So, there is nothing to be proven by A here, everything is already admitted.
In this case, A may now file a motion that a judgment be rendered on the basis of
only what is alleged in the complaint.
Q. Will the court receive evidence either for A or B before judgment can be
rendered?
A. No more. There is no reception anymore.

Q. What is the answer of B? This is how the judgment on the pleading is rendered. There is one
A. B denies all the allegations in the complaint. limitation, however, with respect to judgment of the pleading, where damages,
which are not liquidated are alleged and attorneys fees are also asked to be paid,
Q. What is his (B) prayer now? but there is no proof of this amount of the unliquidated damages.
A. That the complaint of A be dismissed.
Q. Can there be a judgment including damages and attorneys fees done in which
Q. Is there an issue tendered by the answer of B? case if the plaintiff wants a judgment include attorneys fees and damages he must
A. Under the rule on denial, was there a specific denial of the allegations in the produce evidence?
complaint? None. Why? Because for a specific denial, to be specific, the rule require A. We have a rule with respect to attorneys fees that, not every litigant who
the defendant to do any of the following: prevails in the case is entitled to attorneys fees, because to do so would be to make
1) specify the matters he denies; prejudice on the right of A. For attorneys fees to be awarded, the basis thereof
2) allege the facts in support of his denial. must be stated in the decision. In other words, the decision must always state
If the allegation is made up of two or more facts, part of which he admits, attorneys fees awarded the basis thereof. In the absence of that justification, no
part of which he denies, the rule requires him, specify so much of the allegation award of attorneys fees can be rendered unless the attorneys fees is considered as
that he admits as true and deny the rest. liquidated damages.
 Again, in the case of unliquidated damages, you have to prove the amount A. That judgment be rendered ordering B to pay him the amount of loan.
thereof. In the absence thereof, you cannot render a judgment of the pleadings on
damages. Q. What is the answer of B?
A. B denies the allegations in the complaint that he obtained money from A; that
RENE NOTES: he signed the promissory note, Annex A. That the demand was made.
What cases not applicable:
Q. What is his (B) defense?
1. nullity of marriage
2. annulment of marriage A. If there was any loan extended to me (B), he already paid the loan.
3. legal separation From the face of the pleadings, there are issues:
- Material facts of the complaint shall always be proved. 1) Did he (A) extend the loan?
2) Did he (B) sign the promissory note?
Rule 35: Summary Judgments 3) Did he (B) pay if there was a loan?

Under Rule 30, a trial should be held during which A and B are to prove their
Q. What is the concept of summary judgment?
respective sides of the issues.
A. A summary judgment is one, which is rendered by the court on motion of a
party, either of the plaintiff or the defendant where there is actually no genuine
But the truth however is this:
issue between the parties.
That A indeed gave a loan to B. That B indeed signed the promissory note. That
B did not pay the loan.
In this case, a judgment is rendered on the basis of evidence which is not
receive in the manner that evidence is received under Rule 30 (Trial)
Q. What is the remedy available to A, so that even without a formal presentation
in evidence by A and B, a judgment may now be rendered in favor of A?
Remember that we took up in Rule 30, a plaintiff must present his evidence,
A. Under Rule 35, this is the remedy available to A
the defendant must assert his evidence, thereafter, the court will decide the case.
Let us say A takes the deposition of X under Rule 23.
The reception of evidence is governed by Sec. 34 of Rule 1331 (Presentation of
Evidence).
Q. What did X say in his deposition?
I was asked by A to go to B and collect from him the amount covered in
In a summary judgment, when a judgment is rendered, there is evidence
the promissory. B replied to me, Tell A that I will pay him after I have sold the
received but it is evidence, which is not formally offered in evidence.
tobacco leaves I expect to harvest from my land. I went back to B on the date he
specified. B said, I cannot pay A because I was not able to harvest any tobacco
Q. Who is entitled to a summary judgment?
leaf. Why did I not harvest? Because I did not plant!
A. Either the plaintiff or the defendant.
This is the deposition.
In the case of the plaintiff, the defendant who has a counterclaim, the
plaintiff who has a right to a declaratory relief may file a motion for summary
A sent a request for admission to B.
judgment. When? After an answer to his claim has been served on him.
To B, (defendant)
Example: A vs. B (For Sum of Money)
The allegations in the complaint are substantially as follows:
Greetings!
A extended a loan to B. B signed a promissory note to evidence the loan.
You are hereby requested to admit the truth of the following statements:
The period for payment of the loan has already expired and demands
1) That X went to you to demand in my name that you pay the promissory
notwithstanding, B failed to pay the loan.
note;
Q. What is the prayer now of A?
 2) That you told him that you will pay me after you shall have sold the tobacco
leaves you expect to harvest from your farm; and
3) That he went back to you on the specified date and you told him that you
cannot pay me because you have not planted any tobacco in your field
4) That you do not have any receipt showing that you paid any amount.
Q. What do we learn about the request?
A. That B did not send A within the time mentioned in the request any denial
under oath of the matters referred to in the request.
A now executed an affidavit.
Q. What is the content of the affidavit?
A. The matters related to the law, the failure of B to pay, execution by B of the
promissory note, the fact that X went to B to demand payment and the answers of
B to the demands of X.
Q. What do you notice now?
A. A now has in his hands the deposition of X, the request for admission, the
affidavit of A.
Q. What does A now do with these papers?
A. He will attach them now to a motion in which he prays for a summary
judgment.
Q. What does A do with this motion to which are attached these documents?
A. He will file them and serve a copy thereof on B at least ten (10) days before the
hearing of the motion.
It means to say, that a motion for summary judgment being litigated must be
set for hearing strictly in accordance with Rule 15.
Note that under Rule 15 (Motions), a motion should be heard not later than
10 days after it is filed. This Rule 35 is an exception to the Rule 15. Why? Because
you cannot hear the motion for summary judgment within 10 days from its filing.
Why? Because between the filing and the hearing, a period of not less than 10 days
must first elapsed to allow the defendant to file his opposition if there is any to the
motion.
Q. What shall B do after he have been served?
A. If he (B) so desires, he may also file an opposition to the motion for summary
judgment. Like A, he may also support his opposition with his sworn affidavit,
deposition, or other documents.
Q. What will B do with the opposition?
A. Naturally he must file it with the court and serve on A a copy later on.
On the appointed day of hearing, which is not earlier than 10 days following
the filing thereof
Q. What shall the court do?
A. The court will now hear the motion.
Q. How will the court proceed to hear the motion?
A. This is what the court will do:
It will examine the complaint, the answer, the motion for summary judgment
and the documents attached thereto, the opposition if any and the documents
attached thereto.
The court will examine both and if the court find from the documents, the
pleadings and the documents attached to the pleadings and motions and
oppositions, the court finds that except to the amount of damages the plaintiff is
entitled as a matter of law to a judgment because the issues raised are not
substantial but they are merely sham, then the court will render a judgment in favor
of the plaintiff.
But if the court examined the pleadings, documents attached to the motions
and oppositions and finds that they are disputed and therefore cannot render a
judgment on the call of the motion, then the court will, in addition to examining the
records shall determine what are the facts that are not substantially disputed,
separate them and determine the facts which are not disputed, thereafter the court
will conduct a trial on the matters that are disputed and thereafter render the
judgment.
See now why it is summary. Because there is no reception of evidence if the
court finds from the pleadings that a judgment can properly be rendered in favor of
the plaintiff.
Q. What now would be the basis of the judgment?
A. Only the pleadings and the documents attached to the motion and the
documents attached to the opposition if there is any.
Q. Did you notice in our example whether these documents attached to the
motion or to the opposition were personally offered?
A. No, they were not formally offered. They are merely attached.
Q. What do we learn about the offer of exhibits?
A. No evidence shall be considered unless the offer is made and the purpose of A. After A has served on B his answer to the counterclaim, then B can move a
the offer is specified. summary judgment on the counterclaim.

Here there was no purpose, here the purpose was not specified, but they Let us suppose that B has a cross-claim against C.
were introduced.
That is how summary judgment works. Q. Can B file a motion for summary judgment on the cross-claim against C?
In our case, it was the plaintiff alone who filed it. A. Yes, after C has served on B his answer to the cross-claim.

Q. When will A file his motion for summary judgment? Q. What will be the procedure?
A. After B has served his answer on A. A. The same procedure that may be adopted by A if he files a motion for summary
judgment against B.
Q. Cannot B also file a motion for summary judgment?
A. Yes, the rule says, at any time. The right to file a motion for summary judgment belongs both to the
plaintiff and the defendant. The only difference being that, in the case of the
Q. Does that (at any time) mean that even before B has served his answer on A, plaintiff, he can file a motion only after he has been served with the answer to his
he can now file a motion for summary judgment? claim. In the case of the defendant, he can file his motion for summary judgment at
A. Yes. This is the distinction between a motion for summary judgment on the part any time even before he serve his answer.
of the plaintiff and the motion for summary judgment on the part of the defendant. A counterclaimant, a cross-claimant can likewise file a motion for summary
In the case of the plaintiff , he cannot file the motion for summary judgment judgment with respect to the counterclaim, with respect to the cross-claim at
until he has been served the answer. And this is for obvious reason, how can A anytime after an answer thereto has been served on him.
determine whether there are issues generally raised if there is no answer which
have been filed. RENE NOTES:
But in the case of the defendant , no! He does not have to file the answer,
* Summary Judgment is especially applicable to special civil action for declaratory relief.
because on the basis only of the complaint, a summary judgment can be effected.
* Proper only in actions
A subject for a summary judgment on the part of the plaintiff is not limited 1. to recover a debt
to the claim he has against B (defendant). It may also include a claim arising from a 2. for a liquidated sum of money
right involving a declaratory relief. 3. for declaratory relief
Summary judgment for claimant. A party seeking to recover upon a claim,
counterclaim or cross-claim or to obtain a declaratory relief may any time after the
SUMMARY JUDGMENT JUDGMENT ON THE JUDGEMENT BY DEFAULT
pleading and answer thereto has been served, moved with supporting affidavit, PLEADINGS (Rule 9)
depositions, admissions for summary judgments in his favor upon all or any party * based on the pleadings, * based solely on the pleadings * based on the complaint and
thereto. depositions, admissions and evidence, if presentation is
affidavits required
Q. How does this rule that a summary judgment may be obtained in case of a * available to both plaintiff and * generally available only on * available to plaintiff
counterclaim or a cross-claim arise? defendant the plaintiff, unless the
defendant presents a
A. In our example for instance, in this action for money, B has a counterclaim counterclaim.
against A. * there is no genuine issue * there is no issue or there is an * no issues as no answer is filed
between the parties, i.e. there admission of the material by the defending party.
Q. Can B file a motion for summary judgment on this counterclaim? may be issues but these are allegations.
A. Yes. irrelevant
* 10-day notice required * 3-day notice required * 3-day notice rule applies
Q. When? * may be interlocutory or on the * on the merits * on the merits
merits
Rule 36: Judgments, Final Orders and Entry Thereof
Section 1.
A judgment or final order determining the merits of the case shall be in
writing personally and directly prepared by the judge, stating clearly and distinctly,
the facts and the law on which it is based, signed by him and filed with the clerk of
court.
Section 1 of Rule 36 provides that the court must render a judgment. The
rule requires that the judge himself must personally prepare the judgment.
Q. Does this mean that the rule requires the judge to be a typist or stenographer?
A. No. Why? The requirement that the judge must personally prepare the
judgment simply says that the judge must be the one to ascertain the facts that are
established by the evidence. The judge for instance, cannot commission the clerk of
court to study records of the case, evaluate the evidence and then write the
decision. The rule requires the court to examine the records and evaluate the
evidence, come up with the conclusion and thereafter make the decision. The
mechanical act of writing a decision can be delegated to a third person.
So, this is how it is done. The judge examines the evidence hereafter arrives
at a conclusion.
Q. So what does he (judge) do?
A. He now calls on his secretary or his stenographer and dictate to the
stenographer. The stenographer thus writes the decision. Thereafter the judge signs
it.
Q. Is this a decision that must be personally prepared by the judge?
A. Yes, because the rule does not require he (judge) would be the typist or
stenographer, otherwise he would not have devoted so many years of his life
studying law only to become a typist or a stenographer.
The rule further requires that the judge must make in his decision the
complete findings of fact.
Q. What is meant by this (complete findings of fact) ?
A. A complete finding of fact presupposes that the court has studied the evidence
and found out what the facts that have been established in by the evidence.
What the law requires him to do is to make a finding of facts. The rule does
not require him to make a conclusion of facts.
For instance, the issue is whether A is the owner of the land in question. The
court now assesses the evidence of A consisting of the testimonies of X, Y and Z.
Evidence of B consisting of the testimonies of C, D and E. Exhibits of A are Exhibits
A, B and C. Exhibits of B are Exhibits 1, 2 and 3.
This is what the court wrote in the decision After going over the evidence
presented by A and B, the court finds that A is the owner of the land. Wherefore,
judgment is rendered declaring A the owner of the land and ordering B to surrender
its possession to A. The court further orders B to pay A in damages in the amount
of P1,000,000.01.
Q. Is that a findings of fact?
A. No. That is a conclusion brought on the evidence.
Q. What would have been the findings of fact here?
A. The court should have stated in the decision the basis of its findings that A is
the owner.
Q. In this example, is there anything said in the decision, which supports the
conclusion of the court?
A. Theres nothing. So that when B for instance, appeals from the judgment, what
will be the basis of his assigned error when there is nothing in the decision for
which an error may have occurred.
This is what the court should have done to support its conclusion that A is the
owner of the land. For instance, it will say, the evidence shows that this land
originally belonged to X, the father of A. This land is covered by a Certificate of Title
in the name of X. (exhibit A), X paid the taxes of this land. (Exhibit B) A has
been in possession of this land until he died 1980. After the death of X, A, his son,
took possession of the land.
So, from this, you can infer why A is the owner. Those statements after the
findings of fact. Those are supposed to be stated.
A judgment should be in writing, dated and signed by the judge . Unless it is
in writing and signed by the judge and dated, it is not a judgment at all.
Q. Supposing the court promulgated a judgment in open court, is that a valid
judgment?
A. No. Why? Because a judgment is supposed to be in writing and duly
promulgated. As long as the judgment, though signed by the judge is not
promulgated, it is no judgment

Q. When is judgment deemed promulgated?
A. A judgment is deemed promulgated on the day the judge gives his judgment or
decision to the clerk of court. It Is the filing of the judge with the clerk of court that
constitutes the promulgation thereof.
In our example, the court render judgment in favor of A, already signed,
but kept his judgment on his chamber.
Q. Is this a judgment within the meaning of Rule 36?
A. No. Why? Because it has not been delivered to the clerk of court.
Supposing the judge delivers this to the clerk of court, Dec. 1, 1998.
Q. When is the judgment deemed to have been promulgated?
A. On this day, Dec. 1, 1998. Its the delivery of the judgment to the clerk of court
that constitutes its promulgation.
Q. What are the parts of the judgment?
A. You have the following:
1) opinion of the court;
2) dispositive portion of the judgment;
3) date of judgment; and
4) promulgation
Q. What is meant by the opinion of the court?
A. The opinion of the court consists of the findings of fact of the court. Its findings
of facts would be the basis of dispositive portion of the judgment.
For instance, A. vs. B. The court rendered a decision. The first part of the judgment
is the discussion of the court of the evidence.
Supposing, from its discussion the court concludes that A is the owner of the land.
Q. What now is the judgment of the court here?
A. It is that part of judgment or decision which adjudicates the rights of the
parties. It says here
WHEREFORE, the court hereby renders judgment declaring the owner of
the land.
This is the judgment. This is the adjudication of the issues of the parties.
Q. Is it possible that there be a contradiction between the opinion of the court and
the judgment of the court?
A. Yes, it is possible.
For instance, in our example here, the discussion and the opinion points to
this conclusion that A is the owner of the land. But the dispositive portion says,
Wherefore, the court hereby declares B the owner of the land and dismisses the
complaint.
You will notice that there is a discrepancy between the opinion of the court
and the dispositive portion. Whereas the opinion of the court the discussion of the
court, A is the owner, and in the dispositive portion, he is not the owner, it is B.
This reminds Judge Laggui of an incident where the counsel for the accused
appeared for preliminary investigation in the case of theft of large cattle. The owner
of the cow supposedly stolen engaged a private counsel. The private counsel
appeared for a preliminary investigation. Because there was no prosecutor
representing the state, the counsel for the accused moved that the private counsel
be disqualified on the theory that private counsel cannot appear for the state unless
the public prosecutor has authorized him to do so. Since the public prosecutor was
not in court and there was no authority of the private counsel to represent the state
he has brought to present the evidences of the state. After arguments, the court
ruled the motion to disqualify the private counsel is denied. However, the counsel
for the private party is required to first secure the authority of the fiscal before he
can proceed.
(Notice that the opinion varies with the dispositive portion. The dispositive
portion should prevail)
Q. Whats the concept of several judgments?
A. In the case of several judgments, there are two or more defendants and the
liability that they have with respect to the obligation is joint.
In case like this, (joint) a judgment may be rendered against one or some
of them in the meantime, the case against the others may be held in abeyance and
thereafter, another judgment may be rendered.
Example:
A is the creditor of B and C. The liability of B and C is joint. Let us say, they
argued a promissory note in favor of A for P500,000. Let us assume that A
prosecute his case against B only because in the meantime C although sued and
inspite his answer in that in the meantime, in the jurisdiction of the court. So the
court tries the case with respect to B only.

