Up 2013 Civil Procedure
Up 2013 Civil Procedure
PAGE 1
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
General Principles (c) Judicial process for enforcing rights and duties
recognized by substantive law and for justly
administering remedy and redress for a disregard
CONCEPT OF REMEDIAL LAW or infraction of them. [Fabian v Desierto (1998)]
CONCEPT
Remedial statute or statutes: SUBSTANTIVE LAW
(1) relating to remedies or modes of procedure; That part of the law which creates, defines and
(2) do not take away or create vested rights; regulates rights concerning life, liberty, or property, or
(3) BUT operate in furtherance of rights already the powers of agencies or instrumentalities for the
existing. [Riano citing Systems Factor Corporation administration of public affairs [Bustos v Lucero
v NLRC (2000)] (1948)]
The Rules of Court, promulgated by authority of law, RULE-MAKING POWER OF THE SUPREME COURT
have the force and effect of law, if not in conflict with (a) The Rules of Court was adopted and
positive law [Inchausti & Co v de Leon (1913)]. The rule promulgated by the Supreme Court pursuant to
is subordinate to the statute, and in case of conflict, the provisions of Sec 5(5) of Art. VIII of the
the statute will prevail. [Shioji v Harvey (1922)]. Constitution, vesting in it the power to:
(1) Promulgate rules concerning the protection
APPLICABILITY and enforcement of constitutional rights,
The Rules of Court is applicable in ALL COURTS, pleading, practice and procedure in all courts,
except as otherwise provided by the SC [Rule 1, Sec. the admission to the practice of law, the
2]. Integrated Bar, and legal assistance to the
underprivileged.
It governs the procedure to be observed in civil or (b) The power to promulgate rules of pleading,
criminal actions and special proceedings [Rule 1, Sec. practice, and procedure is no longer shared by the
3]. It does not apply to the following cases: [ELCINO] Supreme Court with Congress, more so with the
(1) Election cases, executive… [Riano citing Echegaray v Secretary of
(2) Land registration cases, Justice (1999)]
(3) Cadastral cases,
(4) Naturalization cases, LIMITATIONS ON THE RULE-MAKING POWER OF THE
(5) Insolvency proceedings SUPREME COURT
(6) Other cases not herein provided for Sec 5(5) of Art. VIII of the Constitution sets forth the
limitations to the power: [SUS]
Except by analogy or in a suppletory character and (a) that the rules shall provide a simplified and
whenever practicable and convenient [Rule 4, Sec. 4] inexpensive procedure for speedy disposition of
cases;
PROSPECTIVITY/RETROACTIVITY (b) that the rules shall be uniform for courts of the
The Rules of Court are not penal statutes and cannot same grade; and
be given retroactive effect [Bermejo v Barrios (1970)]. (c) that the rules shall not diminish, increase or
modify substantive rights.
Rules of procedure may be made applicable to
actions pending and undetermined at the time of POWER OF THE SUPREME COURT TO AMEND AND SUSPEND
their passage, and are deemed retroactive in that PROCEDURAL RULES
sense and to that extent. [In the Matter to Declare in Power to amend remedial laws
Contempt of Court Hon. Simeon Datumanong (a) The constitutional faculty of the Court to
(2006)]. promulgate rules of practice and procedure
necessarily carries with it the power to overturn
SUBSTANTIVE LAW AS DISTINGUISHED FROM judicial precedents on points of remedial law
REMEDIAL LAW through the amendment of the Rules of Court.
[Pinga v Heirs of Santiago (2006)].
REMEDIAL LAW OR PROCEDURAL LAW (b) The SC has the sole prerogative to amend, repeal,
(a) provides a method of enforcing the rights or even establish new rules for a more simplified
established by substantive law; and inexpensive process, and the speedy
(b) prescribes the method of enforcing rights or disposition of case [Neypes v CA (2005)]
obtaining redress for their invasion. [Bustos v
Lucero (1948)]
PAGE 2
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 3
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
COURTS OF ORIGINAL AND APPELLATE JURISDICTION important reasons therefor, clearly and
(a) Courts of original jurisdiction – Those courts in specifically set out in the petition. [Mangahas v.
which, under the law, actions or proceedings may Paredes (2007)]. The Supreme Court may
be originally commenced. disregard the principle of hierarchy of courts if
(b) Courts of appellate jurisdiction – Courts which warranted by the nature and importance of the
have the power to review on appeal the decisions issues raised in the interest of speedy justice and
or orders of a lower court. [Regalado] avoid future litigations [Riano].
PAGE 4
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
How jurisdiction over the plaintiff is acquired (e) Once attached to a court, it cannot be ousted by
Jurisdiction over the plaintiff is acquired by filing of subsequent statute.
the complaint or petition. By doing so, he submits
himself to the jurisdiction of the court [Davao Light & Exception: The statute itself conferring new
Power Co., Inc. v CA (1991)]. jurisdiction expressly provides for retroactive
effect. [Southern Food v. Salas (1992)]
How jurisdiction over the defendant is acquired
Acquired by the (f) The filing of the complaint or appropriate
(1) voluntary appearance or submission by the initiatory pleading and the payment of the
defendant or respondent to the court or prescribed docket fee vest a trial court with
(2) by coercive process issued by the court to him, jurisdiction over the subject matter or the nature
generally by the service of summons [de Joya v. of the action [CB v. CA (1992)](2008 Bar Exam).
Marquez (2006), citing Regalado]
Exception: Non-payment of docket fee does not
In an action in personam, jurisdiction over the person automatically cause the dismissal of the case on
is necessary for the court to validly try and decide the the ground of lack of jurisdiction as long as the
case, while in a proceeding in rem or quasi in rem, fee is paid within the applicable prescriptive or
jurisdiction over the person of the defendant is not a reglementary period, more so when the party
prerequisite to confer jurisdiction on the court involved demonstrates a willingness to abide by
provided the latter has jurisdiction over the res [Alba the rules prescribing such payment. [Go v. Tong
v. CA (2005)]. (2003)]
JURISDICTION OVER THE SUBJECT MATTER Jurisdiction versus the exercise of jurisdiction
(a) Jurisdiction: the authority to hear and determine a
Meaning of jurisdiction over the subject matter cause — the right to act in a case. [Arranza v. BF
Jurisdiction over the subject matter is the power to Homes (2000)].
deal with the general subject involved in the action,
and means not simply jurisdiction of the particular ‘Exercise of Jurisdiction.’: the exercise of this
case then occupying the attention of the court but power or authority
jurisdiction of the class of cases to which the
particular case belongs (Riano citing CJS). (b) Jurisdiction is distinct from the exercise thereof.
Jurisdiction is the authority to decide a case and
It is the power to hear and determine cases of the not the decision rendered therein. When there is
general class to which the proceedings in question jurisdiction over the subject matter, the decision
belong [Reyes v. Diaz (1941)] on all other questions arising in the case is but an
exercise of jurisdiction. [Herrera v. Baretto et al
How conferred and determined (1913)]
(a) It is conferred only by the Constitution or the law.
Error of jurisdiction as distinguished from error of
(b) Jurisdiction CANNOT be: judgment
(1) fixed by agreement of the parties;
(2) cannot be acquired through, or waived,
enlarged or diminished by, any act or omission Error of jurisdiction Error of judgment
of the parties;
(3) neither can it be conferred by the It is one where the act It is one which the court
acquiescence of the court [Regalado citing De complained of was issued may commit in the
Jesus v Garcia (1967)]. by the court without or in exercise of its
(4) cannot be subject to compromise [Civil Code, excess of jurisdiction jurisdiction [Cabrera v.
Art 2035] [Cabrera v. Lapid (2006)]. Lapid (2006)].
(c) Jurisdiction over the subject matter is determined It includes errors of
by the allegations of the complaint and the reliefs procedure or mistakes in
prayed for. [Gulfo v. Ancheta (2012)] the court’s mistakes in
the court’s findings
(d) It is not affected by the pleas set up by the [Banco Filipino Savings
defendant in the answer or in the answer or in a v. CA (2000)]
motion to dismiss. [Sindico v. Diaz (2004)]. Correctible only by the Correctible by appeal
PAGE 5
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 6
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 7
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
(f) Appoint all Judiciary officials/employees in (d) Sec. 17, Par. 3(1) and Par. 4(4) of the Judiciary Act
accordance with the Civil Service Law. of 1948.
PAGE 8
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
matters arising under the Customs Law or other originally decided by the MeTCs, MTCs and
laws administered by the Bureau of Customs; MCTCs in their respective jurisdiction.
(e) Decisions of the Central Board of Assessment
Appeals in the exercise of its appellate Jurisdiction over tax collection cases as herein provided:
jurisdiction over cases involving the assessment General rule: Exclusive original jurisdiction in tax
and taxation of real property originally decided by collection cases involving final and executory
the provincial or city board of assessment assessments for taxes, fees, charges and penalties:
appeals;
(f) Decisions of the Secretary of Finance on customs BUT, collection cases where the principal amount of
cases elevated to him automatically for review taxes and fees, exclusive of charges and penalties,
from decisions of the Commissioner of Customs claimed is less than P1,000,000.00 shall be tried by
which are adverse to the Government under the proper MTC, MeTC and RTC
Section 2315 of the Tariff and Customs Code;
(g) Decisions of the Secretary of Trade and Industry, Exclusive appellate jurisdiction in tax collection cases:
in the case of nonagricultural product, Over appeals from the judgments, resolutions or
commodity or article, and the Secretary of orders of the RTCs in tax collection cases originally
Agriculture in the case of agricultural product, decided by them, in their respective territorial
commodity or article, involving dumping and jurisdiction.
countervailing duties under Sec 301 and 302,
respectively, of the Tariff and Customs Code, and Over petitions for review of the judgments,
safeguard measures under RA 8800, where resolutions or orders of the RTCs in the Exercise of
either party may appeal the decision to impose or their appellate jurisdiction over tax collection cases
not to impose said duties. originally decided by the MeTCs, MTCs and MCTCs,
in their respective jurisdiction."
Jurisdiction over cases involving criminal offenses:
General rule: Exclusive original jurisdiction over all NOTE: RA 9282 elevated CTA’s rank to the level of
criminal offenses arising from violations of the the Court of Appeals with special jurisdiction.
National Internal Revenue Code or Tariff and
Customs Code and other laws administered by the Sandiganbayan [Sec.4 of RA 8249]
BIR or the Bureau of Customs (a) Decisions and final orders of the Sandiganbayan
shall be subject to review on certiorari by the
BUT, offenses or felonies where the principal amount Supreme Court in accordance with Rule 45 of the
of taxes and fees, exclusive of charges and penalties, Rules.
claimed is less than P1,000,000.00 or where there is (b) Whenever, in any case decided, the death penalty
no specified amount claimed shall be tried by the shall have been imposed, the records shall be
regular Courts and the jurisdiction of the CTA shall be forwarded to the SC whether the accused shall
appellate. have appealed or nor, for review and judgment.
[PD 1606 Sec 7]
Any provision of law or the Rules of Court to the
contrary notwithstanding, the criminal action and Original Exclusive Jurisdiction
the corresponding civil action for the recovery of civil (a) Violations of RA 3019 (Anti-graft and Corrupt
liability for taxes and penalties shall at all times be Practices Law);
simultaneously instituted with, and jointly (b) RA 1379 (Forfeiture of Illegally Acquired Wealth);
determined in the same proceeding by the CTA, the (c) Crimes by public officers or employees embraced
filing of the criminal action being deemed to in Ch. II, Sec.2 Title VII, Bk. II of the RPC (Crimes
necessarily carry with it the filing of the civil action, committed by Public Officers) namely:
and no right to reserve the filling of such civil action (1) Direct Bribery under Art. 210 as amended by
separately from the criminal action will be BP 871, May 29, 1985;
recognized. (2) Indirect Bribery under Art. 211 as amended by
BP 871, May 29, 1985;
Exclusive appellate jurisdiction in criminal offenses: (3) Qualified Bribery under Art. 211-A as amended
(a) Over appeals from the judgments, resolutions or by RA 7659, Dec. 13, 1993;
orders of the RTCs in tax cases originally decided (4) Corruption of public officials under Art. 212
by them, in their respected territorial jurisdiction. where one or more of the accused are officials
(b) Over petitions for review of the judgments, occupying the following positions in the
resolutions or orders of the RTCs in the exercise government whether in a permanent, acting
of their appellate jurisdiction over tax cases
PAGE 9
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
or interim capacity, at the time of the and other ancillary writs and processes in aid of
commission of the offense: its appellate jurisdiction;
(i) Officials of the executive branch occupying (g) Provided, jurisdiction is not exclusive of the
the positions of regional director and Supreme Court
higher, otherwise classified as Grade 27 (h) Petitions for Quo Warranto arising or that may
and higher, of the Compensation and arise in cases filed or that may be filed under EO
Position Classification Act of 1989 1, 2, 14 & 14- A
Republic Act No. 6758) specifically (i) OTHERS provided the accused belongs to Salary
including: Grade 27 or higher:
(ii) Provincial governors, vice-governors, (1) Violation of RA 6713 - Code of Conduct and
members of the sangguniang Ethical Standards
panlalawigan, provincial treasurers, (2) Violation of RA 7080 – The Plunder Law
assessors, engineers and other provincial (3) Violation of RA 7659 - The Heinous Crime Law
department heads; (4) RA 9160 - Violation of The Anti-Money
(iii) City mayors, vice-mayors, members of the Laundering Law when committed by a public
sangguniang panglungsod, city treasurers, officer
assessors, engineers and other department (5) PD 46 referred to as the gift-giving decree
heads; which makes it punishable for any official or
(iv) Officials of the diplomatic service employee to receive directly or indirectly and
occupying the position of consul and for the private person to give or offer to give
higher; any gift, present or other valuable thing on
(v) Philippine Army and Air force colonels, any occasion including Christmas, when such
naval captains and all officers of higher gift, present or valuable thing is given by
rank; reason of his official position, regardless of
(vi) Officers of the PNP while occupying the whether or not the same is for past favors or
position of Provincial Director and those the giver hopes or expects to receive a favor or
holding the rank of Senior Superintendent better treatment in the future from the public
or higher; official or employee concerned in the
(vii) City and provincial prosecutors and their discharge of his official functions. Included
assistants; officials and the prosecutors in within the prohibition is the throwing of
the Office of the Ombudsman and special parties or entertainment in honor of the
prosecutor ; official or employee or his immediate relatives.
(viii) President, directors or trustees or (6) PD 749 which grants immunity from
managers of government owned or prosecution to any person who voluntarily
controlled corporations, state universities gives information about any violation of
or educational institutions or foundations; Art.210, 211 or 212 of the RPC, RA 3019,
(5) Members of Congress and Officials thereof Sec.345 of the NIRC, Sec. 3604 of the
classified as Grade 27 and up under the Customs and Tariff Code and other provisions
Compensation and Classification Act of 1989; of the said Codes penalizing abuse or
(6) Members of the Judiciary without prejudice to dishonesty on the part of the public officials
the provision of the Constitution; concerned and other laws, rules and
(7) Chairmen and members of Constitutional regulations penalizing graft, corruption and
Commissions, without prejudice to the other forms of official abuse and who willingly
provision of the Constitution; testifies against the public official or employee
(8) All other national and local officials classified subject to certain conditions.
as Grade 27 and higher under the
Compensation and Position Classification Act NOTE: Private individuals can be sued in cases
of 1989. before the Sandiganbayan if they are alleged to be in
(d) Other offenses or felonies whether simple or conspiracy with the public officer.
complexed with other crimes committed in
relation to their office by the public officials and Appellate Jurisdiction
employees mentioned above; Over final judgments, resolutions or orders of the
(e) Civil and Criminal Cases filed pursuant to and in RTC whether in the exercise of their original or
connection with EO 1, 2, 14 & 14-A issued in 1986 appellate jurisdiction over crimes and civil cases
(f) Petitions for issuance of Writ of mandamus, falling within the original exclusive jurisdiction of the
prohibition, certiorari, habeas corpus, injunction Sandiganbayan but which were committed by public
officers below Salary Grade 27.
PAGE 10
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
Exclusive Original Jurisdiction in Civil Cases [Sec. 19, BP Probate (testate and intestate) where the gross value
129, Asked in the 2002 Bar Examinations] of the estate exceeds P300K or P400K (in Metro
Incapable of pecuniary estimation (2000 Bar Exam); Manila);
(a) If the action is primarily for the recovery of a sum
of money, the claim is considered capable of Marriage contract and marital relations;
pecuniary estimation, and jurisdiction over the
action will depend on the amount of the claim. General Original Jurisdiction
[RCPI v. CA (2002)] All cases not within the exclusive jurisdiction of any
(b) If the basic issue is something other than the court/tribunal/person/ body exercising judicial or
right to recover a sum of money, if the money quasi-judicial functions;
claim is purely incidental to, or a consequence of,
the principal relief sought, the action is one where Within the exclusive original jurisdiction of a Juvenile
the subject of the litigation may not be estimated and Domestic Relations Court and of the Court of
in terms of money. [Soliven v. Fastforms (1992)] Agrarian Relations;
(c) If the thing sought to be deposited or consigned
is a sum of money, the amount of the debt due is All other cases where the demand (exclusive of
determinable and capable of pecuniary interest, damages of whatever kind, attorney's fees,
estimation. [Ascue v. CA (1991)] litigation expenses and costs) or the value of the
(d) Action for support is incapable of pecuniary property in controversy exceeds P300K or P400K in
estimation because the court is asked to Metro Manila.
determine first WON the plaintiff is indeed (a) The exclusion of the term “damages of whatever
entitled to support. [Baito v. Sarmiento (1960)] kind” in determining the jurisdictional amount
(e) Action for specific performance is incapable of under Sec. 19(8) and Sec. 33 (1) of BP 129, as
pecuniary estimation. [Manufacturer’s Distributor’s amended by RA 7691, applies to cases where the
v. Yu Siu Liong (1966)] damages are merely incidental to or a
(f) The jurisdiction of the respective courts is consequence of the main cause of action.
determined by the value of the demand and not However, if the claim for damages is the main
the value of the transaction out of which the cause of action, or one of the causes of action, the
demand arose. amount of such claim shall be considered in
(1) The alternative prayer for specific performance determining the jurisdiction of the court.[Admin
is also of the same value, for the alternative Circ. 09-94]
prayer would not have been made in the
complaint if one was more valuable than the (b) Actions for damages based on quasi-delicts are
other. [Cruz v. Tan (1950)] primarily and effectively actions for the recovery
(g) Rescission is a counterpart of specific of a sum of money for the damages suffered
performance therefore also incapable of because of the defendant’s alleged tortious acts.
pecuniary estimation. [Lapitan v. Scandia (1968)] This money claim is the principal relief sought,
(h) Action for declaration of nullity of a deed of and is not merely incidental thereto or a
partition is incapable of pecuniary estimation. consequence thereof. [Iniego v. Purganan (2006)]
[Russel v. Vestil (1999)]
(i) An action for expropriation is incapable of Original Jurisdiction [Sec. 21, BP 129]
pecuniary estimation. [Bardillon v. Masili (2003)] (a) Certiorari, prohibition, mandamus, quo warranto,
habeas corpus and injunction which may be
Title to, or possession of, real property (or any interest enforced in any part of their respective regions;
therein) where the property’s assessed value exceeds
P20K or P50K (for civil actions in Metro Manila); CONCURRENT jurisdiction with SC and CA
PAGE 11
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
(b) Actions affecting ambassadors and other public causes of action, WON the causes of action
ministers and consuls. arose out of the same/different transactions.
