Escolar Documentos
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REMEDIAL LAW
JURISDICTION:
JURISDICTION VENUE
Authority to hear and ermine a case Place where the case is to be heard or tried
Substantive Procedural
Relation between the court and the subject Relation between the plaintiff and defendant or
matter petitioner and respondent
Fixed by law and cannot be conferred by May be conferred by the act or agreement of the
parties parties
- Jurisdiction does not depend on the regularity of the exercise of that power or upon
the rightfulness of the decision made.
- ELEMENTS OF JURISDICTION:
1. Jurisdiction over the Subject matter
2. Jurisdiction over the Parties
3. Jurisdiction over the Res
- Over the person of the defendant - proper service of summons or by his voluntary
appearance.
- Acquisition of jurisdiction over the person of a non resident defendant not found in
the PH in an action for compulsory recognition of child -
- Jurisdiction over the issues is acquired by the pleadings or may be conferred by law.
- The court acquires jurisdiction of the case only upon payment of prescribed filing fee.
- Jurisdiction Over subject matter is determined upon the allegations made in the
complaint.
- If there was no statement of the gross value of the estate and it cannot be
determined which court has original and exclusive jurisdiction - COURT DID NOT
ACQUIRE THE JURISDICTION OVER THE SUBJECT MATTER. (Frianela case)
- Even if the case is pending for 18 years, principle of estoppel to question jurisdiction
over the subject matter cannot be barred thus not applying Tijam case because:
- GR: Estoppel by latches cannot lie against the government
- In TIJAM, Lack of jurisdiction was only alleged in the EXECUTION STAGE. Tijam can
only be applied in cases having similar factual milieu
- A party cannot invoke the jurisdiction of the court to secure affirmative relief against
his opponents and after failing to obtain such, question the same.
- By filing a counterclaim, the party recognized and expressly invoked the jurisdiction of
the court. They cannot now insist the want of jurisdiction.
- If complaint was amended without proper docket fee, the court may allow the
payment of the fee within a REASONABLE TIME but in no case beyond the applicable
prescriptive or reglementary period(Manchester Case)
- If the judgment awards claims not specified in the pleading or if left to the
determination of the court, the additional filing fee shall be considered as lien on the
judgement.
- An expropriation proceeding is within the jurisdiction of the RTC because it is
incapable of pecuniary estimation.
- Comelec may issue writs of CMP only in aid of its appellate jurisdiction
- GR: A branch of a court cannot enjoin another branch of the same court because of
Judicial stability.
- EXC: When third party claimant is involved and is prosecuted in a proper
action. Thus the court may issue TRO or injunction as an exception to the rule.
JURISDICTION OF MTC
- If MTC, award can only be within the allowable amount (300/400). He is deemed to
have waived the excess of his claim beyond that.
- The nature of the action is not determined by what is stated in the caption of the
complaint but by the allegation and the reliefs prayed for.
- If an action involves the title to or interest in real property, the assessed value or if
there is none, the estimated value shall be alleged or else the court has no jurisdiction
over the subject matter.
- If claim for damages is only incidental, it should not be included with the money
claim and the totality rule shall not apply.
- Reversion case: dependent on the assessed value
- Accion publiciana, quieting of title, partition: ASSESSED VALUE
- Right to repurchase- incapable of pecuniary - RTC
JURISDICTION OF SANDIGANBAYAN
- In relation to the office - Intimately connected with the office of the offender and
perpetrated while he was in the performance of his official function
- The sandiganbayan shall exercise appellate jurisdiction on appeals from the final
judgments, resolutions of the RTC whether in the exercise of their own original
jurisdiction of their appellate jurisdiction in case a public officers
- Sandiganbayan may issue writs of CMQP but only in aid of appellate jurisdiction
- If private individuals are charged as co-principal or accomplices or accessories with
public officer, they are tried jointly
- If civil action is filed ahead of the criminal action, it shall be transferred to the
Sandiganbayan or the proper court provided that no judgment has been rendered
in the meantime.
- Final orders of SB is appealable in the SC
- Department manager of GOCC - Sandiganbayan
- It is not sufficient to just allege that the offense was committed in relation to his office
BARANGAY CONCILIATION
- Compliance is a condition precedent to the filing of the complaint or information in
the court and its absence is a ground for dismissal of the complaint for prematurity or
absence of cause of action
- Only individuals shall be parties in BC
- Parties must be actually residing in the same barangay
- Postal address is not included in the meaning of Residence (Boleyley Vs Villanueva)
- The real party in interest shall be actual residents of the same city or municipality or
adjoining barangay (Pascual vs Pascual)
- Objections to the venue of BC shall be raised in the mediation proceedings or else
deemed waived
- Legal questions revolving objections to venue shall be submitted to the SEC OF
JUSTICE
- BC is non jurisdictional in nature. Only condition precedent and may be waived
- Residence shall be more or less permanent. not mere transient
- While under mediation, the prescriptive periods for offenses shall be interrupted upon
filing go the complaint and shall resume upon the receipt of the certificate of
repudiation or certificate to file an action PROVIDED that interruption shall not
exceed 60 days from the filing of the complaint in PB
- PB shall arrive at the resolution within 15 days from the day it convenes and be
extendible for another 15 days in clearly meritorious cases
- All amicable settlements shall be in writing
- No complaint involving any matter within the authority of the upon shall be filed
without any certification from the lupon
- Staying 5 days in a week is sufficient to constitute actual residence
- Attaching a certification subsequent to the filing cures the defect and is substantial
compliance
- If not invoked in the motion to dismiss - DEEMED WAIVED
- Actions coupled with provisional remedies may be filed directly in court
- If cultural minorities, the customs and traditions of indigenous cultural communities
shall apply
- All proceedings in PB are public and informal but may exclude others
- Parties shall appear without the assistance of a lawyer except for minors which may
be assisted by the next kins
- Amicable settlements and arbitration award shall have the force and effect of a final
judgment of a court upon the expiration of 10 days from the date UNLESS repudiation
has been made or petition to nullify the award
- Any party in the dispute may within 10 days from the date of the settlement
repudiate by filing with the lupon chairman a statement to that effect where he
consent is vitiated by fraud, violence and intimidation. The repudiation shall be a
sufficient basis for the issuance of the certification to file a complaint
- 6 months shall be counted when the obligation shall be due and demandable
- If one of the parties fails or refuses to abide by the compromise, the other party may
either ENFORCE or regard it as RESCINDED and insist upon the original demand
without bringing an action for rescission.
CIVIL PROCEDURE
Based on the privity of REAL ESTATES Based on privity of contracts or for recovery of
sum of money
The action shall be instituted in the trial The action shall be instituted in the trial court
court where the property is situated where the parties are residing at the election of
the plaintiff
- In foreclosure if the party is in the US, it may be foreclosed if the court acquired the
jurisdiction over the res of the property. But they cannot demand for the deficiency
because it has no jurisdiction over the person of the mortgagor EXC when he
voluntary appears.
- Only the allegations of the complaint may be considered in ascertaining the cause
of action.
- TEST OF SUFFICIENCY OF COMPLAINT - whether or not, admitting the facts alleged, the
court can render a valid judgment in accordance with the prayers of the complaint
- If by their nature, the reliefs sought for are cognizable by different tribunals, then
there would be no splitting of causes of actions if they are filed in different courts
- Forcible entry and Unlawful detainer CANNOT BE JOUNED in other causes of action.
They are governed by special rules like the summary procedure.
- If jurisdiction is dependent on the amount involved, the test shall be the AGGREGATE
SUM exclusive of interest, cost and irrespective of whether or not the causes of action
are owned by or due to different parties.
- In cases where the claim for damages is the main cause of action, the amount
of such clam shall be considered in determining jurisdiction
- The defendant cannot file a counterclaim and then file a separate action for such
claim.
- Misjoinder is not a ground for dismissal. It may be severed and proceeded with
separately
- Joinder is merely permissive not mandatory
- If merely an agent and did not impleaded the real party in interest - DISMISSIBLE
- Court may order the party to implead the RPI at any stage
- But if despite the order plaintiff fails, court may dismiss motu proprio
- The need to give the resident mammals legal standing has been eliminated by the
rules. Filipino citizens are allowed as steward of nature to bring a suit to enforce our
environmental laws.