Q. Can this be done?
A. Yes.
Q. In the meantime that this case against B is being heard, what becomes of his
case in so far as A and C are concerned?
A. Its suspended.
So this case by A against B can proceed to finality. So the court can tender
a judgment at here.
When C is back in the Philippines, the court may now hear the case against
C and another judgment may now be rendered. Since the liability is joint, the
judgment that may be rendered here will only cover the liability of B to the extent of
P250, 000. So the court rendered a judgment against B in favor of A. the judgment
will be limited only to P250,000.00, it will not affect the other P250,000.00 which
pertains to C. so when the court renders its judgment with respect to C, the court
will limit its judgment to the amount of P250,000.0 corresponding to the liability of
C.
Q. So what do you notice here?
A. There are two judgments. One with respect to A and B and the other with
respect to A and C.
So we call these judgments here several judgments. This applies only where
the liability of the defendant is joint and severable. If the liability is solidary, this
cannot be done. So if the obligation of B and C is solidary.
Q. Can you have this case?
A. No. You render a judgment only one.
Q. How about separate judgment, what is the difference between a separate
judgment and a several judgment?
A.
Example:
The causes of action of A are 1, 2, 3. So there are three causes of action
against B. B has several defenses. Lets say, permissive counterclaim against A.
Q. What can be done in the trial of this case?
A. The court may conduct a trial with respect to these first two causes of action
holding in abeyance the hearing on the third cause of action. After the court has
heard all these (two causes) causes of action including counterclaims that A had
been raised with respect to these two causes of action. Then the court will render a
judgment on these two causes of action holding in abeyance the hearing on the
third cause of action. Thereafter, the court will hear this third cause of action.
So you will see that there is already a judgment on the first two causes of
action.
Then the court will render a judgment on this third cause of action.
The court will also hear separately the permissive counterclaim and
thereafter render a judgment thereof.
Q. So how many judgments now do you have?
A. There are three (3). So you have separate judgments.
Q. What do you consider as the difference between separate judgments and
several judgments?
A. In separate judgments, what is several are the causes of action or claims or
counterclaims.
In the case of several judgments, what are several are the number of
defendants.
Several Judgments (Sec. 4 Rule 36)
In an action against several defendants, the court may, when a several
judgment is a prosper, render judgment against one or more of them, leaving the
action to proceed against the others.
Separate Judgments (Sec. 5 Rule 36)
When more than one claim for relief is presented in an action, the court, at
any stage, upon determination of the issues material to a particular claim and all
counterclaims arising out of the transaction or occurrence which is the subject
matter of the claim, may render a separate judgment disposing of such claim. The
judgment shall terminate the action with respect to the claim disposed of and the
action shall proceed as to the remaining claims. In case a separate judgment is
rendered, the court may order its enforcement until the rendition of a subsequent
judgments and may prescribe such conditions as may be necessary to secure the
benefit thereof to the party in whose favor the judgment is rendered.
Q. In this case of separate judgments, for instance, after the judgment in the first
two causes of action has become final, may it be executed or may be the subject of
an appeal?
A. Not yet, because the court may defer the enforcement thereof to await the
result of the hearing of the other cause of action.
 This is what is meant by separate judgment. Direct Attack
a. before finality
1. motion for new trial or reconsideration
Sec. 6 Rule 36
2. appeal
When a judgment is rendered against two or more persons sued as an b. after finality
entity without juridical personality, the judgment shall set out their individual or 1. relief from judgment, Rule 38
proper names, if known. 2. annulment of judgment, Rule 47

This Sec. 6 Rule 36 refers to a case when the judgment involves an entity
which has not juridical personality.
You remember the rule that entities without juridical personalities may be
sued but when the answer is filed, the names of the persons making up that entity
without juridical personality must be stated.
This is now what is required when the judgment is rendered with respect to
group of people who will not have separate juridical personality.
So here, if X, Y and Z are sued as an entity but they do not have a separate
juridical personality, then the judgment against them will set out the names of the
parties making up this entity.
So, if the entity is sued as X, Y and Z. Marketing, the judgment against X, Y
and Z. Marketing, the names of the individual persons who made that namely X, Y
and Z will be set up in the answer.
RENE NOTES:
Requisites of A Judgment
1. It should be in writing, personally and directly prepared by the judge
2. Must state clearly and distinctly the facts and the law on which it is based
3. It should contain a dispositive part and it should be signed by the judge and filed with the clerk of
court.
Promulgation The process by which a decision is published, officially announced, made known to
public or delivered to the clerk of court for filing, coupled with notice to the parties of their counsel.
* A judgment based on a compromise otherwise known as judicial compromise has the force of law
and is conclusive between parties. Not appealable.
* The power to amend the judgment is inherent to the court before judgment becomes final and
executory. Once a judgment has attained finality (expiration of the period to appeal), no further
amendment or correction can be made by the court except for clerical error or mistakes.
* Attack of judgment may be direct or collateral
Rule 37: New Trial or Reconsideration
This presupposes that a judgment has already been rendered either for the
plaintiff against the defendant or for the defendant against the plaintiff. Any of them
can file a motion for reconsideration.
Q. Within what period the motion for new trial or a motion for reconsideration may
be filed?
A. At any time before the judgment has become final. After the judgment has
become final, the remedy is no longer a motion for new trial, it may be another
remedy already such as petition for relief under Rule 38 but certainly, not a motion
for new trial.
There are only two grounds for motion for new trial:
1) Fraud, Accident, Mistake or Excusable negligence (FAME), which resulted in
the judgment against the movant;
2) Newly discovered evidence (NDE). Evidence which the movant could not
have presented during the trial and which if presented will probably alter
the result of the cast.
Example: A vs. B
The judgment was rendered against B.
Q. What was the reason why a judgment was rendered against B?
A. Because of FAME. So this FAME resulted in a judgment, which is prejudicial to
his interest.
He now wants that this judgment against him (B) is set aside and that a
new trial be held. Because after a judgment, he discovered evidence which could
either be testimonial or documentary and which evidence he could not have
presented during the trial because even if he exerted efforts to procure it, he could
not procure it. This evidence if presented will probably alter the result of the case.
So there are the only two (2) grounds.
Procedure now
Q. What are the requirements so that B must comply with?
A. Of course, he must have to file a motion for reconsideration stating therein the
ground(s). Accompanying the motion must be his affidavit of merit.
Q. On what facts may this affidavit of merit may be filed?
A. Let us say, with respect to the ground, for instance, the ground is FAME, then,
the affidavit of merit consists of facts constituting all the fame.
If the ground is newly discovered evidence, the motion must be
accompanied by the statement of the person with whose testimony the newly
discovered evidence is based. Lets say, the newly discovered evidence is the
document or a copy of the document must be attached to it.
All the grounds for the motion for new trial must be alleged in the motion .
Why? Any ground already available at the time the motion is filed but not alleged
therein is deemed waived.
Q. What now will happen with this motion filed by B?
A. This is a litigated motion and therefore should be set for hearing strictly in
accordance with Rule 18.
(With respect to the affidavit of merit, in case it is the defendant who filed a motion
for new trial, he should accompany his motion with a statement of a fact
constituting his defense. If it is the plaintiff for instance, who filed, the affidavit of
merit shall state the fact constituting his cause of action.)
So, the motion now is set for hearing in accordance with Rule 15. So, the
court will resolve the motion whether to grant it or to deny it. The motion may if it
was established that there were FAME that resulted in the rendition of judgment
against B in this example, then the motion will be granted. If the basis is newly
discovered evidence and the court finds that the newly discovered evidence, then
the court will grant, otherwise the court will deny.
Q. What is the effect of the grant of the motion for new trial?
A. The judgment already rendered is set aside, as if no judgment at all was
rendered.
In this example, if the motion for new trial of B is granted, the judgment
already rendered against him is set aside.
Q. What now is the effect of the order granting the motion for new trial on the
evidence already received?
A. In this case, the evidence of the party consisted of the testimonies of X, Y and
Z, and exhibits A, B and C.
Q. What now becomes the evidence?
A. If the motion for new trial is based on FAME, the rule says, the evidence
affected by the FAME will be set aside. So if the evidence that is affected by this
fraud is that coming from X, this will be set aside, only there, testimonies of Y and Z
and exhibits A, B and C will remain.
So the court will conduct a trial. The court may render another judgment
after conducting the new trial. In deciding this case now,
Q. What evidence may the court take into account?
A. The testimonies of Y and Z and exhibits A, B and C. It will disregard the
testimony of X. So, if another witness will testify and say E, then his testimony will
also be taken into account.
Q. How about these testimonies affected by B?
A. If they are not affected by FAME, they will be taken into account. If there was
another witness who testified, it will be taken into account.
So the court will render a judgment based on these evidence remaining. This
is if the ground is FAME.
Newly discovered evidence, thats the basis, lets say, the only evidence
consisting of the so-called newly discovered evidence is exhibit I for instance and
F testimony.
Q. In deciding the case, what evidence should be taken into account?
A. All the evidence previously presented by A, all the evidence previously
presented by B including exhibit I and testimony of F. Nothing is discovered
because they are not affected by these newly discovered evidence.
So, in the example the witness who already testified do not have to be
recalled anymore. Their testimonies will be considered. If there are additional
witnesses, their testimonies will be considered.
This is how the motion for new trial is conducted.
Q. How many motions for new trial may be filed?
A. The general rule is, a party can file only one motion for new trial.
Q. Is there an exception to this rule, meaning that more than one motion for new
trial may be filed?
A. Yes. When the ground of the second motion for new trial was a ground not
existing at the time the first motion for new trial was filed.
For instance, the motion for new trial is filed on the basis of FAME. While
this motion is pending, defendant-movant B found evidence, which qualifies as
newly discovered evidence.

Q. Can B now file another motion for new trial based now or newly discovered
evidence?
A. Yes, because at that time the first motion was filed, this second ground was not
yet in existence.
Q. Is there such a thing as partial new trial?
A. Yes. A new trial does not have to cover the entire case.
Supposing there are three (3) issues in the case.
Q. May a new trial be held only with respect to one of the issues?
A. Yes. So, the new trial will be limited to a trial of that only issue.
The judgment on the second and third issues will no longer be disturbed.
Q. If there are two or more parties in one separate case, may a partial motion for
new trial be granted?
A. Yes.
Supposing the defendants B and C, the plaintiff being A.
Q. May a partial new trial be conducted only with respect to B and only with
respect to C?
A. Yes, because each of these defendants has his own right.
So, a new trial is conducted with respect to B only, then the new trial will be
limited between A and B. It will not include C.
If the new trial involves only C, then the case will only be between A and C.
It will not include B.
Q. What is the distinction between a motion for new trial and a motion for
reconsideration?
A. In a motion for new trial, the grounds are those we already specified.
The grounds for a motion for reconsideration are different. They are:
1) when the judgment has awarded damages which are excessive;
2) when the judgment is contrary to law;
3) when the judgment is contrary to the evidence.
With respect to the reception of evidence, in the case of a motion for
reconsideration, there is no reception of evidence.
In the case of a motion for trial, there is a reception of evidence.
So these two differ. They, however, share a common point and that is, they
can be filed only before the judgment has become final.
Q. Why is it, in the case of a motion for reconsideration, there is no trial anymore,
all that the court does is to set aside the judgment and amend it?
A. Remember the grounds:
1) Excessive Damage all that the court does is to review the evidence and
find out whether the damages are excessive or not.
2) Judgment is contrary to law all that the court does is to review the law on
that matter.
3) Judgment is contrary to the evidence all that the court does is to review
the evidence.
Thats why there is no need of trial.
RENE NOTES:
* Fraud must be extrinsic or collateral not intrinsic.
* Forgotten evidence is not a ground for new trial.
Requisites for newly-discovered evidence
a) must have been discovered after trial
b) could not have been discovered and produced at the trial
c) if presented would alter the result of the action
Otherwise, it is called forgotten evidence
* A motion suspends or tolls the running of the reglamentary period for appeal except when the same is
pro-forma.
PRO-FORMA MOTION - when it does not comply with Rule 15 and Rule 37, e.g. it does not point
out specifically the findings or conclusions of the judgment as are contrary to law, making express
reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary
to such findings or conclusions, ans is merely intended to delay the proceedings or if there is no
affidavit of merit.
Rule 38 : Relief From Judgments, Orders, or Other
Proceedings
Petition for relief from judgment, this assumes that the judgment has already
become final. And the matter of fact that the judgment or final order has already
been entered.
You know that once a judgment has become final, like in this case .
Lets say, you receive the judgment in favor of A. Dec. 1, 1998. He has until Dec.
16, 1998 within which to do any of the following:
1) Motion for new trial;
2) Motion for reconsideration.
If he does not, one of these days until Dec. 16, 1998, as of Dec. 17, 1998, the
court can no longer alter its judgment. The only thing that the court can do after a
judgment has become final is to execute it under Rule 39.
Of course, there are certain things that a court may do with respect to a
judgment that has already become final, but not with respect to the merits thereof.
No matter how the judgment is erroneous.
So the only thing that can be done after the judgment has become final is to
correct the clerical error or in a proper case, may clarify the judgment. These are
the only things it can do.
So, we said, that beginning Dec. 17, 1998, in our example, A can now execute
this judgment.
Let us say that the judgment in favor of A declared A the owner of the land.
Ordered B to vacate the lot. Commanded B to pay damages of P1M. This is the
judgment.
Beginning Dec. 17, 1998, A can now execute this judgment under Rule 39. No
matter how erroneous this judgment is, there is nothing that can be done but to
execute it.
However, under Rule 39, the law recognizes the possibility that B may have lost
the case by reason of matters not imputable to him.
For instance, the judgment was rendered against him by reason of FAME. Then
the rule recognizes this. The inequity that may result to be, if this judgment
procured under that circumstances will be made. So under Rule 38, the law gives B
the opportunity to be relieved from his judgment. Thats why Rule 38 speaks of
Petition for Relief.
So, under Rule 38, if B files the petition, he will ask that he will be relieved from
this judgment. That means to say that he asked that this judgment be set aside.
This is the concept of Petition for Relief of Judgment
There is another matter covered by a petition for review and this is a situation
where a loosing party was prevented from taking an appeal therefrom.
In our example, the judgment was rendered against B. After trial, there was no
FAME which gave rise to the judgment. B lost. Nevertheless, he is entitled to
appeal, for example, he has until Dec. 16, 1998 within which to file his notice of
appeal. But he was prevented from filing the appeal by reason of FAME. So there
are two things that can be the subject of petition for relief.
1) A judgment rendered by reason of FAME or a proceeding attended by FAME; or
2) A deprivation of a party of the right to appeal by reason of FAME.
Q. In what court should a petition for relief be filed?
Lets assume that this case between A and B was filed in the RTC Branch 1
of Manila with Civil Case#2345.
Q. In what court and in what case should B file his petition for review.
A. He should file his petition for relief in the RTC of Manila Branch 1 and in the
same case (Civil Case #2345).
It shows that a petition for relief is a continuation in effect of the case
wherein the judgment was rendered.
So if the case was filed in the MTC, then this petition for relief must be filed
in the MTC in the same case.
There is an amendment of the old Rule 38 in the present Rule 38. Under
the old rule, a judgment rendered by an inferior court (MTC for instance) and which
a party thereto desires to file a petition for relief, the petition for relief must be filed
with RTC.
So, in our example for instance, in 1995, a case was filed against B in the
MTC, Civil Case#2345, B now wants to file a petition for relief from the judgment
rendered.
Q. Where will he file the case?
A. File it in the RTC. So the case will be now B vs. A.
This is not so now!
The court which rendered the judgment is the court before the petition for
relief should be filed.
Period within which a petition of relief must be filed within 60 days from the time
the petitioner learned of the judgment of the proceedings and in no event
beyond six (6) months from entry of judgment.
Q. Is this period extendible?
A. No, it is not extendible.
So, if you file a petition on the 61 st day following your knowledge of the
judgment, that petition is already filed out of time.
Q. Why cannot the period be extended?
A. Because Rule 38 is an act of grace on the part of the state in favor of a party.
Consequently, the party who desires to avail of this benefit should do so subject to
the conditions thereof.
But there can be case where this period may be extended.
In one case, the defendant after engaging a lawyer never heard anymore
from the lawyer. So, he did not know the status of the case. The only time he had
learned of the status of the case was when he received a writ of execution against
him.
Q. So, what did he do?
A. He tried to investigate.
Q. What did he find?
A. The fact that his own lawyer connived with the plaintiffs for his defeat.
A vs B, engaged Atty. C. Atty. C connived with A.
Based on these facts, B now filed a petition for relief long after the
judgment against him has become final.
The court allowed the petition for relief to be given course. He was a victim
of a fraud committed by his very own counsel.
Q. Is the court truly bound to give due course to a petition for relief?
A. No.
Let us see why
After B for instance has filed his petition for relief, the court will first
examine the petition to determine whether it is sufficient in form and substance. If
it is not, then the court will dismiss it. If the court finds that the petition was
sufficient in form and in substance, it will give it due course, meaning, it agrees to
hear it. But if he denies due course, it does not want to hear the petition.
Let us assume in this example that the court gave due course to the
petition of B.
Q. What would the court do in this case?
A. It will now issue an order directing A to file a comment on the petition.
Q. How would A know that a petition was filed against him by B?
A. (Did you notice in our discussion whether B furnish A a copy of his petition. He
did not serve the petition to A.)
. the court after giving due course to the petition of B, issued an order
commanding A to file his comment. Accompanied in this order is a copy of the
petition of B. In other words, it is not B, it is the court that serves on A a copy of
the petition. Of course the court will grant A a period of time within which to file his
comment. In the absence of any period, the period shall not be less than 15 days
from service of the order.
Q. Is it mandatory for A to file a comment or opposition on the petition?
A. No. Why? If A files a comment or opposition as if he does not file the comment
or opposition, but after the period of filing thereof has expired, the court will now
set the date for the hearing of the petition.
Q. What do you notice here?
A. Whether or not there is a comment or opposition, the court will set the petition
for hearing to determine whether said petition is meritorious or is not meritorious.
So, in our example, B must present evidence in support of his petition. A, if
he so desire, may present evidence in opposition, thereafter the court will resolve
the petition.
Q. What are the possibilities?
A. 1) The court may deny the petition. So it says there is no FAME that resulted
into a judgment against B.
2) The court found that there is FAME which resulted in the judgment and in
the case, the court will grant the petition.
Q. What now is the effect of the grant of the petition on the judgment already
rendered?
A. The judgment previously rendered is set aside. So, theres no longer any
judgment to speak of.
Q. What follows after that?
A. The rule says, thereafter, the court shall hear the case as if a timely motion for
new trial are granted. The court will now hear the case anew as if a motion for
new trial was granted. So, the court will receive evidence addressed during the
hearing so that it may be considered thereafter the court will render a judgment.
This case will be the second judgment. Judgment now will be whatever judgment. It
may happen that under the second judgment may be in favor of B now or may still
be in favor of A.
There is such a thing as an injunction that the court may issue while the
petition for relief is pending. In our example, the judgment has already become
final. A already filed a motion for execution. In the meantime B filed a petition for
relief.
Q. What is the available remedy to B so that pending the termination of this
hearing of the petition for relief, A will not succeed in having that judgment he
executed?
A. B may file a motion for issuance of an injunction to restrain the execution of the
judgment.
For the purpose however of protesting also the right of A, B is required to
post an injunction bond. So, before the court restrains the sheriff from enforcing his
judgment, the court may require B to post a bond in favor of A.
Q. For what is this bond responsible?
A. In case damages where suffered by A as a result of the issuance of the
injunction and after hearing the petition, the petition was denied or after hearing
the case, the motion for new trial having been granted, the judgment is
nevertheless in favor of A, then whatever damages A may have suffered by reason
of the issuance of the writ of injunction, may now be answered by the bond B
posted. So that if B does not pay him damages awarded to A, then A can go after
the bond.
Petition for Relief
It is available only when the other remedies against a judgment are no
longer available.
So, if the motion for reconsideration is still available, or if a motion for new
trial is still available:
Q. Can you avail a petition for relief?
A. No, Why? Because you can still avail of this other remedies. So, this is the last
resort that a loosing party can avail of to set aside an unfavorable judgment.
Lets see the other aspect of a petition for relief.
It is said, it involves also the failure of a party to appeal because he was so
prevented by FAME.
So, in our example, B files a petition to be relieve from the fact that he was
not able to file the appeal. In our example, B failed to file the appeal. The judgment
has become final. He wants now that he be allowed to appeal.
Q. What is the remedy?
A. File a petition for relief.
Q. What is the prayer for that petition for relief?
A. That he be allowed to appeal.
Q. What could be the reason that would justify the grant of his petition?
A. The justification was, he was prevented from appealing because of the FAME.
So the procedure to be followed by B would be the same as he would have followed
if the petition was to set aside the judgment by reason of FAME. So, the petition to
be relieved from failure to appeal is granted.
Q. Then what is the relief that the court would grant?
A. Then the court will order the appeal to be given due course and that therefore,
the court where the petition was filed and which rendered the judgment appealed
from will elevate the records tot the appellate court.
So in our example, the judgment was rendered by the RTC Br. 1 Manila and
petition for relief prayed that the appeal of B from the judgment be allowed. Then
when the petition is granted, the RTC of Manila Br. 1 will give due course to the
appeal of B. So, the court will now elevate to the appellate court the entire records.
RENE NOTES:
NEW TRIAL/RECONSIDERATION RELIEF FROM JUDGMENT
* must be filed within the appeal period. Judgment * Judgment is final within 60 days after
not yet final. petitioner learns of the judgment to be set aside
and within 6 months after such judgment is
entered.
* A legal right. * More on equity (Discretionary)
* FAME * FAME only
* Judgment on final order * Relief from judgment/order on other
 proceeding.
* Two Hearings
(a) hearing to determine the judgment be set aside
(b) if yes, a hearing on the merits of the case
Rule 39: Execution, Satisfaction and Effect of Judgments
Q. What is the concept of Rule 39?
A.
Example:
The judgment commanded B to do these things:
1) vacate the land;and
2) pay A P1M.
This judgment became final on Dec. 1, 1998.
Q. Can this judgment now be altered on Dec. 2, 1998?
A. No more, that cannot be altered anymore. Of course this is subject to Rule 38.
No matter how erroneous this judgment is, it can no longer be set aside. All
that is to be done now is to execute it. Meaning to implement it.
When we say, all that is to be done is to implement that judgment, to
execute it. We mean to say that B should now be required to vacate the land and
pay P1M to A.
Q. How will this command of the court be carried out?
A. That is carried out in accordance with Rule 39. Every step that finally leads to
the accomplishment or the execution of its judgment is provided for in Rule 39.
The sheriff is the officer entrusted by the rules to execute this. In carrying
out the judgment, the sheriff must follow strictly Rule 39. This is the concept of
Rule 39 (Execution). The sheriff cannot execute this except in the manner Rule 39
provides.
Q. What are the matters to be taken up under Rule 39?
Q. What kinds of judgment or order can be executed?
A. The rule said, only a final judgment or order can be the subject of execution.
This means to say that, in a judgment, if an order has not yet become
final, it cannot be executed.
Q. What is meant by final judgment? By final order?
A. Justice Regalado points out in his book the concepts in which a final order or
judgment is considered final, considered in the sense with respect to the
appealability of the judgment or order. Final with respect to the appealability of the
judgment or order.
This is how it is distinguished
Q. From the point of view of appealability and from the point of view of
enforceability what is a final order?
A. From the point of view of enforceability , a final order or a final judgment
is one which can already be enforced because the period for an appeal therefrom is
already without an appeal having been taken.
So in our example therefore, if a judgment was received by A on Dec. 1,
1998 and by B by Dec. 2, 1998, A has only until Dec. 16, 1998 and B has only until
Dec. 17, 1998 within which to file a notice of appeal, a motion for reconsideration or
a motion for new trial. But they have not done this up to this day. Then we say that
this judgment is final from the point of view of enforceability. Why? Because
effective Dec. 18, 1998, the prevailing party, A in our example, can already enforce
this. This is the meaning of a final order or judgment from the point of view of
enforceability.
From the point of view of appealability.
Let us say, A vs. B. B filed a motion to dismiss. The motion to dismiss was
denied.
Q. Is this order of denial a final order from the point of view of appealability
A. No. This is not a final order from the point of view of appealability. Why? An
interlocutory order is not appealable. This is the general rule. You cannot appeal
from an interlocutory order because by its very nature, it can be set aside at any
time. It is always within the control of the court as oppose to a final order.
Let us see.
Suppose the motion to dismiss was granted and therefore the complaint is
dismissed. Form the point of view of appealability
Q. Is this order granting the petition appealable?
A. Yes, Why? Bec. the order finally disposes the matters involved in the case.
Q. What makes an order interlocutory. What makes an order final from the point
of view of appeallability?
A. In the case of interlocutory order , after its judgment, there is still something to
be done with respect to the merits of the case. So, the order does not put an end to
a case.
In our example, the order denying the motion to dismiss is an interlocutory
order. Why? Because after the order has been issued, there is still something to be
done with respect to the merits of the case.
For instance, B will file the answer. Thereafter, pre-trial and then judgment.
This is the essence of an interlocutory order. It does not put an end to a case.
There is something else to be done after its issuance.
Let us take the case of order of dismissal granting the motion to dismiss.
Q. Dec. 2, 2003, can this judgment now against B be enforced by motion?
A. No more.
Q. Is there a remedy by which A can still enforce this judgment after Dec. 1,
2003?
A. Yes, by action.
Example:
Within this five-year period from Dec. 1, 1998 to Dec. 1, 2003, all that A
does to secure this writ of execution is to file a motion on the same case Civil Case
#2345 RTC Manila Br. 1.
So, A will file this motion for execution in the same court. Dec. 1, 2003, this
judgment can no longer be enforced by motion. It can now be enforced by action.

