Brattys (2017-2018 Civ Pro) PDF

Civil Procedure - Dean Alex Monteclar (A.Y.
2017-2018) by Brattys 👑
SMLP | JT | ML | SDB | AC | ACE
CIVIL PROCEDURE Nov 13 a.) Ordinary Civil Action – Rule 1-56 (focus
for this sem)
•Remedial Law – is that branch of law b.) Provisional Remedies – Rule 57-61
w h i c h p r e sc ri b e s th e me th o d a n d c.) Special Civil Action – Rule 62-71
procedures of enforcing rights and *take B&C as an elective in 3rd yr; very
obtaining redress for their invasion. important
Remedial Law is basically contained in the
Rules of Court. It is a procedural law as 2.) Special Proceedings – Rule 72-109
distinguished from a substantive law. 3.) Criminal Procedure – Rule 110-127
Procedural laws are generally retroactive. (studied last sem)
4.) Rules on Evidence – Rule 128-133
5.) Legal Ethics – Rule 134-144
You already know that in your study in Civil
Law, the distinction between substantive •The Rules of Court is promulgated by the
law and procedural law. Supreme Court as part of its rule-making
SUBSTANTIVE LAW – law that creates/ power pursuant to Sec. 5(5) Article VIII of
the 1987 Constitution.
gives you a right;
PROCEDURAL LAW – provides for the •Limitations to the rule making power of
procedures/method of enforcing the right. the Supreme Court are as follows:
So when a substantive right is being 1.) The rules shall be uniform for all courts
violated, (i.e. right under the Family Code of the same grade and
or under the RPC), if it is violated, what will
you do? Go to court, right? And how are 2.) They shall not diminish nor increase or
you going to enforce your right at the modify substantive rights
court? Then you now go to REMEDIAL
LAW. The remedial law is the one that Where will you apply the RoC? Where will
provides for the procedures of enforcing you apply the procedures you learned in
one’s right. It is basically a procedural law the RoC? APPLY IT IN COURT. (ga joke
and comes from the SC. diay si dean haha)
Our remedial law is based primarily on the •Court – is an entity or body vested with a
Rules of Court. And who made the RoC? It portion of judicial power
is the SC. So does the SC have the power
to make laws? Is it not that it is only Judicial power – power to hear and decide
Congress that can make laws while the cases
Court shall only apply the law and in case
of doubt, interpret it not supposed to enact Why PORTION of judicial power? Because
judicial power is actually divided/shared by
it?
different courts. It does not belong to only
So what is the basis of the SC in 1 court, although we have SC as the
promulgating/enacting the Rules of Court highest court but not all cases will be filed
that has a force and effect of a law? in the SC. We have the CA, RTC, MTC
CONSTITUTION. The SC was created by and other special courts.
the Constitution and the very same
constitution gives to the SC the rule- So the power to hear and decide cases is
making power. (Art. 8, 1987 PH Consti) distributed to different courts. That is why a
Court is an entity or body vested with a
The RoC is divided into the following portion of judicial power.
topics:
TOPICS IN THE RULES OF COURT Classification of Courts
1.) Civil Procedure a.) Superior Courts vs. Inferior
SUPERIOR – means higher in rank
Premid – Finals Coverage Page 1

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Civil Procedure - Dean Alex Monteclar (A.Y. 2017-2018) by Brattys 👑
INFERIOR – before it refers only to nga involved so if more than P300K then
Municipal Courts, all other courts higher go to the RTC.
than the municipal courts are superior
courts; Now, even a superior court can be RTC is a court of general jurisdiction
considered an inferior court to others. because its jurisdiction is very broad;
covers many aspects in law. Under BP
EX: RTC is a superior court compared to 129, RTC has now maritime jurisdiction;
municipal courts but it is inferior if maritime and admiralty cases - barko nga
compared to CA. magbangga or if you ship goods from
Manila to Cebu through Gothong but when
In the same way that CA is also a superior it reached Cebu cargos are already
court if compared to RTC and municipal damaged – where will you file that? RTC
courts but it is inferior if compared to SC. jud na. But not only that because what
So relative na ang meaning sa superior made RTC as a court of general
and inferior court karun. jurisdiction is the provision also in the law
(BP 129) which says that “all other
instances not falling under the jurisdiction
of any other court, tribunal or body shall be
b.) Original Courts vs. Appellate Courts filed at the RTC.” So the RTC is the
ORIGINAL – means that it is the court catcher of all other cases, kadtong mga
kaso nga way tag-iya adto ihansak sa
where you filed the case as an original
RTC. It is actually the workforce of the
action; it is there where the case entire judiciary.
commences/started because the law
provides that case should be filed in that d.) Constitutional Courts vs. Statutory
particular court courts
EX: you want to file a case of collection of CONSTITUTIONAL – court created by the
sum of money and the amount you want to Constitution; only 1 constitutional court =
recover is P1M then file it in RTC because SUPREME COURT
the jurisdiction of municipal court is below
P300, 000. So if over P300K then RTC. So
RTC is the court of original jurisdiction, the
original court. STATUTORY – court created by a statute
or a law enacted by Congress
If ejectment – belongs to the exclusive and
original jurisdiction of the MTC so the What about Sandiganbayan? Is it not
municipal court is the original court; court provided in the Constitution? YES it is
of origin provided for by the Constitution but if you
read the Constitution, it says “there shall
The decision of the court of origin can be be an anti-graft body to be called
appealed to the next higher court. So if Sandiganbayan to be created by law”. So
MTC, you appeal it to RTC thus, RTC is the one who really created the
the appellate court. The decision of the Sandiganbayan is the Congress pursuant
RTC is appealable to the CA so RTC is the to a law but Congress was mandated by
original court then CA is the appellate the Constitution to create the
court. Sandiganbayan. So the composition,
function of the Sandiganbayan was
c.) Courts of General Jurisdiction vs. provided for by the law creating it. Thus,
Courts of Limited Jurisdiction it’s not actually a constitutional court but a
constitutionally mandated court. The
MTC is the best example of a court of
only constitutional court is the SC because
limited jurisdiction because they can only it’s the only one really created by the
handle cases where the value of the
Constitution.
property to be recovered is less than P300,
000. Pero if dagko na gani ang kantidad When you read the 1987 Constitution there
is an entire 1 whole article entitled the

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Judiciary but if you read it is about the SC law, the law should be the one to be
only, way labot ang uban courts. The applied first not the rule on equity.
Constitution created the SC – its
composition, functions, powers g.) Regular vs. Special courts
(administrative, judicial), jurisdiction – all REGULAR – SC, CA, RTC, municipal
found in the Constitution. That is why SC courts
cannot be abolished by Congress because
it is created by the Constitution; all other SPECIAL – the rest; called the ‘specialized
courts can be abolished by Congress, court’ such as the family courts, corporate
even the CA or RTC or municipal courts courts in RTC, shari’a courts of Muslims,
because they are created by Congress. CTA
What law created it? It is BP 129 otherwise
known as the Judiciary Act of 1980. Found
there is the composition, function and
jurisdiction of CA, RTC, and MTC. And Jurisdiction
because these are statutory courts, their A court will exercise its power based on its
jurisdiction is determined by law which is jurisdiction. Meaning, a court will decide
created by Congress and their existence and hear a case only if it has jurisdiction to
depends on Congress(??) hear and decide the case. The court must
e.) Civil Courts vs. Criminal Courts have jurisdiction first and who determines
jurisdiction? Jurisdiction is conferred by
This classification is true only in other law.
countries because in the PH all our courts
are civil and criminal courts. Our MTC, Normally, the law creating a particular
court will also provide what are the cases
RTC will accept civil and criminal cases;
they hear and decide civil and criminal that can be heard and decided by that
particular court.
cases so wa nay distinction.
f.) Courts of Law vs. Courts of Equity When you say the RTC has no jurisdiction
to hear the case that means to say that it
In other courts just like England they have has no authority under the law to hear the
Courts of Law and Courts of Equity. case because that case belonged to the
jurisdiction of another court.
COURTS OF LAW – court will decide
cases based on existing law •Jurisdiction – power of the court to hear
and decide a case. It is derived from the
COURTS OF EQUITY – way balaoray; the words JURIS which means law and DICO
judge will decide on the basis on the rule which means to speak.
of equity, what it thinks as fair and
reasonable under the circumstance JurisDico – means to speak under the
authority of the law
In the PH, our courts are both courts of
law and courts of equity. So we don’t have So when we say the court has jurisdiction,
that distinction kay atong mga korte mu- it means the court has the authority by
decide based on law and sometimes virtue of that law. It has the authority to
based on equity. hear and decide the case because the law
says so.
EX: In Persons & Family Relations (1st 51
articles), there is one principle that states ERROR IN JURISDICTION vs ERROR IN
equity follows the law. It means that the THE EXERCISE OF JURISDICTION. Both
court will decide a case on the basis of a are different because the remedies
law but in the absence of a law, the court provided for are different.
may decide on the basis of equity. The
court can only decide on the basis of •Jurisdiction distinguished from exercise of
equity in the absence of a law. If there is a jurisdiction. An error in jurisdiction is
correctible by certiorari while an error in

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exercise of jurisdiction or an error in b.) Original vs. Appellate
judgment is correctible by appeal.
c.) Exclusive vs. Concurrent
ERROR IN JURISDICTION – case was
filed in the court that has no jurisdiction; EXCLUSIVE – that particular case can be
case was filed in the wrong court filed only in that court and not in any other
court
EX: the law provides that ejectment,
forcible entry and unlawful detainer shall EX: Ejectment cases – exclusive only in
be filed only in the municipal courts. MTC; cannot file in RTC even if you claim
Suppose the plaintiff filed in RTC and RTC for unpaid rentals which amount to several
judge does not know the law, he accepted millions, even if the value of the property to
the case. Defendant says the judge cannot be recovered is worth several millions,
accept the case because it is an ejectment MTC rajud na kay exclusive and original
case and it should be filed in the municipal jurisdiction of the MTC.
court. But the judge says “no, RTC is a Cases involving violation of the Family
court of general jurisdiction” so he wanted Code or Annulment of Marriage,
to entertain the case when it is very clear Declaration of Nullity of Marriage, Legal
that it has no jurisdiction. Separation – exclusive jurisdiction on RTC
ERROR IN THE EXERCISE OF (Family Court)
JURISDICTION – the court has jurisdiction CONCURRENT – the case can be filed in
to hear the case; case was filed in the this court, that court or in another court; a
right/correct court but the judge committed jurisdiction that is shared by 2 or more
an error in deciding the case; error in courts
judgement; case is within the court’s
jurisdiction but the judge committed a EX: special civil action of certioriari,
mistake in deciding – apprehension of prohibition, mandamus, quo warranto and
facts and application of law. habeas corpus – these cases can be filed
in the RTC (as an original action) but you
It is important to know the distinction of can also file it in CA and even in SC; you
both because the remedies available will can file it in any of the 3 courts because
also differ. those cases falls under the concurrent
Error in jurisdiction – move for the jurisdiction of the SC, CA and RTC.
dismissal of the case. If court still insists Although SC already came out with a
on hearing the case, remedy is certiorari direction that even if the case is under the
under Rule 65 (basis of certiorari is grave concurrent jurisdiction of the SC, CA and
abuse of discretion amounting to lack/ RTC, you should not directly file it under
excess of jurisdiction); no need to wait for the SC as a matter of policy because SC is
the decision in order to appeal because very busy so you need to follow the
the proceedings before a court that has no hierarchy of courts. But if there are some
jurisdiction is null and void very valid compelling reasons then you
can go directly to the SC, pwede ra
Error in judgment – ordinary appeal; not because under the concurrent jurisdiction
certiorari because the court has jurisdiction of the SC. But as much as possible avoid
it’s just that nasayop lang ug decide filing these cases directly to the SC.
Types of Jurisdiction d.) Delegated Jurisdiction of MTC
a.) General vs. Special or Limited It means that the jurisdiction over this case
belonged to 1 particular court but the law
GENERAL – that jurisdiction exercised by may delegate it to another court under
the RTC some criteria.
LIMITED/SPECIAL – the one exercised by EX: Land registration cases (land titling) –
the MTC belonged to the original jurisdiction of the

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RTC but under BP 129, the MTC is given to be recovered is located in Cebu City
the delegated jurisdiction to hear this case then RTC of Cebu City.
provided that 2 conditions are present: (1)
the petition for land registration is If you filed the case in the RTC of Lapu-
uncontested; (2) value of the property is Lapu, is that dismissible on the ground of
less than P100, 000. Pwede na adto ra sa lack of jurisdiction? That is not a case for
MTC di na kelangan sa RTC. lack of jurisdiction. RTC has jurisdiction
over the case, it is a case of improper
Even if you filed it in MTC, it does not venue. Naay jurisdiction ang RTC Lapu-
mean that it has the exclusive and original Lapu because it is a case cognizable by
jurisdiction over the case. The jurisdiction the RTC pero dili mao ang proper
still belongs to the RTC, gipahuwaman place(venue), you should have filed it in
lang, gi-delagate lang. RTC of Cebu City.
So when MTC decides a land registration
case as part of its delegated jurisdiction,
the decision of the MTC is appealable Elements of Jurisdiction (Requisites for
directly to the CA not to RTC. Why? exercise of Jurisdiction)
Because it is a delegated jurisdiction – the
decision of the MTC is like the decision of a.) Jurisdiction over the subject matter
the RTC.
⁃conferred by law & not by agreement of
parties. Neither is it conferred by silence
except through “Estoppel by
Jurisdiction distinguished from Venue Laches” (Tijam vs. Sibonghanoy)
a.) Jurisdiction is the authority to hear and Now remember, venue can be the subject
decide a case while venue refers to the of the agreement of the parties. You will
place where the case is to be tried. know more about it when we go to Rule 4.
b.) Jurisdiction is a matter of substantive Juriscriction on the other hand cannot be
law while venue is procedural the subject of an agreement. It is always
conferred by law. It cannot even be
c.) Jurisdiction is fixed by law and cannot conferred even by silence except in the
be conferred by the parties while venue case of Estoppel by Laches in the case of
may be conferred by agreement of the Tijam v Sibonghanoy which is a new
parties invention of the supreme court. Because
the rule if the court does not have
d.) Jurisdiction establishes a relation jurisdiction to try a case, the proceeding
between the court and subject matter while before the court is null and void and the
venue establishes the relation between the defect cannot be cured by silence.
parties
Even of the defendant did not object to the
*Simply stated, jurisdiction means the
authority of the court to hear and decide jurisdiction of the court. It does not vest
jurisdidciton to the court. You can always
the case as conferred by law.
aquestion the absence of jnuroisdction for
EX: The law says that this particular case the first tiome on appeak. But not foa a
shall be filed only in the court: collection very long time because if thwre is
of sum of money the amount is more unnecessary delay in raising the lack of
than P300, 000 – RTC. jurisdiction over the subject matter, you
may lose the right to raise that issue
But there are so many RTCs in the PH, because of lacjes,
there are 800 different branches of the
RTC, asa man nga RTC i-file? In the RTC The case of Tijam v Sibongahnoy, it was a
which has jurisdiction over the place case for recovery of a sum of money. The
where the property is located. If the land case was filed in the CFI of Cebu. The

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claijm was only for 1,900 pesos. It should agricultural tenancy. So the court
have been filed in the MTc of cebu. The dismissed it.
defendant did not file a motion to dismiss
on the ground of lack of jurisdiction. They ⁃Where the action turns out to be an Unfair
participated in the trial of the case until the Labor Practice case, the RTC has no
court rendered a decision and the jurisdiction (Mindanao Rapid Co. vs.
defendant lost. They reaised it to the CA Omandam, L-23058, Nov. 27, 1971)
but questioning only the ruling and not the The Regular courts has no jurisdiction over
juroisdction. The CA affirmed the ruling. the case since there was an issue on the
They only raised the issue of lack of employer-employee relationship.
juriosdciciton only beofr the SC for the first
time. SC said it is too late for they are b.) Jurisdiction over the person of the
already stopped by laches. And that is parties
whre the principle of estoppels by laches Upon plaintiff – by the filing of the
came into the picture, complaint
Upon defendant – 1.) Service of summons
But ang judge ani natulog. Because the 2.) voluntary appearance or
judge can dismiss it motu proprio even submission to the court’s jurisdiction
without the defendant raising it.
For example the plaintiff files a simple
But take note this case is an exceptional collection of sum of money against the
case. So an exception to the general rule. defendant. The defendant learned about
The general rule is that if the court does the case and he has not yet received the
not have jurisdiction the proceeding is null summoned. So the defendant went to the
and void. You can always question it even plaintiff and told the latter that he was
for the first time on appeal. willing to pay but just don’t have the money
yet. So they agreed to pay in installments
⁃Determined by the allegations in the payable in one year and executed a
complaint. Exception: Forcible entry & compromise agreement and submitted it to
Unlawful detainer where the allegations in the court even if the defendant has not yet
the compalint shows agricultural tenancy received the summons. In this case the
agreement (Ignacio vs. CFI Bulacan, defendant has already submitted himself to
L-27897, Oct. 29, 1971) the jurisdiction of the court by virtue of the
compromise agreement.
When there is a motion to dismiss filed the
judge will first look into the allegation in the
complaint. By reading the complaint, does c.) Jurisdiction over the issues of the
the complaint state the elements of case is determined by the pleadings.
juriosdction, whether the allegation in the
complaint is true or not is beside the point. How will you know if the issue is
congnizable by the court?
Based on the allegation in the complaint,
the judge will see if he has jurisdiction to The issue is determined once the
the case. This can be rebutted by clear responsive pleading has been filed.
evidence in the pleading filed. Jurosdction For example plaintiff filed a case against
is determined by the allegations in the the defendant at that point in time the court
complaint. Exception is the case of Ignacio still does not know the issue.
v Bulacan. Where the allegations in the
complaint shows agricultural tenancy, the But when the defendant files his answer,
plaintiff filed an ejectment case in the the court now will know the issue.
municipal court but the tenant said he is an
agricultural tenant and under the law the When the respinvie is already filed then
ejectment case must be filed in the the court can already determine what the
DARAB not in the mtc since this is issue is and whether the court has
jurisdiction over the issue.

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Sandiganbayan (P.D. 1486 as
d.) Jurisdiction over the res is acquired amended)
by the actual constructive seizure by the Sharia District Court and Sharia
court of the thing in question thus placing it Circuit Court (P.D. 1083, known as
in custodia legis, as in attachment or Code of Muslim Personal)
garnishment. If the court acquires Family Courts
jurisdiction over the res, it can acquire
jurisdiction even if the defendant has not Jurisdiction of the Supreme Court
received the summons.
The Supreme Court is only the
The res here is the property or subject constitutional court. Its powers and
matter of the litigation. It is important for jurisdiction is conferred by the constitution.
the court to acquire jurisdiction over the They are found in ARTICLE 8. You can find
res because jurisdiction over the res can there that the powers of the SC can be
be a substitute of the jurisdiction over categorized into two, the judicial powers
the person. There are times whne the and administrative powers.
court cannot acquire jurisdiction over the
person of the defendant because he can Judicial power- the power to hear and
no longer be located and found and thus decide cases.
cannot be served summons.
Administrative powers- the power to have
So the court will have jurisdiction over the administrative control over the lower
res to have jurisdiction over the case. courts.
So if the defendant can no longer be found A. Original Jurisdiction:

in the Philippines, the plaintiff can file a writ
of attachment on the property of the The Supreme Court shall have the
defendant. And with the writ, the properties following powers:
are in custodial egis of the court and the
court has already jurisdiction over the res. 1.) Exercise original jurisdiction over cases
affecting ambassadors, other public
Even of the court has not yet acquired the ministers, consuls and over petitions for
jurisdiction over the person of the certiorari, prohibition, mandamus, quo
defendant the court can already proceed warranto, habeas corpus (Art. VIII, Sec. 5
with the trial of the case because it has of the Consti)
already acquired jurisdiction over the res.
The last part (petitions for certiorari,
prohibition, mandamus, quo warranto,
Hierarchy of Courts habeas corpus) belongs to the concurrent
jurisdiction of the SC with the CA and the
There are two kinds of courts. RTC.
I. Regular Courts B. Appellate Jurisdiction:

Supreme Court- highest court
Court of Appeals Review, revise, reverse, modify or affirm
Regional Trial Court on appeal or certiorari as the law or the
MTC, MeTC (city court in Rules of Court may provide, final
metroplitan manila), MTCC (city courts), judgments and orders of lower courts in:
MCTC (one mtc for smaller towns,
clustered)- lowest court a.) All cases in which the constitutionality
or validity of any treaty, international or
These comprise the judiciary. executive agreement, law, presidential
decree, proclamation, order, instruction,
II. Special Courts ordinance, regulation is in question.
Court of Tax Appeals (RA 1125)

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b.) All cases involving the legality of any longer appealable directly to the SC. It
tax impost, assessment, or toll, or any should be appealed first before the CA.
penalty imposed in relation thereto.
These are cases emanated from the court

of tax appeals. 2.) Shall be the sole judge of all contests
relating to the election, returns, and
c.) All cases in which the jurisdiction of any qualifications of the President or Vice
lower court is in issue President, and may promulgate rules for
the purpose. (Art. VII, Sec. 4, 1987
d.) All criminal cases in which the penalty Constitution)
imposed is reclusion perpetua or higher.
So here the SC will act as an electoral
When the RTC imposes the penalty for a tribunal to decide cases involving the
capital offence, there will be an automatic election of the president and vice
review by the SC. Even if the accused is president.
not willing to appeal, the case will be
reviewd by the SC. 3.) Review the sufficiency of the factual
basis of the proclamation of the martial law
e.) All cases in which an error or question or suspension of the privilege of the writ of
of law is involved habeas corpus or extension thereof, and
may promulgate its decision within 30 days
the general rule is only questions of law from its filing (Art. VII, Sec. 18(3) of the
can be elevated to the SC and not Constitution)
question of facts. The SC is not a trier of
facts. But there exceptions to be discussed
when we reach Rule 45. D. Administrative Powers of the
Supreme Court
Questions of law are based on the
admitted set of facts. What law is 1.) Assign temporarily judges of lower
applicable to these set of facts? This is a courts to other stations as public interest
question of law. may require
Most of the cases in the SC are appealed 2.) Order change of venue or place of trial
cases. to avoid a miscarriage of justice.
C. Other cases falling under the Like the case of Ampatuan where it was
jurisdiction of the Supreme Court transferred to manila.
1.) Review decisions of the three 3.) Promulgate rules concerning the
constitutional commissions (COMELEC, protection and enforcement of
COA, CSC) by way of petition for review constitutional rights, pleadings, practice
on certiorari (Art. IX, Sec. 7, 1987 and procedures in all courts and the
Constitution) admission to the practice of law, integrated
N.B. See: RA. 7902 on appeal to Bar and legal assistance to the
CA of decisions of CSC and CBAA underprivilage. (nacut ang slides)
In the constitution, we have three This one is the basis of the rule making
constitutional commissions. These power of the SC. So the SC has also
consititutional commissions are vested administrative control over all lawyers.
with quasi-judicial powers. Because it is the SC who can impose
disciplinary sanctions against lawyers.
The decisions of these three are
appealable directly to the SC. But later on, If you file a case for disciplinary action
in RA 7902, decisions of the CSC are no against a lawyer in the SC, the SC will

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refer it to the IBP. But the decision in the ug tagna) *** the Judiciary in
IBP is not final. accordance with Civil Service Law
(Art. VIII, Sec. 5, par *** of the 1987
That is why admission to the bar is Constitution).
administered by the SC.
Dean M: The Constitutional power of
the SC is protected by no less than the
November 14, 2017 (CivPro) Consti itself. In other words, there are
constitutional limitations involving the
Dean M: The power and the jurisdiction SC and these are limitations under the
of the Supreme Court can be classified Constitution that is addressed to
into two: Judicial and Administrative Congress that Congress cannot
power. interfere on the prerogative or the
jurisdiction of the SC. Like for example,
Judicial Power- refers to the power to congress is the one who created all
hear and decide cases that are filed in other courts except SC. And so under
the SC may either fall under its original article 7 and article 8 in section 2 of the
jurisdiction or under its appellate 1987 consti: Congress shall have the
jurisdiction. power to define prescribe, apportion
the jurisdiction of the various courts
Administrative Power – refers to the but it may not deprive the SC of its
power of the SC to supervise and jurisdiction over cases enumerated in
control all other lower courts. sec 5.
The Following are the administrative Constitutional limitations involving

power of the SC: Supreme Court
D. Administrative Powers of the Supreme • Art VIII, Sec. 2

Court The Congress shall have the power
1. Assign temporarily Judges of lower to define, (ulo nasad), prescribe, and
courts to other stations as public apportion the jurisdiction of the *** various
interest may require. courts but may not deprive the Supreme
Court of its jurisdiction over cases
1. Order change of venue or place of enumerated *** Section 5 hereof.
trial to avoid miscarriage of justice.
Dean M: Sec 5 of article 8 enumerates the
1. Promulgate rules concerning the powers and the jurisdiciton of the SC. And
protection and enforcement of the jurisdiction of the SC as provided for by
constitutional rights, pleadings, the 1987 Consti cannot be removed from
practice, and procedures in all the SC by legislative enactment because
courts, the admission to the practice that would vioate the consti. Another one is
of law, the Integrated Bar, and legal found in article 6 sec 30.
assistance to the underprivileged.
Such rules shall provide a simplified • Article VI, Sec. 30
and inexpensive procedure for the No law shall be passed increasing
speedy disposition of cases, shall the appellate jurisdiction of the Supreme
be uniform for all courts of the same Court as provided in the Constitution
grade, and shall not diminish, without its advice and concurrence ***
increase or modify substantively (Fabian vs. Desierto, G.R. No. 129742,
their rights. Sept. 16, 19**)
Dean M: One good example of this is the

1. Appoint all officials and (*** naa juy ombudsman law, when ombudsman was
ulo sa slide natabunan di jud mada created by congress, it provides that the

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ombudsman shall have quasi judicial Appellate Court (IAC) by B.P. 129 in
power they can hear and decide cases 1981. It has 49 Justices and 1
involving public officials involved in anti Presiding Justice with 10 Divisions
graft, but the resolution or decision of the with 5 members per division.
ombudsman, shall be appealed directly to
the SC. SC said that is not allowe, you did Dean M: Second highest court of the land.
not ocnsult us, so when the ombudsman Approved by congress in 1980 but took
act was questioned, in the SC, the SC effect 1981. The Judiciary act of 1980(bp
declared the ombudsman act pertaining to 129) created the court of appeals, rtc and
the appeals from the ruling of the mtc, metc, ntc, mtcc, mctc.
Ombudsman, the SC said, that is Presiding justice is the counterpart of the
unconstitutional because when congress chief justice of SC. He is the haid, among
included that in the law, congress did not the 50 justices.
inform or consult us, that is tantamount to
increasing the jurisdiction. Meaning it adds • Amended by E.O. No. 33 in 1986
additional job of the SC, it increases the with 51 members divided into 17
appellate jurisdiction of the SC and divisions.
congress did not consult or did not ask for
their concurrence, that portion was Dean M: issued by Cory Aquino, changed
declared unconsti, only that part, not the the name back to court of appeals.
entire, partial unconsti. Take note that in 1980, we were still under
Another is the investment code of Ph, the Marcos, that is why our legislative body
law that governs investment, under that was called the wai batasang pambansa. It
law, a body was created, it was called BOI, was the batasang pambansa who issued
and the the board of investment, was also BP 129.
vested with quasi judicial functions. The Because it was a revolutionary govt, cory
investment code of the PH, which was abolished the BP. So we were governed by
enacted by congress also provides that cory aquino thru presidential orders and
the decision of the BOI shalle be appealed proclamations from 1986-87. So our laws
to the SC. And then the SC said you did at that time, emanated from Malacanan.
not consult us on that, that is again And one of the early executive orders
unconsti, that portion of the law cannot be issued by cory is EO no 33.
considered valid because there was no 3 justices for every division.
concurrence of the SC. The basis is article
6 sec 30. Later on, after cory, in 1997:
So these are the two basic limitations. This

is actually addressed to congress that • R.A. 8246 (1997) amended E.O. 33
when you make laws, see to it that you do by increasing the membership to 69
not interfere on the jurisdiction of the SC with 23 divisions.
as provided by the SC. Otherwise, the law
that you will be enacting will be unconsti. Dean M: The 6 divisions will be based in
VisMin and the 17 will be based in Metro
They are all found in the consti. (powers of Manila.
SC) Div 18,19,20- based in cebu, and it shall
have appellate jurisdiction over all cased in
vis.
Div 21,22,23 – entire mindanao, appellate
THE COURT OF APPEALS jurisdiction.
And this is now the setup since 1997.
This new divisions was created in 2002 I
History and Composition think.
• The Court of Appeals created by the
Judiciary Reorganization Act of So this is now the current setup.
1948 was changed to Intermediate
Premid – Finals Coverage Page !10

before, decisions of the nlrc, or labor
Jurisdiction of the Court of Appeals arbiter is appealable directly to the SC, this
is pursuant to the old law. But this has
A. Original Jurisdiction: already been changed in the decision of
1. To issue writs of mandamus, SC in St Martins v NLRC. What is the
prohibition, certiorari, habeas important ruling of the SC here? The SC in
corpus, and quo warranto, and this case said, from now on, decisions of
auxiliary writs of processes whether the nlrc and the sec of labor, shall no
or not in aid of its appellate longer be appealed directly to the SC in
jurisdiction (Sec. 9, par. 1, B.P. 129) observance of the principle of hierarchy of
courts. So decisions of the nlrc shoud be
Dean M: These are also cognizable under appealed, should be brought first to the CA
the RtC and SC. So this falls into the before going to SC.
concurrent jurisdiction, although it is But how do you bring the decision from the
original it is not exclusive. nlrc to the CA? it is not by an ordinary
The only case that belongs to the original appeal ir by petition for review under rule
jurisdiction of the CA you cannot file it in 42 because decisions of quasi judicial
any other court, that is the annulment of bodies or agencies are appealable to the
judgment of the rtc under rule 47. CA by way of petition for review under rule
42. Pero sa nlrc, not rule 42, you can bring
A. Exclusive Original Jurisdiction: it to the CA by petition for certiorari under
1. Exclusive jurisdiction over stations rule 65.
for annulment of judgments of RTC And what is rule 65? Grave abuse of
(Sec 9, par. 2, B.P. 129) discretion amounting to lack or excess of
jurisdiction.
A. Appellate Jurisdiction: Once the CA decides the case emanating
1. Exclusive Appellate jurisdiction over from nlrc, and you are not happy with the
all final judgments, decisions, decision of CA, you can bring it to SC, but
resolutions, orders or awards of the this time, it will be certiorari under rule 45,
RTC’s and quasi-judicial agencies, petition for review.
instrumentalities, boards or
commissions, including the Security R.A. 7902 (March 18, 1995) – Appeal from
Commission, the Employees the decision of the Civil Service
Compensation Commission and the Commission (CSC) shall now be filed in
Civil Service Commission, except the Court of Appeals.
those falling within the appellate
jurisdiction of the SC in accordance Dean M: appeals from the decision of the
with the constitution, the Labor civil service commission is no longer
Code of the Philippines under P.D. appealable directly to the SC. Muagi sa ka
44, as amended, the provisions of sa court of appeals.
this Act, and of subparagraph (1) of Of the three consti commission g single
the third paragraph and out jud ang CSC.
subparagraph (4) of the fourth Ang kanang RA 7902 is a law enacted by
paragraph of Sec. 17 of the congress man na,
Judiciary Act of 1948. Can Congress change the provision of the
consti? It is the constitution who provides
Dean M: SEC has already been divested that decision of the three constitutional
of its quasi judicial power. Quarrels within commission are appealable to the SC.
the corporation. You file it in sec, but no Unya pwedi diay na ma ilis sa congress? If
more now, it is transferred to RTC. There you read the consti, there is a saving
is a branch in RTC that is the corporate clause there, it says, unless otherwise
court. provided by law. So naa mai pakapin so
We only have one corporate court in cebu, makahimo ang congress ug balaod.
rtc branch 11.

Decision of the Ombudsman in Ug dili ma determine ang value, rtc ra
administrative cases is no longer gyud. Wai labot mtc. Mao nang incapable
appealable directly to the Supreme Court of pecuniary estimation.
(Fabian vs. Desierto)
Example: specific performance (not
capable of pecuniary estimation) if you file
Decision of the Board of Investment is now a case to compel the defendant to comply
appealable to the Court of Appeals. with his obligation in the contract, specific
performance. Di man na nimo ma quanitfy
Dean M: not directly to SC. into money because what you are asking
to the court is to force the defendant to
comply with his obligation under the
JURISDICTION OF THE RTC (in Civil contract.
Cases) But if it is capable of pecuniary
estimation,there the value of the property
or amount of the claim is very important
you have to allege that in the complaint,
Dean M: As I have said before the rtc is
the work horse of the entire judiciary. The because that will determine which court
court that is burdened with so many cases, has jurisdiction whether rtc or mtc.
that is why it is called a court of general
jurisdiction. 2. In all civil actions which involve the
title to, or possession of, real
Why is it called a court of general property or any interest therein
jurisdiction? You will know now… where the assessed value of the
property involved exceeds
P20,000.00 or for civil actions in
A. Exclusive Original Jurisdiction: Metro Manila where such value
exceeds P50,000.00 except actions
Dean M: exclusive and original,meaning for forcible entry and unlawful
you file it in rtc and you can file it only detainer of lands and buildings;
there. original jurisdiction over which is
conferred upon the Metropolitan
1. In all civil actions in which the Trial Courts, Municipal Trial Courts,
subject of the litigation is incapable and Municipal Circuit Trial Courts;
of pecuniary estimation;
Dean M: now this refers to what we call as
Dean M: means that the claim of the real action as distinguished from personal
p l a i n t i ff c a n n o t b e q u a n t i fi e d i n t o action.
money.you cannot convert it into a value in A real action means an action to recover a
terms of money. Because normally when real property. Lands and immovables.
you file a claim, collection, even recovery If you want to recover your land that is a
of property you can quantify it into money. real action. Where do you file? It depends
Duna mai value ang property. So the value upon the value of the land to be recovered.
of the property is the basis of jurisdiction.
Take note: under the new judiciary
reorganisation act, the mtc can now If it is more than 20thou, you go to the rtc.
assume jurisdiction on cases that were
congnizable by the rtc before. If it is exactly 20thou or less, mtc. (in all
other mtc, basta real action)
Under the old law, there were cases nga
sa rtc ra gyud. Dili pwedi sa mtc, But in metro manila, the jurisdiction of the
irregardless of the amount pero karon mtc is higher. It is 50thou below, over
kasagaran sa kaso, ibase na sa 50thou RTc na. Sa ato pa, dunai
amount.dako gani ug value ang claim, rtc. distinction sa mtc sa manila which we call
Gamay gani value, mtc. MeTC.

In all other mtc, 20thou below ila
jurisdiction, basta real action.
3. In all civil actions in admiralty and
In metropolitan manila, ang jurisdiction sa maritime jurisdiction where the
metropolitan trial court is 50thou below. demand or claim exceeds One
Hundred Thousand (now
Over 50thou, RTC na. P300,000.00) or, in Metro Manila,
where such demand or claim
Ejectment is also an action to recover real
property, except that what you recover is exceeds Two Hundred Thousand
only possession. Pesos (now P400,000.00);
In ejectment there are two kinds of Dean M: but originally in BP 129, the
ejectment forcible entry and unlawful jurisdictional amount for rtc is over
detainer you are going to recover 100thou. 100thou below mao ng mtc.
possession not ownership so ownership is Before bp 129 admiralty cases and cases
not involved kay if invovled ang ownership involving maritime jurisdiction belong to the
mahimo na nang accion publiciana or cfi, equivalent to rtc. Wajud nai jurisdiction
accion reinvendicatoria. Asa man na nimo ang mtc courts irregardless of the claim
e file ang accion publiciana or accion basta admiralty and maritime jurisdiction,
reinvendicatoria? Dependi sa value. cfi ra gyud na kani adto pero now wa na
man tai cficounter part is rtc.
Rtc kung more than 20thou ug less than
20thou, mtc. Unsa man ng admiralty and maritime
jurisdiction? Unsa man ng kasuha? Barko
The basis here is not the actual or true nga nagbangga, admiralty cases na, even
value it is based on the assessed value shipment of goods by sea. Karganmento
and the assessed value can be determined sa manila pag abot sa cebu damage na.
from tax declarations. Ang nagboot anang you want to file a case, admiralty case na.
assessed value ang municipal assessor
and normally the assessed value of the Karong ang mtc duna nai jurisdiction over
land is lower than the actual value or fait that kind of case if the claim is only below
market value. But the basis is assessed 100thou.
value as determined by the municipal
assessor.
There was one question in the bar, asa 4. In all matters of probate, both
kno ang quieting of title? Where will you testate and intestate, where the
file a case of quieting of title? The rule gross value of the estate exceeds
before was that quieting of title was (P300,000.00) or, in probate matters
incapable of pecuniary estimation and in Metro Manila, where such gross
therefore it falls under rtc(par 1). But then value exceeds (P400,000.00);
the modern view now is quieting of title
does not belong to par 1 it belongs to par 2 Dean M: Kani adto sad before bp 129 was
because it is a case that involves title to or enacted, probate and testate and intestate
possession of real property or any interest exclusive jurisdiction sa CFI ra sd wala
therein. Unsa mai inyong g awayan sa gyuy jurisdiction ang mtc ana.
quieting of title? Di ba ang title, kinsai Pero karon naa na.
dunai better right title is it you or me? That If the value of the estate is less than
should be considered a real action you 100thou MTC
seek to recover your property because If more than 100thou RTC.
somebody is claiming your title, so akong Now the jurisdiction by the way has
ibangga ang imo ug atong title kinsai already been increased from 100thou to
tinood, that is a real action. So the value of 300thou pursuant to RA 7691.
the property its very important to determine
jurisdiction.

5. In all actions involving the contract Dean M: the amendment by the way is
of marriage and marital relations; found in RA 7691 under RA 7691 which
amended bp 129 it provides that starting
Dean M: cases such as annulment of 1994 five years after. Ra 7691 was passed
marriage, declaration of nullity of marriage, on april 1994 and this law provides that 5
legal separation. Actually, all cases yrs after 1994 the jurisdictional amount
involving violation of the Family Code are congnizable by the rtc shall be increased
cognizable by the RTC. from 100thou to 200thou.so that is 1999.
These cases used to under the JDRC- It further provides that another 5 yrs from
juvenile domestic relation court but was 1999 meaning 2004 the 200thou will be
abolished by bp 129 when rtc was created further increased to 300thou but in metro
and transferred to rtc ang sa jrdc nga manila, no more further increase, from 200
jurisdiction. to 400thou kausa ra ning increase and that
is it.
Sa cebu and other places outside metro
6. In all cases not within the exclusive manila gradual ang increase sa jurisdiction
jurisdiction of any court, tribunal, wala nai increase up to now.
person or body exercising judicial or So now if the amount of the claim is more
quasi-judicial function; than 300thou rtc.
If 300thou below, mtc.
Dean M: this is what makes the rtc a court
of general jurisdiction. Catcher of all cases. Paragraph 8 provides ‘in all other claims’
Kung maglibog kag asa e file kay wai meaning not included in the first 7
balaod nag ingon nga it is under mtc or paragraphs, actually it refers to money
what, you file it with the rtc, because it is a claims, claims for damages, the jurisdiction
court of general jurisdiction. shall be based on the amount of your
The jurisdiction of rtc is very broad. All claim. Kung pila imo gpangayo maoy
other cases nga wai tag iya adto ihatag sa basehan sa jurisdiction.
rtc. But the claim for damages, interest, atty’s
fees, cost of suit and litigation expenses
7. In all civil actions and special SHALL NOT BE INCLUDED in determining
proceedings falling within the the jurisdiction. In other words what
exclusive original jurisdiction of a should only be the basis is the principal
Juvenile and Domestic Relations claim.
Court and of the Court of Agrarian So for example if you borrowed money
Relations as now provided by law; from me, in the amount of 250thou and
you were not able to pay upon its maturity
Dean M: these two courts were and I decided to file a case against you in
specialized courts before bp 129 was my complaint it states there asking the
amended but when bp 129 was enacted court to order you to pay the principal loan
was abolished and the jurisdiction of these obligation of 250thou plus interest of
two courts were transferred to rtc. 50thou plus atty fees of 50thou plus
damages of 100thou plus cost of suit and
8. In all other cases in which the litigation 30thou so 480 thou na, where will
I file the case? MTC lang ghapon kay ang
demand, exclusive of interest,
damages of whatever kind, principal claim kay 250thou raman below
300thou you disregard the other claims
attorney’s fees, litigation expenses
and costs or the value of the because they will not be included in the
property in controversy exceeds detemination if jurisdiction.
P300,000.00, or in Metro Manila
P400,000.00. (See R.A. 7691 Klaro man kaayu na sa rules ingon nga ‘in
all other cases in which the demand
amendment).
exclusive of interest, damages of any kind,
atty fees, litigation expenses and cost of
suit where the value is more than 300thou,

RTC. If below, 300thou, mtc. In metro transferred to the newly created quasi
manila, 400thou ang ceiling. So if you are judicial body called DARAB.
asked, the problem, tan awa ug asa g file, The DARAB is the counterpart of the old
metro manila or outside metro manila. CAR.
Because ang jurisdiction ning differ bya. THE DARAB is a quasi judicial body within
Next thing you will look is, pila mai claim, the dept of agriculture.
the claim for damages and interest you Cases involving agricultural tenancy adto
disregard that for purposes of determining na sa DARAB.
jurisdiction. I mentioned to you an Ejectment case g
file sa regular court but then it was
R.A. 7691 (April 15, 1994) discovered nga duna diay silay agricultural
• Increases the jurisdictional amount leasehold agreement so ang ilang
cognizable by the RTC from more relationship is not that of an ordinary
than P100,000.00 to P200,000.00 landlord and tenant but it is an agricultural
effective 1999 and then to more landlord and tenant relationship the regular
than P300,000.00 effective April 15, court dismissed the case because that
2004. case belong to the DARAB.
So the jurisdiction of rtc to hear and decide
• In Metro Manila it was increased cases has now been transferred to darab.
from P200,000.00 to more than There are however some cases involving
P400,000.00 effective 1999. the comprehensive agrarian reform law
that are still cognizable by the rtc, issue on
payment of just compensation and
• No further expansion of jurisdiction prosecution of criminal offenses under carl.
in Metro Manila after 1999. If your land is covered by the agrarian
reform under the carl, you have to be paid
• for your land and as to the issue of how
R.A. 8369 (1997) – Created the
Family Court and transferred the much ug di mu magkasinabot sa gobyerno
jurisdiction to try family law cases ug pilay value, you may go to court, and rtc
will decide on the issue of compensation
from RTC to Family Court
not the darab.
And any violation of carl, that would
DEAN M: We used to have a specialized
court before BP 129 was passed that constitute a criminal offense should also
handles family law cases, and it is called be filed in the rtc and not in darab.
I mentioned a while ago that in determining
the Juvenile Domestic Relation Court was
abolished and the jurisdiction was jurisdiction, when there is a claim filed bu
plaintiff especially money claim in
transferrd to the rtc. Later on Congress
realized that they committed a mistake in determining jurisdiction you don’t include
abolishing the specialized court. So they damages interest atty fees and cost of
suit. But that rule applies only if the
created now the family court.
The same is true with agrarian cases damages claimed is incidental to the main
case.
before bp 129 was passed there used to
be a specialized court that would handle If the claim for damages is the principal
agrarian cases, it was called CAR Court of action, kay pwedi man ka mu file ug kaso
purely damages, usually kung mu file kag
Agrarian Relation. Then BP 129 abolished
the CAR and the jurisdiction of the CAR civil action, pakapinan man gyud nag claim
of damages, your claim for damages are
was transferred to rtc. Later on they
realized na burden na ang rtc, they merely incidental to your main action, so
decided to create another court that will your claim for damages will not be
counted, not included in determining the
handle agrarian cases.
Under the CARL (comprehensive agriaran jurisdiction. But if the case that you filed is
purely for damages, you ask for actual
reform law), the jurisdiction of the rtc to
hear and decide agrarian cases has been moral damages. So in other words the
main action is damages. Now when the
main action is damages, then the amount if

your claim for damages shall be the basis allegation. Thus, if the title is for
of jurisdiction. Collection of Sum of Money
That is clarified by SC in circular no 09-94. amounting to P50,000.00 but the
allegation therein is for Specific
•R.A. 6657 known as the Performance (to return the money
Comprehensive Agrarian Reform deposited after complying with the
Law of 1988 transferred the conditions) the case should be filed
jurisdiction of the RTC to try not in the MTC but with the RTC
agrarian cases to the DARAB (Ortigas & Co. Ltd Partnership vs.
(Department of Agrarian Reform Herrera, 120 SCRA 89).
Adjudication Board)
Exceptions: 1. Payment of Just DEAN M: now here there was an
Compensation agreement between the plaintiff and the
defendant, the plaintiff says okay I will
2. Prosecution of perform my part of the obligation and to
criminal offenses under CARL assure you that I will really perform my part
of the obligation, here is 50thou, you hold
• The provision excluding damages in it. I will deposit this to you to assure that I
the determination of jurisdiction will perform my obligation. But once I will
perform my obligation, you return the
applies only if the damages are
INCIDENTAL to the action. If the money to me, security rana. So the plaintiff
was able to perform his obligation, and
main cause of action is purely for
damages, you include it in the when he demanded for the return of the
determination of jurisdiction (See: money, the defendant refused to return so
he decided to file a case, the problem is
SC Circular 09-94)
that his lawyer captioned his case as
collection of sum of money which is wrong,
DEAN M: I mentioned a while ago that in
determining jurisdiction, when there is a di man na simple collection claim kay
claim filed by plaintiff especially money kanag 50thou wa man na g utang, gpa
gunitan raman na. so if you read the
claim in determining jurisdiction you don’t
include damages interest atty fees and complaint it is clear that there is no
creditor-debtor relationship between the
cost of suit. But that rule applies only if the
damages claimed is incidental to the main plaintiff and defendant, what the plaintiff is
case. actually asking is for specific performance
to compel the defendant to return the
If the claim for damages is the principal
action, kay pwedi man ka mu file ug kaso 50thou because plaintiff has already
complied with the obligation. So the case
purely damages, usually kung mu file kag
civil action, pakapinan man gyud nag claim should not be filed in the mtc. The real
of damages, your claim for damages are action is specific performance. This case
of ortigas v herrera illustrates to us that
merely incidental to your main action, so
your claim for damages will not be jurisdiction is determined not by the title of
the complaint kun dili ang allegation itself
counted, not included in determining the
jurisdiction. But if the case that you filed is and nature of the action.
purely for damages, you ask for actual
moral damages. So in other words the • Decision of the PRC not in exercise
main action is damages. Now when the of its quasi-judicial function is
main action is damages, then the amount if appealable to the RTC (Lupangco
your claim for damages shall be the basis vs. CA)
of jurisdiction.
That is clarified by SC in circular no 09-94. A. Concurrent Original Jurisdiction:
Sec. 21 – Regional Trial Court shall
exercise original jurisdiction:
• Jurisdiction is determined not by the
title of the complaint but by its

1. In the issuance of writs or certiorari, belong to the rtc goes to the mtc. Kay
prohibition, mandamus, quo duna mai jurisdictional amount.
warranto, habeas corpus, and
injunction which maybe enforced in
any part of their respective religion. A. Exclusive Original Jurisdiction:
Sec. 33 (1) – Exclusive original
2. In actions affecting ambassadors jurisdiction over civil actions and probate
and other public ministers and proceedings, testate and intestate,
consuls. including the grant of provisional remedies
in proper cases, where the value of the
DEAN M: This case affecting personal property, estate, or amount of the
ambassadors and public minusters can be demand does not exceed Three Hundred
filed in the rtc, it can also be filed directly to Thousand Pesos (P300,00.00) or, in Metro
the SC, wai apil ang CA. pero kaning no 1, Manila where such personal property,
concurrent ni between SC and CA. estate, or amount of the demand does not
exceed Four Hundred Thousand Pesos
A. Appellate Jurisdiction: (P400,000.00), exclusive of interest,
Sec. 22. Appellate Jurisdiction – damages of whatever kinds, attorney’s
Regional Trial Courts shall exercise fees, litigation expenses, and costs, the
appellate jurisdiction over all cases amount of which must be specifically
decided by MeTC, MTCC, MTC and alleged: Provided, That interest,
MCTC in their respective territorial damages of whatever kind, attorney’s
jurisdictions. Such cases shall be decided fees, litigation expense, and costs shall
on the basis of the entire record of the be included in the determination of the
proceedings had in the court of origin and filing fees: Provided further, that where
such memoranda and/or briefs. there are several claims or causes of
actions between the same or different
DEAN M: decisions of the mtc, are parties, embodied in the same complaint,
appealable to the rtc. But which rtc? That the amount of the demand shall be the
rtc which has jurisdiction over the territory totality of the claims in all the causes of
where the mtc belong. action, irrespective of whether the causes
Example: the mtc of daanbantayan or of action arose out of the same or different
medellin, is under the jurisdiction of rtc of transactions.
bogo. If your case is filed in the mtc of
cebu city, if you lost the case, you appeal DEAN M:
to the rtc of cebu city dili sa rtc sa
mandaue. Kaning 300thou under 7691 na ni as
K a d a r t c n a a i s p e c i fi e d t e r r i t o r i a l amended.
jurisdiction. Ang tanang lugar nga nasud Take note that here in section 33(1) the
sa ilang territorial jurisdiction adto ka mu property being referred to here is personal
appeal. DECISIONS OF THE MTC property, kanang 300thou below, personal
CANNOT BE APPEALED TO ANY RTC, property na. why? Kay ug real property
IT SHOULD BE THE RTC THAT HAS imo e recover, ang jurisdictiona amount is
TERRITORIAL JURISDICTION OVER not 300thou, 20thou lang below ang mtc.
THE PLACE WHERE THE MTC IS (many students will commit a mistake
SITUATED. here, maglibog sila sa jurisdictional
amount sa 20thou and 300thou.
JURISDICTION OF THE MTC
20thou – when the property to be
recovered is real action.
DEAN M: it is very easy to determine the 300thou – personal property
jurisdiction of rtc, ah, you know the
jurisdiction of mtc. What does not Wai apil sa computation sa jurisdiction ang
interest, damages, atty fees, litigation

expenses and cost of suit.PERO apil sa deal on issue of ownership. But now
computation sa pagbayad sa filing fee. under the new BP, the mtc, may now
delve into the issue of ownership, only
The bigger claim, the bigger filing fee. for purposes of resolving the issue of
possession. The mtc cannot say you
Last paragraph (provided further nga are the owner, or he is not the owner.
sentence) —> this is what we call joinder He can delve into the issue of
of actions. ownership for purposes of determining
who has a better rifht of posession.
The plaintiff may join in one complaint all
the causes of action that he has againts In case the mtc will pass on the issue of
the defendant, even if these causes of ownership, the determination of
action does not arise out of the same ownership by the mtc does not matter,
transaction. Like for example you it is not counted because mtc does not
borrowed money from me, 10thou, you did have the jurisdiction to resolve an issue
not pay — you borrowed again, you did not of ownership it can only delve into that
pay — you borrowed again, you did not issue for purposes of determining
pay. In four different occassions nangutang possession.
ka, wa jud ka kabayad. I have decided to
file a case against you now. Tag 10thou ka (3.) Exclusive original jurisdiction in
upat, 40thou. I could have filed 4 differtent all civil action which involve title to, or
cases againts you kay these are four possession of, real property or interest
different transactions. The first time you therein where the assessed value does not
borrowed and did not pay that is already a e x c e e d Tw e n t y T h o u s a n d P e s o s
first cause of action against you. I could (P20,000.00), or in civil actions in Metro
have filed a case against you right away. Manila, where the assessed value does
The second time, cause of action napod, not exceed Fifty Thousand Pesos
the third time, another cause of action (P50,000.00) exclusive of interest,
napod. damages of whatever kind, attorney’s fees,
If I decided to file a case againts you even litigation expenses and costs; Provided,
if these causes of action arose out of four that in case of land not declared for tax
different transactions I can join them purposes, the value shall be determined by
together in one case and the basis of the the assessed value of the adjacent lots;
jurisdiction now will be the totality of the
claim. DEAN M: so real action ni. This is the
Totallon na nimo tanan kay totality rule na counterpart of par 2 sa jurisdiction sa
ang nag govern. rtc.
(2.) Exclusive original jurisdiction Now in metro manila, 50thou ang basis,
over cases of forcible entry and unlawful exclusive of interest, damages of
detainer: Provided, That when, in such whatever kind, attorney’s fees, litigation
cases, the defendant raises the question of expenses and costs.
ownership in his pleadings and the
question of possession cannot be resolved
without deciding the issue of ownership,
Ang basis sa jurisdiction sa real action is
the issue of ownership shall be resolved
only to determine the issue of possession. the assessed value and the assessed
value is determined from the value stated
in the tax declaration suppose the land
DEAN M: Remember that in ejectment
ang issue diha possession ra gyud. Ug does not have a tax declaration, ang basis
will be the value of the adjoining lot.
ejectment gani exclusive jurisdiction na
sa mtc. Now in ejectment cases the
only issue here is recovery of A. Delegated Jurisdiction:
possession, so if there is an issue of Sec. 34. Delegated Jurisdiction in
ownership, the mtc is not supposed to Cadastral and Land Registration Cases –

MeTCs, MTCs and MCTCs may be Here the mtc, exercising its special
assigned by the Supreme Court to hear jurisdiction.
and determine cadastral or land
registration cases covering lots where
there is no controversy or opposition, THINGS TO REMEMBER IN
OR contested lots where tha value of JURISDICTION ARE:
which does not exceed One Hundred
Thousand Pesos (P100,000.00), such FILING FEES
value to be ascertained by the affidavit of
claimant or by agreement of the respective
claimants if there are more than one, or Although interest, damages of
from the corresponding tax declarations of whatever kind, litigation expenses, and
the real property. Their decisions in these cost of suit are not included in the
cases shall be appealable in the same determination of jurisdiction, they are,
manner as decisions of the RTCs (As however, included in the determination of
amended by RA 7691). Filing Fee.
DEAN M: that means if you appeal the
decision of the mtc in cadastral cases,
you go straight to the CA, don’t go to
TOTALITY RULE
RTC, because it is equivalent already to
a decision of the rct kay delegated
jurisdiction man.
Where there are several claims or
A. Special Jurisdiction: causes of actions between the same or
Sec. 35.Special Jurisdiction in different parties, embodied in the same
certain cases – In the absence of all the complaint, the amount of the demand shall
Regional Trial Court Judges in a province be the totality of the claims in all the
or city, any Metropolitan Trial Court Judge, causes of action, irrespective of whether
Municipal Trial Court Judge, MCTC Judge the causes of action arose out of the same
may hear and decide petitions for the a or different transactions.
writ of habeas corpus or applications for
bail in criminal cases in the province or city DEAN M: The total claim of the different
where the absent RTC Judges sit. causes of action joined together shall be
the basis for the determination of
DEAN M: there are some provinces that jurisdiction.
are very small, sub province of biliran,
camiguin where there are only few rtc
courts, suppose, all the two or three rtc
judges are not present, they attended a Civil Procedure November 20, 2017
seminar, wai nahabilin na rtc judge, RULE 1
dunai mi file ug habeas corpus, urgent A. Title of the Rules: Rules of Court
baya ng habeas corpus don’t tell me of the Philippines
pahulaton siyag kanus a mubalik ang Section 1 of Rule 1 provides that this
judge. Rule shall be known as the Rules of
So the mtc judge in the place can act on Court of the Philippines.
his petition for habeas corpus.
Another example would be nadakpan A. In what courts applicable: in all
sya, and muapply ug bail, unya wala courts except as otherwise
ang judge so pwedi sya adto nalang sa provided by the SC
mtc judge, these are urgent matters, it
involves the freedom of the person. Section 2 deals with in what court shall
These matter can be acted by the mtc it be applicable. The Rules of Court
judge in the absence of rtc judge. shall apply to all the regular courts
except as otherwise provided by the SC

like the SC, CA, RTC and MTC. Now all rules that will govern them only but will
other specialized courts are governed not apply to ordinary actions. Does it
by other special rules also like the mean that they will only be governed
Family Court and quasi-judicial bodies. only by those rules found in Rule
It says as otherwise provided by SC 62-71? NO they are governed by special
meaning except if SC provides that rules but it doesnt mean that the rules
these particular courts shall apply only on ordinary actions will no longer
to MTC and not RTC (one good example apply. In fact, in the absence of an
is the Rules on Summary Procedure applicable special rules, the rules of
which only applies to MTC). ordinary rules may apply suppletorily.
(See Amberti v CA, 195 SCRA 659)
A. In what cases applicable:
This was applied in Umberti v. CA
a. Civil where the SC applied the rules in
ordinary civil action to a special civil
A civil action is one by which a party action. This case involved certiorari
sues another for the enforcement or the
under Rule 65. Certiorari is an original
protection of a right or prevention or action, not a mode of appeal but then
redress of a wrong.
there is no provision under it pertaining
a. Criminal to the effect of withdrawal for a petition
for certiorari. What happens is
b. Special Proceedings petitioner filed a petition for certiorari
but then later on changed his mind and
withdrew it, then changed his mind and
A. Civil Action- is one by which a then refiled it. So what was the effect of
party sues another for the his withdrawal? There is no provision in
enforcement or protection of a Rule 65 that governs the effect of
right, or the prevention or withdrawal. SC applied the rules on
redress of a wrong. A civil action ordinary civil actions suppletorily which
may either be ordinary or special. according to them the certiorari is
similar to an appeal in effect since you
ask a higher court to review an
A. Classification of Civil Action actuation of a lower court. Since it is
An example is injunction. A civil action similar to appeal we may apply in
can be classified as to its nature into analogy the rules in appeal, there is a
ordinary civil action or special civil specific provision in Rule 40-41
action. An ordinary civil action is pertaining to the rule on appeal which
governed by rules 1-56.Special civil says if you withdraw your appeal it is as
action is found on rules 62-71. It is if you never applied for appeal and it
treated as a separate subject. does not have the effect of tolling the
reglementary period. So if you decide to
1. As to Nature refile and the original period of 15 days
to appeal has already lapsed, sorry na
a. Ordinary Civil Action (Rule lang but you can no longer refile since
1-56) it is considered as out of time.
b. Special Civil Action (Rule
62- 71) In the case of a certiorari, the period to
file is 60 days. If you withdraw your
Why are they called special civil
petition for certiorari, then refile it and
actions? (examples: interpleader, the 60-day period has already expired,
declaratory relief, certiorari, prohibition,
then your refiled petition shall no
mandamus, quo warranto, ejectment) longer be accepted.
Actually they are just like ordinary civil
actions but what made them special
actions is because there are special

1. As to Cause of the plaintiff (transitory since it
follows the residence of either parties).
A civil action can also be classified as
to cause into real action, personal 1. As to Object
action or mixed.
a. Action in Personam- any
action where the
a. Real Action- an action judgement of the court
where the issue involved is binds only the parties to
title, ownership, the action and their privies
possession or interest over or successors-in-interest.
a real property. Examples:
Accion Publiciana,
Quieting of Title, Example: an action to recover a
Ejectment, Partition, property, whether real or personal, from
Foreclosure of Mortgage, the defendant. Thus, a real action can at
Etc. the same time be an action in
personam.
a. Personal Action- An Action

founded on the privity of A real action can also be an in
contract, for sum of personam action. Many are
m o n e y, q u a i s - d e l i c t , confused because they think
recovery of personal that a real action is equal to
property, damages, etc. an action in rem. Or personal
actions are equal to in
a. Mixed Action- a mixture of personam actions. That is not
correct. You can classify them
real and personal action
as to object and the basis
such as an action for would be the binding effect of
recovery of land with
the judgment of the court. If
damages. Mixed actions
the judgment of the court
are such as pertains in binds only the parties,
some degree to both real
including their successors/
and personal heirs then action in personam.
If the decision binds the whole
1. As to Place of Filing world then action in rem.
An action can also be classified An action to recover a real
according to where you file the action. property or personal property
Local or transitory. is an action in personam. If
a. Local- an action which can you recover a real property
be instituted only in a that is a real action but at the
particular place such as same time an action in
real action personam.
a. Transitory- an action that a. Action in Rem- any action

follows the residence of where the judgment of the
parties such as a personal court binds not only the
action parties to the case but the
whole world.
In personal actions like recovery of
money, personal properties, damages, Example: an action for
the actions shall be filed in the place of Annulment of Marriage since
the plaintiff or defendant at the option it is founded upon the privity

of a contract. When the courts 30 days and the record on
grant the decree of annulment appeal is required.
it is binding upon the whole
world. So it is a personal
action but also an action in
rem. A. In what cases not applicable:
a. Actions Quasi in Rem- is a. Election cases
actually an action in
personam because it is b. Land Registration
directed only against a
particular person but the c. Naturalization
purpose of the proceeding d. Insolvency Proceedings
is to subject his property
to the obligation of lien e. And other cases not herein
burdening it. provided, except by
analogy or suppletorily
Example: Foreclosure of Real Estate
Mortgage. So muapply ra ang Rules of Court in
cases a-d but only suppletorily meaning
When you borrowed money that in the absence of a specific
from me you executed a real provision, the ROC may apply. The
estate mortgage, if you did not reason is because these cases are
pay the loan obligation I governed by special rules like in
would foreclose the mortgage, election cases by Omnibus Election
that is in personam but it Code, land registration cases by the
binds the property and gives Land Registration Act. These laws will
notice to the whole world. primarily govern the procedures on
these cases. They may borrow from the
Rules of Court if there are no applicable
A. Distinguish Civil Action from rules
Special Proceedings:
a. CA sues another for the
A. Commencement of an Action:
enforcement of a right
while in SP a party seeks a. A c i v i l a c t i o n i s
to establish a status, a commenced by the filing of
right, or a particular fact; the original complaint in
court.
In the settlment of the estate of the
deceased person (extrajudicial or
judicial), probate of the will, this is also
considered as special proceeding a. A complaint is filed in
because you are trying to establish the court either personally or
status of WON you have a right as an by registered mail.
heir. If personally then have it received by
the clerk of court and then you pay. But
if the court where you are to file the
a. CA there are generally two case is very far from your place for
parties while in SP there is example in Davao. You don’t have to go
no definite adverse party; to Davao you can simply do it by
mailing but remember the rule: if you
b. Period to appeal in CA is mail a pleading, answer in court you
generally15 days while in have to do it through registered mail
SP the period to appeal is since that is the official mode of
mailing. Because if you did not do it

through register mail, if you mailed it specify, then you have not paid the
thru ordinary mail like JRS/private correct filing fee, and if you have not
courier or thru ordinary snail mail, the paid the correct fee then your case is
date of the mailing is not considered d e e m e d n o t fi l e d . T h i s i s w h a t
the date of filing. It is the date of the happened in Manchester.
actual receipt by the Court.
But if you do it thru the official mode of • Manchester Development Corp.

mailing which is the registered mail, the vs CA, 149 SCRA 562
date of mailing is the date of filing. It
would spell a difference especially if This was a very controversial case.
you are trying to beat the deadline in Kani ato if you file for example accion
publiciana, you state the assessed
filing. Knowing that our postal service
is not very efficient. value of the property. Like 500k,
normally you also ask for damages
Registered mail is the preferred mode from the defendant so you have to state
since when you mail it, the envelope the value as well. Normally before,
would be accompanied by a registry lawyers would ask for a big amount of
return card so when the postman in damages kay barato man ang fees, niya
Davao will deliver it to RTC, the RTC pag increase sa filing fees di na ka
will ask to sign this mail in the registry kagara gara ug state ug damages.
return card with the date of the receipt
then the postman will detach the card In the ruling here SC said na if you file a
case and do not specify the damages,
and mail it back to the sender. The
return card is the best evidence na DISMISSED because you did not pay
nadawat na sa RTC. Sa ordinary mailing the right amount of fees. Gicriticize ang
kay walay proof/card of receipt. SC kay murag money making business
na hinuon.
So SC changed their ruling in the
Effects of Non- payment of Filing Fee subsequent cases.
But according to SC, the actual filing of
your case in court, personal or by • Sun Insurance Office LTD v CA,
mailing does not actually commence 170 SCRA 274
the civil action. What really matters is In this case, SC said from now, if you
the payment of the filing fees. file the case and you did not specify the
The next question is how do we damages, the Court should not
determine the filing fee? We already immediately dismiss and should give
talked about that the filing fee is based the plaintiff the chance to specify so
on the totality of your claims. So if your they can amend the complaint.
action is recovery of property, the value
of the property shall be the basis plus • Tacay v RTC of Tagum, Davao Del
all other claims (like damages, Norte, 180 SCRA 433
reimbursement of atty’s fees, litigation
expenses, interests you have to include The same principle was applied in
them). However all these other claims Tacay where the case was accion
like damages etc. shall not be used to publiciana with damages. Niya kay
determine jurisdiction of the court. naanad naman na dili ispecify ang
That’s why the SC said if you ask for damages, gibutangan rag left to the
damages, you have to specify that in sound discretion of the court, but when
the complaint, not just in the body of he filed the case he paid the docket fee
the complaint but also in the prayer of based on the value of the property only
the complaint because that will be the excluding the fee for the damages
basis for the filing fee. If you did not claimed. The opponent cited the

Manchester ruling that dismissable if because you did not specify. That same
wala na specify. Ana ang SC not ruling was applied in Tacay.
anymore kay it’s unfair to dismiss the
case when he already paid the filing fee · Tacay vs. RTC of Tagum, Davao
for the main action which is recovery of del Norte, 180 SCRA 433
property. Ang wa ra nabayri kay
damages so he should be given the Same ruling as Sun Insurance, where the
chance to amend. SC said that if you have already paid the
filing fee for the main action but you did not
pay the filing fee for the damages that you
Civil Procedure (November 21, 2017) are asking because you did not specify the
exact amount of damages, then you
should amend your complaint, and you
*If you do not pay the filing fee, definitely should specify the damages otherwise it
your complaint will not be entertained by will not be granted by the court.
the court. It will not be accepted by the
clerk of court. But the court clarified in The court also said that in the event that
the court will grant you damages, although
Manchester Development Corp. vs. CA, you did not specify the amount of
149 SCRA 562 damages, but just in case, the judge
awarded you damages, imo man gi ingon
The SC came out with a very strict ruling "left to the sound discretion of the
where it said that if you failed to pay the Honorable Court", if the Honorable Judge
correct amount of filing fee, then your case exercise his sound discretion and awarded
will be dismissed. In order for you to pay you damages, the SC said then you should
the correct amount of filing fee, you have pay the filing fee for the damages awarded
to specify the amount of damages you are to you; and the filing fee should be
claiming. Dili pwede na imo na lang i- considered as a lien on the amount
ingon, "I left it to the sound discretion of awarded to you by the court. So when the
the Honorable Court" in order to avoid the sheriff enforces the judgment of the court
payment of the correct amount of filing fee. and collect the amount from the defendant
as damages, the sheriff should set aside
So the SC said, we will dismiss your case the portion pertaining to the filing fee. That
because you did not pay the correct however, was later on clarified by SC in
amount. But later on the SC relaxed the the case of Ayala Corp.
rules after experiencing tremendous
criticism from the different sectors of the · Ayala Corp. vs. Madayag,
legal community that the SC decided to L-88421, Jan. 30, 1990
change the rule in Sun Insurance.
The SC said the court can only award
· Sun Insurance Office vs. CA, 170 damages that will be specified in the
SCRA 274 complaint, if those damages transpired or
occurred only after the filing of the
The SC said, the court should not dismiss complaint, not if those damages are
it right away, the court should give the already determinable at the time of the
plaintiff a chance to amend his complaint filing of the complaint. What does it mean?
and specify the amount of damages he is If you ask for moral damages for your
asking. If he will not specify then no sleepless nights, wounded feelings, you
damages will be awarded, and the case could already determine how much you
can still go on like if it's a case for recovery are going to ask. You cannot leave it to the
of possession of ownership of a real sound discretion of the court. If you ask for
property, then the court can still decide on exemplary damages, then you should
that. The case can still go on but do not specify the exact amount. Ang damages
expect the court to award you damages lang nga ma-awarded--the court can only
award damages not specified in the

complaint if those damages are
determinable only after the filing of the Liberal Construction of the Rules:
complaint. The rules shall be liberally
construed in order to promote their
objective of securing a just, speedy, and
Ex. quasi-delict, reckless imprudence with inexpensive disposition of every action and
damages proceeding (Sec. 6)

Exception: Rules on reglementary period
Supposed you bumped by a car while to file pleadings or appeals.
walking, you were hospitalized. After being
discharged, you filed a case against the Ex:
driver. In your complaint, of course you ask 1. Filing of answer (15 day from the time
for damages, that you ask for you received summons)
reimbursement of your expenses in the 2. Filing of appeal (15 days)
hospital, attys fees, etc. But there are
damages that are not yet determinable at
the time you filed the complaint like *Strict compliance on reglementary period
example you still continue to go the doctor for the speedy administration of justice.
for regular check up, magbayad gihapon
kas doctor, there is still medication that you
have to take. Now you can prove this RULE 2
during the trial of the case, even if you CAUSE OF ACTION
have not specified this amount at the time
you filed the case, you can still prove this
during the trial of the case because these
are damages that are not yet determinable *Every civil action must have a cause of
at the time the case was filed. If during the action, otherwise your case will be
trial you were able to prove these dismissed.
damages, then the court can award you
damages for that. But since you have not
paid for these damages awarded to you, A. Definition:
then tyou have pay the filing fee for that to Cause of Action – is an act or omission
be deducted from the award. That is what by which a party violates a right of another.
is meant by a lien. *refers to what the defendant did which
violated the plaintiff's right and causes an
So here the court said, if the damages you injury; this will give you the right to file a
are asking is already determinable at the case in court against him; gives you the
time you filed the complaint, you have to right of action
specify it, otherwise you cannot anymore
recover those damages because the court Elements of Cause of Action:
is not allowed to award those damages a. A right pertaining to the plaintiff
that were not specified at the time of the b. A correlative obligation of the
filing of the complaint. defendant (to respect that right of the
plaintiff)
c. Violation of plaintiff’s right by the
· Suson vs. CA, 278 SCRA 284 defendant
d. Damage
Reiterated the Ayala ruling.
*All these elements must be present
· De Leon vs. CA, 287 SCRA 94 because if one is absent there is no valid
cause of action. Even if there is a violation
Reiterated the Ayala ruling. of your right but you did not suffer any
damage/injury, then there is no cause of

action. Abnum abque injuria. The 4 available to you, otherwise your case will
elements must be present. be dismissed.
Right of Action – is the right of the plaintiff 4. Arbitration. If the contract between us
to bring an action and to prosecute that provides for arbitration then we should go
action until final judgment. to arbitration first before we go to court.
*different from cause of action You cannot go to court right away without
*right of action is a result of a cause of the arbitration because that is stipulated in
action; you must first have cause of action the contract.