- Even if the principal authorizes the agent, the action must still be filed in the name of
the principal party / RPI
- A party who does not have a juridical personality cannot sue. but members may sue
individually
- When husband and wife defends his/her separate property, they may sue alone
- Damages pertain to the conjugal partnership hence the husband mis be joined a
party
- If abandoned by husband or living separately, wife may sue alone
- If not sued jointly, it may be corrected because it is merely a formal and procedural
defect. May be corrected at any stage
- Dismissed only if after refusal to the order of the court to properly implead.
- If solidary, creditor may proceed on any of them
- In partition in coownership,all co owners must be impleaded because they are RPI
CLASS SUIT
- REQUISITES:
1 Common or general interest to many persons
2. Persons are so numerous that it is impractical to bring them in court
3. Parties before the court are sufficiently numerous and is represented so that all
interests concerned are fully protected
Foreign corporation
- Legally engaged in business in PH - May sue and be sued in PH
- Illegaly engaged, it cannot sue but may be sued.
- Not engaged, may sue in our courts on a single isolated transaction but CANNOT BE
SUED.
- If no juridical personality, can be sued in the name generally known BUT CANNOT SUE
ON THAT NAME. Only in their individual capacities
- If the public officer does not manifest interest to continue, the court shall dismiss
- In any transfer of interest, it may be continued against the original party unless court
directs the person to be substituted.
-
- Survives: if principally property and property rights
- Does not survive: if injury complained of is to the person. The property and rights or
property are merely incidental
- Place where an action must be instituted and tried. It is a place of trial or geographic
location in which an action or proceeding should be brought.
- Waivable and is procedural in nature.
- May be agreed to by parties.
- Forcible entry or unlawful entry - Filed within the place where the property involved or
a portion thereof is situated.
- If personal action - place where the plaintiff resides or place where the defendant is
residing at the election of the plaintiff.
- Non resident defendant- Where he may be found
- An action to recover the deficiency after the extrajudicial foreclosure of the real
property mortgage is a PERSONAL ACTION.
- The stipulation designating exclusive venues should be strictly confined to the specific
undertaking or agreement.
- If lacking of restrictive words to indicate exclusivity, it is merely an additional venue.
- Agreements to venue which are oppressive when it works injustice or deny the parties
concerned access to court by reason of poverty it is void and unenforceable for it is
contrary to public policy
- Venue is deemed waived if the defendant files a motion to lift an order of default
- Agreement is valid only to venue not to jurisdiction.
- In corporation, the place of business is considered the residence. The residence of its
officer is not the residence of the corporation. A corporation cannot be allowed to
file a personal action in a place other than its principal place of business
- Principal parties should be the basis
- Libel case: RTC of the province or city where the libelous article is printed and first
published or when he holds office when the complainant is a PUBLIC OFFICER
- Anti fencing - place where the robbery or theft has committed.
- Court cannot dismiss motu proprio a case for improper venue
- Must be invoked in MD before filing an answer or may be invoked as an affirmative
defense if waived
CRIMINAL CASES:
1. Violations of traffic laws, rules and regulations
2. Violations of rental laws
3. Violations of municipality or ordinances
4. Not exceeding 6 months or fine not exceeding 1k
- All pleadings shall be verified. If failed, same can be cured. defect is merely formal.
- The court in SumPro may dismiss outright on any ground apparent therefrom for
dismissal of a civil action.
- Answer shall be filed within 10 days from the service of summons
- Affirmative and negative defenses are deemed waived if not pleaded in the answer
EXCEPT: LACK OF JURISDICTION OVER THE SUBJECT MATTER
- If no answer, the court may render judgment moto proprio or on motion of the
plaintiff
- There was an ejectment suit, defendant moved to hold in abeyance the Preliminary
conference until the case of specific performance has been terminated. The MTC
granted the motion. Appeal was made in RTC. Motion to dismiss was filed for it was
interlocutory order. RTC Denied. CA allowed the appeal from the interlocutory order.
In situation wherein a summary proceeding is suspended indefinitely, a petition for
certiorari alleging GAD may be allowed. It will give spirit to the Rule on sumpro. THIS IS
TO FILL THE PROCEDURAL VOID. In fact the appeal could be treated as a petition for
certiorari under Rule 65(Azucena Go vs CA)
- An extension of time to file an answer is dilatory in nature. Motion for extension is a
prohibited motion.
- Preliminary conference shall be held not later than 30 days from the filing of the last
answer
- If plaintiff fails to appear, the case can be dismissed
- If defendant appears and no appearance on the part of the plaintiff, the former shall
be entitled to judgment on his counterclaim. All cross claims shall be dismissed.
- If sole defendant fails to appear, the plaintiff shall be entitled to judgment as may be
warranted by the allegations in the complaint.
- THE RULE DOES NOT APPLY IF THERE ARE TWO OR MORE DEFENDANTS WHO ARE
SUED UNDER A COMMON CAUSE AND HAVE COMMON DEFENSE.
- The court shall decide the case within 30 days after receipt of the proper affidavits
and position papers.
- Judgment shall be rendered within 15 days after receipt of the LAST CLARIFICATORY
AFFIDAVITS.
CRIMINAL CASE:
- There is preliminary conference in criminal cases
- Refusal or failure to stipulate shall not be taken against the accused.
- Failure of witness to appear shall cause his affidavit to be considered as not
competent evidence
AFTER AN ANSWER HAS BEEN FILED, A MOTIN TO DISMISS CAN BE ALLOWED. This is
because there would no longer be delay
- The complaint must contain a concise statement of the ultimate facts constituting
plaintiff’s cause of action
- Ultimate facts - important and substantial facts which either directly form the basis of
the plaintiff’s primary right or duty or directly make up the wrongful acts or omission.
- Documents attached to the pleadings then admitted need not to be introduced as
evidence.
- Defenses of a party are alleged in the answer
- An answer must be responded by a reply
- Negative defense is the specific denial of the material fact or facts alleged in the
pleading.
- Compulsory counter claim - one which being cognizable by the regular courts arises
out of or is connected with the transaction or occurrence constituting the subject
matter of the opposing party’s claim and does not require adjudication. Such
counterclaim must be within the jurisdiction of the court as to the amount AND nature
except before the RTC (Regardless of the amount).
4. Logical relation
REPLY
- if no reply, deemed controverted
- Ancillary only and It should be within the jurisdiction of the court where in it is filed.
- Wrote a letter to the court stating his position in the suit - sufficient as an answer
(Cayetano vs Caguerra)
- EXC: It may be signed for and in behalf of the corporation BY A LAWYER who has
personal knowledge of the facts required to be disclosed. A resolution was sufficient
to vest such lawyer with the authority to bind the corporation (BA Savings bank vs
Sia)
- Filed a petition. and there was a subsequent filing of CNFS. The slight delay in the filing
should not defeat the action. It cures the defect. Substantial compliance is sufficient
- Non submission of affidavits attached to the position paper is not a fatal defect
considering that the position paper was verified.
- CNFS is not necessary in motion for extension or criminal cases and distinct causes of
action
- A filed a complaint for damages for the negligence of the UST Hospital. UST filed a
counterclaim for moral and exemplary damages and unpaid hospital bills without
CNFS
- For Moral and exemplary damages, NOT INITIATORY. NO NEED FOR CNFS
- For unpaid hospital bills - there is a need for CNFS. Initiatory. Permissive
counterclaim. (UST HOSPITAL VS SULA)
- If spouses or parties have common rights, only one may sign the CNFS
- A party may set forth two or more statements of a claim or defense alternatively or
hypothetically. The pleading is not made insufficient by the insufficiency of one or
more of the alternative statements
- Condition precedent may be averred in general
- Fraud, mistake or condition of the mind must be averred with particularity
- Malice, intent, knowledge or other conditions of the mind - general
- HOW TO PLEAD AN ACTIONABLE DOCUMENT:
1. Substance of such document shall be set forth in the pleading AND
2. Original or copy shall be attached.
ACTIONABLE DOCUMENT:
- Not merely evidentiary
- Deemed admitted unless specifically denies under oath BUT IT DOES NOT APPLY if the
adverse party does not appear to be a party to the instrument or when compliance
with an order of inspection of original instrument is refused.