Q. What is the effect?

A. We said that the complaint is dismissed. Q. What does this mean?
A. Let us assume that the land is located in Zambales. A is a resident Sulu. B is a
Q. Is there anything else to be done in the case after the complaint is already resident of Batanes. Starting Dec. 1, 2003, A can file this action.
dismissed?
A. No more. There is nothing else to be done on the merits of the case. That is Q. Within what period can A file his action?
why it can now be a subject of the appeal. So, this is the difference between a final A. He has a period ending five (5) years from Dec. 2, 2003 or Dec. 2, 2003 within
order from the point of view of appeallability and from the point of view of which to file the action.
enforceability.
Q. Where will the action be filed?
What we are talking about in Rule 39 is a final order from the point of view of A. Sulu or Batanes.
enforceability.
Example: Q. Why not Zambales?
A vs. B. The judgment has already become final in the RTC. This judgment A. Because an action to revive a judgment is a personal action. It is not a real
because final on Dec. 1, 1998. Our assumption is, there was no appeal from this action. This being a personal action, it will be governed by Rule 4, the venue could
judgment. So, it became final Dec. 1, 1998. be the residence of the plaintiff or the residence of the defendant at the option of
the plaintiff.
Q. A wants a writ of execution to be issued. Within what period can A file a motion
for the issuance of a writ of execution? A now file an action against B for revival of judgment in the RTC of Sulu or
A. He has five (5) years from finality of judgment which is equivalent to entry of Batanes at the option of A.
judgment within which to do so.
Q. What do you notice?
So, he (A) has up to Dec. 1, 2003 within which to execute this judgment by A. A separate action.
mere motion. So this judgment rendered in Civil Case #2345 can no longer be enforced
by mere motion. You can enforce it if you can procure a judgment in this RTC of
Let us suppose that Dec. 1, 2003 is the last day of the filing period. This Sulu or Batanes.
judgment was not executed by motion within his five (5) years.
Q. If you were A here, what would you allege in your complaint?
A. Your allegation would be this
That you received a judgment in your favor in Civil Case # 2345. That the
judgment was not executed by motion within five (5) years from its finality of
judgment.
Q. What is now your prayer?
A. You now pray that the judgment rendered in that case be revived.
Q. What do you associate revival?
Q. Do you revive a dead man?
A. No.
Q. What do you do with it?
A. You resurrect him if you can.
Q. Who then is revived?
A. He who is unconscious.
Q. Why do we call this action to enforce the judgment rendered in the civil case,
an action to revive?
A. Because after the 5-year period during which the judgment was not enforced
that judgment in a sense fell into a coma.
Q. What do you do?
A. Revive so it can be enforced.
Q. Within what period should an action to revive be filed?
A. The rule says, it must be filed before the action is barred.
Q. Where do you find the rule to apply whether the action is barred or not?
A. Civil code provisions state the periods during which actions may be filed. In
certain actions, there are periods fixed.
So, in our example, the action to revive the judgment should be filed within
10 years from the day the judgment in Civil Case #2345 has become final or when
it was entered.
Our assumption here is, the judgment became final Dec. 1, 1998. For the
purpose of filing the action for revival, you have 10 years from Dec. 1, 1998. In
effect therefore, A has a period of five years from the expiration of the original 5
years within which to file the action for revival. In this example, the five year period
ended Dec. 1, 2003. You now can file the action within five years again, Dec 1,
2003.
Let us assume that the judgment for revival is granted.
Q. Can you now execute the judgment of revival?
A. Yes.
Q. Within what period?
A. By motion also within 5 years from entry of judgment in the revival action.
Q. You did not execute the judgment in that revived action within the 5-year
period from its entry. Can you now execute it?
A. Yes.
Q. How?
A. By motion again.
So you can revive the revived judgment if it was not executed within the 5-
year period.
We are talking of a judgment, which can be enforced or executed only after
it has become final and that it can be executed in the court where the judgment
was rendered.
Lets take the second possibility
A vs. B RTC of Manila, Civil Case #2345. B appealed to CA. CA rendered a
judgment affirming the RTC judgment of the CA became final Dec. 1, 1998.
You are A who would want the judgment of CA be executed.
Q. Where will you file the motion for execution?
A. Here are the possibilities..
This case is still with the CA but the judgment already became final Dec. 1,
1998. But the records are still there.
You now want that judgment in CA affirming the judgment of RTC
executed.
Q. If you were A, in what court may you now file the motion for execution?
A. You can file in the RTC.
Q. But the records of the case are not yet in the RTC, in what case then will you
now file the motion in the RTC?
A. The remedy A will secure a certified copy of the CA judgment, he will now
get a copy of entry of judgment duly certified by the CA.
Q. What will A do with these two?
A. He will now attach them to the motion for execution.
This motion for execution is now accompanied by these two certified copies
so that although the records are still in the CA, the RTC can now act on the motion.
Q. Can the RTC now enforce this judgment of CA although the records are still
there?
A. Yes. File in the RTC a motion for execution. Attached to that motion, certified
copy of:
1) CA judgment; and
2) Entry of judgment
Of course the motion for execution filed in the RTC should be heard in
accordance with Rule 15. That means to say that B must be notified. Why? Because
this is a litigated motion.
Q. May not A file in the CA the motion for execution while the records are still with
the CA?
A. Yes, A can file with the CA the motion for execution.
Q. Will the CA issue the writ?
A. No.
Q. What will it (CA) issue?
A. It will merely issue an order directing the trial court, the RTC in our example, to
issue the writ of execution.
Now, you distinguish between the order directing the issuance of a writ of
execution and the writ of execution itself.
In this example, what is issued by the CA is the resolution directing the trial
court to issue the writ. What RTC issues is the writ itself.
Supposing these records are already turned over to the RTC and thats
already final.
Q. May A file still with the CA a motion for execution? (The records are already in
the RTC.) May the CA nevertheless issue an order directing the RTC to issue the
writ considering the records are already in the RTC, no longer with the CA?
A. Justice Regalado, a recognized writer in Remedial Law opines that the CA may
still issue the order directing the RTC to issue the writ although the records are
already with the RTC.
*This is not a decided case. That is only the view of Mr. Regalado. Dont be misled
by this comment on this as you may find in his book you can opine otherwise and
be sustained by the SC.
So far we have been talking of execution of judgments.
Q. May a judgment or order, which has not yet become final be the subject of
execution?
A. Yes, but then this is the exception.
Example:
A vs. B , A receive the judgment favorable to him on Dec. 1, 1997; B
received the judgment on Nov. 28, 1997. So A has until Dec. 16, 1997. B has Dec.
13, 1997 within which to do any of the following:
1) Motion for reconsideration;
2) Motion for new trial; or
3) Notice of appeal.
This is what happens
On Dec. 11, 1997, B filed a notice of appeal.
Q. What is the effect of this notice of appeal filed by B in so far as he is
concerned?
A. Insofar as B is concerned, the court can no longer touch the judgment. It
cannot modify anymore the judgment insofar as B is concerned.
Q. But can the court still modify this judgment insofar as A is concerned after Dec.
11?
A. Yes, because A has until Dec. 16 within which to do any of the above-stated. In
other words, the appeal here of B does not affect the rights of A up to Dec. 16.
So, if A files a motion for reconsideration on this judgment lets say on Dec.
15 or four (4) days after the appeal of B has been filed.
Q. Can the court still reconsider this judgment insofar as A is concerned?
A. Yes, but it can no longer change the judgment insofar as B is concerned.
On Dec. 15, 1997, A file a motion for execution.

Q. Can A still file his motion for execution considering that the judgment is not yet
final insofar as A is concerned because this will become final only as to him on Dec.
16?
A. Yes, he can still file.
Look Is this judgment already final insofar as A is concerned? Not yet.
Insofar as B is concerned, this is an appeal to the judgment, which is not
yet final, also as to him.
Q. Can this judgment nevertheless be executed?
A. Yes. Meaning.
Can the court rule on this motion of A for execution is filed, the court has not yet
lost jurisdiction of the case insofar as A is concerned.
Supposing the records however, were elevated to the CA on Dec. 20, 1997.
Q. Can the court now rule on this motion for execution on Dec. 21?
A. No more. Why? The records are no longer with the court.
Q. What would be the justification for the court to issue an execution against B
while the case is pending appeal?
A. The rule says simply that the court may issue execution for a special reason to
be stated in a special order.
Q. Do you find any enumeration in the rules particularly Rule 39 on what
constitutes special reason which justifies the issuance of the writ of execution
pending appeal?
A. None.
The court then will determine whether there is or there is no special reason
for the issuance of a writ pending the appeal. (It is the court that determines on a
case-to-case basis.)
Now if the court issues a writ of execution pending appeal, the law requires
that the order must state the special reason why the writ of execution was issued.
In the absence of the statement in the order of what constitutes a special reason,
there will be a violation by the trial court of this Rule 39.
Q. What is a special reason?
A. The rule does not say so. So this is a matter that is left to the discretion of the
court to determine.
A judgment is rendered against the defendant B to pay a sum of money. B
is already on the verge of bankruptcy. While the case was pending, the period for
appeal has not yet expired, he started disposing his properties. Evidently, to place
them beyond the reach of the plaintiff A who obtained a judgment in his favor.
Q. Should A file a motion for execution based on this ground?
A. The imminent bankruptcy of B and the fact that he was disposing his properties
with evident intention of depriving A of the benefits of the judgment may be
considered a specified reason. Why? Because if you wait until the judgment become
final, there will be nothing left already on the assets of B which can be levied upon
to satisfy the judgment.
Q. Will this be a good reason?
A. Its up to the court. If it thinks that it is a good reason to execute the judgment
is affirmed on appeal, and the judgment become final, the plaintiff is already
assured of payment.
Q. Supposing the judgment ordered the defendant to deliver A a quantity of
perishable goods, lets say meat for instance, what will happen to these perishable
goods if you still wait until the judgment become final to execute it.
A. By that time, they may have already been spoiled.
Q. So, may it now be a special reason that because of the nature of the goods,
the execution of a judgment is proper to avoid these goods being lost?
A. Whether the reason is good or not, special or otherwise, it is the court that
determines.
Q. Is it only in the trial court that the motion for execution pending appeal may be
filed?
A. No. When a case is pending in the appellate court, the prevailing party may
also file therein a motion for execution.
So, in our example, the case has been appealed by B to the CA. So the case
is pending now in the CA.
Q. Can A file in the CA a motion for execution of the judgment pending resolution
of the case by CA?
A. Yes, a motion can be filed by A in CA.
Q. What is the lifetime of a writ of execution?
A. 5 years
Q. What is a writ?
A. A writ is a command of the court addressed to a proper officer normally the
sheriff commanding him to execute the judgment.

