Assignment in Remedial Review (Sept.

26, 2018)

I.

Explain (A) subpoena, (B) subpoena duces tecum , and (C) subpoena ad testificandum.

(A) Subpoena is a process directed to a person requiring him to attend and to testify at the hearing or the
trial of an action, or at any investigation conducted under the laws of the Philippines, or for taking of his
deposition (Sec. 1, Rule 21).

(B) Subpoena duces tecum is a process directed to a person requiring him to bring with him at the hearing
or trial of an action any books, documents, or other things under his control.

(C) Subpoena ad testificandum is a process by which the court, at the instance of a party, commands a
witness who has in his possession or control some document or paper that is pertinent to the issues of a
pending controversy to produce it as the trial.

II.

Carlos filed a complaint against Pedro in the Regional Trial Court (RTC) of Ozamis City for the
recovery of the ownership of a car. Pedro filed his answer within the reglementary period. After
the pre-trial and actual trial, and after Carlos has completed with the presentation of his
evidence, Pedro moved for the dismissal of the complaint on the ground that under the facts
proven and the law applicable to the case, Carlos is not entitled to the ownership of the car. The
RTC granted the motion for dismissal. Carlos appealed the order of dismissal and the appellate
court reversed the order of the trial court. Thereafter, Pedro filed motion with the RTC asking the
latter to allow him to present his evidence. Carlos objected to the presentation of evidence by
Pedro. Should the RTC grant Pedro’s motion to present his evidence? Why?

No, Pedro‘s motion should be denied. He can no longer present evidence. The Rules provide that the
motion for dismissal is granted by the trial court but on appeal the order of dismissal is reversed, he shall
be deemed to have waived the right to present evidence.

III.

Distinguish the effects of filing a demurrer to evidence in a criminal case and its filing in a civil
case.

(1) In a civil case, if the demurrer is granted, the order of dismissal is appealable—since the motion is
interlocutory. In a criminal case, the order of dismissal is not appealable because of the constitutional
policy against double jeopardy—denial is tantamount to acquittal, final and executory.
(2) In civil case, if the demurrer is denied, the defendant may proceed to present his evidence. In a
criminal case, the accused may adduce his evidence only if the demurrer is filed with leave of court. He
cannot present his evidence if he filed the demurrer without leave of court (Sec. 23, Rule 119).

In a civil case, the defendant has the right to file a demurrer to evidence without leave of court. If his
demurrer is denied, he has the right to present evidence. If his demurrer is granted and on appeal by the
plaintiff, the appellate court reverses the order and renders judgment for the plaintiff, the defendant
loses his right to present evidence (Rule 33).

In a criminal case, the accused has to obtain leave of court to file a demurrer to evidence. If he obtains
leave of court and his demurrer to evidence is denied, he has the right to present evidence in his
defense. If his demurrer to evidence is granted, he is acquitted and the prosecution cannot appeal. If the
accused does not obtain leave of court and his demurrer to evidence is denied, he waives his right to
present evidence and the case is decided on the basis of the evidence for the prosecution. The court
may also dismiss the action on the ground of insufficiency of the evidence on its own initiative after
giving the prosecution the opportunity to be heard (Sec. 23, Rule 119).

IV.

In an admiralty case filed by A against Y Shipping Lines (whose principal offices are in Manila) in
the RTC of Davao City, the court issued a subpoena duces tecum directing Y, the president of
the shipping company, to appear and testify at the trial and to bring with him several documents.
On what valid ground can Y refuse to comply with the subpoena duces tecum?

Y may refuse to comply with the subpoena duces tecum on the ground that he resides more than
100 kilometers from RTC Davao City where he is to testify.

The provisions of sections 8 and 9 of this Rule shall not apply to a witness who resides more than
one hundred (100) kilometers from his residence to the place where he is to testify by the ordinary course
of travel, or to a detention prisoner if no permission of the court in which his case is pending was obtained.
(Section 10, Rule 21)

V.

What is the viatory right of a witness?