Elements of Right of Action:
a. Plaintiff must have a good cause of Cause of Action vs. Right of Action
action 1. Cause of Action is the delict or
b. Plaintiff must have performed all wrong (committed by the defendant
conditions precedent to the filing of the against the plaintiff) whereas Right of
action Action refers to the right of plaintiff to file
action;
*Even if you have a good cause of action
but you did not comply with the conditions 2. Cause of Action is created by
precedent to the filing of the action then substantive law, whereas Right of Action is
your case may still be dismissed on the regulated by procedural law;
ground of lack of cause of action on non-
compliance of the conditions precedent to 3. Right of Action may be lost by
the filing of the action. prescription while Cause of Action cannot.
*you cannot lose your cause of action by

Conditions precedent: not filing a case, but your right to file an
1. If parties are residents of the same action can be lost by prescription because
barangay or city, they must first pass the law may provide for a certain period
through the lupon tagapamapayapa or within which you can bring an action in
barangay for conciliation proceedings for court; if that period expires and you did not
them to find a way to settle the matter file the case in court, then you could no
amicably. If cannot be settled, the brgy longer file a case in court. You lost your
captain will issue a certification to file right of action by prescription.
action. That is the time that you can now
file a case in court. This has to be attached
in your complaint. If no proof that you *A cause of action refers to the act/
passed through the brgy level, your case omission committed by the defendant, so
will be dismissed. when there is only one act committed by
the defendant that causes damage/injury
to the plaintiff then there is only one cause
2. When it is a suit between members of of action; and if there is only one cause of
the same family, the plaintiff must allege in action, there should only be one case filed.
his complain that he exerted earnest effort A single cause of action shall give rise to
to settle the matter amicably, otherwise the only one action.
case will be dismissed.
*What the rule prohibits is the splitting of

3. When the law provides that you should the cause of action.
exhaust all administrative remedies first
before going to court, then you have to Splitting a cause of action – is the
follow that. Don't go to court right away if practice of dividing one cause of action
there is still an administrative remedy into different parts and making each part a
subject of a different complaint.

Litis Pendentia and Res Judicata-
presuppose that there are two cases that
* you cannot divide a single cause of are filed in court involving the same parties
action into several cases. If there is only and involving the same issue.
one act/omission committed then there
should only be one case; even if the law
provides for several remedies, you cannot Litis Pendentia - if the two cases are still
avail of these remedies simultaneously pending. So when you filed the first case,
because that is tantamount to splitting a then later on you file the second case, the
single cause of action. second case will have to be dismissed
because there's already a case filed ahead
and is pending in court involving the same
Ex: You borrowed money from me. As a issue and parties.
collateral you executed a real estate
mortgage in my favor covering your
property, your land. When you failed to Res Judicata - two cases were also filed,
pay, what are the remedies available to but one case was already decided; this is
me? (1) simple collection case of sum of maguwang sa litis pendentia
money or (2) foreclose your mortgage. I
have 2 remedies but I cannot avail these Singleness of a Cause of Action – the
simultaneously because that is already singleness of a cause of action is
splitting a cause of action. You have determined by the singleness of the delict
committed only one wrong, only one act/ or wrong committed by the defendant and
omission na na-commit. not by the number of remedies that the law
grants the injured party.

Just like when you enter into any ordinary Rules In Determining The Singleness Of
contract like partnership, if one party A Cause Of Action:
violates the contract, what is the remedy of
the other party? He has two remedies (1) Rule 1 – A contract embraces only one
specific performance, or (2) rescission. But cause of action, even if it contains several
of course he cannot avail the two at the stipulations;
same time.

Like the example of one author he said, it's *ex: we enter into a contract where I'm
a simple collection case then you file a supposed to supply you with construction
case but only for the principal loan materials and I promise to deliver all of
obligation, then you file another case for these materials (cement, lumber, roofing,
the interest that was due, then you file steelbars) in one particular time. When the
another case for the attorneys fees, then day arrives and I failed to deliver, even if
other case for litigation expenses. Usa ra there are 4 stipulations in the contract,
na ka-kaso imong gi buwag-buwag. This is there should only be one case to be filed
not allowed to avoid annoyance on the part because there is only one cause of action
of the defendant, vexation on the part of which violated your right and that is the
the defendant. non-delivery of the materials on the
stipulated day.
*A single cause of action shall give rise to
only one action in court. Rule 2 – A contract which provides for
several stipulations to be performed at
Effect of splitting: Dismissal of the case different times gives rise to as many
on the ground of Litis Pendentia or Res causes of action as there are violations;
Judicata  
 
*ex: contract of loan payable by
installment. You promise to pay me in 4

installments at 100k pesos every
installment. The first installment to be due
on Dec 30, 2nd on Jan 30, 3rd on Feb 28, ex: you borrowed money from me, you
4th on March 30. promised to pay me in 5 equal installments
  at 10k pesos at every installment which is
  to be paid at the end of every month
On Dec 30 you did not pay, that constitute succeeding.
one cause of action already. If you failed to  
deliver on a promise date, that's already  
one cause of action. I can already file a When the 1st installment becomes due, I
case against you. demanded payment from you and you
  suddenly said "Do I have an obligation?"
On Jan 30 you did not pay, that is another Nikalit lang ka'g ka alzheimer. You deny
cause of action, that will be another case, the entire obligation now. Do I have to wait
the second case. for the 2nd installment to be due so that I
  can file a 2nd case, and the 3rd installment
  so that I can file the 3rd case? No. I can
On Feb 28, you did not pay, that's the third file immediately but only one case--that
case that I can file against you. would constitute only one cause of action.
 
  --
On March 30, that's the fourth case that I
can file against you.
  *If you have several causes of action, you
I can file four cases against you arising out may join several causes of action into one
of only one contract. Every violation case. This is what we call:
constitute one cause of action.

However, if I decide to file the case on Joinder of Causes of Action
April, when all these obligations are A party may in one pleading
already matured, I can file only one case. assert, in the alternative or otherwise, as
(see below) many causes of action as he may have
against an opposing party, subject to the
Rule 3 – All obligations that have already following conditions:
matured must be integrated in one
complaint;
*it is possible that there are several
plaintiffs in one complaint; or several
Rule 4 – Failure to comply with one of defendants. The several plaintiffs, each
several stipulations in a continuing contract one of them have a cause of action against
constitutes total breach and a single cause the defendant that they may join together,
of action for damages, actual as well as and file only one case. Their individual
prospective, arises from such breach. cause of action against a common enemy
  will be joined together into one case.
 
*Even if there is only one contract and the
contract contains several stipulations to *But if there are several parties joining
performed on different dates, violation on together in one case which resulted also to
that will give right to so many causes of the joinder of causes of action, they must
action di ba, but, if there is already proof have to observe the rules on joinder of
that the defendant is not going to comply parties
with the succeeding obligations, then the
plaintiff can already file a case, and only
one case will be filed--that is for the entire *Several persons may join together in one
obligation. case provided that their individual cause of

action against a common defendant must
arise out of the same transaction or series 3. Where the causes of action are
of transaction, and they are bound between the same parties but pertain to
together by a common question of fact and different venues of jurisdictions, the joinder
law. (Rule 3 Sec 6) may be allowed in the Regional Trial Court
provided one of the causes of action falls
1. The parties joining the causes of within the jurisdiction of said court and the
action shall comply with the rules on venue lies therein; and
joinder of parties;
4. Where the claims of all the causes of
action are principally for recovery of money
2. The joinder shall not include special the aggregate amount claimed shall be the
civil actions governed by special rules test of jurisdiction.
(interpleader, declaratory relief, certiorari, *this is what we call the totality rule -- if
prohibition, mandamus, quo warranto, you have several causes of action against
expropriation, foreclosure of mortgage, the same defendant and it is for money
ejectment, forcible entry, unlawful detainer, claim/recovery of money, the total amount
contempt); of your claim shall be the basis of the test
*you cannot join an ordinary civil action of jurisdiction
with a special civil action

There is misjoinder of causes of
*if you want to recover a parcel of land, action when two or more causes of action
and suppose there were 2 parcels of land were joined in one complaint when they
that you owned that was occupied and ought not to be joined. For example, you
claimed by another person. One land is joined accion publiciana case and forcible
worth 200k, the other is worth 500k. If you entry case. This is not allowed because
want to recover these 2 lands, you will be forcible entry case is a special civil action
filing supposedly 2 cases. One for the which ought not to be joined with an
200k--accion publiciana, if it's recovery of ordinary civil action.
ownership. Where to file? In MTC. The
other parcel of land 500k--accion
publiciana also. But it is cognizable in the There is misjoinder of causes of
RTC because the value--Ay no no it's 20k-- action, the remedy is not dismissal of the
if the value is less than 20k, MTC; if the case but to ask the court that the misjoined
value is more than 20k, then RTC. case be severed and tried separately.
Can you join these 2 cases? Yes you can. *the court shall order a severance of the
But it shall be filed in the RTC. Where the two cases
causes of action are between the same
parties, but pertain to different venues or
different jurisdiction, the joinder may be *ex: accion publiciana and forcible entry,
allowed but it shall be in the RTC provided they cannot be joined together because
one of the causes of action falls within the one is an ordinary civil action and one is a
jurisdiction of the said court and the venue special civil action; so what the court
lies therein. should do is to order that these 2 cases
will be split or severed on two different
courts.
*suppose one case is for forcible entry, the
other is for accion publiciana, can you join RULE 3
these two? No. Because forcible entry is a PARTIES TO CIVIL ACTIONS
special civil action--ejectment man na. You
cannot join an ejectment case with an A. Who may be parties:
ordinary civil action.

Only natural or juridical persons, or entities 2. Necessary Parties – those who are
authorized by law may be parties in a civil not indispensable but ought to be parties if
action. The parties may either be a plaintiff complete relief is to be accorded as to
or defendant. (Sec 1, Rule 3) those already parties, or for a complete
determination or settlement of the claim
*Who are those persons who can be a subject of the action;
party to a civil action? The law says,
natural or juridical persons. * if you are a necessary party, you may or
may not be included, but it is good/better
Natural - human beings that you should be included to have a
Juridical - corporations, entities that are complete determination of the case;
duly registered with the SEC; if not
registered with SEC it does not have Ex: 1. a co-owner in a partition case, if we
juridical personality, and normally it cannot are co-owners of the lot and one of us
bring an action demands for the partition for the property,
he must include all his brothers/sisters as
*aside from natural/juridical, there are also party to that partition case; he must
entities authorized by law and these implead all of them because if you will not
entities are neither natural/juridical include one there can be no final
persons, and they can be a party to a civil determination of the case.
action
ex: Estate of a deceased person, Roman 2. Suppose two persons (A and B)
Catholic Church, labor union borrowed money from you, they solidarily
--- bound themselves to pay. When the
*the party (either as plaintiff/defendant) obligation matures, they failed to pay. Can
must be a real party in interest because you sue only one of them? Or do you have
the rules provide: to sue both of them? You can sue only one
of them because anyway they are
B. Parties in interest: solidarily liable. You can recover the entire
Every action must be prosecuted or amount from one.
defended in the name of the real party in
interest. A real party in interest is one who Suppose they are jointly liable, do you
stands to be benefited or injured by the have to file a case against both of them?
judgment in the suit, or the party entitled to Again no. If I file a case against one only, I
the avails of the suit. did not include the other, the other is not
an indispensable party, I can proceed
*You can be a real party in interest if you against A only. But the problem is that I
will be adversely affected in the suit or you can only recover 1/2 from A kay joint ra
will be benefited by the outcome of the man ilang liability, dili man solidary. So,
suit. So you ask yourself, whatever after I recovered from A, I will have to file a
judgment the court will render, will I be case again, this time against. So in this
affected? If the answer is yes, then you are case, B ought to be included in the first
a real party in interest and you ought to be case in order to have a compete relief but
included as a party in the case. B is not an indispensable party; he is just a
necessary party.
Types of Real Party in Interest: What is the rule when there is an

1. Indispensable Parties – those necessary party but you did not include
without whom, no final determination can that necessary party in your complaint?
be had of an action;
- You must have to explain to the court
* If he will not be included, the case cannot what is the reason why you did not include.
be finally resolved If the court is not convinced of your
explanation, the court will order you to
implead that necessary party so that there

can be one complete determination of the the capacity to do act with legal effect; so a
case. If you will not obey, you cannot minor cannot be sued and cannot sue by
anymore recover from the other person himself, he must be assisted by his
(B). You are already barred from guardian/parents; same with incompetent)
recovering from B.
C. Permissive joinder of parties:
-one good reason probably, you will not Two or more persons may join in one
implead B because B could not be complaint as plaintiffs or as defendants
anymore located (he went abroad) and he provided the following conditions are
cannot be served in summons and present:
therefore it will just delay the case
*even if these parties have different
* In the case of two debtors--if one is the causes of action against a common
principal debtor, the other one is a defendant
guarantor, the guarantor is not an
indispensable party; he's just a necessary ex: when there is a vehicular accident;
party. If they are solidarily bound like in the several passengers were on board a bus
case of a surety, again the surety is not an bound for Baguio from Manila. They were
indispensable, he is just a necessary party. on board the PH Rabbit Bus Line. The
driver was very negligent, driving so fast
that they met an accident, the bus turned
turtle when the driver applied sudden
3. Representative Parties – those brake, and so the next day it came out
who prosecuted or defended the case for head line in the news paper, "Philippine
and in behalf of the real party in interest; Rabbit turns turtle" (let us laugh please)
* he's not the real owner, but he represents The accident causes injury to its
the real owner passengers. Suppose there were 20
ex: an action for recovery of ownership of passengers who were injured, each of this
a land, but the plaintiff here is already passenger has a distinct cause of action
residing in the US, it would be expensive against the bus company. How many
for him to be coming to PH every hearing, cases can be filed? 20 cases also because
so he authorized his cousin/close friend to there are 20 injured, and kada usa nila ija-
be the one to file the case in court for and ija man na sila ug cause of action.
in his behalf. In other words, he must
execute a SPA authorizing him to But if they so decide, the 20 injured
represent him in the court. passengers may join together in one
complaint. They hire only one lawyer kay
maka save sila, anyway their causes of
action arises out, what are the elements
4. Pro forma parties – those who are
required to be joined as co-parties in a suit for this? (see below)
as provided by law.
a. There is a right to relief in favor of or
· Husband and wife as parties against the parties joined in respect to or
arising out of the same transaction or
(in a suit against a married woman, the
husband is ought to be joined except if the series of transactions; and

property is an exclusive property of the
wife) *So the causes of action of the 20
passengers arises out of the same
incident, the same transaction.
· Minors or incompetent persons as
parties
b. There is a question of law or fact
(they do not have the capacity to act; a
minor has a juridical capacity but he does common to the parties joined in the action.
not have the capacity to act--which means

* So they can join together, and this is Will the case prosper if one of them will not
what we call permissive joinder of parties. join? Remember that if only 4 of the
Because it is permissive meaning it's up to siblings will file the case, the defendant will
them whether they will join together or not. surely file a motion to dismiss because
So there will be joinder of parties and there is an indispensable party that was
joinder of parties will always result to not impleaded as a plaintiff. So what will
joinder of causes of action because each you do if you are one of the 4? Then you
of this parties have a cause of action, so make that brother/sister of yours as one of
when they join together--joinder of parties; the defendant, he/she will now be called
that is also joinder of causes of action. unwilling co-plaintiff.
E. Unwilling co-plaintiff:
If the consent of any party who should be
D. Rule of Non-joinder of a joined as plaintiff cannot be obtained, he
Necessary Party: may be made a defendant and the reason
· If not impleaded, pleader must set therefor shall be stated in the
forth his name and state why he was complaint (Sec. 10).
omitted.
F. Misjoinder and Non-joinder of
· If the court finds the reason to be Parties:
unmeritorious, it may order inclusion of the Neither misjoinder nor non-
omitted party. joinder of parties is a ground for dismissal
of an action.

· Failure to comply without justifiable G. Class Suit:
cause shall be deemed a waiver of the When the subject matter of the
claim against said person. controversy is one of common or general
interest to many persons so numerous that
The non-inclusion of a it is impracticable to join all as parties, a
number of them which the court finds to be
necessary party does not prevent the court
from proceeding in the action, and the sufficiently numerous and representative
as to fully protect the interest of all
judgment rendered therein shall be without
prejudice to the rights of such necessary concerned may sue or defend for the
party (Sec. 9, Rule 3). benefit of all. Any party in interest shall
have the right to intervene to protect his
Distinction between indispensable and individual interest (Sec. 12).
necessary is that:
* Class suit is a case that is filed by a few
Non-inclusion of an indispensable party representing the many. They are allowed
to file the case in the representation of the
can be a ground to dismiss the case but
non-inclusion of a necessary party is not a many because it is impractical to name all
the plaintiffs in the case.
ground for dismissal of a case.
Suppose there are several plaintiffs in the * A class suit will happen when there are
so many of them and they are bound
case and they are all indispensable
ex: a property is co owned by 5 siblings, together by a general interest but they are
so numerous that it is impracticable to
that land is claimed by another person, so
there is a need for the siblings to file the bring all of them as party plaintiff.
case to recover the property. All the 5 of
ex: Tax payer's suit. When the government
them will have to be made as plaintiff
because they are indispensable parties. imposes additional excise tax against the
sugar planters. There are thousands
What happens if one of them is not willing
to join? hacienderos or sugar planters in the
country. All of them are affected by that
law. But not all of them can file the case.

Kay ug mu file sila ug kaso, pila ka pages Bulig-Bulig Kita Kamag-Anak Asso. et al.
ang title pa lang daan kung ibutang ilang vs. Sulpicio Lines
pangalan tanan. This is a case involving a vessel of
Sulpicio that flies the route Tacloban City
So these sugar planters they have their to Manila. This is considered to be the
own organization di ba. Naa man na silay worst sea tragedy in the history of the PH.
president, officers, pwede nga kana ra
ilang officers maoy mu file ug kaso but A ship belong to Sulpicio and the relatives
they will be representing all the sugar of the victims decided to form an
planters in the PH. organization (Bulig-Bulig) and they filed a
case against Sulpicio as a class suit.
Conditions for a valid class suit: The SC said this is not a class suit
a. The subject matter of the because you have no common interest.
controversy is one of common or general Ang interest nimo ang kato rang parente
interest to many persons (Sulo ng Bayan nimo nga namatay wa kay labot atong
vs. Araneta, Inc., 72 SCRA 34; Bulig-Bulig uban. This cannot be a class suit but this
Kita Kamag-Anak Asso. et al. vs. Sulpicio can be a joinder of parties. Can be a
Lines). permissive joinder of parties but not a
class suit.
b. The parties are so numerous that it is
impracticable to bring them all before the
court (Taxpayers Suit). Oposa vs. Factoran

It was the children of Antonio Oposa and
c. A number of them which the court his friends, ang iyang gipakiha ang iyang
finds to be sufficiently numerous may sue anak ug ang mga anak sa iyang mga
or defend for the benefit of all (Oposa vs. amigo, to file a case against DENR to stop
Factoran, 224 SCRA 12). the rape of our natural resources because
our natural resources should be preserved
Sulo ng Bayan vs. Araneta for the future generation. Mao nang ang
mga bata iyang gipakiha because that
This is the case of the squatters in QC, involves their future generation. There are
you know that area in Araneta Coliseum. about 20 children named as petitioners but
When the Araneta's decided to eject these they represent all the children in the PH.
squatters, the squatters--they have their
own organization (Sulo ng Bayan); it's only H. Alternative Defendants:
the officers who filed the case against the
Aranetas to stop the ejectment. They If you are not sure who is liable between
claimed that this is a class suit, that we the two, you better include both of them.
represent the hundreds of squatters.
Ex: You ship goods from Manila to Cebu.
The SC said no that is not a class suit. When the goods arrive at the port of Cebu,
Why? You do not have a common or you discovered that they were already
general interest, because each of you has damaged. When you inquired, nagduot2x
an interest separate and distinct from the na ang shipping company and the arrestre.
others. Kung usa ko sa squatter unsa man According to the shipping company, oh it
ako interest? Ang kato rang akong gi was in good condition when it arrived here
occupy na yuta, I don't care about the land but when the arrestre unloaded the cargo
you occupy. Sa ato pa, ang atong interest diha na nadaot. But the arrestre says no it
in the case ija-ija. We are not bound by a was already damaged when it arrived.
common or general interest so there can
be no class suit. So you are not sure kinsa may sad-an ani,
is it the shipping company or arrestre
operator? You better sue both of them.

-The case will have to be dismissed
because it cannot continue anymore.
I. Unknown identity or name of the -No substitution
defendant: Ex: annulment of marriage, if you file a
case of annulment marriage against your
Can you sue somebody whose name is wife and when the case is pending your
not yet known to you? Yes. Imo na lang wife died, can you ask the court for
butangan ug John Doe. substitution?

J. Entity without juridical
personality:
Civil Procedure (November 27, 2017)
Can you sue an entity without a juridical
personality? Yes. H. Alternative Defendant:
If you enter into a contract with an I. Unknown identity or name of the

establishment which is not considered a defendant
corporation example XYZ trading or XYZ
enterprises, you are not sure if it's a J. Entity without juridical personality
corporation, di jud siya corporation kay
wala pay INC or CO; so you sue it in that K. Effect of Death of a Party:
name and later on the defendants will have
to divulge the name of the owners of that Two kinds of action:
entity and once the owners are already
identified, you can now amend your (a.) Action that survives
complaint and implead them. (b.) Action that does not survive

K. Effect of Death of a Party: (Okay, so what is the effect of the death of
the party in the pending case? First, we
Who died? Plaintiff or defendant? need to distinguish what kind of action it is.
Another thing to ask is “who died? Is it the
But before that, is it an action that survives plaintiff or the defendant?”
or not?
Two Kinds of Action: As a general rule, if it is an action that

survives, and a party dies during the
1. Action that survives pendency of the case, the lawyer of the
party must immediately inform the court so
-Means it is a case that can continue that proper substitution will be effected. So
despite the death of the plaintiff or if you are the lawyer of the party, example
defendant; and therefore they should be for the defendant, the lawyer of the
substituted by their legal representative or defendant must immediately inform the
heirs court that his client is already dead. Why?
-Most civil cases are actions that survive: Because the lawyer-client relationship is
recovery of ownership of land, collection of terminated by the death of the client
sum of money, breach of contract, defendant. Remember that once your
rescission client is already dead, you have no more
-If action that survives, continue lang but i- right to represent him in court. So any
substitute lang ang namatay na party further proceeding will be considered null
(defendant/plaintiff) and void because the lawyer does not
have the authority anymore to represent.
That is precisely the reason why in the
2. Action that does not survive rules, if the lawyer did not immediately

inform the court about the death of his (In case the defendant dies in an action
client, proper sanction can be imposed involving money claims, like collection of
upon the lawyer and can be penalized for sum of money, what will happen? The
that. Administrative sanction can be case shall continue until the court shall
imposed on him. have decided the case.
Under the old rules, when a defendant dies

Why will there be an administrative in a money claim, the case will have to be
sanction? Because he is delaying the dismissed immediately and the plaintiff will
proceeding of the case. If he continues be asked to refile his claim in the
with the case knowing that his client is settlement of the estate of the deceased
already dead and he kept it as a secret, he defendant because when a person dies,
will just be wasting the time and the effort settlement of the estate will take place
of the court because the whole proceeding after that. That is where the plaintiff will
can be declared null and void. So the present his claim, in the settlement of the
lawyer shall inform the court. estate and will prove the case there.
The lawyer will also inform the court who Under the new rules, there is no need
the legal representative is. Who will anymore for the dismissal of the case. If
substitute the deceased defendant. When the defendant dies during the pendency of
you say legal representative, it does not the case in a money claim, the case will
refer to the heirs. The legal representative continue and the deceased will have to be
of the deceased is the administrator or substituted by his legal representative –
executor of his estate. As between the the administrator or executor of his estate
executor or administrator and the heirs, the – and will go on with the case until the
former is preferred to take his place. The court decides the case.
heirs can only substitute the defendant if
the is a delay in the appointment of the
executor or administrator or when the
heir decided to extrajudicially Once the court decides the case in favor of
partitioned the property – this means the plaintiff, the plaintiff now will wait for
that there is no other obligation on the the decision to become final. Once it
deceased defendant. becomes final, he will now present that as
a claim in the settlement of the estate of
the defendant. There is no hearing
anymore because all he has to present
That is the rule in case of an action that now is the decision of the court that is
survives. Most of the actions are action already final. The administrator of the
that survives. estate of the deceased defendant has
nothing more to do than to pay.
There are only very few actions that does

Unlike before, you need to refile the case.
not survive. One of this is annulment of
marriage, declaration on the nullity of That will be duplication already.
marriage, legal separation – an action
that is very personal. When a party dies,
the case has to be dismissed and cannot The rule also is that if the defendant died
go on anymore. You cannot ask the court before the levy of execution, the decision
for substitution of your “dead wife”.) shall be presented as a claim in the
estate. Once there is already a levy on
execution, meaning, the defendant died
L. Effect of Death of Defendant on Money after the decision has become final. If the
Claims: defendant, in a collection case for

example, the court has already decided
the case and pilde ang defendant, the (This means that if the party-litigant is not
decision is already final and the plaintiff capable of paying the filing fee, he will be
has already asked for the issuance of the allowed to litigate as an indigent litigant.
writ of execution, then the sheriff now will The term used before was “pauper
start looking for properties of the defendant litigant”.
that he can levy in preparation for the
auction sale. Then the sheriff must able to
levy the property of the defendant, after If you cannot afford to pay the filing fee,
the sheriff levies the property, the you can ask the court, you file a motion for
defendant dies, can the sheriff go on with allowing you to litigate as indigent litigant.
the auction sale? YES. If the court is convinced that you have no
means to pay the filing fee, you do not
If there was no levy and the defendant have property or money enough to pay the
died, the sheriff cannot anymore filing fee, then you may be exempted. You
continue with the bidding. That is the may even be exempted by paying the TSN
rule on money claims. So money claims (Transcript of Stenographic Notes – P10
are quite different from other civil actions.) per page)
M. Effect of Death of a Party who is a Q. Notice to the Solicitor General

Public Officer: (If the case you are filing involves a
(If the case involves a party who is a public government unit or a LGU, then you have
officer and he brought that action in his to notify the SG because the SG is the
capacity as a public officer and when the lawyer of the Republic of the Philippines –
case is pending, that public officer died or you question the constitutionality of the law
was removed from office, will the case passed by Congress, the validity of the
continue? It depends on his successor. memorandum circular issued by an agency
If the successor will decide to go on with of the government.
the case.)
N. Incompetency or incapacity of a party: RULE 4 – VENUE

(What if the defendant gets crazy sigeg
think sa iyang utang? Can the case go on?
YES. He will be represented bu his legal A. Define Venue:
guardian or legal representative) Venue is the place where the action
must be instituted and tried.
(Refers to the place of trial.
O. Transfer of Interest:
(The transferee of the interest, like for
example, while the case is pending, the
defendant transferred his interest over the Venue is different from jurisdiction.
property which is the subject matter of the Jurisdiction is conferred by law. It is the
litigation. The transferee is still bound by law that will determine which court will
whatever is the outcome of the case) hear and try the case – this case will be
tried in the RTC, this will be in MTC – that
is a matter of jurisdiction. But when you
P. Indigent Party: already know which court will hear the
The amount of the docket and other case, the next question is, where shall I file
lawful fees which the indigent exempted the case? Like for example, ejectment.
from paying shall be a lien on any Ejectment should be filed in the MTC.
judgment rendered in the case favorable to Which MTC? So it is a matter of venue
the indigent, unless the court provides now.
otherwise.

C. Venue of Personal Action:

The venue of an action will depend on the
kind of action, whether real action or All other actions may be
personal action.) commenced and tried where the palintiff or
any of the principal plaintiffs reside, or
where the defendant or any of the principal
B. Venue in Real Action:
defendants reside, or in the case of a non-
Actions affecting title to or resident defendant where he may be found
at the election of the plaintiff (Sec. 2)
possession of real property, or interest
therein, shall be commenced and tried in
(Actions that are founded in the privity of
the proper court which has jurisdiction over
the area wherein the real property the contract.
involved, or a portion thereof, is situated.
Forcible entry and detainer actions shall be So in personal actions like collection of
commenced and tried in the MTC of the sum of money, breach of contract,
municipality or city wherein the real recission of contract, damages, all other
property involved, or a portion thereof, is actions aside from real actions, should be
situated (Sec. 1) filed in the place of the plaintiff or place
of the defendant at the option of the
(Actions such as accion publiciana, accion plaintiff.
reivindicatoria, quiting of title, or ejectment
which involves possession of a property, it
is in the place where the property is Now, the law says “at the place of the
located. plaintiff”. It refers to the residence of the
plaintiff.
Take note that the court uses the word *Meaning of residence
“proper court” because under the old (Domicile in your persons subject includes
rules, all real actions will be under the constructive and actual residence. But for
jurisdictions of the RTC or CFI (before). purposes of filing a case, residence here
MTC’s does not have jurisdiction over real refers to actual residence and not actual
actions except ejectment. But in other residence. So where you are actually
cases, RTC ra jud na. But now, under the residing at the time you filed your
new “Judiciary Reorganization Act”, BP complaint, that is where you will file your
129, MTC’s already has jurisdiction to hear complaint or action. Not in your
accion publiciana and accion constructive residence or your hometown,
reivindicatoria. even if you go there very often, but if that
is not your actual residence at the very
moment, then file it in your actual
residence.)
Now, it depends upon the value of the
property. If the value of the real property
is more than 20k, RTC. If 20k and below,
MTC. That is why “proper court”. *Residence of a corporation
(The residence of a corporation is its main
office. The corporation should file the case
there)
But forcible entry and unlawful detainer
basta ejectment, exclusive original
jurisdiction jud na sa MTC where the real *Venue if both real and personal action
property is located or any portion or a (Like for example, a case for accion
portion thereof, regardless of the value of publiciana with damages. Accion
the property.) publiciana is a real action but damages is

a personal action. You have to look at the currently his actual residence. But the SC
main action. Damages here is only ruled in favor of the wife. SC said “no,
incidental to the main action which is Manila is not your actual residence. San
accion publiciana and therefore, what Francisco, USA is your actual residence,
determines the venue is the main action. where you came from. So therefore, you
Since the main action is accion publiciana, cannot file the case in Manila and you
the venue shall be the place where the have no other option but to file the case in
property to be recovered is located.) Davao, where the defendant’s actual
residence is, his wife. Obviously, the SC
stretched the law to accommodate the
D. Venue of action against non- Filipina wife because SC said that it is
residents: unfair on the part of the wife to go to
(Can you sue one who is not a resident of Manila and face her husband in a court
the Philippines? ordinarily, you cannot sue battle. So SC did not follow “actual
someone who is not found here because residence”. That is the only case, no other
the court cannot acquire jurisdiction over case that I know or found.
the person of that defendant. Di man
masilbihan ug summons so it is useless.
The action may be commenced and
tried in the court where the plaintiff resides,
or where the property or any portion
But if a non-resident is temporarily found in
the Philippines, he can be sued in the thereof is situated or found (Sec. 3).
place where he is temporarily found. Like
for example, a Filipino immigrant of the Actions that may be filed against a non-
USA came to the Ph for a vacation and resident defendant who does not reside
and is not even found in the
then he borrowed money from you and
refused to pay you, then you can sue him Philippines:
here in the Ph because he is temporarily
found here. You can sue him where he is 1.) Actions that affects the personal status
temporarily found because at the of the plaintiff; or
(Like annulment of marriage, legal
meantime, that is his actual residence.
separation, or an action of a child for
recognition as an illegitimate child like your
father is a residing in USA wan a ning balik
There is one exceptional case where the ngari)
court deviated from the rule that when you
talk about residence of the plaintiff or
residence of the defendant for purposes of 2.) Actions that affects the property, or any
determining venue, it must refer to actual portion thereof, of said defendant located
residence. There was one case where the here in the Philippines.
court deviated from that rule. And that is
the case of Corre vs. Corre where an (Now, you remember when we discussed
American married to a Filipina had a the elements of jurisdiction? And we
divorce in the USA and so the Filipina wife discussed about the jurisdiction over the
returned to the Ph. She went to her home person of the defendant, jurisdiction over
place in Davao. The American followed her the res, jurisdiction over the issue? And if
to the Ph. When he arrived in Manila, he you still recall, I said that jurisdiction over
rented an apartment in Manila where he the res is very important because it can be
stayed temporarily and filed a case against used as a substitute of the jurisdiction over
his wife. So he filed the case in Manila the person of the defendant. Meaning, that
because he is an actual resident in Manila even if the court cannot acquire jurisdiction
at that time and according to our law, “it is over the person of the defendant because
the actual residence of the plaintiff or the defendant cannot be found in the
defendant at the option of the plaintiff” so Philippines anymore, still, the court can go
ni ingun ang Amercian that Manila is on with the case if it acquires jurisdiction

over the res. What is res? Property. It
involves property which is the subject b.) where the parties have validly agreed in
matter of the case. writing before the filing of the action on the
exclusive venue.
(This one means that before the case was
So, you want to file a case against the filed, there was already an agreement of
the parties that the venue of the action
defendant to recover a parcel of land
which is now declared in the name of the shall be on that particular case and not in
defendant but you claim that that land is any other place. It should be exclusive.
yours nya gi ilog ranas defendant. But the
problem now is that the defendant can no
longer be founds in the Philippines and Like for example, A and B enters into a
migrated to the USA. Can you file a case contract in Cebu. A is a resident of Manila
against that defendant? YES because and B of Davao City. But they met in Cebu
there is a property of the defendant located City, signed the contract, and stipulated
in the Philippines which the court can there that any violation of this contract
acquire jurisdiction over the res. So even if shall be filed only in the proper court of
the court cannot acquire jurisdiction over Cebu City and only in Cebu City and not in
the defendant, the court can acquire any other place. That Cebu City shall be
jurisdiction res and can now proceed, the the exclusive venue of any violation of this
property subject to the case is located in contract. Then they have to follow that
the Ph. because the stipulation as to venue
contains a qualified and restrictive
word that it should be filed only in that
Venue: place of plaintiff or the place where particular place and not in any other place.
the property or portion thereof is found.
E. When rule not applicable:

(Now, the rule on venue, real action where So, even if the plaintiff and the defendants
place of the property is located, or are not residents of Cebu City, the case
personal action, at the place of the plaintiff will have to be filed in Cebu City because
or the defendant at the option of the they agreed beforehand that Cebu City will
plaintiff, these rules will not apply in certain have to be the exclusive venue, only and
cases. We do not follow the rule on real only in Cebu City.
and personal action when:)
Now, if their agreement is that the venue

This rule shall not apply: shall be in Cebu City and does not contain
a qualified an restrictive word, then, the
a.) In those cases where a specific rule or plaintiff can file it in his place or place of
law provides otherwise; or the defendant, at his option.
Examples:
(1.) Libel cases which could be How will you know that it contains
brought in the place where the libelous restrictive and qualifying words? When
statement was made or the place of the there is a use of only and only in that
offended party. venue or exclusively or only in that
place or not in any other place or to the
(2.) Article VIII, Sec. 5(4), 1987 exclusion of any other place)
Consti – The Supreme Court may order a
change of venue or place of trial to avoid a
miscarriage of justice. POLYTRADE VS. BLANCO , 30
(ex: trial of ampatuan’s and trial of SCRA 187
maute’s)

When the parties stipulated on the venue the back of the ticket, it says there that the
of the action, other than those found in the venue of the action shall only be in the
Rules of Court, the stipulated venue is proper court of Cebu and exclusive in
considered only as an ADDITIONAL Cebu City. It contained restrictive and
venue in addition to where the parties qualifying words.
reside. Unless the stipulation contains
RESTRICTIVE words which shows the
intention of the parties to limit the place But the judge in CDO refused to dismiss
stipulated as the exclusive venue. saying that it is unfair. Anyway, Sweet
Lines has an office in CDO, they have a
SWEET LINES VS. TEVES, 83 manager. But Sweet Lines insisted. When
SCRA 361 the case reached the SC, it sustained the
(The case involves a lawyer from CDO, a decision of the judge in CDO saying that
certain Atty. Tandong and his client Mr. the judge is correct. Although there is a
Tero went to Bohol to attend a hearing, stipulation as to venue and the stipulation
and because they are both from CDO, they as to venue contained a restrictive and
bought a ticket and the ticket that they qualifying words, that agreement can be
bought from CDO was a trip from CDO to disregarded because that is a contract of
Cebu to Tagbilaran. When they arrived in adhesion – a contract prepared by only
Cebu the day before the hearing, they one party dictating on the other party to
were told that the ship that will bring them adhere.
to Tagbilaran is not yet available because it
was used for an emergency trip to Surigao.
They replaced is with a smaller boat same A contract must be a product of the
shipping line. They said it is okay as long agreement between two parties. They
as there is a boat that will bring them to must have to voluntarily agree on every
Tagbilaran because they have a hearing term of the contract. But in this case,
the next day. When they were going to passenger tickets of shipping companies,
enter the boat, they were told that the boat the shipping lines are the only ones
is full already and cannot be making the stipulations. No participation on
accommodated anymore. They claimed the part of the passenger. What is worst is
that they already have a ticket and bought that it is stipulated in a very fine way that
this from CDO. Shipping line said that they you need a magnifying class to read it.
can accommodate them but since it was also, the passenger has no choice. Laen
really full, they would have to sleep in the sad kaayo if mo ingun ang passenger “I
bodega. They have no choice and have to don’t like par. 3, erase par. 5!” right? Ingnu
take it. kas shipping company “hala paglangoy
nalang dha!”.
When they returned to CDO after the

hearing, they filed a case in CDO against When the contract is a contract of
Sweet Lines. Sweet lines then filed a adhesion, you can disregard some
motion to dismiss because according to stipulations of the contract that is clearlt
them, the contract that governs the detrimental to the interest of the other
Shipping Company and the passengers is party. Even if it contains restrictive words –
the ticket itself that they bought. If you look maskin pag kapila nimo gibalik ang only
at the back of the ticket, you can see there dha AHAHHAHA)
in very fine prints the terms and conditions
of the contract of carriage and one of that
will contain a provision regarding venue. ARQUERO VS. FLOJO, 168 SCRA
540
(The SC here did not follow the contract of
adhesion rule.
So Sweet Lines filed a motion to dismiss
because according to what is stipulated at

This is a case of a politician from Cagayan
Province in Luzon, sent a telegram to a
Congressman in Manila and said RULE 5 – UNIFORM PROCEDURE IN
“Congressman, I have some important TRIAL COURTS
matters to discuss to you and will visit you (Rule 5 is new in the sense that the
in your office in Congress”. jurisdiction of the MTC and RTC especially
in real actions will already depend on the
value of the property. So most cases now
When the politician, who happens to be a triable in the RTC can also be tried in the
MTC. That is why this rule provides a
l a w y e r, w e n t t o t h e o f fi c e o f t h e
Congressman, he was shocked because uniform procedure in RTC and MTC.
Whatever procedures in the RTC should
the Congressman was so mad at him. The
Congressman said “ikaw pay nangayog also be followed in the MTC. Except in
pabor ako pa imong gipabayad sa particular instances.)
telegram?!” because when the telegram
company delivered the telegram, gi
collectahan niya ang Congressman but di A. Uniform Procedure
diay to, nabayran na to siya sa lawyer- The procedure in MTCs shall be the same
polotician. It is really the fault of the as in the RTCs, except:
telegram company.
1.) Where a particular provision expressly
or impliedly applies only to either of the
said courts; or
When the lawyer went back to Cagayan,
he filed a case against the telegram
company. The telegram company then 2.) In civil cases governed by the Rules on
Summary Procedure.
filed a motion to dismiss. According to
them, the contract between them (MTC jud ni. Not applicable to RTC
because Summary Procedure involves
contained in a piece of paper where the
lawyer-politician signed, there was a small claims cases.
provision regarding venue. The venue
shall be in Metro Manila where the B. Meaning of Terms:
telegram company is holding its main
office and not in Cagayan. The term ‘Municipal Trial Courts’ as used
in these Rules shall include the following
The politician said that it was a contract of Metropolitan Trial Court (MeTC)
adhesion. SC said that he cannot apply the Municipal Trial Courts in Cities (MTCC)
case of Sweet Line vs. Teves and should Municipal Trial Courts (MTC)
follow what is written in the contract. This Municipal Circuit Trial Courts (MCTC)
is because in Sweet line vs. Teves, the
contract was contained in a very small
ticket which is hard to read. In this case, RULE 6 - PROCEDURE IN THE
the stipulations are bigger and besides, he REGIONAL TRIAL COURTS
is a lawyer. (disadvantage of being a (procedures here are also applicable in
lawyer – must read what is written. Kalimot MTC)
ang SC nga lawer sad tong sa Sweet lines
case HAHAHAHA) so he is bound by the
contract and since it contains a qualifying KINDS OF PLEADING
and restrictive words, then it should be in
manila.
A. Definition of Pleading:
PILIPINO TELEPHONE CORP Pleadings are written statements of the
(Case of Arquero was reiterated) respective claims and defenses of the

parties submitted to the court for Now the complaint must be answered by
appropriate judgment (sec.1) the defendant. Under the rules, the
(Action filed in the MTC or RTC is always defendant has fifteen (15) days to file his
commenced by a pleading) answer to the complaint. The fifteen (15)
day period will start to run from the
moment the defendant receives the
B. Pleadings allowed in court: summons together with the complaint.)
-Complaint
-Answer
-Counterclaim D. Answer
-Cross-claim
-Reply -a pleading in which a defending party sets
-Third Party Complaint ( Fourth, Fifth, etc.) forth his defenses (Sec. 4)
-Complaint-in-Intervention
Defenses
C. Complaint:
Negative defense – (denies the material
- a written statement that contains averments in the complaint)
plaintiff’s cause/causes of action. A
complaint is also knows as the “initiatory
pleading”.
(going back to the complaint, how is a
complaint made? The complaint of the
Tthe first pleading that you file in court and plaintiff must be presented in a paragraph
the pleading that sets on motion the entire form and it must be numbered “paragraph
process of litigation) 1, paragraph 2, etc…” and each paragraph
must contain a fact.
-the allegations in the complaint must
contain the four elements of a cause of
action to wit: a.) the right; b.) the Now, when the defendant will answer the
obligation; c.) the delict or wrong complaint, he will also answer the
committed in violation of your right; d.) complaint paragraph by paragraph. So in
damage his answer, the defendant will say
(If these four are not found in the “paragraph five of the complaint is
complaint, the case will be dismissed. specifically denied for the truth of the
matter is this” so it is like saying “that is
wrong, I deny, the truth is, this is the truth”
For example, you filed a case for collection
of sum of money. The defendant borrowed
money from you and he failed to pay you That is an example of a negative defense.
when the obligation matures. All you have You deny the averments in the complaint.)
to state in the complaint are the four
elements. That you extended a loan to the Affirmative defense – (Here, the defendant
defendant, and the defendant promised to will admit the material averments in the
pay you on such a date, when the date complaint, but sets up a defense that will
arrive the defendant failed to pay you bar the plaintiff from recovering from him.
despite repeated demands, and you
suffered damage by reason of the non-
payment. The four elements are now
present. Do not make a very long It is like an admission and avoidance at the
complaint. Kanang 10 pages that is same time. It is like saying “yes, you are
already very long. correct, but sorry, you cannot recover from

me”. Good examples of an affirmative
defense: A. Definition of Pleading:
Pleadings are written statements of the
respective claims and defenses of the
Examples: parties submitted to the court for
appropriate judgment (Sec 1).

*Prescription *The plaintiff will start the ball rolling by the
(Suppose, the plaintiff filed a case against filing of the complaint.
you to recover your loan obligation but that
was more than 10 years ago. According to B. Pleadings allowed in court:
your ObliCon, an action that is based on a The pleadings you are allowed to file in
written contract prescribes in 10 years. I court are the following:
can say “yes it is true but sorry ni prescribe -Complaint
nana) -Answer
-Counterclaim
-Cross-claim
*Statute of Fraud -Reply
(There are certain contracts that you -Third Party Complaint (Fourth, Fifth, etc.)
cannot prove in court if it is not in writing. -Complaint-in-Intervention
These are what we call as unenforceable
contract. C. Complaint:
You filed a case against me based on a >This is the initiatory pleading; first
verbal contract. Mskin pag tinuod na mong pleading that you file
gi sulti, how can you prove that in court?) >This contains the plaintiff's cause/s of
action
> 4 Elements of valid cause of action:
*Illegality (all of these must be found in the
(You hired me to kill a brgy. Captain complaint, otherwise the complaint
HAHAHA and I did not make good of the will be dismissed on the ground of
contract so you sued me for specific lack of cause of action)
performance. Well sorry, that is an illegal 1. Right of the plaintiff
contract.) 2. Correlative obligation on the
part of the defendant to respect that right
*Estoppel, release, payment, etc. 3. Act/omission committed by the
defendant in violation of the right of the
plaintiff
4. Damage/injury sustained by
the plaintiff
Civil Procedure Nov 28
D. Answer:
PROCEDURE IN THE REGIONAL TRIAL
COURTS An answer is a pleading in which a
RULE 6 defending party sets forth his defenses.
KINDS OF PLEADINGS (sec 4)
*The trial of the case before the court is >After the complaint is filed, the defendant
always commenced with a written will file his answer.
statement of the claim of the plaintiff. The >Contains the defendant's defenses to the
claims and defenses are presented in complaint.
court in written form not oral and that
written statement is what we call as a DEFENSES
pleading.
Negative Defenses

>A denial of the material averments in plaintiff can still amend his complaint as a
the complaint matter of right.
Affirmative Defenses Ex: You are the plaintiff you filed a case
>An admission but coupled with denial; against me. I noticed there is defect in your
you admit the material averments in the complaint--there is an affirmative defense
complaint but you set up a defense that that I could use against you, instead of
will bar the plaintiff from recovering from filing an answer, I filed a motion to dismiss;
you. so your attention is called by me that your
>This is found in the answer. If you have complaint is defective, what will you do?
any of these affirmative defenses you may Yo u c a n i m m e d i a t e l y a m e n d y o u r
file a motion to dismiss instead of an complaint and correct the insufficiency or
answer. error in your complaint. Your amendment is
still a matter of right because there is yet
Actually, when you are the defendant in no responsive pleading filed by me, the
the case, your option is either to (1) file a defendant because I have not yet filed my
motion to dismiss or to (2) file an answer answer. That's the disadvantage if you file
right away. a motion to dismiss because you are
calling the attention of the plaintiff as to the
Upon receipt of the complaint, you are defect of his complaint which he can
given 15 days to file your answer. If you immediately rectify/correct by way of an
find the presence of affirmative defenses amendment as a matter of right.
available to you in that complaint, you may
opt to file a motion to dismiss instead of an So as not to allow or to prevent the plaintiff
answer. The filing of a motion to dismiss from amending his complaint immediately
will toll the running of the period to answer, without leave of court, the best way is to
so the court will have to resolve first the answer right away and incorporate those
motion to dismiss. And if the court denies affirmative defenses in your answer so you
your motion to dismiss, then that's the time now have a responsive pleading and the
you will file your answer. plaintiff could no longer amend his
complaint as a matter of right. He may
Now, some would prefer to answer right amend but he must ask the permission of
away instead of a motion to dismiss, and the court, and you have the opportunity to
they will incorporate the affirmative oppose it.
defenses in their answer. That's another
option. If you have affirmative defenses, So if I will file my answer and incorporate
you can use the affirmative defenses as a the special affirmative defenses in my
ground for a motion to dismiss. Or if not, answer I can anyway ask the court to hear
you file your answer and incorporate the my special affirmative defenses ahead of
affirmative defenses in your answer the trial of the case, it's just like saying,
because anyway, you can always ask the your honor can we have a preliminary
court later on before the start of the trial hearing on my affirmative defenses? And
that your affirmative defenses be heard the court will grant that because it may
first before the trial starts; so it would still shorten the proceeding; if I can prove the
be equivalent to a motion to dismiss. affirmative defenses that I incorporate in
my answer, the court can already dismiss
Why are some lawyers using that the complaint, bisag wa pa magsugod ang
technique? You see under the rules, if you trial.
file a motion to dismiss instead of filing an
answer, a motion to dismiss is not So it's just like filing a motion to dismiss
considered as a responsive pleading; it is but you did not file a motion to dismiss;
the answer that is considered a responsive you filed your answer and then you ask the
pleading. And under the rules, if there is court for a preliminary hearing of your
yet no responsive pleading filed, the affirmative defense, you ask the court to
hear it ahead of the trial on the merits.

of your counterclaim? The very same
That's one of the advantages of filing an contract and in your answer you said, 'I did
answer right away and incorporating the not violate the contract, you read the
affirmative defenses there. contract, in the contrary it is you who
violated the contract, you are the one liable
to pay me damages' That's what we call as
Examples of Affirmative Defenses: compulsory counterclaim.
Prescription
Statute of Fraud 2. You filed a case against me for
Illegality collection of sum of money. You claimed
Estoppel, release, payment, etc. that I borrowed money from you and I did
not pay you so you filed case of sum of
* When you file your answer, you may money with damages. Now my answer is
incorporate not only the affirmative this, 'I have already paid you. I even have
defenses, you can also incorporate a a copy of the receipt you signed
counterclaim. evidencing that I already paid you. And
because you dragged me unnecessarily
E. Counterclaim: into this case, I demand damages from
A counterclaim is any claim which a you.' So counterclaim, but my counterclaim
defending party may have against an arises out of the same transaction which is
opposing party (sec6) the subject matter of your complaint and
what is that? A contract of loan. The
>This is a pleading that is included in the promissory note that I signed. So when I
answer. said, 'I have paid the loan', I'm referring to
>Actually a claim of the defendant against the same loan which is the subject matter
the plaintiff, and this claim of the defendant of your complaint. My counterclaim is a
against the plaintiff may arise out of the compulsory counterclaim.
same transaction which is the subject
matter of the plaintiff's complaint or it may *If the counterclaim is compulsory, the
arise out of a separate transaction in which rules provide that it should be set up in
case a counterclaim may be classified into your answer. It's mandatory. You have to
compulsory counterclaim and permissive raise your compulsory counterclaim in your
counterclaim. answer, otherwise it is deemed waived.
Yo u c a n n o t t r e a t a c o m p u l s o r y
KINDS OF COUNTERCLAIM counterclaim separately from the case that
a. Compulsory was filed by the plaintiff because your
>arises out of the same transaction/ counterclaim is related to the claim of the
occurrence which is the subject matter of plaintiff.
the plaintiff's complaint
b. Permissive
ex. 1. The plaintiff filed a case against you >It is a claim of the defendant against
for breach of contract with damages. Now, the plaintiff which did not arise out of
you the defendant filed your answer and transaction which is the subject matter of
said, 'I did not violate our contract, I have the plaintiff's complaint. If you are the
committed any act in violation of the defendant, as defendant, you can always
contract, on the contrary, it is you who raise any claim you have against the
violated the contract, and you are the one plaintiff, even not related to the subject
who is answerable to me for damages'. matter of the plaintiff's complaint. You can
What kind of counter claim? Compulsory. raise that up in your answer but that is
Because it arises out of the same called permissive counterclaim.
transaction (contract that you entered into)
which is the basis of plaintiff's complaint. ex. You filed a case against me for
Plaintiff is saying you violated that contract collection of sum of money. You claimed
and for this reason he's asking for that I borrowed money from you,
damages from you. Now, what is the basis evidenced by a promissory note that I

signed and I did not pay you upon maturity, >so you cannot set up a counterclaim that
so you filed the case. In my answer I said, is not cognizable by regular court of justice
'Okay I admit that I borrowed money from
you and I have not paid you but Mr ex. You filed a case against me for
Plaintiff, you probably forgot that you also recovery of sum of money, and then in my
borrowed money from me before and you counterclaim I said, 'Okay I admit that I am
have not paid me, here I have a copy of indebted to you but you probably forgot
the promissory note that you also signed, that at one time you hired me as your
nakalimot lang ka, utangan sad ka nako' employee and you have not paid me my
salary and benefits as an employee'.
Can I set that up as a counterclaim in your
complaint against me? Yes. This did not Can I off set this claim against your claim
arise out of the same transaction. It refers for collection of sum of money? NO.
to a different transaction which happened Because my claim against you arises out
before. But I can set that up because I can of an employment contract which is
set up any defense I have against you cognizable by the labor court. Labor case
whether it arises out of the same man ni imong counterclaim, di man ni
transaction of not which is the subject cognizable by RTC or MTC. You file that
matter of your complaint. That is why a with the NLRC or DOLE. So your
permissive counterclaim is otherwise counterclaim must be within the jurisdiction
known as set-off. In other words, ug may of a regular court.
utang ka nako kani adto and then you filed
a case against me now for that loan that I 2. it arises out of or is connected with a
obtained that I did not pay, I can use that transaction or occurrence constituting
previous liability to set-off or to set your a subject matter of the opposing party’s
claim. claim;
>this is what I mentioned a while ago, to
But a permissive counterclaim, unlike a be considered as compulsory, it must arise
compulsory counterclaim, may or may not out of the same transaction which is the
be set up as a counterclaim in my answer; subject matter of the plaintiff's claim
it's optional.
3. it does not require for its adjudication
In the case of a compulsory counterclaim, the presence of third parties whom the
it's mandatory that you raise that in your court cannot acquire jurisdiction;
answer otherwise it is deemed waived-- >your counterclaim must be against the
you would not be able to recover that plaintiff only; if you include other persons
compulsory counterclaim anymore which the court cannot acquire jurisdiction
because you are not allowed to recover because that other person is already
the compulsory counterclaim residing abroad, he cannot anymore be
independently from the main action filed by served with summons, then you are not
the plaintiff. allowed to raise that counterclaim in your
answer
In the case of permissive counterclaim,
you are always allowed to treat it as a 4. it must be within the jurisdiction of
separate case anyway it arises out of the court, both as to the amount and
another transaction so you can always the nature thereof, except that in an
treat it as a separate case; you may or you original action before the RTC, the
may not raise that up. counterclaim may be considered
compulsory regardless of the amount;
ELEMENTS OF COMPULSORY and
COUNTERCLAIM: >you filed a case against me for recovery
of sum of money that I borrowed from you
1. it is cognizable by a regular court amounting to 200k pesos, where will you
of justice; file the case? MTC because it's only 200k,
less than 300 man. Now, I filed a

counterclaim against you and said, 'But tried together with the criminal case
you also borrowed from me before and you because it will unnecessarily complicate
have not yet paid me, it is 500k pesos.' and confuse the criminal proceeding.
(Cabaero vs Cantos, 271 SCRA 392)
Can I set that up as my counterclaim Cabaero vs Cantos
against you? >The SC said no, you cannot anymore file
No because it is outside the jurisdiction of a counterclaim in the criminal case
the MTC. because it will unnecessary complicate
and confuse the criminal proceeding. In
Now if the case is filed in the RTC and fact the ruling of the SC in this case is now
then the counterclaim is less than the incorporated in the amendment to the new
jurisdiction of the RTC, meaning the rules of criminal procedure. Under the
amount of your counterclaim is cognizable amendment rules of criminal procedure,
by the MTC, can you still set that up as a there is a specific rule there that says no
counterclaim before the RTC? counterclaim is allowed in criminal cases.
Yes that is allowed basta ang original
action naa sa RTC the RTC can always F. Cross- Claim:
accept a counterclaim even if it is lower is any claim by one party against a co-
than the jurisdictional amount for the RTC. party arising out of the transaction or
occurrence that is the subject matter either
But if it is in the MTC, the counterclaim of the original action or of a counterclaim
must be within the jurisdiction of the MTC. therein.
5. the defending party has a >This is a claim of the defendant against

counterclaim at the time he files his his co-defendant. So here it presupposes
answer. that the plaintiff filed the case against
>In other words, the counterclaim must be several defendants (2 or more), and one
already be existing at the time the answer defendant claims that he is not answerable
is filed. It is not a counterclaim that for the claim of the plaintiff--it is his co-
accrues after the filing of the answer. defendant. Mura bag nagpinasahay ang
duha kinsa ang sad-an.
* Can you file a counterclaim in a criminal
case? This matter has already been Defendant A would say, 'Ikaw man gud bai,
settled by the Cabaero vs Cantos. ikaw may naka ingon ani tanan, imo man
ning sala so ikaw bayad'
Counterclaim in Criminal Cases
· (Ruling before) when the civil action If the court will decide the case holding me
is deemed impliedly instituted in the liable, I will pass on the liability to you, you
criminal action, the accused may set up a should be the one to pay.
compulsory counterclaim against the
complainant. (Javier v IAC, 171 SCRA Nagduot2x ang duha kinsa ang magbayad,
605). that is actually a case of a cross-claim
Javier vs IAC where one defendant passes on the blame
>The SC said that you may file a to his co-defendant.
counterclaim in a criminal case. It's
because when you file a criminal action,
the civil aspect is deemed impliedly G. Reply:
instituted with the criminal action. So is a pleading, the office or function of
instituted man, the SC said, then you can which is to deny, or allege facts in denial or
file a counterclaim insofar as the civil avoidance of new matter alleged by way of
aspect of the case is concerned. defense in the answer and thereby join or
make issue as to such new matters. if the
· This ruling was later on abandoned party does not file such reply, all new
when the Supreme Court said that a matters alleged in the answer are deemed
counter-claim of the accused cannot be controverted.

Negative Defenses, Answer to the
>A reply is actually an answer of the Counterclaim of the Defendant, so duha.
plaintiff to the defendant's answer. So
plaintiff files a claim against defendant-- So please don't confuse Reply with the
defendant files his answer--and if there are Answer to the Counterclaim.
new matters raised in the answer of the
defendant which requires the plaintiff to When is reply mandatory? (Reply is not
answer, then he can do it by way of a mandatory except below)
reply. 1. Where the answer alleges the
defense of usury. ( See: Liam Law vs
>A reply is different from an answer to Olympic Sawmill, L-30771, May 26, 1984)
counterclaim. 2. When the answer is based on the
actionable document.
* You filed a case against me, you are the
plaintiff, I am the defendant. Then I filed * There was a case before where the court
my answer, my answer contains a said that when there is allegation of usury,
counterclaim, do you have to answer my the other party should deny that allegation
counterclaim? Should the plaintiff answer of usury under oath. And so if the
the counterclaim of the defendant? As a allegation of usury is contained in the
rule, a counterclaim is in the nature of an answer of the defendant, the plaintiff will
independent action of the defendant have to deny that under oath by way of a
against the plaintiff, and therefore it has to reply (so he must have to file a reply and
be answered. also under oath). Later on, in the case of
Except: if the counterclaim is clearly Liam Law vs Olympic Sawmill

compulsory arising out of the same The SC said that if the allegation of usury
transaction which is the subject matter of is found in the Answer of the defendant,
the plaintiff's complaint, it may not be there is no need for the plaintiff to deny
answered; it is deemed controverted, if not that under oath. The allegation of usury
denied. shall only be denied under oath when it is
found in the complaint of the plaintiff. The
* Reply is different from answer to defendant will have to deny it under oath.
counterclaim because Reply is your
answer to new matters raised in the Ex. The plaintiff filed a case to nullify the
defendant's answer. Di ba when the contract of loan between him and the
defendant will answer the complaint, he defendant because according to the
will answer the complaint paragraph by plaintiff, the defendant in that contract
paragraph, and one method of answering imposes a usurious rate of interest, so he
is specific denial or negative defense wants the agreement to be nullified. Now
where the defendant will say, 'Paragraph 5 here the defendant will have to deny the
of the complaint is specifically denied for allegation of usury raised by the plaintiff in
the truth of the matter is this...' If the the complaint.
plaintiff says, 'That is not the truth, that is a
lie'. So the plaintiff will have to answer that But now this ruling in Liam Law is no
answer of the defendant, di ba? The longer of utmost significance considering
answer of the plaintiff to the defendant's that there is no more usury law. The
negative defense is called Reply. If the Central Bank has already removed the
defendant's answer contains a Usury Law; the parties are now free to
counterclaim, especially a permissive stipulate any amount of interest in a
counterclaim, then the plaintiff will also contract of loan. Kani adto naa man gud
have to answer the counterclaim. So the ceiling.
pleading that the plaintiff will file will be
Reply with Answer to Counterclaim, so Although there is no more ceiling, the SC
usahon na lang niya--Reply to the will not allow an interest that is exorbitant.
So it's now the court who will guard.