- admission of genuineness and execution: Effectively eliminated any defense relating
to the authenticity and due execution of the document. NO NEED TO AUTHENTICATE
- Mere statement that they specifically deny does not constitute a specific denial.
- The Marcoses alleged that they have no knowledge of information sufficient to form
a belief as to the to the truth of the allegations in the complaint . The court held that
they were signatories to such bank accounts and such denial was not done in good
faith. Hence it is akin to a negative pregnant which means denial pregnant with
admissions. (Republic Vs Sandiganbayan)
- An answer should be admitted where it has been filed before the defendant was
declared in default and no prejudice has been caused to the plaintiff
- Default orders should be avoided even if there is late filing of an answer. A
declaration of default should not issue unless claiming party asked for it.
- The court cannot motu proprio declare a party in default.
- MOTION FOR DECLARATION OF DEFAULT with proof of failure by the defendant to file
a pleading despite proper notice
- There should be notice to the defendant first
- EFFECTS OF DEFAULT:
1. Waived not only his opportunity to contest the evidence presented
2. Waived right to present evidence in support of a valid defense.
- PARTIAL DEFAULT: Common cause of action against several defending parties, some
answered and some failed - The court shall try against all upon the answers filed and
render judgment upon the evidence presented.
: does not apply to Truck driver and insurer (quasi delict and contact)
- Substantial amendments may be made only upon LEAVE OF COURT but such leave
of court may be refused if it appears that the motion is intended for delay
- Amendment may substantially alter the cause of action provided that the
amendments sought to be made shall serve higher interest and prevent delay
(Philippine ports authority vs Gothong)
- If motion to dismiss was filed, MAY STILL AMEND AS A MATTER OF RIGHT. MD is not a
responsive pleading.
- X filed a complaint. Y filed an answer. X has not yet filed a reply. Y has a right to
amend his answer before a reply.
- After the dismissal, the motion for leave to amend may still be admitted for as long as
the dismissal has not yet become final.
- Amendment to the complaint prior to the filing of the answer may introduce new
causes of action.
- If the court has already acquired j over the person, NO NEED FOR NEW SUMMONS.
- Judgment may still be rendered not on the basis of the issued alleged but on the
basis of the issues discussed and proved in the course of the trial. The failure of the
private respondent to amend their pleadings in order to conform to evidence will not
at all affect the result of the trial.
- If in the face of the complaint the court has no jurisdiction, amendment should not
be allowed. BUT if no answer or MD filed, original complaint can still be amended a s
matter of right.
- Mandamus is the remedy of matter of right and was refused.
- If no objection, treated in all respects as if it had been raised in the pleading.
- With objection, must amend to conform to evidence and may be admitted where its
admission will not prejudice him.
- Lack or prayer for a specific relief will not deter the court from granting that specific
relief.
- Supplemental pleadings - only supply deficiencies in aid of an original complaint.
Refers to transactions, occurrences, events which have happened since the date of
the pleading sought to be supplemented.
- Failure to answer in a supplemental pleadings - DEFAULT MAY BE ORDERED.
- Within 15 days after service of summons - FILE AN ANSWER and serve a copy to the
plaintiff
- If amendment is a matter of right - 15 DAYS after service of copy
- If not a matter of right - 10 Days from notice of order admitting the same
- If a party earlier filed an answer, it may serve as the answer to the amended
complaint if no new answer is filed. It applies to counterclaim, crossclaim, 3rd party,
complaint in intervention.
- Period to answer counterclaim and crossclaim - 10 DAYS
- Reply - 10 days from service
- Court may extend the time to plead provided it is filed before the lapse of the period
otherwise there is nothing more to extend.
- Admission of pleading filed out of time is in the discretion of the court
- 2 kinds of responsive pleadings: ANSWER AND REPLY
- If corporation and served summons thru a government office, 30 days will be
computed from the date IT RECEIVES the summon.
- If agent or officers in the PH, It should be filed within 15 days after service to them
- If new material allegations or causes of actions are introduced in the amended
complaint, the result is possible declaration of default or admission in the matters not
specifically denied under oath.
- There can be default except if the counterclaim is compulsory
- Reply is not mandatory. If no reply, the party is deemed to have controverted all the
maters alleged in the answer except when it is an actionable document.
- Motion for leave to admit answer attaching the answer should be filed.
- Any matter which is not averred with sufficient definiteness or particularity to enable
him to properly prepare for his responsive pleading
- Bill of particulars becomes part of the pleadings once accepted.
- BOP interrupts the period within which to file an answer but it should be no less than 5
days in any event.
- If granted, must be effected within 10 days from notice of the order unless different
period is fixed by the court.
- If non compliance, the court may order the striking out of the pleading or the portions
thereof.
RULE 13: FILING AND SERVICE F PLEADINGS, JUDGMENTS AND OTHER PAPERS
- Service may be made upon the counsel or the party himself if ordered by the court. If
not ordered by the court,
- Service must be effected at the given address of the lawyer
- How service is made:
1. Personally
2. Leaving a copy at his office with his clerk or with a person having charge thereof.
PERSONAL SERVICE:
1. Delivering personally a copy to the party or his attorney
2. Leaving it in his office with his clerk or with a person having charge thereof
3. Leaving a copy at the party’s or attorney’s residence, if known, with a person of
sufficient discretion to receive the same if no person is found in his office or if his
office is not known.
- Knowledge of the lawyer in the existence of order of execution is not the service
under rule 13. Telephone conversation with the sheriff is not enough.
- If sent by registered mail, there is a presumption that it was received in the regular
course of mail.
- Certification from the postmaster is the best evidence
- Service of ORDINARY MAIL is complete upon the expiration of 10 days after mailing
UNLESS THE COURT OTHERWISE PROVIDES
- Personal service must be prioritized. If cannot be resorted to, the party must have a
written explanation WHY SERVICE BY MAIL WAS RESORTED TO. Without such
explanation, there is no basis for the court to exercise such discretion. IT IS
INDISPENSABLE
- Affidavit of service is a substantial compliance.
- Jurisdiction, power, or control which a court acquires over property involved in a suit,
pending the continuance of the action and until the final judgment therein.
- Notice of lis pendens - Announcement to the whole world that a particular real
property is in litigation serving as a warning that one who acquires an interest over
said property does so at his own risk
- A writ of process issued and served upon the DEFENDANT in a civil action for the
purpose of securing his appearance therein.
- Clerk of court shall issue summons
- To acquire jurisdiction over the person
- If summons was wrongfully served, the case may not be dismissed because an alias
summons can be actually served on the defendant.
- Summons may be made at night as well as during the day or even on a sunday or
holiday because it is ministerial in character
- If nor accompanied by an affidavit settling forth the grounds for publication, court
does not acquire jurisdiction over the person
- If defendant cannot be served within a reasonable time, service may be effected:
a. Leaving copies of the summons at the defendants dwelling house or residence with
some person of suitable age and discretion then residing therein
b. Leaving copies at the defendant’s office or regular place of business with some
competent person in charge thereof.
- Substituted only if defendant cannot be served within a reasonable time. The sheriff
must make a report of his efforts to find the person and the fact that the such efforts
failed.
- Person who received must have a relation of confidence ensuring that the latter
would receive or would be notified of the summons.
- Cancellation of the entries in the record of birth is an action in rem. J Over person is
not necessary
- Explanation of the impossibility of personal service should be stated in the return. It is
an indispensable requirement before performing substituted service
- Extension of time is voluntary appearance. Waived the lack of j over person
- Proof of attempts to a resort to personal service may be submitted by the plaintiff
during the hearing of any incident assailing substituted service
- When persons associated in business are sued under a common name, service may
be effected upon all the defendants by serving upon ANYONE OF THEM or upon the
person in charge of the office or place of business
- Minor/ insane: Personally to him AND guardian per person exercising parental
authority
- Prisoners - Officer having the management of the jail or institution where he is
confined.