Example:
On motion of A, the court issued an order directing that a writ be issued for
the execution.
Q. Who carries this (writ) into effect?
A The clerk of court.
Q. What will the clerk of court do?
A. The clerk of court will issue in the name of the court the so-called writ of
execution.
So, the clerk of court issues this writ.
Q. To whom is this writ directed?
A. To the sheriff.
Q. What does this writ command the sheriff do?
A. The rule says, the writ must recite the dispositive portion of the decision and
thereafter command the sheriff to implement it.
In our example, the judgment ordered B to deliver the land to A. To pay A
so much money
Q. What will the writ say?
A. Whereas on Jan. 2, 1998, a judgment was rendered by this court the
dispositive portion which read, ( the dispositive portion of the judgment is quoted).
Whereas this judgment has become final on this date (put the date) hence
the court in its order dated so directed that a writ be issued.
Wherefore, you are commanded to execute the foregoing judgment.
(There is another directive there) of the properties of B you are
commanded to make up the sum of so much to pay the amount adjudged in the
decision.
Q. Is it addressed to B?
A. No. It is addressed to the court personnel.
Q. What is a lifetime of a writ of execution?
A. Under the old Rule 39, a writ has only a lifetime of 60 days counted from the
day the sheriff received it. This means to say that if the judgment is not executed
within that 60-day period, that writ can no longer be enforced after the 60 th day.
Q. What then was the result under the old Rule 39?
A. If the writ was not executed within the 60-day period, it automatically lost its
force beginning the 61st day. Therefore, any service of the writ after the 60 th day
would be already be an invalid service. Consequently, the party who prevailed and
who wants the judgment executed must again file a motion for the issuance of
another writ of execution.
So, under the old rule, there could be as many writs of execution issued
within the five-year period for as long as the writ was not implemented within the
60-day period, another writ can be issued such that by the end of the 5 th year, all
the writs have not been implemented, there can be no more writ to be issued
thereafter. Why? Because you now have to file an action to revive the judgment.
Q. What is the modification now?
A. Under the new rule, we now have a longer lifetime of a writ of execution. The
lifetime corresponds to the period within which a judgment may be executed by
mere motion. It means to say further that during this five-year period, no other writ
of execution is required to be issued. The sheriff can enforce that within this five-
year period for as long as the judgment is not satisfied within the 5-year period.
There are several kinds of judgments that may be the subject of execution.
We have a judgment for instance which calls for a judgment involving special one.
Q. Where lies the difference?
A. A judgment commanding specific acts to be done may involve any of the
following:
1) payment of money
2) delivery of property
3) execution of deed conveyance
These are among the judgments calling for specific acts. These are not the
only acts involve in a judgment. (Let us just take them for illustrative purposes).
And we could have a judgment called special judgment secured by A
against B provided that B should tear down a concrete fence with B erected on a lot
belonging to A. So, this kind of judgment is not any of this judgment for specific
acts. So, there may be a judgment commanding the loosing party to turn over the
prevailing party the piece of land; there may be a judgment commanding a party to
execute a deed of conveyance.
This is the final judgment that Judge Laggui would like to discuss to us
Example:
Supposing in this example, A vs. B, the court rendered judgment the
dispositive portion of which commanded the following:
 1) A is the declared owner of the lot in question covered by TCT No. 2345 A. No. He himself must do it. But he might say, I cannot do it. Bahala ka sa
Registry of Deeds Province of Rizal. sarili mo! Tear it down. B says, I will not.
2) B is ordered to execute a deed of transfer of this lot in favor of A.
3) The Registry of Deeds, Province of Rizal is so ordered to cancel the title and Q. What is the remedy?
issue another in the name of A. A Declare him in contempt of court. So he does not want to tear it down, arrest
him! Send him to jail.
Q. How will this judgment be carried out?
Q. Will you release him?
Let us suppose in our example, B refused to comply with this order, A. No.
commanding him to execute a deed of transfer in favor of A.
Q. When will you release him?
Q. What is the remedy under this rule? A. When he has obeyed tearing down. If he does not tear it down, he will rot in
A. The remedy is this jail.
The court will commission a third person to execute the deed in favor of A.
RENE NOTES:
Q. What is the effect of this deed executed not by B but by C?
*A Writ of Execution to be valid, must conform strictly to the decision or judgment which gives it life.
A. The rule says, the deed executed by this third person C is just as good as if it
It cannot vary the terms of the judgment it seeks to enforce.
were B. So that when A, the prevailing party, presents to the Registrar of Deeds, General Rule: Court cannot refuse execution
Province of Rizal, this deed signed by C (not by B), the Registrar of Deeds will
register that and cancel the title of B. UNLESS: (UCNID)
1. Execution is UNJUST or IMPOSSIBLE
Theres another remedy, if B does not execute the deed. 2. Equitable grounds like a CHANGE IN SITUATION
3. Judgment NOVATED by parties
4. Execution is enjoined
Q. What can the court do? 5. Judgment has become DORMANT
A. The court will simply say, the Registrar of Deeds, Province of Rizal is ordered
to cancel the title No. 2345 in the name of B and issue another in the name of A.
*Quashal of writ proper when:
In the case of a special judgment 1. Improvidently issued
2. Defective in substance
3. Issued against the wrong party
Q. How does this differ from a judgment involving specific acts. 4. Judgment already satisfied
A. The difference lies in this fact. 5. issued without authority
That in the case of judgment involving specific acts , the writ of execution
issued to the sheriff is not accompanied by a copy of judgment. But in the case of a *Remedies of the Losing Party
special judgment, the writ of execution addressed to the sheriff is accompanied with 1.Petition for relief (Rule 38) or
2. Direct or Collateral Attack against judgment
a certified copy of the judgment. In the enforcement of this writ of execution,
involving special judgment, SUPERSEDEAS BOND - one filed by a petitioner and approved by the court before the judgment
becomes final and executory and conditioned upon the performance of the judgment appealed from in
Q. Who will execute the judgment? Is it the sheriff? case it be affirmed wholly or in part.
A. No. It is the party. In our example, defendant here. Why? Because he must
obey the judgment. Meaniing since he was commanded to tear down that concrete * Supersedeas bond guarantees satisfaction of the judgment in case of affirmance on appeal, not other
things like damage to property pending the appeal.
fence, B must do it himself.
* The court may, in its discretion, order an execution before the expiration of the time within which to
Q. Can he (B) order the sheriff to do it? appeal provided.
1. There is a motion for execution filed by the winning party
2. There is a notice of said motion to the adverse party; and
3. There are good reasons stated in a special order after due hearing.
GENERAL RULE: an order of execution is not appealable otherwise there would be no end to the
litigation between the parties.
EXCEPTIONS:
1. When the terms of the judgment are not very clear;
2. When the order of execution varies with the tenor of the judgment
* A revived judgment is a new judgment thus another 5/10-year period to execute and revive is given
the party.
Rule 39 Sec. 47: Effects of Judgment rendered by a Philippine Court
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 specified thing, or in respect
to the probate of a will, or against the administration of the estate of a
deceased person, 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 of the administration, or to the condition, status or
relationship of the person, however, the probate of a will granting a letter
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 of 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.
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 .
You will note that Sec. 47 of Rule 39 groups into three (3) the actions
covered by the section.
The first section covers:
1) cases involving title to specific property;
2) cases involving probate of a will;
3) cases involving the administration of the estate of the decedent;
4) cases involving the political, legal and personal condition or status of a
person; and
5) cases involving the relation of a person to another.
Q. What does the rule say with respect to the judgment that may be rendered in
these cases?
A. The rule says (1) the judgment is with respect to the specific property,
conclusive on the title to the property; (2) the judgment is conclusive on the
probate of the will; (3) the judgment is conclusive to the administration of the
estate; (4) the judgment is conclusive on the personal, political or legal condition of
a person; and (5) the judgment is conclusive on the relation of a person to another.
There is only one exception to this rule that judgment is not conclusive, and
that is when it comes to the probate of a will or the administration of the estate.
The judgment here is merely prima facie evidence that the testator or the person
whose estate is under administration, is dead. It can be proven that he is alive.
Example:
A filed an application for registration of title to a lot. Only B opposed. After
the trial, judgment was rendered confirming the title of A. The judgment became
final. The LRA issued the decree of registration pursuant thereto, a corresponding
certificate of title OCT #1234. This title now is in the name of A. Let us assume that
this judgment became final on 1978. In 1998, C now files a case against A for
recovery of this lot. C said, I am the owner. A said, No, I am the owner.
Q. What is the issue?
A. Who is the owner?
During the trial, A now the defendant, presented in evidence the judgment
of the court in that Registration case, the certificate of title issued in that case, and
the decision, Exhibits A, B and C respectively.
A says, I offer your honor Exhibits A, B and C to prove that I am the
registered owner.
Court: What does B says?
C: I object on the ground that I was not a party to the case. The parties thereto
being only A and B. Therefore, I am not bound by the judgment.
Court: Objection overruled. Exhibits A, B and C are admitted.
Q. Is the ruling of the court correct?
A. Yes. Why? Because under Sec. 47 (a) Rule 39, the judgment in that
registration case is pertaining to as it does to a specific property is conclusive on
the title. So, this being a proceeding in res, the judgment binds not only A and B
but the whole world including C who was not a party.
That means to say that C cannot be declared the owner of that land. Why?
Because the ownership was already decided with finality in that case.
 If C has any claim over this lot, he should have filed his claim during the
registration proceeding. He should have intervened. He did not. Then all claims over
this land that were not presented were deemed extinguished when the judgment
was rendered. This what is meant by conclusiveness of title. Of course, this does
not mean to say that C may not be able to recover this lot. No! He may recover, but
in another cause of action. Supposing that he can show that the ownership of the
land later on pass from A to him, then he can recover. But if he simply says, I am
the owner. On his own right deriving his title from A, that title of A cannot be
challenge anymore in any proceeding. This is what is meant by conclusiveness of
the judgment in a case involving title to specific property.
Probate of Will
The rule says, a judgment in a probate case is conclusive as to the probate .
Q What is meant by this?
A.
Example:
Here is the will of J. Here now is A who filed a petition for the probate of
the will. The court admitted the will in probate. The judgment becomes final on
Dec. 1, 1999. (Dont forget that what is decided in a probate case is not the merits
or validity of the dispositions in the will.) What is decided in the probate of the will
is merely the question of whether or not the will was executed in accordance with
the formalities required by law.
You know that under the New Civil Code, there are certain formalities that
must be followed by the testator so that the will will not be valid. So for instance,
the law says, the will must be signed by the testator at the end thereof and on
every page on the left side; each page if the will consists of more than one page be
numbered and that the will must be attested by three attesting witnesses; they
must be acknowledged by the testator and the attesting witnesses before a notary
public. These are among the many formalities that the testator must have to
follow, so that the will he executes shall be valid.
Here, the will was admitted for probate. This means to say that the will was
validly executed as to the form. This means to say therefore that his will was signed
by the testator. This is the meaning. But, as to whether the dispositions in the will
are valid or not, that is not decided. So, in the will, the testator said, I have all
these properties described as follows to my #2 for services rendered
Q. Will the court decide that in the probate?
A. No, because that was into the intrinsic validity. This is not decided.
After his will was admitted on probate, A now was sued involving this will
now. B now says that this will was a forgery because the signature was affixed by X
without the knowledge of T.
Q. Can the question of forgery of this will be raised later on?
A. No more. Because the judgment in the probate proceeding is conclusive that
this will was validly executed. This means therefore that the testator signed the will.
But supposingly, the truth is, as contended by B, that the will was signed by
X? Never mind. The law says, the will was signed by T. (even if it was actually
signed by X. Never mind!) Under Sec. 47 Rule 39, I signed it!!! Whether he did
actually or not, no longer matters!!! This is the meaning.
However, there is a qualification here, and i. E., the admission of the will in
probate is merely prima facie evidence that T died.
Q. So, can it later be proven that T is still alive?
A. Yes. Why? Because the presumption is that T is dead is rebutted by his
appearance.
A judgment involving the political, legal or personal condition of a person,
or his relation to another is conclusive as to such personal condition, legal or
political condition, status or relation.
Example:
A sues B for compulsory recognition as a natural son of B. B denied the
claim of A that he is his son. So the issue is: Is A the son or not of B?
After trial, the court said, B is the father of A. Years later, B died
succeeded by his several children. Since B has an estate, A sued the heirs of B. A
alleged that he is the natural son of B. But the heirs of B alleged that A is not a son
of B.
Q. Can the relationship of A as a natural son be litigated anew?
A. No more. A is the son of B. This question cannot be litigated again.
There is logic here
Supposing the heirs of B if allowed to prove that A is not the son of B, they
may now introduce evidence that A is the son of C and the court believes that C is
the father of A.
Q. How many fathers now does A have?
A. Two. This is the evil sought to be avoided by this rule. You cannot place the
status of a person in a state of uncertainty because if he (A) is now the son of B,
tomorrow he will be the son of C, now, where will this end? So there can be as
many fathers as can be proven This is not allowed.
 This is what is meant by the conclusiveness by the judgment in a case
involving the relation of a person.
Q. What do we learn from this?
A. The judgment in any of these cases mentioned, in Sec. 47 (a) Rule 39 is
binding, conclusive and cannot be altered.
Sec. 47 (b) Rule 39
In other cases, that which has been adjudged in a case or any matter that
could have been raised in relation to that matter that has been adjudged is
conclusive between or among the parties and their successors in interest by title
subsequent to the commencement of the action or proceeding litigating for the
same thing under the same capacity under the same title and in the same capacity.
Q. What is meant by this?
A. It simply means that where an issue has already been decided in one case, that
issue cannot be litigated again. Why? Because that judgment toward this issues
which has been raised and decided is already conclusive and can never be changed
anymore insofar as the same parties or their successors in interests are involved.
This is the so-called rule involving res judicata. That which have been decided
in another case involving the same subject matter, involving the same causes of
action.
Example:
If you kill a cow or a carabao and you want to eat the flesh, what do you
do? You skin the carabao or the cow. Can you skin the same animal twice? You can
skin it only once. You can litigate an issue only once. You cannot litigate again for
the same issue.
And if a litigation is brought involving the same issue, the judgment
rendered in the first case may now be pleaded in the second case. Res judicata is a
ground for motion to dismiss.
Example:
A vs. B for reindivicacion. What is the issue? A says, I am the owner. B
says, I am the owner. So, the issue is: Who is the owner?
Trial A presents evidence to prove his ownership. B presents his evidence
to prove his ownership. Judgment: A is the owner. The judgment became final on
Dec. 10, 1994.
In 1995, B now or if he (B) is dead, the heirs of B, file a case against A or if
A is not alive, As heirs. So, its either heirs of B against A or Heirs of B against
heirs of A.
Q. What is the nature of the action?
A. Reindivicacion Why? Bs heirs wants to recover. As heirs wants to recover.
Bs heirs said We are the owners. As heirs said, We are the owners.
Issue: Who are the owners?
Q. What did you notice here?
A. In both cases, the parties are the same. A vs. B or heirs of B vs. heirs of A.
Q. Why are the parties the same when A and B are dead and the parties litigating
are just their respective heirs?
A. Because their heirs merely stepped into the shoes of A or B respectively.
The subject matter is the same the land. The cause of action is the same.
Issue: same ownership.
Q. Can this be decided in this case?
A. No more. The judgment rendered in the first case on the issue of ownership is
binding on all the parties in the second case.
Q. If these were the situation, what is the remedy available to A or the heirs of A,
in order that this second case will not be tried anymore on the merits?
A. What the defendant A or heirs of A can do is to file a motion to dismiss under
Rule 16 on the ground or res judicata.
This is a very simple form of res judicata.
Q. What are the other rules with respect to res judicata?
A. Here are the rules
The effects of res judicata cannot be avoided or evaded simply by changing
the nature of the subsequent cause of action.
Example:
You will note that this case between A and B, the issue is: Who is the owner
of the land? That judgment was rendered in favor of A. So, he was declared the
owner. The judgment became final.
B now sued A for recovery of damages representing the value of this lot,
lets say P1M.
Can this suit for recovery of damages be maintained by B?
 Look
Q. What is the subject matter of the first case?
A. A lot.
Q. What is the subject matter of the second case?
A. Money. (So, they are not the same!)
Q. Lot and money is that so?
A. No. Why? Because the money represents the value of the lot.
Q. What is the basis now of the claim of B or the heirs of B in recovery of P1M?
A. Their ownership of the land, because if they were not the owner, he/they would
not recover.
Q. But was not this question of ownership already decided?
A. Yes. It was decided.
Q. What is the cause of action in the first?
A. Ownership. A says, I am the owner. B says, I am the owner.
Q. What is the cause of action in the second case?
A. Their claim of ownership.
So, you have here, identity of parties, identity of causes of action, identity
of subject matter, then you have here res judicata.
Q. What does this example illustrate?
A. That the effects of res judicata cannot be avoided by simply changing the
nature of the action.
Q. What is the nature of the action in the first case?
A. Reivindicacion.
Q. What is the nature now of the second action?
A. Recovery of money. There was a mere change in the nature of action, but both
actions are founded in the same facts.
Another rule
The fact that the parties in the subsequent case may not be exactly be the
same as the parties in the prior case does not affect the application of the rule of
res judicata. So long as the parties in the subsequent case represents substantially
the same interest as represented in the prior case.
Example:
In the first case the defendant was only B. In the second case, B and S are
now the main plaintiffs. Why S? Because S is the wife of B. B and S now filed an
action to recover the value of the land. Naturally A filed a motion to dismiss on the
ground of res judicata. But B and S argued that the rule on res judicata does not
apply. Why? Because the parties in the first case and the parties in the second case
are not the same. So, they argued that in the first case, the parties thereof are A,
as plaintiff and B, as defendant. In the second case, the parties are B and S as
plaintiffs and A as defendant. S was never a party. So there is no identity.
Q. Is the contention of the plaintiffs B and S, correct?
A. No. Why? Because S being merely a spouse was not an indispensable or even a
necessary party in the first case. If she were sued then, she could have been sued
merely as a nominal party. With her addition as a plaintiff in the subsequent case,
that will not strengthen the case of the husband because with or without the wife
impleaded in the first case, the judgment will have been applied equally to S.
Here is an illustration of what we said earlier that in the subsequent case,
there is or there are parties who were not parties in the prior case, will not affect
the application of the rule on res judicata, the additional parties, in our example,
were not indispensable parties in the prior case.
The third part of Sec. 47 (c) Rule 39 presupposes that there was a prior
case between parties and that judgment in the prior case is invoked in a
subsequent case between the same parties.
Example:
A vs. B in Civil Case # 1234. A judgment was rendered in that case.
Subsequent to that, there is another case between A and B or between B and A.
Under this set of cases, that judgment rendered in the first case is introduced as
evidence in the second case. But with the introduction in evidence of the judgment
in the first case, will not be a res judicata in the second case. Why? Because under
this rule (Sec. 47 (c) Rule 39), only those matters that have been decided in that
prior case is deemed res judicata in the second case . Therefore, there is still a part
of the case in the second case, which can now be decided. Can no longer be
decided in the second case. That is why, the rule says, the other cases involving
the same parties, that has been adjudged in a prior case which appear on its face
to have been directly adjudged or this could have been necessarily included therein.
Example:
A vs. B for forcible entry. The issue is, Who has the right of possession of
the land? Let us say that the judgment was in favor of A. So, A was declared the
lawful possessor. The court having found that A had been in possession of the land
for 20 years continuously until B ejected him therefrom.
Q. What do you recall about forcible entry?
A. The only issue in forcible entry in , involving possession. So, what is settled in
the forcible entry case is the question of possession. The question of ownership is
not decided in forcible entry. Although you will recall that in BP 129 as now included
in Rule 70 that, in a forcible entry case, the question of ownership may be decided.
But the decision is only for the purpose of determining who is the lawful possessor.
So, the law says, When the question of ownership is raised and the
question of possession cannot be decided without deciding the question of
ownership, then the question of ownership may be decided. But only for this
purpose. To allow the Municipal Trial Court to determine who is the lawful
possessor. But then the findings of the MTC as to who is the owner is not final. It is
only good in that case. The question of ownership can again be litigated.
After the judgment in favor of A has become final, B sued A, this time for
reivindicacion. So B says, I am the owner.
Q. So, what is the issue here?
A. Ownership.
This is what A did. He filed a motion to dismiss this second case. What is his
basis? He now argued that the judgment in the forcible entry case is already res
judicata. Since the question of possession has already been decided in that forcible
entry case, this action for reindivicacion can no longer be litigated. This is his (A)
contention.
Q. Is the contention of A correct?
A. No. Under the par. C of Sec. 47 Rule 39, the rule says, In other cases involving
the same parties that is deemed decided in the prior case which appears on its face
to have been directly adjudged.
Q. What was adjudged in a forcible entry?
A. Only the question of possession the question of ownership here can still be
decided.
Q. But can there be now a dispute as to the question of possession, so that if the
question of possession can still be disputed, B can prove that A was not in
possession of the lot?
A. No more. Why? Because the question of possession was already settled in the
forcible entry case.
So in the reindivicacion, the question of possession is res judicata. That
cannot be litigated anymore. It is already res judicata.
Q. So, what do you notice here?
A. Par (c) of Sec. 47 of Rule 39 involves partial res judicata. That is what is meant
by par (c) of Sec. 47 Rule 39.
Sec. 48 Rule 39: Effect of Judgment rendered by a Foreign Court
The effect of a judgment or final order of a tribunal of a foreign country,
having jurisdiction to render the judgment or final order is as follows:
(a) In a case of judgment or final order upon a specific thing, the judgment or
final order is conclusive upon the title of 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.
A judgment rendered by a foreign court cannot be enforced in the Philippines
except by action.
If a foreign judgment rendered in an action involving title to specific property,
or the action in connection which a judgment may have been rendered is a personal
action.
Example:
A vs. B involving specific property or personal action. This case was filed in
the USA. Lets say that the judgment was rendered in any case in favor of A. So, in
the case of specific property, he is declared the owner. In the case of personal
action, B was ordered to pay A money. The trouble was, although this judgment has
already became final in the USA, it was not enforced or executed in USA. A and B
came to the Philippines. A now files a motion in court for the execution of that
judgment in USA.
Q. Can that be done?
A. No. it cannot be done. Our courts do not enforce foreign judgment.
Q. What is the remedy available to A so that he can enforce this judgment?
A. He must file an action in the Philippine courts for the enforcement of that
judgment.
He (A) now files in the Philippines, RTC of Manila for the enforcement of an
action involving title or he will now file an action to enforce his judgment.
 Appeal Court Appeal Raised
Q. What is the effect of this judgment of the US court on the title on that 1. MTC (Rule Notice of RTC (No trial Within 15 days 1. QF
property? What is the effect of this judgment of the US court with respect to his 40) Appeal denovo) from notice of 2. OL
money? within the judgment and 3. OF&L
A. The rule says, In the case of title to specific property, that judgment is MTC on proper case
conclusive on the title to that property. within 30 days.
In the case of personal judgment, that judgment is merely a presumptive Where the case
evidence that A has a claim against B. That is why under the last paragraph, the in inferior court
rule says, In any case, B may repel the judgment by proof of lack of jurisdiction of involves a
the US court to render the judgment. Lack of notice a clear mistake of fact or of law special
committed by US court. proceeding or
one which
Q. What is strange here is this In the case of title to specific property, the law involves multiple
says, the judgment of the US court is conclusive to the title. But in the last part, a appeal is 30
party against whom the judgment is sought to be enforced in the Philippines can days a record on
still question the judgment because it says here, in either case, meaning, whether appeal being
the judgment involves title to specific property or whether the judgment involves required.
personal action, the judgment or final order may be repelled by evidence of a want 2. RTC Notice of CA (15/30) N.B. When there
of jurisdiction, want of notice to the party, collusion, fraud or clear mistake of law or Exercise of: Appeal Filed is a motion for
fact. Whereas under par (a), the judgment of US court insofar as title to the a) Original j. with the reconsideration
property is concerned is final; yet under the last paragraph, it can be repelled by A vs. B for same RTC of the judgment
proof of want of jurisdiction, lack of notice, fraud, collusion, clear mistake of fact or specific that of RTC, the
of law. performance rendered appeal period is
(A won: B judgment counted from
Q. What is strange here? appeal) (question of the receipt of
A. Final, but it can be repelled. issues raised law and the appellant of
on appeal question of same (15 or 30
With respect to the second case, the action for money, well, since this is fact or days) the order
merely a presumptive evidence of right of A against B, the right can be contested by question or denying the
showing lack of jurisdiction of the court, lack of notice, fraud, collusion, clear fact only.) motion for
mistake of law or fact. reconsideration.
So that is something strange about this Issue raised Petition for SC Same (15 or 30
on appeal Review on days)
Foreign Judgment: Asiabest Limited vs. CA G.R. NO. 128803 Sept. 25, 1998 (296 Certiorari
SCRA 539 (Rule 45)
b) Appellate (question
Jurisdiction law only)
Appeals

Rule 40: Appeal from MTC to RTC

A vs. B Mode of Appellate Period of Questions
Ex. A vs. B CA: Petition CA Same (15 or 30 A. Within the period for the taking of an appeal, 15 days or in a proper case 30
MTC; for Review (Regardless days) days. B should also pay the appellate docket fee.
Judgment of the nature
was of the So, there are two things as an appellant here must do. File the notice on
Appealed to question appeal on time, and pay the appellate docket fee on time.
RTC raised)
Q. What now is the duty of the clerk of court of the MTC upon the filing of the
notice of appeal and payment of the appellate docket fee?
Let us first take the case of a judgment of the MTC. A. He will now examine the records of the case preparatory to the elevation of the
So, if the case is one between A and B and B appeals from the judgment. appropriate RTC and certify to the correctness of the records, certify to the
completeness of the records.
Q. What would be his mode of appeal? (Mode of Appeal)
A. Notice of Appeal Q. What is the duty of the clerk of court with respect to this certificate issued?
A. He must furnish the parties: A and B with that certificates.
Q. To what court must he direct the appeal? (Period of Appeal)
A. RTC 15/30 days The records of the case are now with the RTC clerk of court.

Q. Within what period must he file the appeal? (Period of Appeal)
A. There is only one mode of appeal from a judgment of an inferior court and that
is notice of appeal.
Q. With what court is this notice of appeal be filed?
A. MTC
Q. What now is the duty imposed by the rules on the clerk of court?
A. Upon receipt of the records, the clerk of court of the RTC will now send a notice
to both A and B informing them of the fact that, records are already there. For
what? So that B , the appellant, may now file his memorandum on appeal. So its
the duty of appellant B to file his memorandum on appeal within 15 days from
notice or from within such period that appellate court may grant.