That is why, in the third party claim, leave
* The second exception is still applicable of court is required. You cannot file a third
now: when the answer is based on the party complaint without leave of court.
actionable document, then the plaintiff will
have to deny it under oath. Later on in the > In a cross claim there is no need for
next rule we will discuss what is actionable leave of court because the person that you
document but an actionable document is are filing a claim against is already a party
actually a document that serves as a basis to the case. Di ba sa cross claim ang
on the parties' claim or defenses. imong pabayron kay imong co-defendant,
so he's already a party to the case, no
Ex. the plaintiff filed a collection case need for the permission of the court.
against the defendant, then the defendant
in his answer says, 'I have already paid
that loan, here I have the receipt to prove *Third party complaint must be with leave
payment'. He attached the receipt to his of the court.
answer, then that receipt is an actionable *when the court denies a motion to file
document that is attached to the answer. It third party complaint, the remedy of the
is necessary for the plaintiff to deny the party is appeal.
actionable document (the receipt) under
oath otherwise he is deemed to have ex of a third party complaint:
admitted the genuineness and the due
execution of that document. 1. You file a case against me for quasi-
delict or damages arising out of my
negligence or reckless imprudence. I
H. Third (Fourth etc) Party Complaint: bumped your car and it causes damage to
is a claim that a defending party may, with your car so you filed a case against me for
leave of court, file against a person not a damages. Now my answer is this, 'It is not
party to the action, called the third me who is responsible for the damage of
(fourth,fifth, etc.) party defendant, for your car. I bumped your car because a
contribution, indemnity, subrogation or any truck behind me bumped me from behind.
other relief, in respect of his opponent’s He is the one responsible.' So what will I
claim (sec 11) do? I will file an answer with a third party
complaint against the truck driver or owner
> This is also a pleading that is of the truck who bumped by car and
incorporated in the answer. The answer pushed my car towards your car. So that is
may contain several pleadings aside from answer with third party complaint.
answer; you can have answer with
counterclaim, or answer with cross-claim Now that person is called third party
(against your co-defendant), or answer defendant. Ako, I'm called the defendant,
with third party complaint. at the same time third party plaintiff. So,
defendant/third party plaintiff vs reckless
> If you are the plaintiff you filed a claim driver at the back as the third party
against me, and I as defendant will say, defendant.
'It's not me who is answerable for this, it's
him' who is not a party to the case. You may have seen there, 4th party, 5th
party defendant. What does it mean? Now
>In a third party complaint, you drag an if the truck driver says there is another
outsider to be made as a party to the case driver who bumped him who is the one
so that in the event the court will now responsible then he can also file a 4th party
decide against you, you will pass on the complaint. So siya, ang tawag niya sa
liability to the third party. original complaint is 3rd party defendant
but he can also be at the same time be a
In a cross-claim, the other party dragged is 4th party complainant against the other
a co-defendant; while in a third party claim, one; and the 4th party can also drag
the other party is an outsider to the case. another one and say naa say nakabangga

niya sa luyo so he can be a 4th party The caption sets forth the name of the
defendant and at the same time 5th party court. the title of the action, and the docket
plaintiff, so on and so forth. number if assigned.

The purpose of all these complaints (3rd B. BODY:
party, 4th party, etc) is for indemnity or The body of the pleading sets forth its
subrogation or contribution because if the designation, the allegations of the party’s
court will order him to pay, he can pass on claims or defenses, the relief prayed for
the liability to the other defendant. and the date of the pleading.
-Paragraphs
*Where the trial court has jurisdiction over -Headings
the main case, it also has jurisdiction over -Relief
the third party complaint regardless of the -Date
amount involved as a third party complaint
is merely ancillary to and is a continuation The body of the pleading must be
of the main action. presented in paragraphs form.
(sir shows an example of a caption in a
The purpose of third party complaint pleading – upper center portion:)
a. Contribution Republic of the Philippines
b. Indemnity 7th Judicial Region
c. Subrogation Regional Trial Court of Cebu, Branch 24
d. any other relief in respect to opponent’s Cebu City
claim
*Magpa-reimburse ka kay dili ikaw ang Left portion – name of the parties: plaintiff
sad-an, ang lain nga tao. and defendant
Juan Dela Cruz as Plaintiff; Pedro Delos
Reyes as Defendant
FOUR TESTS TO DETERMINE If there are several plaintiffs, you have to
PROPRIETY OF THIRD- PARTY name them all in the complaint because
COMPLAINT the complaint is an initiatory pleading.
1. whether it arises out of the same EX: An action to recover a property co-
transaction in which plaintiff’s claim is owned by many (inherited properties from
based. your parents but giangkong ug laing tao)
2. whether the third party’s complaint, So kamo tanan siblings must be named as
although arising out of another transaction, plaintiffs because you are all indispensable
is connected with the plantiff’s claim; parties. If naay dili mu-join, include him as
3. whether the third party defendant a defendant – will be called as an unwilling
would be liable to the original plaintiff’s co-plaintiff.
claim, although the third party defendant’s So only in initiatory pleading where all the
liability arises out of another transaction.; plaintiffs will be named because in
4. whether the third party defendant subsequent pleading, they need not be
may assert any defense which the third mentioned anymore. Ang gauna nalang
party plaintiff has or may have againts which is Juan Dela Cruz, et. al (and
plaintiff’s claim. others). On the other hand, if several
defendants, Pedro Delos Reyes, et. al

RULE 7
PARTS OF A PLEADING Right side - case number and title of the
case
There are only 2 important parts of the Civil Case No. 12345 (Here in Cebu, there
pleading: caption and body. is “pakapin” nga CEB just to state na Cebu
sya na case; if Davao then DVO; Manila is
A. CAPTION MAN same sa Mandaue)
When you file your complaint in the Clerk
of Court, pagdawat ana, mag-assign

dayun ug docket number, below it is the You can now ask payment for damages,
title. reimbursement for attorney’s fees,
litigation expenses and cost of suit. And
Title – not determinative of the nature of then you state below it the date and place
the case; what really determines the when you submitted your pleading. So sa
nature of the action is the allegation in the ubos, indicated there is Cebu City,
complaint. So bisan pa butangan na nimo Philippines; November 28, 2017. Below
ug collection of sum of money pero ang the date and place of the pleading will now
allegation sa ubos is specific performance be the name of the lawyer.
diay then it is a specific performance case. Atty. ____
That is why the jurisdiction of the court is Counsel for the Plaintiff
determined not by the title but by the Address
allegation of the complaint.
Signature and Address:
The allegations in the complaint will be *Implied certification in pleading
presented in paragraph forms so *Bar Matter No. 287 (Sept 26, 2000)
paragraph by paragraph. Usually, in the Counsel should indicate PTR and IBP
case of a complaint, the 1 st or 2 nd Official Receipt No. or lifetime member
paragraph is for the introduction of the number
parties. *Bar Matter No. 1132 (April 1, 2003)
Counsel should indicate his Roll of
EX: (Paragraph 1) – plaintiff is of “legal
age, Filipino, married and a resident of Attorney’s Number
Lahug, Cebu City while the defendant is In addition to the name of the lawyer and
likewise of legal age, Filipino, married and his address, Bar Matter 287 further
a resident of Guadalupe, Cebu City where provides that the counsel should indicate
they may be served with summons and his PTR number(Professional Tax
other processes of this Honorable Court.” Receipt- to show that you are paying your
taxes as a lawyer; not allowed to practice
If a party is a corporation: you must also
state that the party is a “corporation duly law if you are not paying your tax) and IBP
registered in accordance with the law of Official Receipt Number (to prove that
you’re regularly paying your IBP dues; a
the Republic of the Philippines where the
principal office is at ___ where it may be member of the IBP in good standing) or
Lifetime Member Number (payment of
served with summons and other processes
of this Honorable Court.” IBP dues in lump sum).
After introducing the parties that is now the Under Bar Matter 1132 counsel should
also indicate his Roll of Attorneys
time for you to start telling your story. You
now allege facts that will prove the cause/s Number. (higher number indicates being
a new lawyer)
of action.
EX: On such and such a day, defendant Additional Bar Matter issued by the SC
entered into a contract of loan…. that you also have to put in your pleading
below your name is your cellphone
After you have presented the ultimate facts
in the complaint then you state your number and e-mail.
prayer/reliefs/remedies. “Wherefore,
premises considered, it is most respectfully D. Verification:
prayed in this Honorable Court to issue After the name of the lawyer; it is like an
judgment in favor of the plaintiff and affidavit; sworn statement because it will
against the defendant as follows: be notarized by a lawyer where the
1. To declare the contract of sale complainant/plaintiff will state – “I, Juan
between plaintiff and defendant as dela Cruz, of legal age, Filipino, married
null and void for the reason of….” and a resident of Lahug, Cebu City, after
having been duly sworn in accordance with
law do hereby depose and say:

1. That I am the plaintiff in the above- the case that have filed; required only in
entitled case initiatory pleading – complaint,
counterclaim
2. That I have caused the preparation
of the foregoing complaint ➢ Certification of non forum shopping
applies only to permissive counterclaim
3. That I have read the contents of my and not to compulsory counterclaim (Sto
complaint and understood the Tomas University Hospital v Suria, 294
contents therein SCRA 382, August 17, 1998)
4. All the allegations stated therein are
➢ It is mandatory that the certification be
true and correct to the best of my
personal knowledge or based on executed by the petitioner himself and not
by counsel (Far Eastern Shipping Co vs
authentic records”
CA et al GR NO. 130068, October 1,
Verification in the pleading refers to that 1998)
portion of the pleading where the pleader
What happens if found later on that there
certify that he caused the preparation of
the pleading and that all the allegations is another case pending in another court
similar to the case having been filed then
therein are true and correct of his own
knowledge and belief. you are guilty of forum shopping and the 2
The pleader’s affirmation of the truth and cases will be dismissed. You can even be
sanctioned/cited in contempt of court. So
correctness of his allegations in the
pleading must be based not only on his purpose of non-forum shopping is to
assure that the party is not trying to look
“knowledge and belief” BUT on his
“personal knowledge” or “based on for the best forum to get a favorable
authentic records” judgment. It is similar to litis pendentia –
ground for the dismissal of the case.

Should all pleadings be verified? RULE 8
As a general rule, pleadings need not be MANNER OF MAKING ALLEGATIONS IN
verified; it is only required when the law PLEADING
so provides as in the following:
Petition for Relief from Judgment A pleading is a written statement that
Petition for Review under rule 42 contains the parties’ respected
Petition for Review under rule 43 claims(plaintiff) or defenses(defendant).
Appeal by Certiorari under rule 45 How do you present your pleading in
Petition for annulment of judgment court?
of RTC
Petition for Certiorari, Prohibition, A. What a pleading must contain:
Mandamus, etc. every pleading shall contain in a
methodical and logical form, a plain,
The law enumerates what pleadings need concise, and direct statement of the
to be verified. If the law provides that you ultimate facts on which the party pleading
don’t have to verify then don’t verify it. relies for his claim or defense as the case
Why? Because you are exposing yourself maybe, omitting the statement of mere
to the danger of perjury. The purpose of evidentiary facts.
verification is to assure that the pleader will
be telling the truth in his pleading because
if not, then he will be liable for perjury.
Two kinds of facts in a pleading:
E. Certification of Non Forum Shopping: a. Ultimate facts – necessary; facts relied
➢ Certification is required only in upon in support of your pleading; refers to
INITIATORY PLEADING facts that will establish plaintiff’s cause/s of
To be signed also by the pleader; must action (complaint); (answer of the
state that there is no other case similar to

defendant) allegations in the answer that the Lupon yet have not settled so you were
supports the defendant’s defense issued a certification to file action.
b. Evidentiary facts – no need to be 2. capacity to sue and be
included in the pleading; avoid mentioning sued(particularity)
this in your pleading because it will make 3. allegation of fraud or mistake(particular)
the pleading very long, court does not want malice, intent, condition of mind (general)
very long pleadings; reserve it for the trial So when you allege that you were
of the case; it is during trial that you deceived by the defendant in entering into
present these facts; evidentiary facts are the contract, you must explain in your
those that will support the ultimate facts; complaint how the act of deception was
these are the facts that will prove/establish committed; not enough if you just state
the ultimate facts there nga I was deceived, unsaon
pgkahibaw sa korte nga giilad ka?
B. Alternative causes of action or
defense: 4. allegation of judgment (general)
ALTERNATIVE CAUSES OF ACTION – No need to prove that the court who
you may use this cause of action or the rendered the decision has no jurisdiction;
other cause of action if you are not sure always presumed that the court has
which one is your proper cause of action jurisdiciton
5. official document or acts (general)
C. HOW ALLEGATIONS IN A PLEADING
ARE MADE: D. Actionable Documents:
There are certain allegations in the * what is an actionable document –
pleading that you have to state with attached to the pleading and serves as the
particularity; there are also allegations that basis of the plaintiff’s complaint/basis of
you need not state with particularity – may defendant’s answer
present it with generality * how to plead an actionable document
1. condition precedent (generally) 2 ways of pleading:
There are conditions precedent before you
can file a case: 1. You may allege the material portion of
• Exhaustion of administrative that document that may support your
remedies complaint but no need to put everything;
• Earnest effort to settle the matter just pick out those paragraphs relevant to
you but you have to attach the entire
amicably if it is a suit between document itself
members of the same family (state
that you exerted diligent effort but it EX: That on such and such a day plaintiff
proved futile so you are now filing a and defendant enters into a contract.
case) Suppose the contract consists of 20
• Katarungang Pambarangay – when pages, you just pick out the portion of the
contract which is relevant to you as a
the parties are residents of the same plaintiff. What are those portions/
barangay or cities or municipalities, paragraphs violated? I-cite nimo but at the
before they can go to court, they will end you put that a copy of the entire
have to pass through the barangay contract is hereby attached as Annex A for
level for conciliation. And if cannot reference.
attain settlement then the brgy
captain will issue a certification to file 2. Copy verbatim the wording of the
action. contract in which case no need to attach
This matter can be alleged in the pleading the copy of the whole document anymore;
generally, no need to describe when ka good only if the contract consists only of 1
niadto sa brgy captain, unsay nahitabo sa or 2 pages like promissory note
conciliation proceeding; just state that
before you filed the case, you referred it to

* how to contest such document that he bought the property as evidenced
Rules proved that if there is an actionable by the Deed of Sale but when you read the
document attached to the pleading, the Deed of Sale it very hanap, how could you
other party will have to deny that intelligently answer it if di man nimo
actionable document under oath. mabasa? If you are the defendant, you can
file for a Bill of Particulars or you can ask
E. Effect of failure to deny under oath an to present the original copy of the
actionable document: deemed to have document in the court so that you will
admitted the genuineness and the due be the one to photocopy such. If the
execution of the document plaintiff will not present the original in court
GENUINENESS – cannot anymore then the rule on implied admission will not
question the document as fake because it apply, the defendant is not deemed to
is genuine have admitted because he did not obey.
DUE EXECUTION – cannot anymore say
that it’s a forgery because it is duly F. Specific Denial:
executed Two ways to make a specific denial
1. by specifically denying the averment
If you have failed to deny under oath, you and whenever possible, settling forth the
are deemed to have admitted the substance of the matters relied upon for
genuineness and due execution of the such denial; and
document but it does not prevent you EX:
from proving during the trial that document
although genuine, does not reflect of the • Par. 5 of the complaint is specifically
true agreement; there are some matters denied for the truth of the matter is
there which does not reflect our true this…(explain)
agreement – allowed to do it because it • Par. 5 of the complaint is denied for
does not conflict the genuineness and due lack of knowledge or information
execution of the document sufficient to form a belief as to the
truth or falsity of the statement/
Exceptions: allegation therein…(in short, idk what
a. when the adverse party is not a party to you’re saying) – this kind of denial
the document will be considered an admission if
EX: Plaintiff files a case against the you make this kind of denial on a
defendant to recover the land which the matter that is known to you (i.e.
plaintiff claims to be owned by their Plaintiff says on such a day you
parents who already died but giangkon sa entered into a contract of loan, you
lain so sila managsuon filed a case. The borrowed money and signed a
defendant claims that he already bought promissory note to pay on a certain
the land from their deceased parents and date but you just answered I don’t
showed a Deed of Sale allegedly signed know or when the pleading alleges
by the parents of the plaintiff. The plaintiff that you are in possession of a
failed to deny it under oath by way of a document and then you deny the
reply. Are they deemed to have admitted contents of the document; you
the genuineness and due execution of the cannot deny the contents of the
document? NO. The rule on implied document that is in your possession
admission will not apply to them because kanang muingon ka what is inside)
they are not parties to the Deed of Sale. 2. by an allegation of lack of knowledge or
So they can still prove nga fake to nga information sufficient to form a belief as to
Deed of Sale, dili to signature sa ila papa. the truth of the averment in the opposing
b. when the order for the inspection of the party’s
document was not complied with (see rule
27) Denial based on the lack of
EX: when an actionable document is knowledge or information sufficient to form
attached to the complaint, plaintiff says a belief (general denial) on the content of a
document which is actually in the

possession of the defendant is tantamount I mentioned to you before when a
to an admission (Warner Barnes and Co v complaint is filed against you, you have to
Reyes et al 103 Phil 662) answer that and you have to include all
Meaning of “negative pregnant” a available defences that you may have
form of denial which at the same time against that complaint. Otherwise, those
involves an affirmative implication defences that you did not include are
favorable to the opposing party it is deemed waived. This is known as the
tantamount to an admission. OMNIBUS MOTION RULE.
EX: The allegation in the complaint is that For example in your motion to dismiss and
on such a particular date you entered into you have several grounds, you have to put
a contract maliciously or fraudulently with all your grounds include everything.
the plaintiff which resulted to… but when Because you cannot raise it anymore later
you answered the complaint, imo gi-copy on.
word per word pero gibutangan lang nimo
sa ending or sa unahan ug “I deny”. It is a The defenses are found in Rule 16. In
form of a negative pregnant which section 1, it provides 10 grounds for a
tantamount to an admission. When you motion to dismiss.
deny, you are supposed to state what is A-1.Defenses and Objections not
the truth. deemed waived:

G. Allegations not specifically denied However, in the 10 grounds for a motion to
deemed admitted. dismiss, there are 4 grounds that are not
Refers to the averments in the complaint. deemed waived even if it was not raised in
Material averments in the complaint/ your answer or motion to dismiss.
pleading must be denied specifically in
your answer. 1. Lack of jurisdiction over the subject
Exceptions: matter;
1. Allegations as to amount of damages 2. Litispendentia;
2. Allegations which are immaterial to 3. Res Judicata; and
the cause of action; and 4. Prescription of action
3. Allegations in the complaint where no If these grounds are present, the court
answer has been filed by the defendant. may even motu proprio dismiss the case
*These are the 3 instances where the rule even if the defendant did not include such
will not apply ground.
H. Specific denial is not sufficient if not However in prescription, it must be

under oath in the following instances: apparent. If it is not apparent in the
1. allegations as to usury in the allegations of the complaint, the court will
complaint; and not dismiss the complaint.
2. authenticity and due execution of
actionable document properly pleaded
where the opposing party was a party All other grounds in a motion to dismiss
thereto are deemed waive if not raised.

A. Compulsory counterclaim or
cross-claim, not set up barred:
Civil Procedure – Dec 5, 2017
If you have a compulsory counterclaim
RULE 9 or a cross-claim against a co-
defendant, you need to set it up or else
EFFECT OF FAILURE TO PLEAD
you are barred.
A. Effect of failure to plead defenses A. Declaration of default:

and objections: WAIVED

1. When longer participate in the proceedings.
Although the new rule provides that he will
What is the effect if you failed to file your still be notified of the subsequent
answer within the reglementary period? proceedings but he will not be allowed to
participate. He can still go to court but he
The reglementary period is 15 days but cannot object. Mura ra siya ug wala ni
there are exceptions. exist.
The 15-day period will start to run after you
have received the summons that carries Once a defendant is declared in default
with it the copy of the complaint. there are two possibilities. One is the court
By the way the word used in the rules is may right away decide the case based on
not anymore plaintiff and defendant, but the complaint filed b y the plaintiff. Or the
claiming party and defending party. court may require the plaintiff to present
evidence ex-parte.
For example you can still be declared in
default even if you are plaintiff in the case But just because you don’t have an
of a counter-claim, because the plaintiff opponent, it does not mean you will win.
needs to answer the counterclaim. So if
the plaintiff fails to answer the Normally in cases that are not that simple,
counterclaim the defendant can ask the the court would ask the plaintiff to present
court to declare the plaintiff in default in so evidence ex-parte.
far to the counter claim.
1. Relief
So when you can be declared in default?
The defendant in default can still file a
motion to lift the order of default on the
When you fail to answer within the ground of the following:
reglementary period. There must be a • Fraud- must be extrinsic fraud and
motion to declare defendant in default not intrinsic fraud
because the court cannot motu proprio • Accident
declare the defendant in default. • Mistake
• Excusable negligence
The defendant may still file an answer Now your motion must be under oath,
even after the reglementary period as long verified, and it must be accompanied by an
as he still not declared in default. affidavit of merit.
If the court will not accept your late answer Affidavit of merit- a sworn statement of the
without a valid reason, the court can be defendant stating that if only the court will
compelled through mandamus because it allow him to file his answer he has a very
is still a right of the defendant to file his good a meritorious defense. Before the
answer. court will lift the order of default the court
must be convinced that he has a
1. Effect meritorious defense.
Once a plaintiff files a motion to declare Without the affidavit of merit, your motion
defendant in default, the court may grant it. will surely be denied.
It is still discretionary on the part of the
court to grant it or not. 1. Partial default
Once the defendant is declared in default, In a case where there are several
the defendant loses his standing in court. defendants and some defendants filed
When he loses his standing, he can no their answer while other did not. The court

can declare those who did not file their the contract would make you liable for a
answer in default and continue the case certain amount.
with the defendants who filed their
answer. 1. When no default is allowed
There are cases where default is not
But considering that the complaint involves allowed.
a common cause of action against all of • Annulment of marriage, legal
the defendants that the answer of the
answering defendants will benefit those separation, declaration of nullity
who did not answer. Si if the answering If the defendant will not answer, the court
defendant will be able to prove their will order the prosecutor to conduct an
defences and that the case was dismissed investigation if there is collusion between
that would benefit those who did not the parties. If it is shown that there is
answer. collision, the court will dismiss the case.
• Cases under rules of summary
In the case of lim tanhu v ramolete, there procedure
were several defendants but defendants
were bound by same cause of action and No default in cases under rules of
some defendants answered. So what he summary procedure.
did he entered to a compromise A. Rules to remember:
agreement with the answering defendants
and have the case against them • The court cannot declare the
dismissed. Now he ran after those who did defendant in default motuproprio.
not file their answer and was declared in
default. The Supreme Court said he • The grant or denial of default is
cannot do that. If the case against the discretionary on the court.
answering defendants is dismissed it also • Answer may still be filed if there is
means the dismissal of the case against
yet no declaration of default.
the defendants in default because they
have a common cause of action. • A motion to lift the order of default
should be under oath or verified and
1. Extent of relief to be awarded accompanied by an affidavit of
merit.
The court can only award those that are
claimed and proven by the plaintiff and the • An order of default is not appealable
court cannot award unliquidated as it is an interlocutory order.
damages.
But judgement by default is appealable.
Unliquidated damages are the damages Actually a defendant declared in default

that are subject to proof. You still have to has so many remedies when he loses a
prove it. Like moral damages, exemplary case.
damages. Most of the damages are • Motion to lift order of default-
unliquidated. You need to prove that you anytime before there is judgement
have sleepless nights, wounded feelings. by the court.
Even actual damages need to be proved,
you have to show receipts. • Motion for new trial- from the
moment there is judgement until
Liquidated damages are those that are judgement becomes final.
already fixed or determinable. An example • Petition of relief from judgement- 6
of this is when you enter into a contract months from the judgement became
and there is penal clause that breach of final.

• Annulment of judgement of the RTC leave of court because this is still a matter
by the CA (RULE 47) of right.
RULE 10 A. W h e n a m e n d m e n t m u s t b e
A M E N D E D A N D S U P P L E M E N TA L denied:
PLEADINGS
A. Amendment, how made: The court will not grant your amendment:
Amended pleadings can be done when 1. When the amendment is to delay

there are matters that you failed to include the action,
but were already existing at the time you The liberality in allowing amendments
filed the pleading. grow weaker and weaker as the
In amended pleadings, it may involve proceedings go further. If mu file ka ug
adding or subtracting some allegation in amendment kanang hapit na mahuman
the complaint. ang kaso, the court will surely not allow it.
You may italicize or underline or capitalize 1. When the amendment is for the
the added words. While in subtracting purpose of making the complaint
words you can enclose it in an open close confer jurisdiction upon the court,
parenthesis. If it’s clear in the complaint that the court
does not have jurisdiction and you now will
amend arun ma butangan ug jurisdiction
A. Types of Amendments: then that should not be allowed. Because
in the first place if the court does not have
1. Amendment as a matter of right jurisdiction, it has no authority to grant your
amendment.
When the defendant has not yet filed his
responsive pleading or answer and not a 1. When the amendment is for the
motion to dismiss. purpose of curing a pre-mature or
non-existing cause of action.
No need to file a motion for leave of court.
1. Amendment as a matter of When your complaint does not have a
cause of action, you cannot amend it to
judicial discretion
inject a cause of action.
Once the defendant has filed his answer
then you can no longer amend your You should distinguish this from imperfect
cause of action.
complaint without leave of court.
You must file a motion of leave of court to If the complaint contains a valid cause of
action only that it was not perfectly allege,
amend your complaint. You must attach
the proposed amendment to the motion, you can still amend the complaint.
this is a new requirement. A. Exceptions to the Rule that
A. Formal & Substantial amendment Defenses not raised deemed
waived:
Formal amendment- an amendment that
When issues not raised in the
does not change the theory of the case or
cause of action. You can do this anytime pleadings are tried with the express
without leave of court even after the or implied consent of the parties, they
shall be treated in all respects as if
defendant has filed his responsive
pleading. they had been raised in the
pleadings. Amendment may be
Substantial amendment- you can only do necessary to conform to evidence.
that with leave of court if there is already
an answer. But if no answer yet, you can This is what we call amendment to
conform to evidence.
still have substantial amendment without

A. Supplemental Pleading: therein not incorporated in the amended
pleading shall be deemed waived (Sec. 8).
Supplemental Pleading will set forth Although in the case of an emended
transactions, occurrences or events pleading the original pleading is deemed to
which have happened since the date be superseded, those admissions made by
of the pleading sought to be a party in the original pleading would stand
supplemented. It must be done upon and can still be used.
motion of the party, with reasonable
notice to the other party. Once The reason why a superseded pleading
approved by the court, the adverse may still be received as an evidence
party may plead thereto within ten against the pleader is because such is in
(10) days from notice of the order the nature of a judicial admission. Despite
admitting the supplemental pleading. is being superseded and withdrawn, the
admissions therein are still considered
In supplemental pleadings, it will only “extrajudicial admissions” and may be
introduce facts that occurred after the proved by the party relying thereon by
original pleading was filed. formal offer in evidence of such original
pleading.
Distinction between Amended and
Supplemental Pleading*
1. Amended pleading refers to facts at
the time of the commencement of
the action while supplemental Civil Procedure – December 11, 2017
pleading refers to facts arising after
the filing of the original pleading; Rule 11: When to File Responsive
Pleading
2. An amended pleading results in the
withdrawal of the original pleading (Period to file a responsive pleading:
while a supplemental pleading is
merely in addition to, but does not As a general rule, the period to file answer
result in the withdrawal of, the is 15 days. But there are certain cases
original pleading; where the period to answer is not 15 days
but 30 days. There is even one when the
The amended pleading will replace the period to answer is 60 days.)
original pleading. While in supplemental
pleading it does not replace but it is merely A. Answer to the Complaint:
an addition. *When to file
*Rule: Exclude the first day include the last
1. An amended pleading can be made day
as of right, as when no responsive
pleading has yet been filed while (In the ordinary civil action, whether it is in
supplemental pleading are always the RTC or MTC, the period to answer is
with leave of court. 15 days. The fifteen day period – you know
Amended pleading- with or without leave the rule, exclude the first day, include the
of court last day. When you say exclude the first
day, include the last day, that means the
Supplemental pleading- with leave of day you received the summons, you do not
court. include that. You start counting the 15-day
period the next day or tomorrow.)
A. Effect of Amended Pleading: *How to compute time

* Effect of Interruption
Admission in superseded pleadings may
be received in evidence against the (Now the 15-day period can be interrupted
pleader; and claims or defenses alleged by filing of some pleadings like: a motion to
dismiss, a motion for bill of particulars. It

will interrupt the running of the 15-day in the computation. You start counting the
period. And once the motion to dismiss is remaining 9-day period on March 11. So
granted, of course it will be resolved. But you have until March 19 to file your answer
once it is denied, then you have the (March 11-19 is 9 days).
balance of the period to answer.
You include Saturdays and Sundays in
But how do you compute the period in computing your period. Even legal holidays
case there is an interruption like a motion will be included. But if the last day falls on
to dismiss? The rule is that the date you a Saturday, Sunday, or legal Holiday, you
filed the pleading interrupts the may file the pleading the next working day.
reglementary period, it shall not be That is the rule regarding computation of
included in the computation. period and the effect of interruption.
Example: Suppose you received the Now, the 15-day period will not be followed
summons in January 1, you have 15 days if the defendant is a foreign corporation
to file your answer. The 15 day period will doing business in the Philippines.)
start to run on January 2, which is the next
day. And 15 days, this means January 16 B. Period to answer for defendant foreign
is the deadline for you to file your answer. corporation:
Now, suppose on January 8, you are the (When you say a foreign corporation, it
defendant and you filed a motion to must be a company that was incorporated
dismiss on January 8 then later on, the abroad and the main office is also there
motion to dismiss is denied. How many abroad. But if it is doing business in the
days are left of you to file your answer? Philippines, it can be sued in the PH. A
Remember that January 8 shall not be foreign corporation not doing business in
included in the computation of the period. the PH cannot be sued because our court
How many days has been used up? You cannot acquire jurisdiction over that foreign
have only January 2 -7, so you only used 6 corporation. It is only if it is doing business
days because you do not include January in the Ph that it can be sued.
8 because that is the day you filed the
motion to dismiss which interrupts the When you sue a foreign corporation that is
running of the period. That means, you still doing business in the PH, when will the
have 9 days left of the reglementary summons be served? Who may receive
period. the summons?
Later on, when the court denies your The answer is this: if the foreign
motion to dismiss, you will have 9 days left corporation has a resident agent in the PH,
to file your answer. Now, remember also, summons shall be served to the resident
that the day you received the order of agent of that corporation and upon receipt
the court that stopped the interruption of the summons of the resident agent, that
shall not also be included. foreign corporation has only 15 days to
answer just like an ordinary defendant.
So, a motion to dismiss is a litigable
motion so it has to be heard by the court If that foreign corporation does not have a
so there must be a hearing. You file a resident agent, the summons for that
motion to dismiss on January 8, it cannot foreign corporation shall be coursed
be resolved right away, it will be scheduled through the proper government official
for hearing. It will take about 1 or 2 authorized to receive summons for and
months so let us say the court denied it in in behalf of the foreign corporations
March 10 and you received the decision and these are government official that
denying you motion to dismiss on March exercise supervision over these foreign
10. Until when are you going to file your corporations doing business in the PH.
answer? Remember that you only have 9
days left. When you received the order of Like for example: if that foreign corporation
the court in March 10, do not include that is engaged in the business of insurance,

like Sunlife of Canada. If it does not have a amended action or complaint. When the
resident agent here in the PH, the plaintiff amends the complaint as a matter
summons shall be served to the Insurance of right, he must furnish the amended
Commissioner. If that foreign corporation is complaint to the defendant.
a bank engaged in banking operations, the
summons can be coursed to the Governor From the time the defendant received the
of the Central Bank. If it engages in any amended complaint, he has 15 days to
other business, you can course the answer the amended complaint.
summons through the Secretary of Dept. Nevermind the original complaint that he
of Trade and Industry. received because amendment supersedes
the original complaint.
When the summons are coursed through
t h i s g o v e r n m e n t o f fi c i a l s , t h e s e Now, if the matter is no longer a matter of
government officials should be the one to right meaning, the defendant has already
see to it that the summons shall be filed its answer, the plaintiff must file a
delivered to the main office of that foreign motion with leave of court to amend the
corporation abroad. And once it is received complaint. What is the rule now? Any
by the foreign corporation, it has 30 days motion for leave of court to accept an
to file the answer kay layo man. amended complaint or supplemental
pleading, you must attach the amended
Now, there is another instance when the complaint, right? So what the plaintiff will
period to answer is longer and that is 60 do now is to file a motion for leave of court
days and that is when summons are to amend the complaint. The proposed
served through PUBLICATION. amended complaint will be attached to
the motion. He will file it in court and will
When the defendant can no longer be give a copy to the defendant.
located in the Philippines, the summons
shall be published in the newspaper of In the meantime, the defendant will not
general circulation because you cannot be answer right away. The defendant will
served with the summons personally, you have to wait for the decision of the court
cannot be found in the PH already. And whether the court will accept that amended
when the summons is published in the complaint or not. So the defendant will
newspaper, the period to answer that is 60 wait for the order of the court admitting the
days. If you will not answer within 60 days amended complaint. It will take some time
despite publication, you will be declared in before the court can resolve that, like
default. weeks or months. In the meantime, the
defendant has already a copy of your
So there are 3 periods here: proposed amended complaint so the
• 15 days: ordinary defendant/action defendant lawyer can already study the
• 30 days: foreign corporations answer to the proposed amended
• 60 days: publication complaint. By the time the court resolves
to grant the amended complaint, most
There is also a shorter period than 15 probably, mana nana ug make ug answer
days. Like crossclaim and counterclaim, ang defendant lawyer, he has more than
10 days only. enough time to answer already. That is the
  reason for the difference.)
C. Answer to Amended Complaint:
* if filed as a matter of right – 15 days Must an amended complaint be
* if filed not as a matter of right – 10 days answered?
(Well, if the amended complaint was done
(When is amendment a matter of right? as a matter of right, then you have to
when the defendant has not yet filed his answer it within 15 days. If it is done with
answer. When the plaintiff will amend its leave of court, it depends. If it is just a
complaint as a matter of right, the formal amendment, no need to answer.
defendant will have to disregard the Even in substantial amendment, no need

to answer because you already have an
original answer and your original answer I. Omitted counterclaim or cross-claim:
will serve as the answer to both the (This can be done by way of amendment.
original and amended complaint. But if the But this is, by way of an exception to the
amended complaint really presents or general rule, when you file your answer
introduces a substantial amendment, you and you did not include counterclaims or
better have to answer it. But if you do not crossclaims in your answer, they are
answer it, it is okay because you already deemed waived. Crossclaims or
have an original answer. You cannot be counterclaims that are not incorporated in
declared in default) your answer are deemed waived.
However, there is a way where it can be
D. Answer to counterclaim or cross-claim: inserted: mananghid kas corte,
magpakiluoy kas corte. So you have to file
A counterclaim or cross-claim must be a motion with leave of court and explain to
answered within ten (10) days from receipt the court why you failed to include the
thereof. Failure to file answer to the counterclaim or crossclaim and if you have
counterclaim is a ground to declare the a valid reason, the court might allow you.)
plaintiff in default. (Is this true? Yes, if the
counterclaim is permissive. But if the J. Extension of time to plead:
counterclaim is compulsory, you do not (Courts are very liberal on this. Motion for
have to answer it.) However, when the extension of time to file answer – when
counterclaim is so intertwined with the the matter is referred to you only now and
main action, as in the case of a there is few time left to file an answer and
compulsory counterclaim, the answer you need more time in order for you to
thereof is no longer needed. make a good answer. Usually, the court
will give 15 days.
(10 days because it is already with leave of
court. They are already parties to the main Motion for extension shall be filed within
action.) the 15 day period to answer. Do not file the
motion after the lapse of 15 days kay wa
E. Answer to third (4th) party complaint: 15 nay e extend ana.)
days
(15 days because the 3rd, 4th, etc party
here is an outsider to the case. He will be Rule 12: Bill of Particulars
dragged into the case by the defendant so
he will be treated as an original defendant) A: What is a bill of particular:
F. Reply: 10 days A bill of particulars is a more definite

statement of any matter which is not
G: Answer to supplemental complaint: 10 averred with sufficient definiteness or
days from receipt of the order admitting it particularity in a pleading so as to enable
the opposing party to prepare his
(Again, you will notice why 10 days responsive pleading. It should not be used
because he will have to file a motion with to ask the plaintiff to divulge evidentiary
leave of court. It will be attached to the matters.
motion and the other party will have a copy
of it. There is sufficient time to answer.) (A bill of particular is a kind of remedy
given to the answering defendant in the
H. Counterclaim & Crossclaim arising after event that the claim or complaint that was
answer filed is vague or ambiguous. If there are
(Can be introduced but not by way of allegations or averments in the complaint
amendment but by way of supplemental that are not well particularized, or that are
pleading because arising man after the not presented with sufficient definiteness,
answer. So, you can make a supplement the defendant should be allowed to ask for
to your answer.)

a clarification and that is the bill of If the judge, by reading the complaint, is
particulars. convinced that the allegations therein are
very clearly presented, then the judge can
How could you prepare a good and outrightly deny the motion for the bill of
intelligent answer if the complaint is particulars. The reason why the judge can
vague? So what you should do is to ask for act immediately on the motion for bill of
clarification. But you do not ask for particulars, can grant or deny it outright, is
clarification to the plaintiff directly. You because bill of particulars cannot (tolly??)
course it to the court – file a motion for result to the delay in the filing of answer
bill of particulars. Here, you are asking because under the rules, if a motion for bill
the court to direct the plaintiff to of particulars is filed, the period to answer
particularize his allegations in his is interrupted. It tolls the running of the
complaint so that you can now prepare a period to answer and then we wait for the
good answer to his complaint. court to decide on the bill of particulars and
that is the time that the period will start to
Also, you cannot use bill of particulars as a run again.
means to compel the other party to divulge
evidentiary matters. If you want to let the Now, some unscrupulous lawyers are very
other party divulge evidentiary matters, good in finding a way to delay the
you wait for the trial of the case to start proceeding especially if kapildehon. One
because he will be presenting his way delaying the case is bill of particulars.
evidences there to support the allegations Mo ingun jud ug “will you please clarify
of his complaint. what you mean by…” even if it is not
vague.
But there is another way which you can
illicit information regarding evidentiary So in the meantime that the court has not
matters and that is found under the Modes yet denied the motion for bill of particulars,
of Discovery under Rules 21-29 of the the period to answer is suspended so you
ROC like position taking, interrogatories to have enough time to answer now. You will
party – these are ways by which you will look for evidences to support your
be able to know the evidences of the other defense. That is why, the rules provide that
party. You can compel the other party to when a motion for a bill of particulars is
divulge evidentiary matters even before filed, the court can right away deny it if the
the start of the trial but that is another rule. court can see that you are filing it to cause
delay.)
But bill of particulars? No way. The
purpose is only to ask from the plaintiff If the motion is granted by the court, the
clarifications from the vague statements of compliance therewith must be effected
his complaint.) within ten (10) days from notice of the
order, unless a different period is fixed by
B. Action of the court: the court. The bill of particulars or a more
The clerk must immediately bring it definite statement ordered by the court
to the attention of the court which may may be filed either in separate or in an
either deny or grant it outright or allow the amended pleading, serving a copy thereof
parties to be heard. (Sec. 2) on the adverse party. (Sec. 3)
(Must notify the judge so that the judge (The 10 day period will apply only if the
can act on it right away. The judge can court did not specify the period in which
resolve the motion for bill of particulars by: the plaintiff must particularize his pleading.
granting or denying. There is also no need
for the judge to set a date or schedule of Now, how will the plaintiff present the bill of
hearing for the motion of bill of particulars. particulars?
This is one thing that does not require There are 2 ways:
hearing. 1. Filing a separate pleading that will
explain or clarify the meaning of

those that are considered as So we are governed by pleadings in
vague; or litigation. That is why a complaint, answer,
2. Just simply amend the complaint counterclaim, crossclaim, third party
and clarify there those that are compliant, and reply – they are called
vague. pleadings. So everything you want to say
to the court, you always do it by pleadings.
So like “par. a stated as blah blah blah
actually means blah blah blah” If you ask something, you do it by motions.
Motions are similar to pleadings also. Now,
Now, what will happen if the court directed what is the rule regarding the filing of
the plaintiff to particularize but the plaintiff pleadings? Rule 13 is the governing rule
did not obey? The court may strike out the and Rule 13 provides that every pleading
complaint and if the court may strike out must be filed and served)
that complaint, it means the complaint is
dismissed – so pilde na cya. But if what is A. Definition of Terms:
objected to is only a portion of the 1.) Filing (refers to the act of
complaint, it is possible that the court will delivering the pleading to the court and it is
only strike out that portion. But if that the Clerk of Court who will receive the
portion that the defendant seeks to clarify pleading)
is the gist of the complaint, mao nay cause 2.) Service (the act of furnishing a
of action nya mao na nuoy dili klaro, it will copy of your pleading to your opponent)
result to the dismissal of the case.
(These are two different things. When you
C. Effect of filing a bill of particulars: file a pleading in court, you must furnish
The filing of a bill of particulars your opponent with a copy of that pleading
stopped or interrupts the running of the 15 so that he can answer.
day period to file an answer.
(Now we go back to what we discussed in Which one should come first? Service.
Rule 11. What is the effect of the period of
interruption? If the defendant files a motion When you file a pleading, EXCEPT FOR
for a bill of particulars on the 8th day of the COMPLAINT, sa tanan nga pleading, ang
15 day period, you do not count the 8th complaint ra ang di ka mo furnish ug copy
day. It means that you only used up to 6 sa imong kontra because when you file a
days (Jan 1 ni file so mag start count sa complaint, what will you do? You go to the
Jan 2) – that rule will apply here. court and file the complaint and then the
clerk of court will prepare the summons
If your motion for bill of particulars is and then your complaint will be attached to
denied, then you have the balance of the the summons and will be given to the
15 day period within which you have to defendant by the sheriff. It is the court
answer. But if the balance is less the 5 through the sheriff who will furnish a copy
days, you are given at least 5 days to of the complaint to the defendant.
answer.
But all other pleadings after the complaint,
kinahanglan mag una ang service before
Rule 13: Filing and Service of the filing. Because, the court will not
Pleadings, Judgment and other Papers accept your pleading if there is no proof
that you have furnished a copy of your
(Please take note that in court pleading to your opponent.
proceedings, the claims and the defenses
of the parties are presented to the court for So, service will come first before filing
the courts judgment. But these claims and except in cases of complaint where filing
defenses are presented to the court in must go first than service.
writing and these written statements
presented to the court for the court’s How is this filing in the court done? Two
judgment is what we called as pleading. ways: personally or mail)

service. That person must be in sufficient
B. Manner of Filing: age and discretion. A housemaid may
Pleadings may be filed either personally or receive if he is already in sufficient age
by registered mail. Where the pleading is and discretion, that will be substantial
filed by ordinary mail or by private compliance with the law already.)
messengerial service, it is deemed filed on
the day it is actually received by the court, * By mail – Service by mail may be
not on the day it was mailed or delivered to done through:
the private messengerial service (Industrial 1.) Registered mail (preferred
Timber Corp v. NLRC, 233 SCRA 597) mode)
2.) Ordinary mail – only when
(Mail if your residence is very far so you registry service is not available
need not go to court personally anymore.
(What happens if you could not anymore
Preferred mode of mailing is via registered locate the address of the other party? Both
mail because if you mail it by ordinary mail the lawyer and the client are nowhere to
or through a private courier, the date of the be found – substituted service of
mailing is not the date of the filing. Date of pleading)
mailing is not the date of filing. But if you
do it by registered mail, the date of mailing * Substituted service of pleadings
is the date of filing. Ordinary mail is the – If service of pleadings, motions, notices,
actual receipt of the court that will be resolutions, orders and other papaers
considered as the date of filing) cannot be made personally or by mail, the
office and place of residence of the party
C. Service and Filing of Pleadings: or his counsel being unknown, service
may be made by delivering the copy to
* Personal Service – Personal the clerk of court, (clerk of court where
service may be made by: the case is pending) with proof of failure to
1.) Delivering personally a copy of the both personal service and service by mail.
pleading to the party or his counsel; (not The service is complete at the time of such
necessary to the party because service to deliver. (Sec. 8)
the lawyer is service to the client, notice to
lawyer is notice to client. The reason (This is different from substituted service of
behind this is that it is the lawyer who summons. Do not confuse yourself
knows about the pleadings. Clients do not because here, in substituted service of
know unsa nang pleading. If you give it to pleadings, the pleading is delivered to the
them, they will not undertand); or clerk of court, while substituted service of
2.) By leaving it in his office with his clerk summons, we are talking here of summons
or with a person having charge thereof naman and not complaint. You cannot give
(secretary of the lawyer or to any person in it to the court anymore but to someone
his law office who can be considered as in who is residing at the place of the
charge); or defendant of sufficient age and discretion.)
3.) If no person is found in his office, by
leaving a copy thereof, between eight in D. Service of decisions, orders or
the morning and six in the evening, at the resolutions:
party’s or counsel’s residence, if known, Service of court judgments,
with a person of sufficient age and decisions, orders or resolutions shall be
discretion then residing therein (Sec. 6) made by personal service, by registered
(If you cannot give it in any way to the mail or by publication. Service of decision
lawyer, then you can now give it to his by publication is allowed only if the
client. summons was also served by publication.
However, you cannot just give it to anyone (The decision of the court must also be
in the house of the lawyer. You cannot give filed and must also be served. It will be
it to a 5 year old boy, which is not proper served to all the parties, the plaintiff and

the defendant. But before it is served, it they will be the one who will personally
must be filed first. So bali. When it comes serve or deliver it to the law office of the
to decision, it must be filed first. So when opposing party.
the judge decides the case after he signs,
he will give a copy of the decision to the In case of appeals to the SC, there must
clerk of court and the clerk of court will file be an explanation why you did not deliver
it. The decision will be filed with the clerk it personally. The usual valid reason why
of court. And then, it will be the duty of the you mailed it instead is because of the
clerk of court to send out copies of the distance. Other lawyers, even if they are
decision to all parties concerned. only within the same place like Cebu City,
reasons out that they have lacking
Bali sa service of pleadings. Because in manpower that they do not have enough
the case of pleadings, the service will manpower who will deliver the pleadings. It
come first before filing iot in the court. But is very shallow but the court are lenient on
in the case of decisions, orders or the this basta kay madawat lang sa pikas.
court, filing will come first before service.
F. Proof of service:
One exception to that is when the * Personal service (The best proof
summons were served to the defendant of service is the signature of the lawyer or
through publication, the decision that will the secretary of the lawyer of the opposing
come out will also be published. So the party or the one who received it. mostly, it
service of the copy of the decision shall is at the back of the copy of the pleading
also be done by publication. This is that the opposing party received where the
because the defendant could no longer be signature is seen. There must be a
found. If the defendant could no longer be complete name of the receiving party, the
found, summons could be served through date received, and the signature.)
publication in the newspaper of general
circulation so it would be notice to the * Ordinary Mail (The best evidence
public and to everyone. Now, if the is the receipt of the mail. It is considered
summons was served by publication, the complete after the lapse of 10 days.)
decision will also be served by publication.
* Registered mail (The proof is the
E. Priorities in modes of service and filing: registry receipt in the meantime and then
Whenever practicable, the service later on, the registry return card. Because
and filing of pleadings and other papers if you send it through registered mail, you
shall be done personally. will be issued a small receipt. That small
receipt will be attached to the original
(That is why the new rules now requires pleading that you filed in court because the
that if you cannot serve it personally, then clerk of court will look for proof.
that it is the time you are allowed to mail it
and it should be by registered mail. And if Actually that is not the best evidence but
you mail it, you must have an explanation some courts are lenient because the best
why you did not serve it personally. The evidence should have been the affidavit
SC and CA are very very strict on this rule. of the server. Your messenger in the law
Your pleading will not be accepted if you office will execute an affidavit that he was
do not have any explanation as to why you the one who personally delivered the
did not serve it to the other party pleading to the law office of the other party
personally. and he will sign the affidavit and notarized.
That is the best proof of service.)
This is to prevent again unscrupulous
practice of many lawyers. That is why the G. Notice of Lis Pendens:
new rules now provide a priority mode. (This will only apply to real actions, actions
Whenever practicable, you serve it involving title to or possession or
personally. That is why most of the law ownership of a real property, the subject
offices now have messengers because

matter of the case, the controversy is
about ownership of the property. Civil Procedure December 12 2017
When the subject matter of the case is a

real property, it is good that a notice of lis Review on Rule 13:
pendens be annotated at the back of the • Every pleading filed in court must
title of the property. first be furnished to the opposing
party(opponent)
The purpose of this is to prevent the • The service of the pleading to the
property from being sold to someone who opposing party must come first
can now claim to be a buyer in good faith. before you file the pleading in court.
Because if the property is sold to someone However, there is one pleading
who is a buyer in good faith, you cannot which you are not required to
recover it anymore. furnish your opponent – complaint,
which is called the initiatory
So, when can the buyer claim to be a pleading.
buyer in good faith? When he brought the • In case of an initiatory pleading
property that is not subject to any lien or (complaint), you are not required to
encumbrance by annotation. Because if furnish a copy of that to the
you buy a property, all you have to do is to opposing party because it is the
look at the title if this has any annotation or court who will be the one to furnish
encumbrance. You do not have to look a copy of the complaint to the other
beyond the face of the title. If the title itself party. This is done by way of
appears to be clean, no annotation, and summons.
you decide to buy it, you can now claim to
be a buyer in good faith. So to prevent the Rule 14
property from being transferred to SUMMONS
someone who might claim to be a buyer in
good faith, you annotate a noptice of lis • A writ; a written order from the court
pendens in the title. requiring the defendant to file his
answer within the reglementary
For example: I filed a case against you to period of 15 days or 30 days, as the
recover a property which I believe is case may be.
owned by me. But the title of the property • Once a complaint is filed in court by
is already in your name. If the case is the plaintiff, it is the duty of the clerk
going on, I cannot prevent you from selling of court to immediately issue the
it kay naa man sa imong ngalan. So, I will summons and the complaint will be
put an annotation at the back of the title, a attached to the summons and it will
notice of lis pendens. be served to the defendant by the
sheriff.
You submit the notice of lis pendens to the • It contains only one sentence, and
ROD. You write a letter to the ROD, a says: “You are hereby required to
notice of lis pendens is like a letter, answer the attached complaint
informing the register of deeds that this within the reglementary period of 15
particular parcel of land covered by this days.” You’re failure to answer may
title is subject to the pending case between cause you to be declared in default.
you and the titled or declared owner of the
property. A. Issuance and contents:
• Issued by the clerk of court not the
If it is bought by a third party even having judge; clerk of court signs the
the annotation, the third party cannot claim summons
to be a buyer in good faith.) A. By whom served:
1. Sheriff
2. Deputy sheriff

3. Other proper court officer (i.e. looking for the defendant and once
process server) the defendant is already found/
4. Any suitable person authorized by located, the plaintiff must
court immediately notify the court so that
• Only the above persons can serve the court can issue alias summons.
the summons; the Chief of Police, • Once the summons is returned to
Brgy Captain, Chief of Brgy Tanod the court, it becomes ineffective.
cannot serve summons without But if later on the defendant is
authorization from the court already found then the court will
• In far away places where the Sheriff issue another summon.
could no longer reach the place, • If the Sheriff has already served the
they may course the service of summons on the defendant, the
summons through the brgy captain Sheriff must also make a report/
of that place or the chief of police of return to the court within 5 days
that place but there must be from the time he served the
proper authorization from the summons of the defendant. He
court. Without the authorization, the must furnish a copy of his return to
service of summon will not be the plaintiff’s counsel so that the
considered as valid. lawyer of the plaintiff will know when
the summons was served so that he
*Service of summons is MINISTERIAL. can start counting the 15-day
Thus, service of summons may be made period.
at night, during the day, on Sunday or even • If the 15-day period has lapsed
holidays because of its ministerial without any answer from the
character. (Laus vs Court of Appeals, 214 defendant, the lawyer of the plaintiff
SCRA 688) can immediately file a motion to
- Service of summons can be made declare the defendant in default.
anytime of the day; it is a ministerial job of That’s why it is very important that
the sheriff to serve the summons the lawyer of the plaintiff be notified
- Summons can also be served anywhere, as to the date the summons was
not necessarily at the residence of the received by the defendant.
defendant or at the place of work of the
defendant; anywhere the defendant could C. Modes of service:
be found
1. Personal service (Sec 6) - it is
*Return of Service of Summons (within 5 effected by handing a copy thereof
days) to the defendant in person and if he
- If defendant cannot be located or could refuses to receive and sign for it, by
not be located by the Sheriff then the tendering it to him (Sec 6). It can be
Sheriff must have to return the summons served on the defendant anywhere
to the court and will make a report – he is found.
Sheriff’s Return of Service of Summons • Preferred mode of service of
– then he will render a report to the judge summons
that despite diligent effort, he could not • The Sheriff entrusted with the
locate/serve the summons on the summons by the court will have to
defendant personally deliver the summons
- If summon not served to the defendant, together with the complaint to the
case cannot move because the court has defendant. It is the duty of the
not acquired jurisdiction of the defendant Sheriff to look for the defendant; to
yet. fi n d h i m a n d d e l i v e r t o h i m
personally the summons.
• Alias summons issued • If the defendant will refuse to accept
• When the summon is returned by the summons then the Sheriff
the Sheriff unserved, it is the duty of should tender it to the defendant,
the plaintiff to help the court by leave a copy of the summons and

the complaint in front of the defendant, he will verify asa man
defendant and then make a report diay ang defendant makit-an? If the
to the court that the defendant maid will say nga kana ako amo
refuse to receive the summons – makit-an rana siya sa
already considered to be proper buwangan(cockpit) every Sunday
service of summons; considered kay tua man sya didto then the
personal service. Sheriff will go to the buwangan,
• The court should not be held atngan niya didto because the
hostage by the refusal of the summons can be served
defendant to receive. If muingon anywhere. If muingon nga ang
ang defendant nga di siya mudawat defendant tua sa night club then
kay basin ma-priso siya (mentality pwede na i-serve sa night club
of many nga summon = warrant) during night time. If muingon nga
then leave it there and report to the ang defendant tua sa eskina
court – that is already considered nag-inom, pwede gihapon didto i-
personal service of summons. serve basta kay anywhere
madakpan ang defendant. But if
1. Substituted service (Sec 7) - (a.) by after several attempts the defendant
leaving copies of the summons at could not be located then that’s the
the defendant’s residence with time the Sheriff will resort to this 2nd
some person of suitable age and mode.
discretion then residing therein, or • SC said that when the Sheriff will
(b.) by leaving the copies at the resort to this mode of service, there
defendant’s office or regular place must be an explanation by the
of business with some competent Sheriff why he resorted to the
person in charge thereof (Sec 7) substituted service. That means that
• If the defendant could not be served the Sheriff must have to explain that
with summons personally, that is the despite several attempts to serve it
time the Sheriff would resort to this personally on the defendant, the
mode of service. defendant could not be located
• This is resorted to only if the that’s why he was forced to resort to
personal service fails despite substituted service.
several attempts. So it is wrong for • Substituted service of summons
the Sheriff to immediately resort to means that the summon is now
this service after 1 attempt to serve given to another person not the
it to the defendant personally fails. defendant himself personally.
• The SC said that the Sheriff should How effected?
make several attempts and only • If served at the defendant’s
after it fails despite several attempts residence:
that the Sheriff can resort to the 2nd • Any person residing in the house
mode of service of summons. So where the defendant resides
when the Sheriff goes to the house • Person of suitable age and
of the defendant and asks whether discretion
the defendant is there but • Dili pwede ihatag sa Sheriff sa anak
somebody in the house said that the sa defendant nga bata pa kaayo,
defendant is not around, the Sheriff way buot. Di siya makaingon nga
should not surrender right away and dong ihatag lang niya ni tatay nimo
resort to substituted service by inig uli niya ha then 5 yrs old pa
giving the summons to the wife/ diay. It is not a proper service of
maid of the defendant – that is summon. So kinsa man tagaan?
wrong. If wala ang defendant then Pwede asawa, maid basta of legal
balik lang ugma. The next day age, driver, anak nga of legal age.
Sheriff comes back still defendant is Neighbor? DILI PWEDE because
not around then he may come back that person must be residing in the
the 3rd time nya if wala gihapon ang house of the defendant/where the

defendant resides. If ihatag nimo sa cannot be ascertained by diligent
neighbor, that is not a valid service inquiry. (Sec 14)
of summons. 2. When the defendant does not
• If served at the place of work/ reside and is not found in the
office of the defendant: Philippines, and the action affects
• Competent Person in charge the personal status of the plaintiff or
thereof relates to, or the subject matter of
• Manager, secretary of the defendant which is, property within the
(considered in charge of the office Philippines, in which the defendant
while the defendant is away) has or claims a lien or interest, or
• It is as if the defendant received the the property of the defendant has
summons through these persons been attached within the Philippines
(extraterritorial service).
1. Service by publication (Sec 14, 15, • Extraterritorial service – because
&16) the defendant is outside the territory
• Publication in a newspaper of of the PH; defendant is already
general circulation living abroad
• TAKE NOTE: Service of summons • How will the court acquire
cannot be done by mailing. Bisan jurisdiction of a defendant already
pa if the case is filed in Cebu and residing abroad if summons cannot
the defendant is residing in Davao, be served on him? It can be done
di pwede i-mail ang summons didto through publication but summons by
sa Davao. The Sheriff from Cebu publication is allowed only in these
must go to Davao or if the plaintiff instances:
cannot afford to spend for the fare • Action that involves the personal
of the Sheriff, then they may course status of the plaintiff (annulment
it through the Sheriff of Davao. The of marriage, declaration of nullity of
court of Cebu will request its marriage, legal separation) – if you
counter-part RTC court in Davao file a case against your husband for
City to use their own Sheriff there to annulment of marriage and husband
be the one to serve the summons to is already living abroad, the case
the defendant who is residing in can prosper. The summons can just
Davao. be served by publishing it in a
• Unlike in Rule 13, service of newspaper.
pleading pwede personal service or • Case involves a property located
by mailing. Pero if summons and in the PH of which the defendant
complaint, di pwede ang mail. has an interest; he claims to be
an owner of the property – if the
Service of Summons by Publication defendant is already residing
• The summons and the entire abroad is claiming ownership of a
complaint will be published in a property located in the PH and the
newspaper (usually in the Classified plaintiff wants to recover the
Ads section) property from him, summons by
When allowed: (when the defendant publication is allowed.
cannot be found; no knowledge of his • Property of defendant already
whereabouts, whether he is inside/outside residing abroad but has a
of the PH; cannot be located so cannot be property in the PH that has
served with summons personally or cannot already been attached by the
be served by substituted service because plaintiff – even if the court cannot
no knowledge of his address) acquire jurisdiction over the person
of the defendant because he is not
1. In any action where the defendant is anymore found in the PH, the court
designated as an unknown owner, may proceed with the trial of the
or the like, or whenever his case if the court acquires
whereabouts are unknown and jurisdiction over the res which is

done by attachment of the property If the action is an action in personam, as
of the defendant. in the case of collection of sum of money,
1. Any action commenced against a summons by publication is not sufficient as
defendant who ordinarily resides the law requires personal service on the
within the Philippines, but who is defendant (Pantaleon vs Asuncion, 105
temporarily out of it, service may be, Phil. 755)
by leave of court, be also effected • So collection of sum of money,
by publication (Sec 16) (Montalban breach of contract with damages,
vs Maximo, 22 SCRA 1070) rescission of contract
• The defendant is a residence of the
PH but is temporarily out of the Service of summons by publication applies
country like on a vacation leave and only to “action en rem” or “quasi en rem”.
no knowledge when he is coming However, there is a remedy by converting
back so it’s a long vacation not just the action in personam to action in rem or
for 2weeks or 1 month. quasi in tem and this is by attaching the
property of the defendant in the
Service of summons by publication may be Philippines. By attaching the property
resorted to when the defendant is sued as under Rule 57, the court has now acquired
an unknown owner of a thing OR he is a lien over the property so the action now
known but his whereabouts is unknown becomes action quasi in rem where
and cannot be ascertained by diligent summons by publication is allowed.
inquiry, although he is just within the (Citizen’s Insurance Surety vs Melencio
Philippines. Here, leave of court is required Herrera, 38 SCRA 369)
for the service of summons by publication. • Service of summons by publication
• So if you want to serve the applies only to action in rem or
summons by publication, you have quasi in rem and not to action in
to file a motion in court – motion personam.
for leave of court to serve • But there is a remedy suggested by
summons by publication. You ask the SC converting the action in
the court to issue an order directing personam to action in rem or quasi
the service of summons through in rem. This is done by attaching the
publication in the newspaper of property of the defendant in the PH.
general circulation. By attaching to the property of the
• Here in Cebu, you can have the defendant under Rule 57, the court
service of summons in the local has now acquired a lien over the
newspapers like in Sunstar, The property so the action no becomes
Freeman, Cebu Daily News, even in action quasi in rem where summons
Banat News and Super Balita. And by publication is allowed.
because they are many newspaper • So gi distinguish; if action in
publications here in Cebu, the personam = no way, di pwede ang
practice by our court here is to have summons by publication; action in
it raffled para di mag-ilog. Because rem/quasi in rem = allowed ang
before ikaw raman ang mupili asa service by publication. But then
nim ipa-publish. Karun dili na, ang even if it is an action in personam
court na maoy magbuot ipa-raffle na pwede ma convert into quasi in rem
kay mag-ilog naman ang mga by attaching the property of the
newspaper because that’s a good defendant.
business. • EX: Collection of sum of money. If
• There is a controversial ruling you claim that when the defendant
before in the case of Pantaleon vs borrowed money from you, he is
Asuncion which was cited in the already guilty of fraud in contracting
case of Citizens Insurance vs the obligation because he really no
Melencio Herrera. intention to pay you. After you
released the money to him, he
immediately ran away to US so

gidagan imong gipautang na P1M. • So forget about the case of
Under Rule 57, 1 of the grounds for Panteleon and Citizens Insurance.
attachment is when there is fraud or Sir just discussed it to show us the
when the defendant abscond development of our rules.
(nilayas after getting the money),
the court may allow attachment. So *Service of summons by personal service
if the defendant has property left in on a non-resident defendant is allowed.
the PH like a parcel of land even - Normally, when the defendant is already
how small it is, or a small house or residing abroad, the plaintiff would now
car, pwede ma-attach. If you attach resort to service of summons by
those properties by the defendant in publication. But there is nothing in the
the PH, the action is converted from Rules which prevent the personal service
pure action in personam into action to a defendant who is already residing
in rem. So now you can have the abroad. If the plaintiff is very rich, he can
summons published in the afford to send the Sheriff to US (i.e.
newspaper. defendant already residing in Los Angeles,
• But this rule is already abandoned California) like he can pay for the fare,
by the SC recently in the case of hotel accommodation, etc. to serve the
Pedro Santos Jr vs PNOC summons personally then fine, good. Pero
Exploration Corp decided in 2008. if dili ka afford (poorita) then publication
nalang kay mas barato. If mu publish ka sa
However, if the defendant could not be newspaper you spend P20, 000 rather
personally served with summons despite than going to the State. Pero if sigurista
diligent efforts to locate his whereabout, jud kaayo ang plaintiff nga kinahanglan
summons by publication may be resorted ihatag jud sa defendant if the case os
to even if it is an action in personam. The worth several millions then (Dean thinks) it
in rem/in personam distinction was is worth sending the Sheriff there.
significant under the old rule because it
was silent as to the kind of action to which *Service of summons by mail is not
the rule was applicable. Because of this allowed. However, if the summons was
silence, the Court limited the application of sent abroad but is actually received by the
the old rule to in rem action only. This has defendant, then the service will be
been changed now. The present rule considered substantial compliance with the
expressly states that it applies “in any riles (Cariaga et al., vs. Malaya, L-48375,
action where the defendant is designated Aug 13, 1986)
as an unknown owner etc. (See: Section - It is not one of the modes of service of
14) Thus, it now applies to any action summons (only personal service,
whether in personam, in rem or quasi-in- substituted service, service by publication).
rem (Pedro Santos Jr vs PNOC Unlike service of a pleading, pwede nimo i-
Exploration Corp, GR No 170943, mail (registered or ordinary).
September 23, 2008) - However, there is 1 instance where the
• You don’t distinguish anymore Rule requires the mailing of the summons
whether it is an action in personam – in the case of service of summons by
or in rem or quasi in rem for as long publication. When you serve the summons
as the defendant could no longer be by publication, the Rules require further
located or found whether he is just that you must send a copy of the summons
inside/outside the PH, summons by to the last known address of the defendant
publication may be resorted to. and you do it by mail (registered mail) and
• It is clear in Sec. 14, Rule 14 of the after that, you publish the summons in the
New Rules of Court. Here, ang newspaper.
gigamit nga wording sa balaod is - The mailing of the summons is just a
“in any action”, it did not anymore compliment to the service of summons by
distinguish whether it is an action in publication. It is not the operative that vest
personam or an action in rem. jurisdiction over the defendant by the
court. It is just in compliance with the

requirements of due process (kunuhay). • In-house counsel – lawyer hired by
So before you publish in the newspaper, the company and will work as 1 of
you send first copy of the summons ang the employee of the company as
defendant at his last known address (ofc the legal counsel, naa jud sa office
you know he’s not there anymore kay tua galingkod; External counsels –
na siya abroad pero ipadala lang gihapon usually the big law firms that in the
na kay requirement of due process). event company will encounter a
- In other words, the service of summons litigation/case, this is the law firm
by mailing is just complimentary to the that will handle the case for them,
service of summons by publication. paid monthly by way of a retainer,
just on call
• Agents of the company (under the
D. How service of summons is made to old rules) – pero the word “agent”
some defendants: gitangtang na sa New Rules, why?
1. Service upon entity without Because the word agent has a very
juridical personality (Sec 8) broad meaning. EX: The branch
• Like a business establishment but it manager can be considered an
was not incorporated in the agent/ any officer of the company.
Securities & Exchange Commission But does that mean they can
(SEC) so it’s not a corporation but a receive summons that will bind the
group of people group together to company? Under the New Rules,
engage in a business yet they were NO. The rules has now specified
not incorporated as a corporation. who are the officers of the company
• EX: They use the name “Black Tiger who can receive summons for and
Trading” – if imo sila ikiha, you can in behalf of the company
sue any of the owner as defendant 1. Service upon foreign private
or manager or if later on, the true juridical entity (Sec 12)
owner’s name will come up then • Foreign corporation; distinguish
you have to amend your complaint whether it is doing business here in
and include the real owners of that the PH or not.
business. • If not doing business in the PH –
1. Service upon prisoners (Sec 9) cannot be sued here
• The summons shall be served • If doing business in the PH – can
through the warden and the warden be sued; if it has an agent in the PH
will be the one to serve the then it is the one who will receive
summons to the defendant and he the summons; if no agent then
will be the one to make a report to summons can be coursed through
the court (just like the Sheriff’s the government official who
return of service of summons). exercises supervisory function/
1. Service upon minors and control over this corporations like
incompetents (Sec 10) the Insurance Commissioner,
• Served to the parents of the minors Central Bank, DTI Sec.
or the guardians of the 1. Service upon public corporations
incompetents. (Sec 13)
1. Service on domestic private • Summons shall be served to the
juridical entity (Sec 11) SolGen because it is the lawyer of
• We are referring here to domestic the government.
corporation. Summons shall be • If the one sued is the LGU
served to the specified persons (province, city/municipality):
(enumerated sa new rules by dua • Province – governer/provincial
lipa haha waley): attorney
• President • City – city mayor/city attorney
• Managing partner • Municipality – municipal mayor/
• Corporate Secretary municipal lawyer, if there is any
• Treasurer

A foreign corporation not doing business editor or the publisher of the
here in the Philippines cannot be sued newspaper and a newspaper
here. Doing business does not refer to just clipping where the summons by
one isolated transaction but of a series of publication appeared.
transaction. If a foreign corporation is • Normally, the publication will be
doing business here, it can be sued done not only once; it will be
through its agent or through a government published 3 times. So it will come
official designated by law to receive. out in the newspaper 3 times – once
a week for 3 consecutive weeks.
If a domestic corporation’s address is The newspaper company (EX:
already unknown, it is wrong to publisher/editor of Sunstar) will be
immediately serve summons by the one to execute an affidavit that
publication. The Sheriff must first exert you published the summons and the
diligent effort to locate its officers and complaint in Sunstar and it
serve summons on them. (Baltazar vs appeared in the following date
Court of Appeals, 168 SCRA 354) issues: it appeared on the January
20 issue, then January 27 issue and
then February 4 kay once a week
E. Proof of Service: for 3 consecutive weeks mana.
• You also present the newspaper
The proof of service of summons shall be clipping and have it marked to prove
made in writing by the server (Sheriff) and to the court that indeed it was
shall set forth the manner, place, and the already published and it came out in
date of service; shall specify the paper the newspaper on these particular
served and the name of the person who issues.
received it; and shall be sworn to when
made by a person other than a sheriff or G. Voluntary and Special Appearance:
his deputy (Sec 18)
• If summon is served by the Sheriff/ The defendant’s voluntary appearance in
Deputy Sheriff, dili kinahanglan nga the action shall be equivalent to service of
iyahang Sheriff’s return will be summons. The inclusion in a motion to
notarized by a lawyer. dismiss of other grounds aside from lack of
• If the one who served is not the jurisdiction over the person of the
Sheriff/Deputy Sheriff like any other defendant shall not be deemed a voluntary
person authorized by the judge, appearance. (Sec 20)
return of the service of summons • So even if the defendant has not
must be sworn to and under oath – received summons, if he voluntarily
shall be notarized by a lawyer. appears in court and questions/
raised an issue before the court
If the service has been made by then it is deemed that the court
publication, service may be proved by the acquires jurisdiction over his
affidavit of the printer, his foreman or person; he voluntarily submits
principal clerk, or of the editor, etc. To himself to the jurisdiction of the
which affidavit a copy of the publication court.
shall be attached. • But the New Rules provide (new
• Before the start of the hearing, the provision inserted) – read
judge will usually require the lawyer underlined sentence above; Sec.
of the plaintiff to 1 st establish 20, Rule 14 – in the light of the
jurisdictional facts. And one of the ruling of the SC in the case of
jurisdictional facts is how the Dimitsly vs Perandos(?) and the
summons was served. case of La Naval Drug Corporation.
• If summons was served by In these 2 cases, SC said that when
publication, lawyer of the plaintiff you question the jurisdiction of the
must present to the court the court over your person because of
affidavit of publication signed by the improper service of summons, you

have to qualify your appearance - you would ask, why? Is a motion not
and say that you are making a a pleading? The answer is yes, a motion is
special appearance for the purpose not considered a pleading because the
only of questioning the jurisdiction rules of court has already defined what is a
of the court over you because there pleading. And it enumerated what are the
was improper service of summons. different kinds of pleading.
• However, in the case of Dimitsly vs
Perandos(?), the SC said that if you - you remember when we discussed
include other grounds then you are Rule 6. Under Rule 6, it defines what is a
deemed to have waived already to pleading. A pleading is a written statement
question the jurisdiction of the court containing the parties' respective claims
over your person. and defenses and submitted to the court
• Under the New Rules, it is now for judgment. A pleading is one that you
clarified that when you file a motion submit to court, in writing, and it contains
to dismiss on the ground of lack of the cause/s of action on the part of the
jurisdiction over the person of the plaintiff, and contains the defenses on the
defendant because there was no part of the defendant, then you submit it to
proper service of summons, you the court for it to decide. In Rule 6, we
should not be precluded from have the different kinds of pleading:
including other grounds. And if you Complaint, Answer, Counterclaim, Cross-
include all other grounds, it should claim, Reply, Third Party Complaint, Fourth
not be interpreted against you as if Party Complaint, and Complaint in
you have admitted yourself already Intervention. Mao ra ni sila'y pleadings
to the jurisdiction of the court. under Rule 6. Outside of these, they are
• Precisely, you raise the issue not called pleadings.
because you are questioning the
jurisdiction of the court and you - what about those that you file in court
should not be prevented for raising when you ask the court for relief and it is in
other grounds. writing? Is it not a pleading? No, it is called
a motion.
- In a motion, you ask something from

the court and you want the court to grant
your prayer.
B. Requisites for a valid motion:

1. It must be in writing (sec 2)
- Generally, motions must be in

writing. But not all motions must
be in writing. The exception to
that a motion must be in writing
are those motions that you file in
open court in the course of the
trial of the case.
- Example: we have a hearing

RULE 15 this morning hantud alas dose
MOTIONS sa udto, of course you need a
break, so any lawyer of the
parties could stand up and say,
A. Motion defined: "Your honor for lack of material
- defined as an application for relief t i m e , m a y I move for
other than a pleading continuance of the case”?