- In substituted, it is not necessary that the person in charge of regular place of business
is specifically authorized.
- PMGCTI may receive the service anywhere. No place designated by our law.
- Substituted service is not allowed in domestic corporation
- Service by publication in domestic corporation is improper where no diligent efforts
were made.
- If PH - Solgen
- If Local government - Executive head (mayor, governor)
- Unknown defendant or address is unknown - By leave of court, be made by
publication in a newspaper of general circulation - MAY BE APPLIED IN ANY ACTION
(In personal or in rem)
- Temporarily out:
1. Substituted service
2. Personal service outside the country with leave of court
3. Service by publication with LOC
4. In any other manner where the court deemed sufficient
3. Leave of court
- The proper recourse of the creditor in actions in personam is to locate the properties,
real or personal, of the defendant with an unknown address or is abroad and cause
them to be attached under Rule 57. which in this cases converts the action into a
proceeding in rem or quasi in rem by publication
- Publication in Metropolitan newsweek is not publication by law
- The courts cannot award for damages if it failed to acquire the jurisdiction over the
person of the defendant
- Inclusion of payment of the obligation as a ground is not voluntary appearance
- Filing of an answer - deemed to have waived the defective service of summons
- If a litigated motion, It must comply with the 3 day notice rule. ALL PARTIES
CONCERNED
- A motion that does not contain a notice of hearing is a mere scrap of paper even if it
is denominated as URGET
- If only served through ORDINARY MAIL, but was given full opportunity to be heard
and argue - CURED THE DEFECT
- Notice of motion is required where a party has a right to resist the relief sought by the
motion and principles of natural justice demand that his right be not affected without
an opportunity to be heard.
- If no notice of motion in Motion for recon, the running of the period to appeal is not
tolled by their filing or pendency
- If directed to the clerk of court - SCRAP. It must be directed to the parties.
- Denial of motion for postponement must not mean waiver of the respondent’s right
to cross examine the witness
- Omnibus motion’s exception: SLRP
- motion for leave to file a pleading must be attached by the pleading sought to be
admitted.
Omnibus Motion Rule - A motion attacking a pleading. All defenses not included are
deemed waived except SPLITRE
Complaint does not allege a cause of action. Evidence does not sustain the cause of action
alleged
Can be determined in the initiatory pleading The plaintiff has rested his case and can be
and not from the evidentiary or other matters resolved only on basis of the evidence he
aliunde presented to support the claim
- Action commences upon the filing of the complaint, not upon service of summons.
- When the court issued the writ of possession, it was merely exercising the ministerial
function of issuing the writ of possession.
- The action for declaratory relief should give way to the ejectment suit and it should
be raised in the unlawful detainer case because it may be used as a defense to the
action.
- Quieting of title and damages and annulment and cancellation of titles and
damages - litis pendentia.
- Three is no hard and fast rule in determining which actions should be abated on the
ground of litis pendentia
- When no earnest efforts to a compromise have been availed of, A motion to dismiss
on the ground of Lack of cause of action may ba available.
- Barangay conciliation - lack of cause of action
- Earnest efforts towards compromise to immediate members of the same family
applies only to civil actions not to special proceedings.
- Motion to Dismiss is granted Without notice of hearing - merely an irregularity
- MD must be filed before the answer or else deemed waived except non waivable
defenses
- A party declared in default may not file a motion to dismiss. But he may have the
right to appeal from the judgment without having filed a petition to set aside order of
default
- A party may file an answer of his motion to dismiss is denied within the balance of the
period to file an answer to which he was entitled to at he time of serving his motion
but NOT LESS THAN 5 DAYS IN ANY EVENT
- Denial of MD is interlocutory hence the remedy is to file an answer, proceed to trial
and await judgment. EXCEPT if there is GAD - RULE 65 Certiorari
- If dismissed on the following grounds, it shall be barred from refiling the same action
but they may still appeal because it is a final order
1. Res Judicata
2. Prescribed
3. Payment, waiver, abandonment or extinguishment
4. Unenforceability under statute of frauds
- The dismissal of the complaint on the grounds relied upon as affirmative defenses but
which are ground for motion to dismiss shall be WITHOUT prejudice to protection in
the same or separate action of a counterclaim pleaded in the answer.
- An action may be dismissed by the PLAINTIFF without court order by filing a NOTICE
OF DISMISSAL at any time before service of the answer or of a motion for summary
judgment. ( matter of right)
- Filing of motion for the dismissal of the action by the plaintiff at any stage OTHER
THAN as a matter of right (Discretionary)
- If defendant filed a Motion to dismiss and plaintiff filed a notice of dismissal, Deemed
dismissed. Because it is a matter of right. Court has no choice but to dismiss.
- If dismissed twice by the plaintiff - WITH PREJUDICE = operates as an adjudication
upon the merits.
- Two Dismissal rule - The same complainant had twice been dismissed by the
PLAINTIFF by mere act of serving Notice of dismissal. Second dismissal operates as an
adjudication upon the merits - WITH PREJUDICE. CANNOT BE REFILED.
- If fails to appear to trial, failure to prosecute for a long period of time, Comply with
the rules of court, It may be dismissed by motion of defendant or by court and it is
WITH PREJUDICE unless court states otherwise. ALSO IF UNQUALIFIED - WITH PREJUDICE
- Remedy is to file a notice of appeal Rule 41 applies
- Non statement of reasons for dismissal for failure to prosecute is patent void on its
face.
- Without prejudice means absence of a decision on the merits and may refile
- Failure of the plaintiff to appear not the absence of his lawyer is a ground for dismissal
- Postponed for several times at the instance of the plaintiff - failure to prosecute
- Failure to appear must be on the trial not on a mere instance
- Failure to file an opposition is considered failure to comply with the order of court
- Failure of the parties to file compromise agreement is not a ground
- The dismissal of the complaint does not ipso sure result in the dismissal of the
counterclaim and the latter may remain for independent adjudication of the court
provided that such counterclaim states SUFFICIENT CAUSE OF ACTION, and does not
labor under any infirmity that may warrant its outright dismissal
- After the last pleading has been served and filed. Plaintiff shall promptly move expert
that the case be set for pre trial
- Pre trial is mandatory
- Notice of pre trial shall be served on counsel or on the party who has no counsel
- Notice of pre trial shall be served SEPARATELY on the counsel and the client
- If only on the counsel, the notice must expressly direct the counsel to inform the client
of the date, time and place
- Absence of notice renders the proceedings void and the judgment be rendered
therein cannot acquire finality and may be attacked directly or collaterally
FAILURE TO APPEAR:
- Plaintiff - The same shall be a cause for dismissal of the action which shall be with
prejudice
- Defendant: Cause to allow the plaintiff to present his evidence ex parte and the court
shall render the judgment on the basis thereof
- Failure to file the pre trial brief shall have the same effect as if failure to appear in PT
- Pre trial brief - filed at least 3 days before the date of pre trial
- After pre trial, the court shall issue pre trial order
- Contents of the pre trial order shall control the subsequent cause of the action but it
is not absolute. it may not do so in the interest of justice
- If contract provides that parties shall first resort to arbitration, if the case is already
filed, the court shall STAY the proceedings and pursue to arbitration
Any person who has legal interest in the matter in litigation or in the success of either of
parties or an interest against both or is so situated to be adversely affected by a
distribution or other disposition of property in the custody of the court or an officer, with
leave of court be allowed to intervene in the action.
REQUISITES:
1. Legal interest in the matter in controversy
2. Legal interest in the success of either parties
3. Legal interest against both
4. Adversely affected by distribution or other disposition
5. Not unduly delay or prejudice
6. Intervenor’t rights may not be fully protected in a separate proceeding
- Intervention shall be filed anytime before rendition of judgment by the trial court.
- Intervention is merely an ancillary action
- Intervention may be made after trial but before judgment.
- Surviving legal spouse and the legitimate child of the decedent were allowed to
intervene in the intestate proceedings even after the parties had already submitted a
compromise agreement.