PAGE 12
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 13
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
As to Parties
Actions, in general: An ordinary suit in a court of Involves 2 or more parties Involves at least 1 party
justice by which one party prosecutes another for the or 2 or more
enforcement/ protection of a right or the parties in proper cases
prevention/redress of a wrong [Santos v. Vda. De As to cause of action
Caparas, (1959)] Involves a right and a May involve a right, but
violation of such right by there need not be a
ACTION VS CAUSE OF ACTION the defendant which violation of this right
(Asked in the 1999 Bar Exam) causes some
damage/prejudice upon
Cause of action Action the plaintiff
As to formalities
PAGE 14
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 15
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 16
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
The remedial right or The delict or wrongful EFFECTS OF SPLITTING A CAUSE OF ACTION: [Taken from
right to relief granted by act or omission 2011 Reviewer]
law to a party to institute committed by the (a) The filing of one or a judgment upon the merits in
an action against a defendant in violation of any one is available as a ground for the dismissal
person who has the primary rights of the of the others. [Rule 2, Sec.4]
committed a delict or plaintiff (b) Filing of the 1st complaint may be pleaded in
wrong against him abatement of the 2nd complaint, on the ground
Right to sue as a The delict or wrong of litis pendentia; or
consequence of the (c) A judgment upon the merits in any of the
delict complaints is available as ground for dismissal of
Whether such acts give Determined by the the others based on res judicata.
him right of action averments in the (d) A MTD under Rule 16 Sec. 1(e) or (f) may be filed
determined by pleading regarding the in order that the complaint may be dismissed.
substantive law acts committed by the
defendant BASIS: A party may not institute more than one suit
for a single cause of action. [Rule 2, Sec. 3]
Note: There can be no right of action without a cause
of action being first established [Regalado citing PURPOSE [City of Bacolod v. SM Brewery (1969)]
Español v. The Chairman of PVA (1985)] (a) To prevent repeated litigation between the same
parties in regard to the same subject or
FAILURE TO STATE A CAUSE OF ACTION controversy;
(a) There is a failure to state a cause of action if the (b) To protect the defendant from unnecessary
pleading asserting the claim states no cause of vexation. Nemo debet vexare pro una et eadem
action. This is a ground for a motion to dismiss. causa (No man shall be twice vexed for one and
[Rule 16, Sec.1(g)] the same cause);
(b) It is submitted that the failure to state a cause of (c) To avoid the costs and expenses incident to
action does not mean that the plaintiff has “no numerous suits.
cause of action.” It only means that the plaintiff’s
allegations are insufficient for the court to know A single act/omission can be violative of various
that the rights of the plaintiff were violated by the rights at the same time, as when the act constitutes
defendant. [Riano] juridically a violation of several separate and distinct
(c) There is a failure to state a cause of action if legal obligations. However, where there is only one
allegations in the complaint taken together, do delict/wrong, there is but a single cause of action
not completely spell out the elements of a regardless of the number of rights that may have
particular cause of action. [Riano] been violated belonging to one person. The
(d) A failure to state a cause of action is not the same singleness of a cause of action lies in the singleness
as an absence or a lack of cause of action. The of the delict/wrong violating the rights of a person. If
former refers to an insufficiency in the allegations only 1 injury resulted from several wrongful acts, only
of the complaint while the latter refers to the 1 cause of action arises. [Joseph v. Bautista (1989)]
failure to prove or to establish by evidence one’s
stated cause of action. [Riano] For a single cause of action or violation of a right, the
plaintiff may be entitled to several reliefs. It is the
TEST OF THE SUFFICIENCY OF A CAUSE OF filing of separate complaints for these several reliefs
ACTION that constitutes splitting up of the cause of action
Whether or not admitting the facts alleged, the court which is proscribed by Rule 2, Sec. 3 and 4. [City of
could render a valid verdict in accordance with the Bacolod v. SM Brewery (1969)]
prayer of the complaint [Santos v. de Leo (2005)]
JOINDER AND MISJOINDER OF CAUSES OF
SPLITTING A SINGLE CAUSE OF ACTION AND ITS ACTION
EFFECTS JOINDER OF CAUSE OF ACTION: It is the assertion of as
Definition: The act of instituting two or more suits on many causes of action as a party may have against
the basis of the same cause of action. [Rule 2, Sec.4] another in one pleading alone. It is also the process
PAGE 17
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
of uniting 2 or more demands or rights of action in only a single cause of action to maintain an
one action. [Riano citing Rule 2, Sec. 5 and CJS] action (Regalado).
PAGE 18
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 19
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 20
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 21
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 22
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 23
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 24
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 25
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
After the answer [Rule 11, Sec. 9] (a) It must arise out of, or be necessarily connected
(a) Counterclaims/cross-claims arising after the with, the transaction/occurrence that is the
answer, subject matter of the opposing party's claim;
(b) with the court’s permission, (b) It does not require for its adjudication the
(c) may be presented as a counterclaim/cross-claim presence of 3rd parties of whom the court cannot
by supplemental pleading before judgment. acquire jurisdiction;
(c) It must be within the court’s jurisdiction both as
Rules on counterclaims to the amount and the nature. [Regalado, citing
(a) In an original action before the RTC, the Quintanilla v CA (1997)]
counterclaim may be considered compulsory
regardless of the amount. [Rule 6, Sec. 7] General rule: A compulsory counterclaim not set up in
(b) In the case of Agustin v. Bacalan (1985), if a the answer is deemed barred.
counterclaim is filed in the MTC in excess of its
jurisdictional amount, the excess is considered Exception: If it is a counterclaim which either
waived. matured or was acquired by a party after serving his
(c) But in Calo v. Ajax (1968), the remedy where a answer. In this case, it may be pleaded by filing a
counterclaim is beyond the jurisdiction of the supplemental answer or pleading before judgment.
MTC is to set off the claims and file a separate [Rule 11, Sec. 9]
action to collect the balance.
Note:
Kinds of counterclaims (a) The filing of a MTD and the setting up of a
compulsory counterclaim are incompatible
Compulsory counterclaim Permissive counterclaim remedies.
(b) In the event that a defending party has a ground
One which arises out of It does not arise out of for dismissal and a compulsory counterclaim at
or is necessarily nor is it necessarily the same time, he must choose only one remedy.
connected with the connected with the (c) If he decides to file a MTD, he will lose his
transaction or subject matter of the counterclaim. But if he opts to set up his
occurrence -that is the opposing party's claim. counterclaim, he may still plead his ground for
subject matter of the dismissal as an affirmative defense in his answer.
opposing party's claim. (d) If any of the grounds to dismiss under Rule 17,
Does not require for its May require for its Sec. 3 arise, the proper recourse for a defendant
adjudication the adjudication the who desires to pursue his compulsory
presence of third parties presence of third parties counterclaim in the same proceeding is not a
of whom the court over whom the court MTD.
cannot acquire cannot acquire (e) Instead, he should only move to have the plaintiff
jurisdiction. jurisdiction. declared non-suited on the complaint so that the
Barred if not set up in Not barred even if not latter can no longer present his evidence thereon,
the action. set up in the action. and simultaneously move that he be declared as
Need not be answered; Must be answered, in default on the compulsory counterclaim, and
no default. otherwise, the defendant reserve the right to present evidence ex parte on
can be declared in his compulsory counterclaim. [BA Finance v. Co
default. (1993)]
(a) A permissive counterclaim requires the payment
of docket fees. [Sun Insurance v. Asuncion (1989)] Permissive counterclaim
(b) A plaintiff who fails or chooses not to answer a [NOTE: Please also refer to table comparing
compulsory counterclaim may not be declared in compulsory and permissive counterclaims]
default, principally because the issues raised in
the counterclaim are deemed automatically Test to determine whether a counterclaim is
joined by the allegations in the complaint. [Gojo v. compulsory or permissive
Goyala (1970)] Logical Relationship Test: Where conducting separate
trials of the respective claims would entail
Compulsory counterclaim substantial duplication of effort and time and
Requisites of a compulsory counterclaim [Rule 6, Sec involves many of the same factual and legal issues.
7] (Asked in the 1998 bar exam) [Meliton v. CA (1992)]
PAGE 26
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
Effect on the Counterclaim when the complaint is (b) Counter-Cross-claim - A claim filed against an
dismissed original cross-claimant.
Under Section 3, Rule 17, dismissal of action due to
plaintiff’s fault shall be without prejudice to the THIRD (FOURTH, ETC.) PARTY COMPLAINTS
[Rule 6, Sec.
defendant’s right to prosecute his counterclaim in 11]
the same/separate action. [NOTE: See also table in immediately preceding
subsection]
CROSS-CLAIMS [Rule 6, Sec. 8]
Requisites for cross-claim Definition: It is a claim that a defending party may,
(a) A claim by one party against a co-party; with leave of court, file against a person not a party
(b) It must arise out of the subject matter of the to the action for contribution, indemnity, subrogation
complaint or of the counterclaim; or any other relief, in respect of his opponent's claim.
(c) The cross-claimant is prejudiced by the claim
th
against him by the opposing party. There could also be a 4 /etc.-party complaint with
the same purpose and function.
General rule: A cross-claim is always compulsory. A
cross-claim not set up shall be barred. [Rule 9, Sec.
2] 3rd-party complaint Complaint in intervention
PAGE 27
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 28
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 29
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 30
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
How an action or defense may be based on a Disciplinary Action on Counsel Regarding Pleadings
document: [Rule 7, Sec. 3]
(a) By copying a substantial portion of the document (a) Deliberately filing an unsigned pleading;
into the pleading; (b) Deliberately signing a pleading in violation of the
(b) By annexing /incorporating the document into Rules;
the pleading; (c) Alleging scandalous/Indecent matter in the
(c) By both copying and annexing document into the pleading;
pleading. (d) Failing to promptly report a change of his
address.
SPECIFIC DENIALS
Three Ways of Making a Specific Denial Effect of failure to make specific denials
(1) Specific absolute denial – by specifically denying General rule: Defenses and objections not pleaded
the averment and, whenever practicable, setting either in a MTD or in the answer, are deemed waived.
forth the substance of the matters relied upon for [Rule 9, Sec. 1]
such denial.
Exceptions:
(2) Partial specific denial – part admission and part (a) Lack of jurisdiction over the subject matter;
denial; (b) Litis pendentia;
PAGE 31
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
Order of default Judgment by default Note: A defending party declared in default retains
the right to appeal from the judgment by default.
Issued by the court on Rendered by the court However, the grounds that may be raised in such an
plaintiff’s motion, for following a default order appeal are restricted to any of the following:
failure of the defendant or after it received ex (a) the failure of the plaintiff to prove the material
to file his responsive parte plaintiff’s evidence allegations of the complaint;
pleading seasonably (b) the decision is contrary to law; and
Interlocutory -Not Final – Appealable (c) the amount of judgment is excessive or different
appealable in kind from that prayed for. [Ortero v. Tan (2012)]
PAGE 32
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 33
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
Here, the court shall order the prosecuting Malanyaon v. Sunga (1992): Where the failure to
attorney to investigate WON parties are colluding appear at the pre-trial hearing was uncontrovertedly
and, if there is no collusion, to intervene from the due to illness, the default order may be set aside on
State to ensure that evidence is not fabricated. the ground of accident over which petitioner had no
control.
(b) Special civil actions of certiorari, prohibition and
mandamus, where comment (instead of an Also, the order of arrest was illegal as there is
answer) is required to be filed. nothing in the ROC which authorizes such a
consequence of a default order.
Failure to appear at pre-trial
Who fails to Effect Acquisition of jurisdiction
appear
Plaintiff Cause for dismissal of the FILING AND SERVICE OF PLEADINGS
action which will be with DEFINITION
prejudice, unless otherwise Filing – The act of presenting the pleading or other
ordered by the court paper to the clerk of court. [Rule 13, Sec. 2]
Defendant Cause to allow plaintiff to
present evidence ex parte, and Service – The act of providing a party or his counsel
court to render judgment on with a copy of the pleading or paper concerned. [Rule
the basis thereof 13, Sec. 2]
Default by defendant As in default PAPERS REQUIRED TO BE FILED AND SERVED [Rule 13, Sec.
(Rule 9, Sec. 3) (failure to appear by 4]
plaintiff) (Rule 18, Sec. 5) (a) Pleading subsequent to the complaint;
Upon motion and notice Not required (b) Appearance;
to defendant. (c) Written Motion;
Requires proof of failure Not required (d) Notice;
to answer (e) Order;
Court to render Court to allow plaintiff (f) Judgment;
judgment, unless it to present evidence ex (g) Demand;
requires submission of parte, then the court (h) Offer of Judgment;
evidence shall render judgment (i) Resolution;
Relief awarded must be Relief awarded may be (j) Similar papers.
the same in nature and of different nature and
amount as prayed for in amount from the relief PAYMENT OF DOCKET FEES
the complaint prayed for As a rule, the court acquires jurisdiction over the case
only upon payment of prescribed fees
PAGE 34
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
General rule: Without payment, case is considered within thirty (30) days after receipt of summons of the
not filed. Payment of docket fees is mandatory and foreign entity where the defendant is a foreign
jurisdictional. private juridical entity and service of summons is
made on the government official designated by law
It is not simply the filing of the complaint or to receive the same, the answer shall be filed [Rule
appropriate initiatory pleading but the payment of 11, Sec. 2]
the prescribed docket fee, that vests a trial court with
jurisdiction over the subject matter or nature of the Answer to amended complaint - Where the plaintiff
action [Proton Pilipinas v. Banque National de Paris files an amended complaint as a matter of right, the
(2005)] defendant shall answer the same within fifteen (15)
days after being served with a copy thereof.
Effect of Failure to Pay Docket Fees at Filing
Manchester v. CA (1987) [Old Rule]: AUTOMATIC Where its filing is not a matter of right, the defendant
DISMISSAL. Any defect in the original pleading shall answer the amended complaint within ten (10)
resulting in underpayment of the docket fees cannot days from notice of the order admitting the same. An
be cured by amendment, such as by the reduction of answer earlier filed may serve as the answer to the
the claim as, for all legal purposes, there is no amended complaint if no new answer is filed.
original complaint over which the court has acquired
jurisdiction Note that this Rule shall apply to the answer to an
amended counterclaim, amended cross-claim,
Modification by Sun Insurance v. Asuncion (1989): amended third (fourth, etc.) party complaint, and
NOT AUTOMATIC DISMISSAL BUT Court may allow amended complaint-in-intervention. [Rule 11, Sec. 3]
payment of fees within reasonable period of time.
Note that payment should always be within the Answer to counterclaim or cross-claim - A
prescriptive period of the action filed. counterclaim or cross-claim must be answered
within ten (10) days from service. [Rule 11, Sec. 4]
Further Modification by Heirs of Hinog v. Melicor
(2005): FEES AS LIEN. Where the trial court acquires Answer to third (fourth, etc.)- party complaint - Same
jurisdiction over a claim by the filing of the pleading rule as the answer to the complaint. [Rule 11, Sec. 5]
and the payment of the prescribed filing fee, BUT
SUBSEQUENTLY, the judgment awards a claim not Reply - within ten (10) days from service of the
specified in the pleading, or cannot then be pleading responded to. [Rule 11, Sec. 6]
estimated, or a claim left for determination by the
court, then the additional filing fee shall constitute a Answer to supplemental complaint - within ten (10)
lien on the judgment. days from notice of the order admitting the same,
unless a different period is fixed by the court.
Note: Appellate docket and other lawful fees must
be paid within the same period for taking an appeal. Note that the answer to the complaint shall serve as
Non-payment is a valid ground for dismissal of an the answer to the supplemental complaint if no new
appeal. [M.A. Santander v. Villanueva (2004)] or supplemental answer is filed.
However, delay in the payment of docket fees confers
upon the court discretionary and not mandatory NOTE: Upon motion and on such terms as may be
power to dismiss an appeal. [Villamor v. CA (2004)] just, the court may extend the time to plead provided
in these Rules. The court may also, upon like terms,
FILING VERSUS SERVICE OF PLEADINGS allow an answer or other pleading to be filed after
Filing is the act of presenting the pleading or other the time fixed by these Rules. [Rule 11, Sec. 11]
papers to the clerk of court. [Rule, 13, Sec. 2]
MANNER OF FILING
Service is the act of providing a party with a copy of Manner of filing [Rule 13, Sec. 3] (Asked in the 2005
the pleading or paper concerned. [Rule, 13, Sec. 2] Bar particularly in comparison with filing in criminal
actions)
PERIODS OF FILING OF PLEADINGS (a) Personally.