Viatory Right of a Witness. This is a right availed of only in civil cases where a witness resides more than
100 kilometers from the place of trial where he has to travel by ordinary course or travel, or where a
detention prisoner with no permission obtained from the court where his case is pending, then he cannot
be compelled to attend the trial (People vs. Montejo, GR No. L-24154, 10/31/1967).

VI.

Give at least three instances where the Court of Appeals may act as a trial court?

The Court of Appeals may act as a trial court in the following instances:
(1) In annulment of judgments (Sec. 5 & 6, Rule 47)
(2) When a motion for new trial is granted by the Court of Appeals (Sec. 4, Rule 53)
(3) A petition for Habeas Corpus shall be set for hearing (Sec. 12, Rule 102)

VII.

Plaintiff ANAM Inc. filed in the RTC of Iligan City an action to collect from Jerome Sy the sum of
Php 400,000.00 as unpaid balance on the latter’s purchase of cement on credit from the former.
Sy was declared in default for failure to answer the complaint. Plaintiff was thereafter allowed to
present its evidence ex parte before the Branch Clerk of Court on August 15, 2015.
Subsequently, on Sy’s motion, the order of default was set aside, he was allowed to file his
answer and to present his evidence without retaking the plaintiff’s evidence. On the date set for
the reception of his evidence, Sy failed to appear despite due notice, so, judgment was rendered
by the trial court against him. On appeal to the Court of Appeals, the judgment by default was set
aside and the case was remanded to the lower court for pre-trial and trial on the merits.

At the pre-trial conference on November 12, 2017, the parties appeared and agreed that the
evidence previously presented by the plaintiff on August 15, 2015 shall remain on record for
purposes of the continuation of the trial. On the date set for the reception of his evidence, April
25, 2018, Sy failed again to appear to present his evidence despite due notice, hence, he was
deemed to have waived the presentation of his evidence. The trial court rendered a decision for
the plaintiff and against Sy. The latter appealed to the Court of Appeals alleging, among others,
that (1) the retention of the proceedings before the Branch Clerk of Court on August 15, 2015
was not valid because the report was not heard neither was he notified that the report was set for
hearing; and (2) the presentation of the plaintiff’s evidence before the Branch Clerk of Court was
void. Rule on Sy’s appeal.

Sy’s appeal should be denied for lack of merit.

In a case with similar cases, the Supreme Court has held that the appellant is now
estopped from questioning the retention of the proceedings before the Branch Clerk
of Court since her husband agreed to the same during the pre-trial conference.
Agreements reached at the pre-trial conference and embodied in the pre-trial order
shall control the subsequent course of the trial and should not be disturbed unless
there could be manifest injustice. The agreement is not unjust to appellant. Moreover,
the presentation of the plaintiff's evidence before the Branch Clerk of Court was not
void. The practice of designating the clerk of court as a commissioner to receive
evidence in the event of the non-appearance of the defendant and its counsel, is not
irregular and is sanctioned by Rule 33 of the Rules of Court on trial by commissioner
(J.M. Tuazon, Inc. vs. Dela Rosa, 18 SCRA 591; Wassmer vs. Velez, 12 SCRA 648).
Here, the parties agreed during the pre-trial conference for the retention of the
evidence already presented on August 15, 2015 for the purposes of the continuation
of the trial. Also, the presentation of evidence before the Branch Clerk of Court was
not void.
Hence, Sy’s appeal should be denied for lack of merit.

VIII.

(A) Distinguish between trial and hearing.

TRIAL HEARING
As to the stage in a civil case
It is a stage of a civil case where the parties adduce It is involved in several stages of a civil case, e.g.,
evidence in support of their respective claims or hearing of a motion to dismiss or hearing for the
defenses. issuance of a provisional remedy.
As to the manner of presentation of evidence
Follows the order of trial. Examination of witnesses Does not follow the order of trial. There need to be
and offer of evidence in open court on the date set an examination of witnesses or offer of evidence.
for trial is required. The parties are simply given the opportunity to be
heard through submission of arguments on
questions of fact and evidence on questions of law
involved.