- The intervenor may file a complaint-in-intervention (if unites with the plaintiff) or
answer-in-intervention (if unites with the defendant)
- The answer in complaint-in-intervention shall be filed within 15 days from notice of
order admitting the complaint-in-intervention unless fixed by the court.
- Intervention is a collateral or accessory action. If original action is dismissed,
complaint in intervention can no longer be acted upon
- There can be intervention in the probate of will
- Remedy if intervention is denied - APPEAL.
- Denial of intervention is not res judicata to another action
- If failed to answer in complaint-in-intervention, NO DEFAULT
- If Motion to intervene is granted, Parties may file for Certiorari. It is merely an
interlocutory order
- Process directed to a person requiring him to attend and testify at the hearing or the
trial of an action or at any investigation conducted under the laws of the PH or for
taking of his deposition. It may also require him to bring with him any books,
documents, or other things under his control
- The court may QUASH in any event at or BEFORE THE TIME SPECIFIED IN THE SUBPOENA
DUCES TECUM if unreasonable, oppressive, not relevant or fails to advance the
reasonable cost of production.
- Subpoena Ad Testificandum - may quash if witness is not bound thereby
- They may also be quashed if the fees or kilometrage allowed by the rules were not
tendered
- The Subpoena is served by exhibiting the original and a copy thereof shall be
delivered to the person named therein tendering him the fees for one day’s
attendance and the kilometrage allowed by the rules
- EXC: When issued on behalf of the RP or officer or agency, tender may not be
made.
- A witness is not bound to attend before any court, judge or officer if he resides more
than 100 KILOMETERS from his place of residence to the place of trial by usual course
of travel.
- If detention prisoner, permission of the court in which the case is pending must be
obtained.
- If beyond 100 km or no permission of the court in detention prisoners, person cannot
be bound to appear. (ONLY TO CIVIL CASES)
- The First day is excluded and last day or day of performance is included.
- If the last day falls on a Saturday, Sunday or legal holiday, the time shall not run until
the next working day
- Same as Article 13 of the civil code
- Any extension to file the required pleading shall be counted from the expiration of
the period regardless of the fact that it is sat, sun or legal holiday.
- Should there be an act done which interrupt 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
KINDS OF DEPOSITIONS:
1. Deposition de bene esse - One taken pending action
2. Deposition in perpetua rei memoriam - one taken prior to the institution of an
apprehended or intended action
- Substitution of parties does not affect the right to use depositors previously taken
- When an action has been dismissed and another action is afterwards brought
between the same parties or their representatives or successors in interests, all
depositions lawfully taken and filed in the former action may be used in another
action with same subject matter
- Objections to the depositions must be made at the trial or hearing but errors or
irregularities of any kind which might have been obviated, cured or removed if
promptly presented are waived unless reasonable objection is made at the taking of
the deposition.
- A party shall not be deemed to make a person his own witness for any purpose by
taking his depositions. He may or may not use his depositions
- It may be taken before any judge or a notary public
- If foreign country: secretary of embassy or legation, Consul general, Consul, vice
consul, consular agent, any person or office as may be appointed by the
commission.
Letters Rogatory - request to a foreign court to give its aid baked by its power to secure
desired information.
- Leave of court is not needed when deposition is taken before secretary of embassy
- If no sec of embassy, it may only be taken by means of appointment by commission
or by letter rogatory
- Court may issue orders after notice is served to protect the rights of the party or the
deponent
- Deposition shall be made under oath
- Parties may stipulate in writing on another or different procedure
- Court may allow deposition if it is conducted in bad faith or in such a manner as to
annoy, embarrass, or oppress the person subject of the inquiry
- The availability of the proposed deponent to testify in court does not constitute good
cause to justify denial.
- Depositions is not meant to be a substitute for the actual testimony in an open court.
- Right to take and right to use in deposition is different.
- If available to testify, deposition is not admissible in evidence (use) but in terms of
taking, availability is not a ground for its denial (taking)
- BUT IT IS NOT ABSOLUTE: Depositions may be used without the deponent being called
to the witness stand provided conditions are made:
1. Witness is dead
2. Witness resides at a distance more than one hundred kilometers from the place of
trial or hearing
3. out of the PH
4. Unable to attend because of age, sickness, imprisonment or infirmity
5. unable to procure by subpoena
- Act of participating and even cross examining the deponent during the taking of the
deposition cannot be considered a waiver of the right to object to its admissibility as
evidence in the trial court.
- Inadmissibility of the deposition makes it hearsay
- A person who desired to perpetuate his own testimony or that of another person
regarding any matter that may be cognizable in any court of the PH may file a
VERIFIED PETITION in the court of the province of the residence of any expected
adverse party.
- Notice shall be served on each person named at least 20 days before the hearing
- If court is satisfied that the perpetuation of the testimony may prevent a failure and
delay, it shall make an order designating or describing the persons whose deposition
may be taken.
- It may be served :
1. Leave of court after jurisdiction has been obtained over the defendant or over
property which is the subject matter
2. Without leave after an answer has been served.
- It shall be answered separately and fully in writing and under oath, signed by the
person making them and served.
- Objections may be presented within 10 days after service
- GR: A party not served may not be compelled by the adversary party to GIVE
TESTIMONY in open court or to give depositions pending appeal.
- EXC: Allowed by court for good cause shown to prevent failure of justice
- Modes of discovery is not mandatory
- In civil case, witness is not allowed if no written interrogation is served
- Presumption that if no written interrogatories, The witness will be unable to elicit useful
facts
- A written request for admission may be served upon a party at any time AFTER the
issued have been joined
- A reply to the request shall be served upon the party making the request within the
period designated in the request which SHALL NOT BE LESS THAN 10 DAYS after service
or within such further time as the court may allow
- Reply shall be in a form of sworn statement
- If party refuses to make a reply to a request for admission, each matter of which is
deemed admitted.
- If deemed admitted, the party may file summary judgment
- If already denied, and a party sent a request for admission of factual allegations, and
failed to reply, it is not deemed admitted for it was already denied.
- If request for admission is served upon a lawyer, not deemed sufficient compliance
because when a law expressly states that notice must be served on a particular
person, it shall be followed. Thus requests shall only be served upon the party himself.
- Admissions made pursuant to request may be withdrawn or amended either
expressly or impliedly under terms that are just
- If request for admission is mere reiteration of the material allegations, No need to file
an answer.
- Failure to file and serve requests for admission, the party shall bot be permitted pre
present evidence of such facts UNLESS allowed by court.
REQUISITES:
1. Motion filed showing good cause
2. Notice to all parties
3. Sufficiently describing the document
4. Contains material evidence
5. Not privileged
6. Possession or control of adverse party
- Examination before a competent tribunal of the facts or law put to issue in a case for
the purpose of determining the issue
- If parties agree in writing on the facts involved in the action, they may ask the court
to render judgment without introduction of evidence
- Agreed statement of facts may be basis of judgment
- Notice of trial shall be received 5 days before the date itself
It is proper if:
1. Two or more actions involving same or common Question of law or facts
2. pending before the same court
- No period to consolidate because it may be done even first time pending appeal.
- Court may also order separate trial to avoid prejudice
Powers by commissioner:
Court may order specifying or limiting the powers like:
1. Report on particular issue
2. do or perform particular acts
3. Receive or report evidence only
4. May issue subpoena and swear witness
- Clear violation of due process if no notification for the submission of report and
without setting it for hearing
- The commissioner’s report is not binding upon the court. The court is free to adopt,
modify, reject it.
- The parties however may agree that the findings of the commissioner shall be final
and binding to them. The court shall consider only questions of law arising from the
report.
- Clerk of court may be ordered to become a commissioner and receive evidence
and make a report
- Defect is procedural and may be waived. If party objects thereto, he must do it on
time and in trial.
Motion to dismiss filed by the defendant after the plaintiff had rested his case on the
ground on INSUFFICIENCY of evidence
- Filed after presentation by plaintiff of the evidence
EFFECTS:
1. Defendant does not waive his right to offer evidence in the event the motion is
denied.
2. If motion is granted and order is revered upon appeal, the movant loses the right to
present the evidence on his behalf.