- When you say continuance,
meaning "Let's stop now, we will 2. Contents (sec 3)
c o n t i n u e l a t e r, e i t h e r t h i s - The motion contains the relief
afternoon, tomorrow, or next that you are asking from the
month". It's like you ask for court and the grounds in support
resetting of the case because of your motion.
there is no more material time.
Yo u c a n d o t h a t v e r b a l l y - Examples: Motion for leave of
because this is a motion done in court to admit the pleading,
open court. Ang2x imo pa na i-in Motion for the production of
writing. evidence. etc etc
- Another example: during the - If it is a motion to dismiss or

hearing of the case, the any other motion attacking the
defendant started presenting his pleading of another party, you
evidence. So the judge is "Okay have to cite what are the
defendant are you ready to grounds in support of your
present your evidence now? motion.
Who is your first witness" "My
first witness your honor is this.." 3. It must be set for hearing (sec
Then the lawyer of the plaintiff 4)
would say "Your honor, may we
know from the lawyer of the - When you file a written motion
defendant if he has other in court, your written motion
witnesses around, or inside the must contain a request to the
courtroom?" And then the lawyer court to schedule your motion for
of the defendant would say, hearing on a particular date.
"Yes, I have another witness
inside the courtroom" The - After the lawyer will sign the
plaintiff's lawyer can immediately motion, below it we have there a
say, "Your honor, I move for the notice of hearing. First, it will be
exclusion of all other witnesses addressed to the clerk of court. It
for the defendant" In other state there "The Clerk of Court
words, "I don't want them to RT C o f C e b u B r a n c h 2 4 .
listen to the testimony of the first Greetings! Please submit the
witness, kay basin mangopya foregoing motion for the
sila." That's the right of the party consideration and resolution of
to the case - Motion of Exclusion the honorable court on *state the
of all other witness during the date*”
trial. That can be done orally.
You don't have to put that in - You will be the one to decide
writing because that's a motion the date but it does not mean
that you make in open court, and that the date you suggested will
it is immediate. be the date to be approved by
the court. Because you don't
- Another example: You have a know, the date you suggested,
witness now? "Yes, I have my the judge is not available on that
next witness supposed to be a day. Basta you just put the date.
handwriting expert but he is not
around." You can ask the court "I - The date of hearing of your
move that a subpoena duces motion is supposed to be on a
tecum and ad testificandum be friday, because there's a motion
issued to that witness so that he day. Under the rules, friday
can be compelled to come to afternoon is a motion day, so all
court." motions are to be heard by the

court on a friday afternoon. But if of your motion, that you set it for
the judge is not available on the hearing on a particular date. He
friday afternoon, then the judge must be notified at least 3 days
will hear your motion either on a before. Except: if your motion is
thursday or even monday, very urgent, then you can violate
tuesday-depends on the the 3 day notice rule. Meaning
availability of the judge. you can notify the other party
today and ask the court to hear it
- But the GR is you ask the court tomorrow or the next day. But
to hear it. these are only in case of urgent
motion.
- When you file a motion and you
ask the court to hear your - That's precisely why, when we
motion, the date of hearing discussed Rule 13 and 14, the
should not go beyond 10 days preferred mode of service is by
from the time you filed the personal service. Kay if imo
motion. If you filed the motion nang i-mail, you don't know
now, you ask the court to when it will reach you. You might
schedule it for hearing not more be violating the 3 day notice
than 10 days from today. rule. To assure that he receives
it, you have to see to it that it is
4. Notice of hearing (sec 5) received today or at least
tomorrow. So you have to let
- Your motion must contain a your messenger go to the lawyer
notice of hearing to the other of the defendant and have it
party. So as I've said awhile ago, received by them.
ibutang nimo diha "The Clerk of
Court RTC Branch 24 Cebu City. 5. Proof of service (Sec 6)
Greetings! Please submit the
foregoing motion for the - The motion must contain proof of
consideration and resolution of service, proof that you have served a copy
the honorable court on January of your motion to the other party, at least 3
12 at 2 o clock in the afternoon." days before the date that you set it for
Sulod pa na sa 10 days. hearing.
- After you address it to the clerk - These requirements under Sec 4, 5, 6

of court, below it, you also put are very important requirements to the
there the name of the lawyer of validity of the motion. If you violate this,
the other party. "Atty Juan Dela your motion will be considered as a mere
Cruz, counsel for the defendant. scrap of paper. The term we use for that is
Please be informed that the pro-forma motion.
foregoing motion is submitted for
the consideration and resolution - A pro-forma motion is a motion that fails
of the honorable court on to comply with the requirements under Sec
January 12, 2 o'clock. Signed 4, 5, and 6, and other requirements under
lawyer of the plaintiff”. the rules.
- A notice of hearing to the - If your motion is treated as a pro-forma

opposing party's counsel must motion, it's a mere scrap of paper. The
be received by him at least 3 court will surely deny it. The court will not
days before the scheduled act on your motion.
hearing. This is what we call as
the 3 day notice rule. You have - If your motion does not show that you
to strictly comply with this rule. have given a copy of your motion to the
The other party must be notified other party at least 3 days before the

hearing, the court will treat your motion as - Otherwise the grounds that you did
a pro-forma motion. not include are deemed waived. You are
- If you did not request the clerk of court to barred from raising them later on.
set it for hearing, then it can be considered
a pro-forma motion. - Omnibus mura daw octopus. Usa ra
ang ulo, daghan kaayo ug kaway.
- Some lawyers before had the practice of
leaving it to the clerk of court to decide the C. Motion for Leave:
date of hearing. Like "To the clerk of court, A motion for leave to file a pleading or
please submit the foregoing motion for the motion shall be accompanied by the
consideration and resolution of the pleading or motion sought to be admitted.
honorable court on the date and time of its (sec 9). If not accompanied by the
convenience." Sa ato pa, ang korte ra pleading, the court will not act on your
imong pabut-on kanus-a niya i-schedule motion.
ang hearing. The SC already said this is
defective notice of hearing. You should not - Like for example a motion for leave of
do this one. You have to set the date. court to admit your amended complaint, or
Never mind if the court will not follow the motion for leave of court to admit a
date you suggested. At least you fixed it supplemental pleading.
and you notified the other party.
- This is now a new provision. Under the
A. Motion Day: old rules, if you file a motion for leave of
Is on Friday afternoon, or if Friday is a non court to admit a pleading, you don't attach
working day, in the afternoon of the next the pleading that you are asking the court
working day. to admit. You just file the motion first, and
you wait for the court to grant your motion,
- This is just the general rule, this is not if granted, that's the time you file your
really mandatory, but this is more of a amended complaint. This is no longer the
directory provision. case.
B. Omnibus Motion Rule
- Means that if the motion that you filed - NOW: When you file a motion to admit an
attacks the validity of the pleading filed by amended complaint, you have to attach
the other party, like example a motion to already your proposed amended
dismiss, the other party filed a complaint, complaint. It must go with the motion.
ikaw defendant. Pag basa nimo sa
complaint daghan sayop, daghan grounds - That's why if you remember, your period
for dismissal. Then you file a motion to to answer is shorter.
dismiss.
- What is your period to answer an
- Under this rule, if you file a motion to amended complaint? It depends on what
dismiss or any motion for that matter and kind of amended complaint it is.
there are more than one available grounds
for you to oppose, you have to put all the - If it is an amendment as a matter of right
grounds in one answer to the motion. (there was yet no answer), you have 15
days to file your answer. Parehas sa
- So if you file a motion to dismiss, and original period to answer jud which is 15
there are 3 available grounds, because days.
under Rule 16, there are 10 grounds for a
motion to dismiss. So if pagbasa nimo, you - But if your amendment is not a matter of
see there are 3 available grounds for a right but a matter of judicial discretion
motion to dismiss, you have to put all the 3 (meaning you filed the motion for leave of
grounds in that motion. court to amend your complaint and it was
approved by the court), the defendant has
only 10 days to accept.

- Why 10 days? Well because he has - If the motion to dismiss is eventually
already a copy of your complaint long time denied, you have the balance of the period
ago. to answer. But in no case shall it be less
- If I file a motion for leave of court to than 5 days.
amend a complaint, under the new rules, I
have to attach already the proposed - There's an alternative mode: to put
amended complaint. I will give a copy to the grounds of your motion to dismiss in
the defendant. your answer. So instead of filing a motion
to dismiss, you just file your answer right
- In the mean time, the defendant will not away but you incorporate in your answer
answer right away. He must wait for the the grounds of motion to dismiss
court the motion for leave to amend the enumerated in this rule. And you do it by
complaint. And it will take weeks/months way of a special affirmative defense.
for the court to approve it. So kapila na
niya na basa na balik2x. - So actually, if you are a defendant in
a case, you have the option either to file a
F. Form: motion to dismiss or file an answer right
The rules applicable to pleadings shall away and incorporate the grounds of a
apply to written motion as far as caption, motion to dismiss by way of a special
designation, signature, and other matters affirmative defense. Anyway, you can
of form (sec 10). always ask the court later before the start
of the hearing of the case, "Your honor,
- Now we have discussed the forms of a can we hear first my special affirmative
pleading: caption, designation etc defenses?" Which is in the nature of a
- The form of a pleading is the same as motion to dismiss, kay naa man sa imong
that of a motion. special affirmative defense is ang grounds
for a motion to dismiss. The court will
- So if mu file ka'g motion sa court, the surely grant it because that is your right.
same caption as the original pleadings that Because you can tell the court, "Your
are filed before. honor, we better hear my special
affirmative defenses first before we go to
RULE 16 full blown hearing", because if I can prove
MOTION TO DISMISS my special affirmative defense, this would
result to the dismissal of the case and
- the most popular among the many kinds there is no more need for a full blown
of motion that you file in court hearing.

A. When to file: - The option is yours, either file a
- A motion to dismiss is a motion that motion to dismiss or file an answer right
you file before you answer. When you away and incorporate the grounds for your
receive a complaint, you look for defects of motion to dismiss.
the complaint, look for defenses. If you file
defenses in your complaint, you can use GROUNDS (sec 1, rule 16)
these defenses by way of a motion to (a) That the court has no jurisdiction
dismiss. Instead of filing an answer, you over the person of the defending
file a motion to dismiss. party;
(b) That the court has no jurisdiction
- If your motion to dismiss is denied, no over the subject matter of the claim;
problem because you can still file your (c) That venue is improperly laid;
answer. (d) That the plaintiff has no legal
capacity to sue;
- The filing of the motion to dismiss (e) That there is another action
suspends the running of the period to pending between the same parties
answer. for the same cause;

(f) That the cause of action is barred - proper service of summons:
by a prior judgment or by the statute the summons should be served
of limitations; to the defendant personally or by
(g) That the pleading asserting the substituted service of summons
claim states no cause of action; (to any person residing in the
(h) That the claim or demand set same house where the
forth in the plaintiff's pleading has defendant resides provided the
been paid, waived, abandoned, or person is of suitable age and
otherwise extinguished; discretion; not to 5 yr old); or if
(i) That the claim on which the adto sa workplace sa defendant
action is founded is enforceable pero ang gihatagan kay security
under the provisions of the statute guard - that is also improper
of frauds; and service of summons.
(j) That a condition precedent for
filing the claim has not been - and if the court will proceed
complied with. with the trial on the case, the
. jurisidction of the court can be
B. Grounds for a Motion to Dismiss: questioned. The defendant can
1. THAT THE COURT HAS NO say, "You have not yet served
JURISDICTION OVER THE summons on me properly." So
PERSON OF THE the court cannot proceed with
DEFENDANT. the hearing if there is no proper
service of summons.
GENERAL RULE: Service of
summons Exceptions:
1. Waiver
- court acquires jurisdiction of - means that when
the defendant by service of jurisdiction over your person
summons was not properly acquired by
- when summons has not yet the court, you should object
been served on the defendant, right away - before you file
the court has not yet acquired your answer or you raise that
jurisdiction over the person of in your answer - otherwise
the defendant or even if you are deemed to have
summons was served but it was waived that ground for
not served properly, then the motion to dismiss
court has not yet acquired
jurisdiction over the person of - Of the 10 grounds of
the defendant. motion to dismiss, 4 grounds
are considered not waived if
- improper service of summons: not raised in a motion to
summons was not properly dismiss.
served to the defendant in
accordance with provision of the - GR: if any of the 10
rules, like example: the sheriff grounds exist, you have to
served the summons to the put all those grounds there;
defendant thru the neighbor or you file your answer and
incorporate them as part of
- here, the defendant can say, your special affirmative
"The court has not yet acquired defense otherwise these
jurisidction over my person grounds that was not
because the summons was not included are considered
properly served on me." waived.

- EXC: if the grounds are: (1) plaintiff said, "No problem if
lack of jurisdiction over the you are willing to say. Let's
subject matter, (2) litis just sign a compromise
pendentia, (3) res judicata, agreement." And so the
(4) prescription; even if these lawyer of the plaintiff
are not included in your prepared a compromise
grounds of motion to dismiss, agreement, signed by plaintiff
they are not deemed waived and you and submitted to the
court for approval.
- you have to raise your (Compromise agreement
grounds timely must be submitted to the
court for approval) And so
- In the case of lack of with that, you have
jurisidction over the person of voluntarily appeared in
the defendant due to court.
improper service of
summons or non-service of - You have already submitted
summons, you are already yourself to the jurisdiction of
considered to have waive it if the court when you signed
you did not raise it in your that compromise agreement
answer. and submitted it to the court,
voluntary appearance man
- Even if the summons was na.
not properly served but you
filed your answer and you did - So the issue of lack of
raise that issue (improper jurisdiction over your person
service of summons), waived could no longer be
na. You cannot raise that acceptable.
issue anymore.  
2. Voluntary appearance Ground: lack of jurisdiction over

the person
- Like example: the
summons was not yet served - this is the weakest ground
on you as the defendant so because it is very easy to cure.
the court has not yet
acquired jurisdiction over - ex: a complaint was filed
your person. The plaintiff against you; you have not
fi l e d a g a i n s t y o u f o r received the summons because
collection of sum of money, the sheriff served the summons
and then you learned that a thru your neighbor so improper
c a s e w a s a l r e a d y fi l e d service of summons so the court
against you because one of has not yet acquired jurisdiction
the employees in the court over your person
was your friend and he told
you. So wa pa ka kadawat ug - so you filed a motion to
summons ha. You went to dismiss on the ground of lack of
t h e p l a i n t i f f a n d s a y, jurisdiction over your person
"Nganong ni file man dayun because of improper service of
ka ug kaso na willing man ko summons
mubayad. The only problem
is that I don't have the money - remember that a motion is a
yet today but I have money litigable motion, it must be set
coming this month from my for hearing so gipa set nimo for
brother in Saudi." Then the hearing

- then the judge would say what admitted himself to the jurisdiction of the
is your ground, "my ground your court. (De Midgely v Ferandos L – 34313,
honor is that summons was not May 13, 1975)
properly served on me”
- If the defendant will question the
- the judge can easily say, jurisdiction of the court over his person
"Okay, sheriff you give another because the summons was improperly
summons to him" Aw acquire na served on him, the lawyer of the defendant
ang jurisdiction over his person. must enter his appearance in court as a
special appearance.
- so the defect will be corrected
- The lawyer of the defendant would say,
- because the court said in "Your honor I am here by way of a special
Linger and Fisher vs IAC: appearance, purposely to question the
(below) jurisdiction of the court over the person of
my client. The court has not yet acquired
3. Issuance of an alias jurisdiction over my client so it must be by
summons instead of way of a special appearance only
dismissing the case (Linger purposely to question the jurisdiction of the
and Fisher vs IAC, 125 court.
SCRA 522). - The SC said, if you file a motion to
dismiss the complaint on the ground of
- Linger and Fisher vs IAC: the lack of jurisdiction over the person of the
SC said, "why should we defendant and then you include other
punish the plaintiff for the grounds for a motion to dismiss (giapilan
wrong or improper service of nimo ug lain grounds), then you are
summons? That's the fault of already asking affirmative relief from the
the sheriff.” court on those other grounds and
therefore, you are already considered to
- If imong i dismiss ang kaso have voluntarily submitted yourself to the
tungod lang ana, kinsa may jurisdiction of the court, and therefore the
mu suffer? It's the plaintiff. ground of lack of jurisdiction over the
Unya ang plaintiff baya ni person will no longer be entertained by the
bayad ug filing fee unya imo court. The court will entertain the other
idismiss? grounds, but kanang lack of jurisdiction,
wala nana, because you are deemed to
- the SC said this is a very have submitted yourself to the jurisdiction
technical ground, and it is the of the court.
weakest among the 10
grounds because the court TAKE NOTE: This rule, however was
can always rectify the already abandoned by the ruling in the
mistake committed by the case of La Naval Drug Corp, v CA 236
sheriff. SCRA 78
There was a rule before in De - In this case, the SC said our ruling in the
Midgely vs Ferandos: De Midgely vs Ferandos is no longer
controlling. This is because under the new
If the defendant questions the jurisdiction rules (by dua lipa), when you file a motion
of the court on the ground of invalid to dismiss, you are supposed to
service of summons, he may do so by incorporate all other grounds for a motion
way of special appearance. However, if the to dismiss because of the omnibus motion
same motion also raised other grounds of rule. Those grounds you did not include,
a motion to dismiss, such special they are deemed waived, di ba. Unya if
appearance will be of no avail and the you say that I will include other grounds,
party is deemed to have voluntarily na defeat na ang akong ground to question

the jurisdiction of the court over my unreasonable delay in raising
person, that will be contrary to the omnibus this ground, you may no longer
motion rule. Why should I be precluded be allowed to invoke it under the
from including other grounds when the equitable doctrine of “estoppel
omnibus motion rule requires that I should by laches” (Tijam v
have to put all the grounds? Sibonghanoy, 23 scra 29)(1968)

- Now the controlling jurisprudence is the - Tijam v Sibonghanoy: although
case of La Naval. the ground of lack of jurisdiction
over the subject matter can be
2. THAT THE COURT HAS NO raised anytime even for the first
JURISDICTION OVER THE time on appeal but if you are
SUBJECT MATTER guilty of unnecessary delay in
raising that issue to the court,
- this is a very strong ground you may lose that ground
because of laches. That is
- Jurisdiction is conferred by law where the equitable doctrine of
estoppel by laches will come it.
- When you say the court does You lose your right to question
not have jurisdiction over the the jurisdiction of the court
subject matter, in resolving that because you did not raise it for
issue of whether or not the court an unreasonable length of time.
has jurisdiction over the subject So you can be accused of
matter, what the court should sleeping on your rights.
take into consideration is only
the allegation in the complaint. TAKE NOTE: But the
Sibonghanoy ruling is not
- Whether the allegation in the intended to be the rule. It is only
complaint is true or not, that is to be applied in exceptional
beside the point because that cases. (Seafdec-agriculture
matter can only be determined dept. v nlrc 206 scra 283) and
during the trial of the case. the case of (de leon v ca, 245
There is already presentation of scra 166)
evidence. Kani wala pa may
presentation of evidence. - meaning when there is really
- When you file a motion to unreasonable delay like niabot
dismiss wala pay evidence gi na ug more than 10 years,
present, wa pa gani kay answer. human na ug presenta ang
But you say that there is no plaintiff karon pa ka naka
jurisdiction of the court over the huna2x, naabot na appellation
subject matter, then the court will didto sa CA, SC, karon pa ka ni
just look at the allegations in the raise na wa diay jurisdiction, you
complaint. already lost that because of
estoppel by laches.
- Example I am the judge, "Does
my court have jurisdiction to 3. IMPROPER VENUE
hear this case based on the
allegation of the complaint - it means the case was filed in
alone?" the wrong venue, it may be the
correct court but in the wrong
As a general rule, the ground of venue. When the law says that
lack of jurisdiction over the this kind of action shall be filed
subject matter may be raised in this court, for example, an
anytime, even for the first time ejectment case it should be filed
on appeal. However, if there is in the MTC but MTC of the place

where the property to be in interest, and then that person
recovered is located; if you file it who claims to be a
in the MTC of another city or representative happens to have
municipality, that is not a case of no authority from the real party
lack of jurisdiction because the in interest.
MTC of another city has
jurisdiction to hear an ejectment - You filed the case as an
case, only not this ejectment attorney in fact of the real owner
case, it is wrong venue not lack of the property who is no
of jurisdiction. residing in the US, you claim to
  be a representtaive party but
you do not have any document
4. LACK OF LEGAL CAPACITY to prove, you don't even have a
TO SUE SPA to show, mu ingon ra ka,
"I'm authorized by the owner to
*Two types of lack of legal file a case against you." But
capacity to sue* where is your authority? "Verbal"
1. plaintiff does not possess the Aw di na pwede. The case can
necessary qualifications to be dismissed on the ground of
appear at the trial such as a lack of legal personality to sue.
minor or insane You do not have the character or
representation which you claim
- this is what we call lack of to have possessed as an agent
legal capacity to sue. or guardian without the required
authority.
- example: a minor or an insane
person does not have the
capacity to bring an action in 4. THERE IS ANOTHER ACTION
court alone. A minor and an PENDING BETWEEN THE SAME
insane person must be assisted PARTIES FOR THE SAME CAUSE
by guardian or parents. Dili OF ACTION;
pwede na mukiha ang minor *Element of Litis Pendentia:
mismo na siya ra usa. If siya ra
1. identity of parties between the
usa ang mu file sa kaso without
the assistance of parents/ two actions
guardians the case will be 2. identity of rights asserted and
dismissed on the ground of lack relief prayed for
of legal capacity to sue on the 3. the relief prayed for must be
part of the plaintiff. founded on the same facts
2. plaintiff does not have the 4. the identity in these
character or representation particulars should be such that
which he claims such as an any judgment which may be
agent or guardian without the rendered on the other action will,
required authority. regardless of which party is
successful, amount to res
- this refers to the lack of legal judicata in the action under
personality to sue consideration. This simply
means that regardless of who
- lack of legal capacity to sue is wins in the first case, the effect
different from lack of legal is that res judicata will result in
personality to sue in the sense the second case.
that in the latter, the one who When there is litis pendentia, it
filed the case is merely a does not necessarily follow that
representative of the real party the second case filed must be

dismissed (Teodoro v Mirasol, Prescription – the period of time is fixed by
99 Phil 150) law, there is a fixed period.
Atty: This simply means that when you Laches - does not have a fixed period.
filed this case, there is already another Mas kuyaw ang laches, based on
case similar to this case, involving the unreasonable delay in bringing an action in
same parties and the same cause of court, even if the action has not yet
action, identity of parties between the two prescribed, you may lost the right to bring
actions. Ug muingon ka nga litis pendentia, it because of laches, mas delikado ni.
there are two cases pending in different
courts, but these two cases are identical to Ex. On the first year nakahibaw naka nga
each other. Same issue, party, subject dispossess kas imo property, don’t tell me
matter and bases on the same set of facts. muingon ka adto nakos ika 29th year
So one of these must have to be mukiha. Your action may not have
dismissed because one of them is merely prescribed but you lost your right to file
a duplication of the other. Now we have because of laches.
already a rule on forum shopping, forum
shopping is actually litis pendentia. 6. FAILURE TO STATE A CAUSE OF
ACTION
There is already another case pending in
another court similar to the case. A Atty: the pleading asserting a claim fails to
duplication of the former case. state a cause of action. Meaning if your
ground is ground no. 7 just like ground no
5. THE CAUSE OF ACTION IS 2. The court will resolve this on the basis
BARRED BY PRIOR JUDGMENT of the pleading filed. So when you say the
OR BY STATUTE OF LIMITATIONS complaint fails to state a cause of action,
*two grounds referred to* the pleading asserting a claim(initiatory
1. res judicata pleading, counterclaim, permissive counter
claim, crossclaim, third party claim) it is a
2. prescription pleading where you assert a claim against
Atty: this speaks of two grounds.Res another.
judicata is the older brother of litis
pendentia. Pareha rana sila because there A pleading asserting a claim against
are two cases it involves the same another fails to state a cause of action, if
parties,issues, and it is based on the same one of the elements is missing in your
set of facts. Ang deperensya ra kay in litis complaint then the case can be dismissed
pendencia, both cases are still pending in but if you use this as a ground, the only
court. While in res judicata, one has basis for the court to decide is only the
already been decided by the court and allegation in the complaint kay ingon man
then you file the same case, mao ra ka nga the complaint fails to state a cause
ghapon nga kasoha but the first case was of action. So if im the judge I will say na I
already decided, dili na pending then res will read the complaint whether it fails to
judicata na imo ground di na litis state a cause of action, nia man lagi ni dri,
pendencia. muingon ka nga no, that is a lie. The judge
would say you wait for your turn, I will not
Prescription – is prescription and laches dismiss the case, if during the trial you can
the same? What is the difference? prove that the plaintiff is telling a lie, I will
dismiss the case after hearing. I will
Both means that you lost your right of dismiss it based on lack of cause of action.
action you lost your right to file the case
because of the lapse of time. Sa Failure to state a cause of action is
kadugayon sa time nga nikiha ka nawa different from dismissal on the ground of
imo right to file. lack of cause of action.
Difference: Failure to state a cause of action – as a

ground for motion to dismiss, is a

preliminary objection that would be there are 10 grounds and they are the
resolved before the hearing will start. The following:
complaint fails to state a cause of action.
This can be resolved by merely reading • Lack of jurisdiction over the
the complaint. defendant
But during the hearing na find out nga • Lack of jurisdiction over the subject
namakak jud diay and walai cause of matter
action, then the judge can dismiss on the
ground of Lack of cause of action, that is • Improper venue
already after hearing, where the court finds
that the evidences would prove that there • Lack of legal capacity to sue
is no cause of action based on the
evidence presented. • Iitis pendencia
7. P L A I N T I F F ’ S C L A I M H A S • Red judicata and prescription
ALREADY BEEN PAID, WAIVED,
ABANDONED, OR OTHERWISE • The pleading asserting the claim
EXTINGUISHED does not state a casue of action
Atty: in a collection of sum of money, you
have already paid me, or the obligation is • The claim has already been paiud,
already abandoned or it has already been waived, abandoned, or otherwise
extinguished for whatever reason under extinguished
the law
• Statute of frauds
8. P L A I N T I F F ’ S C L A I M I S
UNENFORCEABLE UNDER THE • The condition precedent for filing
STATUT OF FRAUD the claim has not been complied
Atty: there are certain contracts that must with
be reduced in writing in order to be
enforceable in court. If no writing then it Now as i have said when we discussed
cant be proven in court. (ex, contract of Rule 15 wghich is motion in general the
lease) motion must be in writing and it ust be set
for hearing. But there is an exception when
9. CONDITION PRECEDENT FOR a motion is a non-litigable motion.
THE FILING OF CLAIM HAS NOT
BEEN COMPLIED WITH If am motion is not litigable meaning dili
Atty: Three condition precedent lalisonon the court can act on that motion
right away without a hearing.
1. Exhaustion of admin remedies
2. katarungang pambarangay But when a motion is a litigable motion it
has to be heard. A motion to dismiss is a
3. family code, earnest effort litigable motion.
If you don’t comply, that will be a ground In the hearing the movant which is the
for dismissal. defendant in this case is allowed to
present evidnce to prove that the case is
really dismissible.
The plaintiff is also given the chance to

rebut the evidence presented by the
What are the grounds for a motion to defendant.
dismiss?
The movant is allowed to present evidence
The grounds for a motion to dismiss is to substantiate his claim. However, he is
enumerated in section 1 of Rule 16 and

not allowed to present evidence if the The plaintiff as a matter of right can still
ground he relied on are: amend his pleading if there is not
responsive pleading filed. A motion to
(1) Lack of jurisdiction over the subject dismiss is not a responsive pleading.
matter; and Therefore when the defendant files motion
to dismiss the plaintiff can still amend his
(2) complaint states no cause of action complaint as a matter of right.
That is why some lawyers prefer to file an
these two grounds does not require a answer right away and include any of the
hearing because the only basis here is the gfrounds for a motion to dismiss as one of
allegations in the complaint. In resolving his affirmative defenses.
the motion to dismiss based on these two
grounds what the court will look into is only
the complaint. Whether the complaint -The court cannot defer the resolution of
shows that there is jurisdiction over the the motion to dismiss for the reason that
the ground relied upon is not indubitable.
subject matter or whether on the basis of
the allegations in the complaint there exist This is what I discussed earlier that under
a valid cause of action. Therefore the the new rules, the court cannot anymore
movant is no longer required to present defer the resolution. Not indubitable means
evidence for his motion to dismiss. doubtful.
Now under the new rules, the court has to
But all other gounds for a motion to resolve the motion to dismiss he cannot
incorporate that with the decision of the
dismiss needs to be heard.
merit of the case.
-In every case, the resolution shall state

D. Resolution of the motion: clearly and distinctly the reasons therefore.
When the court conducts a hearing in the In other words the decision of the court
motion to dismiss there are three possible m u s t b e s u p p o r t e d b y s u f fi c i e n t
things that may happen, how the motion is jurisprudence or law.
resolved by the court
Now let’s go when the motion is granted or

*How the motion is resolved* dismissed.
a.) Grant the motion

b.) Deny the motion E. When to plead if motion is denied.
c.) Order the amendment of the pleading • If the motion to dismiss is denied,
Under the old rules there used to be defendant has to file his answer
another alternative and that is the court within the balance of the period
may defer the resoltiion if the grounds prescribed by Rule 11 to which he
relied upon to do not appear to be was entitled at the time of serving
indubitable. But that is no longer found in his motion, but not less than five (5)
the new rules. days in any event (Sec. 4)
If the court denied the motion to dismiss,

The plaintiff can still amend his complaint the defendant now has to file his answer.
as matter of right even if there is already a
motion to dismiss filed. When is he going to file his answer?

The filing of the motion to dismiss If you believe that the court is correct then
suspends the running of the period to you can re-file the case because the
answer. You have 15 days to answer and dismissal here is without prejudice.
on the 8th day you filed a motion to
dismiss. But you only have used 7 days Exceptions:
because you do not include the 8th day. If 1.) That the action is barred by prior
your motion to dismiss is denied then you judgment or by statute of limitation.
have the balance of that period to file your
answer. You only have 8 days left because 2.) That the claim or demand has already
you only used up 7 days. been paid, waived, abandoned or
otherwise extinguished, or
From the time you receive the order of the 3.) That the claim on which the action is
court denying your motion to dimiss you founded is unenforceable under the
exclude the day you received the order Statute of Fraud
then 8 days left.
But under these grounds you can no
If the remaining days is less than five days, longer re-file the case.
you have at least five days to file your All the other grounds you can re-file and
anwer. make sure the defect in your first complaint
• is not repeated
An order denying a motion to
dismiss is interlocutory and not
appealable, but an order granting a G. Pleading grounds as affirmative
motion to dismiss is final and relief:
appealable.
These grounds for a motion to dismiss can
Only final orders can be appealed. An be incorporated in your answer by way of
interlocutory order is an order issued by special affirmative defense.
the court that does not finally dispose the
case yet. Because when the court denied Instead of filing a motion to dismiss, you
your motion to dismiss that means the just include it in your answer. And then you
court wants to hear the case and there is ask the court for a preliminary hearing of
much to be done. Your remedy is to file a your special affirmative defense and that is
petition for certiorari under rule 65 based tantamount already to a hearing of a
on grave abuse of discretion. motion to dismiss.
F. when motion is granted
Rule 17
When the motion is granted the aggrieved DISMISSAL OF ACTIONS
party is the plaintiff.
What will the plaintiff do? An action can be dismissed at the instance
of the plaintiff.
-the plaintiff may appeal the dismissal or
re-file the case if the ground for dismissal What is the difference between rule 16 and
is lack of jurisdiction over the subject rule 17?
matter or improper venue.
In rule 16 the dismissal of the case is at
Granting the motion to dismiss is no longer the instance of the defendant. Here in rule
an interlocutory order but a final order 17 the dismissal is a thte instance of the
because that is already the end of the plaintiff ot hte case was dismissed due to
case. so plaintiff can already file an the fault of the plaintiff.
appeal.

There are three aspects here in rule 17.
B. Dismissal upon motion of the
The difference between section 1 and plaintiff:
section 2 is that the dismissal was a matter
of right of the plaintiff while section 2 is -Leave of court is required
with leave of court. -Dismissal does not include counterclaim
-Dismissal is without prejudice unless
A. Dismissal upon notice by plaintiff: otherwise specified.
-when a matter of right
-by notice of dismissal In section 2, we have the dismissal upon
the motion of the plaintiff. This will only
-Dismissal is without prejudice EXCEPT apply if there is already an answer filed. So
when the order of dismissal provides managhid na siya sa korte ani adn he will
otherwise OR under the Two Dismissal file a motion to dismiss or withdraw the
Rule. complaint and it is now with the approval of
the court.
The plaintiff who filed the case can be the If the answer of defendant contains a
one to ask the dismissal of the case. counter claim the withdrawal does not
include the counterclaim.
When is dismissal of the plaintiff a matter
of right? The court will ask the defendant would you
like your counter claim to be treated as a
Section 1 says it is matter of right when separate action or would you like it to be
there is answer filed by the defendant. tried here. So the defendant have 15 days
from the time he received the motion to
So you can always withdraw if there is no manifest to the court whether he want his
answer yet filed by the defendant. counterclaim to be tried in the same court
or he will file it as a separate action.
That is why the owrd used here is notice The dismissal here is without prejudice
and not motion. So if you are the plaintiff unless otherwise specified by the court.
you only have to file a notice of dismissal Meaing the plaintiff can refile the same
and the court will not stop you. The court case later on.
will just issue an order confirming the
dismissal.
It is the right of the defendant to keep his
The dismissal here is without prejudice. counter claim. Muana ang defendant okay
Unless otherwise stated in the notice that i dismiss na ang complaint but i want my
the dismissal is with prejudice or under the counterclaim to be heard in this court or he
two dismissal rule. will say okay i dismiss i will file na lang a
separate action for my counterclaim.
Thw two dismissal rule simply means
escept if the withdrawal of the case is
lready the second time. C. Dismissal due to the fault of the
plaintiff:
Example i filed a complaint against you
and before you could answer i file a notice Section 3 is when the dismissal is due to
to dismiss so it was dismissed. Then i the fault of the plaintiff. With section 1 and
changed my mind i refiled the case then 2 it voluntary on the part of the plaintiff.
before you cpuold answer i changed my *3 Grounds for dismissal due to the fault of
mind again that i will withdraw. The second the plaintiff
withdrawal is already with prejudice
because it already under the two dismissal
rule.

1.) When the plaintiff fails to appear on the This new rule was criticized prompting the
date of the presentation of his evidence in SC to issue a new administrative circular
chief; 03-01-09 passed on 2009 where SC said
when the case is already ripe for pre-trial,
When it is the turn of the plaintiff to present it is the duty still of the plaintiff’s lawyer to
his evidence and he fails to appear the
ask the court to schedule the case for
court may dismiss it. But remember it must pretrial. But if the lawyer will not do it the
be the turn of the plaintiff to testify.
clerk of court would have to set it for pre-
For wxample i have the option to decide trial. Dili na siya ground for the dismissal of
who will testify first if it is me or my the case because it is unfair sad. So wala
witnesses. So if mu testify na iya mga na nang dismissal ron based on the
witness okay ra wala siya but when it is failure of the plaintiff’s lawyer to ask for
already the plaintiff’s turn to testify unya the setting of the case for pre-trial
wala siya nganha ra pwede ma dismiss conference.
ang case.
3.) When the plaintiff fails to comply with

2.) When the plaintiff fails to prosecute his the Rules of Court or any order of the court
case for unreasonable length of time; for no justifiable reason or cause.
Sige lang ug pangayo ug postponement When you are ordered by the court and
kay dili pa siya ready then the court may you did not comply that could be a ground
dismiss the case. for the dismissal of the case. But the
condition here is the order of the court
Another example when summons cannot
be given to the defendant because dili ma must be a lawful order. If the order is
locate then the court asks the plaintiff to unlawful and you did not obey it, it could
not be a ground to dismiss the case. For
cooperate in locating the defendant but he
does not cooperate. So here the court can example while the case is pending the
defendant died, the court ordered the
dismiss the case based on that the plaintiff
fails to prosecute his case for plaintiff to amend the complaint and
unreasonable length of time. implead the heirs of the defendant, is that
a correct order? NO since there is no need
to amend since what is needed is the
When the case is ready for pre-trial and substitution of parties. The lawyer of the
issues are already joined it is the duty of defendant will simply inform the court and
the plaintiff to ask the court to schedule the the heirs/administrator/executor of the
case for the pre-trial. estate will take his place.
Plaintiff should be the one who will move Rule 18

for the setting of the pre-trial and not the PRE-TRIAL
court
Because of these new rules some judges
A. When conducted:
are very wise, they will not touch the case.
Niya ang uban sad na mga abogado na
wala nagread sa new rules nagsalig na Before the court will proceed to the
trabaho sa clerk of court ang magschedule
reception of evidence of the parties (trial
for pre trial. So ang judge magbungol-
on the merits), there should be a pre-trial.
bungol, dili hilabtan ang kaso pero The rules provide that after the last
maabtan ug usa ka tuig, wala jud ka
pleading is filed and the issues are joined,
nagfile ug motion to set the case for pre- the pre-trial conference shall immediately
trial, you will be surprised and you will
be conducted. Reply is normally the last
receive an order from the court dismissing
pleading. When you file the complaint the
the case for failure to prosecute for an defendant will file his answer and then the
unreasonable length of time.

reply will be filed by the plaintiff, that is the 4.) The possibility of obtaining stipulations
last pleading. After the last pleading has or admission of facts and of documents to
been filed, the court can now determine avoid unnecessary proof;
the issues of the case. It is now the duty of One of the purpose of pre-trial is that the
the clerk of court to set the pre-trial proceedings will be shortened and avoid
conference. unnecessary delay.
The court may ask the defendant what
B. Nature and Purpose: allegations in the complaint which he will
admit to so that there is no need for the
plaintiff to prove that in court. What are the
1.) The possibility of an amicable facts that both parties will admit? If both
settlement or of a submission to alternative parties admit to the fact, you don’t have to
modes of dispute resolution; prove it in court. For example: Collection of
The best way to settle a dispute is through sum of money, the plaintiff will say that the
defendant borrowed money from him as
a compromise agreement/amicable
settlement. evidenced by a promissory note. If
defendant admits, there is no longer any
The first thing that the court asks during need to prove it in court.
the pre-trial is: Can you not settle the case
amicably between the two of you? If they
cannot settle then that is the time the court 5.) The limitation of the number of
will proceed to the next step. witnesses;
Settlement/alternative modes of dispute During the pre-trial the court will ask the
resolution sa first then kani na step. (What parties how many witnesses they intend to
are the alternative modes of dispute present. Because what if a party has 28
resolution? Arbitration, mediation, witnesses and then corroborative ilang
conciliation). Common na ni siya now that testimony?So pareha ra and the court can
the court will first refer the case to a just tell them not to present them all.
mediator. The mediator is not a lawyer but
he is trained to convince the parties to
settle. Dili magstart ang trial on the merits 6.) The advisability of a preliminary
without exhausting all the efforts to settle. reference of issues to a commissioner;
Ug dili masettle sa mediator ang case then WON there is a need to have a trial by a
it will be returned to the court wherein the commissioner. A commissioner is one who
judge will have to conduct his own JDR is an expert on a particular field which is
(judicial dispute resolution). Otherwise, outside the expertise of the judge. So the
prepare for trial. judge will ask the help of an expert.
Example: silingan mo and gaaway mo sa
boundaries sa yuta. A says B encroached
2.) The simplification of the issues;
his land, now the judges don’t know about
This is in preparation for the full-blown the boundaries of the land. The
trial. commissioner in this case can be a
Before the trial, we still have to agree for geodetic engineer who may also be a
lawyer.
the simplification of the issues
3.) The necessity or desirability of 7.) The propriety of rendering judgment on

the pleadings, or summary judgment, or of
amendments to the pleadings;
dismissing the action should a valid ground
If there is a need to amend the complaint, therefor be found to exist;
the court will give the parties a chance to
amend their pleading before going to trial. Here during the pre-trial the judge will
determine is there a need to go on trial on
the merits? Based on the pleadings filed,

can I not decide? Ngano magtrial pa man if B. ***
pwede na madecide using the pleadings? When appearance may be excused
8.) The advisability or necessity of

suspending the proceedings; and
1.) There is valid or justifiable reason for
During the pre-trial, the first question is his absence (i.e. sick)
about the settlement of the case. Now if
the parties will tell the judge that it can be He could be sick or out of the country,
settled, then the judge can suspend the those are acceptable reasons.
pre-trial and will give enough time to settle. 2.) He authorized somebody to appear for
9.) Such other matter as may aid in the him;
prompt disposition of the action. Must be clothed with SPA to represent.
This person should also be clothed with
the authority to enter into a compromise
agreement. For example the brother of the
A. Notice of Pre-Trial plaintiff is sent to represent and armed with
an SPA. And when the judge asks if they
can settle the case, the brother would say
Before the pre-trial the court must send a he cannot decide regarding the
notice of pre-trial to the parties. The notice compromise agreement because he has
or pre-trial shall be served on counsel, or no authority. If some judges are strict they
on the party who has no counsel. NOW, will consider it as if the plaintiff did not
notice to counsel is already notice to client. appear and dismiss the case.
In the case of Arcilla vs Arcilla, 138 SCRA
560, the Court ruled that the notice need
not be in writing all the time as in the case 3.) The person authorized must be clothed
of a notice in open court in the presence of with the proper authority in writing to enter
the parties. into settlement and stipulation of facts.
If there is a pre-trial today and it was reset 4.) If the party is a corporation, the
to another date. Usually in a case like this authority must be through a Board
and the judge in open court agreed on the Resolution
setting of the pre-trial, the parties are no If the party is a corporation, dili pwede ang
longer given a notice to pre-trial. What the SPA. Dapat naay board resolution
court will do instead is to let the parties authorizing a person to represent the
sign an expediente (???) or the record of company. And that somebody must also
the case. Isuwat lang didto sa court have the authority to settle the case
interpreter ang date of reset pre trial then amicably. No authority= non-appearance
the lawyer of the parties and the parties
sign, it constitutes notice. So if the parties
fail to appear on the reset date reasoning
wa silay notice to pre-trial na nadawat, that
is not acceptable. C. Effect if Party fails to appear during
pre-trial
Plaintiff - Dismissal with prejudice
Pre-trial is mandatory. The court cannot
have a trial without a pre-trial. The this means it cannot be refiled; tantamount
presence of the parties and their lawyer is to adjudication on the merits.
a mandatory requirement since one of the Defendant - As in default. Plaintiff will be
important goal of pre-trial is arriving at a allowed to present his evidence ex-parte.
settlement. Unsaon pagsettle if wala ang R e m e d y i s t o fi l e a m o t i o n f o r
parties? reconsideration and not a motion to lift
default.

Under the new rules, if dili magpakita ang
defendant, the court can declare him as in D. Pre-Trial Brief
default. Kana wala na na ron sa new rules.
In the new rules wala nay ‘as in default’. Under the new rules, before the pre-trial
Dapat man gud ang word na default is only the parties must submit a pre-trial brief,
used if the defendant fails to file an answer this rule is not found under the old rules.
but here the defendant has already Both the parties would have to submit their
answered kay pre-trial na gud. So di na pre-trial briefs. And that should be
siya maconsider na default. What the court submitted at least three days before the
will do is ipapresent na lang niya ang pre-trial conference.
evidence sa plaintiff ex-parte. Pareho ra Contents:
gud ug effect sa default basta di lang
gamiton ang word na ‘as in default’ 1) A statement of their willingness to
because according to SC in one case, enter into amicable settlement or
there is no such thing as in default. alternative mode of dispute
resolution;
2) A summary of admitted facts and
What is the remedy of the defendant if the proposed stipulation of facts;
plaintiff is allowed to present evidence ex
parte? If the defendant has a valid reason 3) The issues to tried or resolved;
for not appearing, the remedy is not a 4) The documents or exhibits to be
motion to lift the order in default but a presented, stating the purpose
simple motion for reconsideration. Ask the thereof;
court to reconsider its judgment that the
defendant is already deemed to have 5) A manifestation of their having
waived the presentation of evidence. If th availed or their intention to avail
court finds the reason for non-appearance themselves of discovery procedures
as sufficient then the court will reconsider or referral to commissioners; and
its judgment and allow the defendant to 6) The number and names of the
participate. witnesses, and the substance of
What happens if the plaintiff has already their respective testimonies.
finished presenting his evidence and the In short the pre-trial brief is a summary of
court after listening to the defendant, is what you are going to see during the pre-
convinced that the defendant has a valid trial.
reason for not appearing? The court can
simply tell the plaintiff to present again his N.B. Failure to file pre-trial brief before the
witnesses and allow the defendant to date of the pre-trial shall have the same
cross-examine/present evidence. effect as failure to appear at the pre-trial.
Ug ang plaintiff wala kasubmit ug brief
before the day of the pre-trial but the
N.B. If the court grants the motion, there is plaintiff and his lawyer appeared during the
no need to set for another pre-trial. pre-trial, what will you do as lawyer of the
Is there a need for another pre-trial?NO defendant? ASK the court to declare them
because the pre-trial has already been as non-suited(??) and the case should be
terminated. NOT UNLESS both parties dismissed. In so far as the plaintiff is
agreed/request to go back to the pre-trial concerned it’s like he is not there.
conference as ruled in the case of Young
vs CA, 204 SCRA 584. But the testimonies
of the witnesses will remain and the effect Once the pre-trial has been conducted by
of the reconsideration is to just allow the the court, the judge will now issue a pre-
defendant to cross-examine the witnesses trial order which contains a summary (in
and then be allowed to present evidence. writing) of what happened during pre-trial.
The defendant will now regain his standing And here the court will now summarize the
in court. facts agreed upon by the parties, issues to

be resolved and all other matters. The pre- of property in the custody of the
trial order shall govern the subsequent court or of an officer thereof.
proceedings of the court like the trial on
the merits. That’s why when the court will The intervenor can side either of the
issue the pre-trial order both parties are parties. You can intervene on the side of
given the chance to comment. the plaintiff oir the defendandt. You can
intervene without sodeing to anyone and is
If during the trial the plaintiff will present
against to anyone.
evidence to support an issue which is not
mentioned in the pre-trial, the defendant If you side with the plaintiff, you will file a
can object that it was not in the pre-trial
complaint in intervention. If you side with
order. The court should grant the objection the defendant, you file an answer in
since we are bound by what is in the pre-
intervention.
trial.
E. Record of Pre-Trial: Example: if the plaintiff files a class suit or
The proceeding for pre-trial shall be a class suit is filed and you are a member
of the class and you don’t trust the people
recorded and thereafter the court will issue
the pre-trial order. who represented the class so in order to
protect your own interest you can
i n t e r v e n e a n d fi l e a c o m p l a i n t i n
Civ Pro Jan 23 intervention.
If a complaint is filed against a group of
Rule 19
INTERVENTION people and your interest is with the
defendant, you file an answer inn
A. Definition: intervention.
What is intervention?
Remeberfiling an intervention is not a
Intervention is a remedy provided by the matter of right, it is discretionary upon the
rules to a person who is not a party to the court whter you will be allowed to intervene
or not.
case but he will be affected by the
outcome of the case because he has a
legal interest to the subject matter of the C. Factors to consider whether or
case. not to allow intervention:
1) Whether or not the intervention
will unduly delay or prejudice the
Example: A and B are quarreling over
parcel of lans and you claim to be the real adjudication of the rights of the
original parties; and
owner of the land. So you file a complaint
in order to intervene or a petition to 2) Whether or not the intervenor’s
intervene. right may be fully protected in a
separate proceeding.
B. Who may intervene:
So if the court feels that your interest can
Grounds for Intervention
1) The intervenor has a legal be protected in another case then you
interest on the matter under better file another case and you will not be
allowed to intervene.
litigation;
2) The intervenor has a legal
interest in the success of either D. When and how to file
of the parties; The motion to intervene may be
3) The intervenor has a legal filed at any time before rendition of
judgment by the trial court. A copy
interest against both;
4) The intervenor is so situated as of the pleading-in-intervention shall
be attached to the motion and
to be adversely affected by a
distribution or other disposition served on the original parties (Sec.
2)

So you file a motion to intervene but -Mandamus is not a remedy as one
you attach a pleading which is a cannot compel the court to do
complaint in intervention or an discretionary act. But, if there is
answer in intervention because you grave abuse of discretion,
have to file a motion because leave mandamus or certiorari may be
of court is required in order that you resorted to (First Philippine
can intervene. Holdings Corp. vs. Sandiganbayan,
253 SCRA 30)
It is discretionary upon the court to
allow you to intervene or not. You cannot compel the court to accept you
mandamaus because intervention is not a
. matter of riught but is discretionary upon
the court.
E. Effect of dismissal of main action
on the Intervention: However if you believe that the denial of
your intervention constitute grave abuse of
If there are two original parties then you discretion, then your remedy is certiorari
intervene. What happens if the original under rule 65.
parties would later on enter into a
compromise agreement and ask the court Rule 20
to dismiss the case? What happens to CALENDAR OF CASES
your intervention?
A. Duty of the Clerk of Court:
It is said that intervention is ancilliary to the The Clerk of Court shall keep a
main action so if the main action is calendar of cases. Preference shall be
dismissed the intervention must also be given to habeas corpus cases, election
dismissed. BUT THIS IS NOT THE CASE cases, special civil actions, and those
ANYMORE so required by law (Sec.1)
B. Assignment of Cases:
-Big Country Bank and Trust The assignment of cases to the
Company vs. Presiding Judge of different branches of the court shall be
RTC Manila, 189 SCRA 820 done exclusively by raffle. The
assignment shall be done in open
In this case, SC said that it depends on the session of which adequate notice shall
kind of intervention you make. If that case be given so as to afford interested
can stand dependently from the main parties the opportunity to be present
action then it should be allowed to go on (Sec. 2).
despite the dismissal of the main action.
When you file a case in the RTC that has
Example if you did not side neither with the several branches, your case will first be
plaintiff nor the defendant, like A and B are raffled to the different branches. So you
quarreling over a parcel of land and you will not know which branch your case will
say no I am the real owner of the land then be assigned to.
A and B would later on agree on a
compromise agreement, you still have the The raffling of cases is done once a week
right to prove that you are the real owner every Tuesday.
of the land. Your action should not be
affected by the dismissal of the case. But if the case is very urgent like habeas
corpus, it can be raffled immediately.
So it depends on the kind of intervention
you make.
Rule 21
F. Remedy in case Intervention is SUBPOENA
denied:

A. D e fi n i t i o n : ( Tw o K i n d s o f
Subpoena) When a subpoena is issued to a particular
person that person can question the
What is a subpoena? Is it the same as propriety of issuing a subpoena. The
summons? grounds are following:
Summons refer to the order of the court Grounds of a Motion to Quash

requiring you to answer the complaint. Subpoena Duces Tecum
1) If the subpoena is unreasonable
Subpoena on the other hand is issued tio a or oppressive;
person rewuirng him to testify in the case. 2) The relevancy of the books,
things or documents does not
There are two kinds of subpoena: appear;
When you feel like the document or papers
1. Subpoena ad testificandum- if you are not relevant to the case.
are asked to testify in court or oral
testimony 3) The person in whose behalf the
2. Subpoena duces tecum- if you are subpoena is issued fails to
required to bring some document to advance the reasonable cost for
be presented in court for you to the production thereof.
identify. When you request the court to issue a
subpoena duces tecum against a particular
The two can be joined together if you are person the requesting party must have to
asked to testify orally and bring some advance the expenses. Don’t expect that
documents. Then the court will issue a the person to be subpoenaed to pay. So
subpoena duces tecum ad testificandum. you have to deposit a certain amount of
money determined by the court. If the
B. By whom issued: party who requested failed to advance the
Subpoena will be issued by: expenses then subpoena duces tecum can
1) The court before whom the be quashed.
witness is required to attend;
2) The court of the place where the So you can file a motion to quash the
deposition is to be taken; subpoena duces tecum.
3) The officer or body authorized
by law to do so in connection Grounds of a Motion to Quash
with investigations conducted by Subpoena Ad Testificandum
said officers or body; That the witness is not bound
4) Any justice of the Supreme thereby (viatory right).
Court or of the Court of Appeals
in any case or investigation Viatory right- if the witness resides 100 km
pending within the Philippines. from the court which issued the subpoena,
you cannot be compelled to testify. Even of
There are officials who are allowed to the party requesting is willing to advance
issue subpoena. Like the fiscal who will the cost , if dili ka dila jud ka mapugos.
conduct an investigation if the criminal
case will be filed in court. The NBI can also E. Subpoena for Deposition:
issue subpoena even congress can issue
subpoena in connection with an Later on we will discuss deposition. A
investigation in aid of legislation. judge who will conduct the deposition and
not the judge handling the case has the
authority to issue a subpoena.
C. Form and Contents:
F. Service of Subpoena:
D. Grounds of a Motion to Quash
Subpoena:

GR: One cannot be compelled to "Exclude the first day include the
testify if he is not served with last day"
subpoena.
You exclude the day you received and
For you tesify you must be served a include the last day.
subpoena.
B. Effect of Interruption:
XPN: If said person is inside the -The day of the act that caused the
courtroom, he may be compelled to interruption shall be excluded in the
testify. computation of the period (Sec. 2)
Example: the judge will say plaintiff are You have 15 days to file an answer and
you ready to present your witness and the within the 15 days you file a motion to
lawyer of the plaintiff will say our first dismiss. If the motion to dismiss is later on
witness is the one standing in the corner. If denied, you compute the balance, you do
ikaw to ang gatindog sa corner then not include the day you filed the motion to
mapugos ka ug testify. dismiss and you don’t also include the day
you received the order of the court denying
G. Effect of failure to appear: your motion to dismiss.
You can be cited in contempt because that
is disobedience to a lawful order of the Rule 23
court. DEPOSITION OF PENDING ACTION
H. Exception to the Rule: Rules 23 -29 refers to modes of discovery.

-ViatoryRight of a witness.
What is this modes of discovery?
When a witness resides more than 100km
away from the court he cannot be One of the most effective tool in the RoC
compelled to testify but ths viatory right of for you to elicit information which will help
a witness applies only to civil cases you in your case.
-People vs. Montejo, SCRA 722 (1965) The general rule in modes of discobery is
-Genorga vs. Quitain, 78 SCRA 94 lay your cards on the table. This is not the
case before. The old generation of lawyers
In this two cases the SC said viatory right and before in the old rules, lawyers are
cannot be invoked criminal cases. Even if fond of surprises.
you reside 100 km away from the court
and you are asked to testify in a criminal But if the other lawyer is familiar with the
case for the accused you cannot refuse. modes of discovery he can compel you to
The rationale is the constitutional provision give information ahead of the hearing.
pertaining to the right of an accused
person. One of the constitutional rights of Because the purpose of the modes of
an accused person is to have compulsory discovery is to force the other party to lay
process to secure the attendance of his his cards on the table. It could help shorten
witnesses and the production of evidences the proceedings.
in his behalf. The viatory right of a witness
is inferior to the constitutional right of an The following are modes of discovery.
accused.
MODES OF DISCOVERY
1.) Deposition
Rule 22 Pending action - de benne esse (rule 23)
COMPUTATION OF TIME Before action - in perpetuam rei memoriam
(rule 24) you took the deposition before a
A. How to compute time: case has been filed in court.