Answer to the complaint - The defendant shall file his (1) By personally presenting the original to the
answer to the complaint within fifteen (15) days after clerk of court.
service of summons, unless a different period is fixed
by the court. [Rule 11, Sec. 1]
PAGE 35
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
(2) The pleading is deemed filed upon the receipt 10 days after mailing, Affidavit of the person
of the same by the clerk of court who shall unless otherwise mailing of facts showing
endorse on it the date and hour of filing. provided by the court compliance with Sec. 7 of
(3) If a party avails of a private carrier, the date of Rule 13.
the court’s actual receipt of the pleading (not Service by registered mail
the date of delivery to the private carrier) is Whichever is earlier: Affidavit of the person
deemed to be the date of the filing of that (a) Actual receipt by mailing of facts showing
pleading. [Benguet Electric Cooperative v. the addressee compliance with Sec. 7 of
NLRC (1992)] (b) 5 days after the Rule 13
(b) By registered mail. addressee received
(1) Filing by mail should be through the registry 1st postmaster's AND
service (i.e. by depositing the pleading in the notice
post office). Registry receipt issued by
(2) The pleading is deemed filed on the date it the post office
was deposited with the post office.
MODES OF SERVICE [Rule 13, Sec. 5] Service of judgments, final orders or resolutions [Rule
Personal service [Rule 13, Sec. 6] 13, Sec. 9]
(a) Delivering personally a copy to the party or his (a) By personal service;
counsel. (b) By registered mail;
(b) Leaving a copy in counsel's office with his clerk or (c) By publication at the expense of the prevailing
with a person having charge thereof. party if party was summoned by publication and
(c) If no person is found in his office, or if his office is has failed to appear in the action.
unknown, or if he has no office – Leaving the copy
between 8am and 6pm at the party's or counsel's Priorities in modes of service and filing [Rule 13, Sec.
residence (if known) with a person of sufficient 11]
age and discretion then residing therein.
General rule: Personal filing and service. Resort to
Service by (registered) mail [Rule 13, Sec. 7] other modes of filing and service must be
(a) By depositing the copy in the office, in a sealed accompanied by an explanation why the
envelope, plainly addressed to the party or his service/filing was not done personally. If there is no
counsel at his office or at his residence (if known), written explanation, the paper is considered not
with postage fully pre-paid, and with instructions filed.
to the postmaster to return the mail to the sender
after 10 days if undelivered. Exception: Papers emanating from the court.
(b) If no registry service is available in the locality of
either sender or addressee, service may be done When service is deemed complete
by ordinary mail. (a) Personal service is deemed complete upon actual
delivery [Rule 13, Sec. 10]
Substituted service [Rule 13, Sec. 8] (b) Service by registered mail is complete upon
By delivering the copy to the clerk of court, with proof actual receipt by the addressee or after 5 days
of failure of both personal service and service by mail from the date he received the first notice of the
postmaster, whichever date is earlier. [Rule 13,
Completeness of service Proof of service (Rule 13 Sec. 10]
(Rule 13 Sec. 10) Sec. 13) (c) Service by ordinary mail is complete upon the
Personal service expiration of 10 days after mailing, unless the
Upon actual delivery Written admission of the court otherwise provides [Rule 13, Sec. 10]
party served, OR (d) Substituted service is complete at the time of
Official return of the server delivery of the copy to the clerk of court together
OR with the proof of failure of both personal service
Affidavit of the party and service by mail. [Rule 13, Sec. 8]
serving, with a full
statement of the Purpose of the rule on completeness of service for
date/place/manner of service by registered mail: To make sure that the
service. party being served with the pleading, order or
Service by ordinary mail judgment is duly informed of the same so that such
party can take steps to protect the interests, i.e.,
PAGE 36
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
enable to file an appeal or apply for other Notice of lis pendens [Rule 13, Sec. 14]
appropriate reliefs before the decision becomes final. Lis Pendens - Notice of a pendency of the action
[MINTERBRO v,CA (2012)] between the parties involving title to or right of
possession over real property.
Proof of filing and service
Proof of filing Requisites: [AFP Mutual Benefit Association v. CA
(a) Filing is proved by its existence in the record of (2001)]
the case [Rule 13, Sec. 12]. (a) Action affects the title or the right of possession
(b) If it is not in the record [Rule 13, Sec. 12]. of the real property;
(b) Affirmative relief is claimed;
When pleading is deemed Proof of filing (c) Notice shall contain the name of the parties and
filed the object of the action/defense and a description
Personally of the property affected thereby;
Upon receipt of the Written/stamped (d) Action in rem.
pleading by the clerk of acknowledgment by the (1) The notice serves as a warning to all persons,
court clerk of court prospective purchasers or encumbrancers of
By registered mail the property in litigation to keep their hands
On the date the pleading Registry receipt, and off the property in litigation unless they are
was deposited with the affidavit of the person prepared to gamble on the result of the
post office who did the mailing proceedings.
with: (2) The defendant may also record a notice of lis
(a) Full statement of pendens when he claims an affirmative relief
the date/place of in his answer.
depositing the mail (3) The notice of cannot be cancelled on an ex
in the post office in a parte motion or upon the mere filing of a bond
sealed envelope by the party on whose title the notice is
addressed to the annotated, as Sec. 14 provides that such
court cancellation may be authorized only upon
(b) Postage fully paid order of court, after proper showing that:
(c) Instructions to the [Roxas v. CA (1993)]
postmaster to return (4) The notice is for the purpose of molesting the
the mail to the adverse party; or
sender after 10 days (5) It is not necessary to protect the rights of the
if undelivered party who caused it to be recorded
Proof of Service [Rule 13, Sec. 13] Amended and supplemental pleadings
(a) Proof of personal service shall consist of:
(1)a written admission of the party served, or the AMENDMENT
official return of the server, OR HOW TO AMEND PLEADINGS [Rule 10, Sec. 1]
(2) the affidavit of the party serving, (a) Adding an allegation of a party;
(3) Content: full statement of the date, place (b) Adding the name of a party;
and manner of service. (c) Striking out an allegation of a party;
(b) Proof of service by ordinary mail: (d) Striking out the name of a party;
(1)an affidavit of the person mailing (e) Correcting a mistake in the name of a party; and
(2) Content: facts showing compliance with (f) Correcting a mistaken or inadequate allegation or
Rule 13, Sec. 7 description in any other respect.
(c) Proof of service by registered mail
(1) an affidavit of the person mailing containing Purpose: That the actual merits of the controversy
the facts showing compliance with Rule 13, may speedily be determined, without regard to
Sec. 7, AND technicalities, and in the most expeditious and
(2) the registry receipt issued by the mailing inexpensive manner.
office.
(3) the registry return card which shall be filed Barfel Development v. CA (1993): As a general policy,
immediately upon its receipt by the sender, or liberality in allowing amendments is greatest in the
in lieu thereof of the unclaimed letter together early stages of a law suit, decreases as it progresses
with the certified or sworn copy of the notice and changes at times to a strictness amounting to a
given by the postmaster to the addressee. prohibition.
PAGE 37
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 38
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 39
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 40
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
CONSTRUCTIVE SERVICE (BY PUBLICATION) [Rule from any interest in any property within the
14, Sec. 14] Philippines;
(d) Has defendant’s property in the Philippines,
REQUISITES attached.
(1) The action is in rem or quasi in rem;
(2) Defendant's identity or whereabouts are unknown MODES OF SERVICE
and cannot be ascertained by diligent inquiry; (1) With leave of court, serve outside the Philippines
(3) There must be leave of court. by personal service; or
(2) With leave of court, serve by publication in a
Summons by publication in a personal action cannot newspaper of general circulation, in which case
confer upon the court jurisdiction over the person of copy of the summons and order of the court must
the defendant, who does not voluntarily submit also be sent by registered mail to the defendant’s
himself to the authority of the court. last known address;
(3) Any other manner the court deems sufficient
The proper recourse for the plaintiff is to locate
properties of the defendant whose address is The court order granting extraterritorial service shall
unknown and cause them to be attached. specify a period of at least 60 days within which the
[Consolidated Plywood v. Breve (1988)] defendant must answer.
SERVICE OF SUMMONS UPON DIFFERENT ENTITIES SERVICE UPON PRISONERS AND MINORS
See Annex A. SERVICE UPON PRISONER [Rule 14, Sec. 9]
Serve upon the officer having management of the
SERVICE UPON A DEFENDANT WHERE HIS IDENTITY IS jail/prison
UNKNOWN OR WHERE HIS WHEREABOUTS ARE UNKNOWN
[Rule 14, Sec. 14] SERVICE UPON MINORS AND INCOMPETENTS [Rule 14, Sec.
10]
With leave of court, by publication in a newspaper of Serve upon the minor/incompetent and on his legal
general circulation guardian.
(a) If there is no guardian, plaintiff may apply for the
SERVICE UPON RESIDENTS TEMPORARILY OUTSIDE THE appointment of a guardian ad litem.
PHILIPPINES [Rule 14, Sec. 16] (b) If minor, may serve on his parents.
PAGE 41
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
(2) Specify any papers which have been served with SERVICE OF SUMMONS UPON DIFFERENT ENTITIES
the process and the name of the person who See Annex A.
received the same;
(3) Be sworn to when made by a person other than a
sheriff or his deputy.
Inclusion in the MTD of grounds other than LOJ over General rule: A motion cannot pray for judgment.
the defendant’s person, is not deemed a voluntary
appearance. Any mode of appearance in court by a Exception:
defendant or his lawyer is equivalent to service of (1) Motion for judgment on the pleadings.
summons, absent any indication that the (2) Motion for summary judgment.
appearance of counsel for petitioner is precisely to (3) Motion for judgment on demurrer to evidence.
protest the jurisdiction of the court over the person of
the defendant. [Delos Santos v. Montesa (1993)] CONTENTS AND FORM OF MOTIONS
Contents [Rule 15, Sec. 3]
(1) Relief sought to be obtained
(2) Grounds upon which it is based
PAGE 42
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 43
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PURPOSE AND WHEN APPLIED FOR (2) BOP or definite statement filed either as a
It is filed by the plaintiff pursuant to a court order separate pleading or as an amended pleading, a
issued upon granting a motion for BOP filed by the copy of which must be served on the adverse
defendant before the latter files an answer. party.
In said motion, the defendant prays for a more Effect of non-compliance [Rule 12, Sec. 4]
definite statement of matters which are not averred In case of non-compliance or insufficient compliance
with sufficient definiteness in the complaint. with the order for BOP, the court:
(1) May order the striking out of the pleading (or
An action cannot be dismissed on the ground that portion thereof) to which the order is directed; OR
the complaint is vague/indefinite. The remedy of the (2) Make such order as it may deem just.
defendant is to move for a BOP or avail of the proper
mode of discovery. [Galeon v. Galeon (1973)] If the plaintiff fails to obey, his complaint may be
dismissed with prejudice unless otherwise ordered by
Purpose the court. [Rule 12, Sec. 4; Rule 17, Sec. 3]
To inform the adverse party more specifically of the
precise nature and character of the cause of action or If defendant fails to obey, his answer will be stricken
defense alleged in the pleading, with the view of off and his counterclaim dismissed, and he will be
enabling him to prepare properly his responsive declared in default upon motion of the plaintiff. [Rule
pleading or to prepare for trial. 9, Sec. 3; Rule 12, Sec. 4; Rule 17, Sec. 4]
The purpose of a BOP is to define/ clarify/ EFFECT ON THE PERIOD TO FILE A RESPONSIVE PLEADING
particularize/ limit/ circumscribe the issues in the [Rule 12, Sec. 5]
case to expedite the trial and assist the court.
A Motion for BOP interrupts the period to file a
The only question to be resolved in a motion for a responsive pleading.
BOP is WON the allegations in the complaint are
averred with sufficient definiteness/ particularity to The period to which the movant is entitled at the
enable the movant to properly prepare his time of filing of the motion, which shall not be less
responsive pleading and to prepare for trial. than 5 days in any event.
[Tantuico, Jr. v. Republic (1991)]
NOTE the following distinctions:
A BOP becomes part of the pleading for which it was
intended. [Rule 12, Sec. 6]
Bill of Particulars (BOP) Intervention
When applied for [Rule 12, Sec. 1]
(1) Before responding to a pleading Purpose is to enable a Purpose is to enable a
(2) If the pleading is a reply, within 10 days from party bound to respond person not yet a party to
service thereof to a pleading to get an action, yet having a
What a motion for bill of particulars should point out more details about certain right or interest in
[Rule 12, Sec. 1] matters which are such action, the
(1) The defects complained of; alleged generally or opportunity to appear
(2) The paragraph wherein they are contained; which are indefinite and and be joined so he
(3) The details desired. vague, so as to properly could assert or protect
guide such party in such right or interest
ACTIONS OF THE COURT [Rule 12, Sec. 2] answering the pleading
(1) Deny; and to avoid surprise in
(2) Grant the motion outright; the trial of the case
(3) Allow the parties the opportunity to be heard. Available to the Available to any person
defendant before he files not yet a party to the
COMPLIANCE WITH THE ORDER AND EFFECT OF NON- his responsive pleading action at any time after
COMPLIANCE the commencement of
Compliance with order [Rule 12, Sec. 3] an action, even during
If motion for BOP is granted wholly/partially: the proceeding, but not
(1) Within 10 days from notice of order, BOP or a after the trial has been
more definite statement should be submitted concluded
(unless court fixes a different period).
PAGE 44
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
Terminating the action before trial (b) LOJ over the subject matter of the claim
(c) Improper venue
MOTION TO DISMISS (d) Plaintiff’s lack of legal capacity to sue
DEFINITION (e) Litis pendentia
A remedy of the defendant, or the responding party (f) Res judicata
in general, which attacks the entire pleading and (g) Prescription
seeks its dismissal based on: (h) Failure to state a cause of action
(1) Grounds which are patent on the face of the (i) Extinguished claim
complaint; (j) Unenforceable claim under the Statute of Frauds
(2) Defenses available to the defendant at the time (k) Non-compliance with a condition precedent for
of the filing of the complaint filing claim
It hypothetically admits the facts stated in the LOJ over the defendant’s person
complaint. The objection of LOJ over the person on account of
lack of service or defective service of summons, must
It is not a responsive pleading. It is not a pleading at be raised:
all. It is subject to the omnibus motion rule since it is (1) At the very first opportunity;
a motion that attacks a pleading. Hence, it must (2) Before any voluntary appearance is made.
raise all objections available at the time of the filing If a defendant had not been properly summoned, the
thereof. period to file a MTD for LOJ over his person does not
commence to run until he voluntarily submits to the
General rule: A court may not motu propio dismiss a jurisdiction of the court. [Laus v. CA (1993)]
case, unless a motion to that effect is filed by a party.
Appearance of counsel is equivalent to summons,
Exception: unless such is made to protest the jurisdiction of the
(1) Cases where the court may dismiss a case motu court over the person of the defendant. If grounds
propio; [Rule 9, Sec. 1] other than invalid service of summons are raised, it
(2) Failure to prosecute; [Rule 17, Sec. 3] cannot be considered as a special appearance. [De
(3) Sec. 4, Revised Rule on Summary Procedure. los Santos v. Montesa (1993)]
TYPES OF DISMISSAL OF ACTION LOJ over the subject matter of the claim
(1) MTD before answer under Rule 16; If the complaint shows on its face LOJ, the court may
(2) MTD under Rule 17: dismiss the case outright instead of hearing the
(a) Upon notice by plaintiff; motion.
(b) Upon motion by plaintiff;
(c) Due to fault of plaintiff. A MTD on the ground of LOJ over the subject matter
(3) Demurrer to evidence after plaintiff has may be raised either:
completed the presentation of his evidence under (1) Before answer;
Rule 33; (2) After answer is filed;
(4) Dismissal of an appeal. (3) After hearing had commenced;
(4) At any stage of the proceeding, even for the first
Note: time on appeal and even if no such defense is
A MTD shall be proved/disproved according to the raised in the answer.
rules of evidence.
Improper venue
The hearing shall be conducted as an ordinary Unless and until the defendant objects to the venue
hearing and the parties shall be allowed to present in a MTD prior to a responsive pleading, the venue
evidence, except when the motion is based upon cannot truly be said to have been improperly laid
failure of the complaint to state a cause of action. since, for all practical intents and purposes, the
venue though technically wrong may yet be
When the MTD is based on facts not appearing of considered acceptable to the parties for whose
record, the court may hear the matter on convenience the rules on venue had been devised.
affidavits/depositions. Improper venue may be waived and such waiver may
occur by laches. [Diaz v. Adiong (1993)]
GROUNDS [Rule 16, Sec. 1] (Asked in the 2008 Bar
Exam) A stipulation between the parties as to venue does
(a) LOJ over the defendant’s person not preclude the filing of suits in the residence of
PAGE 45
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
If the court erroneously denies the MTD, the remedy Res judicata
is prohibition. Requisites (Asked in the 2000 Bar Exam):
(1) Former judgment rendered by a court having
Plaintiff’s lack of legal capacity to sue jurisdiction over the subject matter and over the
The plaintiff lacks legal capacity to sue: parties;
(1) When he does not possess the necessary (2) Judgment must be a final judgment;
qualification to appear at the trial (e.g. when he (3) Judgment must be on the merits;
plaintiff is not in the full exercise of his civil There can be res judicata without a trial, such as
rights); in a judgment on the pleadings (Rule 34); a
(2) When he does not have the character which he summary judgment (Rule 35); or an order of
claims, which is a matter of evidence (e.g. when dismissal under Rule 17, Sec. 3.
he is not really a duly appointed administrator of (4) There must be identity of parties, of subject
an estate). matter and of the causes of action.
