Escolar Documentos
Profissional Documentos
Cultura Documentos
Ø are writ and processes available during the pendency of an action to preserve and protect
certain rights and interests pending the result of the final judgment in the case.
Maybe filed at any stage of the action and even after final judgment.
Bond is mandatory and the court fixes it.
Replevin
RULE 57
PRELIMINARY ATTACHMENT
RULE 58
PRELIMINARY INJUNCTION
RULE 59
RECEIVERSHIP
Who is a Receiver?
- person appointed by the court in behalf of all the parties to an action for the purpose of
preserving the property involved in the suit and to protect the rights of all the parties under the
direction of the court.
- as a rule, a party to the case nor the clerk of court should not be appointed.
Note: no action maybe filed against the receiver without leave of court.
Note: Ex parte appointment of a receiver is no longer authorized, a hearing must be conducted for
that purpose.
RULE 60
REPLEVIN
RULE 61
SUPPORT PENDENTE LITE
What is Interpleader?
Ø It is a Special Civil Action whereby a person who has property in his possession or
an obligation to perform, either wholly or partially, who claims no interest in the subject, goes to
the court and ask that conflicting claimants to that property or obligation be required to litigate
among themselves in order to determine finally who is entitled to the same.
Ø E.g. a) a warehouseman, with goods being claimed by 2 or more persons.
b) an insurer, with 2 or more claimants to an insurance proceeds.
RULE 63
DECLARATORY RELIEF AND SIMILAR REMEDIES
Mode of Review
v To be filed exclusively to the Supreme Court.
v Petition for Review under rule 65.
[Note: The filing of the petition shall not stay the execution of the judgments or final orders,
unless ordered by the Supreme Court.]
RULE 65
CERTIORARI, PROHIBITION, AND MANDAMUS
v CERTIORARI
Requisites:
1. there must be a controversy
2. the respondent is a tribunal, board or an officer exercising judicial or quasi-judicial
functions [discretionary acts].
3. the respondents acted:
a. without jurisdiction
b. in excess of jurisdiction
c. with grave abuse of discretion amounting to lack or excess of jurisdiction
4. there must be no appeal or other plain, speedy and adequate remedy.
MANDAMUS
Requisites
1. there must be a clear legal right or duty.
2. the act performed must be practical- within the powers of the respondent to perform such if
issued and he can comply with it or else the essence will be defeated.
3. the respondent must be exercising a ministerial duty.
4. the duty or act to be performed must be existing – a correlative right will be denied if not
performed by the respondents.
5. there must be no appeal or other plain, speedy and adequate remedy.
NOTE: An ordinary action for certiorari, prohibition and mandamus are independent action thus:
1. does not interrupt the course of the principal action.
2. does not affect the running of the prescriptive period involved in the case.
3. does not stay the execution of the judgment, unless a TRO or a PI is issued.
RULE 66
QUO WARRANTO
NOTE: The period for the filing of Quo Warranto proceedings is within one(1) year from the date
the cause of action arose.
DISTINCTIONS
QUO WARRANTO
MANDAMUS
1. There is a usurpation of public office by another and assumes office.
2. The right to office of the occupant is not clear so this right becomes the subject of the action.
There is an ousting from office by another but does not assume the office.
The right or legal duty is clear, so the purpose of the action is to enforce the right.
QUO WARRANTO
ELECTION CONTEST
1. As to the basis:
The occupant of the office is disqualified from holding the office because of ineligibility or
disloyalty to the republic.
2. As to the effect:
If the petitioner succeeds, the respondent will be ousted and the petitioner will assume the office.
The person holding the office is not entitled to it because of irregularity in the conduct of election.
If the protestant succeeds, he will assume office if he had obtained a plurality of the valid vote.
RULE 67
EXPROPRIATION
q EMINENT DOMAIN is the right of the state to acquire private property for public use upon
payment of just compensation.
q EXPROPRIATION is the procedure to be observed in the exercise of the right of eminent
domain in instances such as:
1. When the owner refuses to sell his property.
2. When he agrees to sell but an agreement as to the price cannot be reached.
NOTE: All properties can be expropriated except money and chooses in action.
Just Compensation is determined at the time of the taking of the property or at the filing of the
complaint which ever comes first. It is the fair and full equivalent for the loss sustained by the
defendant.
NOTE: The conflict in the payment of just compensation or an appeal does not delay the right of
the plaintiff to enter into the property and appropriate the same for public use.
RULE 68
FORECLOSURE OF REAL ESTATE MARTGAGE
Parties:
1. mortgagee and mortgagor
2. successor in interest
3. junior encumbrancer/s
NOTE:
ü Within the one(1) year period given to the mortgagor to redeem, the buyer may take
possession of the property but must pay a bond equivalent to the amount of a rent.
ü If there is deficiency judgment, the action may continue in the same proceedings except to
non-resident defendants.
Effect if the Junior Encumbrancer is not pleaded:
1. his right is not affected because he is merely a necessary party not an indispensable party.
2. the remedy of the senior encumbrancer is to file independent actions to foreclose the right
to redeem by requiring the junior encumbrancer to pay the amount stated in the order of execution.
JUDICIAL FORECLOSURE
EXTRAJUDICIAL FORECLOSURE
Requires court intervention
No court intervention necessary
There is only an Equity of Redemption is the right of the defendant mortgagor to extinguish the
mortgage and retain ownership of the property by paying the debt within 90-120 days after the
entry of judgment or even after the sale but before confirmation.
There exist a Right of Redemption is the right of the debtor, his successor in interest or any
judicial creditor or judgment creditor of the debtor or any person having a lien on the property
subsequent to the mortgage or deed of trust under which the property is sold to redeem the
property within one(1) year from the registration of the of the sheriff’s certificate of foreclosure
sale.
Governed by Rule 68
Governed by sec.29-31 of Rule 39
RULE 69
PARTITION
What is Partition?
Ø It is the process of dividing and assigning property owned in common among the various
co-owners in proportion to their respective interests in said property.
TWO(2) STAGES:
1. Determination of the Propriety of the Partition. Includes the question whether or not the
property is owned in common or whether or not all the co-owners are made parties. If the court
find that there must be partition, the aggrieved party may appeal the decision.
2. Actual Partitioning of the Subject Property.
Ø The parties may agree on the partition by executing a Deed of Partition, where it will
become final after the court approves it. The aggrieved party may appeal the decision.
Ø If the parties does come into an agreement as to how to partition the property, the case will
be heard through trial by commissioner.
NOTE: No partition of personal property.
RULE 70
FORCIBLE ENTRY AND UNLAWFUL DETAINER
FORCIBLE ENTRY
UNLAWFUL DETAINER
§ Possession of the land by the defendant is unlawful from the beginning as he acquires it by
Force, Intimidation, Strategy, Threat or Stealth [FISTS]
§ Possession is lawful but it becomes illegal because of the termination of the right to the
possession of the property under his contract w/ the plaintiff.
§ No previous Demand is necessary.
§ Formal Demand is mandatory if the ground is non-payment of rentals or failure to comply with
the lease contract
§ The plaintiff must prove that he was in prior physical possession of the premises until he was
deprived.
§ The plaintiff need not have been in prior physical possession.
§ The 1 year period is generally counted from the date of actual entry on the land.
§ Period is counted from the date of last demand or last letter of demand.
DIRECT CONTEMPT
INDIRECT CONTEMPT
1. Nature:
§ Summary in nature
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 1 day or both.