Q. What is the appellate court?
A. Only the corresponding RTC. There can be no direct appeal from the MTC to
any court other than the corresponding RTC.
So, B here cannot appeal directly to the CA. He cannot appeal directly to
the SC. If he wants to go to the SC, he can go there, but not by appeal.
The period of appeal is as a rule 15 days from notice of judgment . And on a
proper case 30 days. Where the case in the inferior court involves a multiple appeal,
the period of appeal is 30 days, a record on appeal being required.
So, this case now of A and B in the RTC.
Q. What is the effect of the failure of B to file the appellants brief, his
memorandum?
A. That could be a cause for the dismissal of the appeal of B. The appellee, that is
A here may also file the so-called Appellees brief, but in case like this, the brief is
called memorandum. So, A may also file his apellees memorandum within 15 days
from receipt of the appellants brief or memorandum.
Q. Supposing the apellee A does not file the apellees brief or memorandum, can
the court decide the case?
A. Yes. Why? Because anyway the memorandum of the appellant B is already
there.

Q. How will this case of B be resolved by the RTC? Will there be a trial de novo
when this case is before the RTC?
A. No, there is no trial de novo. Why? Because the RTC now will decide the appeal
of B solely on the basis of the records of the case, the evidence presents as
forwarded by the clerk of court of the MTC to the clerk of court of the RTC.
Q. What is needed for B here to perfect his appeal?
Q. What now will the RTC do on the case?
A. The court will now decide the case on the basis only of the records and the
evidence forwarded by the inferior court to the RTC.
Q. Will not the court then hear A and B and receive their evidence?
A. The general rule is: NO! The court will only decide on the basis of what was
presented in the lower court.
 (Let us assume that A is the appellant)
The appeal may have been the result of the following:
A for instance appealed from an order disposing the case without trial. Let
say B filed a motion t dismiss on the ground that the complaint does not state the
cause of action. The appellate court, RTC, will have the power to affirm the order or
reverse the order.
Let us suppose that the motion to dismiss was based on lack of jurisdiction.
So, the MTC, here dismissed the complaint of A on the basis of the motion to
dismiss filed by B. (Reason: The MTC has no jurisdiction). Let us say that the RTC
agrees with the finding of the MTC that it has no jurisdiction.
Q. What will be the action of the RTC on appeal?
A. It will affirm the order of the court or it can order a hearing to be held as if this
case was filed directly with the RTC.
Illustration:
This is an action filed by A against B for reivindicacion in the MTC. The
value of the property is P50,000 and this property is outside Metro Manila. So, B
now files a motion to dismiss on the ground of lack of jurisdiction. So, the court
dismissed it because the MTC has jurisdiction over (reivindicacion) cases only when
the value of the property outside Metro Manila does not exceed P20,000. Here,
since the value exceeds P20,000 it (MTC) has no jurisdiction. So, the basis for the
motion to dismiss by B is proper.
A now appeals. The RTC affirms the order. In fact the RTC says, the MTC
has no jurisdiction. Since the RTC has jurisdiction over reinividicacion involving this
amount, the court will try the case if this case was originally filed with the RTC.
Let us assume that in this example, the court found that, contrary to the
holding of the MTC, the MTC has no jurisdiction.
Q. What will the RTC now do?
A. It will return the case to the MTC for further proceedings.
So, in our example for instance, the motion to dismiss that the court has no
jurisdiction but the RTC found that the MTC has jurisdiction, the RTC will not try the
case. It will return the case to the MTC for further proceedings.
Let us take the second situation. There was a trial between A and B in the
MTC. The court (MTC) has no jurisdiction. No jurisdiction notwithstanding, the court
rendered now a judgment in favor of A. So B appealed. The court found that indeed
the MTC have no jurisdiction.
Q. What will be the remedy available to the RTC?
A. Like the first case, it will try the case. It will not dismiss.
So there are the effects of appeal in the MTC. This is what is mentioned in
Sec. 8 Rule 40.
Sec. 8 Rule 40
Appeal from orders dismissing case without trial; lack of jurisdiction. If an
appeal is taken from an order of the lower court dismissing the case without a trial
on the merits, the Regional Trial Court may affirm or reverse it, as the case may be.
In case of affirmance and the ground of dismissal is lack of jurisdiction over the
subject matter, the Regional Trial Court, if it has jurisdiction thereover, shall try the
case on the merits as if the case was originally filed with it. In case of reversal, the
case shall be remanded for further proceedings.
If the case was tried on the merits by the lower court, without jurisdiction
over the subject matter, the Regional Trial Court on appeal shall not dismiss the
case if it has original jurisdiction thereof, but shall decide the case in accordance
with the preceding section, without prejudice to the admission of amended
pleadings and additional evidence in the interest of justice. (n)
Let us take the case of RTC.
The judgment of the RTC can be rendered in the exercise of its ORIGINAL
JURISDICTION or in the exercise of its APPELLATE JURISDICTION.
The distinction is important because the modes of appeals are not the same.
Let us assume that the RTC decided a case. A vs. B in the exercise of its
original jurisdiction. Let us say that A won the case. B now wants to appeal.
Q. What would be the mode of appeal of B?
A. It would be a simple notice of appeal filed with the same RTC that rendered the
judgment.
Appellate court. CA
However, if the only issue raised by B on appeal is question of law, then the
mode of appeal is no longer a notice of appeal but under Rule 45 in which the case,
the appellate court would no longer be the CA but the SC.
Let me stress with respect to the judgment of the RTC rendered in the
exercise of its original jurisdiction, the mode of appeal may be a simple notice of
appeal or a petition of certiorari depending on the question that is raised. If the
question raised on appeal is only a question of fact, or a question of fact and law at
the same time, the mode of appeal is a simple notice of appeal filed with the RTC,
the appellate court is the CA. Where the appeal involves only a question of law, the
mode of appeal is a petition for review or certiorari under Rule 45 and the appellate
court is the SC.
 The period is the same, 15 or 30 days. * Notice of record on appeal is filed with the * Filed with the CA
record of origin
Q. How about the judgment of the RTC rendered in the exercise of its appellate
* If lower court dismissed the case without trial on merits:
jurisdiction? - RTC may:
A. For instance, this (A vs. B) was judgment of the MTC which the court ruled (a) Affirm; or
upon on appeal and this judgment of the RTC affirming, modifying or reversing the
MTC judgment is in turned appealed. What would the be mode of appeal? (b) Reverses, in which case, it shall remand the case for further proceedings.
A. The mode of appeal is a petition for review (R 42).
* If dismissal is due to lack of jurisdiction over the subject matter:
- RTC may:
Q. What would be the appellate court? (a) Affrim: if RTC has jurisdiction, shall try the case on the merits as if the case was originally filed
A. Regardless of the nature of the question raised on appeal. The question raised with it, or
on appeal may be a question of fact, it may only be a question of law, or it can be a
question of fact and law at the same time. It is the CA that has jurisdiction. (b) Reverse, in which case, it remand the case for further proceedings.

Period of Appeal * If the case was tried on the merits by the lower court without jurisdiction over the subject matter:
- RTC shall dismiss the case, if it has original jurisdiction, but shall decide the case, and shall admit
The same. But when there is a motion for reconsideration of the judgment amended pleadings or additional evidence.
of the RTC, the appeal period is counted from receipt by appellant of the order
denying the motion for reconsideration. Rule 41: Appeal from Regional Trial Courts
Appeal from judgment of SC-Appellate Court is God! Mode of Appeal-Period
of Appeal-Eternally! (Joke only) Why? * What cannot be appealed? Clue: (WE PAID)
1. WITHOUT PREJUDICE Order dismissing an action without prejudice
2. EXECUTION Order of Execution
Q. Is there an appeal from the judgment of SC?
3. PENDING Judgments or final orders for or against one or more of several parties or in separate
A. No more thats why the only appellate court would be God, the mode of appeal claims while the main case is pending
is prayer. (Forget that!) 4. APPEAL Orders disallowing or dismissing an Appeal
RENE NOTES: 5. INTERLOCUTORY orders
6. DENIALS Orders denying P.M.S. (Petition for relief, Motion for new trial or reconsideration and
* failure to file appellants brief cause for dismissal of appeal motion to Set aside a judgment, by consent, confession or compromise on the ground of fraud, mistake,
duress or any ground vitiating consent.)
* failure to file appellees brief, court can still decide appeal based on appellants brief
* Remedy in cases where appeal is not allowed:
* The judgment on appeal of the RTC is immediately executory, without prejudice to a further appeal - Special civil action of certiorari or prohibition if there is lack of jurisdiction or grave abuse of
that may be taken therefrom. discretion or mandamus if there is no performance of duty.

* The Summary Rules no longer apply when the cases is on appeal. * A judgment based only on compromise is not appealable and is immediately executory.

* Residual power of the court prior to the transmittal of the original record or record on appeal: Rule 42 :Grounds for Outright Dismissal
1. to issue orders of the preservation of the rights which do not involve matters litigated by appeal;
2. to approve compromise prior to the transmittal of the record; 1. petition was filed out of time
3. permit appeal by an indigent;
4. order execution pending appeal under Rule 39 Sec.2 (motion for execution was filed before the 2. required fees were not paid
expiration of the period to appeal)
3. copies of the petition were not served on the adverse party
ORDINARY APPEAL PETITION FOR REVIEW - no proof of service
* Matter of right * Discretionary
* All the records are elevated from the court of * No records are elevated unless the court decrees 4. failure to comply with the proper form for the petition
origin it
5. petition patently without merit * It is merely discretionary on the CA to order the elevation of the records. This is because until the
petition is given due course, the trial court may still issue a warrant of execution pending appeal and in
6. prosecuted manifestly for delay some cases such as ejectment and those of Summary Prcedure, the judgments are immediately
executory. It is only when the CA deems it necessary that the Clerk of the RTC will be ordered to
7. the questions raised are unsubstantial elevate the records of the case.

Ordinary Appeal (appeal by
writ of error)
* Case is decided by the RTC in
its original jurisdiction Appealed
to the CA
* File a notice of appeal or a
record on appeal with the court
of origin (RTC) and give a copy
to the adverse party.
* Within 15 days from the notice
of the judgment for notice of
appeal and within 30 days for
records on appeal / The period
for filing is interrupted by a
timely motion for
reconsideration or new trial.
Rule 42: Petition for Review from the Regional Trial Courts to the Court of Appeals
Petition for review
(Rule 42)
* Case is decided by the MTC.
Appealed to the RTC. Petition
for review with the CA.
* File a verified petition for
review with the CA / Pay the
docket and lawful fees, and
P500 as deposits for costs with
the CA / Furnish RTC and
adverse party copy of such
(R42).
Within 15 days from notice of
the decision to be reviewed or
form the denial of a MR or new
trial.
Petition for review on
certiorari Rule 45
* The case raises only a
question of law.
* File a verified petition for
review on certiorari with the SC
(R45) / Pay docket and lawful
fees and P500 for costs /
Submit proof of service of a
copy to the lower court and
adverse party.
* Within 15 days from notice of
the judgment or order of denial
of the MR or new trial.
See Table
Rule 43: APPEALS FROM THE CTA AND QUASI JUDICIAL
AGENCIES TO THE COURT OF APPEALS
Sec. 1 Rule 43
Sec. 1 of Rule 43, the different quasi-judicial bodies which decisions are subject to
appeal to the Court of Appeals are enumerated under. To this list, you add two
other bodies whose decisions are appellate to the Court of Appeals:
1. the orders of the ombudsman is administrative discipline cases
In case of Fabian vs. Desierto, the court declared unconstitutional the
provision of the law creating the office of the ombudsman which empowered the SC
to review judgment of the ombudsman iN administrative-disciplinary cases.
So, under this decision, judgment or orders of the ombudsman in
administrative-disciplinary proceedings, are reviewable by the CA.
Fabian vs. Desierto G. R. #129742 Sept 16, 1998

* Failure to comply with the requirements on form such as: 2. NLRC (National Labor Relations Commission ) Judgment of NLRC are not
1) certification against forum shopping appealable to the SC but to the CA.
2) non-payment of docket, lawful fees and
3) deposit for costs and Before the decision in Saint Martin Funeral Homes vs. NLRC , the judgment
4) failure to show proof of service of the same petition to the adverse party are grounds for dismissal.
of NLRC were reviewable be certiorari before the SC. In this case, (Saint Martin
* Outright dismissal allowed Petition for review is not a matter of right but discretionary on the part Funeral Homes vs. NLRC) G.R. # 130866, Sept 16, 1998 295 SCRA 494, SC held
of the CA. It may only give due course to the petition if it shows on its face that the lower court has that there is no law which authorizes appeals from judgment of the NLRC to the SC.
committed an error of fact and/or law. In this case, the SC traced the legislative history of the NLRC and it came into the
conclusion that no one of the laws relative the NLRC provided for an appeal from
* ACTIONS ON THE PETITION judgment of the NLRC to the SC.
Court may
Of course you will notice that under Sec. 2 of Rule 43, judgments of the
1. require respondent to file comment
- 10 days Labor Law of the Philippines are not covered by Rule 43. But under this decision
2. dismiss the petition if it finds that: now, Saint Martin case, the decision of the NLRC are now covered by the Rule 43.
a) it is patently without merit
b) prosecuted manifestly for delay Except for some differences, the procedure of an appeal from judgment of
c) the questions raised are unsubstantial the quasi-judicial bodies are practically the same as the procedure for the
disposition of an appeal from the judgment of the RTC in the exercise of its
appellate jurisdiction. They are practically the same. With this difference only.
Both are reviewable by petition for review.
Example: A vs. B in SEC
B lost the case in the SEC. B now wants to appeal from the judgment of the
SEC.
Q. What is the mode of appeal?
A. Petition for Review
Q. Period?
A. The same. The period is within 15 days from receipt of the copy of the award,
judgment or order of the SEC.
In case, however, the judgment of a quasi-judicial body requires it to be
published in order that a judgment may be valid, the 15 days period is counted from
the last day of publication.
In case there is a motion for reconsideration of the judgment, order or
award of the SEC, the 15-day period is counted from the receipt of the resolution
denying the motion for reconsideration.
Contents of Petition, Documents to be attached thereto I leave this to you, so we
can move
13) Government Insurance System
14) Employees Compensation Commission
15) Agricultural Inventions Board
16) Insurance Commission
17) Philippine Atomic Energy Commission
18) Board of Investment
19) Construction Arbitrators Authorized by Law
20) National Labor Relations Commission (Saint Martin Funeral Homes vs.
NLRC)
21) Ombudsman (Fabian vs. Desierto)
22) Voluntary Arbitrators
Action of the CA on the petition
It may dismiss outrightly the petition on the ground for instance that (1) the
motion was filed out of time; (2) the required fees were not paid; (3) copies of the
petition were not served by the adverse party, etc.
The court may find that petition is not meritorious at all or the court may
find that the petition was filed merely for purposes of delay, or the court may find
the issues raised in the petition are too insubstantial to require further proceedings.
On the other hand, the court may find it proper to direct the respondent to
file a comment with 10 days from notice. So if the court gives the respondent time
to comment that means to say that the court may grant to determine whether to
give due course or not, to this petition.

Scope of Sec. 1 Rule 43 Let us say now that the comments have been filed

1) Appeals from judgment or final orders of the court of Tax Appeals; Q. What now will the action of the court thereafter?
2) Appeals form awards, judgments, final orders or resolution of or authorized A. The court may then give due course to the petition or deny due course.
by any quasi-judicial agency in the exercise of the quasi-judicial functions.
Q. When will the court give due course here?
List of Agencies A. If from the pleading, the comment on the petition itself if there is a prima facie
1) Civil Service Commission showing that the body whose judgment is subject of petition may have committed
2) Central Board of Assessment Appeals an error. This error is of fact or of law.
3) Securities and Exchange Commission
4) Office of the President Q. Is it enough that the error was committed either of fact or of law?
5) Land Registration Authority A. No. An error that may warrant a reversal of the judgment, order or award
6) Social Security Commission appeals from or which may warrant at least a modification of the judgment appeals.
7) Civil Aeronautics Board
8) Bureau of Patents, Trademarks and Technology Transfer Q. If the court gives due course, how will the CA decide now the case?
9) National Electrification Administration A. At its option, it may now require the quasi-judicial body, SEC in our example,
10) Energy Regulatory Board elevate to the CA the records of the case.
11) NTC
12) Department of Agrarian Reform under R. A. No. 6657 Let us assume that the records have been elevated to the appellate court.

Q. Will the case now be submitted for decision?
A. Not yet. CA may require the parties to submit their memorandum within a given
period of time. Upon the filing of the memorandum or the expiration of the period
of the filing thereof, the case may now be submitted for decision. (Thats how
simple it is!)
Q. What is the difference between the effect of an appeal from a judgment
rendered by a quasi-judicial body on the execution of the judgment appealed from
the effect of an appeal in an ordinary case from the judgment of CA where the
judgment is that of a RTC?
A. In the case of a judgment of the quasi-judicial body, the appeal therefore does
not stay the execution of the judgment. It is immediately executory. However, this
is subject to an exception where the appeal from the judgment of the SEC or any
quasi-judicial body for that matter stay the execution when the CA itself orders the
stay of an execution.
On the other hand, a judgment of the RTC appealed from cannot be
executed during the pendency of the appeal, that is the general rule. In other
words, an appeal from a judgment of the RTC to the CA is stayed.
Q. Is there a case however, where a judgment is that of a RTC and yet an appeal
therefore does not stay the execution?
A. Yes. That is when the judgment rendered by the RTC involves a case which is
decided under the rules on summary procedure in which case, the appeal therefore
does not stay the execution of the judgment.
Example:
The RTC affirmed the judgment of the inferior court in a forcible entry case,
which ordered the defendant to vacate the premises. The RTC affirmed the
judgment. The defendant B filed a petition for review under Rule 42 (petition for
Review from the RTC to SC).
Q. May this judgment against him be enforced notwithstanding his appeal
therefore in CA?
A. Yes. Its the only exception.
RENE NOTES:
Grounds for Outright Dismissal
1. Petition filed out of time
2. Required fees were not paid
3. Copies of the petition were not served on the adverse party
4. Contents of appeal does not follow the prescribed form
Grounds for Dismissal (Upon motion)
1. Patently without merit
2. Prosecuted manifestly foe delay
3. Questions raised are unsubstantial to require consideration
PROCEDURE IN THE COURT OF APPEALS
RULE 44: Ordinary Appealed Cases
Time to File
a) appellants brief
- 45 days from notice of clerk of court
b) appellees brief
- 45 days from receipt of appellants brief
c) appellants reply brief
- 20 days from receipt of appellees brief
* Failure to file appellants brief on time is a ground for dismissal of the appeal.
* If a motion to dismiss an appeal has been filed, it suspends the running of the period for filing the
appellant brief, as the same would be unnecessary should the motion be granted.
* The failure of the appellant to make specific assignment for errors in his brief or page references to
the record as required in this section is a ground for dismissal for his appeal.
Rule 45: Appeal by Certiorari to the Supreme Court
* Appeals to the Supreme Court can be taken from a judgment or final order for resolution of the CA,
the Sandiganbayan, the RTC or such other court as may be authorized by law and only by a verified
petition for review on certiorari on questions of law except in appeals from judgments of the RTC in
criminal cases wherein the penalty imposed is life imprisonment, or reclusion perpetua which shall be
elevated by ordinary appeal, or wherein the death penalty is imposed which is subject to automatic
review.
QUESTIONS OF LAW QUESTIONS OF FACT
* doubt of controversy as to what the law is on * doubt or difference arises as to the truth or
ceratin facts falsehood of facts, or as to probative value of the
evidence presented
* if the appellate court can determine the issue * the determination involves evaluation or review
raised without reviewing or evaluating the of evidence
evidence
* can involve questions of interpretation of the * qeury invites the calibration of the whole
law with respect to the ceratin set of facts evidence considering mainly the credibility of
witnesses, existence and relevancy of specific
surrounding circumstances and relation to each
other and the whole probabilities of the situation
* As a general rule, the findings of fact of the CA are final and conclusive and cannot be reviewed on
appeal to the SC.
Exceptions to Conclusiveness of Facts:
1. When the finding is grounded entirely on speculations, surmise of conjecture;
2. When inference made is manifestly absurd, mistaken or impossible;
3. When the judgment is premised on a misrepresentation of facts;
4. When there is grave abuse of discretion in the appreciation of facts;
5. When the findings of facts are conflicting;
6. When the CA in making its findings went beyond the issues of the case and the same is contrary to
both the admissions of appellants and appellees;
7. When the findings of fact of the CA are at variance with those of the trial court, the SC has to review
the evidence in order to arrive at the correct findings based on the record;
8. When the findings of fact are conclusions without citation of specific evidence on which they are
based;
9. When the facts set forth in the petition as well as in the petitioners main and reply briefs are not
disputed by the respondents;
10. The findings of fact of the CA is premised on the supposed evidence and is contradicted by the
evidence on record;
11. When certain material facts and circumstances have been overlooked by the trial court which, if
taken into account, would alter the result of the case in that they would entitle the accused to acquittal.
* Certiorari under Rule 45 vs. certiorari under Rule 65 (special civil action)
Under BP Blg. 129, the CA has original jurisdiction to issue writ of mandamus, prohibition,
certiorari, habeas corpus and quo warranto, and auxiliary writs or processes, whether or not they are in
aid of its appellate jurisdiction, and it has executive original jurisdictions over actions for annulment of
judgments of Regional Trial Courts.
The court acquires jurisdiction:
(1) Over petitioner by filing of the petition
(2) Over the respondent by the service on the latter of the order or resolution indicating the courts
initial action on the petition and NOT by the service on him of the petition.
Procedural Outline (original cases in the Court of Appeals)
1) Filing of the petition
2) Order to acquire jurisdiction over respondents OR Outright dismissal for failure to comply to
requirements also form and payment of docket and other legal fees.
3) Require respondents to file COMMENT within 10 days from NOTICE
4) Court may require the filing of a REPLY or such other pleadings as it may deem necessary
5) Determination of FACTUAL ISSUES
- the court may delegate the reception of evidence on such issues to any of its members.