In criminal case:
- IF WITH LEAVE OF COURT - If court denies the motion, the accused may adduce
evidence
- NO LEAVE OF COURT - waives his right to present evidence and submits the case for
judgement on the basis of evidence of the prosecution.
- When an answer fails to tender and issue or otherwise admits the material allegations
of the adverse party’s pleading
EFFECTS:
1. If done without offering proof as to the truth of his own allegations and without
giving the opposing party an opportunity to introduce evidence - Understood to
admit all the material allegations of the opposing party
2. Considered waived his claim for damages and to have consented to such
judgment
3. Allegations as to the amount of damages are not deemed admitted even if not
specifically denied
Answer does not tender an issue There is an issue tendered by it is not genuine or
real as may be shown by affidavits and
depositions that there is no real issue
Defendant answered but did not tendered an Defendant did not file an answer
issue
- Judgment may be validly rendered on issues not alleged in the pleadings if evidence
thereto is presented with the express and implied consent of the adverse party
(Jacinto vs CA)
- The order granting the motion for summary judgment and its execution despite the
absence of notice of hearing is merely an IRREGULARITY. Remedy is to set aside
otherwise cured by the court.
- Summary judgment is proper if counterclaim claims for a sum of money larger than
that demanded in the complaint provided that it is valid counterclaim
- Motion shall be served at least 10 days before the time specified for hearing. After
service of motion for summary judgment, the adverse party may serve opposing
affidavits at least 3 days before the hearing
GENUINE ISSUE - issue of facts which call for the presentation of evidence.
- Where the facts pleaded by the parties are disputed and contested, proceedings for
summary judgment cannot take place
- Allegation of foreign laws, it must be presented in court. thus SJ is not proper
- SJ is proper when there is failure to deny under oath the genuineness and due
execution of the actionable document.
- Failure to deny statement of accounts does not entitle SJ. There is a need to prove
the actual damages
- In a suit for the recovery of money where defendant admitted the liability and just
checking the correctness, SJ may be rendered.
- If plaintiff agreed to waive all other claims, and only the amount of compensation is
disputed, SJ is proper.
- Partial judgment is valid. Such judgment is interlocutory
- After rendering summary judgment, it shall proceed to assess the amount of
damages.
- If submission of Affidavits in bad faith, Court may order to pay reasonable expenses
including reasonable attorney’s fees and may be guilty of contempt
- No need for trial if SJ is filed properly
- SJ is not applicable to marriage (annulment or LegSep)
- Remedy: APPEAL because it is a final order. But if there is already a writ of execution,
Certiorari is more appropriate.
- Shall be in writing, personally and directly prepared by the judge stating clearly and
distinctly the facts and the law which it is based.
- EXC: Not absolute because if it is merely an Interlocutory order or it does not
dispose the case on the merits, it does not need to comply with the requirement
- Filing with the clerk of court constitutes rendition of judgment not its signing
Obiter Dictum - an opinion expressed by a court upon some questions of law which are
not necessary to the decision of the case before it.
- If decision does not state the reason or basis for the same it is void.
Interlocutory - if it leaves something else to be done by the trial court on the case or if it
does not terminate or does not finally dispose the case
- There is a need for notice duly served on the parties whether final or interlocutory
- Conditional judgment is void.
- Sin Perjuicio or one that makes reservation in favor of some parties as to their right to
do something in a separate and further proceedings is not binding and void.
- A court cannot reserve the right of a party to file another action EXCEPT when
granted the power to give an order without prejudice.
- If reserved the right to file another action and is not granted - Erroneous
- Judgment based on compromise has the force of law and is conclusive upon the
parties. It has the effect of res judicata. It cannot be amended or modified and it
cannot be disturbed except for vices of consent or forgery
- The date of finality of the judgment shall be deemed the DATE OF ENTRY
- Date of entry is the reckoning point for the reglementary period of 5 years for
execution or 6 months for relief from judgment.
- A third person who is not privy to a case may join a compromise and may submit to
the jurisdiction of the court
- Void judgment has no legal effect except when Doctrine of Operative facts is
applicable.
Mittimus - Final process for carrying into effect the decision of the appellate court and
the transmittal to the court a quo. It is predicated upon the finality of the judgment,.
- The court may change its decision or even make a new one before the lapse of
period to appeal or before it becomes final and executory
- Final judgment can be changed, modified or altered as an exception if: there is a
supervening event or when it is necessary to attain the aims of justice.
- LOT 1898 was the subject matter. The dispositive portion ordered the reconveyance
of LOT 1868. It became final and executory. Despite finality, the court amended to
conform to evidence. It was allowed. If the amended was intended to clarify an
ambiguity caused by an omission or mistake in the dispositive portion of the decision,
it may be allowed to amend even finality. Since Lot 1868 was not the subject of the
controversy, the amendment was clerical, harmless and typographical. Hence there
was nothing whimsical. capricious in the action of the court to amend (Baguio vs CA)
- Court may clarify judgment even if it is final and executory but it can only interpret
the ambiguity
- Judgment may be for or against one or more of several plaintiffs and for or against
one or more several defendants.
- Remedy of party in several judgment is APPEAL.
- Several judgment means Separate judgment.
- Court may render several judgment if the interests of the defendant are SEPARATE
and Severable.
- Several judgment is not applicable if there is common cause of action.
- If partial judgment on May 14 and another one in June 2, Reckoning period for
appeal of the judgment is on June 2. It is merely interlocutory on May 14
GROUNDS FOR MR
1. Damages are excessive
2. Evidence is insufficient to justify the decision of final order
3. Decision or final order is contrary to law
Available after either or both parties have Proper after the rendition of a judgment
rested their case but before judgment.
Filed before the order becomes final and Filed after the finality of the judgment or order but
executory within the so called 60 day, 6 months period
Extrinsic Fraud - fraud committed by the prevailing party outside of the trial of the case
which prevents a party from having his day in court
Intrinsic Fraud - Use of forged instruments or perjured testimony which did not affect the
presentation of a case.
6. It will not be granted if the only object of the testimony is to impeach the character
of the witness
- Rule that Second Motion for new trial is not absolute. The prohibition applies only to
Final judgments and NOT TO INTERLOCUTORY ORDERS.
- Pro Forma Motion - merely reiterates the evidence presented. It does not suspend the
period granted by law for perfecting an appeal.
- If it did non specifically describe the evidence, it is merely a pro forma motion
- If the newly discovered evidence is a witness, he should submit an affidavit
- If document, authenticated copy of the document
- If MR is denied, remedy is appeal
- A party may validly appeal from the judgment and at the same time file a petition for
certiorari against the order denying the motion for new trial.
- Affidavit of merits- one which recites the nature, character of FAME on which the
motion is based. It is submitted to enable the court to determine the claim of movant
- It may be filed in the same court where the original judgment was rendered.
- PERIODS FOR PETITION FOR RELIEF FROM JUDGMENT ( TWO PERIODS MUST CONCUR)
1. Within 60 days after petitioner LEARNS of the judgment
2. 6 months from entry of such judgment
- Both periods are non extendible and never interrupted and jurisdictional
- Last chance to question a final judgment
- Any court means RTC AND MTC. NO RFJ IN SC OR CA (MESINA VS MEER)
- It must be accompanied with affidavit of merits
- Petition for RFJ is applicable to order of execution. Reckoning period is the service of
writ of execution
- A party MAY waive his right to apply for vacation of the judgment by appealing from
it or instituting an independent action for same purpose
- Judgment is entered on the date it becomes final and executory
- Judgment based on compromise is entered immediately since it is final and
unappealable.
- EXCEPTION to period: Allowed on grounds of equity especially so that he has already
presented evidence.
- Only upon judgment or order that finally disposes of the action or proceeding
- When appealed to CA, Execution may be applied in the court where it originated.