(B) What are the requisites of motion for postponement?

Requisites of motion to postpone trial for absence of evidence:

(1) Trial may be postponed on the ground of absence of evidence upon compliance with the
following:
a. A motion for postponement must be filed;
 b. The motion must be supported by an affidavit or sworn certification showing (1) the
materiality or relevancy of the evidence, and (2) that due diligence has been used to
procure it (Sec. 3).
(2) If the adverse party admits the facts given in evidence, the trial shall not be postponed even if he
reserves the right to object to the admissibility of the evidence (Sec. 3).

Requisites of motion to postpone trial due to illness of party or counsel

(1) A motion for postponement must be filed;

(2) The motion must be supported by an affidavit or sworn certification showing that (a) the presence
of the party or counsel at the trial is indispensable, and (b) that the character of his illness is such
as to render his non-attendance excusable (Sec. 4).

IX.

Explain briefly what is (A) trial, (B) consolidation, and (C) severance of hearing or trial.

Trial is the stage in the elementary procedure followed by trial courts in the conduct of civil cases in which
the parties shall adduce their respective evidence in support of their claims and/or defenses.

Consolidation. When actions involving a common question of law or facts are pending before the court, it
may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions
consolidated; and it may make such orders concerning proceedings therein as may tend to avoid
unnecessary costs or delay (Sec. 1).

Severance (Separate) Trials. The court, in furtherance of convenience or to avoid prejudice, may order
a separate trial of any claim, cross-claim, counterclaim, or third party complaint, or of any separate issue
or of any number of claims, cross-claims, counterclaim, third party complaints or issue (Sec. 2).

X.

Juana filed with the RTC of Iligan City an action to quiet title against Jose. Answer was in due
course filed by Jose. The case was set for pre-trial on January 25, 2010. Jose’s counsel moved
for cancellation of this setting. The court reset the pre-trial to February 27, 2010, but again
Jose’s counsel, pleading illness, sought to have this second pre-trial setting cancelled by motion.
The motion contained no notice of hearing, hence denied by the court. At the scheduled pre-trial
on February 27, 2010 neither Jose nor his counsel appeared. The court consequently authorized
Juana to present evidence ex parte. On certiorari, Jose questions the orders of the court
contending that (1) while his counsel’s motion for postponement was defective in that it had not
been set for hearing, the flaw was but a formal one caused by its having been hastily drawn up
when counsel was suffering from headache; and (2) the pre-trial setting was void since notice
thereof had not been given to Jose personally, only his counsel has been notified. Are Jose’s
contentions tenable?

No. Jose’s contentions are not tenable.

In a case with similar facts, the Supreme Court has held that the omission in defendant’s motion for
cancellation of the pre-trial of a notice of hearing was not a mere formal defect. The motion for
cancellation or postponement was not one that could be granted by the Court as a matter of course, and
thus be acted on ex parte. No party has a right to a postponement of a trial or hearing, or pre-trial; and his
adversary has the right to oppose any move towards this end. A party or counsel desiring a postponement
of a pre-trial or trial must comply with the requisites of motions in general set out in Rule 15 of the Rules of
Court, i.e., the motion shall be made in writing, shall state the grounds upon which it is based and if
necessary be accompanied by supporting affidavits and other papers and notice thereof — specifying the
date of hearing which is supposed to be specified by the movant himself — shall be served by the
applicant on all parties concerned at least three (3) days before said hearing, together with a copy of the
motion and of any affidavits and other relevant papers. Such notice of hearing, it must be added, is
essential. Its importance is underscored by the prohibition of action by the court on any motion which is
not accompanied by proof of service thereof, except when the court is satisfied that the rights of the
adverse party or parties are not affected. And if the motion be grounded on illness of a party or counsel,
the Rules further require an "affidavit that the presence of such party or counsel at the trial (or pre-trial) is
indispensable and that the character of his illness is such as to render his non- attendance excusable."