What is deposition? required. You can take the deposition of
It is the advance taking of the testimony of any person for that matter.
a prospective witness and you preserve it
for future use and that person can either Modes of Deposition
be your opponent or any person like the 1) Deposition upon oral examination
prospective witnesses of your opponent or
your own witnesses. This is done by oral examination but not in
the court. You ask the questions directly.
Example: I have a prospective witness but Mura ra sa court but wala sa court.
my witness is dying. So I will take his
deposition. Example: I have case and I have witness
residing in Davao. I cannot compel him to
But depositon can be used to know what come here in Cebu city because he can
the opponent has in his possession. invoke his viatory right. Me and my client
can go to davao and take the deposition of
Example: I know my opponent would that witness. I will just file a notice
probably be using this person as a (provided the defendant has already filed
witness. I can preemt him and take the an answer or if wala pa kay mangayo ug
deposition of his witness. But I am not permission sa court to take the deposition)
compelled to use the deposition. Ako ra to the court and the opposing party that I
ning i-preserve arun if the opponent will will be taking the deposition of this person
use that witness and there are in davao. The notice must contain the time,
inconsistencies sa iya giingon then I place of deposition. So I will ask someone
contradict him using the deposition. in davao to be a deposition officer. Then
that deposition officer will act like a judge. I
2.) written interrogatories to parties (rule will ask questions the lawyer of the
25) defendant will also ask questions in a form
of a cross examination. This will recordes
3.) request for admission of adverse so mah gire napud ug stenographer.
parties (rule 26)
When you take deposition of a person you
4.) production or inspection of documents are not bound to use that deposition. That
and things (rule 27) is just preserving the testimony for future
use.
5.) physical and mental examination of
persons (rule 28) 2.) Deposition upon written
interrogatories
A. Deposition pending action, when
taken: The questions to be asked here will be in
Leave of court- after jurisdiction has writing. The deposition officer will read the
been obtained over any defendant questions and the deponent’s answer will
or over the property but before be recorded.
answer.
In deposition for written interrogatories, I
Leave of court is required when there is no will arrange with a lawyer in davao to act
answer yet from the defendant but the as a deposition officer and then I will
court has already acquired the jurisdiction inform the other party and we will both
of the defendant. agree na dili na lang muadto sa davao kay
gasto. Ang akong pangutana ako na lang
Without leave of court - after an ibutang in writing unya Ihatag sa depositon
answer has been served. officer ngadto sa davao ang opposing
lawyer sad kay mag himo sad ug
But when the defendant has a;lready filed questions then ihatag sad ngadto sa
his answer then leave of court is not longer davao.the witness will now appear before
the deposition officer there in davao. Then

the deposition officer will read the question party who took the deposition of a certain
prepared by the lawyer for the plaintiff and person is not bound to use the deposition.
he will answer, irecord sad niya then send
it to the court in Cebu.
2.) Deposition of a party or an officer of the
So you have two kinds of deposition: oral corporation may be used by the adverse
examination and written interrogatories. In party for any purpose;
either case you are not compelled to use
the testimony.
3.) Deposition of a witness, whether or not
B. Scope of examination: a party, may be used by any party for any
Deponent may be examined on any purpose if the court finds:
matter, provided: (a) the witness is dead,
(b) the witness resides more than 100
1.) not privileged kilometers from the court,
not privileged communication (c) the witness cannot testify because of
otherwise dili na maforce kay confidental age, sickness, or infirmity
man na (ex. lawyer-client, doctor-patient, (d) the witness did not appear despite the
priest-parisioner). You cannot divulge. subpoena issued
2.) relevant to the subject of pending

action -Deposition cannot be used if the deponent
is present or available,
Usually kaning deposition in actual
C. Use of Deposition practice gamiton sa mga abogado sa mga
gisakit or manglarga na witnesses. IT is to
Usually I use the deposition when I fear preserve the testimony of the witness.
that this witness might no longer be Deposition can only be used if the witness
available during trial. (ex. like himatyon na is already dead, lives 100kms away from
so kuhaan daan ug advanced testimony or the court or could no longer testify. If the
prospective witness going to US witness is availabe to testify, you can no
permanently). longer use his deposition. There is no
substitute for his personal appearance in
1.) To contradict or impeach the testimony court. Ex: naa koy witness na kamatyonon
of the deponent as a witness; niya basin dili kaadto sa hearing, gikuhaan
na lang nakog deposition. When the trial
You can even use deposition on a starts wala man namatay, naulian nuon.
prospective witness of the opponent, Can I use his deposition? Then present
unhan tika daan. In actual practice, that witness in the hearing and not use the
lawyers coach their witness so mas maayo deposition.
ni na before they get coached, you can ask
them na. If I already took the deposition of Mao bitaw na sa akong example ganina na
your witness before the start of trial I now ang katong witness taga Davao I cannot
have a copy of their testimony. compel him to come here so his deposition
will be taken by somebody who is not a
You can use the deposition later sa trial judge, just a lawyer. Deposition officer is
kanang igtestify na sa ilang witness basin anyone who can administer oath. But a
nakalimot sila na naa kay kopya daan. If judge in Davao can also be a deposition
there are contradictions to a testimony to officer if musugot siya. If naa kay kaila na
the deposition I can now impeach the judge didto mas maayo kay kung di ka
credibility of that witness. kaila mubalibad man na niya mubayad pa
sad ka (deposition officers are paid).
You can even use deposition against the
defendant himself. The rule says that the
-Effect of substitution of parties

If the plaintiff takes a deposition of another 1.) judge
person and preserves it for future use, Take note: the judge here does not refer to
what happens if that party who took the the judge handling the case. If the case is
deposition dies and he’s now substituted filed in Cebu and raffled to Judge Adviento,
by his heirs/executor?Can they use that dili na siya pwede na madeposition officer.
deposition taken by the original party who The judge here refers to the judge of the
is now dead? YES, they can use that. place where the deponent resides. So ang
akong witness taga Davao, sa Davao sad
- Objection to admissibility ko manguha ug judge.
Deposition Officer cannot rule on
the objection One advantage of using a judge as a
since he is not a judge. Let’s go deposition officer is the judge can issue a
back to the example. We will take the subpoena to the witness and compel him
deposition in Davao in the office of an to come and testify. If you use any other
attorney appointed as a deposition officer. person as a deposition officer, bisag notary
Now in his office, depositions shall be public pa na, di na sila kapugos sa witness
done by oral examination. I, as the lawyer to come kay wa man silay coercive power.
of the plaintiff shall ask the questions to Makacite diay in contempt ang notary
the witness, then after that the lawyer of public? DILI kay wa man sad siyay
the defendant will ask questions. In the contempt power.
course of my direct examination with the
witness, the lawyer of the other party might Unsa imong remedy if dili jud siya
object fearing that the questions are magpatuo sa deposition officer? Now you
leading. Can the deposition officer rule on go to a judge in Davao and ask him to
the objection? HE CANNOT. What the issue a subpoena to the person to appear.
deposition officer can do is to simply say:
objection noted. The one who will rule on Another advantage of using a judge as a
the objection is the judge handling the deposition officer is the fact that he has
case. already the staff like an interpreter sa
court. Kasagaran na kuhaon na deposition
-Effect of taking deposition officer by lawyers are the clerks of court of
Preserve the testimony; not compelled to the RTC (because they are lawyers who
use the deposition. can administer oath, sa MTC dili lawyers
pwede daw barristers).
-Effect of using depositions
It means that I am utilizing the person now 2.) notary public
as a witness.
3.) persons authorized to administer oath
By the way who decides who will be the under Sec. 14
deposition officer or deponent? IT is the
requesting party himself who decides. *If deposition is taken outside the country
Akoy mangita ug deposition officer. What
about the lawyer of the other party, what 1.) On notice before a secretary of
happens if they object? Well, they can embassy or legation, consul general,
object if they don’t like the deposition consul, vice-consul,nor consular agent of
officer. Duna may disqualifications such as the Republic of the Philippines;
relation to one of the parties or related to
the lawyers up to the 6th civil degree by In a foreign country ang gamiton nimo na
consanguinity or affinity. deposition officer is under ani na category.
There’s a circular issued by the Dept of
Foreign Affairs that you should not go
-Rebutting deposition directly to the Philippine consul to conduct
the deposition taking. All requests must be
D. Who can be deposition officer: coursed through the DFA in Manila. For
*If deposition is taken in the Philippines example you have a witness in Los

Angeles, ayaw ug diretso sa Philippine makaagi pa man kas DFA so if you ask the
consul ngadto, adto sa sa DFA so they can permission from the court to order the
refer it to the consul. And that consul will consul to act as a deposition officer.
be a deposition officer. You can take either
oral examination or written interrogatories ***Break
with the consul. So if dili kaafford ang party
na muadto sa Los Angeles para Now, we were discussing about deposition
magconduct ug oral examination sa taken abroad. There are only three (3)
person, himua na lang na in writing ang persons who can take deposition abroad. It
questions niya ipadala sa consul (written is either the Philippine Consul or the
interrogatories). The consul will then invite Consular Agent, or any person authorized
the witness to come to the consular office to administer oath in that country. If there
and then the questions will be read to him. is no Philippine Consul, then we can use
The questions and answers there will be any person authorized to administer oath
sent by the consul to the court in the Phils. provided that he is appointed by the court
in the Philippines when the case is
What happens if the deponent in a foreign pending the appointment is done by letter
country will not obey the consul? Can the commission.
consul force him to testify? NO wala siyay
coercive power. 3.) The person referred to in Section
14 hereof. (any person authorized to
administer oath)
2.) Before such person or officer as may
be appointed by commission or under The third one is by letter rogatory.Letter
letters rogatory; or rogatory is actually a request by our
Suppose we don’t have a Philippine consul Philippine court to a foreign court for that
in that place? What if naa sa Timbuktu ang foreign court to be the one to conduct the
imong witness? You can ask somebody deposition. This will be the last recourse.
there in that place who is a lawyer or any This will only be resorted to as a last
person in that place who administer oath recourse, why? if the witness will not obey
not necessarily a lawyer to act as a the Philippine Consul or the foreign lawyer
deposition officer so they can invite the or notary public who is deputized to
witness. But just like a consul that person conduct the deposition by way of a letter
has no coercive power. If you use an commission, if that witness will not respect
official there in that place with no consul, these persons, then the last resort for our
you must first ask the court in the Phils. for court will be to request the court of a
a letter commission appointing that official foreign country where that witness resides
in a foreign country as a deposition officer. to be the one to conduct the deposition.
The written questions will be sent to that This is done by a letter rogatory.
person and he will ask the witness to
appear before him. A letter rogatory is actually a letter which is
done by our court requesting a foreign
When the deposition is to be taken abroad, court to do the deposition. It is now a
you always have to ask the permission of court-to-court request.
the court where the case is pending. But if
the deposition shall be in the Phils, no The advantage of a letter rogatory is that if
need to ask permission basta duna nay the witness will still disobey the request of
answer. Leave of court is no longer the court, that court has a coercive power
needed when the defendant has already on the witness because he is residing on
filed his answer. Required ra if naay the place where the court is sitting and he
answer. But in deposition in a foreign can be sent to jail and arrested if the court
country, even if the defendant has filed his of the foreign country na ang gi disobey or
answer, mangayo jud kag permission. request.
Bisan pag consul na ang muconduct
mananghid gihapon ka sa court kay

For example, we have a witness in -Effect of requesting party's failure to
Chicago, USA. We do not have a consular attend and serve subpoena (Sec. 23)
office there or we have a consul there but
the witness won’t obey the consul. Wa (How is this done? I have explained this a
may coercive power ang consul so di cya while ago. To be more specific, first, if you
kapapriso if di mo obey ang witness. So want the deposition to be taken in the
what will we do? We ask our court here in Philippines by oral examination, you just
the Philippines to write a letter to the court send a notice. If there is already an answer
in Chicago. A judge in Chicago will be of the defendant, wa namay kinahanglan
requested to conduct the deposition taking. sa leave of court diba? so you do not have
The judge in Chicago will show the to file a leave of court to take the
acceptance of request because the deposition of that person. All you have to
request will also contain a statement that do is to just send out a notice to the other
“if a samiliar incident will happen, we will party and furnish a copy to the court. You
also accommodate your request here”. So also notify the court where the case is
mao nay letter rogatory, court-to-court. pending like you will be taking the
deposition of the witness in Davao like the
Now the court in Chicago will now be the example awhile ago. You will be the one
one who will issue a subpoena to the who will decide who will be the deposition
witness residing in Chicago so if you officer. You arrange that with somebody
disobey, you can be arrested. That is what who is qualified to be a deposition officer in
we mean by letter rogatory. Davao. And you tell the other party that
you will be taking the deposition by oral
E. C o m m i s s i o n a n d L e t t e r s examination.
Rogatory
What is the difference between letter Now, if the other party cannot afford to go
commission and letter rogatory? Letter to Davao, they can always object to the
commission, it is our court that will appoint deposition by oral examination. So they
somebody in a foreign country as a will tell the court here and the court will be
deposition officer and that somebody is not the one to decide like “deposition will not
a judge in that place. He is one who is be allowed because it will be unfair to the
authorized to administer oath. If di pajud other party who cannot send their lawyer
na respetoan kana c somebody, then we to Davao, it shall be by written
go to letter rogatory – court-to-court, which interrogatories”.
is the last resort. Our court here will not
immediately resolve to letter rogatory. We Now, in the deposition taking, before the
will only use this if the letter commission is witness will testify, he will be under oath
disobeyed or not respected. and so that’s why, the deposition officer
will take the oath of the witness (tell the
F. Disqualification for a Deposition truth, the whole truth, and nothing but the
Officer truth), that is why one requirement of a
Deposition officer in the Philippines will be deposition officer is that he must be a
disqualified if it is related to the deponent notary public or a person authorized to
or to any party/parties in the case up to the administer oath kay requirement mana nga
6th civil degree either by consanguinity or ang mo testify, they will be telling the truth.
affinity. So he must be a judge, a notary public, or
a person authorized to administer oath.
G. D e p o s i t i o n u p o n o r a l
examination Remember that not all lawyers are notary
-Notice (Sec. 15) public can only a lawyer who is a notary
-Order for protection of parties and public can be a deposition officer.
deponent (Sec. 16 and 18)
-How deposition upon oral examination What will happen if the person who
taken (Sec. 17 to 22) requested for the deposition taking fails to
appear? He will be ordered by the court to

pay the other party who appeared. so
nagrequest kag deposition sa Davao nya So karon inig hearing na dire sa Cebu, ako
ikaw na nuoy wa nitunga ang other party may requesting party, ako may nikuha sa
naa, so parefundon kas tanan gasto. deposition, I will tell the court that “I have
another witness your honor and that is
I mentioned awhile ago that during the Juan in Davao. I have already taken his
deposition taking, if there is an objection deposition in Davao. The deposition of Mr.
raised by the other party, the deposition Juan is already with th clerk of court.” And
officer cannot rule on the deposition. What so the judge will ask the clerk of court to
the deposition will just say is “noted”. That bring the deposition and will ask the coc to
he will just note that there is an objection. open the envelope and will be read.
When is your objection going to be The lawyer of the other party will say “you
resolved? Who will decide? Who will rule honor, during the deposition taking, there
on your objection? When is it going to be was a question asked by the counsel for
decided? The answer is this: when the the plaintiff and I objected to it. this is
deposition is already offered as an found in page 5 of the deposition and the
evidence in court, that is the time that the deposition officer just said “noted”, can we
court will be the one to decide or to rule now have a ruling on this objection?”.
the objection.
So it is now the court in Cebu handling the
For example the deposition was taken in case who will rule on the objection. Not the
Davao. During the trial of the case, I am deposition officer in Davao. Even if the
the lawyer of the plaintiff and we are the deposition officer in Davao is an RTC
requesting party, katong gi kwaan ug judge, he cannot rule the objection
deposition sa Davao. During the trial of the because he is not the judge handling the
case, if I will use that deposition as part of case, he is only a deposition officer and
my evidence, so the court will say “counsel listened to the testimony. The one who
for plaintiff, do you have any other decides on the objection is the judge in
witness?” and I will say “yes your honor, I Cebu where the case is pending.
have a witness in Davao but because of
the distance he cannot come, we took his That is how deposition is conducted by
deposition in Davao and I have already his way of oral examination.
deposition in court”. What the deposition
officer in Davao will do, after the deposition H. D e p o s i t i o n u p o n w r i t t e n
taking is terminated, e transcribe daun to interrogatories:
tanan question and answer (kay naa may -Written interrogatories shall be served
stenographer). You have to wait because upon every party with notice
the stenographer will transcribe all the -The notice shall state the name and
questions and answers then the deposition address of the person to answer it,
officer will ask the witness, “You read, is -The name, title and address of the
this accurate? Do you have any comment deposition officer,
or is the q&a accurate?” and if the witness -Within 10 days the person asked may
says that everything is fine, then the serve cross-interrogatories
deposition officer will, after he signs his -Deposition officer shall give notice of its
name in the deposition, place that in a filing in court (Sec. 27)
sealed envelope and will be marked as
“deposition of Juan dela Cruz (As I have said, there is a deposition
conducted in Davao City by Atty. So officer, there is a deponent, but there are
and so as deposition officer at his no lawyers or parties around. It is only
office on this particular date.” Then that between the deposition officer and the
enveloped will be sealed and will be witness because questions are already
mailed to the court in Cebu where the case written in writing and is sent to the
is pending, addressed to the Clerk of Court deposition officer and the deposition officer
on Cebu.

will just read the question to the deponent
or to the witness. Now, ug ikaw ang about to file a case, you
are now planning to file a case against
Now, once the answers are already in, the someone and you have prospected
deposition officer will have to give copies witnesses who are living abroad, wa paka
to both the parties. And then, he will file it ka file sa imong kaso because you are
or mail it through registered mail to the collating all your evidences and
court from Davao to Cebu and will notify documents, then you can take the
both parties that he already mailed the deposition of your prospected witness, but
deposition to the judge in Cebu. you have to file a petition to allow you to
take the deposition of your prospected
Now, there is another kind of deposition witnesses.
which is governed by Rule 24.
Where will you file that petition? In the
Rule 24 place of your expected opponent, the
DEPOSITION BEFORE ACTION OR defendant. Now, if the defendant is
PENDING APPEAL residing in Bohol, you have to go to Bohol
and file the petition in the court of Bohol,
(Here, there is yet no case filed but you and not in Cebu where you reside.
are anticipating that a case will be filed Because the rule says “in the court of the
soon. That is why deposition “before place where the expected adverse party
action” or deposition “in perpetuam rei resides.)
memoriam” (di ko sure sa spelling girls).
B. Contents of the Petition: (Petition jud
A. Petition to take deposition before ha dili motion so it is an independent
action: action in court)
-Must be done with leave of court 1.) That the petitioner expects to be a party
-In the court of the place where the to an action in a court of the Philippines
expected adverse party resides. but is presently unable to bring it or caused
it to be brought;
(Now, suppose you are expecting that a 2.) The subject matter of the expected
case may be filed very soon against you, action and his interest therein;
and you have a prospective witness but 3.) The facts which he desires to establish
just like in Rule 23, your perspective by the proposed testimony and his reasons
witness is dying or is about to leave the for desiring to perpetuate it;
country for good, so you have to get his 4.) The names or a description of the
testimony in advance and preserve his persons he expects will be the adverse
testimony for future use. parties and their addresses so far as
known; and
Now in this case, you have to file a 5.) The names and addresses of the
petition. Here, leave of court is very persons to be examined and the
necessary because there is still no case substance of the testimony which he
filed. In fact, dili lang kay ni leave of court expects to elicit from each, and shall ask
kay ug mo ingun kag leave of court you file for an order authorizing the petitioner to
a MOTION for leave of court to take the take the depositions of the persons to be
deposition. Kani dili. You file a PETITION examined named in the petition for the
jud, to take the deposition and you have to purpose of perpetuating their testimony
file it in the court of the place where the (Sec.2).
expected adverse party resides.
(This is what your petition contains. That
So in the example awhile ago, you the opposing party is this and this is his
expected to be the defendant, so where address and you describe what the case is
the plaintiff resides, adto nmo e file didto all about briefly and then describe the
ang imong petition to allow you to take the person whose testimony you will take by
deposition of the witness. way of deposition in order to perpetuate

the testimony. So this is what we call as opponent in the case. In Rule 23, you can
deposition in perpetua rei memoriam avail of deposition upon written
(again, idk the spelling). The same interrogatories even to a non-party, to any
principle applies to a deposition pending person, to a prospective witness of yours
appeal before the CA. so you also have to or to a prospective witness of your
file a PETITION in court.) opponent, or to any person for that matter,
pwede man nmo gamitan ug written
deposition upon written interrogatories –
-The petitioner shall serve a notice upon not necessarily a party. But in this rule,
each person named in the petition as an party ra jud.
expected adverse party, together with a
copy of the petition, Like for example, I am the plaintiff, I can
-The court will decide whether the send written interrogatories to the
deposition shall be oral examination or by defendant and ask the defendant to
written interrogatories. answer the following questions before the
start of the hearing of the case, pwede na
C. Deposition pending appeal: nmo magamit – “Will you admit this and
When taken: (or this ca be done☺ that?”, “will you answer the ff questions?”.
1) During the pendency of an appeal That is written interrogatories to parties.
2) Even before the appeal is filed, but
the period of appeal has not yet When I send a written interrogatory to my
expired opponent, opposing party, he must answer
that written interrogatory within:
Rule 25 B. Answer to Interrogatories:

INTERROGATORIES TO PARTIES Within fifteen (15) days after service
thereof, unless the courts, on motion and
A. How is it done: for good cause shown, extends or
Is leave of court required before one can shortens the period
avail of interrogatories to parties?
(The opposing party to whom the written
(The rule here is similar to Rule 23. If there interrogatory is addressed may object to
is yet no answer, leave of court is required. the written interrogatories and is given:
After the court acquires jurisdiction over
the person of the defendant, but before the C. Objection to interrogatories:
defendant could file his answer, leave of Within ten (10) days after service thereof,
court is required but when there is already with notice as in case of a motion;
an answer, leave of court is not anymore
required. D. Number of interrogatories: (to the
opposing party)
Here, the interrogatories to parties here, Not more than one, without leave of court
the written interrogatory are addressed to
the party, to the opposing party. So how do (You can ask a written interrogatory the
you differentiate this from Rule 23? Diba second time, but that must be with
sa Rule 23 naa may deposition upon permission of the court already.
written interrogatories? Naay deposition
upon moral examination and the other one Now, if I am the plaintiff and you are the
is deposition upon written interrogatories. defendant, pwede tika padadan ug written
Unsa may difference ani? Sa deposition interrogaties and you are bound to answer
upon written interrogatories and written that within 15 days, no need for leave of
interrogatories to parties? court if there is already an answer filed in
court. But if I Send another set of written
Well the distinction is that here, it is interrogatories, dapat nana with leave of
confined only to the party to the case. You court.)
send written interrogatories to your

advised to avail of the different modes of
E. S c o p e and use of discovery. It is almost mandatory that you
interrogatories: avail of this. And that is why now, under
(The scope of the written interrogatories is the new rules, if you did not avail of these
the same as that of deposition. You can rules of discovery, there are sanctions,
ask any question provided it is relevant consequences. And this one is one of the
and material to the case and provided it is consequences. If you did not avail of this
not privilege(??). particular mode of discovery, you cannot
anymore use your opponent as a witness
What is the use of written interrogatories? during the trial of the case. Reason: do not
You can use that at any time during the surprise your opponent.)
trial of the case against the opposing
party.)
Rule 26
F. Effect of failure to serve written ADMISSION BY ADVERSE PARTY
interrogatories:
A party not served with written (Here, you request an admission from your
interrogatories may not be compelled by opponent. Again, imong padad-an niani is
the adverse party to give testimony in open the adverse party.
court, or to give a deposition pending
appeal (Sec. 6) When can you avail of this mode of
discovery, admission by an adverse
(This one is new. If you did not avail of this party?:
mode of discovery against your opponent,
then you are not anymore allowed to utilize A. Request for Admission:
your opponent as a witness during the trial At any time after issues have been
of the case. joined,a party may file and serve upon any
other party a written request for the
Before, it was allowed where you can use admission by the latter of the genuineness
your own opponent as your own witness. of any material and relevant document
Like moingon ko “plaintiff, present your described.
evidence, who are your witnesses?”, then Leave of court is not necessary here. This
the plaintiff lawyer will the answer “my next is because there is already an answer
witness your honor is the defendant when you avail of this mode of discovery.
himself” pwede na nimo magamit and you
can force the defendant to sit in the (“after the issues are joined”, what does it
witness stand and will be asked questions mean? After the defendant has already
by the lawyer of the plaintiff. Kay basin filed an answer, and the plaintiff has
dunay gusting e elicit na information that is already filed its reply, then the issues are
favorable to you. already joined. The case is already ripe for
pre-trial conference. After the issues are
You are not allowed to that now if you did joined, you can already make a request for
not avail of this mode of discovery. IOW, if admission and what you are asking the
you have questions against your opponent, other party to admit is the genuineness of
and you want to utilize the other party or any material and relevant document
your opponent, you should ask that by way described or admission of a material fact.
of written interrogatories by way of Rule
25. If you did not avail of this, then you What is the effect if there is a request for
cannot use anymore your opponent as admission on one party against the other
your own witness during the trial of the party and the other party did not answer
case. the request for admission? Effect is:
So that shows the mandatory nature of this

mode of discovery. In fact, under the new B. Implied Admission:
circular of the SC, lawyers are strongly

The request is deemed admitted if the 2) To prevent failure of justice.
party requested fails to answer the request
within fifteen (15) days after service (So it is up to the court if mo provide ba
thereof. cyag exception to allow you to prove or
However, When a matter is already present evidence of such facts)
effectively denied in the pleading, as in the
case of an actionable document attached F. To whom request for
to the complaint (ie. promissory note) but admission be made:
was specifically denied in the answer, A request for admission must be
there is no need any more to ask it again addressed to the party and not to his
under Rule 26. If requested and not lawyer. So, if the request was sent to the
denied, there is no admission. (Po vs lawyer of the adverse and the latter did not
Court of Appeals, 164 SCRA 668) answer, the failure to answer will not
matter as the request is not valid
(Sa ato pa, ug gi deny nana niya sa iyang (Reboneria vs. Court of Appeals, 216
pleading, ayaw nag ipangutana ug usab. SCRA 627).
Maldito and hopeful ra kaayo ka para ma
consider as implied admission. No need (dili nimo ipadala sa lawyer, adto jud sa
for nga mo tubag kay gi deny naman na party.
niya sa iyang answer. So you have an
actionable document attached to tour Now, if you mail it to the party, addressed it
complaint. to the party and sent it to him, and then he
gave it to his lawyer for his lawyer to
Like in the case of Po, promissory note, answer, that is alright. Natural raman nga
and the defendant ni ingun na sa iyang magpatabang ug abogado)
answer nga the promissory note is not true
and denied it already, then later on was However, if the request for admission was
given a request for admission on the properly sent to the party and the latter
genuineness of the promissory note, requested his lawyer to answer it, the
implied admission will not apply) answer is valid. Under the Rules, a client
can always act through his lawyer and that
C. Effect of admission: he is bound by the actuation of the latter
(PSCFC Financing Corp vs Court of
D. W i t h d r a w a l of Appeals, 216 SCRA 238).
admission:
E. Effect of failure to file Rule 27

and serve request for PRODUCTION OR INSPECTION OF
admission DICUMENTS OR THINGS
(there is also another consequence if you (You can avail of this mode of discovery in
did not avail of this mode of discovery) order for you to properly prepare your
defense or answer)
GR: If you did not serve a request for
admission on the adverse party of material A. How is it done:
or relevant facts at issue which are, or
ought to be, within the personal knowledge B. Requisites for a valid inspection
of the latter, you will not be permitted to of documents or things:
present evidence on such facts. 1) A motion (leave of court) must
be filed;
2) The motion must show good
cause for its grant;
XPN: 3) Notice of motion must be
1) Unless otherwise allowed by the furnished to all parties;
court for good cause shown; and

4) The motion must sufficiently controversy, the court in which the
described the documents or action is pending may in its discretion
things to be produced or order him to submit a physical or
examined; mental examination by a physician
5) The documents or things to be (Sec. 21)
examined must contain evidence The order for examination may be
material to the pending action; made only upon motion for good cause
6) The documents or things to be shown and upon notice to the party to
examined must not be be examined and to all other parties,
privileged; and and shall specify the time, place,
7) The documents or things to be manner, conditions, and scope pf the
examined must be in the examination and the person or persons
possession of the adverse party by whom it is to be made (Sec.2).
or, at least, under his control.
(When the examination is conducted on a
(Now this one, you can use this for both particular person, may he be a party to the
personal or real properties. For example, case or not, the report, result of the
one of the documents that was attached to examination is considered to be public and
the complaint filed by the plaintiff is not so therefore, the person examined and the
well photocopied, let us say deed of sale doctor who examined it cannot invoke the
nya hanap kaayo, you can always ask the privilege of communication rule. You
court for the production of inspection of cannot invoke such privilege because it is
that document. You file a motion in court the court who ordered the examination so
and ask the court to order the plaintiff to it is expected that the result will be made
present the original copy of the deed of public by the court.
sale in court so that you will photocopy it.
B. Report of Findings:
Now, part of this is the inspection of a If requested by the party examined, the
thing. Like ug inyong giawayan kay yuta, party causing the examination to be
you can do and ask the court for an ocular made shall deliver to him a copy of a
inspection of the place which is the subject detailed written report of the examining
matter of the controversy. And if you file a physician setting out his findings and
motion to the court, he cannot deny it kay conclusions.
he can be cited in contempt of court.
C. Waiver of privilege:
By requesting and obtaining a report of the
Rule 28 examination so ordered or by taking the
PHYSICAL AND MENTAL EXAMINATION deposition of the examiner, the party
OF PERSONS examined waives any privileges he may
have in that action or any other involving
(You can ask the court to issue an order to the same controversy, regarding the
let a particular persons submit itself to testimony of every other person who has
physical or mental examination. But this is examined or may thereafter examine him
allowed only when the physical or mental in respect of the same mental or physical
condition of that person is in issue. Like examination (Sec. 4).
you say “kanang taohana nabuang na”, so
ipa mental examination nmo or “kanang (So what is meant here is this, if I ask the
taohana dunay sakit nga this and that”, physical or mental examination of the
you can ask the court nga ipa physical defendant for example and the plaintiff
examination nmo. requested for the examination of the
defendant, then the defendant requested
A. W h e n e x a m i n a t i o n m a y b e for a copy of the result (it is his right), now,
ordered: I can also ask a copy of the report of the
In an action in which the mental or doctor who examined you previously or
physical condition of a party is in who examined you after. He cannot say

that there is a privilege. That is the Pero kung nabali, ang nag request maoy
meaning of this. unreasonable, siya ang pabayron.
When you ask for a copy of the report from Contempt of Court:
the party who requested your examination,
then you must be ready also to divulge to (that’s it mana)
him the result of the previous examination
conducted by any other doctor on you (Nota Bene: wala na include ang last slide
kung mo request sad cya and you cannot of Dean’s ppt because napawng ug kali
invoke the privilege of communication. tang projector and mao rani ang last words
before dismissal. Maybe not that important
Suppose you want to physically examine already. GOD BLESS BRATTYS!)
the dead body of a person, imong ipa
exhume, ipa autopsy, will you be using this CIVIL PROCEDURE I PRE FINALS
rule? NO. USE RULE 27. TRANSCRIPTION I DEAN MONTECLAR
Because Rule 28 presupposes living Civil Procedure – January 29, 2018

persons. Since patay naman na imong ipa
examine, use now Rule 27, “THING”. (So, we already discussed the preliminary
steps in litigation. You start the ball rolling
by filing a complaint in court. Once the
Rule 29 complaint is filed in the court, the clerk of
REFUSAL TO COMPLY WITH MODES OF court will issue the summons and the
DISCOVERY sheriff will serve the summons to the
defendant. Once the defendant receives
(What are the effects?) the summons that is the time the court
acquires jurisdiction over the person of the
A. Refusal to Answer: defendant. Then the defendant is required
-Movant of deposition upon oral to answer within 15 days. After the
examination may proceed to ask defendant has filed his answer, the plaintiff
questions on other matters. may file a reply and after the reply is filed,
-Movant may ask from the court for we can now say that the issues are now
an order to compel from the joined and the case is now ripe for pre-
deponent to answer. If the court trial. So, the court will now schedule the
fi n d s t h e r e f u s a l t o a n s w e r case for pre-trial conference. Now, pre-trial
unreasonable, it may order is the preliminary stage because it is here
deponent and counsel to pay where the court will try to find an avenue
reasonable expenses incurred by for settlement if the parties can settle the
the proponent in obtaining the order. matter amicably and if they cannot, then
-If the court finds the motion the court will proceed with the
unjustifiable, it may order the simplification of the issues, stipulation of
proponent to pay reasonable facts, and many other things so as not to
expenses in refusing the motion. complicate the proceedings later. So after
the pre-trial conference, the judge will
(So dili gihapon nimo ma compel to issue a pre-trial order and remember as I
answer. Ang imo rang remedy dre, kumg di said, the pre-trial order is a very important
jud cya mo tubag, magpalaban kas korte. piece of document because it will govern
Tell the judge “awa judge di mo tubag”. the subsequent proceedings during the
You ask the court for an order to compel trial of the case.)
him to answer, if the court finds the refusal
to answer unreasonable, it may order the
other(?) to pay (not go to jail) reasonable RULE 30 Trial
expenses in court by the proponent (Trial refers to the stage in the litigation
maintaining the order. process where the parties will present their
respective evidences. And it is the plaintiff

who should present the evidence first and (When the trial of the case commence, it
after that, the defendant. does not mean that it shall go on
continuously. We always have a time
Is trial the same with hearing? limitation and so if you cannot finish
This is one of the most common error or presenting your evidence, you can always
mistake we commit that even lawyers uses ask for adjournment. Adjournment is
the two terms interchangeably which is not different from postponement.
correct, they are not one and the same
thing. Trial refers to those dates where you So you ask for an adjournment of the case
present your evidence. Hearing refers to and if you ask for adjournment, the next
all other stages in the litigation where the setting should not be more than 30 days
parties will appear in court like motions. from the present setting. And no
When you file a motion, the court will set adjournment or postponement can be
your motion for hearing. If it is a litigable done successively for more than 3 mos
motion like motion to dismiss, it must be or to go beyond 3 mos. Except: if there is
set for hearing. Now, the hearing of the prior written approval of the court
motion is not part of trial, it is hearing. So administrator oof the SC. So dapat
any stage of the hearing where the parties mananghid kas court administrator nga
will appear and present their side whether tagaan kag authority to go beyond 3 mos.
verbally or in writing, that is part of hearing. But you know that is just in the books, ofc
depending on the judge as well. (so sad)
IOW, hearing is broader in scope than
trial because trial is confined only to that (break)
stage when you present evidence while
hearing refers to the hearing of the (…dugay na start… you do not have an
motions that you present in court. So that available evidence to present, you may
is the difference between the two. ask for postponement. File a motion for
postponement.
A. Notice of trial:
(Now, the clerk of court must send first the If the ground is adjournment, it also
notice of trial. But this is not followed presupposes that there is already an
anymore in actual practice because during ongoing trial and you want it to be reset to
the pre-trial which happens before the trial, another date. Usually, the ground for
the parties will already agree on the date adjournment is lack of material time like
of trial and so the court, the judge during for example if there is an ongoing trial and
the pre-trial if they cannot settle, the then we have no more time like it is
ending part there, the judge will say “okay, already 12:00nn, either party may request
we will now agree on the dates of the trial. the court for adjournment like “your honor
Plaintiff, how many witnesses do you please, I move for the adjournment for lack
intend to present?, “I have 5 your honor”, of material time”. Usually, the court will
“okay, I will give you 5 days to present, you schedule several cases in one morning
choose the five days”, it should be every and so, the court will just give you 30
month, at least one setting for every minutes for your case and so after you
month. And after that, the defendant will may have presented your witness only for
also be asked the same. That will already direct examination, the lawyer of the other
be included in the pre-trial order. So the party cannot right away conduct the cross-
parties are already aware of the dates of examination because there are other
trial. There is no need anymore to send cases waiting so the judge will say “can
notice of trial. What the court will send to you conduct your cross examination next
you is the pre-trial order which contains time and adjourn the hearing of the case?,
already the dates of trial for the that is an example of adjournment.
presentation of evidence for the plaintiff
and defendant.) Usually it is based on lack of material time
but it can also be based on other grounds
B. Adjournment and postponement like maybe you forgot to bring the file so

muingon kag “I will bring it next time”. Now, available, then your motion for
that is where the rule will come in. the rule postponement will surely be denied by the
says that you cannot adjourn for more than court.
30 days. But again, in actual practice, this
is not strictly observed. * if the ground is illness of a party or
counsel
In the case of postponement in the other (Most common one and this one is a thing
hand, there is yet no trial of the case. The we cannot avoid, we get sick. Suppose the
hearing has not yet been conducted and witness or the party himself that is going to
then you asked the court to reset (the be presented is sick, the plaintiff or the
other term for postponement is resetting). defendant himself who is going to be
presented in court is sick and will be
There are 2 basic grounds for released in the hospital on Friday but
postponement: Thursday na ang hearing , you do not have
to wait until Friday. You will have to inform
C. Requisites of Motion for Postponement: the court and the other party, file a motion
for postponement on the ground of illness
* if the ground is absence of evidence of a party.
(If this is your ground, you have to support
your motion with an affidavit and the For this to be granted by the court, it is
affidavit must contain a statement as to important for you to prove that the
the relevancy and materiality of the presence of that party is indispensable to
evidence. the case. His presence is indispensable
only when it is his turn to testify. Ex: it is
One way of defeating this ground for the turn of the second witness to testify but
postponement is if the other party will the plaintiff himself got sick and won’t be
admit the existence of that document or able to listen to the testimony, the court will
evidence without necessarily waiving not grant the request for postponement
his right to object to the document. here because his presence is not
What does this mean? You are saying that indispensable, you cannot say “ganahan
this coming Friday, you are supposed to lang ko maminaw”. Presence must be
present your witness but this witness is not indispensable only at that scheduled
yet available this Friday so absence of hearing.
evidence. You state in your affidavit that
the testimony of that witness is very The rules require that when you ask for
relevant and material to your case. postponement of a case on this ground,
your motion must be supported by a
If I am the opposing party, I will ask you medical certificate. But under the new
“will you please explain what that person is rules, it is no longer enough to just present
going to testify? Will you please tell me a medcert because it has been abused by
what is he going to testify?” and then you many. Under the new rules, the medcert
will say “he is going to testify this and that”, must be subscribed and sworn to
I can say that “okay I will admit what he is before a lawyer or a notary public
going to say so no need to present that otherwise, it will not be accepted.
person”. so there is no need to present kay
“I will admit” but without necessarily Question from a student: is postponement
admitting that that evidence is admissible the same with continuance?
in court. So as to what he is going to say, I
will admit. I will admit to the existence of Dean: Continuance is the same of
that document. But it does not mean I am adjournment. Motion for continuance
necessarily waiving my right to object to parepareha rana siya sa adjournment.
the admissibility of that evidence. Postponement, other term is resetting.
So if this is your ground and the other D. Order of trial

party will admit to the evidence that is not 1.) Plaintiff to present evidence:

(after the plaintiff will present all his the defendant. After the defendant, the
evidences, he will make a formal offer of plaintiff may present rebuttal evidence to
exhibits. Meaning, all the documentary rebut those allegations or evidences
exhibits which he marked (exhibit A, B, C, presented by the defendant. The
…) during the trial of the case will have to defendant is also given the chance to rebut
be offered in court with the the rebuttal of the plaintiff. We call that
corresponding purpose like: Exhibit A, sur-rebuttal evidence for the defendant.
deed of sale, the purpose is to prove the Afterwhich, the court may now declare the
land subject matter of the case is bought case submitted for decision. Not unless the
by the plaintiff, Exhibit B, receipt, to prove court requires the parties to submit a
that the purchase price has already been memorandum.
paid etc… you make a formal offer of
exhibits which should be in writing and the 7.) Upon admission of the evidence, the
counsel of the other party will be given a case shall be deemed submitted for
chance to make his comment or opposition decision, unless the court directs the
to the formal offer of exhibits. After which, parties to argue or to submit their
the court will now decide or rule on the respective memoranda.
formal offer of the exhibits. The court will (Di na ni uso run. Memorandum is not
say “all the documentary exhibits offered mandatory, it is optional. But it will guide
are hereby admitted as part of the the judge. Mas may nang mo file kag
evidence for the plaintiff. After that will be memorandum kay mao nay kopyahon sa
the turn of the defendant to present huwes.)
evidence.)
N.B. The foregoing order of trial applies
2.) Defendant shall then adduce evidence; only to regularly controverted claim ( Yu
(will also make a formal offer on the vs. Magpayo, L-29742, March 29, 1972)
exhibits and the plaintiff’s counsel will be (The rule that it is the plaintiff who will
given the same right as well to comment or present the evidence first is not followed all
oppose. the time. There are instances where the
plaintiff may not be required to present
After the court will admit the exhibits of evidence first. This is what we call as
both parties, the case will now be reverse trial. This is very common in
submitted for decision. criminal cases where the defense of the
accused is self-defense. So there is no
If there is a third party complaint, then after need for the prosecution to present
the defendant, the third party defendant evidence that you killed because admitted
will testify and present its evidence or the naman na nimo. So the burden of proof is
fourth party defendant, so on and so forth.) shifted to the defendnant.
3.) The third-party defendant, if any, shall That reverse trial in criminal cases is also
adduce evidence; applicable in Civil cases like the case of Yu
vs. Magpayo where the case was for the
4.) The fourth-party defendant and so collection for sum of money. The defense
forth, if any, shall present evidence; of the defendant is that he has already
paid the obligation. By saying that he has
5.) The parties against whom any already paid the obligation, then the
counterclaim or cross-claim has been defendant has admitted that he really
pleaded shall adduce evidence in support borrowed the money. So there is no need
of his defense; anymore for the plaintiff to prove that you
borrowed money and did not pay. It is you
6.) The parties may then adduce rebutting who has the burden of proof to prove that
evidence; you have already paid. Show to the court
What do you mean by rebutting evidence? proof that you have already paid.)
We call that rebuttal. Diba the plaintiff will
present evidence first? Then after will be

(Now, as a general rule, the court cannot (Under the new rules must be on record.
sign a case without presentation of The judge can no longer say “off the
evidence of all the parties, without record” especially if the comment of the
conducting a hearing. That is why there is judge is in favor of one party, Makita iyang
a trial for both parties to present their pagka bias. Every statement of the judge
evidence. But trial is necessary only if must be on record. Because this will help
there is a dispute as to facts, when the losing party later on when he appeal
there are factual issues to be resolved. the decision of the judge to the CA, he can
Normally, if muana kag “these are the facts point out that the judge is bias pre-trail
of the case” then the defendant will say “no palang daan. Oh see. It must be on record
no no! this is what happened”, so laen2 ug because it might be very useful on appeal.)
facts ang both parties. that is where the
court will; come in to determine the truth, G. Suspension of Actions:
the real facts of the case. That is why the Article 2030 of the Civil Code provides
court will conduct a hearing. that civil actions or proceedings may be
suspended:
That is the very purpose of trial. There
could have been no need for trial if the 1.) If willingness to discuss possible
facts are already admitted by the parties compromise is expressed by one or both
because the issue left to be resolved by parties; or
the courts now is the law that would be
applied in these set of facts. That is why 2.) If it appears that one of the parties,
one of the purposes of pre-trial is before the commencement of the action or
stipulation of facts. proceeding, offered to discuss a possible
compromise but the other party refused
E. Stipulation of facts: the offer.
(if the parties can agree as to the facts of
the case, then there is no need for trial. (The most common reason for the
The only issue left is the legal issue. No suspension is when there is an avenue for
more of the factual issue. Legal issues are settlement. The court will encourage the
the job of the judges while factual issues parties to settle.malipay huwes ana kay di
needs to be proven. na maglabad iyang ulo. The parties will
submit their compromise agreement to the
The court may decide a case without court and the court will simply approve
conducting a trial if the parties have your compromise agreement. The judge
already agreed of all the material facts of will no longer analyze kinsay namakak,
the case. unsay balaod e apply etc. It is not easy to
write a decision.)
Ug partial ra gane ang same stipulation,
mao nalang nay hearingon. That issue that H. Delegation of reception of evidence to
the parties cannot agree of will be limited clerk of court:
by the court already. You need not prove (During the trial, the evidences are
those facts nga gi agreehan ninyo. That is presented to the judge. It is the judge who
the purpose of pre-trial and the purpose of will accept the evidences offered by both
stipulation of facts. parties. There is however an exception to
that rule. There are instances where the
But there are cases where stipulation of judge may delegate the reception of
facts are not allowed:) evidence to its clerk of court. The condition
here however is it is allowed only in cases
N.B. – Stipulation of facts are not permitted of :
in Annulment of Marriage, Declaration of
Nullity of Marriage, Legal Separation, etc. 1.) Defendant is already in default or in ex-
(and thos found in the famcode) parte proceeding
F. Statement of Judge:

*** besh di jud maklaro ang next lines kay
blue kaau ang slide ni Dean hahahuhu* (Now, cases can be consolidated if it
involves common question of law or fact.
(*basin mao niy sumpay. Ako raning gi One good example is a vehicular accident.
sumpay ang recording kay di man daw ma Ex: the roughrider bus bound for cebu met
klaro ang ppt. after nis no. 1) or when the an accident and it was found that the driver
parties agreed upon it in writing. was driving recklessly. Several of its
passengers were injured. Each passenger
So the grounds are: default or in ex- has a cause of action against the bus
parte hearing, or the parties agreed on c o m p a n y. T h e r e w e r e 1 0 i n j u r e d
it. passengers who all filed a case against the
operator. All the cases were filed in cebu
Now, another condition is that the clerk of city because all the 10 injured are from
court who will receive the evidences cebu city. Now these cases may be
must a lawyer. Now, I have already consolidated into 1 because these involve
mentioned this to you before that only a common question of law and fact. It
clerks of court of the RTC are lawyers. The arises out in the same accident and same
clerks of court of the MTC’s are not question of law whether the operator is
lawyers. So they cannot receive evidences liable or not. Sense there is common
of the parties. The judges of the MTC question of law and fact, these can be
cannot delegate the reception of evidence consolidated although the parties are
to his clerk of court who is not a lawyer. different.
The SC said in the case of Lanuan vs If all the cases are filed in cebu city having
Maltaya (??? di ko sure sa case title) that more than 20 branches of the RTC
the judge may delegate the reception of (assuming lang nga tanan ni fall sa
evidence to his clerk of court but only in jurisdiction sa RTC), so there are 10
case of default or ex-parte hearing , or complainants, and we know that once the
there is prior written agreement between case is filed, it will be raffled. So bungkag
the parties. provided, that the clerk of court and katag ang 10 cases sa different
is a lawyer. branches of the RTC cebu.
Now here, the clerk of court is the If you are the lawyer of the bus company,
representative of the judge but the clerk of you would have to ask for consolidation.
court during the reception of the evidence Because it would be very inconvenient for
has no authority to rule on the objection. If you to be running from 1 court to another
there are objections, he cannot rule on it.) court having the same facts and question
of law. Anyway, imong defense is common
to all 10 cases. And for them, common
RULE 31 CONSOLIDATION OR man sad ilang allegations against you. So
SEVERANCE you file a motion for consolidation of
cases.
A. Consolidation:
When allowed? : You cannot consolidate if one case is
When actions involving common filed in another jurisdiction. Like for
questions of law or fact are pending before example, one filed a case in RTC Bogo
the court, it may order a joint hearing or kay taga Bogo man cya. That is different
trial. from RTC of Cebu. Ang isa kay taga Bohol
so didto niya gi file sa RTC Tagbilaran.
The rule on consolidation of cases Those cases that are filed in another court,
generally applies only to cases pending not the same court of cebu city, will not be
before the same court, not to cases consolidated. But all those cases filed in
pending in different areas of the same cebu city will be consolidated into one
court or in different courts ( PAL et al vs. case.
Teodoro, et al., 97 Phil. 461)

How will we know which of the different criminal for attempted homicide, and civil
courts will handle the consolidated case? for damages. Now, you can consolidate
The rule is: look at the docket number of this two into 1 court. Consolidation of
the case. criminal and civil cases is allowed.
In consolidation of cases, the case bearing In this case, it was argued in the criminal
the higher docket number is consolidated case that the civil case cannot be
with the case having a lower docket consolidated with the criminal case
number. because the quantum of evidence required
is different. But the SC said in this case
The case which bears the lowest docket that the two cases can be consolidated but
number is the case where all the other there will be different observance of the
cases will be consolidated. Why? because burden of proof.
if your docket number is the lowest
number, that means mao nay unang na That is why it is very possible in the case
file. So if 1 imo nya sa uban 2, 3 etc… like this where the accused will win the
kanang uban dira, ari na e consolidate sa criminal case, acquitted, but pilde sa civil
1 kay mao may unang na file. case and has to pay damages.
B. Separate Trial: (or severance of cases)

Three ways of consolidating cases
In furtherance of convenience or to
1.) By recasting the cases already avoid prejudice, the court may order a
instituted, conducting only one hearing and separate trial of any claim, cross claim,
rendering only one decision; counterclaim or third-party complaint.
2.) By consolidating the existing cases and (ug tanaw sa court nga dunay several
holding only one hearing and rendering causes of action joined together and the
only one decision; court feels that joining these cases will
only cause confusion or inconvenience,
3.) By hearing only the principal case and the court may order that this particular
suspending the hearing on the others until issue be tried separately.)
judgment has been rendered in the
principal case. CIVIL PROCEDURE – JANUARY 30, 2018
PPT and DISCUSSION
(Is consolidation of the criminal and civil
cases allowed? Yes. IN THE CASE OF: RULE 32
TRIAL BY COMMISSIONER
*Consolidation of criminal and civil cases is
allowed, but the degree of proof will differ When can there be a trial by
(Caños vs. Peralta, 115 SCRA 843) commissioner?
This will only happen when there are
(If it involves common question of law or issues or factual issues that are beyond
fact. One good example here is the competence of the judge to determine.
independent civil action. Ni file kag In other words these are matters that the
independent civil action. When can you file judge does not know how to resolve, it
independent civil action? Art. 33 of the CC, reqiures the experties of another person.
in cases of physical injuries, defamation, or
fraud. Ni file kag attempted homicide, Example: Land dispute, boundary dispute,
criminal case na, you can file at the same judge does know which of the two parties
time a civil case for damages based on has encroached the land because that will
that attempted homicide and the civil case be determined through the technical
will be filed in another court. It will be description of the title of the plaintiff and
treated as an independent civil action. So defendant. And when we look at the title
actually, duh aka kaso imong gi file – you will not understand that because that

is too technical that is why it is called REFERENCE. Now what are the powers
technical description. You need someone of the commissioners?
who knows how to read and understand B. Powers of the Commissioner:
technical description. In a case like these, 1. To regulate the proceedings in
the judge needs the assistance of a every hearing before him
geodetic engineer. So a geodetic engineer 2. To do all acts and take all
must be appointed by the court to help the measures necessary or proper for
court determine which of the two parties the efficient performance of his
has violated or encroached the land of duties under the order.
another.
The commissioner will have to
Another example: when a case involves conduct a hearing he is like the
the examination of the books of accounts judge. He is considered to be an
of a corporation. If the judge is not a cpa alter ego of the judge. That is why
lawyer, he will not understand it. If I am the he can issue subpoena.
judge and I encounter a case that requires
the examination of the book of accounts, I 3. To issue subpoenas and
would not understand that, if a case subpoenas duces tecum
involving two business partners then nag 4. Swear in the witnesses
away sila, they accuse each other that one
cheated the other, so we have to examine He can ask the witness although
their book of accounts. So we need a CPA. he is not a lawyer, he can ask the
Usually, the one who will be appointed is a witness that before you testify you
CPA lawyer same is through with geodetic stand up and swear before me.
engineer. There are also geodetic
engineers who are lawyers so they are the 5. Unless otherwise provided in
preferred choice, geodetic engineer and the order of reference, he may rule
lawyer. upon the admissibility of evidence.

These persons who will assist the judge in This is one thing that differentiates
understanding the factual issues, they are a commissioner from a clerk of
called commissioners appointed either at court who is delegated to receive
the instance of the court or upon request of evidence ex parte. We have
parties. discussed already that in case of
default or ex parte hearing the
So when the court appoints a geodetic judge may delegate to his clerk of
engineer or accountant to asisst him, the court the reception of evidence.
court will issue an order appointing that But here, when the clerk of court
person. The court will only appoint if both receives the evidence of the
parties or either parties request him to parties he cannot rule on any
appoint a commissioner or the court by objections if there is any objections
itself if neither of the parties will request, raised by the party. In the case of
the judge can appoint a commissioner, kay a commissioner, he can rule on the
di sya kasabot sa factual issues. objection, in other words the
commissioner is even more
The reference would either be: powerful than the clerk of court
when he conducts a hearing before
A. Reference to a Commissioner: him.
· Reference by consent of the C. Oath of Commissioner
parties
· Reference ordered on Before the commissioner will
motion perform his function, he must take
his oath before the judge who
The order of the court appointing a appointed him.
commissioner is called THE ORDER OF

The oath should state that he will hearing cannot be dispensed with as this is
perform his duties faithfully amd the essence of due process. (Aljems corp
conscienciously (?) to have the vs ca, gr no. 122216 March 28 2001)
court determine the issues wrote
before it. Once the person is When a commissioner did not conduct a
appointed as commissioner, once hearing and just made a report and
he took his oath, he must recommendation right away to the judge
immediately proceed to the hearing and the judge accepted the report or
of the case. adopted the report. That is a serious error
committed by the court.

D. Proceeding before the This is the ruling in the case of:
commissioner
Upon receipt of the order of reference, the *When the commissioner did not hold a
commissioner shall forthwith set a time hearing in violation of sec 3 of this rule, it is
and place for the first meeting of the error for the trial court to issue an order
parties and their counsel to be held within approving said commissioner report over
10 days after the date of the order of the objection of the aggrieved party (Jaca
reference (sec 5) v Davao Lumber GR No. L 25771 March
29 182)
*Refusal of the witness to obey the
subpoena issued by the commissioner or It is required that the commissioner must
to give evidence before him, shall be have to conduct a hearing expeditiously. It
deemed a contempt of court which should not delay the proceeding. If the
appointed the commissioner (sec 7) commissioner is delaying the proceedings,
either party may ask the court who
appointed the commissioner, may issue an
What is meant here is that it is not the order directing the commissioner to move
commissioner who will cite in contempt. He fast because the longer it would take him
does not have that power. It belongs to the to report that would be a denial of speedy
judge. If the commissioner issues a trial. So the commissioner should avoid
subpoena to a certain witness, and that delay. Either party may apply to the court
witness disobeyed that subpoena, what for an order requiring the commissioner to
the commissioner should do is report the expedite the proceedings and to make his
matter to the judge who appointed him, report.
and it is the judge who apppointed him
who will issue the citation, he can cite the After conducting a hearing and after
witness in contempt of court because what hearing both parties, the commissioner will
the witness is doing is tantamount to a now make a report to the judge and he can
disrespect to the court who appointed the also make recommendations.
commissioner because he is an alter ego
of the court. E. Commissioners Report
· Upon completion of hearing,
Thereafter the commissioner will conduct a the commissioner must file his
hearing. The requirement for him report in court stating his
to conduct a hearing is mandatory. He findings of facts and conclusion
cannot make a report or recommendation of law. Although this is not
to the judge without first conducting a necessarily binding to the court.
hearing. This is a mandatory requirement The commissioner can only
because this is essential to due process. make recommendation. The one
who will eventually decide is the
In the case of: judge who appointed him. The
job of the commissioner is to
*The commissioner must conduct a assist the judge in determining
hearing. The requirement for him to hold a the factual issues. So the

commissioner will make a report they will agree amonth themselves who
based on his investigation or the will be the commissioner to be appointed.
conduct of hearing. He can even If they cannot agree, then the court will
make conclusions of law in so require the to submit, 3 names each. For
far as he is concerned. the plaintiff, you submit to me three
names, defendant, submit three names,
Once the report is submitted to and I will decide who will be appointed as
court: commissioner. Normally, in expropriation
· The clerk shall notify the cases, where commissioner is also
paries of the filing of the report needed, the issue of just compensation will
and they are given ten days to come in, how much will the govt pay you, it
files their comment. Both parties. needs an appraisal, it needs an expert in
· After ten days, the court will the real estate appraisee. The court will
set the report for hearing and appoint three commissioners jud na
thereafter issue an order kasgarn.
adopting,modifying or rejecting
it. In boundary dispute, three commissioners
jud na kasagaran to avoid suspicion of…
Ten days to file their comment, whether because if there is only one commissioner
they accept the report, agree on the there is a possibility of bias so ug tulo,
factual findings or disagree. majority rules. That how they do it.
So after they are given a copy of the report
and after they have filed their respective If it is upon the instance of the court, then
cooments. After 10 days the court will set the court will also ask names from both
report of the commissioner for hearing and parties, the same procedure, give me
thereafter issue an order either adopting names and I will be the one to decide who
defying or rejecting the report of the will I appoint as commissioner.
commissioner. In other words, the report of
the commissioner will still be set for *The parties may stipulate that the
hearing where both parties are allowed to commissioner’s findings of facts shall be
air out their objections or comments to the final. Thus only questions of law shall
report and they are allowed to argue, why thereafter be considered (sec 12)
do they say that the commissioner is
wrong in that finding. After both parties are This is usually done before the
heard then the court will now decide. Will it commissioner makes a report. They have
adopt the findings of the commissioner, to make an agreement or stipulation, that,
will it modify or reject it. okay we will respect the finding of the
The report of the commissioner is not commissioner, any way there are three,
binding to the court, not necessarily. But whatever the findings, we will respect, we
experience tells us, 90% or more will be will not question it anymore. So if both
adopted by the court because precisely parties have already stipulated that the
they are appointed because they know commissioners findings of fact is final then
better than the judge, panagsa ranang mu what the court will do is to determine now
override ang judge sa report sa the issue of the question of law, what are
commissioner or if not modify a little but the rules applicable, what law should we
not reject. apply, how to interpret the law if there is
If bias ang commissioner, probably the ambiquity in the law.
judge will reject it or disregard and the
court will appoint another. F. Compensation of Commissioner
The commissioner shall be entitled to
How is the judge appointed? It depends. If reasonable compensation which shall be
it is upon motion of the parties, if the taxed as costs against the defeated party
parties themselves who requested the or apportioned as justice requires (sec 13)
judge for a commissioner, then the parties
will decided who will be the commissioner,

How much? It depends to the court and right to present his evidence, the CA will
agreement by the parties. not return the record of the case to rtc
becauese there is already a finding of the
RULE 33 – DEMURRER TO EVIDENCE CA that there is sufficient evidence to
support the case of the plaintiff. So
A. Definition of Demurrer to nganong e uli paman sa lower court that
Evidence will not change the fact that there is
Is a motion to dismiss filed after the sufficient evidence. So instead of returning
plaintiff finished presenting his evidence on it to the rtc, it will decide the case right
the ground of insufficiency of evidence. away, this means, the plaintiff wins the
What the plaintiff should do is appeal case, kay naa mai sufficient evidence.
theorder of dismissal.
What is the diffence between motion to
The defendant instead of presenting dismiss and demurrer to evidence
evidence filed a demurrer to evidence. If I
am the defendant you are the plaintiff, you MD: instead of filing an answer you file this
are through presenting evidence, and if I motion. You file it before you answer. If
feel that you were not able to prove your denied, then okay I will file my answer.
case, the causes of action iin your
complaint. Why should I present evidence. DTE: filed after the plaintiff finished
Remember it is your burden to prove your presenting his evidence, there is already
case, and I will just be wasting thr precious trial.
time of the court if I will present evidence,
this is the rationale behind the demurrer to · If denied, the defendant can
evidence. still present his evidence.
What will be the remedy of the defendant?
What the defendant should do if he feels The defendant cannot appeal because the
that the plaintiff failed to prove his case, order denying a demurrer to evidence, is
the defendant should file a motion of not a final order, it is interlocutory. So you
demurrer to evidence? still have to present your evidence. But if
you feel that the court has committed an
error indenying your DTE, then question
B. Effects of the grant or denial of the ruling by way of certiorari.
demurrer to evidence:
· If granted, but reversed on
appeal, the defendant loses his
right to present evidence. C. Remedy of the Parties:
If the court grants the demurrer to If granted, the dismissal is considered
evidence it means that the plaintiff lost the an adjudication on the merit, hence,
case. Complaint is dimissed so the plaintiff the remedy is appeal.
will be the aggrieved party. So what will the If denied, the order of denial is merely
plaintiff do? An order granting a demurrer interlocutory and appeal is not the
to evidence is considered to be a final remedy. Certiorari may be availed if
order, because it already disposes of the there is abuse of discretion
case. Wala namai buhaton. Dismissal
man, so plaintiff should appeal the order of D. Difference between demurrer to
dismissal. The danger if you file a evidence in civil case from a criminal case
demurrer to evidence, if the court will grant
your demurrer, and the plaintiff will appeal HOW DO WE DISTINGUISH DEMURRER
the case to CA and the CA finds that the TO EVIDENCE IN CRIMINAL CASE AND
RTC has committed a mistake. If the CA CIVIL CASE.?
will find that there is sufficient evidence to
prove the case of the plaintiff, then the CA CrimPro: you have to file a motion for
can right away decide the case in favor of leave of court to file a demurrer to
the plaintiff. And the defendant loses his evidence. So if the court allows you then

okay you file a demurrer to evidence. And the material avermenta in my complaint.
if denied, you can still present evidence. What are the material averments? You
The danger there is if you file a demurrer borrowed money you did not pay. Your
to evidence na walai leave of court, answer fails to tender an issue. Mayta
because you would lose your right to muingon ka nga, oh niadmit ko, pero
presen evidence. nabayran nako, ooh, naa moi issue,
If it is granted, unlike in civil case where whether or not nabayran naka, or atleast
the plaintiff can appeal, here in crimpro, you would even say na partially paid na
the plaintiff cannot appeal because the na, 50 or 20 percent something like that. At
grant of demurrer to evidence is least there is an issue. Pero kanang
tantamount to dismissal. That would muingon ka nga wapa kai kuarta, that is
constitute double jeopardy. That is why in not an issue.
the plaintiff in crimpro, cannot file an So that is an example of a case that is ripe
appeal. for judgment on the pleading.

A. WHEN TO FILE:
1. Where an answer fails to tender
RULE 34 and 35 are considered as an issue, or
ACCELERATED JUDGMENTS because 2. Otherwise admits the material
the case can be decided immediately allegations of the adverse party’s
without conducting a trial. Here there is no pleading.
more hearing, the court can right away
decide. B. Effects of filing a motion for judgment
on the pleading:
RULE 34 – JUDGMENT ON THE Plaintiff is deemed to have admitted all the
PLEADING relevant allegations of fact of the
defendant in his answer.
What is judgment of pleading? It is filed by
the plaintiff after the defendant filed his Exceptions:
answer. The answer of the defendant fails 1. Plaintiff is not deemed to have
to tender an issue or it otherwise admits admitted relevant allegations in the
the material allegation of the adverse defendant’s answer
party’s pleading. 2. Defendant is not deemed to
If the defendant in his answer has already have admitted allegations of
admitted all the material allegations in the damages in the complaint.
complaint, why should we conduct a
hearing? Unsa pamai atong hearingon nga Now this rules apply in case the court will
g admit naman nya, or the answer fails to deny your judgment on the pleading. The
tender an issue, there is no issue, no court says there is an issue, you are
controverted issue. wrong. Ug ang plaintiff sad, iyang lawyer,
magdali, bisan naa gyud toi tinood issue,
Example: I filed a case againts you for muingon nga wanai issue. But the court
collection of sum of money, becaue you finds nga naai tinood issue, the plaintiff will
borrowed money from me, and despite the also be barred from this one, “deemed to
fact that it is already due and demandable, have admitted all the relevant allegations
you failed to pay despite repeated of fact of the defendant in his answer.”
demands, here comes your answer, you That would be in favor of the defendant.
admit that you borrowed money from me, He cannot anymore question those
and that it is already due and your only relevant facts stated in the answer
defense is I still don’t have money. Is that a because they are deemed admitted.
defense? Is that an issue? Unsaon taman
wapa man koi kuarta. If you have an C. How is it done:
answer like that, will you still go to 1. By motion of the plaintiff
hearing? Depensa ba gud nang wai
kuarta? So in other words, you admitted all

2. By the court’s own volition or to any material fact in the action, and if
motu proprio if the court during pre there is any question or controversy upon
trial finds the same to be proper. any question of fact there should be a trial
on the merits. (Agcanas v Nagum L 20707
You remember when we discussed Match 30 1970)
pre-trial, this is one of the purpose
of pre-trial which is for the court to You can only file a summary judgment
determine the propriety of when there is no genuine issue. The rule
rendering judgment on the says no genuine issue. IOW, there is an
pleading. So at that point in time, issue but the issue is not genuine, it is
the court will decide, 'Oh wala may fake, it is a sham. Dili tinuod na issue.
issue, the defendant has already Because sometimes a party will just
admitted all the material allegations fabricated a issue just to prolong the
in the complaint, and there is no proceeding.
issue raised, then why should we Ex. I filed a collection case against you for
conduct a hearing? No more sum of money. Your answer was, "I have
hearing, I will decide now.' So the already paid that loan." Bisan gud ug
court can right away reside without nahibaw ka nga wa pa ka kabayad. Ang2x
any motion from the plaintiff. ug imong diretso ingnon nga wa pa ka
kabayad eh di pilde ka diretso. Some
D. When not proper: would try to buy time by raising an issue.
Judgment on the pleading is not allowed in
the following actions: Ex. The defendant is expecting some
1. Declaration of nullity of money for some relatives in the States,
marriage that he would be able to pay the plaintiff,
2. Annulment of marriage pero wa pa man niabot unya naa na may
3. Legal separation complaint. Kinahanglan iya ng tubagon
ang complaint, kay if dili niya tubagon,
These are found in the Family Code. pilde siya. Wa pa naabot iyang kwarta,
birahon iyang mga properties. Uwaw
kaayo sa mga silingan di ba. So what
would the defendant do? 'Ako na lang ni
E. Difference between judgment on the tubagon, himo-an ko na lang ni ug issue
pleading and summary judgment: para, anyway, I can always enter into
settlement later on, dugay pa bitaw na
mahuman ang kaso.' And remember that
RULE 35 – SUMMARY JUDGMENT compromise agreement can be entered
into at anytime, at any stage of the
A. SUMMARY JUDGEMENT FOR proceeding. So dugay pa man ni, if maabot
CLAIMANT na ang kwarta, then I offer it to the plaintiff,
It's the plaintiff who files a summary eh di settle na ta. Rather than wa koy
judgment based on the answer of the ikatubag, wa koy issue, diretso ko kapilde.
defendant. Kung na boxing pa, wa pay round 1 TKO
na ko. So that is one example. Mu ingon
ka na 'I have already paid', so dunay issue,
B. SUMMARY JUDGMENT FOR so the judge would say, 'O, let's hear this
DEFENDING PARTY kay nakabayad man kaha ka, let us see
It's the defending party who files a whether you have really paid.' If I'm the
summary judgment based on the plaintiff, I know that you are bluffing, I
complaint of the plaintiff. know that you are telling a lie, that the
issue you raised is a sham. It's not
genuine, not true. I can challenge you by
C. WHEN APPLICABLE way of ta summary judgment. How?
SUMMARY JUDGMENT is proper only (below)
when there is clearly no genuine issue as

D. How is it done: RULE 36 - JUDGMENTS, FINAL
By filing of a motion of summary judgment ORDERS, AND ENTRY THEREOF
with supporting affidavits, depositions, or
admissions. The motion shall be served at As a general rule, the court will render a
least ten days before the time specified for decision only after the parties have already
hearing. been heard by the court. Meaning both
parties have already presented their
So, since my motion for summary evidence. After both of them have
judgment is accompanied by an affidavit or presented their evidence, the court will
deposition or admission, you will have to normally require them to submit a
answer it also with affidavits or admission memorandum within a certain period, say
or deposition. Remember that affidavits 30 days. The court will say, 'both parties
are sworn statements. They are sworn shall submit a memorandum
statements and you can be liable for simultaneously within 30 days from today.'
perjury if you are found to be telling a lie With or without memorandum, the case
there in what you stated. So when I file a shall now be deemed submitted for
motion for summary judgment, I said 'It is decision. And there's a certain period
not true that you paid me, I have here within which the court will decide,
some evidence to prove that it is not true.' depending on its court, if it's a first-level
Nakalimot siguro ka nga nagpadala ka'g court, second-level court, or appellate
text nga 'Unya na lang kiha kay naa pa koy court like CA.
maabot na kwarta. Pasayloa sah ko di ko
kabayad.' Samot na ug letter gyud na The judgment actually refers to the fallo.
imong gipadala na ni admit ka nga you
have not paid your loan. I will challenge A. HOW FINAL JUDGMENT IS
you now. You submit yourself to this RENDERED:
proceeding of summary judgment, you A final judgment on the merits of the case
answer my motion for summary judgment must be
by way of an affidavit, deposition, or
admission. Then I'll say 'if you would still 1. In writing
insist that you have paid and I can prove 2. Personally and directly
that you have not paid, then I can sue you prepared by the judge (dili pwede
criminally for perjury.' Ang uban ana na it will be dictated by the judge in
mahadlok na man kay kinahanglan man open court right away; pwede ra
siya mu execute ug affidavit, mu surrender ang orders in open court but the
na lang. 'Sige na lang oi, muadmit na lang judgment must be reduced in
ko na wa ko kabayad.', and ask for a writing) *chika about fastest judge*
leeway or whatever. That's how summary 3. Stating clearly and distincly the
judgment can expedite the rendition of facts and the law on which it is
judgment. That's why it's also based
called accelerated jugdment, just like the 4. Signed by the judge
judgement of the pleading nga mu diretso 5. Filed with the clerk of court
na lang ug decide na wa pay hearing or wa
nay hearing. These are the requisites of a valid
judgment.
E. Partial Summary judgment:
The rules authorizes the rendition of partial B. Decision and Fallo
summary judgment. Such judgment is
interlocutory in nature and is not final and A decision refers to the entire document
appealable judgment. The appeal from which already contains the factual findings
such partial judgment should be taken of the court, and the evidences that
together with the judgment in the entire support those factual findings and it also
case after trial shall have been conducted. contains the conclusion of law of the court.
How the court arrived at its decision are all
found in the decision itself. Have you seen

a decision of the court? Normally the court case, we have promulgation of judgment.
will start with a summary of the plaintiff's Ang promulgation of judgment in a
evidence, then after that, a summary of the criminal case is that it will be read in
defendant's evidence, and then after that open court to the accused. So the
the court will come out with its own accused will stand in front of the judge and
findings of facts based on the evidences then the interpreter will read the decision
presented by both parties. Called from the to him. Kinahanglan basahon jud na ang
evidence presented, this is what the court whole (full?) text sa judge. Gawas ug na
feels as the real facts of the case. This is taas kaayo sa tanan, mu ingon na lang
what we call as findings of facts. After ang judge basaha na lang ang fallo/
making the findings of facts, the court will dispositive portion. But the GR is the whole
now proceed into discussing what are the decision jud na ang basahon.
laws applicable to this certain set of facts
and how the court arrived at that In the promulgation of civil cases, you
conclusion, that should also be explained don't read the decision in open court.
in the decision. Ang decision sa judge, he will be the one
to prepare the decision, type, finalize, he
The judgment actually refers to the fallo. will sign it, he will give it to the clerk of
The judgment is a part of the decision. It court. Once he delivers it to the clerk of
refers to the fallo or the dispositive portion, court, that is the date of rendition of
and that is the wherefore portion. Anha na judgement. Now the clerk of court will mail
makit an sa bottom portion of the decision. it to the parties.
WHEREFORE premises considered the
court finds the case in favor of the plaintiff In the CA they call it promulgation of
and against the defendant and hereby decision or promulgation of judgment. In
orders the defendant to pay the plaintiff as the CA, once the justices of the CA signs
follows etc etc. That is what we call as the decision, they will give it to the division
judgment otherwise known as fallo or clerk of court like here in Cebu City we
dispositive portion. have 3 divisions and each division is
composed of 3 justices. So once the 3
C. Rendition of judgment, when: justices will sign the decision they will give
The rendition of judgment is reckoned from it to their clerk of court of that division. The
the moment the signed decision is filed in clerk of court of the decision will
court, and not its pronouncement in open immediately record it in his book of
court. judgment. Iyang kopyahon ana kay
The court must explain the basis of its dispositive portion ra. Then, he will send it
decision, however a minute resolution can to the parties. That's why when you
be issued by the supreme court in the receive the decision, naa jud na sa upper
dismissal of petitions for review on right hand gibutang na, date of
certiorari. promulgation Dec 15 2017, promulgated,
meaning when it says 'promulgated' that
Rendition of judgment does not mean like was the day that the signed decision was
for example the judge says 'Okay I will delivered to the branch clerk of court. That
decide now, Wherefore,' Iyang gi dictate. is the meaning of rendition of judgment in
That's not rendition of judgment. civil cases.
Rendition of judgment refers to the In civil cases, the GR is that when the
submission of the signed decision to the court decides the case, he must explain
clerk of court for filing. It is now the duty of the basis of his decision. The only
the clerk of court to send the judgment to exception to that is the SC. All other
the parties. courts must have to explain its decision.
Only the SC is allowed to make a minute
The rendition of judgment in the civil case resolution, minute because it's too small,
is different from the promulgation of especially kanang mga petitions for
judgment in a criminal case. In the criminal certiorari. Naay uban ana, it will be denied

in just one sentence and that is one of the Once the judgment becomes final and
most frustrating part in the life of a trial executory, it will now be entered in the
lawyer. You spend several sleepless nights book of entries of judgment in the court.
preparing your briefs and then pag-abot That is what we call as entry of judgment.
didto i-technical lang ka, "for lack of merit, (before)
petition denied." That is what we call
minute resolution. And usually ang reason The new rules, however, made an
sa denial, "for failure to comply with the important innovation on the concept of
circular no., for failure to comply with the entry of judgment. Because now, the new
ROC like servicing a copy to the other rules provide that the date of the finality
party, wa kabayad sa filing fee, xerox copy of judgment or final order shall be
ra imong gi attach, these are things that deemed to be also the date of its entry.
could justify the SC to deny your petition in Why is this so? Because before, under the
just one sentence. old rules, the entry of judgment refers to
the time the clerk of court writes down the
The reason for this according to SC is that judgment in the book of entries of
appeal to the SC by way of certiorari under judgment. It refers therefore to the
Rule 45 is not a matter of right, it is a mechanical act of writing down the entry of
privilege. And since it is not a matter of judgment.
right, you have to strictly comply with the
requirements under the rules otherwise we Ang procedure ana kani adto, once the
will deny your petition in one sentence in judgment becomes final, inig lapse sa 15
minute resolution. day period unya way appeal nga gi file ang
losing party, the clerk of court will now
Once a decision is issued by the court, the write down the judgment in his book of
clerk of court will now make entry of entries. Not the entire decision ha, just the
judgment and final order. judgment--the wherefore portion. So he will
write there on the book, "On such and
D. Entry of judgment and final orders: such a day, the court renders a decision
The date of the finality of judgment or final and the decision has now become final
order shall be deemed to be the date of its and executory. There being no appeal filed
entry. by the losing party within the period, the
judgment reads as follows..." Then iyang
Entry of judgment - means that the kopyahon ang dispositive portion. That is
judgment has already become final and entry of judgment before.
executory.  
But since entry of judgment under the old
When does the judgment become final rules refers to the mechanical act of writing
and executory? down the judgment in the book of entries
When there is no appeal filed within the by the clerk of court, there are times when
reglementary period to perfect an appeal. the writing of the judgment in the book of
From the moment you receive the decision entries occurs late, several days after it
of the court, you are given 15 days to has become final. Kay pananglitan, na final
appeal. ang judgment karong adlawa, it so
happened the clerk of court is not around,
RTC decided a case against you. The pag balik niya after one week na, so anha
moment you receive it you have 15 days to pa niya gisuwat ang judgment na final na.
appeal the decision of the RTC to the CA. It was already final one week ago. The
If you did not file an appeal within 15 days, entry of judgment is considered to be the
the judgment becomes final and executory. date it was written in the book.Now that
It can now be enforced by the Sheriff. It would create prejudice to a party because
can now be the subject of a writ of there are remedies under the rules that are
execution. based on the entry of judgment, not on the
finality of judgment.