Lack of legal capacity to sue refers to plaintiff’s For res judicata to apply, absolute identity of parties
disability; while lack of legal personality to sue refers is not required because substantial identity is
to the fact that the plaintiff is not a real party in sufficient. Inclusion of additional parties will not
interest, in which case the ground for dismissal affect the application of the principle of res judicata.
would be that the complaint states no cause of
action. The test of identity of cause of action lies not in the
form of the action but on WON the same evidence
Litis pendentia would support and establish the former and the
Requisites: [Anderson Group v. CA (1997) Asked in the present causes of action. [DBP v. Pundogar (1993)]
2007 Bar Exam]
(1) Identity of parties; Rationale: The sum and substance of the whole
(2) identity of rights asserted and relief prayed for; doctrine is that a matter once judicially decided is
(3) Relief founded on the same facts and the same finally decided because of:
basis; (1) Public policy and necessity makes it the interest
(4) Identity in the 2 proceedings should be such that of the State that there should be an end to
any judgment which may be rendered in the other litigation;
action will amount to res judicata on the action (2) The hardship on the individual that he should be
under consideration. vexed twice for the same cause. [Nabus v. CA
(1991)]
It is not required to allege that there be a prior
pending case. It is sufficient to allege and prove the Two concepts of res judicata [ABALOS V. CA 1993,
pendency of another case, even if same had been ASKED IN THE 1997 BAR EXAM)]
brought later. (1) Bar by prior judgment – Judgment on the merits
in the 1st case constitutes an absolute bar to the
It does not require that the later case be dismissed in subsequent action not only as to every matter
favor of the earlier case. To determine which case which was offered and received to sustain or
should be abated, apply: defeat the claim/demand, but also to any other
(1) The More Appropriate Action Test; admissible matter which might have been offered
(2) The Interest of Justice Test, taking into account: for that purpose and to all matters that could
(a) Nature of the controversy; have been adjudged in that case. (Asked in the
(b) Comparative accessibility of the court to the 2002 Bar Exam)
parties;
(c) Other similar factors. (2) Conclusiveness of judgment – Where the 2nd
action between the parties is upon a different
In both tests, the parties’ good faith shall be taken claim/demand, the judgment in the 1st case
into consideration. operates as an estoppel only with regard to those
PAGE 46
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
issues directly controverted, upon the Test: Assuming the allegations and statements to be
determination of which the judgment was true, does the plaintiff have a valid cause of action?
rendered.
A MTD based upon the ground of failure to state a
Note: A single act or omission that causes damage to cause of action imports a hypothetical admission by
an offended party may give rise to two separate civil the defendant of the facts alleged in the complaint.
liabilities on the part of the offender (1) civil liability ex
delicto, that is, civil liability arising from the criminal If the court finds the allegations of the complaint to
offense under Article 100 of the Revised Penal Code, be sufficient but doubts their veracity, it must deny
52 and (2) independent civil liability, that is, civil the MTD and require the defendant to answer and
liability that may be pursued independently of the then proceed to try the case on its merits.
criminal proceedings. Because of the distinct and
independent nature of the two kinds of civil liabilities, A complaint containing a premature cause of action
jurisprudence holds that the offended party may may be dismissed for failure to state a cause of
pursue the two types of civil liabilities simultaneously action.
or cumulatively, without offending the rules on forum
shopping, litis pendentia, or res judicata.[Lim v. Co If the suit is not brought against the real party-in-
(2012)] interest, a motion to dismiss may be filed on the
ground that the complaint states no cause of action.
On naturalization: A decision or order granting [Tanpinco v. IAC (1992)]
citizenship will not even constitute res judicata to any
matter or reason supporting a subsequent judgment Extinguished claim
cancelling the certification of naturalization already That the claim/demand set forth in the plaintiff's
granted, on the ground that it had been illegally or pleading has been paid, waived, abandoned or
fraudulently procured. [Republic v. Ong (2012)] otherwise extinguished.
The failure to state a cause of action must be evident Non-compliance with a condition precedent
on the face of the complaint itself. Non-compliance with PD 1508 (Katarungang
Pambarangay Law) may result in dismissal of the
PAGE 47
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
case on the ground of non-compliance with a Appeal is not a remedy since denial of a motion
condition precedent. to dismiss is an interlocutory order. As a general
rule, defendant files his answer and then may
RESOLUTION OF MOTION appeal an adverse judgment.
During the hearing of the motion, parties shall
submit: [Rule 16, Sec. 2] (2) Another remedy is to file a certiorari, case under
(1) Their arguments on questions of law; Rule 65 alleging grave abuse of discretion.
(2) Their evidence on questions of fact. [Riano]
After the hearing, the court may either: [Rule 16, Sec. Exception: The action cannot be re-filed (although
3] subject to appeal) if it was dismissed on any of the
(1) Dismiss the action/claim; following grounds:
(2) Deny the MTD; (1) Res judicata;
(3) Order the amendment of pleadings. (2) Prescription;
(3) Extinguishment of the claim/demand;
The court cannot defer the resolution of the MTD for (4) Unenforceability under the Statute of Frauds.
the reason that the ground relied upon is not [Rule 16, Sec. 1 (f),(h),(i)]
indubitable.
On periods for pleading: [Rule 16, Sec.4]
The court’s resolution on the MTD must clearly and If MTD is denied – Movant must file his answer within
distinctly state the reasons therefor. the balance of the period under Rule 11 to which he
was entitled at the time of serving his MTD (but not
REMEDIES OF PLAINTIFF WHEN THE COMPLAINT IS less than 5 days) computed from the his receipt of
DISMISSED notice of the denial.
Remedies of plaintiff when motion to dismiss is
granted If pleading is ordered to be amended – movant must
If the motion is granted, the complaint is dismissed. file his answer within the period under Rule 11,
Since the dismissal is final and not interlocutory in counted from service of the amended pleading
character, the plaintiff has several options: (unless the court gives a longer period).
(1) Depending upon the ground for the dismissal of
the action, the plaintiff may refile the complaint, On other grounds and omnibus motion rule:
e.g when ground for dismissal is anchored on MTD based on the following grounds may be filed
improper venue. even after filing an answer: [Rule 9, Sec. 1]
(2) He may appeal from the order of dismissal where (1) LOJ over subject-matter;
the ground relied upon is one which bars refilling (2) Litis pendentia;
of complaint e.g. (3) Res judicata;
(a) Res judicata (4) Prescription.
(b) Prescription
(c) Extinguishment of the obligation Dismissal of the complaint under Rule 16, Sec. 6 is
(d) Violation of Statutes of Fraud without prejudice to the prosecution (in the same or
(3) The plaintiff may also avail of a petition for in a separate action) of a counterclaim pleaded in
certiorari, alleging grave abuse of discretion. the answer.
[Riano]
WHEN GROUNDS PLEADED AS AFFIRMATIVE DEFENSES
REMEDIES OF THE DEFENDANT WHEN THE MOTION IS [Rule 16, Sec. 6]
DENIED If no MTD was filed, the grounds in Rule 16, Sec. 1
(1) The movant shall file his answer within the may be pleaded as an affirmative defense and the
balance of the period described in Rule 11 to court may conduct a preliminary hearing thereon as
which he was entitled at the time of serving his if a MTD was filed.
motion, but not less than 5 days in any event.
PAGE 48
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
BAR BY DISMISSAL Upon plaintiff’s filing of notice, the court shall issue
Subject to the right of appeal, an order granting a an order dismissing the case. (i.e. the court has no
motion to dismiss based on paragraphs: discretion on WON to dismiss the case).
(f) – That the cause of action is barred by a prior
judgment or by the statute of limitations; General rule: The dismissal is without prejudice.
(h) – That the claim or demand set forth in the
plaintiff’s pleading has been paid, waived, Exceptions:
abandoned, or otherwise extinguished; and (1) If the notice of dismissal provides that it is with
(i) - That the claim on which the action is founded is prejudice.
enforceable under the provisions of the statute The dismissal is still with prejudice even it the
of frauds notice of dismissal does not so provide, where
such notice is premised on the fact of payment by
shall bar the refiling of the same action or claim. the defendant of the claim involved. [Serrano v.
[Rule 16, Sec. 5] Cabrera (1953)]
PAGE 49
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
rested his case does not warrant the dismissal res judicata. Res judicata, however, is not applicable
of the case on the ground of failure to since the court held that it did not acquire
prosecute. jurisdiction due to non-payment of docket fees.
(b) It is merely a waiver of his right to cross-
examine and to object to the admissibility of Dismissal on the ground of LOJ does not constitute
evidence. [Jalover v. Ytoriaga (1977)] res judicata, there being no consideration and
(2) To prosecute his action for an unreasonable adjudication of the case on the merits. Neither is
length of time (nolle prosequi); there litis pendentia. [Meliton v. CA (1992)]
The test for dismissal of a case due to failure to
prosecute is WON, under the circumstances, the
plaintiff is chargeable with want of due diligence
in failing to proceed with reasonable
promptitude. [Calalang v. CA (1993)]
Pre-Trial
(3) To comply with the ROC or any court order.
CONCEPT OF PRE-TRIAL
DEFINITION
The dismissal has the effect of an adjudication on the
A mandatory conference and personal confrontation
merits, unless the court declares otherwise, without
before the judge between the parties litigant and
prejudice to the right of the defendant to prosecute
their representative counsels, called by the court
his counter-claim in the same or separate action.
after the joinder of issues in a case or after the last
pleading has been filed and before trial, for the
purpose of settling the litigation expeditiously or
Rule 17, Sec. 2 Rule 17, Sec. 3
simplifying the issues without sacrificing the
necessary demands of justice (Asked in the 1999 Bar
Dismissal is at the Dismissal is not procured
Examination, Examiner asked to compare this with
plaintiff’s instance by plaintiff, although
proceedings in the Katarungang Pambarangay).
justified by causes
imputable to him
NATURE AND PURPOSE
Dismissal is a matter of Dismissal is a matter of PURPOSE
procedure, without evidence, an To consider: [Rule 18, Sec. 2]
prejudice unless adjudication on the (a) Possibility of an amicable settlement or of a
otherwise stated in the merits submission to alternative modes of dispute
court order or on resolution;
plaintiff’s motion for (b) Simplification of the issues;
dismissal of his own (c) Necessity/desirability of amendments to the
complaint. pleadings;
Dismissal is without Dismissal is without (d) Possibility of obtaining stipulations or admissions
prejudice to the prejudice to the of facts and of documents to avoid unnecessary
defendant’s right to defendant’s right to proof;
prosecute his prosecute his (e) Limitation of the number of witnesses;
counterclaim in a counterclaim in the (f) Advisability of a preliminary reference of issues to
separate action (unless same or in a separate a commissioner;
within 15 days from action (g) Propriety of rendering judgment on the
notice of the motion he pleadings, or summary judgment, or of
manifests his intention dismissing the action should a valid ground
to have his counterclaim therefor be found to exist;
resolved in the same (h) Advisability/necessity of suspending the
action). proceedings; and
(i) Other matters that may aid in the prompt
DISMISSAL OF COUNTERCLAIM, CROSS-CLAIM disposition of the action.
OR THIRD-PARTY COMPLAINT [Rule 17, Sec. 4]
Note:
This Rule applies to the dismissal of counterclaims, (a) Pre-trial is primarily intended to make certain
cross-claims or 3rd-party complaints. that all issues necessary to the disposition of a
case are properly raised.
Where a counterclaim is made the subject of a (b) Thus, to obviate the element of surprise, parties
separate suit, it may be abated upon a plea of auter are expected to disclose at a pre-trial conference
action pendentia and/or dismissal on the ground of (PTC) all issues of law and fact which they intend
PAGE 50
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
to raise at the trial, except such as may involve Citibank v. Chua (1993): SC admonishes the courts
privileged or impeaching matters. The against precipitate orders of default as they have the
determination of issues at a pre-trial conference effect of denying the party the chance to be heard.
bars the consideration of other questions on
appeal. [Caltex v. CA (1992)] There are instances when parties may properly be
(c) When conducted: After the last pleading has defaulted, but such is the exception rather than the
been served and filed, it shall be the plaintiff’s rule and should be used only in clear cases of
duty to move ex parte that the case be set for pre- obstinate refusal or inordinate neglect to comply
trial. [Rule 18, Sec. 1] with court orders.
(d) A pre-trial cannot validly be held until the last
pleading has been filed, which last pleading may FAILURE TO APPEAR AT PRE-TRIAL
be the plaintiff's reply, except where the period to Who fails to Effect
file the last pleading has lapsed. appear
(e) Discretion to declare a party non-suited in PTC Plaintiff Cause for dismissal of the
must not be abused. Unless a party is so action which will be with
negligent, irresponsible, contumacious, or prejudice, unless otherwise
dilatory as to provide substantial grounds for ordered by the court
dismissal for non-appearance, the court should Defendant Cause to allow plaintiff to
consider lesser sanctions which would still present evidence ex parte, and
amount to achieving the end desired. [Calalang v. court to render judgment on
CA (1993)] the basis thereof
NOTICE OF PRE-TRIAL [Rule 18, Sec. 3] Default by defendant As in default
Notice of pre-trial shall be served on counsel, or on (Rule 9, Sec. 3) (failure to appear by
the party who has no counsel. plaintiff) (Rule 18, Sec. 5)
Upon motion and notice Not required
Counsel served with such notice has a duty to notify to defendant.
the party he represents. Requires proof of failure Not required
to answer
At the start of the preliminary conference, the judge Court to render Court to allow plaintiff
is mandated to refer the parties and/or their judgment, unless it to present evidence ex
counsels to the mediation unit of the Philippine requires submission of parte, then the court
Mediation Center (PMC) for purposes of mediation. If evidence shall render judgment
the mediation fails, the judge will schedule the
Relief awarded must be Relief awarded may be
continuance of the preliminary conference. This rule
the same in nature and of different nature and
applies to Metro Manila, Cebu Davao City, and other
amount as prayed for in amount from the relief
place where PMC Units may be further organized
the complaint prayed for
and designated. [Admin, Circular No. 20-2002;
Admin. Circular No. 50-2005, April 26, 2005]
(a) A defendant who already filed an answer cannot
be declared in default. Only when the defendant
APPEARANCE OF PARTIES; EFFECT OF FAILURE
fails to file an answer to the complaint may the
TO APPEAR
court proceed to render judgment. [Lesaca v. CA
APPEARANCE OF PARTIES [Rule 18, Sec. 4]
(1992)]
It is the duty of the parties and their counsel to
(b) The Revised Rules on Summary Procedure does
appear at the pre-trial.
not provide that an answer filed after the
reglementary period should be expunged from
A party’s non-appearance may be excused only if
the records.
either:
(c) As a matter of fact, there is no provision for an
(a) Valid cause is shown for it;
entry of default if a defendant fails to file his
(b) A representative appears in his behalf, fully
answer.
authorized in writing:
(d) The defense of LOJ may have even been raised by
(1) To enter into an amicable settlement;
the defendant in a MTD as an exception to the
(2) To submit to alternative modes of dispute
rule on prohibited pleadings in the Revised Rule
resolution;
on Summary Procedure.
(3) To enter into stipulations/admissions of facts
(e) Such a motion is allowed under Sec. 19(a) thereof.
and of documents.
[Bayog v. Natino (1996)]
PAGE 51
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
(f) Where the failure to appear at the pre-trial (e) If despite all efforts exerted by the TC and the
hearing was uncontrovertedly due to illness, the parties the settlement conference still fails, then
default order may be set aside on the ground of the action should have continued as if no
accident over which petitioner had no control. suspension had taken place. [Goldloop Properties
(g) Also, the order of arrest was illegal as there is v. CA (1992)]
nothing in the ROC which authorizes such a
consequence of a default order. [Malanyaon v. Note: AM 03-1-09-SC (No termination of pre-trial for
Sunga (1992)] failure to settle)
PAGE 52
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
Under the Rules, they reduced in writing and EXCEPTION TO THE APPLICATION OF RA 9285:
are instead to be signed by both the (a) labor disputes covered by the Labor Code;
contained in the record accused and counsel; (b) the civil status of persons;
of pre-trial and pre-trial otherwise, they cannot (c) validity of a marriage;
order [Rule 18, Sec. 7] be used against the (d) any ground for legal separation;
accused. [Rule 118, Sec. (e) the jurisdiction of courts;
[AM No. 03-1-09] - 2] (f) future legitime;
requires the proceedings (g) criminal liability; and
during the preliminary (h) those which by law cannot be compromised.
conference to be
recorded in the “Minutes MODES OF ALTERNATIVE DISPUTE RESOLUTIONS:
of Preliminary Arbitration [RA, 9285, Section 1]
Conference” to be signed A voluntary dispute resolution process in which one
by both parties and/or or more arbitrators, appointed in accordance with
counsel. the agreement of the parties, or rules promulgated
(Note: either party or his pursuant to this Act, resolve a dispute by rendering
counsel is allowed to an award\
sign)
The sanctions for non- Sanctions are imposed Note: A court before which an action is brought in a
appearance are imposed upon the counsel for the matter which is the subject matter of an arbitration
upon the plaintiff and accused or the agreement shall, if at least one party so requests not
the defendant [Rule 18, prosecutor [Rule 118, later that the pre-trial conference, or upon the
Sec. 4] Sec. 3] request of both parties thereafter, refer the parties to
A pre-trial brief is A pre-trial brief is not arbitration unless it finds that the arbitration
specifically required to specifically required. agreement is null and void, inoperative or incapable
be submitted [Rule 18, of being performed. [RA 9285, Sec. 24]
Sec. 6]
Different Kinds:
ALTERNATIVE DISPUTE RESOLUTION (ADR) (a) Domestic Arbitration – an arbritration that is not
[RA 9285] international; governed by RA 876 (Arbitration
WHAT IS ALTERNATIVE DISPUTE RESOLUTION SYSTEM? Law) [RA 9285, Sec. 32]
Means any process or procedure used to resolve a (b) International Arbitration - An arbitration is
dispute or controversy, other than by adjudication of international if:
a presiding judge of a court or an officer of a (1) the parties to an arbitration agreement have,
government agency, as defined in this Act, in which a at the time of the conclusion of that
neutral third party participates to assist in the agreement, their places of business in
resolution of issue [RA 9285, Sec. 3] different States; or
(2) one of the following places is situated outside
POLICY BEHIND THE ADR: to actively promote party the State in which the parties have their
autonomy in the resolution of disputes or the places of business:
freedom of the party to make their own (i) the place of arbitration if determined in, or
arrangements to resolve their disputes [RA 9285, pursuant to, the arbitration agreement;
Sec. 2] (ii) any place where a substantial part of the
obligations of the commercial relationship
Notes: is to be performed or the place with which
At the start of the pre-trial conference, the judge the subject-matter of the dispute is most
shall immediately refer the parties and/or their closely connected; or
counsel if authorized by their clients to the PMC (3) the parties have expressly agreed that the
mediation unit for purposes of mediation if subject matter of the arbitration agreement
available.[AM No. 03-1-09-SC] relates to more than one country [Article 3,
Model Law on International Commercial
The pre-trial briefs of parties must include the Arbritration]
parties’ statement of their willingness to enter into
an amicable settlement indicating the desired terms
PAGE 53
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
Metropolitan Bank v. Presiding Judge (1990): (b) When the title to the property if declared void by
Intervention is a proceeding in a suit/action by which final judgment, intervention will not revive or
a 3rd person is permitted by the court to make reinstate the movant’s title derived from the title
himself a party, either joining plaintiff in claiming declared void. [Firestone Ceramics v. CA (1999)]
what is sought by the complaint, or uniting with
PAGE 54
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
(c) The assignee of a property who assumed complaint, without the establishment of which
payment of whatever amount may be finally plaintiff could not recover.
adjudged against the assignor, may intervene in a
proceeding involving the execution of the PLEADINGS IN INTERVENTION [Rule 19, Sec. 3]
property pursuant to a judgment. [Robles v. Complaint-in-intervention – If intervenor asserts a
Timario (1962)] claim against either or all of the original parties.