- Final - Leaves nothing else for the court to do. Finally disposes
- The dispositive part is the only portion of a decision that becomes subject of
execution
- Dispositive portion prevails over the body
- Court may clarify judgment
- Amendment by order Nunc Pro Tunc - Make present record of an order which the
court made at a previous term, but which was not then recorded. Not entered
because of inadvertence. It is non amendment of judgment
- Once the judgment became final, It cannot anymore amend it
- If final, only clerical may be amended
- A judgment for support may be amended anytime. Interlocutory order may be
amended anytime
- Partial judgment is not a final judgment
- Execution shall issue as a matter of right upon the expiration of the period to appeal;
- If there is change in the relationship between the parties, execution cannot be done
- Execution of any award for moral and exemplary damages is dependent on the
outcome of the case. actual damages is fixed or certain. No execution pending
appeal in moral and exemplary
- if good reason is not stated in special order, still valid provided that it is written
elsewhere
- Judgments in actions for injunction, receivership, accounting and support are
immediately executory. They cannot be stayed by appeal
EXECUTION OF JUDGMENT
- May be execution on MOTION within 5 years from the date of its ENTRY
- After lapse of 5 years, It may be enforced in an ACTION FOR REVIVAL OF JUDGMENT
within 5 years from its entry
- If barred by prescription, FAILURE TO OBJECT WILL NOT VALIDATE
- Ejectment cases - immediate execution
- If levy happened within 5 year period, levying it on the 6th year is still valid
- Execution or revival are not meant to retry the case. Only to execute
- Execution for support does not prescribe. Continuous
- RTC HAS JURISDICTION OVER PETITION FOR REVIVAL OF JUDGMENT - Incapable of
pecuniary estimation
- PETITION FOR REVIVAL OF JUDGMENT MUST BE FILED WITHIN 10 YEARS FROM ENTRY OF
JUDGMENT or else prescribed. It can be executed within 5 years from its entry
- If property levied is claimed by any person other than the judgment obligor or his
agent,Such party may file a Terceria. He may make an affidavit of his title or right of
possession and serve it to the officer making the levy and a copy to the judgment
obligee. The officer shall not be bound to keep the property unless the judgment
obligee files a bond as ordered by the court.
- Sherif is not liable for damages if he keeps the property to third party claimant if such
party files a bond not less than its value
GR: No court has power to interfere by injunction with the judgment of equal courts
EXCEPT: When there is third party claimant (terceria)
In either case, JFO may be repelled by evidence of want of jurisdiction, want of notice
to the party, collusion, fraud or clear mistake of law or fact
- Void judgment cannot be invoked as res judicata but voidable is res judicata
- As an exception, dismissal which by express provision of rules have effect of
adjudication to the mertis, it is RES JUDICATA
- Lack of interest or failure to prosecute is res judicata
Bar by prior judgment -If all the three identities of parties, subject matter and cause of
action are present
Conclusiveness of Judgment - Conclusive only to matters that are actually litigated and
adjudged in the first action
-When does the court lose jurisdiction BY NOTICE OF APPEAL: upon perfection of appeal
except Residual powers.
Doctrine of Residual Powers - prior transmittal of the original record to the appellate
court, the trial court RETAINS jurisdiction on:
1. Issue orders for the preservation of the rights of the parties which do not involve any
matter litigated by appeal
2. Approve compromise prior to the transmittal of records
3. Permit appeals by an indigent
4. Order of execution PENDING APPEAL meaning that the motion for execution was
filed before the expiration of period of appeal
5. Withdrawal of appeals
- IF APPEAL HAS ALREADY BEEN PERFECTED AND COURT HAS ALREADY LOST ITS
JURISDICTION BUT BEFORE TRANSMITTAL OF THE RECORD.
- It may be done before the CA gives due course to the Petition for review
- In petition for review, the cutoff period when the court may no longer exercise
residual jurisdiction is BEFORE CA GIVES DUE COURSE TO THE PETITION.
When does the court lose jurisdiction BY RECORD ON APPEAL: upon the approval of the
record on appeal and expiration of the time to appeal of the other parties
- Shall pay the appellate court docket fee within the period for taking an appeal
- Failure to file memorandum of appeal may be a ground for dismissal
- Multiple appeals are allowed in:
1. Special proceeding
2. Recovery of property with accounting
3. Partition
4. Eminent domain
5. Foreclosure of mortgage
6. Order of Expropriation
GR: Judgment on appeal is binding only on the parties in the appealed case and does
not affect those who did not appealed.
EXC: If community of interests
- Available only to final judgment or orders that completely disposes the case.
- If appeal is not available: RULE 65 SPECIAL CIVIL ACTION FOR CERTIORARI
- ORDER of execution is not appealable but DENIAL of motion for execution APPEAL IS
PROPER
- Appeal to the CA in cases decided by the RTC in appellate jurisdiction shall be by
PETITION FOR REVIEW in accordance with Rule 42.
- In all cases where only questions of law are raised or involved, the appeal shall be to
the SC by PETITION FOR REVIEW with Rule 45
- In appeal, no trial de novo anymore.
- There can be no new parties
- If 2nd MR is filed, it does not toll the period
3. Appellate courts cannot reverse or modify decision as to those who did not appeal
EXCEPTIONS:
1. Trial court failed to award interests on damages
2. Exemplary damages and attorney’s fees were erroneously deleted
3. Clarifies award for damages
-Court may still dismiss an appeal after its perfection PROVIDED that the complete
record or record on appeal has not yet been transmitted to the appellate court
- Petition for review with the CA for appeal from decisions of RTC in exercise of
appellate jurisdiction
- He should pay docket fees and deposit Php 500 for costs and furnish adverse party a
copy
- A period for petition for review be extended upon proper motion and payment
before expiration of the period
- CA may grant a 15 day period and no further extensions may be granted except for
the most compelling reasons
- It is not only a judgment that may be questioned in petition for review but also order
denying motion for new trial
- CA may require the respondent to file a comment to the petition within 10 days from
notice
- In an unlawful detainer, if it is appealed in the RTC and affirmed in toto, it is
immediately executory. Petition for review does not stay the judgment
- If a court commits error of judgment remedy is appeal
RULE 43: APPEALS FROM THE COURT OF TAX APPEALS AND QUASI JUDICIAL AGENCIES TO
CA
PROCEDURE IN CA
RULE 44: ORDINARY APPEALED CASES:
- Within 10 days from receipt of the notice in appeals by record on appeal, the
appellant shall rule with the clerk of court 7 clearly legible copies
- Unauthorized alteration, omission or addition in the approved record on appeal is
ground for dismissal
- Within 45 days from the receipt of notice appellant shall file his brief
- In Prohibition, mandamus, Quo warranto, Habeas Corpus, the parties in lieu of briefs
shall file their respective memoranda within the unextendible period of 40 days from
receipt of the notice. Failure to file may be a ground for dismissal
- Petition shall not be acted upon without proof of service of a copy to the CA
Only questions of law may be raised Grave abuse of discretion or acted without or in
excess of jurisdiction
Appellants and appellees as petitioners and Respondent is the tribunal exercising judicial
respondents respectively function
- Period to file a petition for certiorari be extended on motion duly served with full
payment of the docket and other lawful fees. SC may for justifiable reasons grant an
extension of 30 days
- A petition for review on certiorari may be treated as one for certiorari under Rule 65
(Triste vs Leyte college)
- SC may consider a petition under Rule 65 as one filed under Rule 45 if it is filed within
the reglementary period for filing a petition for review
- SC has the option to take into account questions of fact raised taking into account
the attendant circumstances and decide the same
- SC may not review facts and evidence in a petition fore review on certiorari because
SC is not a trier of facts
- Proof of service that the LOWER COURT and adverse party has been served of the
copies is MANDATORY
- Service to lower court is equivalent to notice of appeal
- Within 5 days from the service of the petition or upon SC’s motion, petition may be
dismissed by the ground of:
1. Without merit
2. Prosecuted manifestly for delay
3. Too unsubstantial
- If given due course, SC may require the filing of pleadings or other documents
necessary
- Rule 45 is applicable both the civil and criminal cases except if the penalty imposed
is death, reclusion perpetrua or life imprisonment
- Certiorari is not available where the aggrieved party’s remedy of appeal is plain and
speedy in the ordinary course Certiorari cannot co exist with appeal or any other
adequate remedy. These remedies are mutually exclusive
Material Data rule - Material dates are required to be stated in the petition for certiorari
under rule 65
GROUNDS:
1. Extrinsic Fraud - WITHIN 4 years from DISCOVERY
2. Lack of jurisdiction - before it is barred by laches or estoppel
- Extrinsic fraud is not a valid ground if it was availed or could have been availed of in
motion for new trial or relief from judgment
- Since it is an original case, Motion to dismiss may be filed. There may also be trial
- The prescriptive period for the refiling of the aforesaid original action shall be
deemed suspended
- Prescriptive period shall not be suspended where extrinsic fraud is attributable to the
plaintiff
- An action to annul the judgment of the MTC shall be filed in RTC. It shall be treated as
an ordinary civil action.