One good example of that is Rule 38. 4. Judgment against entity without
Under Rule 38, you can file a petition for juridical personality (sec 6)
relief from judgment and your petition shall 5. Judgment for specific act
be based or reckoned from the time of the 6. Special judgment
entry of judgment, not the finality of 7. Judgment non pro tunc
judgment. So if madugay ug enter sa clerk (judgment now and for then; it's
of court ang final judgment in the book of actually a judgment that was
entry of judgment, it is favorable to the rendered long time ago but was not
losing party because it extended his period yet made on record because there
to avail of the remedy. Kay under Rule 38 were some courts before that were
you have 6 months to file your petition for not on records especially the first-
relief from judgment counted from the level court, so ni decide ang
entry of judgement. karaan na korte kaniadto, pero not
on record, now you invoke that
That is why, to avoid that unfair situation, judgment "Naa na man nay
the new rules provide that the date the judgment kani adto but wala pa ma
judgment becomes final is the considered officially on record"; you can have it
to be the date of the entry of judgment. reproduce now and put it on
Never mind even if the clerk of court wrote record, and that is the meaning of
down or entered the judgment in the bok of judgment non pro tunc)
entries of judgment a week after or even a 8. Judgment upon compromise
month after, that will not matter. Dili na ta 9. Judgment upon confession
mag-agad kung kanus-a niya gisuwat sa
libro. F. Judgment upon compromise
A judgment that is based on the
Again, the date of the finality of judgment agreement of the parties. It is not actually
or final order shall be deemed to be the a judgment of the court. When the parties
date of the entry. So it now abandons the have entered into a compromise
old rule na mag-agad kanus-a isuwat. Kay agreement, sila'y naghimo sa compromise
ug ang losing party nakig connive sa clerk agreement, silay naghimo sa terms and
of court, bayaran ang clerk of court na conditions in the compromise agreement
ayaw ipasuwat sa libro, so ma extend sad and they will just submit it to the court and
iyang pag avail sa remedy. Kay it shall be the court will approve it. The only limitation
based on the entry of judgment man, not for that, which the court will take into
the time the judgment actually becomes consideration is "Is it not contrary to law,
final. morals, good customs, public policy?" If
dili, then the court will approve it. Here in
E. Types of Judgment the judgment upon compromise, the
1. Judgment for or against one or plaintiff and the defendant will agree on the
more of several parties (sec 3) terms and conditions, and they will submit
2. Several judgment (sec it to the court for approval. And the court
4) (means that there are several will approve it by way of a judgment on a
defendants and the court can compromise.
decide already for some
defendants but not the rest) In a judgment upon compromise the court
3. Separate judgment (sec5) will just copy the compromise agreement.
(refers to a case where there are It will just state there, "on such and such a
several causes of action, several day, plaintiff and defendant entered into a
claims and one or two claims are compromise agreement which
already determinable, in which substantially contains the following
case, the course can already conditions, to wit" Kopyahon sa korte,
render judgment insofar as this word for word ang compromise agreement
issue is concerned, and proceed nga gi submit sa plaintiff and defendant.
with the other issues that are not
yet substantiated)

A compromise agreement must be signed mentioned in Rule 37 – Motion for New
by the plaintiff and his lawyer, and Trial (MNT) and a Motion for
defendant and his lawyer. All the parties Reconsideration (MR). Both remedies can
and the respected counsels must sign it, be availed of during the reglementary
submit it to the court, and kopyahon na sa period to file an appeal: within the period of
korte. Ang ipuno ra jud sa korte ana, sa taking an appeal. What is that period? That
ubos "finding the compromise agreement is the 15-day period to appeal. The
to be not contrary to law, morals, good moment you receive a decision that is
customs, and public policy, the same is adverse to you, you have 15 days to
hereby approved." And then, pakapinan appeal that decision to the next higher
gamay, one sentence sa ubos, "parties are court. And within that period to appeal, you
hereby enjoined to strictly observe the may file MNT or MR. The filing of MNT or
terms and conditions of the compromise MR will suspend the running of the period
agreement." That's it. Then mao na na ang to appeal. It tolls the running of the
decision sa korte. That's decision na kamo reglementary period to appeal.
gahimo, dili ang korte. Gipa approvahan ra
sa korte. That is why a judgment based on And so when MNT or MR is denied, you
compromise agreement is immediately normally only have the balance of the
executory. It is final and executory and appeal period. But in the case of Neypes
therefore not appealable. You cannot vs CA, the SC said that you should be
appeal. Nganong mu appeal man ka nga given a fresh period of 15 days not just the
ikaw may gahimo ana. balance. What is the reason for this?
G. Partial judgment According to the SC, to synchronize our
H. Several judgment modes of appeal under Rules 41 and 42.
I. Separate judgment We have different modes of appeal –
J. Entry of judgment: when? Rules 40, 41, 42 and 43.
In Rules 41-43, the period is interrupted by
filing a MR but when it is denied under
Rules 41 and 42, you are given a fresh
period of 15 days. So now, you should also
be given a fresh period of 15 days under
ordinary appeal.
CIVIL PROCEDURE – February 5
Within the 15-day period to appeal, you
can avail of the 2 remedies – MNT or MR.
Available remedies of a losing party in a Rule 37
civil case. Before midterms, we discussed
what is your remedy if you were not able to NEW TRIAL OR RECONSIDERATION
answer the complaint and you were A. Grounds for New Trial:
declared in default? Remedy is to file a
motion to set aside the order of default 1. Fraud, accident, mistake and
(MSOD) or a motion to lift the order of excusable negligence (F.A.M.E)
default (MLOD) so that you will be allowed
to answer. The grounds there is F.A.M.E – If MNT is grounded on this, your
motion must also be accompanied
Fraud, Accident, Mistake and Excusable
negligence. by an affidavit of merit just like a
MLOD under Rule 9.
If you were not able to answer and the
court allowed the plaintiff to present his AFFIDAVIT OF MERIT – contains
an explanation why you were not
evidence ex parte and thereafter the court
renders judgment on the basis of the able to answer or why were you
not able to participate in the trial
evidence presented by the plaintiff, so you
lost the case. Your remedy now is to file a because of FAME. So you have to
motion for new trial - one of the remedies d e s c r i b e h o w FA M E w a s
committed and most importantly,
available in Rule 37. There are 2 remedies

you have to state that you have a • There must be proof of service of
very good and meritorious defense. summon to the other party.
In a case of a MLOD, your affidavit These are just some of the requirements
of merit must state that only if the that you need to comply because if you
court will allow you to file your don’t comply these requirements under
answer, you can prove that you Rule 15, your motion will be considered as
have a very good defense and you a pro forma motion so it will be treated as
will probably win the case. a mere scrap of paper.
In the case of MNT, the same FRAUD – it refers to extrinsic fraud as
explanation. You will tell the court distinguished from an intrinsic fraud.
that only if the court will grant you a • Extrinsic fraud – effectively prevents
new trial (because when you ask
for NT you are actually asking the a party from participating in the trial
court to set aside momentarily its of the case. Meaning, he was not
decision and that you be allowed to able to present his side of the case,
present your evidence), you can he was not able to answer, was not
show to the court that you have a able to present the evidence
very good and meritorious defense. because of FAME. It is the kind of
So same ra sa MLOD of the court, fraud that will entitle you to file a
you need to have a good defense. MNT.
• Intrinsic fraud – fraud committed
When you file a MLOD or MNT on
the ground of FAME, your motion during the trial of the case. Like for
example your opponent presented
must be accompanied by an
affidavit of merit EXCEPT if you fake evidences. Fraud means deceit,
include a ground of lack of pangilad, minaro, nagpina-wise.
jurisdiction – so when you claim If during the trial of the case your opponent
that the court does not acquire presented fake evidences, like he
jurisdiction over your person presented witnesses who are liars
because the summon was not (professional witnesses) and they
properly served on you, you don’t identified documents that are fake, is there
need affidavit of merit. fraud? YES! But what kind of fraud?
If your motion does not contain an INTRINSIC FRAUD but not a ground for
affidavit of merit, your motion will MNT. The remedy of intrinsic fraud is
be treated as a pro forma motion. APPEAL because if the fraud is intrinsic,
It means that your motion will be you could have discovered it during the
treated as a mere scrap of paper, it trial, you are supposed to discover it if
will not be approved by the court. maayo lang imo lawyer masakpan na nga
namakak ra diha ang kontra. So the
What are the other requirements remedy is appeal the decision.
so that your motion will not be
treated as a mere scrap of paper? But if the fraud is committed not during the
You have to comply with the trial, a kind of fraud that prevented you
requirement under Rule 15: from presenting evidence, that is
EXTRINSIC FRAUD. This is the fraud that
• When you file a motion you must set could be a ground for MLOD or to file a
that motion for hearing on a MNT.
particular date.
EXAMPLE: Plaintiff filed a case against
• You must be the one to set the date you for a collection of sum of money. You
of the hearing. went to the plaintiff and talked to him
• You must furnish the copy of that asking why did he filed a case against you.
You told him you’re willing to pay but you
motion to the opposing party. still don’t have the money right now. So the
plaintiff said he’s willing to withdraw the

case as long as you sign a compromise Within the same period, the aggrieved
agreement. You signed the compromise party may also move for reconsideration
agreement and told you he’ll be the one to upon the grounds that the damages
give it to the court and doesn’t need to awarded are excessive, that the evidence
answer. So you did not file your answer is insufficient to justify the decision or final
because you relied on him that he will not order, or that the decision or final order is
push through with the case so you were contrary to law.
not able to answer. Then the plaintiff asked
the court to declare you in default and you
did not know about it. So the plaintiff Elements of Newly Discovered Evidence
presented evidence ex parte. After that
court judge a decision in favor of the *It will only apply if:
plaintiff. It was only after the court a. The evidence was discovered only
rendered judgment that you learned about after trial;
the decision; the 15-day period to appeal
has not yet expired so what will you do? b. It could not have been discovered
File a MNT – it is still within the period to despite due diligence;
file a MNT and on what ground? FAME
(fraud because there was fraud committed c. It will surely alter the result of the
by the plaintiff that prevented you from case.
filing your answer, from presenting your You have to show to the court that if
evidence in court. And then you tell the only the court will receive this
court that if only you will be allowed to evidence, I will be the winner of the
present your evidence and only if you are case. Kay bisag unsaon pa na nimo
allowed to answer, you have a very good present ug NDE pero di man diay na
defense. That’s another requirement makapadaog nimo, if dili na siya
because you have to attach to it an sufficient to alter the decision then the
affidavit of merit. court will not allow you to present that
So that is the kind of fraud nga magamit evidence anymore because it will not
change the decision.
nimo sa MNT, ang intrinsic fraud di to
magamit nga ground sa MNT. Because in N.B. Newly discovered evidence does
intrinsic fraud – you were not deprived of not refer to forgotten evidence
your day in court; you were able to answer,
present your evidence and participated - Because one of the condition for newly
during trial kaso napildi lang ka kay discovered evidence (NDE) was that the
outsmarted ka sa kontra. So that cannot evidence was discovered only after trial
be the subject for a MNT. You can avail of and you could not have discovered it
appeal to the higher court and cite those during the trial despite due diligence. So
fraud committed because in a MLOD and if you have an evidence but you forgot
MNT (and even a petition for relief from where you put it…
judgment), all of them has a common EXAMPLE: Plaintiff filed a case for the
ground – FAME pero that FAME has collection of sum of money against you.
caused you not to be able to participate in You know that you have already paid it
the trial. In all these 3, the FAME has and so you said in your answer that you
deprived you on your day in court so sa have already paid that loan but you
ato pa wa ka naka-apil tungod sa FAME. cannot find anymore the receipt signed
by the plaintiff that he received the
money as full payment on your loan
obligation. Nabuang naka ug pinangita
pero wa jud nimo nakit-an so kutob
nalang ka sa verbal and said nga ‘Your
1. Newly discovered evidence Honor, I’m sure I already paid it pero di
lang ko kita asa nato nako nabutang
ang receipt’. And so you lost the case

kay wa man mituo ang judge nimo niana MOTION FOR RECONSIDERATION
sya pakit-a sya sa ebidensya pero wa
man jud kay mapakita. So after the W h e n c a n y o u fi l e a m o t i o n f o r
decision was rendered, you found out reconsideration (MR)? It can also be filed
later on that the receipt was just there in within the reglementary period to appeal.
your drawer wa lang nimo pangitaa A. G r o u n d s f o r M o t i o n f o r
maayo (ga danghag lang ka). Reconsideration
Can you use it as an evidence (NDE)? 1. T h e d a m a g e s a w a r d e d a r e
NO!! Because the 2nd element was excessive;
missing.
You don’t have to present evidence
• The evidence was discovered only on this because the amount of
after trail (1st element) damages awarded is discretionary
X It could not have been to the court. Kung pila lang ihatag
discovered despite due diligence (2nd sa judge: 1M, 2M or thousands
element) lang.
• Di ka maka-ingon nga present ang If you feel that the damages
2nd element kay naa ragud na sa imo awarded does not commensurate
drawer ang evidence, sa ato pa you to the act committed, then you can
have not exerted DUE DILIGENCE. file a MR under this ground.
So the 2nd element is missing. 1. The evidence is insufficient to justify
NEW TRIAL vs RE-OPENING OF TRIAL the decision or final order; *
New Trial – means that there is already a You must point out what part of the
decision of the court and after the decision decision is not supported by
was rendered, you discovered a new evidence.
evidence that could alter the result of the
trial. It is a newly discovered evidence. 1. That the decision or final order is
contrary to law; *
Re-opening of Trial – there is yet NO
decision but the trial is already terminated. Which part or what portion of the
Meaning, the plaintiff has already decision is against the law? You
presented his evidence, the defendant has have to point it out specifically to
already finished presenting his evidence the court, otherwise, your motion
and the court has already declared that the will be treated as a mere scrap of
case is now deemed submitted for paper.
decision. So naghuwat na lang ta sa
*If you invoke these 2 grounds, it must be
decision close na ang hearing, wala nay
trial kay humana. And then you discovered properly supported by evidence.
a new evidence that will be very material in
your case. If only you are allowed to
present the evidence, it could have
strengthen your case. A. Contents of Motion for New Trial or
What will you do? Ask the court to re-open Reconsideration
the trial. You file a motion for reopening the A pro forma motion for new trial
trial kay wa pamay decision. This is now or reconsideration shall not toll
DISCRETIONARY on the court. the running of the reglementary
Magpakiluoy lang ka sa korte and period of appeal. The affidavit of
convince them that you have an evidence merit must not only allege that
you just discovered recently and since the movant has a meritorious
wala pamay decision, you be allowed to defense, he must recite and
present it to be part of the record. describe the facts constituting
FAME.

What does your MR contain? It must be contrary to the evidence or law,
able to point out what art of the decision is it may amend such judgment or
not supported by sufficient evidence. final order accordingly.
Otherwise, if your MR does not contain
these essential features, your MR will also
be treated as a pro forma motion – a
mere scrap of paper. (Cite the grounds,
refer discussion above)
In case of MNT anchored on F.A.M.E –
you must have to specifically point out the
fraud, accident, mistake or excusable
negligence and it must be supported by an EFFECT IF MOTION IS GRANTED
affidavit of merit. So it’s not enough that
you will say in your MNT that you have a MNT – The court will momentarily set
aside its decision and allow you to present
very good and meritorious defense
because you have to point out the fraud your evidence as if there is a trial de novo.
and why did it constitute as fraud; how was So you will be allowed to file your answer
and to present your evidence.
the fraud committed by the other party –
you have to explain that. Considering that the plaintiff has now
Remember the discussion on the manner presented his evidence ex parte (since you
were already declared in default before),
of making allegations on the pleading?
When you claim there is fraud the fraud you may ask the court that the witnesses
must be specifically explained or pointed presented will be recalled to the witness
stand and you be allowed to cross-
out.
examine the witnesses.
A. Contents of the petition:
MR – it depends on the ground used
M u s t b e v e r i fi e d a n d • The damages awarded are
accompanied with affidavits excessive – court will just amend its
showing the fraud, accident, decision and reduce the amount of
mistake, or excusable damages.
negligence relied upon, and the • Decision of the court is not
facts constituting the petitioner’s supported by sufficient evidence
good and substantial cause of or contrary to law – the court will
action or defense, as the case just amend its decision and rule in
may be (Sec 3) your favor.
So there will be an amended decision.
Such affidavit of merit is not
anymore required when the A. Effects if motion is denied:
judgment or order is void for
Movant must appeal the
want of jurisdiction. (Republic vs
De Leon, 101 Phil 773) judgment within 15 days from
receipt of the order denying his
If a new trial is granted, the motion and not just for the
original judgment or final order balance of the period. (Neypes
shall be vacated, and the action vs CA, GR 141524, Sept 14,
shall stand for trial de novo; 2005) – fresh period of 15 days
When the court grants the A. Resolution of motion:

motion for reconsideration and
A motion for new trial or
finds that excessive damages
have been awarded or that the reconsideration must be
resolved within thirty (30) days
judgment or final order is

from the time it is submitted for appeal from the judgment or
resolution. (Sec 4) final order. Certiorari under Rule
65 is now a remedy pursuant to
So the court is given a certain period or A.M. No. 07-7-12, dated
time within which to resolve that MNT or a December 27, 2007.
MR.
A. Second motion for new trial or
reconsideration: *Student asks question
S: What is the implication if the judge was
Is it allowed? not able to decide whether to grant or deny
MNT - YES if the ground does not the MNT or MR within the 30-day period?
exist in your first MNT Dean: The judge can still go on. The rules
MR – NO because there is no second provide that the judge has 30 days to
MR in the trial court; there is in the decide but if he cannot decide within 30
SC days, it is still all right; decision is still valid.
It is not actually a mandatory provision but
If you have read the case of League a directory provision. But the judge can be
of Cities – niabot ug 5 ka MR sanctioned for delaying. So kung imo na
nagpakauwaw lang jud ang SC ato. siya i-report sa SC then ma-fine-an ang
Ka-lima jud ga bali ug grant then judge for not following the period but it
deny then grant napud sa MR. does not affect the decision or order of the
court if mu go beyond sa period. (in fact
almost all judges are violating this rule)
A. Partial new trial or reconsideration:
S: About certiorari as a remedy, maka-avail
Can you file? YES it is allowed. ka ana after appeal from judgment or like
after your motion is denied?
D: YES. You can appeal and at the same
time file certiorari.
A. Remedy against order denying S: Unsa ang i-certiorari, the order denying
motion for new trial or the motion?
reconsideration:
D: Yes. The order denying your MR, you
Immediate remedy: APPEAL from the can subject it to certiorari (grave abuse of
judgment not from the order because the discretion) but you can also appeal. So
order denying MNT or MR is not you can file both certiorari and appeal at
appealable what you can appeal is the the same time. Although the SC said that
judgment itself in the main case. as a matter of policy we should try to avoid
What about certiorari? YES you can avail this kay if mu-file pud ka ug certiorari it
under RULE 41. Sec 1, Rule 41 provides does not stop the running of the period to
that if you cannot appeal this decision then avail of the remedies. So I think the safest
your remedy is certiorari. Rule 41 thing to do is appeal and then question it
enumerates what are the orders or by way of certiorari if you want. But you
decisions of the court that is not can also raise that issue in your appeal –
appealable – one of that is denial on the the grave abuse of discretion (GAD)
MR or MNT. But in the last part of Rule 41, committed by the judge – di na ka needed
it says that if appeal is not available then mag certiorari. But in a case the SC said
certiorari is available. there is no problem if you avail of the 2
remedies at the same time because
Under Section 9, an order certiorari is based on GAD.
denying a motion for new trial or
reconsideration is NOT Rule 38
APPEALABLE (see: Rule 41, RELIEF FROM JUDGMENTS, ORDERS,
Sec 1). The remedy being an OR OTHER PROCEEDINGS

A. Petition for relief from judgment: can file a PETITION FOR RELIEF OF
(FAME) JUDGMENT (PRJ). Provided you were not
able to present evidence that’s why you
Also based on fraud, accident, lost the case.
mistake and excusable negligence
but here, there is already a judgment A. Petition for relief from denial of
which is final and executory. Sa ato appeal (Sec. 2):
pa ni lapse na ang 5-day period to
You were able to answer, present evidence
appeal, wa na unta kay mahimo kay
final and executory na gud pero you and participated during the trial of the case
are still given a chance. then the court ruled against you. When you
lost the case you have 15 days to file an
When a party lost a case because he appeal, you were prevented from
was not able to present evidence, he appealing because of fraud like giilad ka.
has so many available remedies The sheriff connived with the plaintiff and
under the Rules (about 4 remedies). you are the defendant so nidaug ang
plaintiff. During the trial, naka present ka
1. MOTION TO LIFT THE ORDER OF ug evidence (complete) but napildi ka and
DEFAULT OR TO SET ASIDE THE daog ang plaintiff. Pag-serve sa decision
ORDER OF DEFAULT - If wa ka nimo gibayran sa plaintiff ang sheriff
katubag because of FAME, you were making it to appear na nadawat na sa
not able to answer to the complaint defendant ang decision but in reality wala
and so you were declared in default. ka kadawat so how can you appeal?
2. MOTION FOR NEW TRIAL - If naka After the lapse of 15 days, final na ang
present na ug evidence ang plaintiff decision kay ang report sa sheriff nadawat
ex parte and the court has already na daw nimo ang decision on this date. It
decided in favor of the plaintiff and was only after that nga nakahibaw ka kay
anha paka nakahibaw (ground is still naa kay writ of execution, nanuktok na ang
FAME); You can avail it after sheriff sa inyo balay. Nahibong ka ngano
judgment but before it becomes final naa nay writ of execution nga wa man ka
and executory kadawat ug decision. So this is your
3. P E T I T I O N F O R R E L I E F O F remedy. PETITION FOR RELIEF FROM
JUDGMENT - Once the judgment DENIAL OF APPEAL (PRDA). You ask the
has become final and executory, court na you were not able to appeal within
ground is still FAME. You have 6 the 15-day period because there was fraud
months from entry of judgment. committed by the plaintiff in connivance
with the sheriff. And so you ask the court to
4. A N N U L M E N T O F J U D G M E N T allow you to file your appeal.
under Rule 47 – you can avail within
4 years, ground is still FAME. SEC 1 vs SEC 2
One thing in common to all these 4 Sec 1 – wa jud ka naka-appeal sa trial,
remedies: you were not able, not able to present ug evidence
participate in the trial and not able to able Sec 2 – you have presented your evidence
to present evidence because of FAME. as if everything is normal except that pag-
If you were able to present evidence but gawas sa decision ara naka giilad, diha na
nay fraud, di naka maka-avail sa above na-commit ang FAME. You were prevented
remedies because you were not denied from appealing.
your day in court. Remedy now is A. Time for filing the petition:
APPEAL.
60 days from the knowledge of the
In Rule 38, when there is already a decision, but not more than 6 months
decision and it attained finality (15-day from the entry of judgment (PRJ)
period to appeald already expired), so it’s
already executory and that’s just the time
that you were aware of the decision, you

The entry of judgment is now the M u s t b e v e r i fi e d a n d
same as the finality of judgment. That accompanied with affidavits
is precisely why the new rules showing the fraud, accident,
changed the concept of entry of mistake, or excusable
judgment. negligence relied upon, and the
facts constituting the petitioner’s
OLD RULE – entry of judgment refers good and substantial cause of
to the very mechanical act of writing action or defense, as the case
down the judgment in the book of may be (Sec 3).
entry by the clerk of court. That
mechanical act of writing down in the
book of entry may vary from the Such affidavit of merit is not
actual date of finality and it happened anymore required when the
many times like karun na final pero 1 judgment or order is void for
week after pa gisuwat sa clerk of want of jurisdiction (Republic vs
court. So under the old rules, ang De leon 101 Phjil 773)
entry of judgment is katong 1 week
after dili katong date nga na final. Want of jurisdiction – the court has not
Mao to imo basehan sa pag count sa acquired jurisdiction over the person of the
6 months pabor sa losing party kay defendant. Why? Because no summons
ma extend pa 1 week. were served on the defendant or that the
defendant did not receive any summons.
NEW RULE – It says we will not wait
anymore for the time that the clerk of So affidavit of merit is required only in
court will write down the judgment in MNT, PRJ based on the ground of FAME.
the book of entries of judgment. It
should be automatic – the moment
the judgment becomes final, bahala A. Order of the court requiring answer:
na when gisuwat sa clerk of court if
magtinapulan sya basta the entry of What will the court do in your PRJ? The
judgment should be the same as court will not immediately grant your
the finality of the judgment which petition. The first thing that the court will
is right after the lapse of the 15- do is to determine whether PRJ is
day period to appeal and that no sufficient in form and substance. Does it
appeal is filed. Anha mag start comply with the requirements of the
dagan ang 6 months – 60 days from law? Are the grounds present? The
the knowledge of the decision but not requirement under Rule 15 like did you
more than 6 months from the entry or furnish a copy of the petition to the other
finality of judgment that is when you party?
can file your PRJ. If the petition is sufficient in form
and substance to justify relief,
the court shall issue an order,
N.B. The finality of judgment is requiring the adverse party to
deemed to be the entry of judgment. answer the same within fifteen
(15) days from receipt thereof
If FAME happened beyond 6 months: (Sec 4).
Remedy is Rule 47 Annulment of The prevailing party should not
judgment of RTC (Can only be done answer the PRJ right away, he
by the CA) If MTC decision– file in the must wait for the order of the
RTC. court because who knows the
court will dismiss it right away
because it is not sufficient in
A. Contents of the petition: form and substance. So don’t be
too excited to answer right away
the PRJ.

In Rule 38, kaduha mag hearing ang
korte.
1. To determine W/N your PRJ will be
granted – before conducting such
hearing, the court will require the
other party to comment and after
A. Preliminary injunction pending commenting the court will hear. The
proceedings: petitioner will be allowed to present
The court may grant preliminary his evidence to prove the FAME and
injunction as may be necessary that he has a very good and
for the preservation of the rights meritorious defense. The other party
of the parties, upon filing of the will also present evidence to
petitioner of a bond in favor of convince the court to deny the
the adverse party (Sec 5) petition. After that, the court will
decide. If the court decides to
Considering that in a PRJ there is GRANT the PRJ, it means that it will
already a decision which is final, we now allow the losing party
cannot prevent the prevailing party (petitioner) to present his evidence.
from asking for the execution kay Remember nangayo na siya ug relief
bisag naa nay PRJ, it does not stop from judgment kay wa sya ka
him from asking the court nga i- present ug evidence so that he be
execute na kay final and executory na given his day in court. So if the court
gud ang judgment. grants PRJ it wil now set aside its
decision and ask the petitioner to
That is why if you are the petitioner present his evidence as if there is
under Rule 38, you should ask in your now a trial de novo. Same effect sa
petition/pray for TRO or preliminary MNT.
injunction to stop the sheriff from
enforcing the decision kay it’s very 2. Trial de novo
possible nga at the time you learned
about the judgment ni file dayun ka
ug PRJ, but at that time duna nay writ
of execution gi issue ang court.
Once naa nay writ of execution,
ministerial duty nana sa sheriff to
enforce the writ so to stop it, when A. Procedure where the denial of an
you file PRJ pangayo sad apil ug appeal is set aside:
TRO asking the court to stop the
sheriff from enforcing until after the If petition for relief is anchored on
court shall have resolved your PRJ. Sec. 2 (PRDA) and the court granted
the denial of appeal, it simply means
that the court will now allow him to file
A. Hearing of the petition: his notice of appeal. The finality of the
judgment will be set aside. So the
If the court grants the petition, it court says nga di pani final we will
will then conduct a hearing of allow to file an appeal and forward
the case on the merit. So, there the entire records of the case to the
are actually two hearings to be appellate court.
conducted by the court. One, to
determine whether the petition Where the denial of an appeal is
will be granted, and the other will set aside, the lower court shall
be on the merit if the petition is be required to give due course
granted. to the appeal and to elevate the
record of the appealed case as if

a timely and proper appeal had the case was not appealed. Like the case
been made (Sec 7) was filed in the RTC and then it decided
the case but the losing party did not appeal
so the decision became final and
executory. When a motion for execution is
filed by the prevailing party, there is no
February 6, 2018 need for notice to the losing party because
he is supposed to know that the decision is
Rule 39 final for his failure to appeal. He knows
Execution, Satisfaction, and Effects of that after the period to appeal, the decision
judgement becomes final.
After litigation, you would finally now reap 1. By independent action
the fruits of your labor. Once the decision
has become final, the remedy if you are A. When is execution a matter of
the losing party is to appeal the decision. right?
But if no appeal is filed within the period,
the decision becomes final and executory. When the judgment has already
attained finality. A judgment becomes
There are two concepts of a final final after the lapse of the period to appeal
judgment. The first one is final as and no appeal was filed. Normally period
distinguished from an interlocutory order. to appeal is 15 days counted from the time
The other finality is final because it is now the losing party receives a copy of the
subject to execution, it now disposes the decision.
case on the merits.
*Where do you file a motion for execution?
1. Court of origin
A. Kinds of execution The motion for execution shall be filed as a
rule in the court of origin. Now if the case
As to nature: is appealed to the appellate court and the
1. Execution as a matter of right appellate court has already rendered a
decision and that decision has become
Once the decision of the court is final and final and executory. The decision shall be
executory then the enforcement of that executed in the court of origin.
judgment becomes a matter of right. The
issuance of a writ of execution becomes a The rule before is before you can execute
ministerial duty on the part of the court. a judgment of the appellate court, you
have to wait for the records to return to the
1. Execution as matter of judicial court of origin. Under the new rules, you
discretion don’t have to wait for the records to be
returned in the court of origin. Why?
As to enforcement: Because it would take a lot of time to be
1. By motion returned and the longer the records will be
Normally when a judgment has become returned, the longer the time it would take
final and executory, you can execute that for the winning party to execute the
judgment by a mere motion. You file it in judgment so in the meantime the debtor
the court which renders the decision. File a can hide his properties. All you need is a
motion for the issuance of the writ of certified true copy of the judgment of the
execution and when the court issues an CA as well as the entry of judgment of the
order granting your motion, a writ will be CA because the entry of judgment means
issued and the sheriff will receive the writ the judgment has become final and
for enforcement. executory. With those documents, the
court of origin can issue a writ of
If you file a motion for issuance of a writ of execution.
execution in the court of origin, meaning

Now when you file a motion for issuance of event that prevented his
the writ of execution in example in the RTC reinstatement.
of Cebu do you have to inform the party?
Well if the decision of the RTC that you Another good example of a
want to be executed is an original decision supervening event is a case of
not appealed to CA, no need to notify the ejectment where the defendant was
other party since he or she is fully aware of ejected from the land he occupied
the finality of the decision. but the plaintiff who owns the land
borrowed money from the bank and
1. Appealed case used the land as a collateral. When
However if it is an appealed case and the he was not able to pay the bank the
appellate court has now decided, you want mortgage was foreclosed and during
to execute now so when you file a motion the execution sale, the defendant
for execution of the judgment of the CA, who was already ejected from the
you have to notify the other party because land was the one who brought the
there might be some supervening facts land in the sale. He becomes the
and events that transpired during the new owner of the land so the
pendency of the appeal that might render ejectment cannot be enforced.
the decision not proper. The other party
should be given an opportunity to be Another good example is the case of
heard. Phil. Veterans Bank where a case
was filed against it by one of its
Can you not file a motion for execution of depositors, so the bank was ordered
judgment in the CA? YES but only if the to pay. But in the meantime while the
court below is delaying the issuance of the case was pending, the bank got
writ of execution to the prejudice of the bankrupt so Central Bank came in
prevailing party. The CA would only issue and placed the bank under
an order directing the RTC to issue the writ receivership. In effect all their assets
of execution. Magikan gihapon sa RTC were preserved and the creditors
ang writ orderan ra sila sa CA to issue. could not go after them. Now here
the plaintiff already won the case
What is a writ of execution= written order against the bank and so he asked the
from the court directing the sheriff to court to issue a writ of execution but
enforce the final judgment of the court and upon levying of the properties of the
to satisfy the judgment. It is now the job of bank, SC said you cannot enforce
the sheriff to enforce. the execution since the bank is
placed under receivership. The
A. When the court may refuse to placing of the bank under
issue the writ of execution despite receivership was the supervening
the finality of the judgement: event.
1. when the judgement has been

1. when the subsequent facts and novated by the parties (Fua Cam Lu
circumstances (supervening events) v Yap Fauco, 74 Phil. 287)
transpire which render such
execution unjust or impossible Here there was already a judgment
(Butuan City v Ortiz, et al., L- 18054, of the court. Defendant was ordered
Dec. 22, 1961) to pay the plaintiff. Since the decision
has become final it can now be
In this case there was a judgment executed against the defendant. But
of the CSC that disqualifies a the defendant and the plaintiff after
person from continuously holding the finality of the judgment, entered
public office since he was guilty of into an agreement that the defendant
theft. Now that was the supervening will just pay the obligation by
installments. So ang decision sa

court kay bayaran by lump-sum but The amount of support can be
nisugot man ang plaintiff na bayaran changed from time to time.
na lang by installment ang utang. In
effect the decision of the court was
novated and can no longer be Grounds for quashal of a writ of execution:
enforced.
When a writ of execution has been issued
1. when there is a petition for relief if by the court, the losing party has the right
judgement is filed and a writ of to question the writ of execution when
preliminary injunction is issued there are valid grounds.
You can avail of this remedy after the
judgment has become final and a. improvidently issued
executory. Avail of this 60 days from b. defective is substance
knowledge but not more than 6 c. issued against the wrong party
months from the entry of judgment. d. judgment was already satisfied
e. issued without authority
If there is a final judgment, the f. change of situation of parties
prevailing party can now execute the g. controversy never validly submitted
judgment and in order to prevent to court
such execution the losing party can h. writ varies the terms of judgment
ask the court to file a temporary
restraining order or writ of preliminary The writ of execution must be the same as
injunction. the judgment itself meaning the writ of
execution would have to quote the
dispositive portion of the decision. When
1. when the judgement has become the writ will vary from the terms of the
dormant, the five year period to judgment, the losing party may ask for the
enforce it by a mere motion having quashal of the writ.
expired a. enforced against property exempt
from execution
You have a five year period to
enforce a judgment by a mere A. Discretionary Execution:
motion. After five years you can no
longer enforce it by a mere motion, This is execution as a matter of judicial
you have to file an independent discretion.
action for the revival of the judgment.
Now if the judgment has not yet become
1. when the judgement is incomplete final, the period to appeal has not yet
expired, can the court enforce that
The court can still amend a final and judgment despite the period to appeal has
executory judgment if: not yet expired or there was a notice of
appeal filed already? YES this is
The rule is when a judgment is final discretionary execution and when can the
the court can no longer change it. court issue this?
That is the immutability of judgment.
However, there are instances when It may only issue upon good reasons to be
the court can still amend a final and stated in a special order after due hearing.
executory judgment.
The prevailing party must file a motion for
1. to make corrections of clerical errors discretionary execution and that motion
2. to clarify ambiguity must be set for hearing where the losing
party is given the opportunity to be heard.
1. in judgment for support because it In that hearing, the prevailing party must
can be amended anytime prove to the court that there are good and
valid reasons for the immediate execution

of the judgment. And when the court is SC. Once a case reaches to the Supreme
convinced, the court will have to issue a Court, being the highest court, all lower
special order granting the discretionary courts should refrain from dealing with any
execution. matters pertaining to the case.
After trial court has lost jurisdiction, the Now discretionary execution of the
motion for execution pending appeal may decision of the RTC to a case appealed to
be filed in the appellate court. CA is allowed only if there are good and
valid reasons.
When does the trial court lose jurisdiction Good reasons for execution pending
over the case? The trial court loses appeal:
jurisdiction when the appeal is perfected.
( When is appeal perfected? For the losing 1. Where the lapse of time will make
party it is when he has filed a notice of the judgment ineffective
appeal in the court of origin. For the
prevailing party, it is the lapse of the 15 When a case is appealed to the CA it
day period to appeal. Moreover after the takes a long time. And if the lapse of
lapse of the 15 day period, the appeal is time will render the judgment
deemed perfected as to all parties.) ineffective like for example the
subject matter of the case is one
From the time the appeal is perfected as to where it deteriorates fast, ang inyong
both parties, the trial court will have to giawayan 40 ton nga saging wa na
order the transmission of the records of the malata na ang mga saging. Lol
case to the appellate court. But before the latang saging
trial court forwards the records of the case
to the appellate court, the trial court retains 1. Where the appeal is clearly dilatory
what we call as the residual power. Part of Who decides if an appeal is dilatory?
that residual power is to grant the It is the CA not the RTC.
discretionary execution. So until the 1. Where the judgment is for support
records have been forwarded the trial court What if there is a son who filed an
can still entertain a discretionary appeal for support against the father
execution. Once the records are already and then the father appeals the case,
forwarded to CA, then the trial court loses dont tell me the son would have to
jurisdiction over the case. And if the wait until the case would be final to
prevailing party wants a discretionary be given support.
execution then he has to file with the CA. 1. Where the article subject of the case
This is what we call execution pending would deteriorate
appeal. In relation to ground number 1
1. W h e r e t h e d e f e n d a n t s a r e
The Court of Appeals, has no authority to exhausting their income
issue immediate execution pending appeal Hiding the properties by the
of its own decisions therein. Discretionary defendant to prevent the execution
execution is allowed pending appeal only 1. Where the judgment debtor is in
on a judgment of the trial court upon good imminent danger of insolvency
reason to be stated in a special order. A 1. Where the prevailing party is of
judgment of the Court of Appeals cannot advance age
be executed pending appeal.
Remedy: Certiorari if granted without basis
This execution pending appeal is allowed
only for decisions of the RTC appealed to Discretionary execution gud na that means
the CA. When the CA decides the case the execution of the judgment is within the
and the losing party appeals the case discretion of the court and they should
further to the SC (appeal pending in SC), exercise the discretion properly. If the court
dili na na pwede ang execution pending exercises it improperly then the court can
appeal with the CA out of respect to the

be accused of grave abuse of discretion. judgment of the MTC, the jdugment of
So certiorari it is. the RTC will be executory immediately
even if the case is appealed to the CA.
How to prevent execution pending appeal: The only way to stay such judgment is if
the CA issues a TRO.
Supersedeas bond
-defendant will put up a bond to stay the 1. Injunction
execution of the judgment. The amount of 2. Receivership
which shall be determined by the court but 3. Accounting
it shall not be less than the value of the 4. Support
judgment.
A. E x e c u t i o n b y m o t i o n o r b y
However the filing of the supersedeas independent action:
bond does not entitle the judgement debtor
to the suspension of execution as a matter A judgment can be executed by a mere
of right (NAWASA v Catolico, L- 21705 and motion within 5 years from the time
L- 24327, April 27, 1967). judgment becomes final. You have to
enforce that by a mere motion. What will
Hence, where the needs of the prevailing you do? Just file a motion for execution in
party are urgent, the court can order the court of origin. If you failed to file a
immediate execution despite such motion for execution of judgment within 5
supersedeas bond (De Len et al., v years then your right to have it executed
Soriano) by a mere motion expires. What will
happen? File an action in court for the
The court will try to balance the revival of the judgment. This is called a
supersedeas bond and the need of the revival of judgment…you can do that after
prevailing party. Like if the prevailing party 5 years but not more than 10 years.
is already 90 years old and he was Actually the decision of the court can be
awarded damages for example, muput up enforced within 10 years. The first 5
pa jd ug supersedeas bond, if I were the years= mere motion, beyond that up to 10
judge I would grant the discretionary years= file an action for the revival of
execution since I think the need of the judgment. Revival is like filing a new case,
winning party is more urgent than that of so pay nasad kag docket fee. Once the
the defendant. court grants your action for revival of
judgment, how are you going to enforce
A. Judgment not stayed by appeal: that revived judgment? Can you enforce it
thru a mere motion? YES within 5 years
Normally when the losing party will from the time it was revived. What
appeal the decision of the trial court, happens if you are not able to file a motion
then judgment cannot anymore be within 5 years from the time it was revived,
executed. Because execution can only can you file a second motion for revival of
be done if the judgment has already judgment? Now this matter was already
become final and executory (no appeal clarified in the case of….
filed). If naay appeal dili pa na siya final.
But there are judgments which are (naa na ni sa Feb. 12 na transcript lol di na
immediately executory that even if the nako utrohon)
other party appeals, the judgment can
already be enforced. (IRAS). There is • PNB v Bondoc (1965)
another immediately executory judgment PNB v Deloso reiterated in the case
and that is a jdugment of the RTC of Luzon Surety Co., Inc., v IAC, et al,
affirming the decision of the MTC in (1987)
ejectment cases. When the lower court • Sec. 6 of Rule 39 restored Bondoc
renders a judgment in ejectment and the
losing party appeals the judgment to the A. Execution in case of death of a
RTC, and the RTC affirms the ejectment party;

What happens if the judgment has already
A. Forms and contents of a writ of been revived? Can that judgment be
execution executed by a mere motion? YES it can be
executed by a mere motion. But what
The important amendment now is that the about if the 5 year period has already
writ shall specifically state the exact expired, can you revive that judgment
amount of the principal, interest, costs, which has already been revived? YES that
damages, rents, profits, due as of the date is provided for by Sec. 6, Rule 39 which
of the issuance of writ. reiterated the ruling of SC in the case of:
The writ shall only state the dispositive

portion of the decision and not the entire • PNB v Bondoc (1965)
body. We have discussed before that there were
conflicting rulings of SC on this matter.
When the judgment is revived, a revived
Feb. 12, 2018 judgment is already like a new judgment
itself. Therefore a revived judgment can be
Continuation of rule 39 re executed by a mere motion five years
from the time it was revived. If the five year
F. E x e c u t i o n b y m o t i o n o r b y period expires, you can file another revival
independent action: of judgment and so on and so forth.
Execution can be done by a mere motion But this Bondoc ruling was abandoned in
or by an independent action. Execution the case of:
can also be done as a matter of right or
judicial discretion. • PNB v Deloso reiterated in the case
of Luzon surety co., Inc v IAC et al.
Once the judgment becomes final and (1987)
executory meaning the period to appeal
has already expired and no appeal was
filed then the execution becomes a matter • Sec. 6 of Rule 39 restored Bondoc
of right. When it is a matter of right it ruling
means it is a ministerial duty on the part of
the court to issue the writ of execution. Rule 39, Sec. 6 of the Rules restored the
Bondoc ruling where SC said a revived
Discretionary execution refers to an judgment is like a new judgment. So you
instance where even if the judgment has can enforce it with a mere motion within 5
not yet attained finality the court in its years from the revival and if the 5 year
discretion may issue a writ of execution. period has already expired, you can file
But there must be a good reason for its another revival of judgment. And if there is
issuance like for example the prevailing another revival of judgment, that second
party is very old or the party subject to the revival of judgment can also be enforced
litigation is already deteriorating fast. within 10 years. The first judgment by a
mere motion, the second judgment by a
Now execution done by a mere motion can revival of judgment.
be done within 5 years from the time the
judgment becomes final and executory.
After five years that judgment becomes G. Execution in case of death of a party:
dormant and you could no longer execute
that judgment by filing a mere motion for This section deals where a judgment has
execution. You have to revive but that is become final but there was yet no
only allowed for a period of after 5 years execution. So what happens if there is
but not more that 10 years from the time already a final judgment and a party dies
the judgment becomes final. after execution ****inaudible**, Sec. 7 says
it depends on who died, if it was the

judgment creditor who died, then his must specify the exact amount that you are
executor/administrator of the estate can asking the sheriff to implement.
move for the execution of the judgment
against the judgment debtor who is still The writ shall only state the dispositive
alive. But if it is the judgment debtor who portion of the decision and not the entire
died, the judgment creditor can enforce it body.
against the estate of the judgment debtor.
I. I.How to execute money
If it is an action for recovery of a real judgment:
property or delivery of a particular thing
then the judgment creditor can demand the Here in Section 9, it requires the judgment
delivery of the thing from the executor/ debtor to pay a certain amount of money.
administrator of the judgment debtor. In money judgment the first thing that the
sheriff will do is to –
If it is a money judgment, then the creditor
can present it to the executor/administrator 1. Sheriff to demand payment
of the debtor as one of the claims during He will now go to the debtor and show the
the settlement of the estate of the writ of execution and in there will be stated
deceased debtor. the exact amount that he is going to pay.
Most sheriffs will demand immediate
If there is already a levy on execution payment but I heard that some sheriffs will
( there is already a writ of execution issued give the debtor a chance to raise the
by the court). In fact the sheriff has already money because anyway the sheriff has 30
implemented the writ by levying the days to execute the judgment.
property of the judgment debtor and it was
only after the levy that the judgment debtor The payment should be in cash and legal
died, then the execution will continue after tender. Di pwede mubayad kag usa ka
the levy, the property will be sold in a sako na sinsilyo. And then if you don’t
execution sale and the proceeds shall be have the cash, you may pay in check but a
paid to the creditor. If there is excess, it will manager’s check not a personal check. Dili
be returned to the estate of the judgment dawaton ang personal check.
debtor.
So if wa sad kay cheke, you may pay in
H. Forms and contents of a writ of terms of property because the third one
execution: says you may pay in any manner
acceptable to the creditor. This is what we
Remember that the court issues a writ of call as dacion en pago (settle the money
execution in the name of the Republic of obligation with property). What the sheriff
the Philippines. The caption of the case will do after you have offered the property
would remain as it is. as payment is to immediately
communicate with the creditor. And if he is
A writ is a written order emanating from the willing to accept the property then that
court directing the sheriff to enforce the would be tantamount to substantial
judgment. payment.
The important amendment now is that the But if the debtor has no money, check or
writ shall specifically state the exact property to offer as payment, then that’s
amount of the principal, interest, costs, the time the sheriff will go to step 2 which
damages, rents, profits due as of the date is –
of the issuance of the writ.
1. Satisfaction by levy
Sheriff will now look for properties of the
In the old rules it was the court who will debtor which he can levy on execution
compute the amount to be executed. But (refers to the act of attaching the property
now if you are the prevailing party you of the debtor in preparation for the

execution sale). If the property is attached but the law on loans. (lesson ni sa credit
by the sheriff, it is like the property is guysh).
already in custodia legis, the debtor can no
longer touch that property. How will the sheriff implement this? The
sheriff will go to the garnishee (a person
Later on the sheriff will schedule a date for who is in possession of the money/
the sale of the properties levied and the property of judgment debtor and he held it
proceeds thereof will be used to pay the in trust). Like the sheriff will go to the bank
creditor. and serve a writ of garnishment and the
bank is obligated that upon the receipt of
How is levy effected? It depends on the the writ of garnishment, the bank will have
property that is levied by the sheriff. If the to make a report within 5 days to the
property is a real property, the sheriff will sheriff as to WON the debtor has money in
just go to the Register of Deeds (if covered the bank and if sufficient to cover the debt.
by a title) and have the levy on execution So ang bank ihold sad niya ang money sa
annotated at the back of the title. Niya debtor, it will not allow the debtor to
ibutang sa likod sa title na this particular withdraw the money once it is already
property is levied on execution in garnished since now he holds the money
connection to a particular case. So any in trust for the creditor. After that he will
person who might be interested to deal deliver the money to the sheriff who will
with the property will be forewarned that give it to the creditor.
the property is already levied.
If the property is a personal property, the J. Execution of other judgment:

sheriff would have to get the property and
put it under his custody. So normally, dad- 1. Execution of judgment for specific
on niya sa korte. Like sa hall of justice sa act
capitol, you will see there at the back many
cars and motorcycles nakuha na sila sa Refers to acts that the judgment debtor is
sheriff. Later on it will be sold in an auction required to do but which other persons
sale. may perform if the former will not perform.
Example the judgment of the court is for
If there is no more property that could be the defendant to deliver the title to the
levied on execution then the sheriff could plaintiff because the plaintiff is found to be
proceed to: the rightful owner of the property. If the
debtor will not perform the act under the
1. Garnishment of debts and credits writ of execution, he cannot be cited in
contempt because the act anyway can be
The property that could be garnished are performed by other persons. Like in this
the intangible properties like collectibles of case, the Register of deeds can be
the debtor from other persons such as the ordered by the court to cancel the title of
debtor having also debtors (naay this person and to issue a new title for the
nangutang niya) and they have not yet creditor.
paid, that amount can be garnished by the
sheriff.
1. Execution of special judgment
Aside from the collectible we have like
royalties, commissions. Like if the debtor is In this case, the judgment debtor here is
a real estate agent and then naa siyay required to do an act which only he can do.
madawat na commission, dawatonon pa An act that cannot be delegated to another
that can be garnished. person since it was the expertise of the
defendant which was taken into
Another one is bank deposits since they consideration when he was engaged into a
are not governed by the law on deposits contract by the plaintiff. Like hiring Bruno
Mars to sing during your birthday and then

you made partial payment na but he won’t
perform then an execution can be made 200k - rural area
against him. 300k - urban area
If he really won’t perform despite the order so dia mo nagpuyo sa Cebu City so
of the court he can be cited in contempt of 300k ra ang exempt. I hope Congress
the court because this is already will seriously consider amending this
disobedience of the lawful order of the provision.)
court. 1. Ordinary tools and implements
personally used by him in trade;
K. Effects of levy on execution: (So if the judgment debtor (JD) is in
engaged in a trade like carpenter, dili
ma sheriff iyang hammer. If the JD is
an auto mechanic, his ornaments
Levy means the act or acts by which an cannot be sheriff as well – mga pliers,
officer sets apart or appropriates a part or screw driver and so on.)
the whole of the property of the judgment 1. Three horses or three cows used by
debtor for purposes of the prospective him in his ordinary occupation;
execution sale. (I don’t know why 3 diin cla aning
balaora.)
It would be invalid for the sheriff to sell a 1. Necessary clothing and articles for
property of a debtor without a levy. There ordinary personal use, excluding
must be a levy first. jewelry;
(Of course, the sheriff will not get the
The levy on execution shall create a lien clothing)
inn favor of the judgment oblige over the 1. Household furniture and utensils
right, title and interest of the judgment necessary for housekeeping of a
obligor in such property at the time of the value not exceeding P100, 000;
levy, subject to linens and encumbrances (so dili pwede birahon sa sheriff ang
then existing (sec. 12). mga kutsara ug tinidor, kaldero. Even
household furniture and other utensils
IOW, the judgment creditor is placed at the basta dili mo subra sa 100k ang
level of the judgment debtor in so far as his value, okay?)
interest in the property is concerned. 1. Provisions for individual or family
Subject to liens and encumbrances then use sufficient for four months;
existing which means when the property 1. P r o f e s s i o n a l l i b r a r i e s a n d
levied by the sheriff was already subject to equipment of judges, lawyers,
a lien, that lien is superior to the levy. For physicians. Pharmacists, dentists,
example the sheriff levied a parcel of land, etc. not exceeding P300,000 in
at the time he levied there was already an value;
annotation of mortgage to a bank. Sa ato (if you are a lawyer, your SCRA
pa ang mortgage sa PNB superior sa levy. collection cannot be taken but only up
to 300k ra. If you have a complete set
If the judgment debtor fails to pay the of SCRA now, it is worth a million
bank, the bank can still foreclose the already because although wan a
mortgage. kaayoy namalit anang SCRA because
of technology, pang decoration
L. Property exempt from execution (sec. nalang nas office, moa bot nanag
13): 700+ volumes now and per volume,
tag 1-2k so millions nana)
1. Family home; 1. One fishing boat and accessories
If the family home exceeds the limit not exceeding the total value of
set by the law then it can still be sold P100, 000 owned by a fisherman
and only the amount of the limit will 1. So much of the salaries, wages, or
be returned to the owner. earnings, of the judgment obligor for

his personal services within four
months preceding the levy as are But this has already been modified or
necessary for the support of his changed by the new rules. Under the new
family; rules, a writ of execution issued by the
2. Lettered gravestones court will be valid for 5 years. But, it would
(kinsa paman intawn manguha ani oi entail more job for the sheriff if it will not be
or mag keep. But some of the able to fully satisfy the writ at the earliest
gravestones are lettered in gold that possible time. Why? Because every 30
is why. Ilisdan ni dapat ug lapida days, the sheriff will have to report to
HAHAHA) the court, to the judge.
1. Monies, benefits, privileges, or
annuities accruing or in any manner So for example, when the writ of execution
growing out of any life insurance was issued, the sheriff now collected the
1. The right to receive legal support amount from the JD but the JD has no
2. Properties specifically exempted by money, so the sheriff started looking for
law properties of the JD to be levied on
execution but nothing was found kay mayo
(So these are things which the sheriff kayo mot ago ang JD kay makit-an gane
cannot touch; off-limits to the sheriff. na, bira jud na. So wa cyay nakit-an or if
naa man gane, gamay ra, not enough to
What will the sheriff do after he served the satisfy the judgement. So on the 30th day,
writ of execution? Now the sheriff is the sheriff will have to report to the judge –
mandated by law to report to the judge “your honor, the writ of execution that you
within 30 days from the time the writ of issued was not satisfied”. The sheriff will
execution was issued, the sheriff will continue to look for properties of the JD for
report to the judge who issued the writ, 5 years, the writ is valid. If later on the
how he implemented the writ, whether the sheriff will find a property, you can use that
writ has already been fully satisfied, or very same writ for as long as dili pa
partially satisfied, or not satisfied at all.) mulapas ang 5 years.
M. Return of the writ of execution: So before, mangayo ang sheriff ug alias

writ of execution every sixty days, karon
• Lifespan of the writ dili na, every 30 days lang cya mo report
(Under the new rules, the lifespan of the sa court until 5 years. That is the lifespan
writ of execution is already 5 years. In the of a writ of execution.)
old ROC, the lifespan of the writ of
execution is only 60 days. Meaning, the (Now, when a property is levied by the
sheriff must have to satisfy the writ of sheriff that is intended for the execution
execution within 60 days because after 60 sale. So what will the sheriff do of the
days, the writ of execution will become properties that were levied? He will sell it
functus officious, meaning, it becomes in a public auction sale to the highest
useless already and will expire and cannot bidder and the proceeds thereof will be
be used after 60 days. If you cannot satisfy used to pay off the creditor.
fully the judgment by virtue of that writ
within 60 days, then you cannot use that The first requirement is that before the
writ anymore after the 60 days. If after 60 sheriff will conduct the execution sale, he
days the sheriff will see other properties of must first make a notice of the execution
the JD, he cannot anymore get these other sale. How is the notice done? :
properties using the same writ because
that writ has already expired after the 60 N. Execution sale: (notice)
days.
1. Who will conduct
So what will the sheriff do? He will have to (sheriff of the court who renders judgment
go to court and ask for an alias writ of and who issued the writ of execution)
execution.

1. Where So, like here in Cebu City, there are many
(the rules provides that the notice of newpaper outlets so para di mag-away, e
execution sale shall be posted in 3 raffle nana karon. So it will be published in
conspicuous places. Meaning, 3 places in the newspaper after the raffle. So if
the community that is seen by many. A sunstar ba run ang nabunutan, sunstar has
place where people usually converge. a specific employee for that, cyan a to ang
mo communicate sa lawyer nga nagpa
Notice is usually 1 page then will be publish)
posted sa hall of justice, another 1 in the
city hall, and the other 1 probably in the A. In all cases the debtor must be
public market or public plaza bsta any notified at least 3 days before the
place where people would normally sale
converge. (Whether it is a personal property – 5 days
posting, or a real property – 20 days
What is the purpose of the notice? To posting, or publication in the newspaper,
inform the public that there will be an the judgment debtor must be personally
execution sale so that if they will be notified by way of personal service as in
interested to participate, then they can Sec 6 of Rule 15.
come and submit their bid if they want to
buy) What happens if the judgment debtor was
not personally notified of the execution
1. When sale? Gi post tuod sa conspicuous places
and published in the newspaper but wa jud
1. How kadawat ang JD of any personal notice
that his property will be sold on that
Notice of sale particular day, what will be the effect of
that? The execution sale will not be
A. Posting of notice in 3 conspicuous valid.
places:
Now the notice of execution sale must
5 days- personal properties state specifically the:
Reasonable time- perishable A. Contents of notice: Place, date,

exact time and description of the
20 days- real properties thing to be sold.
(Another important innovation now is this
(if personal properties kay 5 days ra word, “exact time” of the sale. In the rules
diba? EXCEPT if the property is fast before, it simply said “the execution sale
deteriorating, the sale could be done shall be conducted not earlier than 9
immediately after the posting. So from the o’clock in the morning and not more than 5
moment the sheriff posted the sale, pwede o’clock in the afternoon.” Sa ato pa,
dayon siya mo conduct ug sale the next anytime from 9-5 and you know, that vis
day if it will deteriorate. Pero ug dili gane very unfair. Some unscrupulous sheriffs
nya personal property, 5 days jud before will take advantage of this, makasapi sila.
he can conduct the sale. At least 5 days.) Why? If for example I am the sheriff, naa
koy nabira nga mga cars for example,
A. Publication: real properties worth some of the sheriff already has contacts
more than P50, 000.00 with businessmen engaged in buy and sell
(Aside from the posting of notice, if the real of cars. Tawgon nana nila nga naa silay e
property sold is more than 50k, there will subasta and would ask them to bid. In an
be publication in the newspaper. Once a execution sale, highest bidder bya na unya
week for two consecutive weeks. It shall ug way laen mo bid usa ra, aw cyay
be done by raffle. makadaog. Now, the car worth 1M, pwede
rana ma palit ug 300k ug way laeng bidder.
So that is what the sheriff will do mao nang

giusab nasad ni run kay nakahibaw ang executed an affidavit, you submit it to the
courts ani. sheriff and the sheriff must have to
immediately inform the judgment creditor
Under the old rules, the notice of execution about the 3rd party claim. The sheriff
sale shall be “not earlier at 9 in the should not proceed with the execution
morning and not beyond 5 in the sale otherwise, he will be liable to the 3rd
afternoon”, so ug nay interested na bidder, party claimant if the 3rd party claimant will
do not tell me maghuwat cyag alas 9 sa be able to prove that he is the real owner.)
buntag hangtod sa alas 5 kung kanusa
sugdan sa sheriff? Magbaw kaghuwat • bond to be put up by creditor
didto nya ang sheriff naa nay contact didto (Now, if the sheriff would want to proceed,
kay ofc, tagaan man sad nag sheriff. he must inform the creditor and ask the
creditor to put up a bond to answer for
Usually the bidding is in the courtroom nya whatever damage the sheriff may suffer if
ganahan ka mo attend, mag baw rakag the third party claimant would be able to
huwat di mugawas ang sheriff kay nay ka prove that he is the real owner. Ex: the
konchabo. Ig abot ba rug alas 12 gigutom sheriff informed already the creditor but si
ka ninggawas ka kadiyot pagbalik nmo creditor mu ana jud ug go ahead! So dapat
humana ang execution sale kay maro he should put up a bond. Because if the
kayng sheriff so wa kay dag-anan. creditor will not put up a bond, the sheriff
HAHAHA. shall not proceed because he will be the
one personally liable)
That is why the new rules changed it. It
says that the execution sale shall be done If the judgment creditor has put up a bond
not earlier than 9 nor later than 5 but you what is the lifespan of the bond?
have to specify the time already like 10:30
or 2:00 para way hokus pokus. Kung • lifespan of the bond
unsay time gi butang sa notice, mao nay (it is good for only 120 days. Why?
tumanon and the sheriff will be answerable Because if the creditor will out up a bond,
if he will sell it beyond the time or earlier the 3rd party claimant must have to file an
than the time. independent action to recover the property
within 120 days. If the third party claimant
So that is one of the important innovation will not file a case to recover his property,
introduced by the new rules. the bond put up by the creditor will already
expire and will no longer answerable if the
Now, this is for the sale of the real and sheriff will proceed with the sale. The bond
personal property. This is the procedure in will no longer be answerable)
the notice of sale. Now, what happens if
the property to be sold in the execution • court cannot resolve issue of
sale happens to be owned by another ownership
person and not by the JD? It is now
claimed by another person? This is now • creditor may also claim damages
what we call as a Terceria – there is a (Another important provision introduced by
third party claim) the new rule. Creditor may claim damages
from the 3rd party claimant if the creditor
Terceria can prove that the claim of the 3rd party
claimant is frivolous or unmeritorious or
A. Third party claim: baseless.)
• what sheriff must do So what will be the remedy of the 3rd party
(The rule is that if there is a third party claimant if the sheriff will inform the
claimant, or third party claim on the creditor and the creditor puts up a bond to
property which is to be sold in an answer for whatever damage the sheriff
execution sale, the 3rd party claimant must may suffer? The remedy now of the
have to execute an affidavit and once he claimant is to file a a reinvindicatory action.