(d) In an action for foreclosure of mortgage, the Answer-in-intervention – If intervenor unites with the
alleged owners of the land sought ot be defending party in resisting a claim against the
foreclosed may intervene. [Roxas v. Dinglasan latter.
(1969)]
Answer to complaint-in-intervention [Rule 19, Sec. 4]
Note: Notwithstanding the presence of a legal It must be filed within 15 days from notice of the
interest, permission to intervene is subject to the order admitting the complaint-in-intervention,
sound discretion of the court, the exercise of which is unless a different period is fixed by the court.
limited by considering "whether or not the
intervention will unduly delay or prejudice the
adjudication of the rights of the original parties and Intervention Interpleader
whether or not the intervenor’s rights may be fully
protected in a separate proceeding. [Virra Mall An ancillary action An original action
Tenants v. Virra Mall (2011)] Proper in any of the four Presupposes that the
situations mentioned in plaintiff has no interest
REQUISITES FOR INTERVENTION Rule 19 in the subject matter of
HOW INTERVENTION IS DONE the action or has an
By a motion to intervene, with the pleading-in- interest therein, which in
intervention attached. Must also serve copy of the whole or in part is not
pleading-in-intervention on the original parties. [Rule disputed by the other
19, Sec. 2] parties to the action
There is already a Defendants are being
General rule: Allowance of intervention is defendant among the sued precisely to
discretionary with the court. original parties to the implead them
pending suit
Exception: When the intervenor is an indispensable
party. TIME TO INTERVENE
Intervention is allowed any time before TC renders
FACTORS CONSIDERED IN ALLOWING INTERVENTION judgment. [Rule 19, Sec. 2]
(a) WON intervention will unduly delay or prejudice
the adjudication of the rights of the original REMEDY FOR THE DENIAL OF MOTION TO
parties. INTERVENE
REMEDIES
(b) WON the intervenor's rights may be fully (a) For denial of intervention:
protected in a separate proceeding. (1) Appeal.
(2) Mandamus, if there is GAD.
Carino v Ofilada (1993): The interest must be actual (b) For improper granting of intervention: Certiorari.
and material, direct and immediate; not simply
contingent or expectant.
PAGE 55
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 56
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 57
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
Addressed to whom
Any authority in a A judicial authority in the The officer before whom the deposition is being
foreign country foreign country taken has no authority to rule on objections
authorized therein to interposed during the course of the deposition
take down depositions although any objections shall be noted by him
Rules that govern the deposition upon the deposition. Any evidence that is objected
Rules laid down by the Rules laid down by such to shall still be taken but subject to the objection.
court issuing the foreign judicial authority [Rule 23, Sec. 17]
commission
When issued When may taking of deposition be terminated or its
Preferred over letters Generally resorted to scope limited
rogatory since the when there is difficulty or The court in which the action is pending or the RTC
process is simpler impossibility of obtaining of the place where the deposition is being taken may
(generally, no need to the deposition by order the officer conducting the examination to
resort to diplomatic commission (Regalado) cease from taking the deposition, or may limit the
channels unlike in scope and manner of taking the deposition
letters rogatory)
When: At any time during the taking of the
No deposition shall be taken before a person who is: deposition, on the motion or petition of any party or
[Rule 23, sec. 13] of the deponent
(a) a relative within the sixth degree of consanguinity
or affinity, or Ground: that the examination is being conducted in
(b) employee or counsel of any of the parties, or who bad faith or in such a manner as unreasonably to
is a relative within the same degree, or employee annoy, embarrass or oppress the deponent or party
of such counsel; or [Rule 23, Sec. 18]
(c) who is financially interested in the action.
If the order made terminates the examination, it
Procedure shall be resumed only upon the order of the court in
which the action is pending.
A party desiring to take the deposition of any
person upon oral examination shall give
When may objections to errors and irregularities be
reasonable notice in writing to every party to the
made [Rule 23, sec. 29]
action stating the time and place for taking the
deposition and the name and address of each
Objection When Made
person to be examined. [Rule 23, Sec. 15]
As to notice to Waived, unless written
parties objection is promptly served
After the notice is served, the court may make any upon party giving notice
order for the protection of the parties and the Deposition officer is Waived, unless made before
deponent. [Rule 23, Sec. 16] disqualified the taking of the deposition
or as soon as the
disqualification becomes
known or could be discovered
PAGE 58
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 59
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 60
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 61
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 62
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
COURT TO ISSUE THE ORDER FOR EXAMINATION IN ITS A hearing is a broader term. It is not confined to the
DISCRETION. trial and presentation of the evidence because it
actually embraces several stages in the litigation. It
REPORT OF FINDINGS includes the pre-trial and the determination of
(a) If requested by the party examined, the party granting or denying a motion. [Trocio v. Labayo
causing the examination to be made shall deliver (1973)]
to him a copy of a detailed written report of the
examining physician setting out his findings and NOTICE OF TRIAL [Rule 30, Sec. 1]
conclusions. Upon entry of a case in the trial calendar, the clerk
(b) After such request and delivery, the party causing shall notify parties the date of its trial, ensuring
the examination to be made shall be entitled receipt of the notice at least 5 days before the trial
upon request to receive from the party examined date.
a like report of any examination, previously or
thereafter made, of the same mental or physical ADJOURNMENTS AND POSTPONEMENTS [Rule
condition. 30, Sec. 2]
(c) If the party examined refuses to deliver such General rule: The court may adjourn a trial from day
report, the court on motion and notice may make to day to any stated time, as the expeditious and
an order requiring delivery on such terms as are convenient transaction of business may require.
just
(d) If it is the physician who fails or refuses to make Exception: Court may not adjourn for longer than 1
such a report the court may exclude his testimony month for each adjournment, nor more than 3
if offered at the trial. [Rule 28, Sec. 3] months in all.
PAGE 63
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
SUBPOENA
See separate part for Subpoena BUT please take note Upon admission of evidence, the case shall be
that Subpoenas are issued within the context of a Trial deemed submitted for decision, unless the court
and taking depositions under Modes of Discovery. directs the parties to argue or to submit their
respective memoranda or any further pleadings.
AGREED STATEMENT OF FACTS [Rule 30, Sec. 6]
(a) Parties may agree in writing upon the facts
involved in the litigation, and submit the case for If several defendants or 3rd-party defendants having
judgment without introduction of evidence. separate defenses appear by different counsel, the
(b) If the parties agree to only some of the facts in court shall determine the relative order of
issue, trial shall be held as to the disputed facts in presentation of their evidence.
such order as the court shall prescribe.
CONSOLIDATION OR SEVERANCE OF HEARING
ORDER OF TRIAL; REVERSAL OF ORDER OR TRIAL
CONDUCT OF TRIAL [Rule 30, Sec. 5] CONSOLIDATION OF TRIAL [Rule 31, Sec. 1]
General rule: Trial shall be limited to the issues stated When actions involving common question of law/fact
in the pre-trial order. are pending before the court, it may:
(a) Order a joint hearing/trial of any/all the matters
Exception: in issue in the actions;
(a) Provisions on separate trials in Rule 31, Sec. 2 (b) Order all the actions consolidated;
(b) When for special reasons the court directs (c) Make such orders concerning the proceedings as
otherwise. to avoid unnecessary costs or delay.
GENERAL ORDER OF TRIAL Where a case has been partially tried before one
Plaintiff shall adduce evidence in support of his judge, the consolidation of the same with another
claim; related case pending before another judge who had
no opportunity to observe the demeanor of the
witness during trial makes the consolidation not
mandatory. [PCGG v. Sandiganbayan (1992)]
Defendant shall adduce evidence in support of his
defense, counterclaim, cross-claim and 3rd-party SEVERANCE OF TRIAL [Rule 31, Sec. 2]
complaint; The court may issue separate trials for convenience
or to avoid prejudice:
(a) Of any claim, cross-claim, counterclaim or 3rd-
party complaint;
PAGE 64
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
(b) Of any separate issue; MEETING: The commissioner shall set a time/place
(c) Of any number of claims, cross-claims, for the first meeting and shall notify
counterclaims, 3rd-party complaints or issues. parties/counsels.
STATEMENT OF JUDGE [Rule 30, Sec. 7] REPORT: Upon completion of the trial/hearing, the
During the hearing/trial of the case, any statement commissioner shall file a written report with the
made by the judge shall be made of record in the court.
TSN if made with reference to the
case/parties/witnesses/ counsels. NOTICE: The clerk shall notify parties of the filing of
the report. The parties have 10 days to object to the
SUSPENSION OF ACTIONS [Rule 30, Sec. 8] report’s findings.
Governed by the CC provisions
HEARING: After the 10 days, the report shall be set
for hearing. The court may issue an order
DELEGATION OF RECEPTION OF EVIDENCE [Rule adopting/modifying/rejecting the report or part of it.
30, Sec. 9]
When parties stipulate that the Commissioner's
General rule: The judge of the court where the case is findings of fact are final, only questions of law shall
pending shall personally receive the evidence to be thereafter be considered.
adduced by the parties.
POWERS OF THE COMMISSIONER [Rule 32, Sec. 3]
Exception: The court may delegate the reception of When a reference is made, the clerk shall forthwith
evidence to its clerk of court who is a member of the furnish the commissioner with a copy of the order of
bar in: reference. The order may:
(a) Default hearings; (a) Specify/limit the commissioner’s power
(b) Ex parte hearings; (b) Direct him to report only upon particular issues,
(c) Cases where parties agree in writing. to do/perform particular acts, or direct him to
receive and report evidence only
However, the clerk of court has no power to rule on (c) May fix the date for beginning and closing the
objections to any question/admission of exhibits. hearings and for the filing of his report.
PAGE 65
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 66
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
DEMURRER TO EVIDENCE IN A CIVIL CASE V. A decision need not be a complete recital of the
DEMURRER TO EVIDENCE IN A CRIMINAL CASE evidence presented. So long as the factual and legal
bases are distinctly and clearly set forth, the
DIFFERENCES BETWEEN DEMURRER IN CIVIL AND judgment is valid. [People v. Baring (2002)]
CRIMINAL CASES (Asked in the 2003 and 2007 Bar
Exams) KINDS OF JUDGMENT
Demurrer in civil cases Demurrer in criminal (1) JUDGMENT UPON COMPROMISE - It is one
cases conferred on the basis of a compromise
Defendant need not ask May be filed with or agreement entered into between the parties. It is
for leave of court without leave of court. immediately executory in the absence of a motion
to set aside on the ground of FAME.
Note: Leave of court is
necessary so that the (2) JUDGMENT UPON CONFESSION - It is one
accused can present his rendered by the court when a party expressly
evidence in case the agrees to the other party’s claim or acknowledges
demurrer is denied [Rule the validity of the claim against him.
119, Sec. 23]
If the demurrer is The order of dismissal is
granted, the order of not appealable because Judgment upon Judgment by confession
dismissal is appealable it will constitute double compromise
jeopardy
If a demurrer is denied, The accused may adduce The provisions and terms An affirmative and
the defendant may his evidence only if the are settled by the parties voluntary act of the
proceed to present his demurrer is field with to the action. The defendant himself. The
evidence leave of court judgment is entered in court exercises a certain
the record by consent of amount of supervision
the court. over the entry of
Judgments and Final Orders judgment.
PAGE 67
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
aside; if denied, file the appropriate petition may stay its enforcement until rendition of
under Rule 65. subsequent judgments, and may prescribe
conditions to secure the judgment’s benefits.
(3) JUDGMENT UPON THE MERITS - It is one that is
rendered after consideration of the evidence Judgment may be given for/against one or more
submitted by the parties during the trial of the of several plaintiffs/defendants. The court may
case. A judgment is “on the merits” when it require the parties on each side to file adversary
amounts to a legal declaration of the respective pleadings as between themselves. [Rule 36, Sec.
rights and duties of the parties, based upon the 3]
disclosed facts
If judgment is rendered against 2 or more
(4) CLARIFICATORY JUDGMENT - It is rendered to persons sued as an entity without juridical
clarify an ambiguous judgment or one difficult personality, the judgment shall set out their
to comply with. individual names (if known). [Rule 36, Sec. 6]
(5) JUDGMENT NUNC PRO TUNC - Literally, “now (10) PROMULGATION - The process by which a
for then”. It is a judgment intended to enter into decision is published, officially announced,
the record the acts which had already been made known to the public or delivered to the
done, but which do not appear in the records. clerk of court for filing, coupled with notice to
[Lichauco v. Tan Pho (1923)] the parties or their counsel.
(6) JUDGMENT SIN PERJUICIO - It may refer to a (11) MEMORANDUM DECISION - A decision of the
dismissal of a case without prejudice to it being appellate court which adopts the findings and
re-filed. conclusions of the TC.
(a) A judgment is considered rendered upon the
(7) CONDITIONAL JUDGMENT - It is one the filing of the signed decision.
effectivity of which depends upon the occurrence (b) This includes an amended decision because
or non-occurrence of an event. Such a judgment an amended decision is a distinct and
is generally void because of the absence of a separate judgment and must follow the
disposition [Cu-Unjieng v. Mabalacat Sugar Co. established procedural rule.
(1940)]
JUDGMENT WITHOUT TRIAL
(8) SEVERAL JUDGMENT - It is one rendered by a WHEN TRIAL IS NOT NECESSARY – PSADSA (Asked in the
court against one or more defendants and not 1996 Bar Exams) [Riano]
against all of them, leaving the action to (a) The pleadings of the parties tender no issue at all
proceed against the others. [Rule 36, Sec. 4] It is – judgment on the pleadings may be directed by
proper when the liability of each party is clearly the court [Rule 34]
separate and distinct from his co-parties such (b) There is actually no genuine issue from the
that the claims against each of them could have pleadings, affidavits, depositions and other
been the subject of separate suits, and the papers – court may render a summary judgment
judgment for or against one of them will not [Rule 35]
necessarily affect the other. (c) Parties entered into a compromise or an amicable
settlement either during the pre-trial or during
(9) SEPARATE JUDGMENT - It is one rendered the trial [Rule 18; Art. 2028 Civil Code]
disposing of a claim among several others (d) Complaint has been dismissed with prejudice
presented in a case, after a determination of the [Rule 16, Sec. 5; Rule 17, Sec. 3; Rule 7, Sec. 5 (last
issues material to a particular claim and all par.)]
counterclaims arising out of the transaction or (e) Case falls under the Rules on Summary
occurrence that is the subject matter of said Procedure
claim. [Rule 36, Sec. 5] It is proper when more (f) Agreed statement of facts [Rule 30, Sec. 6]
than one claim for relief is presented in an action
for the determination as to the issues material to CONTENTS OF A JUDGMENT
the claim has been made. PARTS OF A JUDGMENT
(a) Body, Ratio decidendi, or Opinion of the court – It
The judgment shall terminate the action with contains the findings of facts and conclusions of
respect to the claims disposed of, and shall law;
proceed as to the remaining claims. The court
PAGE 68
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
(b) Fallo, or Disposition of the case – It is the (b) Admits the material allegations of the adverse
dispositive part of the judgment that actually party’s pleading.
settles and declares the rights and obligations of
the parties, finally, definitively, and authoritatively CANNOT BE RENDERED MOTU PROPRIO
[Light Rail Transit Authority v. CA] (2004); The A judgment on the pleadings can be done only upon
part of the judgment that is subject to execution MOTION to that effect filed by the appropriate party.
[Riano] It cannot be rendered by the court motu proprio.
(c) Signature of the judge.
Exception: If at pre-trial the court finds that a
DISTINCTION BETWEEN JUDGMENT AND OPINION OF THE judgment on the pleadings is proper, it may render
COURT (ASKED IN THE 2006 BAR EXAM) such judgment motu proprio. [Rule 18, Sec. 2(g)]
(a) A judgment (or FALLO) must be distinguished
from an opinion. WHEN JUDGMENT ON THE PLEADINGS WILL NOT APPLY
(b) The latter is the informal expression of the views (a) Declaration of nullity of marriage;
of the court and cannot prevail against its final (b) Annulment of marriage;
order or decision. (c) Legal separation.
(c) While the two may be combined in one
instrument, the opinion forms no part of the Effect: judgment on the pleadings will not lie and
judgment. material facts alleged in the complaint must always
(d) So there is a distinction between the findings and be proved
conclusions of a court and its judgment.