CERTIORARI UNDER RULE 45 CERTIORARI UNDER RULE 65

* petition is based on questions of law
It is a mode of appeal
* involves the review of the judgment award or
final order on the merits
* must be made within the reglementary period
* stays the judgment or order appealed from
* the petitioner and the respondent are the
original parties to the action, and the lower court
or quasi-judicial agency is not impleaded
* Motion for reconsideration is not required
* the court is in the exercise of its appellate
jurisdiction and the power of review
* petition raises the issue as to whether the lower
court acted without jurisdiction or in excess of
jurisdiction or with grave abuse of discretion
Special civil action
* directed against an interlocutory order of the
court or where there is no appeal or any other
plain, speedy or adequate remedy
* filed not later than 60 days from notice of
judgment, order of resolution appealed from
* unless a writ of preliminary injunction or
temporary restraining order is issued does not stay
the challenged proceeding
* the parties are the aggrieved party against the
lower court or quasi-judicial agency and the
prevailing parties
* Motion for reconsideration or for new trial is
required
* File a motion for reconsideration or new trial is
filed, the period shall not only be interrupted but
another 60 days shall be given to the petitioner
(SC Admin. Matter 002-03)
* court exercises original jurisdiction
Rule 47: Annulment of Judgment or Final Orders and
Resolutions
(Annulment of Judgments rendered by the RTC and Annulment of Judgment
rendered by the Inferior Court)
Q. When may a judgment of the RTC be the subject of a petition for annulment in
the CA?
A. If a judgment has already become final and the loosing party lost the right to
file a petition for review or lost any other remedy against this judgment without his
fault then he may file a petition for annulment of this judgment. This means to say
that if the party against whom the judgment was rendered lost the right to file a
petition for relief or lost any other remedy which could have been available to him
because of his fault, then he cannot avail of this Rule 47.
Example:
In the RTC, the parties were A and B. A judgment was rendered against B.
This judgment became final.
Q. Well, what did we learn under Rule 39?
A. When a judgment becomes final, there is nothing left to be done but to execute
it.
Q. Why did this judgment become final?

Rule 46:Original Cases (In the CA)

A. Because B failed to file a notice of appeal. Because B failed to file a motion for
reconsideration: because B failed to file a motion for new trial; because B failed to
file a petition for relief. The lost of any of these rights was not due to the fault of B.
If the lost of any of these remedies was on account for the fault of B, then
B cannot file an action for annulment.
Period within which B may now file an action for annulment in CA
The period depends on the ground whether the ground is extrinsic fraud or
the ground is lack of jurisdiction.
If the ground is fraud, he Has four (4) years from discovery of the fraud with
which to file an action.
If it is lack of jurisdiction, at any time before the action is barred by laches or
estoppel. These are the only periods.
Q. What are the grounds?
A. Its either extrinsic fraud or lack of jurisdiction
These are the only two (2) grounds available to B.
Q. What is an extrinsic fraud as contradicting intrinsic fraud?
A. Lets illustrate each of them
Example:
Supposing during the trial, in the RTC, A submitted in evidence a forged
document. Exhibit A. And on the basis of this forged document alone, the court
rendered a judgment in favor of A.
Q. B files an action to annul this judgment on the ground of extrinsic fraud. Is this
ground (forgery) an extrinsic fraud?
A. No, what then? Intrinsic fraud.
Lets reverse the situation
Example:
A and B received the notice of pre-trial setting the pre-trial for specific date.
Before the date of the pre-trial, A met B and said, B, I already filed a motion for
postponement. The court has already granted it. You do not have to appear
anymore in the court for the pre-trial.
Believing on the truthfulness of A, B did not appear for the pre-trial. On the
day of the pre-trial, however A appeared in court. Because of the absence of B, A
now moves that he be allowed to present his evidence ex parte. Thereafter, the
court rendered judgment. The judgment in favor of A became final. B now wants to
file an action for annulment based on extrinsic fraud.
Q. With what extrinsic fraud consist of?
A. According to him (B), the misrepresentation of A that the pre-trial set on the
scheduled date was cancelled.
Q. Is it the contention of B here correct?
A. Yes, it is correct. Why? That kind of a fraud committed against him was
committed outside the trial.
Whereas, the fraud consisting in the introduction of evidence in court of
that Exhibit A is an intrinsic fraud.
Q. What is the difference?
A. In the case of an intrinsic fraud, there is an opportunity for the adverse party to
counteract that fraud.
In this case, B could have presented on the fact that this document is a
forgery. He did not. That is his (B) fault.
But in the case of the second misrepresentation, B would not have rebut it
with contrary evidence because that was not committed outside the trial.
This is the concept of extrinsic fraud.
Of course the other ground is lack of jurisdiction.
Procedure.
If B is to file the petition. The contents of the petition are stated in Rule 47,
do not have to repeat, except for this matter.
The petition should be accompanied by affidavits of witnesses of the party
filing the petition.
In our example, the petition of B should be accompanied by affidavits of his
witnesses. So, since he was the defendant in the trial below (RTC), the affidavit of
his witnesses must be those which would support his defense against the action of
A.
If it were A who filed his petition, his petition should be accompanied by
affidavits of his witnesses on the cause of action of A.
The petition is now there in court (CA).
Q. What now will be the action of CA, will it immediately give the due course or it
can dismiss outright the petition?
A. There are two (2) causes of action that CA may take this case:
 1) immediately dismiss the petition. Ground the petition in its (CA) view is not
impressed with merits. In other words, it is not meritorious. Then the court
can immediately dismiss it.
2) The court finds the petition to be impressed with merits (with prima facie
merit).
Q. Then what shall CA do?
A. Then it will give it due course. How? The rule now says, that this case will now
be treated as if it were an ordinary case filed in the RTC. Thats why the
respondent in this case now, A will have to be summoned.
Q. What will be required of B here?
A. B will be required to file his answer and thereafter, trial shall proceed as if this
were a case pending in the RTC.
Q. Will there be an actual trial in the CA or in short may the CA receive the
evidence itself?
A. There are several options available to the C.A. regarding the Evidence which it
is required to receive. It may authorize any of its members to receive the evidences.
In other words, the members of the CA assigned to receive the evidence will act as
if he were a judge of RTC conducting a trial. The CA may delegate the reception of
the evidence to another judge, an appropriate judge. Any judge? No, Judge of the
RTC.
So these are the options available to the CA.
Q. What is the extent of the power of the RTC judge to whom the reception of the
evidence of the parties has been delegated by the CA? May the RTC decide the
case?
A. No. Why? Because the power delegated to him is the power to receive the
evidence, not the power to decide the case. It will still be the CA that will render the
judgment.
So after the reception of the evidence either by the CA itself or by a judge
of the RTC, the CA will now decide the case.
The decision may be dismissal of the petition. This means to say that the
grounds have not been proven. So the decision of the RTC stands.
The judgment of the CA may be to grant the already expired decision.
This is what is meant by this suspension of prescriptive period (Sec. 8 Rule 47)
Sec. 7 Rule 47 (Effect of Judgment)
A judgment of annulment shall be set aside the questioned judgment or
final order or resolution and render the same null and void, without prejudice to the
original action being refilled in the proper court. However, where the judgment or
final order or resolutions set aside on the ground of extrinsic fraud, the court may
on motion order trial to try the case as if a timely motion for new trial had been
granted therein.
Sec. 8 Rule 47 Suspension of Prescriptive Period
The prescriptive period for the refilling of the aforesaid original action shall
be deemed suspended from the filing of such original action until the finality of the
judgment of annulment. However, the prescriptive period shall not be suspended
where the extrinsic fraud is attributable to the plaintiff in the original action.
We said that, where the judgment is declared void, this action can be refilled.
However, where the ground, which serves as the basis of the CA in setting aside the
judgment of RTC was extrinsic fraud, instead of having this case refilled, the trial
may be declared to hear anew the case as if a motion for new trial was granted .
Example:
The judgment of the RTC was set aside. The ground was extrinsic fraud.
We say that as a result of this judgment, the plaintiff here, A, may re-file
the case or instead of refilling the case, the CA may direct the RTC to continue
hearing the case. It is as if there was a new trial granted.
However, if the basis of the CA in setting aside the judgment of the RTC
was lack of jurisdiction, obviously, the CA cannot direct the RTC to hear this case. It
has to be re-filed.
The prescriptive period for the filing of the aforesaid original action shall be
deemed suspended from the filing of said original action until the finality of
judgment of annulment. However, the prescriptive period cannot be suspended
where the extrinsic fraud is attributable to the plaintiff in the original action.
Example:
RTC-A vs. B. Lets say that the cause of action that can be brought within
four (4) years from the happening. Let say this cause of action became the subject
of a complaint filed by A against B on January 2, 1993.
Q. What do you notice here?
A. At the time the action was filed, only one (1) year of the prescriptive period
remained.
This judgment in favor of A became final on Jan. 3, 1994. this judgment
however, was rendered in favor of A. So, in the CA now, B filed an action for
annulment on Jan. 5, 1995. A judgment annulling this decision of the RTC that was Rule 47: When to File
rendered by the CA and became final on Jan. 6, 1997.
Since the extrinsic fraud by A and A elected to re-file the case in the RTC. - if failed to file without fault
1) notice of appeal
He filed this case A vs. B on Jan. 7, 1999. 2) motion for reconsideration
3) motion for new trial
Q. Has his action prescribe or did not prescribe? 4) petition for relief
A. The law says
Since A was the one guilty of extrinsic fraud, the period between the time Extrinsic Fraud
he filed the original complaint (Jan. 2, 1993) and the time judgment became final - Fraud committed outside the trial and not in the course of the trial
(jan. 6, 1997). * extrinsic fraud shall NOT be a valid ground if:
The period between the first time the case was filed and time of the - it was availed of or could have been availed of in a:
judgment of CA (Jan. 6, 1997) became final, this was not suspended. a) motion for new trial
So, if you add therefore the period from Jan. 1, 1990 to the time he filed b) petition for relief
the second action (Jan. 7, 1999), you have already a period of nine (9) years. He
only has four (4) years. Prescribed! Effect of Judgment
a) annulment based on lack of jurisdiction original action may be refilled.
If however, the ground of the annulment was not in jurisdiction, not fraud, b) based on extrinsic fraud trial court will try the case.
for purposes of refilling the case, this period is suspended. Therefore, at the time (as if a motion for new trial was granted)
this case was re-filed, the period may not have yet prescribed.
Rule 48: Preliminary Conference
January 1, 1990 The cause of action arose on Jan. 1, 1990. The cause of * Not mandatory
A vs. B action prescribes in four (4) years from happening. Things taken up:
1. possibility of an amicable settlement
January 2, 1993 A filed a complaint against B in RTC (original complaint) (at 2. clarification of issues
the time of filing, only one (1) year left in the prescriptive 3. formulation or stipulation of facts
period) 4. other matters which may aid in the prompt disposition of the case
January 3, 1994 Judgment in RTc became final. Judgment in favor of A. (By
reason of extrinsic fraud committed by A) Rule 49: Oral Argument
January 5, 1995 B filed an action for annulment by reason of extrinsic fraud * Not mandatory
* The oral argument shall be limited to such matters as the court may specify in its order or resolution.
committed by A.
January 6, 1997 The judgment of CA annulling the decision of the RTC Rule 50: Dismissal of Appeal
became final
January 7, 1999 Since the extrinsic fraud was committed by A, he (A) (elected Grounds for Dismissal
to) re-filed the case in the RTC, A vs. B.
(a) Failure of the record on appeal to show on its face that the appeal was taken within the period fixed
Note* Nine (9) years have elapsed. Not suspended because extrinsic fraud by A.
by these Rules;
(b) Failure to file the notice of appeal or the record on appeal within the period prescribed by these
The period from January 2, 1993 (first case was filed to) January 6, Rules;
1997 (CA decision became final) was not suspended because the (c) Failure of the appellant to pay the docket fee and other lawful fees as provided in Section 5 of Rule
extrinsic fraud was committed by a (plaintiff). 40 and Section 4 of Rule 41;
Therefore, from January 1, 1990 to January 7, 1999, the cause of (d) Unauthorized alterations, omissions or additions in the approved record on appeal as provided in
Section 4 of Rule 44;
action already prescribed. Note that the cause of action in the above
(e) Failure of the appellant to serve and file the required number of copies of his brief or memorandum
example prescribes in four (4) years. within the time provided by these Rules;
(f) Absence of specific assignment of errors in the appellants brief, or of page references to the record
RENE NOTES: as required in Section 13, paragraph (a), (c), (d) and (f) of Rule 44;
(g) Failure of the appellant to take the necessary steps for the correction or completion of the record
within the time limited by the court in its order; Q. What is the jurisdiction here?
(h) Failure of the appellant to appear at the preliminary conference under Rule 48 or to comply with
A.
orders, circulars, or directives of the court without justifiable cause; and
(i) The fact that the order or judgment appealed from is not appealable. (1a) Example:
A vs. B in the RTC. Lets say that B appealed to CA. B wants to file a motion
* An appeal erroneously taken to the Court of Appeals shall not be transferred to the appropriate court for new trial.
but shall be dismissed outright.
Q. Within what period must he file it?
* An appeal will be withdrawn as a matter of right at anytime before the filing of the appellees brief.
A. The law says, at anytime after the appeal has been perfected.
Thereafter, the withdrawal will be allowed in the discretion of the court.
Let us say that the appeal made was perfected on Dec. 1, 1998, until then
Rule 51: Judgment the court still retains jurisdiction. Let us say that a judgment was rendered by the
CA on Dec. 1, 1998. Let us assume also that B received the copy of the decision on
A case shall be deemed submitted for judgment: Dec. 3, he has a 15-day period therefrom within which to file a petition for certiorari
A. In ordinary appeals - in the SC. So, the last day for him to file would be Dec. 18, 1998.
1) Where no hearing on the merits of the main case is held
a) upon the filing of the last pleading, brief or memorandum; or
b) expiration of the period for filing Q. When then can he file a motion for new trial?
2) Where hearing on the merits of the main case is held A. At anytime between the date (Dec. 1, 1998 to Dec. 18, 1998) before the court
a) upon its termination; lost its jurisdiction. Because if there is no perfected petition for certiorari as of Dec.
b) upon the filing of the last pleading or memorandum; or 18, 1998, the following day, the judgment already becomes final. So, the court no
c) expiration of the period for filing longer has any jurisdiction. So, between these two dates (Dec. 1 to Dec. 18).
B. In original action and petition for review
1) Where no comment is filed There is only one ground for a motion for new trial under Rule 53.
a) upon the expiration of the period to comment;
2) Where no hearing is held The motion for new trial in the CA can be based only on one ground that is
a) upon the filing of the last pleading; or newly discovered evidence. Evidence which would not have been discovered while
b) expiration of the period for filing; the case is pending before trial in RTC (in our example). Even with due diligence, B
3) Where hearing is held in this example, would not have presented that evidence and which if presented will
a) upon its termination;
b) upon the filing of the last pleading or memorandum; or probably alter the judgment of CA already rendered.
c) expiration of the period for filing.
This is in contrast with the ground of a motion for new trial under Rule 37.
Rule 52: Motion for Reconsideration There are two grounds where a judgment which has been rendered against a party
because of FAME that affected the substantial rights. This is not available in the CA.
* The rules now prohibit a second motion for reconsideration.
Q. How will the CA here resolve this motion for new trial?
* The pendency of a motion for reconsideration filed on time shall stay the execution of the judgment.
A. It will conduct a hearing.
* The rules now require the service of the motion to the adverse party.
Q. Who may receive the evidence in this case?
A. Unlike a motion for new trial in a criminal case which can be conducted by a
Rule 53: New Trial trial court, a motion for new trial in a civil case can be heard only by CA itself . This
is a distinction between the two.
Q. When may a motion for new trial in CA be filed?
A. At anytime after the appeal has been perfected up to the time the CA has not Q. When should this motion for new trial be resolved?
yet lost jurisdiction over the case.
A. Within 90 days from the date the motion for new trial is submitted for * Provisional remedies (anciliary/auxiliary) writs and processes available during the pendency of the
resolution. action may be resorted to by a litigant to reserve and protect rights and interests therein pending
rendition, and for the purpose of ultimately effecting a final judgment in the case.
Assuming now that the motion for new trial has been granted, what will be
PROVISIONAL constituting temporary measures availed of during the pendency of
the next proceeding? Unless the court otherwise directs, the procedure in the new the action.
trial shall be the same as that granted by the RTC. How RTC conducts a trial ANCILIARY incidents in and dependent on the result of the main action.
following the grant of a motion for new trial.
*Preliminary Attachment
RENE NOTES: a) available even if the recovery of personal property is only an incidental relief sought in the action;
PROCEDURE OF THE SUPREME COURT b) may be resorted to even if the personal property is in the custody of a third person;
Rule 56: Original and Appeal Cases c) extends to all kinds of property, real or personal or incorporeal;
d) to recover possession of personal property unjustly detained, presupposes that the same is being
Original Cases Cognizable concealed, removed, or disposed of to prevent its being found or taken by the applicant;
1. Certiorari e) can still be resorted to even if the property is in custodia legis, as long as the property belongs to the
2. Prohibition defendant, or is one in which he has proprietary interests, AND with permission of the court.
3. Mandamus *Grounds
4. Quo warranto a) recovery of specified amount of money and damages, except moral or exemplary, where party is
5. Habeas Corpus about to depart from the Phils with the intent to defraud creditors;
6. Disciplinary proceedings against members of the judiciary and attorneys b) action for money or property embezzled or for willful violation of duty by public officers, officers of
7. Cases affecting ambassadors, other public ministers and consuls corp, agent or fiduciary;
c) recovery of possession of property (both real and personal) unjustly detained, when the property is
* An appeal to SC can only be taken by petition for review on certiorari, except in criminal cases where concealed or disposed of to prevent is being found or taken;
the penalty imposed is death, reclusion perpetua, or life imprisonment. d) action against party guilty of fraud in contracting the debt or incurring the obligation or in the
performance thereof;
Grounds for dismissal of appeal by SC: e) action against party who is concealing or disposing of property, or is about to do so, with intent to
a) Failure to take appeal within the reglementary period; defraud creditors;
b) lack of merit in petition; f) action against party who is not a resident of the Phils and cannot be found therein upon who service
c) failure to pay the requisite docket fee and other lawful fees to make deposit for costs; by publication can be made.
d) failure to comply with the requirements regarding proof of service and contents of and the
documents which should accompany the petition; * PRINCIPLE OF PRIOR OR CONTEMPORARY JURISDICITON (Preliminary Attachment)
e) failure to comply with any circular, directive or order of the SC without justifiable cause; - Enforcement of writ of preliminary attachment must be made preceded by or simultaneously
f) error in choice or mode of appeal; accompanied by service of summons, copy of complaint, application and affidavits for the attachment
g) case is not justifiable to SC. and the bond upon the adverse party; BUT the requirement of prior or contemporaneous service of
summons shall not apply where the summons could not be served despite diligent efforts, or the
* Discretionary upon SC (and CA) to call for preliminary conference similar to pre-trial. defendant is a resident of the Phils temporarily absent therefrom, or the defendant is a non-resident of
the Phils or the action is in rem or quasi in rem.
*GR: Appeal to SC by notice of appeal shall be dismissed
Exception: In criminal cases where the penalty imposed is life imprisonment, or when a lesser penalty * When preliminary attachment is discharged
is imposed but involving offenses committed on the same occasion or arising out of the same a) debtor posts a counterbond or makes requisite cash deposit if attachment to be discharged is with
occurrence which gave rise to the more serious offense for which the penalty of death or life respect to particular property, counterbond or deposit shall be equal to the value of the property as
imprisonment is imposed (Sec. 3, Rule 122). determined by the court; in all other cases, amount of counterbond should be equal to the amount fixed
in the order of attachment.
* Appeal by certiorari from RTC to SC submitting issues of fact may be referred to the CA for decision * CASH DEPOSIT OF COUNTERBOND SHALL SECURE THE PAYMENT OF ANY JUDGMENT
for appropriate action, without prejudice to considerations on whether or not to give due course to the THAT ATTACHING PARTY MAY RECOVER
appeal as provided in Rule 42. b) applicants bond is insufficient or sureties fail to justify;
c) attachment was improperly or irregularly issued;
PROVISIONAL REMEDIES
d) property attached is exempt from execution;
Rule 57: Preliminary Attachment e) judgment is rendered against attaching party;
f) attachment is excessive discharge is with respect to the excess
* Application for discharge may only be filed with the court where the action is pending and may be event, such notice shall be preceded, or contemporaneously accompanied by service of summons,
filed even before enforcement of the writ so long as there has been an order of attachment. together with a copy of the complaint and the applicants affidavit and bond, upon the adverse party in
the Phils; BUT the requirement of prior or contemporaneous service of summons shall not apply where
* When to apply for damages against the attachment bond the summons could not be served despite diligent efforts, or the defendant is a resident of the Phils
a) before trial; temporarily absent therefrom, or the defendant is a non-resdent of the Phils.
b) before appeal perfected; * difference with principle in prelim attachment in attachment, the principle applies only in the
c) before judgment becomes executory; implementation of the writ, while in applications for injunction or TRO, this principle applies before
d) in the appellate court for damages pending appeal, before judgment becomes executory. the raffle and issuance of the writs or TRO.