If the debtor will not exercise that option,
A. Remedy of third-party claimant: that is the time the sheriff will exercise his
own discretion. The rules says that unahon
• Reinvindicatory action gihapon ang personal daun ang real.)
(What is this? He will have to file an
independent action in another court to • Refusal of purchaser to pay (Art.
recover the property and he can ask the 20)
court where the case is raffled to to issue a (Suppose the property was sold in an
writ of preliminary injunction or TRO to execution sale, somebody raised and
prevent the sheriff from proceeding with submitted the highest bid but later on
the execution sale. So that is the remedy refused to pay. Gi award na sa iya kay cya
of the 3rd party claimant. That is what we ang highest bid, 100k, then mo ingon cyag
call as the Terceria.) “joke only”, the sheriff will conduct a re-
bidding. In the next auction sale, ang
highest bid 80k nalang, dawaton, the
• Penalty for selling without notice difference of 20k (first bid nga joke only is
(Art. 17) 100k minus the highest bid in the re-
(Now, the notice of execution sale is a bidding which is 80k), siya ang mobayad
mandatory requirement such that if the (ang ga joke only). That is a penalty for
sheriff will conduct an execution sale joke only. You are made to pay the
without prior notice, the sheriff is balance.
answerable for that. There is a penalty for
selling without notice. The sheriff will be • Judgment obligee as purchaser
penalized.) (Art. 21)
(Can the judgment creditor participate in
the bidding? YES. If he is the highest
• How to prevent execution sale (Art. bidder, does he have to pay the amount
18) that he bid? If the amount is not more than
Now, if you are the owner of the property the obligation, he does not have to pay. E
that was offered for sale in a public auction pakang(?) nalang to sa utang. Ex: ang
by the sheriff, how will you prevent the utang is 1M pag bidding cyay highest
execution sale? There is only one way to bidder 700k, so di cya mo bayad kay 1M
prevent it, pay the sheriff (not bribe the gud ang utang. We call that
sheriff!) you pay the judgment “COMPENSATION”. So utangan pa ang
obligation. Kung pila imong utang, bayre JD ug 300k.
para wala nay execution sale.
However, if the property that was sold is
claimed by a third party claimant, then the
• Manner and order of execution sale judgment creditor have to pay in cash the
(Art. 19) amount kay naa may 3rd party claimant.
(When the sheriff will levy on execution, Dili mahimong e pakang sa utang. That is
what is the rule? Diba unahon ug levy una the rule in case the judgment oblige is also
ang mga personal property then real a purchaser. In fact in my experience
property. Now what is the order of sale? usually, kaning mga execution sale, ang
The rule before is sell the personal mo participate ani ang judgment creditor
property first. Ug dili kaigo ang personal ra, wa kaayoy interested especially if mga
property, that is the time you sell the real personal property nga karaan na.)
properties levied. That is no longer the rule
now. Under the new rules, the judgment
debtor is given the option. Because
there are some personal properties that
may have sentimental value to the debtor.
So ask the debtor.
Civil Procedure - February 19

does not yet transfer ownership of the
property in your favor. The certificate of
O. Conveyance to purchaser of sale must be registered first to office of the
property sold register of deeds and it is only after 1 year
1.) Personal property- the sale conveys to after the registration of the certificate of
the purchaser all the rights which the sale that the purchaser will become the
judgment obligor had in such property as owner if the judgment debtor fails to
of the date of the levy on execution or redeem the property. There is a right of
preliminary attachment. redemption on the part of the judgment
debtor. He can redeem the property
2.) Real property- the officer must give to within a period of 1 year counted from
the purchaser a certificate of sale the registration of the certificate of sale.
containing: (1) a particular description of That is why if you are a buyer of a property
the property sold; (2) the price paid for of an execution sale, once a certificate of
each distinct lot or parcel; (3) the whole sale is issued to you by the sheriff, you
price paid by him; (4) a statement that the must have it registered it immediately with
right of redemption expires one (1) year the register of deeds. Because if you delay
from the date of the registration of the in the registration that is advantageous to
certificate of sale. Such certificate must be the judgment debtor because his period to
registered in the Registry of Property of the redeem does not start yet.
place where the property is situated.
If there is gross inadequacy in the sale of
When the property is levied by the sheriff the real property, the judgment debtor has
the next step is to sell the property in a no right to complain because that is
public auction sale. If the property that is favorable to him. Gross inadequacy in the
sold is a personal property there is no right price of the sale can only be aground to
of redemption while of the property sold is nullify the sale if what was sold was a
a real property there is a right of personal property because there is no right
redemption. of redemption.
So when is the ownership of the property So the certificate of sale must contain a
transferred? Is it immediately transferred to clear statement that the sale is subject to
the buyer during the execution sale or the right of redemption on the part of the
transferred at some other time? judgment debtor within a period of 1 year
from the registration of the certificate of
If the property that was sold is a personal sale.
property, ownership is immediately
transferred to the buyer because there is
no right of redemption. During the
execution sale if the purchaser submits the P. Redemption
highest bid, what the sheriff will do is to 1. Who can redeem real property sold?
declare him as the highest bidder and then
he will be asked to pay the amount that he a. Judgment obligor, heirs or successors in
bid and the sheriff will issue to him a interest
certificate of sale. Together with the
certificate of sale the sheriff will deliver to The judgement debtor, the owner of the
him manually the personal property that property that was levied by the sheriff and
was sold. sold in the execution sale. But aside from
the judgement debtor, there are other
In real properties, there is a right of persons who may redeem the property. It
redemption. So when you submit your bid could be the judgment obligor or his heirs
as the highest bidder then the sheriff will in case of the judgement obligor dies or a
declare you as the highest bidder. You will successor in interest.
be made to pay the amount of the bid and
then the sheriff will execute to you a Who is a successor in interest?
certificate of sale but that certificate of sale

One who acquires a right over the property
from the judgment obligor. It could be by
virtue of an onerous or gratuities transfer.
For example: the right of the judgment
obligor to redeem his property from the
purchaser of the property is a transferable
right. It is even considered a property right
that you can sell it. If I’m the judgment
obligor my property was sold on a n
execution sale, I have one year to redeem
it. Suppose i don’t have the money to
redeem and my property is worth one
million it was bought for only 300k. As a A by virue of a mortgage. B by virtue of a
judgment debtor I can assign my right of judgment. C by virtue of attachment. All of
redemption. I can assign it for a fee or these were acquired after the levy on
without a fee. So I will look for someone execution. So this property was levied and
willing to buy my right to redemption. If I scheduled for execution sale. In fact there
sell my right to redeem that person who was already an execution sale. All of them
bought my right to redeem is called a will be called redemptioners. The land was
successor in interest. bought by x as the purchaser and y is the
b. Redemptioners judgment debtor. After the execution sale,
the judgment debtor has one year to
They are those who acquired a lien on the redeem the property. But suppose y
property subsequent to the levy. They cannot redeem it because he has no
acquire lien by virtue of a judgment, money to redeem then any of the three
attachment, or mortgage and they have can redeem it from x as redemptioners.
acquired the lien after the levy. They can
redeem the property from the purchaser. When can the redemptioners redeem the
property from X?
Example:
They have one year also. But if one of
My property is levied by the sheriff on them will exercise the right of redemption
execution. It was done on jan. 10 after it the subsequent redemptioners are given
was levied the judgment debtor which is only 60 days to redeem it from the
me , i borrowed money from friend gi- previous redemptioner.
mortgage nako ang property in favor niya
wala ko gasaba na gi levy na. Iya gipa Suppose A redeems the property from X
register ang mortgage. It was after the because he feels that Y could not redeem
levy. If i fail to pay, I will foreclose the to. Naghuwat siya unya wala pa man gi
mortgage but his right is not superior to the redeem ni Y because Y has the
levy. The most that he can be is that of preferential right to redeem. How much will
redemptioner. A pay X? A will reimburse X the amount
that x paid for the sale of the land in his
Suppose in the same situation after the favor plus 1% per month from the time of
levy, a creditor of mine decided to file a the sale up to the time of the redemption
case against me. Daog siya sa kaso. The plus cost like sheriff fees. Bayran tanan on
sheriff of that court levied the same top of the purchase price. So after A
property. But na levy na previously. So by redeems the property, B can redeem the
virtue of a judgment. property from A within 60 days only. So iya
i reimburse si A sa kung pila iya gi pay ni X
Or a creditor of mine filed for a writ of
attachment then ang gi attach kay sme plus 2% interest per month. Dili na 1, 2%
na. And then C can also redeem the
property but humana ug levy. The
property within 60 days.
attachment is inferior to the levy. He is a
junior encumbrancer

Once Y the judgment debtor exercise his If the sheriff levies the property of the
right of redemption it forecloses the right of debtor that is in preparation for the
all other redemptioners to redeem the execution sale pag levy niya naa nay
property from him. nakauna that property was already
foreclosed by another creditor then the
So if A redeems the property from X then Y foreclosure is superior than the levy.
exercises his right to redeem it from A. B
and C can no longer redeem it from Y. What if X bought the property for 300k and
the value of the property is 1 million, so he
Questions from student: was benefited, can he refuse the
When Y redeems the property form the redemptioners to redeem? No.
other redemptioners, 60 days na lang ang
period?
*partial redemption
No he has the one year. Y is not bound by
the 60 days because he is not a (General Banking Act)
redemptioner.
When you redeem the property from the
The judgment debtor in case of the second purchaser how much are you going to
redemptioner is he bound to pay the 1% or pay? You will pay based on the purchase
the 2%? 1% price imo ra siya ulian plus interest and
cost.
A redemptioner has one year to redeem.
Example A redeemed the property on the But under the General Banking Act if the
10th month then B redeemed it after 1 property was sold in a public auction sale
month so sa 11th month. C cannot redeem because of your indebtedness to the bank
the property if the one year redemption and the bank happens to be the highest
already expired, C cannot use the 60 days bidder, you can still redeem the property
kay 30 days na lang man ang nahabilin. from the bank.
But how much are you going to pay the
bank? You have to pay your full loan
2. When redemption can be done? obligation to the bank. If 600k ra ang palit
In so far as the judgment debtor is sa banko unya 1M ang value sa property
concerned he can always redeem it within dili 600k imo i bayad anf 1 million.
1 year from the registration of the So kanang 600k ra pud imo bayad mu
certificate of sale. But in so far as the apply ran a for ordinary persons not banks.
redemptioners are concerned they have 60
days from the previous redemption. But if 3. Proof of redemption
ikaw ang first redemptioner sulod pa sa
one year that is okay. Can a redemptioner refuse the redemption
of the subsequent redemptions?
What if C redeemed the property on the
11th month, is Y entitled to another one No. Because it is a matter of right and it is
year from the 11th month? No. One year ra the sheriff who ahs the control of the
jud siya from the time of registration of the property. Si if B wants redeem the property
certificate of sale. from A, he will not go to A but to the sheriff
for it is the sheriff who has the control over
So if a person acquires a lien over the the levied properties. He only needs to
property before the levy, he is not a prove his right of redemption. It is
redemptioner. He is a preferred creditor. necessary to prove your right to redeem.
Remember a levy creates a right and You will not be allowed by the sheriff to
interest over the property in favor of the redeem if you do not show proof of your
judgment creditor but subject to the lines right to redeem.
and encumbrances existing. Maning if pag
levy naa nay ga una na lien, ang gauna Ownership of the property remains with the
ang preferred. debtor until the period of redemption

expires. Under the law, the judgment has the right to demand reimbursement
debtor will remain in possession of the from the other judgment debtor.
property and that he must take care of the
property and prevent it from dissipation. Q. Remedies in Aid of Execution
Because if he will not be able to redeem it. When the writ of execution was not
The ownership will be transferred to the satisfied what are the rights of the
purchaser. judgment creditor?
If the judgment debtor will not preserve the
property, the purchaser has the right to ask
the court to issue an order directing the 1) Examination of Judgement Obligor
judgment debtor to refrain from doing any
act that would cause any deterioration to If he feels that judgment obligor is trying to
hide his properties then he can ask the
the property. Or else he will be cited in
court to subpoena the obligor to appear in
contempt. court answer questions pertaining to his
Al fruits and income during the one year right.
period will go to the judgment debtor.
2) Examination of obligor of judgment
obligor
4. Manner of using premises pending These are debtors of the judgment debtor.
redemption You can ask the court to subpoena a
person who is a debtor of the judgment
5. Deed of possession after expiration of debtor.
redemption period - retroacts to time of
levy 3) Enforcement of attendance and
conduct of examination
After the lapse of one year and nor
redemption is made, the sheriff will issue The court can compel attendance of the
the final deed sale and that transfers the judgment obligor in a hearing set for the
ownership. The ownership of the buyer will purpose of determining what are his
retroact to the time of the levy. properties
If there is anyone in possession of the 4) Obligor of judgment obligor may pay
property and he claims to be the owner of execution to obligee
the property the sheriff cannot put the
The debtor of your debtor may pay you
purchaser in possession without filing
another action to determine what is the directly and he will be released of his
obligation to the judgment obligor.
right of a third person to posses the
property. If the purchaser was not able to 5) Garnishment of income more than
recover the property then he has the right enough for the support of his family
to recover the price that he has paid.
6) Appointment of Receiver
The court may appoint a receiver to you
6. Recovery of price if sale not effective properties and assets of your judgment
debtor. The job of the receiver is to
7.Revival of judgment by motion preserve the property and to pay the
8. Right to contribution or reimbursement obligation of the judgment obligor.
for one of the several judgment creditor
7) Sale of ascertainable interest of
The several judgment debtors or the right judgment obligor in real estate
to contribution or reimbursement for one of
8) Proceedings when indebtedness is
the deveral debtors. In other words, there denied or property claimed by other
are several judgment debtors and only one
persons
was made to pay. So only the one
judgment debtor who made the payment

If the property of the judgment obligor is 3.) Effect of foreign judgment or final order
claimed by other person the sheriff cannot
just levy it right away because due process a.) In case of a judgment upon a specific
demands that the other person must be thing, the judgment is conclusive upon the
given his opportunity to be heard. title to the thing; and
R. Satisfaction of Judgment b.) In case of a judgment against a person,

the judgment is presumptive evidence of a
1.) Entry of satisfaction of judgment by the right as between the parties and their
clerk of court successors in interest by a subsequent
title.
The judgment of the court has already
been executed by teh sheriff and that it is c.) In either case, the judgment or final
fully satisfied. order may be repelled by evidence of a
want of jurisdiction, want of notice to the
2.) Entry of satisfaction with or without part, collusion, fraud, or clear mistake of
admission from the judgment debtor law or fact.
3.) When principal bound by the judgment It has been a settled rule that we are not
against surety Effects of judgment bound by a foreign judgment but we do
For principal to be bound by the judgment respect foreign judgment and not
of the surety the principal must be compelled ot follow a foreign judgment.
impleaded in the action.
Effects of Judgement Civil Procedure - February 26, 2018
a) Judgment against a specific thing or (First hour)
en rem actions:
Modes of Appeal
-Conclusive upon the title to the Rules 40 to 56
thing
Rule 40
b) J u d g m e n t s o n e n p e r s o n a m
actions: (MTC is the lowest level court. How do you
appeal the decision of the MTC? MTC as I
-Conclusive between the parties have said covers city courts ha – MTC,
and their successors in interest MeTC, MTCC, and MCTC.)
S. Res judicata
A. Where to appeal
Res judicata means there is another case (The decision of the MTC is appealable to
which is very similar to this case that has the RTC. Which RTC? To the RTC which
already been decided by the court before. has territorial jurisdiction over the place
where the MTC sits.
Requisites of Res Judicata
• Judgment must be final Example: if it is the decision of the MTC let
us say of Medellin, Cebu, it shall be
The first case must already be final appealed to the RTC of Bogo, not to the
RTC of Cebu City. If it is the decision of the
• Court must have jurisdiction MTC of Camotes, it will be appealed to the
• Judgment must be upon the merits RTC of Danao City because the entire
island of Camotes is under the RTC of
• There must be, between two cases, Danao. If it is the MTC of Balamban, it
identity of parties, identity of subject shall be appealed to the RTC of Toledo
matter, and identity of causes of City. If it is Santander, it will be appealed to
action the RTC of Oslob. In Dalaguete, it must be
appealed to the RTC of Argao.)

Rule) in order to synchronize this with
B. When to appeal: the modes of appeal under Rule 42 and
(There are two periods here – 15 and 30 Rule 43.
days.)
1. 15 days So now, you have 15 days, in an appeal by
2. 30 days if the records on appeal is mere notice of appeal, it is very easy to do
required it; you can do it in 5 minutes. It is only a
3. period is interrupted by motion for one paragraph-one page paper containing
recon or new trial “NOTICE IS HEREBY GIVEN” addressing
it to the court, to the MTC. The title is
C. How to appeal: “NOTICE OF APPEAL” and stating
(There are 2 modes of appeal from the (supposing you are the defendant):
decision of the MTC – the first one is “NOTICE IS HEREBY GIVEN THAT THE
called appeal by notice of appeal and the DEFENDANT RECEIVES THE DECISION
second one is records on appeal.) OF THIS HONORABLE COURT ON THIS
D AT E , F e b r u a r y 2 7 , 2 0 1 8 . N O T
1. Notice on appeal (this will apply to SATISFIED WITH THE DECISION,
ordinary civil action. Ordinary civil DEFENDANT HEREBY APPEALS THIS
cases like collection of sum of RULING TO THE REGIONAL TRIAL
money, breach of contract, any civil COURT.” Then you put the date below,
action that you file in the MTC. The then Cebu, City, PH.)
mode here is by mere notice of
appeal. 1. Record on appeal in special
proceeding and multiple appeal
How do you make a notice of appeal? It is (This is the mode of appeal for
very simple. It is only consist of one (1) special proceedings and in cases
paragraph. that involves multiple appeals.)
So if you are not happy on the result, you What is a special proceeding? These are
file a notice of appeal where? In the court cases where you seek to establish a status
of origin which is MTC. So you file your or a right. These are not done by
notice of appeal there and you have to do complaint. You do this by way of a petition.
it within 15 days from the time you
received the decision that is adverse to Ex: Adoption. You want to establish a
you. Within this reglementary period to status as an adopted child or the adopter
appeal, you may file a motion for files a case for adoption. He wanted to
reconsideration or a motion for new trial. establish a status as a father to the
adopted child. It creates a status of a
If you file these motions within the 15 days, father-and-child. That is a special
what happens if your motion is denied? proceeding.
You can still appeal. But when can you
appeal? You have another 15 days –a The most common example also is
fresh period of 15 days (Neypes Rule). settlement of the estate of a deceased
person. When a person dies, his children
If you look at the rules in Rule 40 and Rule will inherit from him. But before they can
41, the term used is “the period is inherit, they must establish their right and
interrupted”, meaning, the 15-day period is status as children of the deceased.
interrupted by these motions. And when
you say “interrupted” the filing of these In cases of inheritance, probate of the
motions will stop the running of the 15-day will, settlement of the estate, these are
period. When these motions will be denied, special proceedings cases. And in these
it will continue to run not only the balance cases, the mode of appeal is by records
of the period (which is supposedly the on appeal, and not only by mere notice of
interpretation), but means that you should appeal. This is not easy, it needs time.
be given a fresh period of 15 days (Neypes That is why you are given a longer period.

1. Material Data Rule (refers to the
Records on appeal is also required in material dates that you have to
cases where there is multiple appeal. state in your notice of appeal.)
This refers to cases where the court may
render several judgment – a piecemeal Now, there are only two (2) important
judgment. And one judgment can already dates that must be there in your notice of
be appealed while the case is not yet appeal:
totally terminated. 1. The date that you received the
decision;
Example: expropriation, an exercise of 2. The date that you filed your notice
the power of eminent domain. When the of appeal.
government will expropriate your private
land, the government will go to court and Because this will determine whether you
file an expropriation proceeding, we call have filed your appeal timely. This is what
that as complaint for expropriation. The we call as the material data rule. Your
court here will first determine whether the notice of appeal must contain these two
government has the right in expropriating material dates otherwise, it will be denied.
the property and the first thing he should Is it within the reglementary period of 15
do is to consider if it will be devoted for days? So mao na. The observance of the
public use and after that, you will be material dates will aid the court in
expropriated. determining the timeliness of your appeal.
The court will determine whether the D. How appeal is perfected: (see Rule 41,
expropriation is proper. When the court is Sec. 9)
convinced, then the court will issue and (The perfection of your appeal from the
order for expropriation which is already decision of the MTC to the RTC is the
tantamount to a judgment that the same as that of the appeal from the
expropriation of your property is proper. decision of the RTC to the CA and it is
That order of expropriation is already governed by the next rule, Rule 41, sec 9.
appealable if you do not agree with the (So mo jump lang ta ani kay same raman
court. Now the case is not yet over sila)
because after the order of expropriation,
the court can still proceed with the trial of Under sec. 9, Rule 41, which governs the
the case and the next step this time is to perfection of the appeal from the decision
determine the just compensation. In the of the RTC appealing it to the CA, sec 9
meantime, the private owner can already provides that appeal is deemed perfected
appeal the order of expropriation while the as to the appellant the moment he files
court may proceed with the determination the notice of appeal. But it is not yet
of just compensation, it will not stop the deemed perfected as to the whole case
court. If the court decides the amount for until after the lapse of the period ton
just compensation, that is also subject to appeal for the other party.
appeal. That is what we mean by multiple
appeal. You might ask nganong mo appeal ang
other party nga cya may nakadaog? That
In cases of multiple appeal, the mode of is very possible. It does not preclude the
appeal is not by notice of appeal but by winner from appealing. It is possible that
records on appeal. The reason is that you the winner may appeal because he is not
have to prepare your own records of the contented with the decision. Gamay ra ba
case because you cannot bring the run ang damages. So both parties may
records of the case from the court of appeal. That is why when the court
origin to the appellate court. Why can’t decides the case, and the losing party may
you? Because there is still an ongoing appeal, the appeal is deemed perfected
case. That is why maghimo kag imohang but only as to him. Not yet as to the other
records and that will take time. party because the other party has also the
right to appeal.

to the both parties informing them that the
If the winning party will not appeal from records of the case are already in the RTC
the time he receives the decision, then and that means that they now have to
the appeal is deemed perfected now as to submit their memorandum.)
the both of them. In other words, you have
to wait for the lapse of the 15-day period. H. When to file Appellant’s Memorandum
Always take note that the period is not the (Within 15 days from the receipt of the
same because it is possible that the other notice from the Clerk of Court of the RTC,
party may receive the decision first than the appellant now must have to submit his
the other. appellant’s memorandum. When he files
his memorandum, he will furnish a copy of
Once the appeal is already perfected as to that to the appellee.
both of them, that is the time that the MTC
will forward the records of the case to the An appellant’s memorandum contains
RTC for review.) the arguments of the appellant in writing
citing the errors made by the lower court
E. Payment of appellate court docket fee: that needs to be examined by the
appellate court. Same rani cya sa
MANDATORY But the court may make an appellant’s or appellee’s brief sa CA.)
exception on justifiable causes.
I. When to file Appellee’s Memorandum
(When you file your notice of appeal, you (The appellee will also be given 15 days
file it in the court of origin and then you to file his appellees memorandum upon
also have to pay at the same time the receipt of the appellant’s memorandum.
docket fee or the appeal fee. Now, the This will contain the arguments of the
innovation introduced by the new rules is appellee supporting the arguments of the
that you pay the docket fee also in the lower court. Muingon kag “there is nothing
MTC whose decision you are appealing. wrong. That is very correct)
So ara sad ka mo pay sa docket fee at the
same time sa imong notice of appeal. Pay J. When is the cause deemed submitted
it in the court of origin and not in the for decision
appellate court.) (After both parties have submitted their
memorandum, the case will now be
F. Duty of the Clerk of Court of the MTC deemed submitted for decision and the
(Once the appeal is perfected on both court will now decide the case)
parties, it is now the duty of the clerk of
court of the MTC to complete the records K. Appeal from Order of the MTC
of the case and forward it to the RTC dismissing the case without trial for lack of
immediately. jurisdiction
(How will the appeal be resolved by the
Even before the perfection of the appeal RTC?
for both parties, the moment one party files
his notice of appeal, the clerk of court must When the MTC dismisses the complaint
already start gathering all the records of without trial, sa ato pa w aka present ug
the case, order the stenographers to evidences ang both parties. On what
complete the stenographic notes which will ground? Lack of jurisdiction (LOJ).
be attached to the records.)
If the MTC dismisses the case on the
G. Duty of the Clerk of Court of the RTC ground of LOJ and the plaintiff appeals the
(Once the records reached the RTC, it is ruling of the MTC dismissing the case on
now the duty of the clerk of court of the the ground of lack of jurisdiction, how will
RTC to check whether the records are the RTC resolve the case? The RTC will
complete and if the record is complete, the examine WON the MTC is correct in
clerk of court of the RTC will now send dismissing the case.
notice to the appellant and to the appellee,

If the RTC finds that the MTC is correct in parties have already presented their
dismissing the case, the RTC will assume evidence and afterwhich the court decides
jurisdiction of the case if the case really the case.)
is within the jurisdiction of the RTC. As
if it is filed in the RTC as an original action. B. What are not appealable:
(Sec. 1 of Rule 41)
Rationale behind this: to save money and
time. 1.) Order denying a motion for new
trial or reconsideration;
If the RTC finds that the MTC is wrong, the (The order of the court denying these
RTC will remand the records to the MTC motions is not appealable. What you
and order the MTC to start hearing will appeal is the judgment itself on
immediately. the merits of the case. Not the order
because the order denying your
But if the MTC is correct in dismissing the motion is an interlocutory order)
case but the RTC also has no jurisdiction,
then the RTC will dismiss the case. Ex: 2.) Order denying petition for relief
ejectment involving tenancy agreement from judgment;
(DARAB has jurisdiction). The RTC will not
give it to DARAB. It will just dismiss the 3.) Interlocutory order; (an order that
case. It is you who will re-file the case in does not dispose of the case yet)
DARAB.
1. Order disallowing appeal;
L. Applicability of Rule 41
(The rule pertaining to the RTC’s decision 1. Order denying a motion to set aside
appealed to the CA will likewise apply here a judgment by consent or
in Rule 40. Why? because if you recall, compromise;
Rule 5 says that there is uniformity of
procedures in the MTC and RTC. The 6.) Order of execution;
procedures that are observed in the MTC
are the same procedures observed in the 7.) Partial judgment when the main
RTC, and vice versa. That is the general case is still pending, unless the court
rule. The provisions in Rule 41 will still provides otherwise;
apply here particularly appeal, records on
appeal, perfection of appeal. The 8.) Order dismissing an action without
appropriate provisions are found in Rule prejudice;
41.)
(Since you cannot appeal these judgment
on orders, your remedy now is:
Rule 41 N.B Remedy is Certiorari under Rule 65
The decision of the RTC here is done in

the exercise of its original jurisdiction –
meaning, the case originated in the RTC.
You have to distinguish if it is a decision 2nd hr.
done by the RTC in the exercise of its
original or appellate jurisdiction – If you believe that the court committed
meaning, the case originated in the MTC grave abuse of discretion in issuing this
(governed by Rule 42). orders that I mentioned you can question it
to the higher court but this is not by way of
A. Subject of Appeal: All judgment or final appeal you have to do it by way of petiton
orders that completely disposes of the for certiorari under rule 65.
case How do you appeal the ruling or the
(This refers to the decision of the RTC on decision of the rtc? Where do you appeal
the merits of the case, meaning, the that decision?

Ordinarily, decision of the rtc is appealable please don’t confuse certiorari under rule
to the court of appeals. What are the 45 from certiorari under rule 65, these are
different modes of appeal on the decision two different things.
of the rtc? There are three modes of
appeal in the rtc. RULE 45 – an appeal, in fact it is the only
mode of appeal from the CA to SC or from
C. Modes of Appeal: the RTC to the SC or from any other quasi
1. Ordinary Appeal judicial bodies to the SC
The first one is done either by notice of RULE 65 – not an appeal. It is an original
appeal or by records of appeal. action.
When can you file an appeal by mere
notice of appeal? Only In ordinary civil When you appeal to the SC the general
actions. rule is that you can only appeal to the SC
When do you appeal the ruling of the rtc by on pure of question of law, because the sc
way of a records on appeal? When the is not a trier of facts, they only try
decision of the rtc involves special questions of law. So when you have a
proceedings or cases involving mutiple case that is filed in the rtc, decided the
appeal. Then you have to make an appeal case now, you are not happy with the
by records of appeal. decision, you are not contented you
In appeal by records of appeal, You still question the decision of the rtc, if you
have to file a notice of appeal, duha na. question the decision of the rtc because
notice of appeal plus records of appeal. the rtc committed a misappreciation of
facts, wa sya kasabot sa ebidensya nga
If it is an ordinary civil aciton what you file imong g presentar, that is a question of
is only notice of appeal. fact,you cannot race that directly to the
SC.
You can appeal the decision of the rtc
2. Petition for Review under Rule 42 directly to the sc by way of certiorari under
rule 45 if it is a pure question of law. You
The second mode of appeal is governed can elevate the decision of the rtc to the sc
by rule 42, refers to appeal from the but only on pure questions of law. Sa ato
decision of the rtc in the exercise of its pa di naka muagi sa CA dritso nakas sc
appellate jurisdiction. Meaning the case basta pure questions of law, you don’t
emanated from the lower court it was disagree with the rtc on the factual findings
elevated to the rtc and the rtc now decides you just disagree with the rtc on the law
the case, once the rtc decides a case as that was applied. Is the rtc correct in
an appellate reviewing the decision of the interpereting this law? That is a question of
municipal court the decision of the rtc can law. is the law applied by the rtc in this set
be appealed to the rtc only by way of rule of facts the right law? If you don’t agree
42, and it is called petition for review with the rtc on that, pwedi ka mudirecta ug
underr rule 42. So dili na notic eof appeal apelar adto sa sc by way of petition for
ang imo file or records on appeal because certiorari under rule 45 because you are
notice of appeal and records of appeal elevating pure question of law.
refers only to ordinary appeal.
These are the three modes of appeal from
3. Appeal by certiorari under Rule 45 the decision of the rtc.
The third mode of appeal is appeal by D. Period of Appeal:

certiorari under rule 45. A certiorari under 1. Ordinary appeal - 15 or 30 days
rule 45 is actually the only mode of appeal
to the Sc. When you appeal the decision of Period to appeal: 15 days in the case of
the CA to the SC usa rai mode of appeal ordinary appeal, petition for review under
ana gyud, certiorari under rule 45 so rule 42, ceritorari under rule 45. Uniporme

ni ang 15days except appeals where you
can do it in thirty days like the appeal by What is this? Some are still very very
records on appeal. confused about the records on appeal.
I mentioned that the records in appeal is
2. Habeas corpus - 48 hours required only in cases that involves
multiple appeal and also in special
Habeas corpus – urgent. It involves the proceedings because in these cases the
liberty of the person. A person claims to records shall remain in the court of origin
have been illegally deprived of liberty mao despite the fact that you already appealed
ni file ug habeas corpus. the ruling to the higher court. Dili mada
What does habeas corpus mean? You ang records ngadto sa appellate court. the
have the body. You have the body, you case is filed in the rtc, example I gave a
produce the body, and explain why did you while ago, kadtong exproriation you
detain the person. disagree with the ruling of the court that
your property can be subjected to
E. Interruption of period to appeal by exproriation, muingon ka nga no that is not
motion for new trial or motion for really for public use ang inyong purpsoe.
reconsideration. No motion for extension of you can appeal the ruling of the rtc on the
time to file motion for new trial or order of expropriation but then when you
reconsideration. appeal the records will not be forwarded by
(See: Neypes vs. CA, Sept. 14, 2005) the rtc to the ca. why? Because they still
need the records, they will still continue
We already discussed this. Not allowed with the determination of just
because if you are allowed that would compensation. the same is true with
result to the extension of period of judicial foreclosure of mortagage subejct
appeal.you do that only during the period to multiple appeal sd na. there are three
to appeal ug imo nang e extend then stages there, after the first stage you can
extend sad ang period to appeal. That is appeal, after the second stage you can
not allowed. The period to appeal is fixed appeal the ruling, and third stage you can
by law. So you have to file your motion appeal. Since you appeal the order on the
within that period, no extension of time to first stage di man ma forward ang record
file motion. ddto so you have to make your own record
and that is why we call it appeal byr ecords
of appeal?
F. When and where to pay appellate court What does it contain? Reproduction of the
docket fee and other lawful fees; records of the case that is in the
possession of the court in your records of
When and where do you pay the appellate appeal you have to tell the story form the
court docket fee and other lawful fees? start supoorted by all the pleadings and
The same as that in the mtc, you pay it in orders in chronological order, so you will
the court of origin. probably start with filing of the case: “On
such and such a day plaintiff filed the
If original decision of rtc and you want that instant case before this hon court a copy of
to appeal in the CA, you pay the docket the complaint of the plaintiff is here to
fee in the rtc. attached” so naa kay corresponding
complaint, annex A. then the court issued
summons, ibutang sd nimo kanus a g
G. Notice of Appeal issue ang summons, on such a day. A
copy of the summons is hereto attached as
I have already mentioned that. Merely annex b the summons was served by the
includes two important dates. State the sheriff to the defendant on such and such
decision that you received and you are not a day, ibutang sd nimo, defendant filed his
contented with. answer on this particular day a copy of the
answer is also attached as annex d. so in
H. Record on Appeal: Contents chronological order you tell the story gkan

sa pagfile sa kaso sa pag issue sa the court may deny your records on
summon, file ug answer and reply, then the appeal.
court issued an order for pretrial then
ibutang sad nimo nga a copy of the order
of pre trial is hereto attached, then this is J. Joint records on appeal:
what happened in the pretrial, imo sd -the court may extend the period to file
ibutang ddto ang order and pretrial brief. records on appeal
So you have to prepare meticuluosly. Mao Now it is possible that both parties will file
nang 30days kay dili dali maghimo. a joint records on appeal, if both of them
You can ask the court for extension to file decides to appeal. Silang duha gusto mu
the records on appeal if you think that apelar, wama contento sa decision sa
30days is not enough you can ask for corte, they may decide e joint nalang nato
more that thirty days. atong records on appeal.
Can you do that in ordinary appeal by
notice of appeal? NO.
In ordinary civil action imong appeal is by
mere notice of appeal you are given 15 K. Perfection of Appeal:
days, can you file an extension of time? As to him:
No. a.) upon filing of notice of appeal
b.) upon approval of records of
Records on appeal dugay himoon mao ng appeal
30 days and you can ask for extension.
As to other party: Upon his filing also of the
notice of appeal or the lapse of the period
to appeal.
I. Approval of the Records on Appeal:
- if no objection, within 5 days The records on appeal once it is submitted
-order amendment to be complied to the court it will now be approved by the
within 10 days court, it is subject to the approval of the
court of origin, kung dien nimo g submit,
After you have submitted the records on rtc.
appeal to the court, where will you submit
it? To the rtc, the court of origim, whose In the case of appeal by records on appeal
decision youre appealing. it is deemed perfected not from the time
Isubmit nimo sa rtc ang records, then court you submit the records on appeal in court ,
will give the other party a chance to object not from the time you file a notice of
or to comment on the records on appeal appeal ka duha man na, ug records in
within 5 days. appeal gani you file notice of appeal and
And if the other party will comment and records on appeal within 30days but your
say, the record on appeal as prepared by appeal is not yet perfected. Your appeal
the appellant is not complete it is not becomes perfected only upon approval of
accurate, dunay mga important pleadings your records on appeal .when you file your
or orders nga wa ma mention, siguro records on appeal, subject pana sa korte,
gituyo gyud ug wa ma mention sa tan awn pana if completo ba na imong
appellant kay dili pabor niya posible man records, wa bakai gkalimtan, then after
na kay iyang ilibot libot. So if you are the that kung kumpleto na, ghuman na nimog
prevailing party, it is your job to call the amend. the court will approvae the records
attention nga your honor the records on on appeal.
appeal that was submitted is not complete,
there were material events that was not Dili lang ang napildi ang mu apelar hasta
mentioned there. The court will order the ang nakadaog mu apelar, that is why we
appellant to amend within 10days the have to wait for him also.
record on appeal if he will not amend, then

If he will not appeal within 15days from the Once the appeal is already perfected as to
time he received the decision,he did not both parties, it is now the duty of the clerk
appeal, then that means that the appeal is of court of the rtc to do the ff:
deemed perfected as to him.
1. To verify correctness of original
So as to the losing party, when he files the records and certify its correctness;
notice of appeal it is perfected as to him 2. To verify completeness of records;
only. 3. If incomplete, to complete it;
Sa ato pa perfected na ang appeal but 4. To transmit records to appellate
only fifty percent. Wapa man na perfected court within 30 days
as to the other party. But when that period
to appeal for that other party expires, that N. B. If efforts to complete records fail, to
is the time it is perfected, 100%. state in its transmittal letter the reason for
failure and steps taken to remedy it.
L. Effect of perfection of appeal: The Court Prepare and complete the records before
loses jurisdiction over the case. submitting to CA. if for some insuperable
reason it cannot be complete then the
Asa naman ang jurisdiction? Nabalhin na clerk of court of rtc must give an
sa court of appeals. explanation to the CA why it cannot be
TAKE NOTE: despite the fact that the completed. There are instance when the
appeal is already perfected as to both party may agree to dispense with that
parties, and therefore the rtc is already record.
considered to have lost its jurisdiction over For example: one of the lacking records is
the case, there are matter that the court the transcript of stemograpahic notes,
(rtc) for as long as the records of the case during the hearing conducted on a
has not yet been forwarded to the rtc. This particular day. Why? Because the
is what we call as residual jurisdiction of stenographer is retired and dead. In a case
the rtc. like this magsabot nalang ang parties nga
do you agree that this is what happened
M. Residual Jurisdiction during the hearing or shall we just agree to
dispense with that stenographic notes if
Means that even if the court has already the court can proceed with the decision
lost jurisdiction by the perfection of appeal, without that stenographic notes. They can
it may still do the following: go ahead.
1. Issue protective order;
2. Approve compromises Stenographic notes: personal and cannot
3. permit appeals of indigent litigants be read by others. (difficult because
4. order discretionary execution handwritten maglisod basa. Tapos e
execution pending appeal. transcribe pa na, so backward kaayu ta.)
N.B. This can be done only if the records O. Transcripts: 5 copies before it was
of the case are still with the trial court. 10pesos per page.
Even if the appeal is perfected as to both P. Transmittal: within 30 days from

parties for as long as the records of the perfection
case are still with rtc, wala pa nila ma
forward sa CA, they can still act on any of Q. Dismissal of Appeal: The court may
these 1234. motu proprio or on motion dismiss the
appeal on the following grounds:
N. Duty of the clerk of the court upon
perfection of appeal: 1. appeal taken out of time
2. non payment of docket fee

Im referring to the rtc. Ug wana nadismiss to comment on your records on appeal
sa rtc, you can raise that issue in the CA, whether it is accurate and complete.
and CA can dismiss your appeal based on
these grounds.
Appeal from the decision of the RTC, we
RULE 42 for tomorrow. have Rule 41 and Rule 42.
Rule 41 – appeal from the decision of the
RTC in the exercise of its original
jurisdiction. Meaning, the case was
Civil Procedure – Feb 27 originally filed in the RTC; it falls under the
original jurisdiction of the RTC.
MODES OF APPEAL IN THE RTC:
Rule 40
1. ORDINARY APPEAL – you can
• The rule that governs appeal from appeal depending on the nature of
the MTC to RTC the action or what kind of action/
• The decision of the MTC is done in case is that
the exercise of its original
NOTICE OF APPEAL RECORDS ON
jurisdiction – since MTC doesn’t APPEAL
have any appellate jurisdiction so
original actions jud na diha Ordinary civil action Special proceedings
• or cases involving
When you appeal the decision of multiple appeals
MTC to RTC, the mode of appeal:
ORDINARY APPEAL 15 days 30 days
2 kinds of ORDINARY APPEAL C A N N O T a s k f o r M AY a s k f o r a n
extension of time extension of time
1. Appeal by mere NOTICE OF
APPEAL – for Ordinary Civil action;
15 days
2. Appeal by RECORDS ON APPEAL
– special proceedings and cases How is appeal by records on appeal done?
involving multiple appeal; 30 days
• You have to reproduce the records
The reason why it is longer if the appeal is of the case in the court of origin. So
by records on appeal is because you need you have to present the facts of the
more time to prepare the records on case in chronological order
appeal. In cases involving multiple appeals supported by the documents,
or special proceedings, the mode of pleadings, orders and judgment of
appeal is by records of appeal because the court. They are presented in
you cannot bring the record to the chronological order so you start
appellate court. The case would still be from the day the case if filed up to
tried in the lower court. So since you the day the court renders a decision
cannot bring the original record because it that you are questioning/appealing.
is still needed in the court of origin, you
have to make your own records. That is Under Rule 40 and 41, when you file an
why you need to make a RECORD on appeal, you have to pay the docket fee in
appeal. This record on appeal that you the court of origin not anymore in the
prepared must be submitted to the appellate court.
court of origin for approval because the QUESTION: If you’re a lazy(?) lawyer and
court of origin will examine whether the don’t want to make your own records of
records of appeal that you prepared is appeal, can you just wait for the entire
complete; other party is given the chance case to be decided and just file a notice of

appeal or will the first orders become If the appellee fails to raise/call the
final? attention of the RTC, the appellee can
state that matters to the CA and it is the
ANSWER: Yes, it will become final if you CA this time who will be the one to dismiss
will not file the record on appeal. Because your appeal also based on the grounds
in appeal by records on appeal like in cited above.
multiple appeals, when the court decided a
particular phase of the proceeding, you are
supposed to appeal on that.
Rule 42
EXAMPLE: Expropriation case. There is
already an order of expropriation, it is PETITION FOR REVIEW FROM RTC TO
appealable but if you don’t appeal that CA
within 15 days that becomes final. So don’t An appeal from the decision of the RTC
wait for the court to decide on done in the exercise of its appellate
compensation because you can no longer jurisdiction.
discuss the 1st one, you have already
waived it. So you have to file it on time. Rule 41 – the decision of the RTC that you
are appealing is a decision in the exercise
of its original jurisdiction. Meaning, the
Once the appeal is perfected in the case of case was originally filed in the RTC, it falls
appeal under Rule 41 (appeal from the under the original jurisdiction of the RTC.
decision of the RTC in the exercise of its Rule 42 – the case started in the MTC,
original jurisdiction), it is the duty of the case was originally filed in the MTC and
RTC Clerk of Court to immediately prepare then after it decided the case, the losing
the entire records in preparation of the party appealed the case to the RTC. Now,
transmission of the records to CA. when the RTC will decide the appealed
N. Duty of the Clerk of Court upon case, the decision of the RTC is still
perfection of appeal: appealable to CA but the mode of appeal
is no longer Rule 41 but this rule.
1.) To verify correctness of original
records and certify its correctness; A. How appeal taken:
2.) To verify completeness of records; 1. By verified petition;
3.) If incomplete, to complete it; File it before the CA. In rule 41, so easy to
appeal the decision of the RTC because
4.) To transmit records to appellate you only prepare a notice of appeal which
court within 30 days. (from the perfection is only 1 paragraph. That is already
of the appeal) enough, you can already perfect the
appeal. And pay the docket fee in RTC
N.B. If efforts to complete records fail, to also.
state in its transmittal letter the reason for
failure and steps taken to remedy it. Here, you don’t file a mere notice of
appeal. You have to prepare a petition for
O. Transcripts: 5 copies review – it contains your arguments why
P. Transmittal: within 30 days from the RTC committed a mistake/error in its
perfection decision. In Rule 41, notice of appeal ra
imong i-file so you have enough time to
Q. Dismissal of Appeal: The court may prepare your arguments because your
motu proprio or on motion dismiss the appellant’s brief will come later. You file a
appeal on the following grounds: (only 2 notice of appeal and then later on the
grounds) records will be forwarded to the CA. Once
1.) Appeal taken out of time; the CA receives the records, CA will inform
you that the records are already with us so
2.) Non-payment of docket fee you may now file your appellant’s brief.
The filing of the appellant’s brief is 45 days

so dako pa kag time to prepare your you only have the balance since ni-
appeal in Rule 41. Here, you are only interrupt raman.
given 15 days and file your petition for
review. Unlike in Rule 41, your petition for But later on, the SC changed its ruling in
review will be filed in the CA not in the the Neypes case. If you look at rule 42 and
RTC. 43 (petition for review from the quasi-
judicial bodies), fresh period ang gihatag
1. Paying at the same time the docket once MNT or MR is denied so why don’t
fees and other lawful fees with the we apply this rule on fresh period to rule
CA; 40 and 41? Maglibog na ang mga tao so
we better have to synchronize the period
Ari naka bayad sa appellate court dili sa of appeal. So ang rule 40 and 41 maoy ni
court of origin (RTC). Kay sa rule 41 adto adjust sa rule 42 and 43. That is why when
ka bayad sa imong docket fee sa RTC and the MNT or MR is denied, you will have 15
it is them who will forward the receipt when days also to perfect the appeal, not just the
the RTC forwards the entire records of the balance para ma-synchronize na ang rule
case to the CA. So i-attach ang receipt 41 and 41 with rule 42 and 43.
proving that you have paid the docket fee.
In Rule 42, you pay the docket fee in the So you have 15 days from NOTICE of
CA not in the RTC. decision OR DENIAL of MR/MNT.
1. Deposit P500 for cost; - The CA may grant extension of time
to file petition for 15 days only after
So you pay in the CA the docket fee and complying with the prior conditions of
other cost and other lawful fees. payment of docket fees and cost.
1. Furnish the RTC and adverse party Since you have to prepare your arguments
a copy of the petition. that will convince the CA to reverse the
So you have to furnish copies to 2 parties: decision of the RTC, 15 days may not be
the COURT that rendered the decision and enough. That is why rule 42 allows you to
the OPPOSING party. file a motion for extension of time to file
your petition for review. So you have 15
days, you can ask for extension of another
A. When to file: 15 days. BUT THERE IS A CONDITION:
pay the docket fee first within the original
- Within 15 days from notice of period of 15 days.
decision OR denial of motion for
reconsideration or new trial; So if you’re planning to ask for an
extension, pay the docket fee and other
Because of this, the Neypes case was lawful fees first PLUS the deposit cost of
promulgated by the SC. This rule and the 500 then ask for extension. CA will surely
next rule mao ni sila ang nakapa-ingon sa grant you that. Pero if deretso raka ask for
ruling sa Neypes case (rule 42 and rule extension without paying the docket fee
43). first then for sure denied jud na.
In rule 42 and 43, it provides that if you file In rule 40 and 41 since nay appeal on
a MNT or MR and that motion is DENIED, records of appeal, within the 30 days also.
you are given a fresh period of 15 days So file the docket fee within the prescribed
to appeal or file your petition for review. period to appeal.
In rule 40 and 41, wala miingon nga you You can file MR on the order of the court
are given a fresh period of 15 days. denying your MNT because ang ground sa
Instead, it uses the word “interruption”. MR is excessive damages or decision is
So there was a decision before in the SC not supported by evidence or decision is
where it interpreted the word interruption contrary to law. So sa prefi exam katong
which means that when you file a MR last question, fresh period siya.
within the 15-day period, once it is denied,

-No further extension except for most In rule 42, you are allowed to appeal the
compelling reason. ruling of the RTC to CA on pure question
of law because the rule says that what you
After the lapse of the extension, can you can question to the CA is:
still ask for a 2nd extension? The law says
“No further extension except for most • Question of fact
compelling reason” so pwede pa basta naa
• Question of law
lang compelling reason.
• Both question of fact and law
GR: You cannot ask for 2nd extension
XPN: most compelling reason – you can 1. Reasons or arguments relied upon
give a very good reason like before the for the allowance of the appeal;
lapse of the extension of the 15 days, the 1. Accompanied by clearly legible
lawyer got seriously ill so di jud sya duplicate originals or true copies of
makahuman sa petition for review within the judgment or final orders
the extended period of 15 days like naa pa appealed;
sya sa hospital ba run.
2. Submit a certification of non-forum
shopping.
A. Forms and Contents: Certification of non-forum shopping – a
1. Petition shall be in 7 copies; certification that you have not filed any
other case similar to this case in another
2. State the full names of the parties court/tribunal; there is no other case
without impleading the lower court similar to this case involving the same
judge as respondent; parties pending in another court, should
there be a case pending in another court,
You don’t have to include the judge as a you have to inform the CA about it.
respondent. When are you required to
include the judge as a respondent? Only in Or if there is another case involving the
CERTIORARI under Rule 65 kay similar issue but you feel it is not forum
GADALEJ. But in other modes of appeal, shopping like naa lang some similar issues
you don’t implead the judge. involved, it is your duty to notify the court
about it.
1. Indicate specific material dates;
N.B. Appeal here may be on question of
The date when you received the decision fact, question of law, or both facts and law
AND the date when you filed the petition
for review.
1. Set forth concisely a statement of A. Effects of failure to comply with
the matters involved, issues raised, requirements: DISMISSAL
specification of errors of facts or law
OR both; What are these requirements?
• Payment of docket fee
You can raise to the CA pure questions of
law. In rule 41, you cannot raise pure • Filing it within the reglementary
questions of law to CA because it is an period of 15 days
appeal from the decision of the RTC in the
exercise of its original jurisdiction. When • Requirements pertaining to the
you appeal the decision of the RTC under contents of your petition like notice
Rule 41, imong issue raised must be to opposing party, furnishing a copy
questions of fact OR questions of fact and of the petition to the court, stating
law but not pure question of law because if clearly the arguments relied upon
pure question of law, go directly to SC by for the allowance of your appeal
way of a petition of certiorari under Rule and many others.
45.

So CA and SC – the 2 appellate courts –
are very strict in the observance of the
requirements under the Rules. In the SC, A. Grounds for outright dismissal:
there is even a special committee that will 1. Petition is patently without merit;
check all the petitions for certiorari that
reached the SC. Una pangitaan og sayop 2. Prosecuted manifestly for delay;
imong petition so if naa ma-technical jud 3. Questions raised therein are too
ka so ma dismiss, dili na makaabot sa mga unsubstantial to require
justices. The same rule applies in the CA consideration.
tungod sa kadaghan nila ug kaso,
ganahan sila mu-dismiss based on So it’s like the CA saying nga galangan-
technicalities. langan lang ka namo, wa juy lami imo
petition, way sense, way merit so outright
Di ba the rules require nga personal dismissal.
service jud if you furnish a copy of the
petition for review to the other party basta But if CA feels that your petition is in order,
you reside in the same city? If di nimo ma- you have a good argument, then it may
personally served, there must be an require the respondent to file their
explanation why you didn’t do it. If you comment. The comment is like a form of
don’t follow the requirement, that could be an answer to your petition. Within 10 days
a ground for the dismissal of your appeal. the respondent will comment.
A. Action on the petition: A. Comments to the petition:
1. Require comment within 10 days; 1. Must be in 7 copies
2. Dismiss the case outright. 2. Statement whether he accepts the
statement of matters involved;
Once petition for review is filed in CA, it is
not obligatory for the CA to entertain your 3. P o i n t o u t i n s u f fi c i e n c i e s o r
petition because petitions for review is inaccuracies in the statement of
NOT a matter of right but a matter of matters involved;
privilege according to the SC. You have no
right to insist that your decision be 4. Statement of reasons why petition
should not be given due course.
entertained. Since it is a privilege given to
you, you need to strictly comply with the
requirements under the law. Failure to
comply such requirements will be a ground A. Due Course:
for immediate or outright dismissal of your If the Court of Appeals find prima
petition. facie that the lower court has
So if your petition reaches the CA, the first committed an error of fact or law that
thing it does is examine whether you have will warrant a reversal or modification
complied of the requirements, if everything of its decision, then it will give due
is in order or if your petition is sufficient in course to the petition.
form and substance then CA may require Among lawyers, if your petition is given
the other party to file his comment to the due course, konswelo na kayo na. Sa ato
petition within 10 days. “May” because the pa w aka ma-technical, wa dayun ka ma-
CA may also dismiss your petition outright dismiss. When CA will issue to an order
for being unmeritorious. So even if you that petition is given due course – it means
have complied with the requirements and that CA have found error sa decision of the
that it is sufficient in form, but if it is not RTC so hatagan nila og due course.
sufficient in substance, the CA can
immediately dismiss it. Once the CA gives due course to your
petition, it will order the RTC to forward/
CA can dismiss your appeal outright based elevate the records of the case to the CA
on any of the 3 grounds. for judicial review. So dili ni automatic. In a

case of petition for review under Rule 42, CA, the RTC cannot anymore act on the
dili ni automatic na once you file your case, residual jurisdiction stops there.
appeal by way of petition for review in the
CA nga automatic i-forward dayun na ang 1. Appeal stays judgment or final order
records sa CA; maghuwat na ang RTC sa The deicision of RTC cannot be
CA kay basin pa diay i-dismiss ra dayun sa implemented yet when it is appealed to CA
CA ang petition. under Rule 42.
So once the CA gives due course, what Exception: Rule on summary
will come next is the elevation of the procedure
records.
Katong mga kaso nga gagmay ra kayo ug
barog like the value is not more than 10k
A. Elevation of records: or ejectment cases, forcible entry and
unlawful detainer irregardless of the
Whenever the Court of Appeals amount of the unpaid rental or the value of
deems it necessary it will order the property. So if it is an ejectment case
elevation of records within 15 days that was appealed or elevated from the
from notice MTC to RTC and RTC now decided the
case affirming the MTC decision ejecting
the defendant, that decision is immediately
A. When appeal is deemed perfected: EXECUTORY; not stayed by appeal.
By the filing of the petition for review in the
CA AND payment of docket fees and other A. Submission for decision:
lawful fees and deposit cost of 500.
The Court may set case for oral
As to the other party: upon the lapse of the argument or ask parties to submit
period to file a petition for review memorandum.
A. Effect of perfection: It is very seldom for the CA to require the
1. Trial court loses jurisdiction lawyers to argue orally. Wa naman gud na
ma-uso run ang oral argument. Most of the
Exception: Residual jurisdiction time the court will just require you to
RESIDUAL JURISDICTION: Rule 41 vs submit memorandum – your written
Rule 41 argument. But CA can still ask for an oral
argument.
Rule 41 – residual jurisdiction means the
RTC can still act on certain matters even
if the appeal is already perfected for as Rule 43
long as the records of the case has not
yet been forwarded. Example: grant of APPEAL FROM CTA AND QUASI
compromise agreement, issue JUDICIAL AGENCIES TO THE
discretionary execution, allow party to COURT OF APPEALS
litigate as an indigent litigant. Now, decisions of CTA are NO longer
Rule 42 – residual jurisdiction will last not appealable to CA under RA 9282 because
until the submission of the records but CTA is equivalent to the CA. Same ra sila
from the time CA gives due course to ug rank although specialized lang kaayo
the petition. ang CTA. So the CTA decision is
appealable na directly to the SC. Mode of
When CA issues an order giving due appeal is certiorari under Rule 45.
course to your petition, RTC cannot
anymore exercise residual jurisdiction. So But other quasi-judicial agencies, their
even if the records has not yet been decision is appealable to CA. Mode of
forwarded (since records will be forwarded appeal is Rule 43.
only after the giving of due course) to the A. Scope:

This Rule applies to appeal from SC pursuant to R.A. 9282 amending R.A.
decisions of the following quasi- 1125
judicial bodies, in the exercise of its
quasi-judicial power: Mode of Appeal: PETITION FOR REVIEW
UNDER RULE 43
1. Civil Service Commission
Be sure to distinguish the 3 types of
2. Central Board Assessment Appeals petition for review
3. S e c u r i t i e s a n d E x c h a n g e • Petition for review under Rule 42
Commission • Petition for review under Rule 43
Appealable in the CA before but now no •
more because SEC does not have a quasi- Petition for review on certiorari
judicial power anymore. The power of the (Rule 45)
SEC to entertain/resolve intra-corporate
disputes is now transferred to RTC.
A. Cases not covered: (Sec. 2, Rule
So in RTC, we have a special court for that 43)
like here in Cebu, more than 20 branches
and there is 1 branch (Branch 11) 1. NLRC & DOLE decisions are not
designated as a corporate court and it will covered, but this has already been
handle all intra-corporate disputes that abandoned in the case of St.
belong to the SEC before. Martine Funeral Homes
1. Office of the President Before, the decision of the DOLE and
NLRC are appealable directly to SC. But
1. Land Registration Authority now, when the NLRC decides a case and if
2. Social Security Commission you’re not contented with its decision, you
can appeal now to the CA under Rule 65
3. Civil Aeronautics Board (petition for certiorari)
4. Bureau of Patents and Trademarks As regards the decision of the Workmen’s
Compensation, Rule 43 pa ang gamiton
5. N a t i o n a l E l e c t r i fi c a t i o n pero sa NLRC ra ang Rule 65.
Administration
1. Appeals from Ombudsman decision
6. Energy Regulatory Board is now appealable to the Court of
7. National Telecommunication Com. Appeals (Fabian vs. Desierto)
8. Dept. of Agrarian Reform Before decisions from the Ombudsman
were appealable directly to the SC but
9. Government Service Insurance NOT ANYMORE now. Kailangan naka mu-
System agi run sa CA because it is giving more job
10. E m p l o y e e s C o m p e n s a t i o n to SC if mu appeal directly sa ilaha.
Commission One of the provisions in the Consti is that
11. P h i l i p p i n e A t o m i c E n e r g y “Congress cannot enact a law to change
Commission the jurisdiction of the SC or add additional
job to the SC without its prior consent”. So
12. Board of Investment in the case of the Ombudsman, ang
gabuot ana ang balaod man, the
13. Construction Industry Arbitration Ombudsman Act and Congress baya
Com. mismo ang gahimo ana nga law unya the
14. Voluntary Arbitrators law says nga decision of the Ombudsman
go directly to SC ayaw na agi sa CA.
Note: Decisions of the Court of Tax
Appeals are now appealable directly to the Same in the case of BOI (Board of
Investment), sauna decision sa BOI is
appealable directly to SC but now no

more, muagi una ka sa CA and the mode (agency a quo refers to the quasi-
of appeal is Rule 43. judicial body whose decision is you
are questioning)
1. RTC decision acting as a corporate
court is appealable to the CA under 3. Payment of docket fee etc.
Rule 43 and not under Rule 41
(See: R.A. 8799 & A.M. 04-9-07-
SC). A. Contents of the petition:
When the SEC was divested of its quasi- 1. Full name of the parties;
judicial power under RA 8799, the power of
the Sec to hear intra-corporate cases was 2. Concise statement of the facts etc;
transferred to the RTC. So when the RTC 3. Copy of the original judgment;
now acting as a intra-corporate/corporate
court decides the case, the decision of the 4. Certification of non-forum shopping.
RTC is appealable to CA but NOT under
Rule 41, under RULE 43. Dili rule 41 since
it is an appeal in the exercise of original A. Effect of failure to comply with
jurisdiction of the RTC. requirements: DISMISSAL OF
PETTION
According to A.M. 04-9-07-SC, you use
rule 43 because dili mana original
jurisdiction sa RTC, it is a DELEGATED
jurisdiction na from the SEC to the RTC. A. Action on the petition: (same with
So when the RTC decides an intra- Rule 42)
corporate dispute, the RTC is acting like a 1. Require comment within 10
quasi-judicial body kay mura syag SEC so days;
iyang decision is appealable to CA under
Rule 43. 2. Dismiss the case outright based
on the 3 grounds:
A. Where to appeal: C.A. even on pure
question of law • Petition is patently without merit;
So just like Rule 42. Petition for review • Prosecuted manifestly for delay;
under Rule 43 can raise issue on pure •
question of law Questions raised therein are too
unsubstantial to require
A. Period to appeal: consideration.
1. 15 days from receipt of judgment
OR order denying motion for recon
or new trial (fresh period of 15 days A. Contents of comment: (7 copies)
applicable)
2. Only one motion for recon is 1. Point out inaccuracies in petition;
allowed
2. State reason why petition be
3. Motion for extension of time to file denied;
petition can be granted only for 15
days after payment of required fees 3. Must be filed within 10 days
After comment of the respondent is filed,
CA will now decide W/N to give due course
A. How appeal taken: (common ra ang to your petition. Just like in Rule 42.
procedures sa Rule 42 and 43)
A. Due Course:
1. Verified petition in 7 copies;
-Findings of fact of the court or
2. Proof of service to adverse party agency concerned, when
and the court or agency a quo

supported by substantial evidence be reviewed unless the Court of
shall be binding on the CA Appeals provides otherwise.
Factual findings of the RTC is always Opposite of Rule 42 because the appeal
reviewable by the CA. But in cases of STAYS the execution of the judgment after
appeal or petition for review of the decision the CA decides the case. In Rule 43, the
of the quasi-judicial bodies to CA, the CA decision of the quasi-judicial body will be
will respect the factual findings of the IMMEDIATELY EXECUTORY – your
quasi-judicial body because quasi-judicial appeal from the ruling of the quasi-judicial
bodies are presumed to be experts in their body will NOT STAY they award, judgment
respective fields. They know better than or final order UNLESS the CA provides
the justices of the CA. otherwise.
Example: CIAC (Construction Industry So when you file a petition for review
Arbitration Commission) – mga kaso nga under Ruler 43 ayaw jud kalimot pangayo
muabot diri kay kanang mag-away na ang og TRO or preliminary injunction because
contractor and building owner. Usually, in that decision you are questioning is
big contracts like you want a construction immediately executory and the only way to
company to build you building worth 100M stop it is for the CA to issue TRO or
nya usual contracts in this case contains a preliminary injunction.
provision on arbitration, standard na nila.
So in case if there is a disagreement
between the building owner and the A. Submission for decision:
contractors, the matter must first be
referred to an arbitrator which is the CIAC. The case is deemed submitted for decision
after the parties have submitted their
The CIAC is composed of engineers and respected memorandum. Usually, when
lawyers. There will be 3 kay collegial body CA finds due course to you petition, before
mana siya. Usually ang pillion nga judges that required ka to file your comment and
diri are engineers and at the same time after that the court will issue an order
lawyer because they know the law and giving due course to your petition that
engineering matters kay ila gud giawayan means dunay nakit-an ang court nga
is usually the non-compliance with the errors committed by the court a quo.
specification of the building so the CIAC Thereafter, before the CA will decide, CA
will decide on that. So factual findings of normally require both parties to submit
the CIAC will be respected as much as memorandum within a certain period.
possible by the CA not unless it is very
clear that the CIAC did not observe the
basic rules on appreciation of evidence. March 5, 2018
So for as long as the decision of the
findings of fact is supported by substantial
evidence, that will be respected by the As regards the appeal of the decision of
CA. the RTC, there was a distinction made if it
was a decision made by RTC in the
exercise of its original jurisdiction, the
A. Transmittal of records: Once the CA governing rule is Rule 41. If the decision of
gives due course to the petition, it the RTC is done in the exercise of its
will order the transmittal of records appellate jurisdiction then Rule 42. Now
of the case to the CA this Rule 44 complements Rule 41, this
should have been a continuation of rule 41
because this rule will apply only to those
A. Effect of appeal: appeals referred to in Rule 41. Because
appeals under Rule 42 is governed by
-It will not stay the award, Rule 42 itself they have their own rules of
judgment or final order sought to procedures. So what are the procedures
for ordinary appeal in cases?