(e) While they may constitute its decision and EFFECTS
amount to a rendition of a judgment they are not (a) By moving for judgment on the pleadings, the
the judgment itself. plaintiff waives his claim for unliquidated
(f) They amount to nothing more than an order for damages (because claims for such damages
judgment, which, of course, must be must be alleged and proved).
distinguished from the judgment. [Freeman on (b) One who prays for the judgment on the pleadings
Judgments, Vol. I, 5th Edition, page 6, quoted in without offering proof as to the truth of his own
Casilan v. Salcedo (1969)] allegations and without giving the opposing party
an opportunity to introduce evidence must be
CONFLICT BETWEEN THE DISPOSITIVE PORTION AND BODY understood to admit all material and relevant
OF THE DECISION allegations of the opposing party and to rest his
Rule: Where there is a conflict between the fallo and motion for judgment upon those allegations
the body of the decision, the fallo controls. taken together with such of his own as are
admitted in the pleadings. [Falcasantos v. How
Qualification: This rule applies only when the Suy Ching (1952)]
dispositive part is definite, clear, and unequivocal
[Union Bank v. Pacific Equipment Corporation (2008)] SUMMARY JUDGMENTS [Rule 35] (Asked in the
1986, 1989, 1996 and 1999 Bar Exams)
Basis: The fallo is the final order. The opinion in the
body is merely a statement ordering nothing [Poland DEFINITION, NATURE
Industrial Limited v. National Development Company A judgment granted by the court for the prompt
(2005)] disposition of civil actions, if it clearly appears (after
the issues had been joined and on the basis of the
JUDGMENT ON THE PLEADINGS [Rule 34] (Asked pleadings and papers filed) that there exists no
in the 1999 and 2005 Bar Exams) genuine issue/controversy as to any material fact,
except as to the amount of damages. [Ley
GROUNDS: Construction v. Union Bank (2000); Agbada v Inter-
If the answer either Urban Developers (2002); Raboca v. Velez (2000)]
(a) Fails to tender an issue;
Note: An answer fails to tender an issue due to Also called accelerated judgment.
either:
(1) General denial of the material allegations of GENUINE ISSUE
the complaint; (a) An issue of fact which calls for the presentation of
(2) Insufficient denial of the material allegations evidence; as distinguished from an issue which is
of the compliant. sham, fictitious, contrived and patently
PAGE 69
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
Effect
A partial summary judgment is not a final judgment,
Hearing – Court shall determine if a genuine issue but merely a pre-trial adjudication that said issues in
as to any material fact exists and if the movant is the case shall be deemed established for the trial of
entitled to a summary judgment as a matter of law the case. [Guevarra v. CA (1983)]
PAGE 70
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 71
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
(b) Petition for relief (as one of its periods, not more Rule 65. It does not apply to cases that fall under
than 6 months from entry of the judgment or Summary Procedure.
final order) [Rule 38, Sec. 3]
GROUNDS
The record: Rule 37, Sec.1. Grounds of and period for filing motion
(a) Shall contain the judgment’s dispositive part for new trial or reconsideration.—Within the period for
(b) Shall be signed by the clerk of court with a taking an appeal, the aggrieved party may move the
certificate that the judgment has become final trial court to set aside the judgment or final order
and executory. and grant a new trial for one or more of the following
causes materially affecting the substantial rights of
AMENDMENTS TO JUDGMENT (Asked in the 2008 Bar said party:
Exams) (a) Fraud, accident, mistake or excusable negligence
The power to amend judgments is inherent to the which ordinary prudence could not have guarded
court before judgment becomes final and executory. against and by reason of which such aggrieved
party has probably been impaired in his rights; or
General rule: The court cannot amend the judgment (b) Newly discovered evidence, which could not, with
once it has become final and executory. reasonable diligence, have discovered and
produced at the trial, and which if presented
Exception: would probably alter the result.
(a) To make corrections of clerical errors, not
substantial amendments, as by an amendment Within the same period, the aggrieved party may
non pro tunc; also move for reconsideration upon the grounds that
(b) To clarify an ambiguity which is borne out by and the damages awarded are excessive, that the
justifiable in the context of the decision; evidence is insufficient to justify the decision or final
(c) In judgments for support, which can always be order, or that the decision or final order is contrary
amended from time to time. law.
Amended/clarified Supplemental decision Grounds for a motion for reconsideration
judgment (a) The evidence is insufficient to justify the decision;
An entirely new decision Does not take the place (b) The damages awarded are excessive;
and supersedes the of or extinguish the (c) The decision or final order is contrary to law.
original judgment original judgment
Court makes a thorough Serves to add to the Form and content of a motion for reconsideration
study of the original original judgment Motion for reconsideration must be in writing, a
judgment and renders written notice of which must be served on the adverse
the amended and party.
clarified judgment only
after considering all the It is not sufficient to mention the ground relied upon.
factual and legal issues It is necessary for the motion for reconsideration to
point out specifically the findings or conclusions of the
judgment or final order which are not supported by the
evidence or which are contrary to law, making express
Post-Judgment Remedies reference to the testimonial or documentary
evidence or to the provisions of law alleged to be
contrary to such findings or conclusions.
REMEDIES BEFORE FINALITY OF JUDGMENT
(a) Motion for Reconsideration
Non-compliance with this requirement would reduce
(b) Motion for New Trial
the motion to a mere pro forma motion, which shall
(c) Appeal
not toll the period for appeal.
MOTION FOR NEW TRIAL OR RECONSIDERATION
Grounds for motion for new trial
MOTION FOR RECONSIDERATION
The aggrieved party may move the trial court to set
A motion for reconsideration under Rule 37 is
aside the judgment or final order and grant a new
directed against a judgment or final order. It is not
trial for one or more of the following causes
the motion for reconsideration of interlocutory order,
materially affecting the substantial rights of the said
which often precedes a petition for certiorari under
party:
PAGE 72
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
(a) FAME (Extrinsic Fraud, Accident, Mistake or appealed from. The 15-day period is deemed to
Excusable Negligence) which ordinary prudence commence upon receipt by the counsel of record,
could not have guarded against and by reason of which is considered notice to the parties. Service
which the aggrieved party has probably been upon the parties themselves is prohibited and is not
impaired in his rights. considered as official receipt of judgment.
(1) The motion shall be supported by affidavits of
merit. Non-compliance with this requirement No motion for extension of time shall be allowed.
would reduce the motion to a mere pro forma Where a record on appeal is required, the appellant
motion. shall file:
(2) The affidavits of merit must show the facts (a) a notice of appeal, and
(not mere conclusions or opinions) (b) record on appeal within 30 days from notice of
constituting the valid cause of action or the judgment or final order.
defense which the movant may prove in case a
new trial is granted. Otherwise, if the A record on appeal is required only in:
complaint is after all groundless or the (a) Special proceedings;
defense is ineffective, a new trial would serve (b) Other cases of multiple or separate appeals.
no purpose.
(b) Newly discovered evidence, which he could not, Resolution of the motion
with reasonable diligence, have discovered and Rule 37, Sec. 4. Resolution of motion. — A motion for
produced at the trial, and which if presented new trial or reconsideration shall be resolved within
would probably alter the result. 30 days from the time it is submitted for resolution.
(1) The motion shall be supported by: affidavits of
the witnesses by whom such evidence is Effect of filing
expected to be given; and/or duly The filing of a timely motion interrupts the period to
authenticated documents which are proposed appeal.
to be introduced in evidence.
(2) Non-compliance with this requirement would The 30-day period to resolve the motion is held to be
reduce the motion to a mere pro forma mandatory [Gonzales v. Bantolo (2006)]
motion.
Rule 37, Sec. 3. Action upon motion for new trial or
Tumang v. CA (1989): Newly discovered evidence may reconsideration.—The trial court may set aside the
and does commonly refer to evidence already in judgment or final order and grant a new trial, upon
existence prior to or during trial but which could not such terms as may be just, or may deny the motion. If
have been secured and presented during the trial the court finds that excessive damages have been
despite reasonable diligence on the part of the awarded or that the judgment or final order is
litigant. contrary to the evidence or law, it may amend such
judgment or final order accordingly.
Extrinsic fraud: any fraudulent scheme executed by
the prevailing party outside of the trial against the DENIAL OF THE MOTION; EFFECT
losing party who, because of such fraud, was Denial of motion for reconsideration
prevented from presenting his side of the case. The judgment or final order shall stand as is.
Intrinsic fraud: acts of a party during the trial which
does not affect the presentation of the case. Rule 37, Sec. 7. Partial new trial or reconsideration.—If
the grounds for a motion under this Rule appear to
Accident: an event that occurs without one’s foresight the court to affect the issues as to only a part, or less
or expectation. than all of the matter in controversy, or only one, or
less than all, of the parties to it, the court may order
Mistake: generally, mistakes of facts or law where, in a new trial or grant reconsideration as to such issues
good faith, the defendant was misled in a case. if severable without interfering with the judgment or
final order upon the rest.
WHEN TO FILE
The motion must be filed within the period for Single motion rule
appeal. Rule 37, Sec. 5. Second motion for new trial.—A
motion for new trial shall include all grounds then
The period for appeal is within 15 days after notice to available and those not so included shall be deemed
the appellant of the judgment or final order waived. A second motion for new trial based on a
PAGE 73
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 74
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
MODES OF APPEAL
In any of the foregoing circumstances, the aggrieved Ordinary appeal
party may file an appropriate special civil action as
provided in Rule 65. Procedure in the Court of Appeals
Ordinary appealed cases
Significance of the amendment Rule 44, Sec. 1. Title of cases. — In all cases appealed
An order denying motion for new trial or to the Court of Appeals under Rule 41, the title of the
reconsideration is NOW APPEALABLE! case shall remain as it was in the court of origin, but
the party appealing shall be further referred to as the
Final Order Interlocutory Order appellant and the adverse party as the appellee.
Disposes of the matter Does not dispose of a Counsels and guardians
in its entirety, leaving case completely but
nothing more to be done leaves something more Rule 44, Sec. 2. Counsel and guardians. — The
but to enforce execution to be decided upon. counsel and guardians ad litem of the parties in the
Appealable Not appealable except court of origin shall be respectively considered as
through a petition for their counsel and guardians ad litem in the Court of
certiorari under Rule 65 Appeals. When others appear or are appointed,
notice thereof shall be served immediately on the
Must clearly and No need to comply with
adverse party and filed with the court.
distinctly state the law such a requirement
and the facts on which it
is based Order of transmittal of record
Rule 44, Sec. 3. Order of transmittal of record. — If the
MATTERS NOT APPEALABLE original record or the record on appeal is not
Not appealable under Rule 41 transmitted to the Court of Appeals within 30 days
(a) Order denying motion for new trial or after the perfection of appeal, either party may file a
reconsideration; motion with the trial court, with notice to the other,
(b) Order denying petition for review or any similar for the transmittal of such record or record on
motion seeking relief from judgment; appeal.
(c) Interlocutory order;
(d) Order disallowing/dismissing appeal; Case docketing
(e) Order denying motion to set aside judgment by Rule 44, Sec. 4. Docketing of case. — Upon receiving
consent or confession or compromise on ground the original record or the record on appeal and the
of fraud or mistake or duress or any other vitiation accompanying documents and exhibits transmitted
of consent; by the lower court, as well as the proof of payment of
(f) Order of execution; the docket and other lawful fees, the clerk of court of
(g) While the case is pending, judgment or final the Court of Appeals shall docket the case and notify
order: the parties thereof.
(1) For/against one or more of several parties;
(2) In separate claims, counterclaims, cross- Within 10 days from receipt of said notice, the
claims, third-party complaints. appellant, in appeals by record on appeal, shall file
Exception: If court allows appeal. with the clerk of court approved record on appeal
(h) Order dismissing an action without prejudice.
Any unauthorized alteration, omission or addition in
Note: An interlocutory order is one that does not the approved record in appeal shall be a ground for
finally dispose of the case, and does not end the dismissal of the appeal.
court's task of adjudicating the parties’ contentions
and determining their rights and liabilities as regards
Note: Unless otherwise directed by the court, the
each other, but obviously indicates that other things
number of court- bound papers that a party is
remain to be done. [BPI v. Lee (2012)]
required or desires to file In the Court of Appeals,
one original (properly marked) and two copies with
REMEDY AGAINST JUDGMENTS AND ORDERS WHICH ARE
their annexes [Efficient Use of Paper Rule, AM 11-9-
NOT APPEALABLE
4-SC, Section 5]
In the 8 cases not appealable under Rule 41, the
aggrieved party may file a special civil action under
A party required by the rules to serve a copy of his
Rule 65. [Rule 41, Sec. 1]
court-bound on the adverse party need not enclose
copies of those annexes that based on the record of
PAGE 75
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
the court such party already has in his possession. In Contents of appellant’s brief
the event a party requests a set of the annexes Rule 44, Sec. 13. Contents of appellant’s brief. — The
actually filed with the court, the part who filed the appellant’s brief shall contain, in the order herein
paper shall comply with the request within five days indicated, the following:
from receipt. [Efficient Use of Paper Rule, AM 11-9-4- (a) A subject index of the matter in the brief with a
SC, Section 6] digest of the arguments and page references, and
a table of cases alphabetically arranged,
Record completion textbooks and statutes cited with references to
Rule 44, Sec. 5. Completion of record. — Where the the pages where they are cited;
record of the docketed case is incomplete, the clerk (b) An assignment of errors intended to be urged,
of court of the Court of Appeals shall so inform the which errors shall be separately, distinctly and
court and recommend to it measures necessary to concisely stated without repetition and numbered
complete the record. It shall be the duty of said court consecutively;
to take appropriate action towards the completion of (c) Under the heading “Statement of the Case,” a
the record within the shortest possible time. clear and concise statement of the nature of the
action, a summary of the proceedings, the
Rule 44, Sec. 6. Dispensing with complete record.— appealed rulings and orders of the court, the
Where the completion of the record could not be nature of the judgment and any other matters
accomplished within a sufficient period allotted for necessary to an understanding of the nature of
said purpose due to insuperable or extremely the controversy, with page references to the
difficult cases, the court, on its own motion or on record;
motion of an of the parties, may declare that the (d) Under the heading “Statement of Facts,” a clear
record and its accompanying transcripts and exhibits and concise statement in a narrative form of facts
so far available are sufficient to decide the issues admitted by both parties and of those in
raised in the appeal, and shall issue an order controversy, together with the substance of proof
explaining the reasons for such declaration. relating thereto in sufficient detail to make it
clearly intelligible, with page references to the
record;
The failure of appellant to take the necessary steps
(e) A clear and concise statement of the issues of
for the correction or completion of the record within
fact or law to be submitted to the court for its
the time limited by the court in its order is a ground
judgment;
for dismissal of the appeal.
(f) Under the heading “Argument,” the appellant’s
arguments on each assignment of error with
Appellant’s brief
page references to the record. The authorities
Rule 44, Sec.7. Appellant’s brief. — It shall be the duty relied upon shall be cited by the page of the
of the appellant to file with the court, within 45 days report at which the case begins and the page of
from receipt of the notice of the clerk that all the the report on which the citation is found.
evidence, oral and documentary, are attached to the (g) Under the heading “Relief,” a specification of the
record order of judgment which the appellant seeks; and
(h) In cases not brought up by record on appeal, the
Note: Unless otherwise directed by the court, the appellant’s brief shall contain, as an appendix, a
number of court- bound papers that a party is copy of the judgment or final order appealed
required or desires to file In the Court of Appeals, from.
one original (properly marked) and two copies with
their annexes [Efficient Use of Paper Rule, AM 11-9- Rule 44, Sec. 15. Questions that may be raised on
4-SC, Section 5] appeal. — Whether or not the appellant has filed a
motion for new trial in the court below, he may
A party required by the rules to serve a copy of his include in his assignment of errors any question of
court-bound on the adverse party need not enclose law or fact that has been raised in the court below
copies of those annexes that based on the record of and which is within the issues framed by the parties.
the court such party already has in his possession. In
the event a party requests a set of the annexes
actually filed with the court, the part who filed the Rule 124, Sec. 7. Contents of brief. — The briefs in
paper shall comply with the request within five days criminal cases shall have the same contents as
from receipt. [Efficient Use of Paper Rule, AM 11-9-4- provided in sections 13 and 14 of Rule 44. A certified
SC, Section 6] true copy of the decision or final order appealed from
shall be appended to the brief of the appellant.
PAGE 76
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
Note: Rules that apply, as regards the number of Several or plurality of appellant’s, appellees and/or
copies to be filed, with the appellant’s brief apply counsel
with the appellee’s brief. Rule 44, Sec. 11. Several appellants or appellees or
several counsel for each party.—Where there are
Contents of appellee’s brief several appellants or appellees, each counsel
Rule 44, Sec. 14. Contents of appellee’s brief. — The representing one or more but not all of them shall be
appellee’s brief shall, in the order herein indicated, served with only one copy of the briefs. When several
the following: counsel represent one appellant or appellee, copies
(a) A subject index of the matter in the brief with a of the brief may be served upon any of them.
digest of the arguments and page references, and
a table of cases alphabetically arranged, Extension of time for filing briefs
textbooks and statutes cited with references to Rule 44, Sec. 12. Extension of time for filing briefs.—
the pages where they are cited; Extension of time for the filing of briefs will not be
(b) Under the heading “Statement of Facts,” the allowed, except for good and sufficient cause, and
appellee shall state that the accepts the only if the motion for extension is filed before the
statement of facts in the appellant’s brief, or expiration of the time sought to be extended.
under the heading “Counter-Statement of Facts,”
he shall point out such insufficiencies or The Brief
inaccuracies as he believes exist in the appellant’s
De Liano v. CA (2001): The purpose of the brief is to
statement of facts with references to the pages of
present to the court in concise form the points and
the record in support thereof, but without
questions in controversy, and by fair argument on the
repetition of matters in the appellant’s statement
facts and law of the case to assist the court in
of facts; and
arriving at a just and proper conclusion.