* When judgment becomes executory, sureties on counterbond to lift attachment are charged and can
be held liable for the amount of judgment and costs upon notice and summary hearing. There is no
need to first execute judgment against obligor before proceeding against sureties.
* Claims for damages cannot be subject of independent action except:
a) when principal case is dismissed by the trial court for lack of jurisdiction without giving the
claiming party opportunity to prove claim for damages;
b) when damages sustained by a third person not a party to the action.
* TRO good for only 20 days from service; 60 days for CA; until further orders from SC.
* TRO can be issued ex parte only if matter of grave urgency and plaintiff will suffer grave injustice
and irreparable injury. Good for 72 hours from issuance, within which judge must comply with service
of summons, complaint, affidavit and bond, and hold summary hearing to determine whether the TRO
should be extended for 20 days. In no case can TRO be longer than 20 days including 72 hours.
Rule 59: Receivership

Rule 58: Preliminary Injunction * When receiver may be appointed:

* Preliminary injunction distinguished from Prohibition a) party has an interest in the property or fund subject of the action and such is in danger of being lost,
removed or materially injured;
Preliminary Injunction Prohibition
b) action by mortgagee for foreclosure of mortgage when the property is in danger of being wasted or
Generally directed against party to the action but Directed against a court, tribunal, or person
materially injured and that its value is probably insufficient to discharge the mortgage debt, OR that
may be against any person exercising judicial powers
the parties have stipulated in the contract of mortgage;
Does not involve the jurisdiction of the court May be on the ground that the court against
c) after judgment, to preserve the property during the pendency of the appeal, or to dispose of it, or aid
whom the writ is sought acted without or in
in execution when execution has been returned unsatisfied or the judgment debtor refuses to apply his
excess of jurisdiction
property to satisfy judgment, or to carry out the judgment.
May be main action itself or just a provisional Always a main action d) when appointing one is the most convenient and feasible means to preserve, administer, or dispose
remedy in the main action of the property in litigation.
* Grounds for Preliminary Injunction
a) plaintiff is entitled to relief sought which consists in restraining or requiring the performance of acts * When receivership may be denied/lifted:
(latter is preliminary mandatory injunction); a) appointment sought is without sufficient cause;
b) the commission of acts or non-performance during pendency of litigation would probably work b) adverse party files sufficient bond for damages;
injustice to the plainitiff; c) applicant or receivers bond is insufficient.
c) defendant is doing or about to do an act violating plaintiffs rights respecting the subject of the
action and tending to render judgment ineffectual. * Both the applicant for receivership and the receiver appointed must file separate bonds.
* Injunction may be refused or dissolved when: * In claims against the bond, it shall be filed, ascertained and granted under the same procedure as
a) complaint is insufficient; Section 20, Rule 57, whether it is damages against the applicants bond for the unlawful appointment of
b) defendant is permitted to post a counterbond it appearing that he would sustain great and irreparable the receiver or for enforcing the liability of the sureties of the receivers management (in the latter case,
injury if injunction granted or continued while plaintiff can be fully compensated; no longer need to file a separate action).
c) plaintiffs bond is insufficient or defective.
Rule 60: Replevin
* No preliminary injunction or TRO may be issued without posting of bond and notice to adverse party
and hearing.
* Replevin
a) available only where the principal relief sought in the action is the recovery of possession of
* PRINCIPLE OF PRIOR OR CONTEMPORARY JURISDICTION:
personal property;
When an application for a writ of preliminary injunction or a temporary restraining order is included in
b) can be sought only where the defendant is in the actual or constructive possession of the personal
a complaint or any initiatory pleading, the case, if filed in a multiple-sala court, shall be raffled only
property involved.
after NOTICE to and IN THE PRESENCE of the adverse party or the person to be enjoined. In any
c) extends only to personal property capable of manual delivery;
d) available to recover personal property even if the same is not being concealed, removed, or disposed
of;
e) cannot be availed of if property is in custodia legis, as where it is under attachment, or was seized
under a search warrant or distrained for tax assessment.
* Defendant entitled to return of property taken under writ if:
a) he seasonable posts redelivery bond
b) plaintiffs bond if insufficient or defective
c) property is not delivered to plaintiff for any reason.
- replevin bond is only intended to indemnify defendant against any loss that he may suffer by being
compelled to surrender the possession of the disputed property pending trial of the action. Thus, surety
not liable for payment of judgment for damages rendered against plaintiff on a counterclaim for
punitive damages for fraudulent or wrongful acts committed by the plaintiffs which are unconnected
with the defendants deprivation of possession by the plaint
Special Civil Actions
Rule 62: Interpleader
Q. Why are these called Special Civil Actions?
A. Because of their nature, there are special procedures to follow.
The first of this special civil action is the case of an interpleader.
Q. What is the concept of an interpleader?
A.
Example:
A leased an apartment to B. So, pursuant to this agreement, B have been
occupying this apartment paying the rentals. After the lease period has run, lets
say, six (6) months, here now surfaces C. C said, B does not pay anymore the
rentals to A, this apartment is mine. Pay to me. B is in a dilemma. If he (B) pays to
A and it turns out later that C has a better right, he runs the risk of paying twice. If
he pays to C, he runs the risks of paying again to A because C may not have the
right.
Q. If you were B, what is the remedy available to you, so that regardless of who is
the party entitled to receive, you will be protected?
A. File a suit for interpleader. B vs. A and C. Why? So that A and C can fight it out
in this case. So, B initiates the complaint against two (2) people who do not want to
go to court and litigate.
So, this process of interpleader, A and C are compelled to fight each other.
That is the concept of interpleader.
Sec. 1 Rule 62
Whenever conflicting claims upon the same subject matter are or may be
made against a person who claims no interest whatever is the subject matter, or an
interest which in whole and in part is not disputed by the claimants, he may bring
an action against the conflicting claimants to compel them to interplead and litigate
their several claims among themselves.
We now have this complaint by B against A and C.
Q. What is the prayer of B here?
A. That A and C be directed to interplead with each other. Meaning, that A and C
should fight it out and have this matter of who is entitled to the rental. Actually, it is
not B who is fighting A or C. It is A and C who are fighting each other.
Q. But who initiated the fight between the two (2)?
A. B.
Q. What now is the procedure to be followed by the court when this interpleader
action was filed?
A. Actually, A and C will also be summoned under Rule 14. But with this
difference, accompanying the summons is an order of the court.
Sec. 2 Rule 62
Upon filing of the complaint, the court shall issue an order requiring the
conflicting claimants to interplead with one another. If the interests of justice so
require, the court may direct in such order that the subject matter be paid or
delivered to the court.
So, the sheriff now serves on A and C the summons. Together with the
summon is that order of the court directing A and C to interplead with one other.
So, A will file his answer.
Q. Who will be furnished copy of the answer of A?
A. A will furnish B and C.
Q. C will file his answer. Who will be furnished with the copy of the answer of C?
A. A and B.
Q. Do you now see why this is a special civil action?
A. In ordinary civil action, do the defendants furnish each other copies of their
answers? No. But here, the defendants furnish each other. Why? Because they are
the ones litigfating.
So, insofar as A is concerned, the plaintiff against him is C. Insofar as C is
concerned, A is the plaintiff against him.
Q. May a motion to dismiss the action for interplead be filed by A and C? Can A
and C avail of Rule 16, before they file their answer?
(coz remember under Rule 16, the motion to dismiss can be filed only before the
answer has been filed.
This question is answered by this Sec. 4 Rule 62.
A. Section 4 Rule 62
Within the time of filing an answer, each claimant may file a motion to
dismiss on the ground of impropriety of the interpleader or on other appropriate
grounds specified in Rule 16. The period to file the answer shall be tolled and if the
motion is denied, the movant may file his answer within the remaining period, but
shall not be less than five (5) days in any event, reckoned from notice of denial.
Q. What do you notice with respect to the ground of a motion to dismiss an
interpleader action and a motion to dismiss in an ordinary civil action?
A. In an ordinary civil action, the impropriety of the action is not a ground for a
motion to dismiss. Under Rule 62, it is.
So, the grounds for a motion to dismiss under Rule 62 are more
encompassing than the ground of a motion to dismiss under Rule 16.
Sec. 5 Rule 62 covers that situation already mentioned earlier.
Sec. 5 Rule 62
Each claimant shall file his answer setting forth his claim within fifteen (15)
days from service of the summons upon him, serving a copy thereof upon each
other conflicting claimants who may file their reply thereto as provided by these
Rules. If any claimant fails to plead within the time herein fixed, the court may, on
motion, declare him in default and thereafter render judgment barring him from any
claim in respect to the subject matter.
The parties in an interpleader action may file counterclaims, cross-claims,
third-party complaints and responsive pleadings thereto, as provided by these
Rules.
After A and C have been summoned, they will file their answer serving the
plaintiff B and other defendants of the copy of the answer.
In the answer of A and C, each will assert his right to the rental in this
example. He will give his reasons why the rental should be paid to him.
Q. May any of them A and C file also a counterclaim, a cross-claim?
A. Yes. The parties in an interpleader action may file counterclaim, cross-claims,
third-party complaints and responsive pleadings thereto as provided by these Rules.
So, there is nothing special about this, except with this provision where they
have to furnish each other with copies of their pleadings.
Q. What now is the disposition of the court with respect to these cases?
A. After the pleadings of the conflicting claimants have been filed and pre-trial
have been conducted in accordance with the rules, the court shall proceed to
determine their respective rights and adjudicate their counterclaims.
It means to say following the pre-trial, trial proper will now proceed.
After the court has conducted the pre-trial and received the evidence, the
court will now determine who between A and C is entitled to this rental. And of
course, will adjudicate the counterclaims.
This is how Rule 62 works.
RENE NOTES:
INTERPLEADER INTERVENTION
1. an original action 1. ancillary action
2. presupposes that plaintiff has no interest in the 2. proper in any of the four situations: persons
subject matter of the action or has interest therein having (a) legal interest in the matter of litigation,
in whole or in part which is not disputed by the or (b) success of either of the parties, or (c) an
other parties interest against both, or (d) 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 offer thereof, (Rule 19, Sec. 1)
3. defendants are being sued precisely to 3. defendants are original parties to the pending
interplead them suits
Rule 63: Declaratory Reliefs and Similar Remedies
Q. What is the subject matter of a declaratory relief?
A. A person may be interested in a law, (he may be affected by a law), he may be
affected by an instrument. He may want to know what his rights are or what his
obligations are, under a written instrument or a law.
Q. Can you now bring an action in court to determine what his rights are, what his
obligations are under the law or under a written document?
A.
Example:
 A and B entered into an agreement. There are certain provisions here,
which confer on A certain rights and imposes him certain obligations. There are also
provisions here, which impose on B certain obligations and also certain rights. But in
the case of A, these provisions are vague, he cannot quite comprehend it. And he
(A) fears that there may be a litigation arising out of it.
Q. Can he now file an action in court against B for the purpose only of obtaining a
declaration from the court on what his rights are, on what his obligations are, on
what the rights of B are, or there is a law or ordinance, say regulating sale of liquor,
A is a liquor distributor, this law affects him so he wants to know what his rights
are, what his obligations are under this law, can he now file an action against the
authorities to determine what his rights are or his obligations are under this
ordinance?
A. Yes. That is the concept of a declaratory relief.
Take note that a court is supposed to determine actual controversies. As a
rule, a court is not required to give advisory opinions. It cannot settle abstract
matters. It settles only actual conflicts.
But under the law on declaratory relief, the court is actually called upon to
render an opinion in a case involving these documents agreed upon. Of course, that
can be done only before there has been a breach of the written document.
Q. What is the situation contemplated by Rule 63?
A. A person whose interest thereunder is a deed, a will, a contract or any other
written instrument under a law, an ordinance, executive order, his rights under this
law or instruments are affected.
The provisions of the written instrument or the law may be vague giving
rise to uncertainties. So, the possibility of a suit arising out of this vagueness of this
instrument or this doubtful character, the instrument, because if you will not
determine this, there will be a suit that will arise.
Q. So, what is the idea behind the suit now that the party in this written
instrument may file?
A. The idea here is to secure from the court a declaration as to the validity of the
instrument or of the law.
So, in the case then of the declaratory relief, the idea of the party filing the
case is to know before there is a breach of the law on the agreement or written
instrument, what his rights are, what his obligations are, under the contract or
under the written agreement or under the instrument or under the law.
So, in other words, he wants to know in advance what his rights are. So he
goes to the court and in effect to ask for an opinion. We said that the court, does
not as a matter of course render an opinion on abstract matters or hypothetical
cases. But this is a sort of an exception to this. That is why, under this law the
court may or may not agree to entertain an action for declaratory relief.
It is being ask merely to interpret an instrument or a law or it may be asked
only to declare what would be the proper construction or interpretation of the law
or of the written instrument.
There are however, suits that may be brought under the provisions of these
rules on declaratory relief, which the courts cannot decline to entertain . These are
the following actions:
1) an action to quite title to a property or to remove a cloud over a property;
2) an action for the reformation of an instrument;
3) an action for consolidation of ownership where the subject matter of the
suit involves a contract of sale with right to repurchase.
These three (3) actions mentioned, when brought under the provisions on
Declaratory Reliefs cannot be dismissed by the court. It must have to entertain. But
other cases of declaratory relief may be denied due course by the court.
For this declaratory relief rules to apply, what must be established is the
concurrence of all these circumstances:
1) There is an instrument; there is a will; there is a written contract or there is
law
2) This written instrument or this law affects the right of a person;
3) A person wants this law or this instrument to be interpreted, to be given a
construction;
4) At the time the suit is brought, there must be a threatened suit that may
arise out of it; and
5) This controversy is justifiable.
Example: (how this rule works)
Here is a contract entered into between A and B. Let us assume that in our
contract, that A undertakes to deliver supplies to B. A was supposed to load this
supplies on a ship belonging to A for delivery to B. This contract calls for a ten (10)
year period. On the 9th year of the period, A Assigns his rights under this contract to
C. C now is the transferee. Pursuant to this contract of A and C now says to B, B
beginning this 10th year, I will now be the one to supply you the materials which A
under the contract supposed to deliver to you.
Q. Is B bound by this contract?
A. For instance, A, C now delivers to B what A was supposed to deliver, and B
refuses, may he (B) be held liable?