Procedure in the Court of Appeals But under the new rules, you do not
change the caption, you just add
This covers not only Rule 44 but also Rule there Pedro Reyes defendant-
46 except Rule 45 because it refers to appellant. Juan Dela Cruz, plaintiff-
Supreme Court (certiorari). Procedures in appellee. So don’t change the title,
the Court of Appeals is found in Rules 44 the caption to avoid confusion.
then you jump to Rule 46 until 54. Rule 45
and Rule 55 refers to the Supreme Court.
Rule 56 refers to procedures in SC. In
Rule 44 we have the rule in ordinary A. Counsel and Guardian:
appealed cases. Whoever is your counsel on record or
Rule 44 your guardian ad litem in the RTC,
they will be presumed to be your
Ordinary Appealed Cases guardian in the CA not unless you
notify the CA of the change of
What are the two kinds of ordinary counsel. Ang uban dili man
appealed cases? There are only two: magpahibalo na nagchange na siyag
appeal by mere notice of appeal, appeal counsel, the notices will still be sent
by records on appeal. to your counsel on record. It is
necessary for you to notify the CA of
the change of counsel or termination
Let me go back to what we learned of guardianship.
previously, what is your mode of appeal in
an ordinary civil action?Mere notice of A. Order of transmittal of record:
appeal but when a case is a special Once your appeal is perfected and
proceeding or a civil action which involves we already discussed this on Rule 41,
multiple appeal, the mode of appeal is by when is your appeal perfected? Sec.
records on appeal. There is still a notice of 9 of Rule 41 provides that an appeal
appeal plus records on appeal. Where do is perfected from the moment the
you appeal the decision of the RTC in an appellant files his notice of appeal
ordinary civil action? Whether it is by mere and pay the docket fees. But the
notice of appeal or records on appeal you appeal is perfected only as to him not
file it with CA but you file your notice of yet as to the other party. Wala pa
appeal in the RTC. nafully perfected kay basin muappeal
sad tong naadaog. The moment the
prevailing party receives the decision,
A. Title of cases: he has also 15 days to appeal.
When you appeal the case decided in Although he won the case he is not
the RTC to CA, the title of the case contented with the decision, he can
will remain. Just add the word always appeal. If he won’t appeal
“appellant” and “appellee” but there then the appeal is perfected as to
will be no change in the billing. both parties.
When you file a case in the RTC While in the meantime while the
maguna jud ang name sa plaintiff. For period the appellee files an appeal to
example: Juan Dela Cruz, plaintiff vs. lapse, the records of the case will
****naa siyay gipakita sa slides sa remain with the RTC. ANd even after
format sa heading in an appeal**** the perfection of the appeal as to both
parties, the RTC still retains a certain
Before the new rules in Civpro were degree of jurisdiction for as long as
implemented, whoever appeals, his the records of the case has not yet
name will be on top so if Pedro lost been forwarded to CA (residual
the case and he will appeal, the jurisdiction). What can the RTC do
caption of the case will now be Pedro with that residual jurisdiction? RTC
Reyes vs. Juan Dela Cruz mabali na. can still act on compromise

agreements, grant discretionary appeal. Now remember that the record
execution, issue orders for the on appeal is subject to the approval of
protection and preservation of the the RTC. You just don’t file directly it in
rights of the parties. It can issue the CA, you first file it in the RTC and
orders for the party to litigate as an the RTC will approve of it. The record
indigent litigant. on appeal will be examined first by the
RTC, in fact the other party is given a
So when is the record of the case chance to appeal or comment on the
going to be forwarded to CA so that records on appeal within 5 days
the RTC will now lose jurisdiction? although pagtan.aw nila dili komplete
Under the rules, the clerk of court of ang records on appeal, they can always
the RTC is mandated by law to tell the RTC na dili complete ang
immediately forward the records of records. WHat you can file if your
the case to the CA within 30 days appeal is by records on appeal, submit
from the time the appeal is perfected it to RTC, have it approved and once
as to both parties. approved, you wait for the CA to order
A. Docketing of cases: you to file now the records on appeal.
Once you receive the order of CA, you
• Upon receipt of the original records. now file with CA the approved record
Clerk of court of CA must notify the on appeal. You must be careful that the
parties. Approved records on appeal approved record on appeal you
to be filed within 10 days. submitted to CA must not have any
Once it forwards the records of the alterations because that would be a
case to the CA, what will the CA do? ground for dismissal for the records of
Clerk of court of CA will immediately appeal since they had already been
examine the records and determine approved by the RTC, no changes or
whether it is complete or not. alterations should be done there.
When the records of appeal are already
A. C o m p l e t i o n o f r e c o r d a n d with CA and the clerk of court examines
dispensing with complete records the records, if the records cannot be
of the case: readily be completed for some
superable reasons then the counsels of
If incomplete, the clerk of court will both parties may agree to dispense
immediately notify the clerk of court of with that record if they feel that the
RTC and CA will order the latter to appellate court can decide even without
complete the records of the case. If that record. As I have mentioned
complete, then the clerk of court of CA before, one of the most common
will notify both parties that all the reasons for the delay of resolution of
records are now with the CA and they appeal cases is that the record is not
are now required to file the appellant’s complete yet. Non completion of
brief. records is mostly caused by the lack of
Transcript of Stenographic Notes. If
completion of records cannot be done,
A. Appellant’s brief, when to file: they may dispense with that particular
The appellant is given 45 days from lacking records of the case.
receipt of the notice of CA. The filing of Now the appellant is now required to
the appellant’s brief is required only in file his appellant’s brief within 45 days,
the ordinary appeal. In appeal by can you ask for extension? YES you
records on appeal, the appellant will can but you have to pay the docket and
have to file the approved record of other lawful fees.
appeal not in 45 days but in 10 days. The appellant’s brief is very lenient in
Within 10 days of receipt of the notice period to file. Even 90 days.
from the CA, the appellant in an appeal When you file your appellant’s brief you
by records on appeal will have to have to furnish a copy of it to the other
submit to CA the approved record on party. BTW how many copies of your

brief must be file with the CA? 7 to CA, A. Memorandum instead of brief for
2 to your opposing party , pero if certiorari, prohibition and
daghan kag kontra and represented by mandamus to be filed in 30 days
different lawyers, then just give them 1
each. 1 for every lawyer. If he These briefs are what you filed on
represents 3 appellees then usa ra jd apppealed cases, If a case is filed in
na. If one party si represented by the CA like prohibition,quo warranto,
several lawyers, that is very possible if habeas corpus or mandamus, what you
rich ang client, don’t give a copy to will file instead is a memorandum within
each lawyers, just give one copy to one 30 days in support of your probition
of them (sa lead counsel). etc.
A. Appellee’s brief, when to file:
Once the appellee receives your brief A. Contents of appellant’s brief:

he is also given 45 days within which to
file the appellee’s brief. When he
prepares his brief he must also give a 1. Subject index
copy to the appellant. But as I have 2. Assignment of errors
already explained, before you file your
pleading in court, you must furnish a You have to point out to the CA the
copy to the opposing party kay errors committed by the RTC which
kinahanglan man na ug proof of service you want the CA to reverse. So your
(proof that you’ve served a copy to your appellant’s brief will start with the
opponent before serving it in court). assignment of errors. First assigned
The first thing that a clerk of court error for example: The court a quo
should do when he receives a pleading erred in deciding that the deed of
is to examine the last page, nanotify absolute sale is valid.
ang kontra? The new rules now is very 1. Statement of the case;
strict, to serve a pleading to another
party it mus be through personal Consists only of few sentences or a
service if you cannot serve it personally brief statement of what the case is
for justifiable reasons, then it can be about. Normally one paragraph.
done through mailing but there must be
an explanation why there was no 1. Statement of the facts;
personal service. In fact in the appellate That’s when you start telling the story
court, this is a ground for denial of the and then cite the violations
appeal. committed.
1. Statement of the issues;
1. Arguments
A. Appellant’s reply brief:
Most important part – the discussion
Upon receipt of the appellee’s brief, the of arguments. Now your arguments
appellant is also given the time to reply and the discussion should be based
we call that the appellant’s reply brief o n t h e a s s i g n e d e r r o r. Yo u r
which he must file within 20 days. Are arguments of course will now be
these briefs mandatory? supported by laws or jurisprudence.
In the discussion, it should be with a
If you don’t file your appellant’s brief subheading which is the assigned
within 45 days then that would be a errors.
cause for dismissal of your appeal.
Now as regards the appellee’s brief, 1. Relief
you may or may not file. With more What you are asking for the court to
reason to the reply brief, that is only do. Mao na na ang “WHEREFORE”
optional. part.

make a manifestation that you adopt the
statement of facts that was presented by
the appellant in his brief. But normally,
N.B. Copy of the judgment appealed from gihimo jud nas appellant in favor of him so
must be made part of the appendix file nalag counter-statement of facts. It is
up to the court who to believe)
Now it is important that when you are
making an appeal, you attach the 1. Arguments
decision of the court to which you are (The arguments in the appellee’s brief
questioning and remember that the should be patterned to or based on the
decision attached must be the arguments on the appellant’s brief. In the
duplicate original copy or at least a appellant’s brief, it is based on the
certified true copy of the decision subheading ex: first assigned error: then
because this can be the cause for the discussion then second assigned error:
dismissal of the appeal if you did not then discussion. The job of the appellant is
attach. to support the assigned error supported
Of the 7 copies na ifile nimo sa CA, with jurisprudence and law. If you are the
naa kay usa na tatakan na original so appellee, your argument should be also to
that it is in that copy of your rebut the assigned error presented. Ex:
appellant’s brief that you will attach refutation of the first assigned error: the
the duplicate copy of the judgment. discussion)
And all other attachments there shall
be certified true copy. Mao na na
copy ang una tanawn. • Appellee who has not appealed,
cannot make assignment of errors in
General rule: Only errors specifically his brief
assigned and properly argued in the brief
shall be considered by the court. (Now, in your appellee’s brief, you cannot
discuss errors of the lower court. Why?
Exceptions: Because if you think that the lower court
a. Errors affecting jurisdiction committed error, you should have
appealed also. If you did not appeal, that
-even if not discussed in your brief means you are contended with that
can always be taken into decision and did not find anything wrong. If
consideration by the CA. you are the winner, it can be that you are
a. Plain and clerical errors not contented with the decision so you
make a partial appeal. You appeal only on
-can always be corrected. that portion that you do not agree. If you
do not appeal, you cannot discuss that in
a. Unassigned errors closely related to your brief)
or dependent upon an assigned
error and properly argued in the brief
What is the main function of the
appellee’s brief? It is to support the
decision because if you are the appellee,
A. Contents of appellee’s brief: kay ikaw may ni daog, your job is to
support the decision of the lower court that
1. Subject index there is nothing with that decision and it is
2. Counter- statement of facts correct.
(if you do not agree with the way the

statement of facts was presented in the A. Questions that may be raised on
appellant’s brief, then you make your own appeal:
counterstatement of facts. But if you think
that it is enough or correct, then you just

• Any question of law or fact that has (but for the appellant, it is important for him
been raised in the court below. to know whether the question that he
raised is one of law or one of fact. How will
(In the CA, you can raise questions of fact you know? If the question involves the
or law or mixed but not pure questions of calibration of the presentation of evidence
law. If pure question of law na gane, you presented by both parties in order to ferret
can elevate that from the RTC to the SC out the truth – then that is a question of
and the mode of appeal will no longer be fact. In litigation, it is very common that the
an ordinary appeal. It will be by way of parties will defer in their version of the
appeal by certiorari.) case. That is precisely why there is a court
Q: ang appellant’s brief dean is only that will determine the truth. And how will
available if the appeal is by means of ***? the court know which one is telling the
truth? He will conduct a hearing and
Dean: Yes require presentation of evidence. How will
Follow up Q: how will the appellant present the court arrive? It will try to calibrate the
his arguments if the appeal is by records evidences presented by the parties to
on appeal? know which one is believable or kinsay
gaingon sa tinuod. That is a question of
Dean: you will already incorporate that in fact.
your records on appeal, your arguments.
Now, when the facts of the case has been

RULE 45 determined or settled, the next step now is
Appeal by Certiorari to the Supreme to know what law shall be applied in these
Court set of facts. How do we interpret the law
that should be applied in these facts? That
(This is the only mode of appeal to the SC. is now questions of law. And if the court
When you appeal the decision to the SC, it committed an error in applying the law that
shall always be by Rule 45) is a question of law now. That is what you
can raise to the SC. But if error in
A. Scope: (Decisions that you can appreciating the evidence of the party?
appeal in the SC) That is a question of fact that cannot be
elevated to the SC.
• D e c i s i o n s o f C A , C TA ,
Sandiganbayan, and RTC
(Decision of COMELEC, COA [wa nay As to the question if the court committed
labot CSC]…[wa tiwasa ni dean] and the errors in appreciating the evidences
only mode of appeal is petition for review presented to determine the true facts of
by certiorari. Now, in your appeal to the the case, the SC will not delve in that. But
SC, the general rule is you cannot raise being also the SC, cla rasay ga make ug
questions of fact in the SC because SC exceptions:
is not a trier of facts but only questions of General Rule: only question of law may
law) be raised to the Supreme Court.
• Only questions of law may be raised Exceptions: (In the case of Pepsi Cola vs.
except Writs of Amparo, Habeas Ramos, SC enumerated so many
Corpus, and Kalikasan exceptions nga nawa ang essence sa GR)
• Distinguish question of law from 1. When conclusion is a finding
question of facts grounded entirely on speculations,
• Whether it is a question of fact or law surmises or conjectures;
is to be determined by the appellate 2. When inference made is manifestly
court mistaken, absurd, or impossible;

3. When there is grave abuse of Appeal stays Does not stay
discretion in the appreciation of
judgment, j u d g m e n t
facts;
award or order unless a TRO is
4. When the judgment is based on appealed from; issued by the
misapprehension of facts; (here, out of court (it will
5. When the findings of fact of the court respect to the not prevent
of appeals are conflicting; SC, nobody will execution of
move, no j u d g m e n t
6. When the Court of Appeals went
execution. Wait unless if there
beyond the issues of the case and
the same is contrary to the for what the SC is TRO. So,
admissions of both parties; will say) never forget to
ask for TRO
7. When the CA manifestly overlooked when you file
certain relevant facts not disputed by this because
the parties, which if considered
would justify a different conclusion; without TRO,
the court can
8. When findings of fact of CA are go on with
contrary to the trial’s court findings execution.
Court can you
around 10 days
(All of these exceptions only mean 1 thing, to secure a
the SC will still entertain factual issues.
Reason: kay they are the court of last TRO.)
resort kuno. But honestly, they are also the Petitioner and Aggrieved party
reason why nganong daghan ug backlogs. respondent are against the
They should not entertain factual issues.)
the original lower court or
parties. Lower quasi- judicial
(Certiorari under Rule 45 is very much court judge agency and the
different in the certiorari under Rule 65) not to be prevailing
impleaded party; (why
Rule 45 Rule 65 implead here?
Because you
Q u e s t i o n o f Grave abuse of are accusing
law discretion them of GAOD)
Mode of Original action Prior filing of a Filing of a
appeal; Review and is directed motion from motion for
judgments on o n reconsideratio reconsideratio
the merit interlocutory n not required n is a condition
order precedent
Must be within Must be filed Appellate court Higher court
reglementary not later than is in the exercises its
period to 60 days from exercise of its o r i g i n a l
appeal (15 notice of appellate jurisdiction
days); judgment jurisdiction and power of
and power of control and
review supervision
over lower
court.

(usual 3 grounds for the outright dismissal

of your petition for review:
A. Time to file petition:
1. Within 15 days from receipt of the
judgment appealed from or from A. Additional Grounds
denial of motion for reconsideration
or new trial 1. Appeal is without merit
(15 days is too short that is why you 2. Prosecuted manifestly for delay
are allowed an extension for only 30 3. Question is to unsubstantial
days but before filing the extension of
time to file petition, you need to pay
first the docket fee and other lawful A. Review is discretionary- Reasons
fees. Because prior filing of docket from the Court to grant the
fee is a condition precedent) petition: (appeal not a matter of
1. Motion for reconsideration may be right but judicial discretion)
granted only for 30 days. 1. When the court a quo has decided a
question of substance, not therefore
determined by the Supreme Court,
A. Payment of docket: or has decided it in a way not in
1. With the Supreme Court and with accord with law;
proof of service on the other party 2. When the court a quo has so far
and the court. departed from the accepted and
usual course of judicial proceeding
as to call for an exercise of the
A. Contents of petition: power of supervision
1. Full name of the parties;
2. Indicate the material dates; (Now there are times that the SC will
require you to submit a pleading not
3. Set forth concisely a statement of anymore required by the rules:
the matters involved, and the
arguments in support of the petition; Pleadings and other documents or
papers that the Supreme Court may
4. Accompanied by original or CTC of require- Sanction: petition may be
the judgment; (ang uban puro ra denied. Always follow what the SC say
photocopy naa patay mo ana) maskin pag dio na mandatory.
5. Certification of non-forum shopping.
(These must be strictly complied ow, A. Due course and elevation of
your petition will be dismissed.) records:
A. Grounds for dismissal:
1. F a i l u r e t o c o m p l y w i t h t h e A. Rule 45 is applicable to both civil
requirement regarding payment of and criminal cases except in
docket and other lawful fees, and criminal cases where the penalty
deposit for cost; imposed is death, reclusion
2. Failure to show proof of service; perpetua or life imprisonment.
3. Failure to observe contents of
petition and the documents that must
accompany it. CIVIL PROCEDURE PPT MARCH 6, 2018

 
Certiorari, Prohibition and
Let me recapitulate what we have Mandamus are governed by
discussed last meeting in Rule 45.  Rule 65. Quo Warranto is
governed by Rule 66. Annulment
If you recall, Rule 45 is about Appeal by of Judgment of the RTC is
Certiorari to the SC. Appeal by Certiorari is governed by Rule 47.
also popularly known as Petition for
Review by Certiorari. This is the only In original cases filed in the CA, the
mode of appeal to the SC and the one who file the case shall be
decisions that can be raised to the SC by called petitioner and the other/
way of Certiorari under Rule 45 are those opposing party is called the
of the CA, Sandiganbayan, CTA, RTC (if it respondent. That will be the title
is on pure question of law), and of the two of the case.
other Constitutional Commissions (CoA
and Comelec). C. Contents of petition
The original action in the CA are always
In Petition for Certiorari or Petition for called petitions. Petition for certiorari,
Review on Certiorari you only raise petition for prohibition, petition for
questions of law but as we have already mandamus, petition for quo warranto, or
discussed, there were several exceptions petition for annulment of judgment of the
made by the SC itself. There were several RTC.
instances where the SC may entertain
factual questions instead of questions of The content of your petition in every case
law. filed in the CA, there should be 7 copies.
  You will have to prepare 7 copies. Your
petition shall contain the full names,
Petitions for Review on Certiorari should complete address of the petitioner and the
be filed within a period of 15 days from respondent, statement of the matters
receipt of the judgment that is adverse to involved, grounds relied upon in support of
you. Or if there is a motion for your petition, just like a petition for review
reconsideration, the 15 day period will start under Rule 42 and Rule 43. The
to run from receipt of the order denying requirements there, the contents for
your motion for reconsideration or motion petition for review in Rule 42 and 43 are
for new trial. the same as that of Rule 46.

RULE 46 When you file your petition, you have to
ORIGINAL CASES IN THE COURT OF pay the docket fees and other lawful fees.
APPEALS You also have to deposit the amount of P
500.00 for cost. Where will you pay the
A. TITLE OF THE CASE docket fee? With the CA.
B. ORIGINAL ACTIONS
These are actions that you can file directly There should be, because these are
with the CA without passing through the considered original actions, so your
lower court (RTC). You can file these petition shall also contain a certification of
cases in the CA as an original action not non-forum shopping.
as an appeal case:   
1. CERTIORARI UNDER RULE D. How jurisdiction over the person of

65 respondent acquired:
2. PROHIBITION In an ordinary civil action, the court
3. MANDAMUS acquires jurisdiction over the person of the
4. QUO WARRANTO (RULE 66) defendant by the service of summons. As
*The other one is ANNULMENT OF to the plaintiff the court acquires
JUDGMENT OF THE RTC jurisdiction from the time the plaintiff filed

his case in court. But as to the defendant,  
it is upon service of summons on the
defendant. What are the grounds for the
outright dismissal of your
In Rule 46, these are special original petition? The same grounds
actions in the CA, there is no summons mentioned in Rule 42 and 43.
served here. The court will acquire These are common grounds:
jurisdiction over the person of the 1. That the petition is patently
responded the moment the respondent without merit
receives the court's initial action. 2. That it was prosecuted manifestly
for delay
What is the court's initial action? When you 3. That the questions raised therein
file your petition, any of these petitions are too unsubstantial to warrant
here (certiorari, prohibition, mandamus, consideration.
quo warranto, annulment of judgment), you
file it with the CA, the CA may outrightly F. Determination of factual issues
dismiss your petition or require the In the event there is a need to conduct a
respondent to comment within 10 days. hearing to determine factual issues the CA
That is the court's initial action.' may conduct the hearing. The CA has a
court room, have you ever visited the CA in
The moment the respondent receives the Cebu in Banawa? They have very nice
order of the court requiring him to court room because they also conduct
comment within 10 days, that is also the hearings especially in original actions like
time the court acquires jurisdiction over his those falling under Rule 46. Most of the
person or over the person of the cases that reach the CA are appealed
defendant. So upon receipt of the court's cases, if these are appealed cases there is
initial action (either dismissing the case for no need for a hearing, they just review the
lack of merit or requiring the respondent to records from the RTC.  
file his comment), not unless the
respondent has voluntarily submitted But in original actions like those falling
himself to the jurisdiction of the court. under Rule 46 (certiorari, prohibition,
That's another instance also where the CA mandamus, quo warranto, annulment of
will acquire jurisdiction over the person of judgment of the RTC), the CA may conduct
the respondent. a hearing only if there is a need to
determine factual issues. If they will
What about the petitioner? When does the conduct a hearing for the purpose of
CA acquire jurisdiction of the petitioner? determining the factual issues, they may
From the moment the petitioner filed his assigned the job to one justice only
petition in the CA and pay the docket fees because a case is to be heard by the 3
and other lawful fees. justices of a division. We already
discussed how the CA will decide. Your
So upon receipt of your petition, the case will be assigned to one division, there
respondent should not file his answer right are 3 justices in that division and when
away. The respondent should not be they decide it should be by unanimous
overexcited to answer. He should wait for vote. If they cannot agree unanimously,
the action of the CA. And what will be the then there will be a special committee or a
action of the CA? Dismiss the case special division created composed of 5
outright or require respondent within 10 and here majority rules, 3 out of 5.
days from receipt of notice.
But for purposes of determining factual
E. Action by the court: issues, they may assign it only to one
1. Dismiss the case outright justice to conduct the hearing to listen to
2. Require respondent to the evidence represented by the parties. In
comment within 10 days from fact, they may even delegate the reception
receipt of notice of evidence to an RTC judge especially

before when there was yet no CA in the CA may impose disciplinary action on
Visayas and Mindanao. The CA was the respondent; or the CA may impose a
holding office only in Manila. They sanction especially if there is really a need
normally delegate the reception of for answer in order for the CA to be able to
evidence to an RTC judge in the province decide the case properly.
like if the parties are residing in the
province, it would be very expensive for If there is a need for the respondent to
them to come to Manila for a hearing answer and despite the order of the court,
because a hearing cannot be terminated in the respondent refuses to file an answer
just one setting. So what the CA will do is and there is no justification for his failure to
to delegate the conduct of the hearing to file his answer, the CA might cite him in
an RTC judge in that province, and that indirect contempt. You can go to jail for
RTC judge will make a report to the CA. that because that is disobedience to a
That is how they do it if there is a need to lawful order of the court. That will
conduct a hearing to determine factual constitute indirect contempt. There is a
issues. sanction if you did not answer.
As I have mentioned, in original actions In an ordinary civil action, if you don't

before the CA, the respondent does not answer there is no disciplinary action,
h a v e t o a n s w e r r i g h t a w a y. T h e there is no sanction. The only effect is that
respondent will have to wait for the order you will declared in default. But you cannot
of the CA to file his comment/answer. be sent to jail for that. That is the
Once he is ordered by the court to file his difference between an ordinary civil action
comment/answer, he must have to do it and a special civil action governed by Rule
within 10 days. What happens if the 46.
respondent fails to file answer? What will  
be the effect?
RULE 47
G. Effect of failure to file comment: ANNULMENT OF JUDGMENT OF RTC 
1. Court may decide on the basis
of the records; This is also one of the original actions. In
2. Without prejudice to the fact, this is not only an original action; this
imposition of disciplinary action is an original and exclusive jurisdiction of
on the disobeying party. the CA. This one is the only case that falls
under the original and exclusive jurisdiction
Can the respondent be declared in of the CA. Because the other actions, they
default? The answer is no. This is different fall under the original of the CA but they
from an ordinary civil action. In an ordinary can also be filed in the RTC and the SC.
civil action, if the defendant fails to answer That is why they are original but they are
within the reglementary period given, the also concurrent, they fall under the
defendant can be declared in default. But concurrent jurisdiction of the RTC, CA, and
here in Rule 46, these are special civil SC. 
actions, these are not ordinary civil
actions, and there is no default here. So if But kaning Rule 47, exclusive na, you can
the respondent will not answer despite the only file it in the CA, and that is the action
order of the court, the CA may proceed to for the annulment of the judgment of the
decide on the basis of the pleadings filed RTC.
by the petitioner. Chances are, the petition  
will be granted because there is
opposition. But if the petition is really very
weak then the CA can still dismiss the
petition for lack of merit.   A. Coverage
Although the respondent cannot be When can you file this petition for
declared in default, there is a danger that annulment of judgment of the RTC?

(below)  a motion for new trial because the decision
has already become final. The 15 day
B. The court of appeals may annul the period to appeal has already expired. What
judgment of the RTC if the remedies will be your remedy? There is already a
of new trial, appeal, petition for relief from final and executory judgment. Your next
judgment or other remedies are no longer remedy will be petition for relief from
available through the fault of the judgment.
petitioner.  
For a better understanding of this remedy, 3. Petition for relief from judgment. This is
let me bring you back to the first remedy different from petition for relief from denial
which is of appeal. Petition for relief from
judgment, what is the ground? FAME.
1. Motion to lift the order of default. What is Basta naay fraud. When can you avail that
the ground to lift the order of default? Di ba petition for relief from judgment? Within 60
FAME? And the number one word there is days from knowledge of the decision but
fraud. If you were not able to answer the not beyond 6 months from the entry of the
complaint, you will be declared in default. judgment or finality of the judgment.
But if the reason why you were not able to Suppose, the 6 month period from the
answer is because there was fraud, finality of the judgment has already
accident, mistake, or excusable expired, still you did not know about the
negligence, there was fraud committed case. Because of fraud. That is possible.
such that you were not able to answer It's only now you learned about it. What
within the period of 15 days, you may ask will be your remedy? This is now your last
the court to set aside or lift the order of recourse (Rule 47 Annulment of Judgment
default and allow you to file your answer. of the RTC)
That's the first remedy when there is fraud.  
But here, you were not able to answer.
Once the declaration of default has already 4. Annulment of judgment of the RTC. So
become final (there is already a judgment a person who lost the case because of
by default), and that was the time you fraud, he was not able to answer, was not
learned about the case but there is already able to participate in the case, has actually
a judgment, but the judgment has not yet 4 remedies under the rules. (Petition to lift
become final. You have 15 days to appeal the order of default, motion for new trial,
the judgment. You received the judgment petition for relief from judgment, and
and you were surprised "Oh naa diay kaso annulment of judgment). You can avail of
nga gi file sa ako?", you did not know this (Rule 47) if the 6 month period from
about the case. Can you still ask for the the finality of the judgment has already
lifting of default? No more, because there's expired, for which reason you could no
already a judgment by default, your longer avail of petition for relief from
remedy will be new trial. judgment.
 
That is why when you file a petition for
2. Motion for new trial. You file a motion for annulment of judgment, it is required that
new trial. What is the ground? FAME also. you state in your petition that you were not
Again naay fraud. Because of fraud. Not avail of the remedies of new trial, appeal,
only that you were not able to answer, you petition for relief from judgment or other
were not able to participate in the trial remedies through no fault of your own.
which resulted to the decision adverse to Because if the remedy of new trial is
you. You file a motion for new trial, and available to you but you did not avail of
when can you file that? Within the that, you cannot anymore use annulment
reglementary period to appeal. From the of judgment.
time you received the decision but before
the lapse of the 15 day period to appeal in Like for example, after the decision was
your trial. Suppose you could no longer file rendered by the court, let us assume that

you did not know about that case, so you party that prevented you from
were not able to answer, you were participating in the trial of the case.
declared in default. And then because you So you were not able to answer, not
did not know, the court rendered the able to participate in the trial, that
judgment by default. It was only after that means you were not able to present
that you learned about the case. So what your evidence, because of the fraud
will be your remedy? New trial unta, but committed. The fraud prevents you
you did not avail of new trial. So the from knowing about the case, and
decision becomes final. After more than 6 so you were not able to participate.
months, you decide to file a petition for Because if you were able to
annulment of judgment on the ground of participate during the trial but there
fraud. Will the court grant your petition? were fraud committed by the
No, because are already aware of that opposing party, that kind of fraud is
decision after the judgment. You could only intrinsic fraud; and that does
have availed the remedy of new trial. If you not entitle you to file these remedies
learned about the decision after the I mentioned.
judgment becomes final, but the 6 month
period from the finality of judgment has not Kung dunay intrinsic fraud, your
yet expired then you could have availed of remedy is an ordinary appeal. Kay
petition for relief from judgment. If you did naka participate man ka sa trial
not avail of that, you cannot anymore avail unya napilde lang gihapon ka.
of Rule 47. Napilde ka tungod sa fraud
committed by the opposing party.
So you have to state that you were not Your remedy is appeal to the higher
able to avail of these prior remedies court. And in your appeal, you point
available to you through no fault of your out this fraud committed that
own. Through no fault of your own means mislead the lower court. The
that because you did not know about it, it's remedy is appeal for intrinsic fraud.
not your fault. You were not able to file new Extrinsic fraud, the remedy will be
trial or petition for relief because you did new trial, petition for relief from
not know about the case. Had you known it judgment and the last one is
you could have availed of it. annulment of judgment.
 
C. Grounds for annulment: (There are
only 2 grounds) 2. Lack of jurisdiction. This means
  that you have not actually received
the summons. So you did not know
1. Extrinsic fraud about the case because you did not
2. Lack of jurisdiction receive the summons. And because
*lack of due process you did not receive the summons,
the court has not acquired
In the first three remedies (petition jurisdiction over your person. So
to lift the order of default, new trial, that's another ground for annulment
petition for relief from judgment), of judgment.
ang grounds is FAME. But in your
last remedy which is annulment of The leading case on this is the case
judgment, the ground is only fraud of Ancheta vs Ancheta. This is a
only, and it is extrinsic fraud. Wala case in Persons and Family
nay apil ang accident, mistake, and Relations. This is actually a case of
excusable negligence. You take two old couple, they were already in
note of that. their twilight years and they decided
  to part ways. Because the husband
is a philandering husband, chic boy
1. Extrinsic fraud. The kind of fraud kaayo. They decided to part ways.
or deceit committed by the other But when they parted ways, at first it

was just a de facto separation declare defendant in default in a
(nagbuwag lang but no formal legal case for declaration of nullity. Unya
separation or annulment of kay bright sad kaayo ang huwis, gi
marriage) kay wa naka agwanta declare gyud na in default. This is
ang asawa, sige rag pambabay ang really a comedy of errors. So gi
bana. They are actually very rich. declare in default sa korte. So after
So they decided, amicably settled the court declared the defendant
their properties, when they parted wife in default, the hearing
ways the husband said "Imo tong proceeded, and the court rendered
beach resort sa Batangas, imo ning judgment granting the petition.
balay sa Manila, but other
properties sa akoa". So ang asawa It was only more than a year after
because didto man sa iya nahatag the decision, that the wife learned
sa iya ang beach resort, decided to about the case. So she cannot
stay in the beach resort in the anymore appeal kay ang decision
province. But when they were nahimo nang final, the 6 month
already living separately, the period to file petition for relief from
husband kay philandering lagi na judgment, dili na man ma file sad.
husband, decided to marry one of So the wife went to a lawyer, "What
his kabit, unya di man niya should I do with this? Gi annul
maminyoan kay wa pa man ma naman diya sa akong bright na
dissolve iyang marriage, so he bana among marriage. Wa man ko
decided to file a case for declaration kaibaw ani." So the lawyer said,
of nullity of marriage on the ground "We have our last recourse. Rule
of psychological incapacity of the 47, annulment of the judgment of
wife. The husband, when he filed the RTC."
the case, he does not want the wife
to know about it, because the wife And so they filed the case for
will surely oppose. Liman ka iya annulment of judgment of the RTC,
naman nuong wife maoy ang ground na gigamit kay extrinsic
psychologically incapacitated. So fraud kay nakig connive man ang
when he filed the case, he put the bana sa sheriff and anak, plus lack
wrong address for his wife. Unya of jurisdiction. Duha ka ground, kay
ang nidawat sa summons, ang ila lack of jurisdiction, wa man kadawat
pa jung anak nga nakig connive sa sa summons ang asawa, so duna
papa. Because the children are say lack of jurisdiction aside from
already all of age. Dunay usa ka extrinsic fraud.
anak nga nakig connive sa papa,
"Aw sige lang pa ako lang dawat sa Now the petition however, that was
summons ako lang ni tagoan". So to prepared by the lawyer of the wife,
make the long story short, wala juy failed to allege this very important
kalibutan ang asawa na there was requirement. Wa niya mabutang sa
already a case for declaration of iyang petition that the petitioner was
nullity of marriage on the ground of not able to file a motion for new trial,
psychological incapacity of the wife. relief from judgment or other
remedies through no fault of her
The wife was not able to answer the own. And so the lawyer of the
complaint because she did not husband immediately pointed this
receive man the summons. She did out, "That's a fatal defect." If your
not know about the case. Unya ang petition has not contained that,
bright kaayo nga abogado sa bana, that's a very serious defect, that
wa man mitubag ang asawa, ni file could be a ground for the dismissal
pa jud ug motion to declare of your petition, which the CA
defendant in default. And you know, affirmed. The CA actually dismissed
that is prohibited, di ba you cannot the annulment of the judgment of

the RTC kay wa man naka allege 1. Extrinsic fraud - 4 years from
aning important requirement. So the discovery of the fraud
lawyer of the wife went to the SC by 2. Lack of jurisdiction - before it
way of certiorari under Rule 65. is barred by laches or estoppel
*You remember the case of Tijam v
This time, the SC said, the CA is Sibonghanoy? That's the leading
correct in the sense that there was case which says that before it is
no allegation in the petition for the barred by the principle of
annulment of the decision. Nowhere estoppel by laches.
in the petition is there a statement If your ground is lack of jurisdiction,
that the petitioner was not able to there is no specific period, it did
avail the remedy of new trial, relief not say 4 years or 5 years, for as
from judgment, or appeal through long as you are not barred by
no fault of her own. That is indeed a the principle of laches or
fatal defect according to the SC. estoppel. Kana maoy delikado
because it is the court who will
But that is true only if the ground is determine whether the filing of
extrinsic fraud. There's another your case is already too
ground according to the SC which is delayed. So mu ingon ang korte,
lack of jurisdiction, and that is not ah igo na ka sa laches, dugay
required when the ground is lack of na kaayo.
jurisdiction. That pre-condition, that But definitely, 2-4 years is still
statement that required allegation is not within the definition of
good only if the ground used is estoppel by laches.
extrinsic fraud. So when there is
also another ground of lack of A. Contents
jurisdiction, there is no need to state 1. Verified petition in 7 copies;
that. 2. A f fi d a v i t s o f w i t n e s s e s o r
documents;
N.B. – if the ground is extrinsic fraud, the 3. C e r t i fi c a t i o n o f n o n - f o r u m
petitioner must allege that he failed to avail shopping
of new trial, appeal, or petition for relief Normally in the CA, there are no hearings,
through no fault of his own. However, if the only if they like. If you file a petition and
ground of lack of jurisdiction is also you want to support your petition with
included, then there is no need to allege testimonial evidence you have to get the
said condition precedent. (Ancheta v affidavit of your witnesses, attach the
Ancheta, GR No. 145370, March 4, affidavit, it will serve as testimonial
2004). evidence. Pero if ganahn maminaw ang
mga justices sa testimonial evidence, naa
So these are the two grounds. But some rana nila, they may call for a hearing. If
authors would like to add lack of due there are allegations in your petition that
process. But actually this is still similar to pertains within the knowledge of a cetain
lack of jurisdiction in the sense that you person, kuhae ug affidavit of persona(?)
have not actually received the complaint or and then you attach it because your
summons so you are deprived of due petition must be supported by affidavit.
process. That would result to lack of Once you file your petition to annul the
jurisdiction. judgment of the rtc, whether on the ground
of extrinsic fraud or lack of jurisdiction the
So there are two grounds for annulment: court will not require the other party to
extrinsic fraud and lack of jurisdiction. answer right away because just like in
When can you file your petition for other petitions in rule 46 the court may
annulment of judgment? dismiss your petition right away, so outright
dismissal if the court feels your petition is
D. When to file action unmeritorious. If not then the court will give

due course, summons will be served on case was filed up to the time the CA
the defendant. renders judgment annulling the of the rtc
TAKE NOTE: Of the original actions that that period is considered suspended for
you filed in the CA, only this annulment of purposes fo prescriptive period.
judgment requires summons, ang kadtong The case can be refiled as if the
upat walai summon (certiorari, mandamus, prescriptive period will not run,that period
quo warranto, prohibition). When is there will not be counted against the plaintiff.
going to be summons? Only after the court EXCEPT when it is the fault of the plaintiff
gives due course to your petition. So dili na that the defendant was deprived of his day
mupagawas ug summons ang CA, in court. So if the extrinsic fraud is
because the CA might dismiss outright for attributable to the plaintiff in the original
being patently without merit, prosecuted action, there will be no suspension of the
manifestly for delay, or the questions prescriptive period. So the plaintiff cannot
raised therein are unsubstantial to anymore refile the case if the period has
warrant… if dili idismiss then the CA will already prescribed because the period is
give due course, when the court of appeals not suspended.
will give due course to your petition, that
means naa nai nakit an merit. If it will give There are different kinds of fraud. The
due course. That is the time it will issue fraud could have been committed by the
summons, served on the defendant, that is plaintiff himself, he connived, or it can be
the time defendant will answer, the committed by somebody else, but it still
procedure is now similar to an ordinary deprived the defendant of his day in court.
civil action. So if the fraud is not committed by plaintiff
B. Action by the court himself, but somebody else but it still
1. Dismiss outrightly effectively deprived the defendant of his
2. Give due course and summons right to answer and participate then there
served on the defendant will be suspension of prescriptive period
C. Procedure: same as ordinary civil kay it is not the fault of plaintiff.
action
D. Effect: it depends on the ground: But if the fraud is committed by the plaintiff
himself, he connived, to deprive the
What will be the effect if the court grants defendant of his day in court, then there
the petition to annul the judgment of rtc? will be no suspension of the running of the
Then the judgment of the rtc will be set prescriptive period.
aside.
Exception: if the extrinsic fraud is
1. Lack of jurisdiction- judgment is attributable to the plaintiff in the original
set aside without prejudice to action
refiling. Set aside, without
prejudice to refiling. Plaintiff can What will be the relief?
refile the case if prescriptive F. Relief:
period has not elapsed. ▪ Judgment may include award
2. Extrinsic fraud – trial de novo, as of damages, attorney’s fees
if a timely motion for new trial is and other reliefs.
filed. Court May conduct a trial ▪ Order of restitution
de novo as if a timely motion for G. Annulment of judgment of MTC
new trial is filed. So the court will
set aside the judgment it will The annulment of judgment in rule 47
allow the petitioner to file his refers to annulment of judgment of the rtc
answer and present his by the CA. it is the CA annulling the
evidence as if there is a new judgment of rtc. This rules found in rule 47
trial. Mura rag new trial. may likewise apply to annulment of
judgment of mtc, the same procedure will
E. Suspension of prescriptive period: govern.
The period during the pendency of the So where will you file the case of
annulment of judgment of mtc? Shall be
annulment of judgment, from the time the

filed in rtc, same rules of procedure under In the RTC, there's a similar one. How do
rule 47. you call that? What is the counterpart of
the resolution on preliminary conference in
the RTC? It is called pre-trial order,
CIVIL PROCEDURE MARCH 12 2018 because when you have a pre-trial in the
RTC, after the pre-trial the court will come
RULE 48 out with a pre-trial order. The pre-trial order
PRELIMINARY CONFERENCE binds the parties and it will control the
subsequent proceedings of the court. You
Let's move on to other procedures have to be guided with the pre-trial order.
observed in the CA both in original actions The same is true in the CA. The resolution
and appealed cases. issued by the CA on the preliminary
conference should also guide the parties in
In CA, there is also procedures similar to the subsequent proceedings, whether the
pre-trial in the RTC. Remember when we CA will conduct a hearing or proceed to
discussed pre-trial in MTC and RTC? Now decide the case that will only guided by the
in the CA, there is a pre-trial and it's called resolution.
preliminary conference. This applies not
only to original actions but also apply to RULE 49
appealed cases where a motion for new ORAL ARGUMENT
trial is filed based on newly discovered
evidence, because you can file a motion Oral arguments before the CA is not
for new trial also in the CA but there's only common actually. There will be an oral
one ground and that is newly discovered argument only when the CA so decides, or
evidence. So if there is a motion for new feels that there is a need to hear the
trial the CA may also conduct a pre-trial of voices of the lawyers. So when can there
that case which is called preliminary be an oral argument?
conference.
A. WHEN ALLOWED:
What are the purposes of preliminary in 1. Upon motion of a party
the CA? The purpose is the same as that 2. Upon court’s own volition
of pre-trial in the RTC.
A. Purpose: Usually it's upon court's own volition,
1. Consider possibility of because if a party will file a motion for oral
settlement; arguments, chances are it will not be
2. Define and simplify issues; granted by the CA, seldom will the CA
3. Stipulation of facts; grant a request for oral argument. Ug duna
4. Such other matters for prompt man gani oral argument, ang CA mag
disposition of case buot. Ug ganahan ang mga justices
maminaw ug oral argument, that's the time
B. Record of conference: they will have an argument. It's very
Just like in the pre-trial before the RTC the seldom that there will be an oral argument
proceedings shall also be recorded. in the CA. Mayra na kung the issue
C. Binding effect of the result of involved is very interesting to the public
conference: and the personalities are also interesting,
After the conclusion of the preliminary the lawyers appealing are de kampanilya
conference the CA will issue a resolution or de kampana that the CA will set the
that will contain everything that has case for oral argument. Most of the time,
already been agreen upon during the they will just decide on the basis of the
preliminary conference like what are the pleadings and other written memorandums
issues agreed upon by the parties, facts submitted by the parties. If the court wants
agreed upon, and other matters agreed by to hear, upon the court's own volition or if
the parties for the prompt disposition of the there is a request from one of the parties
case. then there will be an oral argument.

B. Conduct of oral argument appeal must be shown in its face that it
The conduct of oral argument shall be was filed within the 30 day period from the
governed by the rules of the CA. The basic time you received the decision. You must
rule is that if the party is represented by state in your records on appeal the
several lawyers, not all of them can talk, material dates kay mao na unahon ug tan
only one of them will speak. Some parties aw sa CA. Kung ordinary appeal na, 15
they will be very rich that they can afford to days ra, notice of appeal. But if it is by
hire a battery of lawyers. Kung maka afford records on appeal it is 30 days.
ka'g 5 or 10, well good, but not all of them
can speak during the hearing or trial. Only 2. Failure to file notice of appeal or the
one will speak and he is called the lead record on appeal on time;
counsel. Only one will speak for each *Notice of appeal - 15 days
party. Records on appeal - 30 days from receipt
C. No hearing or oral argument for of judgment
motions:
Motions that you file in the CA need not be 3. Failure to pay docket and other
set for hearing because the CA and the SC lawful fees;
(the two appellate courts), will not hear *If you recall, when we discussed Rule 14
motions. You may file a motion but they will about MTC, that failure to pay docket fees
decide on it right away without setting it for in the MTC is not a ground for the
hearing unlike in the trial court. If you dismissal of your appeal, it is not
remember when we discussed in general, mentioned as a ground for the dismissal of
di ba sa trial court kinahanglan imong your appeal, so the court has discretion to
motion you must have to set it for hearing allow you to appeal even without payment
otherwise your motion will be treated as a of the docket fee first, you will asked to pay
pro-forma motion or a mere scrap of paper later. BUT in the CA, it is specified as a
and surely be denied. ground; so if you don't pay the docket fee
that will give an outright dismissal of your
But in the CA, you don't ask that your appeal by CA.
motion be set for hearing because that is
not allowed in the CA. If you will do that Depending on what kind of appeal, where
you will just be exposing your ignorance of do you pay the docket fee?
the rules. Kataw-an jud kas justices. Much If it is an ordinary appeal - RTC
more in the SC. If it is a petition for review Rule 42 - CA

4. Unauthorised alterations, omissions,
or additions in the approved record on
appeal;
RULE 50 *Records of appeal is required only in
DISMISSAL OF APPEAL special proceedings and in cases involving
multiple appeals. When you file your
The dismissal here is done by the CA, not appeal by records on appeal, you have to
by the RTC, because the lower court can make your own records on appeal. The
also dismiss your appeal to the CA, but records on appeal that you prepared is
here what we are discussing in Rule 50 subject to the approval of the court (RTC);
are the grounds for the dismissal of your once it is approved by the RTC you should
appeal BY the CA. What are the grounds? not make any alteration/additions in the
approved record on appeal,ecause you are
A. Grounds for dismissal: going to submit the approved record on
appeals to the CA later on. Once you are
1. Failure of the record on appeal to required now to submit the records on
show on its face that it was taken on time; appeal to the CA, the CA will first examine
*You remember what is the period within ug wa bay alteration or omissions in the
witch you can file your appeal by records approved record on appeal. If there are,
on appeal? 30 days. Your records on

that is a ground for the dismissal of your failed to appear during the pre-trial
appeal. conference, your cased will be dismissed.
The same effect will happen if the case in
5. Failure of appellant to serve and file the CA. If the CA set the case for
the required number of copies of his brief preliminary conference or pre-trial and the
*How many copies of your appellant's brief appellant failed to appear, that is a ground
must be prepared? How many copies must for the dismissal of his appeal.
you file in the CA? Di ba 7. How many
copies will you furnish to the other party? 9. The fact that the order is not
2. There must be proof that you have given appealable.
2 copies of your brief(lol) to the other party,
and 7 copies to the court. By the way these 9 grounds for the
dismissal of your appeal, some of them are
6. Absence of specific assignment of not mandatory. Some of them are
errors in the appellant’s brief discretionary on the court like for example,
*We have already discussed what are the absence of specific assignment of errors -
contents of your appellant's brief. You start dili gyud na mandatory na i-dismiss dayun.
with subject index, assignment of errors, It's within the discretion of the court. The
statement of the case, statement of facts, CA may order the appellant to make
issues, discussion and arguments, and specific assignment of error. Another is
relief. failure to comply with the order of the court
- the CA may require the appellant to
Assignment of errors is very very explain why he was not able to comply. If
important because it is there where you there is valid reason for the non-
will point out to the CA what are the errors compliance (nasakit, na hospital), then the
committted by the RTC. Without a specific CA may consider it and may not dismiss.
assignment of errors in your appellant's These are not ministerial for the CA to
brief, that is a ground for the dismissal of outrightly dismiss if any of these grounds
your appeal. are present.
7. Failure of appellant to take the The timeliness of the filing of the
necessary steps for the correction or appeal, however, is ministerial. That is
completion of the record within time; jurisdictional that you have to file your
*Once you perfect your appeal, the records appeal within a certain period. Kana stricto
of the case will be forwarded by the RTC kaayo ang appellate court ana because
to the CA. Once it reach the CA, the CA that is part of the speedy disposition of
will examine whether the records is cases.
complete. If it is incomplete, it will issue an
order requiring the persons concern What happens if the mode of appeal that
whether it is the clerk of court of the RTC you made in the CA is a wrong mode of
or any of the parties to complete the appeal? What will the CA do? It will
records. If the missing records are in the dismiss your appeal. Like for example
possession of the party, then he will be (below).
ordered to submit that particular document.
If he will not comply with that order and he
is the appellant, that will be a ground for B. Dismissal of improper appeal:
the dismissal of this appeal because that is 1. Appeal from RTC to CA on pure
disobedience to a lawful order of the court. questions of law
If it is pure questions of law from the RTC,
8. Failure of appellant to appear at the you go directly to the SC by way of
preliminary conference or to comply with certiorari under Rule 45 but that is if the
the orders of the court; decision of the RTC is done in the exercise
*Preliminary conference is the equivalent of its original jurisdiction. Because if it is
of a pre-trial in the trial court, but in the trial done in the exercise in its appellate
court, when you are the plaintiff and you jurisdiction, the mode of appeal is petition

for review under Rule 42. Under Rule 42, *in original actions
you may raise a pure question of law in the
CA, dili na kinahanglan na mu diretso ka In ordinary appeal - the case is deemed
sa SC. Pwede ra CA ka kutob on pure submitted for decision:
questions of law basta Rule 42. You take a. upon the filing of the last pleading or the
note of that. filing of the memorandum as required by
law
2. Appeal by notice of appeal b. upon the lapse of the period for the filing
instead of petition for review under of the pleading/memorandum
rule 42 from RTC to CA.
Like if the decision of the RTC is done in Whether there is a hearing or no hearing,
the exercise of its appellate jurisdiction, that's always the rules. If there is a
how will you appeal that decision? Rule hearing, upon the termination of the
42. Ug pananglitan notice of appeal ra hearing, and the court for example the
imong na file which is in accordance with court requires you to submit a
Rule 41, wrong mode of appeal na. What memorandum, then you have to submit a
will the CA do? Dismiss. Kani adto sa memorandum within 30 days for example.
karaan na rules, dili na i dismiss sa CA, i- If you did not submit a memorandum within
refer ra na sa (quater? other?) court. Ug 30 days, after the lapse of 30 days, the
mu file kag appeal sa CA when it should case is deemed submitted for decision,
have been in the SC, the CA will just with or without memorandum.
forward it to the SC. If you filed your
appeal to the SC and dunay factual issues In the CA pila man ka buwan ang gihatag
involved, dili pure questions of law, before, for the CA to decide? Let's go back to your
the SC will just endorse the case to the political law. In the Consti, it says that for
CA. But NOW the rules is very strict. If the SC they have 24 months. For lower
wrong mode imong appeal, dismiss, wa collegiate courts they have 12 months. For
nay daghan pangutana. inferior courts they have only 3 months. So
lower collegiate court man na ang CA, so
Can you withdraw your appeal that you that's 12 months. Pero kana, ka daghan
filed in the CA? Yes. nana gi violate. Dili jud na ingon nga
mandatory. Directory na, dili na ministerial.
C. Withdrawal of appeal
Matter of right- before appellee’s brief is In original actions - like certiorari,
filed. prohibition, mandamus, quo warranto,
Discretionary – after filing of brief annulment of judgment from RTC, when is
it deemed submitted for decision? Same
If naa na gani appellant's brief, you have to lang gihapon sa appeal. If there's a
file a motion to allow you to withdraw your hearing, usually duna man ni hearing kay
appeal. But if there is no appellee's brief original action man, upon the termination
yet you can withdraw your appeal as a of the hearing. Meaning when both parties
matter of right. have submitted already their evidence. If
the court requires them to submit a
memorandum, then upon the submission
the memorandum or the lapse of the
period to file their memorandum. So with
or without memorandum, kay kanang
memorandum, dili man gyud na
mandatory, optional ra na.

RULE 51 B. Who will decide:
JUDGMENT The CA is a collegiate court, it is
composed of several justices. The CA is
A. When submitted for judgment: divided into 23 divisions with 3 justices per
*in ordinary appeal division. The CA may sit en banc or sit in

division but actually they don't sit en banc the decision of CA is unanimous
to decide cases. When they decide the kasagaran kay if dunay isa nga mu-
case whether the case is filed in the CA as disagree mas dugay na hinuon mahuman
an original action or appealed case, the CA kay maghimo paman special divison of 5.
will decide it only by a division. It will be
raffled, and it will be assigned to one So in the division, the quorum is
division. unanimous dili majority. But if en banc, the
quorum is majority. Yet CA does not decide
Like here in the CA of Cebu or Visayas we cases en banc unlike the SC because in
only have 3 divisions - Divisions 18, 19, the CA, in division rajud na all cases
and 20. Inig file nimo sa kaso diha, i raffle whether original action or appellate. Kay
pa na sa tulo ka division, any of the 3 kung di maka-unanimous, mao natong
divisions. special division of 5.
When your case is raffled to one division, D. Disposition of a case: affirm, reverse,
how will that decision decide your case? modify
Actually the procedure there is that they
will only assign it to only one justice, and E. Form and contents
that justice will be called the ponentia, who Same as that in the trial court. It must
will make the decision, but under the rules contain findings of fact and conclusion of
they are supposed to deliberate on that, law. There must be a discussion on how
the 3 justices. But I do not know in actual the CA arrived at that decision, what are
practice whether they really do that or the principles involved must be cited so
deliberate. Sa actual practice ana, mag ija same rajud sa RTC ang pagka-decide.
ija na lang na sila ug assign. Mag abot ra
na sila later on, "O naa na koy decision for F. Judgment if several parties: (partial
this case'",and the others will just concur. judgment)
Partial judgment – a judgment only for
C. Quorum and voting: unanimous some of the parties but not to the others if
To come out with a decision there must be there are still other matters to be heard/
a unanimous vote. Don't tell me they tried.
discuss that na silang 3 jud. That's not
happening in actual. The others will just G. Questions that may be decided:
concur. Kung kita mog decision sa CA, 1. Only those errors stated in the
mag una ponente, ang sa ubos kay "We assignment of errors;
concur" ang duha mu sign. Unanimous 2. Those closely related to or
vote man gyud ang kinahanglan sa CA. dependent on an assigned error;
( a l t h o u g h n o t s p e c i fi c a l l y
What happens if there is one who mentioned but RELATED to an
dissents? The dissenting opinion will be assigned error)
put on record and then the records will be 3. Plain errors and clerical errors;
forwarded to the executive justice, (like (can always be corrected anytime)
justice ingles), and he would appoint 2 4. Error affecting jurisdiction over
other justices from the other division to join the subject matter or the validity of
that division. Like for example Division 18, judgment. (you can always raise
tulo man na sila, ug di sila maka this anytime even if not assigned
unanimous vote ang tulo kay naay usa na by the appellant; court can always
di musugot, then other justices from the 19 decide on the matter if they find out
and 20th division will be appointed to join that error is about no jurisdiction)
these 3. It will now be called a special As a rule, only those questions/errors that
division of 5, and then they will have a re- you have cited in your assignment of
voting, this time majority vote na lang ang errors in your appellant’s brief that will be
kinahanglan. So 3 against 2 okay na. Dili considered by the CA. therefore, the court
same sa una nga unanimous vote jud, di cannot decide/pass upon errors that are
mahimo ang 2 out of 3. That is why usually not mentioned in the assignment of errors.

(so #s 2, 3 and 4 are exceptions to the how execution is done; no need to
general rule) wait for the records to be returned
by the CA to the RTC; all you need
H. Harmless errors: those that does not to do is to get a certified true copy
affect the substantial rights of the parties of the decision of the CA & also the
CA will not reverse the decision of the entry of judgment because once
lower court if the error is just a harmless or the judgment becomes final, CA
innocuous error. also issues entry of judgment –
that the decision is now final and it
I. Promulgation and notice of is now entered in the book of
judgment: entries of judgment in the CA)
The case shall be decided only in division 2. In original action the CA will
composed of 3 justices. Among the 3, they issue the writ with the entry of
will just agree among themselves who will judgment (it is the CA who will
be the ponente (writes the decision) in this issue the writ of execution since
case and then ask for the concurrence of original action man diha man jud
the 2 justices. If they concur (sign), gi-file sa CA and then they will
decision will be now given to the Clerk of order the sheriff to implement it)
Court of your divison since every division 3. In execution pending appeal (if
has their own clerk of court. records of the case already in CA,
Upon receipt of the decision, the division it is the CA who will issue the
clerk of court will immediately stamp the execution pending appeal; if
date he received it which is considered as records not yet in CA, execution
the date of promulgation of judgment. So if may be issued by the RTC as part
you see a decision of the CA, naa sa of its residual jurisdiction)
upper right-hand corner, gibutang jud na
date of promulgation. That is actually the RULE 52
date that the clerk of court of the division MOTION FOR RECONSIDERATION
received the decision that is already
signed by the justices and upon the receipt
of that, the clerk will record in the book of A. When to file: (15 days)
record the promulgation of judgment and In the trial court, once the court renders
then immediately send out copies of the judgment, the losing party has the right to
decision to the parties. appeal within 15 days to the next higher
court. Like if it’s an RTC decision go to the
Promulgation – upon receipt of the CA within 15 days. In that 15-day period,
decision by the division clerk of court what are your remedies?
Notice of judgment – recording in the book Appeal
of record then sending out copies of MR or MNT – this can also be availed of in
decision to the parties the CA whether it is an original action or an
appealed case; file it within 15 days also
J. Execution of judgment: because you have 15 days to appeal the
When the judgment of the CA has already decision of the CA to the SC
become final & executory because the B. No second motion for
losing party did not appeal anymore the reconsideration:
case to the SC then the decision of the CA 2nd MR is NOT allowed in the CA but in the
shall now be the subject of execution. Who SC it is allowed
will execute? C. Resolution of motion: (90 days)
1. In appealed cases (case comes D. Stay of execution: (effect of filing
from the RTC) it shall be executed MR)
by the court a quo (you file your - Pendency of motion for
motion for execution in the RTC; it reconsideration shall stay the execution of
is NOT the CA who will execute the the judgment unless the court, for good
writ of execution but the RTC; Rule reasons, shall otherwise direct (Like if
39 provides for the procedure on there is no TRO is issued)

rules & regulations within the CA, like how
are the cases will be distributed to the
different divisions, how the justices are
RULE 53 rotated to the different division. This is
NEW TRIAL governed by the internal rules so that is
the only time they sit en banc, maybe once
A. When to file: a year. Kana siguro if magsabot sila sa
At anytime after the appeal from the lower Christmas party nya naay bonus or naa
court has been perfected and before the bay justice namatay so magsabot sila.
Court of Appeals loses jurisdiction over the Basta they just discuss on administrative
case. matters but they don’t decide a case or
When does the CA loses jurisdiction? Can they don’t exercise their judicial power.
you file a motion for new trial even after Kay if judicial power, ang division rajud ang
the CA has already decided the case? mag-decide ana which is composed only
YES for as long as the 15-day period has of 3 members.
not yet expired, naa pay jurisdiction ang
CA. Because once the CA decides and En banc – administrative matter
you receive the decision, you have 15 In division – judicial matters
days to appeal so that decision is not yet
final and executory. B. Quorum of the court:
So you can still file MNT if within that Ø Majority if en banc
period naa kay NDE that will change the Ø Unanimous if in division
course/decision of the proceedings.
B. Grounds:
1. Newly discovered evidence
In the trial court the grounds for new trial is RULE 55
two: FAME and NDE. But there is no more PUBLICATION OF JUDGMENT
FAME as ground in the CA, the available A. Where published: (it will be
ground is only NDE. published for posterity just like in the SC)
C. Hearings and orders: (procedure is Ø Official gazette (SC)
same as the new trial in the trial court Ø Court of appeals report
which is governed by Rule 37) annotated (CA)
D. Resolution of motion: (90days) We also have the SCRA (Supreme Court
E. Procedure in new trial Report Annotated) but it is NOT an official
Ø Same as rtc publication although it is already admitted
that you can cite pero dili na mao ang
official way to cite like muingon ka for
example PP vs Dela Cruz 251 SCRA 162.
So dili sya official but only tolerated, gi-
RULE 54 allow nalang sa SC.
INTERNAL BUSINESS (in the CA) The best way to cite the case is to cite its
case number like kanang muingon ka PP
A. How cases are distributed: vs Juan Dela Cruz, G.R. No. 12345, April
Ø By raffle to the different 13 2015 – that is how you cite. Di man gud
divisions na available everywhere ang Official
Ø Decide en banc or in division Gazette ara ra makit-an if muadto sa
The CA will not decide the case en banc, library so more accessible ang SCRA
there is no particular case that can be samot na karun naa nay access to the
decided en banc. Just imagine if mu latest decision of the SC because of the
decide sila en banc, 69 gud sila kabuok internet.
justices so kagubot ana gubot naman gani
SC nga 15 ra sila ka buok. B. Preparation of syllabus by reporter:
So when will CA sit en banc? They only sit The publication of the decision as it would
en banc when they decide on internal appear in the Court of Appeals Report
matters like kanang they decide on the Annotated (CARA) and SCRA shall be

done in syllabus by the reporter. Katong But now, by virtue of a new administrative
tag-1 paragraph lang and then the gist of circular by the SC, whether it is acquittal or
the decision and topic involved. conviction, IT WILL HAVE TO GO TO THE
C. General make up volumes: SC. Whatever will be the decision of the
They will be divided into volumes. IBP whether it is exoneration or
disbarment or suspension, it has to go to
the SC.
3. Cases affecting ambassadors,
other public ministers and consuls.
PROCEDURE IN THE SUPREME COURT Original case but concurrent with the RTC
RULE 56 dili sa CA.
ORIGINAL CASES
B. Rules applicable
Just like in the CA, there are 2 kinds of 1. Original actions for certiorari,
cases that will reach the SC: prohibition, mandamus shall be
• Original actions governed by rule 65
If quo warranto – Rule 66
• Appealed cases
2. Rules 46, 48, 49, 50, 51 and 52
A. Original cases cognizable: (cases on the court of appeals shall also
where you can file directly to the SC) apply in the Supreme Court
1. Certiorari, prohibition, Rule 46 – original actions filed in the
mandamus, quo warranto and CA (certiorari, prohibition,
habeas corpus; mandamus, quo warranto)
Concurrent with the CA and RTC, dili sya Rule 47 – way apil kay exclusive
exclusive sa SC. It is an Original but not jurisdiction mana ang annulment of
exclusive. judgment of the RTC sa CA so di
2. Disciplinary proceedings mu-apply sa SC
against judges and lawyers; Rule 48 – preliminary conference
Original and exclusive. If you file a case Rule 49 – oral argument
against a judge, you have to file it in the Rule 50 – dismissal of a case
SC. If you wan a lawyer to be disbarred, Rule 51 – judgment
you can file it to the SC or may file it with Rule 52 – MR (MNT is not applicable)
the IBP. 3. 18 copies of the petition shall be
The IBP has Committee on Bar Discipline filed in the Supreme Court
and they will be the one to investigate but There is only 1 mode of appeal in
the power of the IBP is only to investigate. bringing the case to the SC:
They can decide but their decision is only certiorari under Rule 45
recommendable. It will still go to the SC 4. Proceedings for disciplinary
and it is the SC who has a final say action against judges and lawyers
whether the lawyer should be disbarred or shall be governed by the code of
suspended for 1 year or should be judicial conduct and rule 139-B
exonerated from the charge. (disbarment of lawyers)
Usually, ang uban miu-deretso ug file sa
disbarment case against a lawyer in the APPEALED CASES
SC but useless na because the SC will just These are cases decided by the lower
refer it to the IBP, the SC will not act with it court.
directly. The IBP will now investigate and RTC – on pure questions of law
then come out with its own Sandiganbayan –
recommendation if disbarment, suspension CTA
or whatever penalty then they will give it to Constitutional Commissions (COA and
the SC. Comelec nalang since CSC is nabalhin sa
CA which is Rule 43)
Before, if decision of the IBP is acquittal, C. modes of appeal:
now need to forward to the SC. But if only by petition for review on certiorari
conviction, go to the SC to be reviewed. under rule 45

exception: criminal cases where the 2nd division and the 3rd most senior will be
penalty imposed is death, reclusion the head of the 3rd division.
perpetua or life imprisonment (automatic
review/appeal) Pero kanang mga important cases, en
banc na sila. But it does not mean that the
D. procedure 15 must participate kay sometimes naa
same as the court of appeals may uban masakit or kaya on vacation
leave. So they can still decide for as long
E. grounds for dismissal of appeal (same as there is a majority present they will
sa Rule 50?) have a quorum. So if quorum na, they can
1. Failure to take appeal within the already decide a case en banc. So sa 15
reglementary period members, quorum is 8.
2. Lack of merit in the petition
3. Failure to pay docket fees, etc Example: only 10 justices were present
4. Failure to comply with requirements on then they can decide a case which must
the proof of service, contents, and be decided en banc. But what if tie like
documents to accompany the petition vote is 5-5?
5. Failure to comply with circular directives 1. Redeliberation
or order of the court without justifiable 2. If still no decision is reached
reason then the ff rule will apply:
6. Error in the choice or mode of appeal Original action filed is deemed
7. The fact that the case is not appealable dismissed (certiorari, prohibition,
to the Supreme Court quo warranto, mandamus)
Appealed case - the appealed
F. Disposition of improper appeal: (if decision is deemed affirmed (pildi
appeal is the wrong mode of appeal) ang ni-appeal/appellant)
Ø Appeal by notice of appeal from All incidental matters - the petition
rtc to sc shall be dismissed or motion is deemed denied (like
Ø Appeal by certiorari to the SC motions is deemed denied if they
from decision of the rtc raising cannot arrive at the required
issue of fact MAY be referred by majority of the quorum/ required
the SC to the CA for decision or majority of the justices present)
appropriate action.
“May” – kana ug maayohan ug buot ang
mga justices sa SC because ang imo ra
ma-appeal from the RTC to the SC is pure
question of law. If mixed with question of
fact, dili na pwede so ground for the
dismissal of your appeal. But if maayohan
sa buot ang SC, they may refer it to the CA
for appropriate action. Ila ra nang
discretion pero kasagaran dismissal jud
na.
G. Procedure if opinion is equally

divided:
There are 15 justices of the SC unsaon
pagka-equally divided ana?
When the case is to be decided by the SC,
en banc like kanang mga important cases.
Most of the decided cases are decided by
division. There are 3 division, 5 members
for every division. The Chief Justice will be
the Chairman of the 1st division. The 2nd
most senior justice will be the head of the


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Civil Procedure - Dean Alex Monteclar (A.Y.

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So if the defendant can no longer be found A. Original Jurisdiction:

I. Regular Courts B. Appellate Jurisdiction:

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These are cases emanated from the court

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The Following are the administrative Constitutional limitations involving

D. Administrative Powers of the Supreme • Art VIII, Sec. 2

Dean M: One good example of this is the

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So these are the two basic limitations. This

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a. Personal Action- An Action

a. Transitory- an action that a. Action in Rem- any action

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But if you do it thru the official mode of • Manchester Development Corp.

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*you cannot lose your cause of action by

*What the rule prohibits is the splitting of

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Types of Real Party in Interest: What is the rule when there is an

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If you enter into a contract with an I. Unknown identity or name of the

Two Kinds of Action: As a general rule, if it is an action that

Premid – Finals Coverage Page !34

Under the old rules, when a defendant dies

There are only very few actions that does

Premid – Finals Coverage Page !35

M. Effect of Death of a Party who is a Q. Notice to the Solicitor General

N. Incompetency or incapacity of a party: RULE 4 – VENUE

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C. Venue of Personal Action:

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E. When rule not applicable:

Now, if their agreement is that the venue

Premid – Finals Coverage Page !39

When they returned to CDO after the