(c) Under the heading “Argument,” the appellee
shall set forth his arguments in the case on each
The brief should be so prepared as to minimize the
assignment of error with page references to the
labor of the court in the examination of the record
record. The authorities relied on shall be cited by
upon which the appeal is heard and determined.
the page of the report at which the case begins
and the page of the report on which the citation is
Failure to comply with required contents of
found.
appellant’s brief is cause for dismissal of the petition.
Reply brief
Dismissal of appeal
Rule 44, Sec. 9. Appellant’s reply brief. — Within 20
Rule 50, Sec. 1. Grounds for dismissal of appeal. — An
days from receipt of the appellant’s brief, the
appeal may be dismissed by the Court of Appeals, on
appellee shall file with the court copies of his legibly
its own motion or on that of appellee, on the
typewritten, mimeographed or printed brief, with
following grounds:
proof of service upon the appellant.
(a) Failure of the record on appeal to show on its face
that the appeal was taken within the period fixed
Note: Note: Rules that apply, as regards the number by these Rules;
of copies to be filed, with the appellant’s brief apply (b) Failure to file the notice of appeal of the record
in this case. on appeal within the period prescribed by these
Rules;
Memoranda in special cases (c) Failure of the appellant to pay the docket and
Rule 44, Sec. 10. Time for memoranda in special other lawful fees as provide in section 5 of Rule
cases. — In certiorari, prohibition, mandamus, quo 40 and Section 4 of Rule 41;
warranto and habeas corpus cases, the parties shall (d) Unauthorized alterations, omission or additions in
file, in lieu of briefs, their respective memoranda the approved record on appeal as provided in
within a non-extendible period of 30 days from section 4 of Rule 44;
receipt of the notice issued by the clerk that all the
PAGE 77
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
(e) Failure of the appellant to serve and file the decide such issues or refer them to CA for
required number of copies of his brief or determination.
memorandum within the time provided by these
Rules; Cu-unjieng v. CA (2006): Nonpayment of the
(f) Absence of specific assignment of errors in the appellate court docket and other lawful fees within
appellant’s brief, or of page references to the the reglementary period as provided under Rule 41,
record as required in section 13, paragraphs (a), Sec. 4 is a ground for the dismissal of an appeal
(c), (d) and (f) of Rule 44; under Rule 50, Sec. 1(c). The Supreme Court has
(g) Failure of the appellant to take the necessary invariably sustained the Court of Appeal’s dismissal
steps for the correction or completion of the on technical grounds under the afore-quoted
record within the time limited by the court in its provision unless considerations of equity and
order; substantial justice present cogent reasons to hold
(h) Failure of the appellant to appear at the otherwise. True, the rules may be relaxed but only for
preliminary conference under Rule 48 or to persuasive and weighty reasons, to relieve a litigant
comply with orders, circulars, or directives of the of an injustice commensurate with his failure to
court without justifiable cause; and comply with the prescribed procedure.
(i) The fact that the order or judgment appealed
from is not appealable. Withdrawal of appeal
Rule 50, Sec. 3. Withdrawal of appeal. — An appeal
PNB v. Philippine Milling (1969): CA has discretion to may be withdrawn as of right at any time before the
dismiss or not to dismiss appeal. Although said filing of the appellee’s brief. Thereafter, the
discretion must be a sound one, to be exercised in withdrawal may be allowed in the discretion of the
accordance with the tenets of justice and fair play, court.
having in mind the circumstances obtaining in each
case, the presumption is that it has been so Stay of execution
exercised. See next page.
Padasdas v. CA (1974): Failure to file appellant’s brief General rule: If judgment is rendered against the
within the reglementary period need not necessarily defendant, execution shall issue immediately
cause dismissal of appeal where the same was due upon motion.
to force majeure.
Exception: Immediate execution of judgment
Dismissal of improper appeal may be stayed if the following requisites
Rule 50, Sec. 2. Dismissal of improper appeal to the concur:
Court of Appeals. — An appeal under Rule 41 taken (a) an appeal has been perfected
from the Regional Trial Court to the Court of Appeals (b) the defendant files a sufficient supersedeas
raising only questions of law shall be dismissed, bond, approved by the MTC and executed in
issues purely of law not being reviewable by said favor of the plaintiff to pay the rents,
court. Similarly, an appeal by notice of appeal damages and costs accruing down to the
instead of by petition for review from the appellate time of the judgment appealed from
judgment of a Regional Trial Court shall be (c) during the pendency of the appeal, the
dismissed. defendant deposits with the appellate court
the amount of rent due from time to time
An appeal erroneously taken to the Court of Appeals under the contract; in the absence of a
shall not be transferred to the appropriate court but contract, he shall deposit with the RTC the
shall be dismissed outright. reasonable value of the use and occupation
of the premises for the preceding month or
period at the rate determined by the
judgment of the lower court on or before the
Atlas Consolidated v. CA (1991): Circular No. 2-90 now th
10 day of each succeeding month or period
prohibits the transfer of appeals erroneously taken to
the SC or CA to whichever of these tribunals has
appropriate appellate jurisdiction. But where SC
believes that there are factual issues which must be
resolved, it may, in the exercise of its sound The supersedeas bond shall be transmitted by the
discretion and considering the attendant MTC, with the other papers, to the clerk of the RTC
circumstances, either itself take cognizance of and to which the action is appealed.
PAGE 78
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
In any case wherein it appears that the defendant Discretionary execution may only issue upon
has been deprived of the lawful possession of land good reasons to be stated in a special order after
or building pending the appeal by virtue of the due hearing.
execution of the judgment of the Municipal Trial
Court, damages for such deprivation of possession (b) Execution of several, separate or partial judgments.
and restoration of possession may be allowed the — A several, separate or partial judgment may be
defendant in the judgment of the Regional Trial executed under the same terms and conditions as
Court disposing of the appeal. execution of a judgment or final order pending
appeal.
Habere Facias Possessionem; definition
The name of the process commonly resorted to by Sec. 21, Revised Rules on Summary Procedure.
the successful party in an action for ejectment, for Appeal. — The judgment or final order shall be
the purpose of being placed by the sheriff in the appealable to the appropriate RTC which shall
actual possession of the land recovered. decide the same in accordance with Sec. 22 of BP
129. The decision of the regional trial court in civil
cases governed by this Rule, including forcible entry
San Pedro v. CA (1994): Judgments in ejectment
cases which are favorable to the plaintiff are and unlawful detainer, shall be immediately
executory, without prejudice to a further appeal that
immediately executory. They can be stayed by the
may be taken therefrom. Section 10 of Rule 70 shall
defendant only by:
(a) perfecting an appeal; be deemed repealed.
(b) filing a supersedeas bond; and
PAGE 79
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
Rule 43, Sec. 12. Effect of appeal.—The appeal shall memorandum required by the Rules or by the court
not stay the award, judgment, final order or itself, or the expiration of the period for its filing.
resolution sought to be reviewed unless the Court of
Appeals shall direct otherwise upon such terms as it When such hearing is held, upon its termination or
may deem just. upon the filing of the last pleading or memorandum
as may be required or permitted to be filed by the
court, or the expiration of the period for its filing.
Rule 39, Sec. 4. Judgments not stayed by appeal.—
Judgments in actions for injunction, receivership, B. In original actions and petitions for review.—
accounting and support, and such other judgments Where no comment is filed, upon the expiration of
as are not or may hereafter be declared to be the period to comment.
immediately executory shall be enforceable after
their rendition and shall not be stayed by an appeal Where no hearing is held, upon the filing of the last
taken therefrom, unless otherwise ordered by the pleading required or permitted to be filed by the
trial court. On appeal therefrom, the appellate court court, or the expiration of the period for its filing.
in its discretion may make an order suspending,
modifying, restoring or granting the injunction, Where a hearing on the merits of the main case is
receivership, accounting, or award of support. held, upon its termination or upon the filing of the last
pleading or memorandum as may be required or
General rule: In ordinary appeals, execution is stayed. permitted to be filed by the court, or the expiration of
the period for its filing.
Exceptions
(a) Decision in forcible entry and unlawful detainer. Judgment
Exception to exception: If appellant stays
immediate execution by filing a notice of appeal, Rule 51, Sec. 2. By whom rendered. — The judgment
supersedeas bond and depositing in court a shall be rendered by the members of the court who
monthly rental or compensation for the participated in the deliberation on the merits of the
occupation as fixed by the court which rendered case before its assignment to a member for the
the decision. writing of the decision.
(b) Decision of the MeTC, MTC or MCTC or the RTC
where execution pending appeal has been Rule 51, Sec. 3. Quorum and voting in the court. —
granted by the court of origin or in a proper case The participation of all three Justices of a division
by the appellate court upon good reasons to be shall be necessary at the deliberation and the
stated in the order. unanimous vote of the three Justices shall be
(c) Decision of the RTC rendered in the exercise of its required for the pronouncement of a judgment or
appellate jurisdiction on cases tried and decided final resolution. If the three Justices do not reach a
by the court of origin under Summary Procedure. unanimous vote, the clerk shall enter the votes of the
(d) Decision of a quasi-judicial agency under the dissenting Justices in the record. Thereafter, the
Rule 43, Sec. 12, UNLESS otherwise provided by Chairman of the division shall refer the case,
the Court CA; together with the minutes of the deliberation, to the
(e) Decision in cases of injunction, receivership, Presiding Justice who shall designate two Justices
support and accounting. chosen by raffle from among the other members of
the court to sit temporarily with them, forming a
Service Specialists v. Sheriff of Manila (1986): An special division of five Justices. The participation of
appeal from the order denying the petition for relief all the five members of the special division shall be
does not stay the judgment from which relief is necessary for the deliberation required in section 2 of
sought. In order to stay execution, it is necessary to this Rules and the concurrence of a majority of such
obtain a writ of preliminary injunction. division shall be required for the pronouncement of a
judgment or final resolution.
When case is submitted for judgment
Rule 51, Sec. 1. When case deemed submitted for Rule 51, Sec. 4. Disposition of a case.—The CA, in the
judgment.—A case shall be deemed submitted for exercise of its appellate jurisdiction, may affirm,
judgment: reverse, or modify the judgment or final order
appealed from, and may direct a new trial or further
A. In ordinary appeals.— proceedings to be had.
Where no hearing on the merits of the main case is
held, upon the filing of the last pleading, brief, or
PAGE 80
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
Sec.40, BP 129. Form of decision in appealed cases.— Rule 51, Sec. 9. Promulgation and notice of
Every decision or final resolution of a court in judgment.—After the judgment or final resolution
appealed cases shall clearly and distinctly state the and dissenting or separate opinions, if any, are
findings of fact and the conclusion of law on which it signed by the Justices taking part, they shall be
is based, which may be contained in the decision or delivered for filing to the clerk who shall indicate
final resolution itself, or adopted by reference from thereon the date of promulgation and cause true
those set forth in the decision, order, or resolution copies thereof to be served upon the parties or their
appealed from. counsel.
Rule 51, Sec. 5. Form of decision.—Every decision or Petition for review [Rule 42]
final resolution of the court in appealed cases shall Mode of appeal in cases decided by the Regional
clearly and distinctly state the finding of fact and the Trial Court in the exercise of its appellate jurisdiction
conclusions of law on which it is based, which may be [Rule 41, Sec. 2]
contained in the decision or final resolution itself, or
adopted from those set forth in the decision, order, Procedure:
or resolution appealed from. Time for filing [Rule 42, Sec. 1]: The petition shall be
filed and served within fifteen (15) days from notice of
The body of the judgment must contain the reasons the decision sought to be reviewed or of the denial of
or conclusions of the court to serve as a guide or petitioner’s motion for new trial or reconsideration
enlightenment to determine the ratio decidendi. But filed in due time after judgment.
what actually constitutes the resolution of the court
which is the subject of the execution is the dispositive Note: Time for filing the petition may be extended
portion of the fallo. [Olac v. CA] (additional 15 days) by the CA upon proper motion
and the payment of the full amount of the docket
and other lawful fees and the deposit for costs before
Rule 51, Sec. 6. Harmless error.—No error in either the the expiration of the reglementary period. However,
admission or the exclusion of evidence and no error no further extension shall be granted except for the
or defect in any ruling or order or in anything done or most compelling reason and in no case to exceed
omitted by the trial court or by any of the parties is fifteen (15) days.
ground for granting a new trial or for setting aside,
modifying, or otherwise disturbing a judgment or Amount of costs: Php 500 [Rule 42, Sec. 1]
order, unless refusal to take such action appears to
the court inconsistent with substantial justice. The Petition for Review Form and Content [Rule 42, Sec. 2]:
court at every stage of the proceedings must
disregard any error or defect which does not affect Petition must state:
the substantial rights of the parties. (a) full names of the parties to the case w/o
impleading the lower courts or the judges
Rule 51, Sec. 7. Judgment where there are several (b) indicate material dates showing filed on time
parties.—In all actions or proceedings, an appealed (c) set forth statement of the matters involved and
judgment may be affirmed as to some of the the issues raised, specification of errors of
appellants, and revered as to others, and the case fact/law/both and the reasons or arguments
shall thereafter be proceeded with, so far as relied upon for the allowance of the appeal
necessary, as of separate actions had been begun
and prosecuted; and execution of the judgment of It must also be accompanied by legible duplicate
affirmance may be had accordingly, and costs may original/true copies of the judgments/orders,
be adjudged in such cases, as the court shall deem certified correct by the CoC, the requisite number of
proper. copies and of the pleadings and other material
portions of the record supporting the allegations of
the petition
Rule 51, Sec. 8. Questions that may be decided.—No
error which does not affect the jurisdiction over the
Copies to be filed:
subject matter or the validity of the judgment
Note: Unless otherwise directed by the court, the
appealed from or the proceedings therein will be
number of court- bound papers that a party is
considered unless stated in the assignment of errors,
required or desires to file In the Court of Appeals,
or closely related to or dependent on an assigned
one original (properly marked) and two copies with
error
their annexes [Efficient Use of Paper Rule, AM 11-9-4-
SC, Section 5]
PAGE 81
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
If the CA finds that there is a prima facie that the Grounds for dismissal of appeal
lower court has committed an error of fact or law Rule 56, Sec. 5. Grounds for dismissal of appeal. —
that will warrant a reversal or modification of the The appeal may be dismissed motu proprio or on
appealed decision, it may accordingly give due motion of the respondent on the following grounds:
course to the petition. [Rule 42, Sec. 6]. The CA may
PAGE 82
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
(a) Failure to take the appeal within the penalty. The Court of Appeals shall automatically
reglementary period; review the judgment as provided in Section 10 of
(b) Lack of merit in the petition; this Rule.
(c) Failure to pay the requisite docket fee and other (f) Except as provided in the last paragraph of
lawful fees or to make a deposit for costs; section 13, Rule 124, all other appeals to the
(d) Failure to comply with the requirements Supreme Court shall be by petition for review on
regarding proof of service and contents of and certiorari under Rule 45.
the documents which should accompany the
petition; General rule: An appeal taken to the Supreme Court
(e) Failure to comply with any circular, directive or by notice of appeal shall be dismissed.
order of the Supreme Court without justifiable
cause; Exception: Appeals in criminal cases where the
(f) Error in the choice or mode of appeal; and penalty imposed is death, reclusion perpetua or life
(g) The fact that the case is not appealable to the imprisonment.
Supreme Court.
Equally divided
Improper appeal Rule 56, Sec. 7. Procedure if opinion is equally
Rule 56, Sec. 6. Disposition of improper appeal.— divided.—Where the court en banc is equally divided
Except as provided in section 3, Rule 122 regarding in opinion, or the necessary majority cannot be had,
appeals in criminal cases where the penalty imposed the case shall again be deliberated on, and if after
is death, reclusion perpetua or life imprisonment, an such deliberation no decision is reached, the original
appeal taken to the Supreme Court by notice of action commenced in the court shall be dismissed; in
appeal shall be dismissed. appealed cases, the judgment or order appealed
from shall stand affirmed; and on all incidental
An appeal by certiorari taken to the Supreme Court matters, the petition or motion shall be denied.
from the Regional Trial Court submitting issues of
fact may be referred to the Court of Appeals for Questions of Fact v. Questions of Law
decision or appropriate action. The determination of Agote v. Lorenzo (2005): A question of law does not
the Supreme Court on whether or not issues of facts involve an examination of the probative value of the
are involved shall be final. evidence presented by any of the litigants.
Rule 122, Sec. 3. How appeal taken.— There is a question of law in a given case when the
(a) The appeal to the Regional Trial Court, or to the doubt or difference arises as to what the law is on a
Court of Appeals in cases decided by the certain state of facts; there is a question of fact when
Regional Trial Court in the exercise of its original the doubt or difference arises as to the truth or the
jurisdiction, shall be by notice of appeal filed with falsehood of the facts alleged.
the court which rendered the judgment or final
order appealed from and by serving a copy Alsua-Betts v. CA (1979):
thereof upon the adverse party. General rule: CA’s findings of fact are final and
(b) The appeal to the Court of Appeals in cases conclusive and cannot be reviewed on appeal to the
decided by the Regional Trial Court in the SC, provided they are borne out by the record or are
exercise of its appellate jurisdiction shall be by based on substantial evidence.
petition for review
(c) under Rule 42. Exception: CA’s findings of fact may be reviewed by
(d) The appeal in cases where the penalty imposed the SC on appeal by certiorari when:
by the Regional Trial Court is reclusion perpetua (1) Conclusion is a finding grounded entirely on
or life imprisonment, or where a lesser penalty is speculations, surmises or conjectures [Joaquin v.
imposed but for offenses committed on the same Navarro (1953)].
occasion or which arose out of the same (2) Inference made is manifestly mistaken, absurd or
occurrence that gave rise to the more serious impossible [Luna v. Linatok (1942)].
offense for which the penalty of death, reclusion (3) There is grave abuse of discretion in the
perpetua, or life imprisonment is imposed, shall appreciation of facts [Buyco v. People (1954)].
be by notice of appeal to the Court of Appeals in (4) Judgment is based on a misapprehension of facts
accordance with paragraph (a) of this Rule. [De la Cruz v. Sosing (1953).