Q. What is the remedy here?
A. B here may file an action for declaratory relief against C and A.
Q. What will be the prayer now of B here?
A. He will now pray that the court interpret this contract involved here and find
out what his rights are, what his obligations are under this contract of C and A.
Does this contract bind him or it does not bind him?
So, before there is any breach by A and B or C on this contract, then B can
go to the court to declare what his rights are, what his obligations are, under this
contract.
Example:
You will notice that this case here illustrates that first part of the rule where
a party filing the case is interested under a contract.
The other subject matter of a rule on declaratory relief, is a law, an
ordinance or an executive order which affects the rights of a person.
The municipality of X for instance which passed an ordinance on taxes, on
business establishments selling liquor. Here is Y, who is a license dealer of liquor.
This law, affects him, one way or the other. He doesnt know what his rights are,
now he is supposed to pay, lets say, taxes which are much higher than the amount
he is presently paying. But he is in doubt whether this is applicable to him or not
applicable to him because of the vagueness of the law.
Q. What is he allowed to do before there is any breach of this law by him?
A. He can file an action against the municipality of X for declaration of whether
this law is valid or not. This is his main purpose. To find out whether he is liable
under this or he is not liable. This is the sole purpose.
Q. Who will be the parties against whom, in our example, A, which affected by
that law or contract or ordinance? Who will be the defendants?
A. The law says, all those persons whose rights are affected by this instrument
must have to be made parties. And those who are not made parties are not affected
by whatever judgment may be rendered in a case. Although there is a decision cited
in the book of Moran to the effect that when a necessary party is not impleaded,
then a declaratory relief petition may be filed. Why? Because the party who is
necessary can always later on question an instrument or the law in a separate
proceeding and so this declaratory relief will not put an end.
Let us now assume that the petition for declaratory relief is filed. The court
refuses to give it due course. Ground for instance, whatever judgment the court
may render will not put an end to the uncertainty that brought about the
controversy. So, it will be useless. So, the court can decline.
On the other hand, the court may opt to consider it so it will hear the case.
It is as if it were an ordinary civil case.
Q. What will be the judgment?
A. It will simply be a declaration of whatever or not this law is valid or not. It will
simply declare what rights of A has under the contract. What obligations he has.
That is all!
Q. Is there anything in the judgment that can be executed?
A. No. Why? Because this is merely declaratory. It does not resolve an actual
controversy. It merely declares, here are the rights, here are the obligations. It
cannot be enforced by execution because there is nothing to enforce.
The law says, if the petition was entertained by the court but while the
case is pending in court, there is a violation of the agreement, or there is a violation
of the law, there is a breach.
Q. Can the petition for declaratory relief be maintained?
A. No more.
Lets assume in this example of A filing the action against the Municipality to
contest the validity of the tax ordinance. When the case was pending, plaintiff A
paid the taxes.
Q. Can this declaratory relief be continued?
A. No more. It can no longer be continued.
Q. What will happen then?
A. The court will now treat this as an ordinary civil action. So, it will now try the
case and render a judgment which can be enforced.
So, in our example here, if taxpayer paid the taxes while the case is
pending, there is already a breach of the law sought to be clarified. So, the court
can no longer simply declare what are the rights and obligations. The court will now
resolve with finality the rights of the plaintiff and his obligations. And the judgment
there can be enforced by execution. But in a case of validity or invalidity, there is
nothing that it can be enforced. Because it is merely a statement, this is your right,
this is your obligation, etc
So, this in essence is the concept of Declaratory Relief.
 Lets go back to the cases mentioned which can be filed under this provision
on rules on declaratory relief namely:
1) an action to quite title to property or to remove a cloud on a property; or
2) an action for reformation of an instrument; or
3) an action for consolidation of ownership.
These cases cannot be declined to be entertained by the court. It must have to
decide those cases.
Since the subject of the petition for declaratory relief is a written instrument or
a law or an ordinance.
Q. Can there be an action for declaratory relief to declare that a certain person is
or is not a Filipino citizen?
A. No. Why? Because an action of this nature is not based on any document, it is
not based on any written agreement.
In one case, in 1941 when war was about to break, X went to the office of
the municipal treasurer of his town and registered himself as a Chinese citizen. After
the war, he now instituted an action for declaratory relief against the government.
Q. What was his purpose here?
A. To serve a declaration that he is a Filipino.
In his petition he alleged that because of his fear, he registered himself as a
Chinese citizen. Nevertheless, his having registered himself as a Chinese
notwithstanding, he always considered himself as a Filipino. So that he now wants
that he be declared a Filipino citizen.
The petition was dismissed outrightly.
Q. Could the petition for declaratory relief be validly filed to secure a declaration
that a person is a Filipino citizen?
A. First, there is a written instrument, which is the basis of this petition. The
documents, which is the basis of this petition. The documents, which he signed
when he registered himself as a Filipino does not constitute a written agreement.
Why? Because that was a unilateral act on his part. No one is interested in that
document which he executed except himself. So, there can possibly be no question
of doubt arising from that unilateral act.
In one case, the suit was filed by A against B. the judgment was rendered
against B. B now filed an action for declaratory relief based on this judgment. In
other words, he wanted to find out what his rights are under that judgment.
Q. Is the remedy of a declaratory relief petition, proper in this case?
A. No. Why not? First, there are other remedies available to A to find out what his
rights are. For instance, he could have filed a motion for clarificatory judgment. If
he was in doubt as to what his rights are, he could have filed a motion in court to
clarify the judgment. There is another remedy. He could have appealed from the
judgment. In other words, this petition for declaratory relief is available only when
there is no other available remedy against a written instrument or against a law . So,
when there are still available remedies, this cannot be resorted to.
But of course, there is one compelling reason why this petition was
dismissed and that is the rule on res judicata. That has been already resolved with
finality. It cannot be subject of another litigation.
RENE NOTES:
Requisites for Declaratory Relief
1. justiciable controversy
2. adverse claim between real parties in interest
3. subject matter is a written instrument or a statute
4. relief sought is merely a determination of the rights and duties
5. there must be no breach or violation of instrument or statute
6. no other available or sufficient remedy
GR: Declaratory relief is available BEFORE there is actual breach or violation of an instrument or
statute.
Exceptions:, declaratory relief may still be availed even if there is breach or violation IF:
1. it concerns future application of the instrument or law [Gomez vs. Palomar (25 SCRA 827)] or
2. not objected to by the adverse party and the court has rendered judgment after full blown trial
[Matalin Coconut Producers (143 SCRA 1)]
Rule 65: Certiorari, Prohibition and Mandamus
There are two (2) types of certiorari. One, as an appealed remedy from a
final judgment or order of for instance, the RTC ---------------------- judgment and
there is an appeal therefrom on a question of law, the remedy is certiorari under
Rule 45, not a certiorari under Rule 65.
The judgments of the Sandiganbayan may be appealed to the SC. The
appeal is by certiorari under Rule 45.
The judgment of the CA may be appealed to the SC. The remedy is
certiorari under Rule 45.
So, it is in this sense that in this (Rule 45) certiorari is not the certiorari
mentioned in Rule 65 because Rule 65 does not contemplate an appeal.
To better have an idea of what Rule 65 covers we may have this situation.
Example:
 A sued B in the MTC for nullity of marriage. B here filed a motion to dismiss * The jurisdiction of the Sandiganbayan over certiorari proceedings is only in aid of its appellate
on the ground of lack of jurisdiction. The motion is denied. He then said, No, the jurisdiction.
MTC has jurisdiction.
Grounds for Dismissal of Petition:
1. patently without merit
Q. Can you appeal if you were B from this order denying your motion to dismiss? 2. prosecuted manifestly for delay
A. Look the order of dismissal is merely interlocutory. You cannot appeal from an 3. questions raised are too unsubstantial to warrant further proceedings
interlocutory order. This is clear in Sec. 1 (c) of Rule 41. But definitely, the order of
denial is wrong. So, if you do not correct this error, and you are B, you will go to a * As a GENERAL RULE, a motion for reconsideration is an essential precondition for the filing of
the petition for certiorari as a form of a plain, speedy, and adequate remedy. Its purpose is to give the
process of getting this case heard and decided by the MTC. You could just imagine
court a quo the opportunity to correct itself. EXCEPT:
the waste of time, money and effort if the proceedings will continue until 1. if the assailed judgment/order is a patent nullity
terminated. Why? Any judgment rendered by the MTC here will be void. 2. when there is extreme urgency
3. if the issue has been raised and promptly passed upon by the court
Q. What is the remedy here if you cannot appeal? 4. if the issue is purely a question-of-law
A. Under Rule 65, B may question the order denying the motion to dismiss. 5. if for public purpose
6.if suggested by the court a quo
The remedy could be a petition for certiorari.
GENERAL RULE: If after judgment the petition for certiorari is availed of when appeal is plain,
RENE NOTES: speedy and adequate remedy then the petition must fail for certiorari may not be resorted to as a
substitute for appeal, in such a case appeal is deemed abandoned.
* In a petition for certiorari, the court may order dismissal of the complaint because it is part of the EXCEPTION: If after judgment an appeal has been perfected, a petition for certiorari relating to
incidental relief (Newsweek vs. IAC) certain incidents therein may prosper where the appeal does not appear to be the plain, speedy and
adequate remedy. Hence, in this light, appeal and certiorari are remedies that does not exclude each
Requisites of Certiorari: other. (Lansang vs. CA, 184 SCRA SCRA 230)
1. there must be a controversy
2. the respondent is exercising judicial or quasi-judicial functions * Mere filing of petition for certiorari under this rule will not stay execution of judgment. Preliminary
3. the respondents acted without or in excess of its jurisdiction or acted with grave abuse of discretion injunction must be sought.
4. there must be no other plain, speedy and adequate remedy
Requisites of Prohibition: CERTIORARI PROHIBITION MANDAMUS
1. there must be a controversy Purpose of the writ. *Intended as a Prevent the commission Intended to compel
2. the respondent is exercising judicial or quasi-judicial or ministerial functions corrective remedy or carrying out of an act performance of an act
3. the respondents acted without or in excess of its jurisdiction or acted with grave abuse of discretion *Annul and modify a desired
4. there must be no other plain, speedy and adequate remedy proceeding
Act sought to be Discretionary act Discretionary and Ministerial act
Requisites of Mandamus:
controlled. ministerial act
1. there must be a clear legal right or duty
With respect the Exercising judicial and Judicial/or non-judicial Judicial and/or non-
2. the act to be performed must be practical within the powers of the respondent to perform such that
respondent. quasi-judicial function function judicial function
if the writ of mandamus was issued, he can comply with it, or else the essence will be defeated
3. respondent must be exercising a ministerial duty a duty which is absolute and imperative and
* If a motion for reconsideration or new trial is filed the period shall not only be interrupted but
involves merely its execution
another 60 days shall be given to the petitioner.
4. duty or act to be performed must be existing correlative right will be denied if not performed by
(SC Admin. Cir. 002-03)
the respondents
5. no plain, speedy and adequate remedy in the ordinary course of law

* A writ of certiorari can never be issued by an RTC against an administrative agency because an
administrative agency when exercising quasi-judicial functions is considered as of the same rank as the
RTC. However, a writ of prohibition may be issued by the RTC against administrative agencies only
when what is sought to be prohibited is a ministerial function but not quasi-judicial function.
Rule 66: Quo Warranto
Quo Warranto A proceeding or writ issued by the court to determine the right to use an office,
position or franchise and to oust the person holding or exercising such office, position or franchise if
his right is unfounded or if a person performed acts considered as grounds for forfeiture of said
exercise of position, office or franchise. Quo warranto may also be used when an association acts as a
corporation within the Philippines without being legally incorporated or without lawful authority so to
act.
STAGES IN EXPRORIATION
QUO WARRANTO MANDAMUS 1. Determination of the authority of the plaintiff to exercise the power of eminent domain and the
Designed to try the right or title to the office, the Applicable only in cases where the right to the propriety of the exercise in the context of the facts involved, and
right to the office itself is disputed office is NOT in dispute 2. Determination of JUST COMPENSATION.

* When may plaintiff enter into possession of property?

Quo Warranto in Electoral Proceeding
- To contest the right of an electoral public officer
to hold public office.
- an electoral proceeding under the Omnibus
Elections Code for the exclusive purpose of
impugning the election of a public officer on the
ground of ineligibility or disqualification to hold
the office
- petition must be filed within 10 days from the
proclamation of the candidate
- may be filed by any registered candidate for the
same office and, who, even if the petition
prospers, would not be entitled for that office.
Rule 67: Expropriation
- All properties may be expropriated except:
1. Money
2. Choses in action
Quo Warranto in Electoral Proceeding
- prerogative writ by w/c the govt. can call upon
any person to show by what title he holds a
public office or exercises a public franchise
- three grounds: usurpation, forfeiture, or illegal
association
- presupposes that the respondent is already
actually holding office and action must be
commenced within one year from cause of ouster
or right of petitioner to hold office arose
- the petitioner must be the government or the
person entitled to the office and who would
assume the same if his action succeeds.
1. Upon filing of complaint, serving notice to defendant and after depositing of assessed value of
property for taxation purposes with authorized government depository (Section 2)
2. Upon payment or tender of compensation fixed by the judgment and payment of the costs by
plaintiff (Section 10)
Rule 68: Foreclosure of Real Estate Mortgage
*Effect in the Encumbrancer is not Impleaded
a. his equity or right of redemption is not affected or barred by the judgment of the court (Sunlife
Insurance vs. Diez)
b. his right is not affected because he is merely a necessary party not an indispensable party
c. the remedy of the senior encumbrancer is to file an INDEPENDENT proceeding to foreclose the
right to redeem by requiring the junior encumbrancer to pay the amount stated in the order of execution
or to redeem the property in a specified time
*Remedy of Mortgage against the Buyer of the Mortgage Property:
- Mortgagees can substitute or implead the buyer. (Sec. 19 Rule 3)
However, this rule shall not apply if:
a) the property is covered by the Torrens System;
b) buyer bought the property in good faith
- To prevent this, the mortgagee must annotate a notice of lis pendens in the certificate of title so that
subsequent buyer(s) have notice.

* When is expropriation proper? * Instances where Court cannot render Deficiency Judgment
1. When the owner refuses to sell 1. Recto law
2. When he agrees to sell but an agreement as to price cannot be reached 2. Non-resident mortgagor unless there is attachment
3. Sec. 7 Rule 86 when mortgagor dies, the mortgagee must file his claim with the probate court
*Purpose of Preliminary Deposit under Sec. 2 4. Third person owned the property mortgaged but not solidarily liable with the debtor
1. provide damages if court finds plaintiff has no right to expropriate
2. advance payment for just compensation JUDICIAL FORECLOSURE EXTRAJUDICIAL FORECLOSURE
Requires court intervention No court intervention necessary
* Only an ANSWER is allowed under Sec. 3 Rule 67, no other responsive pleadings are allowed There is only an equity of redemption Right of redemption exists
Alternative remedy to personal action for the Proper only when provided for in the contract
* Declaration of Default amount due to satisfy mortgage debt
- The defendant cannot be declared in default. Failure to file an answer would result to the courts EQUITY OF REDEMPTION RIGHT OF REDEMPTION
judgment on the right to expropriate without prejudice to the right to present evidence on just - right of the defendant mortgagor to extinguish - right of the debtor, his successor in interest or
compensation. the mortgage and retain ownership of the any judicial creditor or judgment creditor of said
property by paying the debt w/in 90-120 days debtor or any person having alien on the property
* When is Title Vested in Expropriation: after the entry of the judgment or even after the subsequent to the mortgage or deed of trust under
- if personal property, upon payment of just compensation (Sec. 10) foreclosure sale but prior to confirmation which the property is sold to redeem the property
- if real property, upon registration (Sec. 13) w/in one year from the registration of the Sheriffs
 certificate of foreclosure sale
- governed by Rule 68 - governed by Secs. 29-31 of Rule 39
JUDGMENT CONTENTS OF
JUDGMENT
If actual partition of property is The judgment shall state
made definitely:
(1) by metes and bounds and
adequate description,
(2) the particular portion of the
estate assigned to each party
If the whole property is The judgment shall state:
assigned to one of the parties 1. the fact of such payment, and
upon his paying to the others 2. the assignment of the real
the sum or sums ordered by the estate to the party making the
court payment
If the property is sold and the The judgment shall state: 1. the
sale is confirmed by the court name of the purchaser(s), and
2. a definite description of the
parcels of the real estate sold to
each purchaser
Two (2) Issues in an Action for Petition
1. Whether or not a co-ownership exists
2. How to actually partition the property
* The appointment of Commissioners is mandatory unless there is an extra-judicial partition between
the parties.
Rule 70: Forcible Entry and Unlawful Detainer
Three (3) Kinds of Action for Recovery of Possession
EFFECT OF JUDGMENT
To vest in each party to the act,
in severally the portion of the
estate assigned to him.
To vest in the party making the
payment the whole of the real
estate free from any interest on
the part of the other parties to
the action
To vest the real estate in the
purchaser(s) making the
payment(s), free from the claims
of the parties to the action.
Metro Manila
FORCIBLE ENTRY UNLAWFUL DETAINER
*possession of the land by the defendant is *possession is inceptively lawful but it becomes
unlawful from the beginning as he acquires illegal by reason of the termination of his right to
possession by Force, Intimidation, Strategy, the possession of the property under his contract
Threat or Stealth (FISTS) w/ the plaintiff
*no previous demand for the defendant to vacate *demand is jurisdictional if the ground is:
the premises is necessary 1. non-payment of rentals, or
2. failure to comply with lease of contract
*the plaintiff must prove that he was in prior *the plaintiff need not have been in prior physical
physical possession of the premises until he was possession
deprived thereof by the defendant
*the 1 year period is generally counted from the *period is counted from the date of last demand or
date of actual entry on the land last letter of demand
Tenor of Demand:
a. Pay AND Vacate; or
b. Comply with the condition of the lease AND Vacate
*Judgment on Ejectment Proceeding are Immediately Executory Unless the Defendant:
(1) perfects his appeal,
(2) files sufficient superseades bond to pay the rents, damages and costs occurring down to the time of
judgment appealed from; and
(3) deposits with the appellate court the amount of rent due from time to time under the contract or in
the absence of a contract, the reasonable value of the use and occupation of the premises on or before
the 10th day of each succeeding month or period.
* However the RTC may issue a writ of preliminary mandatory injunction to restore plaintiff in
possession if the court is satisfied that:
1. defendants appeal is frivolous or dilatory, or
2. appeal of plaintiff is prima facie meritorious, upon motion of plaintiff within 10 days from perfection
of appeal.

ACCION INTERDICTAL
*summary action for the
recovery of physical possession
where the dispossession has not
lasted for more than one year.
*ejectment proceeding under
Rule 70, either forcible entry or
unlawful detainer
*All cases of forcible entry and
unlawful detainer irrespective
of the amount of damages or
unpaid rentals sought to be
recovered should be brought to
the MTC.
ACCION PUBLICIANA
*a plenary action for the
recovery of the real right of
possession has lasted for more
than one year.
*RTC has jurisdiction if the
value of the property exceeds
P20,000 outside Metro Manila;
P50,000 within Metro Manila.
*MTC has jurisdiction if the
value of the property does not
exceed P20,000 outside
Metro Manila; P50,000 within
ACCION REINDIVICATORIA
*an action for the recovery of
ownership w/c necessarily
includes the recovery of
possession.
*RTC has jurisdiction if the value
of the property exceeds P20,000
outside Metro Manila; P50,000
within Metro Manila,
*MTC has jurisdiction if the value
of the property does not exceed
P20,000 outside Metro Manila;
P50,000 within Metro Manila
- If there is no formal contract between parties; there can still be unlawful detainer because ejectment
considers implied contracts. Possession by tolerance creates an implied promise to vacate the premises
upon the demand of the owner: (Peran vs. CFI of Sorsogon)
*The doctrine of tolerance applies only if possession is lawful from the start. In short said doctrines
applies only to unlawful detainer cases and not to forcible entry because:
1. the violation of the right in forcible entry authorizes speedy redress;
2. if a forcible entry is allowed only after a number of years then it may well be that no action for
forcible entry can really prescribe. (Munoz vs. CA, 214 SCRA 216)
*Questions to be resolved in an action for forcible entry are:
First, who had actual possession over the piece of real property?
Second, was the possessor ousted therefrom within one year from the filing of the complaint by force,
threat, strategy or stealth?
Third, does the plaintiff ask the restoration of possession? (Dizon vs. Concina)
* The court can award damages in ejectment cases provided the damages refer only to:
a. the fair and reasonable value of the use and enjoyment of the property or the rent arising from the -The judgment against a person adjudged to be in contempt is immediately executory and can be
loss of possession; stopped only by filing a bond.
b. arrears;
c. liquidated damages since they are already part of the contract

Rule 71: CONTEMPT

DIRECT CONTEMPT INDIRECT CONTEMPT

*summary in nature
GROUNDS:
a) misbehavior in the presence of or near a court
as to obstruct or interrupt the proceedings
b) disrespect towards the court
c) Offensive personalities towards others.
d) Refusal to be shown or to answer as witness or
to subscribe an affidavit or deposition.
If committed against:
a. RTC fine not exceeding P2,000 or
imprisonment not exceeding (10) days or both
b. MTC fine not exceeding P200 or
imprisonment not exceeding one (1) day, or both.
Punished after being charged and hearing
GROUNDS:
a) misbehavior of an officer of a court in the
performance of his official duties or in his official
transactions.
b) Disobedience of or resistance to a lawful writ,
process, order, or judgment. Unauthorized
intrusion to any real property after being ejected;
c) Any abuse or any unlawful interference w/ the
proceedings not constituting direct contempt
d) Any improper conduct tending to degrade the
administration of justice.
e) Assuming to be an attorney or an officer of the
court w/o authority.
f) failure to obey a subpoena
g) Rescue, or attempted rescue, of a person or
property in the custody of an officer.
If committed against:
a. RTC fine not exceeding P30,000 or
imprisonment not exceeding 6 months or both.
b. MTC fine not exceeding P5,000 or
imprisonment not exceeding (1) month or both

*Remedies to Challenge Contempt Judgments:

Direct Contempt
- The person adjudged in direct contempt may avail himself of the remedies of certiorari or prohibition.
The execution of the judgment shall be suspended pending resolution of the petition, provided such
person files a bond and conditioned that he will abide by and perform the judgment should the petition
be decided against him.

Indirect Contempt
- The person adjudged for indirect contempt may appeal such judgment or final order to the proper
court as in criminal cases. The execution of the judgment shall NOT be suspended until a bond is filed
by the person adjudged in contempt.