- Rule 47 cannot be used to annul judgment in criminal case
- If appellate court finds material error in the proceedings, it should remand the case
for retrial. But if SC can resolve, remand is not necessary
- If appellee did not appeal, he can no longer seek for any affirmative relief
- Errors or defect that does not affect the substantial rights of the parties shall be
disregarded
- Promulgation of judgment - filing of the signed judgment with clerk of court
- The date when the judgment or final order became executory shall be deemed as
the date of entry
- A motion for execution may be filed only in the proper court after its entry except if
immediately executory
PROVISIONAL REMEDIES:
RULE 57: PRELIMINARY ATTACHMENT
- Provisional remedy issued upon order of the court where an order is PENDING to levy
upon the property of the defendant therein, the same to be held thereafter by the
sheriff as security for the satisfaction of whatever judgment might be secured in said
action
Classes of attachment:
1. Preliminary attachment - one that is issued upon the institution of a action which
can be dissolved anytime.
2. Garnishment - plaintiff seeks to subject his claimed properties of the debtor in the
hands of a stranger.
3. Levy on execution/final attachment -Issued after trial and final judgment to satisfy
an obligation
- garnishee has no choice but to obey and it is in the form of an involuntary novation
STAGES IN ATTACHMENT
1. Order granting the application where there is no need of jurisdiction over the person
of the defendant because the issuance is ex parte
2. Issuance of the writ
3. Implementation where the law requires jurisdiction over the person
- There must be contemporaneous service of the summons and writ upon the
defendant
The officer takes actual possession of the No actual seizure of property and no specific lien
property is acquired in garnishment
- For fraud to be a ground, there must be a pre conceived plan or intention not to pay
or committed in the performance of an obligation
- If no fraudulent act alleged or no proof was shown, A writ of preliminary attachment
is too harsh. It cannot be based in mere abstractions of fraud. (Tanchan Case)
- There must be a recitation of clear and concrete factual circumstances
- Grounds are construed strictly in favor of the debtors
- Affidavit of merits is required
- Attachment proceeding is a proceeding in rem
- If not acquired jurisdiction over the person, it is void and it cannot be cured by
subsequent acquisition of jurisdiction
- Property in custodia legis may be attached
- If attaching personal properties, he should take actual or constructive possession
- Partial execution is not included in the legal grounds for discharge of garnishment.
- Willingness to reimburse will not discharge
- If counterbond is insufficient, apply for new order of attachment
- A writ is not lifted by merely a compromise agreement
- Salary check of a government officer cannot be garnished when not physically
delivered to him for they still in a character of public funds
- Writ is not lifted by a substitution of attached property with another property
- Levy on attachment may be discharged either by a counterbond or Motion to
discharge for irregularity. There must be a hearing. A motion for reconsideration of
order for the issuance of a writ is equivalent to a motion to discharge which must be
heard
- Lifetime of a preliminary attachment is until the debt is paid
- Action against the bond must be commenced before finality of the judgment
otherwise barred.
- A party seeking a stay of the attachment is required to make a DEPOSIT in an amount
equal to the bond fixed by the court or to the value of the property to be attached.
KINDS OF INJUNCTION
1. Prohibitory - refrain
2. Mandatory - Commands performance
FINAL INJUNCTION - relief or part of the relief granted as result of the action
- Discretionary only. There must be an existence of a clear right of the plaintiffs and the
acts are in violation of said rights
- Aims to prevent future injury and maintain status quo
GR: RTC cannot enjoin the execution of judgment of the NLRC since they are co equal
bodies. EXC: When there is third party claim (Bayhon case)
- Application of TRO shall only be acted upon only after al parties are heard in a
summary hearing
- If the matter is of extreme urgency and the applicant will suffer from grave injustice
and irreparable injury, said sala may issue ex part a TRO effective only for 72 hours
from the issuance
- Denial of injunction means automatic vacation of TRO
- Municipal corporations cannot prohibit the operation of night clubs. There must be
right to be heard. Such right is not prevented but merely regulated.
- Receiver has no power to enter into contract without the approval of the court
Replevin - a proceeding by which the owner or one who has general or special
property in the thing taken or detained seeks to recover possession in specie, the
recovery of damages being only incidental
- The plaintiff must give a bond DOUBLE THE VALUE of the property
- Subject matter of replevin is personal property
- Replevin will not lie if in custodia legis
- Issue of ownership may be resoled in an action for replevin which is generally a
POSSESSORY ACTION if issue of ownership is raised.
- Defendant may file countermand to return the property seized to him
- If not delivered because the property is concealed, he must cause the building or
enclosure to be broken open and take the property in his possession
- defendant must object within 5 days. or else sheriff will get it. IT IS MANDATORY. IF
AFTER, NOT ALLOWED ANYMORE
- The sheriff is not bound to keep the property or deliver it to the applicant unless the
applicant or his agent on demand of the offer indemnifies him against such claim by
a bond in a sum not less than the value of the property
- The remedy of a stranger to the action is Terceria or third party claim or a separate
action. Terceria cannot be filed by a party of the case
- Republic of PH is exempt to post a bond
- If the main case is dismissed, the writ’s existence and efficacy would be dissolved
because it is provisional and ancillary in character
- Any claim for damages die to the seizure of property in replevin while the action is
pending must be litigated in the replevin suit and not by independent action
- Claim for damages must be applied for before judgment is executory
- Damages must arise out of the wrongful seizure of the defendant’s property
REQUISITES:
1. Plaintiff must not claim interest in the subject matter or that his claim is not disputed.
2. There must be two or more conflicting claim
3. Parties impleaded must make effective claims
4. Subject matter is one and the same
RULE 64: REVIEW OF JUDGMENTS AND FINAL ORDERS OF COA AND COMELEC
- Brought to the SC by means of rule 65
- Within 30 days from the notice of judgment
- It is interrupted by MR or NTrial
- Filing shall not stay the execution of the judgment or final order.
Certiorari - Writ issued by a superior court to an inferior TBO whereby the record of a
particular case is ordered too be elevated for review and corrections in matters of law
PROHIBITION
- Praying that judgment be rendered commanding the respondent to desist from
further proceedings in the action or matter specified therein or otherwise granting
such incidental reliefs as law and justice may require.
MANDAMUS
- When TBO unlawfully neglects the performance of an act which has specifically
enjoins as a duty resulting from office, trust or station or unlawfully excludes another
from the use or enjoyment of a right or office
- Aggrieved party may appear but it shall not prevent the court from determining the
just compensation
- Date will reckon upon the taking of the property or date of filing of the complaint for
expropriation whichever came first
- Court shall appoint 3 competent and disinterested commissioners
- The only damages that may be awarded in an ejectment suit are rentals. (ORLIVO VS
CA CASE)
- It does not extend to award of electric and water bills that should be litigated in a
separate tribunal (Shoemart vs CA)
- CONSIGNATION (300,400) RTC MTC
- The only way to stay the execution of a judgment in an ejectment suit is by
perfecting an appeal and filing of a SUPERSEDEAS BOND depositing from time to time
with the RTC the amount of reasonable rent
EXCEPTIONS:
1. Delay in the deposit is due to FAME
2. Supervening events occur subsequent to the judgment bring about a material
change in the situation
3. No compelling urgency for the execution
KINDS OF CONTEMPT:
1. Direct or Indirect
2. Civil or Crimina;
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Sorry for all the typographical errors. Good luck and God bless you! Kindly pass
this or pay it foward! In God's perfect timing I know you will be the person you
aspire to be.
- Edward Arriba