(e) No notice of appeal is necessary in cases where (5) The Court of Appeal’s findings of fact are
the Regional Trial Court imposed the death conflicting [Casica v. Villaseca (1957)].
PAGE 83
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
(6) The Court of Appeals, in making its findings, went within 30 days after notice of the judgment or final
beyond the issues of the case and the same is order.
contrary to the admissions of both appellant and
appellee [Nakpil & Sons v. CA (1986)]. The period of appeal shall be interrupted by a timely
(7) The Court of Appeals manifestly overlooked motion for new trial or reconsideration. No motion
certain relevant facts not disputed by the parties for extension of time to file a motion for new trial or
and which, if properly considered, would justify a reconsideration shall be allowed.
different conclusion [Abellana v. Dosdos (1965)].
(8) The Court of Appeal’s findings of fact are contrary Neypes v. CA (2005) on the fresh period rule:
to those of the trial court, or are mere conclusions Definition: Period of appeal is interrupted by a timely
without citation of specific evidence, or where the motion for new trial or reconsideration. Motion for
facts set forth by the petitioner are not disputed extension of time to file motion for new trial or
by the respondent, or where the findings of fact of reconsideration is not allowed.
the Court of Appeals are premised on absence of
evidence but are contradicted by the evidence of Applicability:
record [Manlapaz v. CA (1987)]. (a) Rule 40 on appeals from MTC to RTC.
(b) Rule 42 on petitions for review from RTC to CA.
Perez-Rosario v. CA (2005): Rule 65 cannot cure the (c) Rule 43 on appeals from QJA to CA.
failure to appeal thru Rule 45. (d) Rule 45 on appeals by certiorari to SC.
PAGE 84
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 85
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
SC petitioner’s MR or MNT.
CA to SC
This “fresh period rule” shall also apply to: Espina v. CA (1992): However, issues which are
(a) Rule 40 governing appeals from the Municipal inferred from or necessarily connected with the issue
Trial Courts to the Regional Trial Courts; properly raised and pleaded may be resolved by the
(b) Rule 42 on petitions for review from the Regional appellate court.
Trial Courts to the Court of Appeals;
(c) Rule 43 on appeals from quasi-judicial Appeal from MTC to RTC: the rules on perfection of
agencies to the Court of Appeals; and appeal from RTC to CA applies.
(d) Rule 45 governing appeals by certiorari to the
Supreme Court. The new rule aims to regiment or From the Regional Trial Court to CA:
make the appeal period uniform, to be counted (a) By notice of appeal: perfected as to party who
from receipt of the order denying the motion for filed notice upon filing of the same in due time
new trial, motion for reconsideration (whether full
or partial) or any final order or resolution. [Neypes The court loses jurisdiction over the case upon
v. CA, (2005)] perfection of appeal AND expiration of time to
appeal of the other parties.
A party litigant may now file his notice of appeal
either within fifteen days from receipt of the original (b) By record on appeal: perfected as to the party
decision or within fifteen days from the receipt of the who filed appeal and with respect to the subject
order denying the motion for reconsideration. matter thereof upon approval of the record filed
in due time
Being procedural in nature, Neypes is deemed to be
applicable to actions pending and undetermined at The court loses jurisdiction upon approval of the
the time of its effectivity and is thus retroactive in records on appeal AND expiration of the time to
that sense and to that extent. [First Aqua Sugar v. appeal of the other parties
BPI (2007)]
From MTC to RTC (appellate jurisdiction) to CA: upon
PERFECTION OF APPEAL timely filing of a petition for review and the payment
Perfection of an appeal in the manner and within the of the corresponding docket and other lawful fees.
period laid down by law is mandatory and
jurisdictional. [Balgami v. CA (2004)] The RTC loses jurisdiction upon perfection of appeals
filed in due time AND the expiration of time to
Rationale: Appeal is merely a statutory privilege, and appeal of other parties.
may be exercised only in the manner and in
accordance with the provisions of the law. It is APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE MTC
neither a natural right nor a part of due process. MTC to RTC
Rule 40, Sec.1. Where to appeal. — An appeal from a
Effect of failure to perfect appeal judgment or final order of a MTC may be taken to the
(a) Defeats a party’s right to appeal. RTC exercising jurisdiction over the area to which the
(b) Precludes appellate court from acquiring former pertains. The title of the case shall remain as
jurisdiction. it was in the court of origin, but the party appealing
the case shall be further referred to as the appellant
Camposagrado v. Camposagrado (2005): Failure to and the adverse party the appellee.
pay the appellate court docket fee within the
reglementary period confers only a discretionary (not The other provisions governing appeal from RTC to
mandatory) power to dismiss the proposed appeal. CA so long as they are not inconsistent are
Such discretion should consider all attendant applicable to appeal from MTC to RTC.
circumstances and must be exercised with a view to
substantial justice. MTC to RTC to CA
Republic v. Bermudez-Lorino (2005): Appellate court File a verified petition for review with the CA,
has no jurisdiction to review a judgment which is paying at the same time to the clerk of said
immediately final and executory by express provision court the corresponding docket and other
of law. lawful fees, depositing the amount of P500 for
costs and furnishing the RTC and the adverse
Medina v. CA (1992): A party cannot change the party with a copy of the petition.
theory on appeal. Only issues pleaded in the lower
court and properly raised may be resolved by the
appellate court.
PAGE 86
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
Applicability of Rule 45
The petition shall be filed and served within 15
days from notice of the decision sought to be Rule 45, Sec.9. Rule applicable to both civil and
reviewed or of the denial of petitioner’s MNT or criminal cases.—The mode of appeal prescribed in
MR filed in due time after judgment. this Rule shall be applicable to both civil and
criminal cases, except in criminal cases where the
penalty imposed is death, reclusion perpetua or life
imprisonment.
PAGE 87
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 88
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
(b) Order denying petition for review or any similar Lanaria v. Planta (2007): Submission of a document
motion seeking relief from judgment; together with the motion for reconsideration
(c) Interlocutory order; constitutes substantial compliance with compliance
(d) Order disallowing/dismissing appeal; with Section 2, Rule 42 or the requirement that
(e) Order denying motion to set aside judgment by relevant or pertinent documents be submitted along
consent or confession or compromise on ground with the petition, and calls for the relaxation of
of fraud or mistake or duress or any other vitiation procedural rules
of consent;
(f) Order of execution; RTC to CA to SC
(g) While the case is pending, judgment or final The remedy is a petition for review on certiorari under
order: Rule 45.
(1) For/against one or more of several parties;
(2) In separate claims, counterclaims, cross- RTC to SC
claims, third-party complaints. (a) The remedy is a petition for certiorari under Rule
Exception: If court allows appeal. 65.
(h) Order dismissing an action without prejudice. (b) This is not an appeal.
In the 8 cases not appealable under Rule 41, the APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE CA
aggrieved party may file a special civil action under CA to SC
Rule 65. The remedy is a petition for review on certiorari under
Rule 65.
Interlocutory order
Definition: If it does not dispose of the case but APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE CTA
leaves something else to be done by the trial court RA 9282: Decisions of the CTA are now appealable
on the merits of the case. [Investments, Inc. v. CA to the SC by petition for review on certiorari under
(1987)] Rule 45.
For purposes of appeal, an order is final if it disposes REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE
of the entire case. An order for partial summary COA
judgment is an interlocutory order which cannot be The remedy is a petition for certiorari under Rule 65.
appealed from. The trial court had not yet rendered a [Rule 64, Section 2]
complete final judgment. [GSIS v. Phil. Village Hotel
(2004)] Time to file: petition shall be filed within thirty (30)
days from notice of the judgment or final order or
Multiple appeals resolution
Civil cases which admit of multiple appeals:
(a) Judgment in an action for recovery or for partition Note: If allowed under the Rules of the Commission
of property is separately appealable from the concerned, the filing of a motion for new
proceedings on that part of the judgment wherein trial/reconsideration shall interrupt the period
accounting for receipts from the property is
ordered as a primary or incidental relief. When Copies to be filed: Unless otherwise directed by the
such accounting is submitted and either court, one original (properly marked) and four copies,
approved or rejected by the trial court, another unless the case is referred to the Court En Banc, in
appeal lies therefrom. which event, the parties shall file ten additional
(b) Special civil actions: copies. [AM 11-9-4-SC, Section 5(a)]
(1) Expropriation; (Rule 67)
(2) Judicial partition; (Rule 69) Contents:
(3) Judicial foreclosure of mortgage; (Rule 68) (a) State the facts with certainty, present clearly the
issues involved, set forth the grounds and brief
Special proceedings also admit of multiple appeals. arguments relied upon for review, and pray for
judgment annulling or modifying the questioned
Ko v. PNB (2006): The order of dismissal due to judgment, final order or resolution. Findings of
failure to prosecute is appealable by notice of appeal fact of the Commission supported by substantial
under Rule 41. evidence shall be final and non-reviewable.
Philexport v. PI (2004): But an order of dismissal (b) Accompanied by a clearly legible duplicate
without prejudice is not appealable under Rule 41. original or certified true copy of the judgment,
PAGE 89
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
final order or resolution subject thereof, together other pleadings or papers as may be required or
with certified true copies of such material allowed, or the expiration of the period to do so.
portions of the record as are referred to therein [Rule 64, Section 9]
and other documents relevant and pertinent
thereto. REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE
COMELEC
For the Division, the parties need to submit also two [same with COA (Rule 64)]
sets of annexes, one attached to the original and an
extra copy. All members of the Court shall share the REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE
extra copies of annexes in the interest of economy of CSC
paper. Parties to cases before the Supreme Court are The remedy of an aggrieved party from a resolution
further required, on voluntary basis for the first six issued by the CSC is to file a petition for review
months following the effectivity of this Rule and thereof under Rule 43 of the Rules of Court within
compulsorily afterwards unless the period is fifteen days from notice of the resolution. [DECS v.
extended, to submit, simultaneously with their court- Cuanan (2008)]
bound papers, soft copies of the same and their
annexes (the latter in PDF format) either by email to OREVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE
the Court’s e-mail address or by compact disc (CD). OMBUDSMAN
This requirement is in preparation for the eventual
establishment of an e-filing paperless system in the When CA has Jurisdiction
judiciary. In administrative cases: Where the respondent is
absolved of the charge, and in case of conviction
(a) State the specific material dates showing that it where the penalty imposed is public censure or
was filed within the period fixed herein, and shall reprimand, suspension of not more than one month,
contain a sworn certification against forum or a fine equivalent to one month salary , the
shopping as provided in the third paragraph of decision shall be unappealable. In all other cases,
section 3, Rule 46. the decision may be appealed to the CA on a verified
petition for review under the requirements and
(b) Accompanied by proof of service of a copy thereof conditions set forth in Rule 43 of the Rules of Court,
on the Commission concerned and on the within 15 days from receipt of the written Notice of
adverse party, and of the timely payment of the Decision or Order denying the Motion for
docket and other lawful fees. Reconsideration. [AO 7, Rule III, Section 7]
Note: The failure of petitioner to comply with any of Note: An appeal shall not stop the decision from
the foregoing requirements shall be sufficient being executory.
ground for the dismissal of the petition.
When the SC has Jurisdiction
Effect of Filing: The filing of a petition In cases in which it is alleged that the Ombudsman
for certiorari shall not stay the execution of the has acted with grave abuse of discretion amounting
judgment or final order or resolution sought to be to lack or excess of jurisdiction, a special civil action
reviewed, unless the Supreme Court shall direct of certiorariunder Rule 65 may be filed with this
otherwise upon such terms as it may deem just. Court to set aside the Ombudsman’s order or
resolution. [Nava v. NBI (2005)]
If the SC finds finds the petition sufficient in form
and substance, it shall order the respondents to file Court has jurisdiction over such petitions questioning
their comments on the petition within ten (10) days resolutions or orders of the Office of the
from notice; otherwise, it may dismiss the petition Ombudsman in criminal cases. [Kuizon v. Desierto
outright. [Rule 64, Section 6] (2001)]
Aside from the comment, No other pleading may be REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE
filed by any party unless required or allowed by the NLRC
Court. [Rule 64, Section 7] Rule 43, Sec.2. Cases not covered.—This Rule shall
not apply to judgments or final orders issued under
Unless the Court sets the case for oral argument, or the Labor Code of the Philippines.
requires the parties to submit memoranda, the case
shall be deemed submitted for decision upon the NLRC judgments and final orders or resolutions are
filing of the comments on the petition, or of such now reviewable, in the first instance, by the Court of
PAGE 90
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
Appeals on certiorari under Rule 65, but those of the (b) The date of its last publication, if publication is
Employees Compensation Commission should be required by law for its effectivity; or
brought to the Court of Appeals through a petition (c) The denial of the petitioner’s MFR duly filed
for review under this Rule. Also, appeals from the according to the governing law of the court or
Office of the Ombudsman in administrative agency a quo. [Villorente v. Laiya (2005)]
disciplinary cases are now covered by this Rule.
[Fabian v. Desierto (1998)] Under Rule 43, there is no need to implead the lower
court or agency which rendered the assailed
REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF decision. [Basmayor v. Atencio (2005)]
QUASI-JUDICIAL AGENCIES
Submission of the duplicate original or certified true
QJA to CA copy of judgment, order, resolution or ruling subject
Applicability of a petition for certiorari is essential to determine
Appeals from judgments or final orders of the CTA whether or not the court, body or tribunal which
and from awards, judgments, final orders or rendered the same indeed committed grave abuse of
resolutions of or authorized by any quasi-judicial discretion. Either a legible duplicate original or
agency (QJA) in the exercise of its quasi-judicial certified true copy thereof shall be submitted. If what
functions: (arranged alphabetically) is submitted is a copy, then it is required that the
same is certified by the proper officer of the court,
(a) Agricultural Inventions Board (AIB); tribunal, agency or office involved. This is to assure
(b) Board of Investments (BOI); that such copy is a faithful reproduction of the
(c) Bureau of Patents, Trademarks and Technology judgment, order, resolution or ruling subject of the
Transfer (BPTTT); petition. [Coca-cola v. Cabalo (2006)]
(d) Central Board of Assessment Appeals (CBAA);
(e) Civil Aeronautics Board (CAB); Recourse to a petition for certiorari under Rule 65
(f) Civil Service Commission (CSC); renders the petition dismissible for being the wrong
(g) Construction Industry Arbitration Commission; remedy. Nonetheless, there are exceptions to this
(h) Department of Agrarian Reform (DAR under RA rule:
6657) (a) when public welfare and the advancement of
(i) Employees Compensation Commission (ECC); public policy dictates;
(j) Energy Regulatory Board (ERB); (b) when the broader interest of justice so requires;
(k) Government Service Insurance System (GSIS); (c) when the writs issued are null and void; or
(l) Insurance Commission; (d) when the questioned order amounts to an
(m) Land Registration Authority (LRA); oppressive exercise of judicial authority. [DECS v.
(n) National Electrification Administration (NEA); Cuanan (2008)]
(o) National Telecommunications Commission
(NTC); QJA to CA to SC
(p) Office of the President (OP); Remedy is a petition for review on certiorari under
(q) Philippine Atomic Energy Commission (PAEC); Rule 45.
(r) Securities and Exchange Commission (SEC);
(s) Social Security Commission (SSC); QJA to SC
(t) Voluntary arbitrators authorized by law. Remedy is a petition for certiorari under Rule 65,
which is not an appeal.
A resolution of the DOJ Secretary is not appealable
under Rule 43. Recourse should be to the President, RELIEF FROM JUDGMENTS, ORDERS AND
instead of the CA, under the established principle of OTHER PROCEEDINGS
exhaustion of administrative remedies. [Orosa v. Roa Definition: It is a legal remedy whereby a party seeks
(2006)] to set aside a judgment rendered against him by a
court whenever he is unjustly deprived of a hearing
Exhaustion of Administrative Remedies or was prevented from taking an appeal because of
If an appeal/remedy obtains or is available within the fraud, accident, mistake or excusable negligence.
administrative machinery, this should be resorted to
before resort can be made to the courts. Francisco v. Puno (1981): A party who has filed a
timely motion for new trial or motion for
Under Rule 43, Sec. 4 the petition should be filed reconsideration can no longer file a petition for relief
within 15 days from: from judgment after his motion has been denied.
(a) Notice of the final order; or These remedies are mutually exclusive. It is only in
PAGE 91
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
appropriate cases where a party aggrieved by the Under both grounds, the petition shall be filed in the
judgment has not been able to file a motion for new same court which rendered the judgment and in the
trial or motion for reconsideration that a petition for very same case.
relief can be filed.
Prayer in Petition for Relief from Judgment
GROUNDS FOR AVAILING OF THE REMEDY (a) That the judgment/order/proceeding be set
Rule 38, Sec. 1. Petition for relief from judgment, aside;
order, or other proceedings. — When a judgment or (b) That the appeal be given due course.
final order is entered, or any other proceeding is
thereafter taken against a party in any court through Form and content of petition
fraud, accident, mistake, or excusable negligence, he (a) Must be verified;
may file a petition in such court and in the same case (b) Must be accompanied by an affidavit showing the
praying that the judgment, order or proceeding be fraud, accident, mistake or excusable negligence
set aside. relied upon;
(c) The affidavit of merit accompanying the petition
The relief provided for by Rule 38 is of equitable must also show the facts constituting the
character and is only allowed in exceptional cases, petitioner’s good and substantial cause of action
that is where there is no other available or adequate or defense.
remedy. A petition for relief is not regarded with
favor and judgment will not be disturbed where the An affidavit of merit serves as the jurisdictional basis
party complaining has or by his exercising proper for the court to entertain a petition for relief.
diligence would have had an adequate remedy at However, it is not a fatal defect to warrant denial of
law, as where petitioner could have proceeded by the petition so long as the facts required to be set
appeal to vacate or modify the default judgment. out also appear in the verified petition.
[Manila Electric v. CA (1990)]
When an Affidavit of Merit is Not Necessary
Petition for relief under Rule 38 is an admission that (a) When there is lack of jurisdiction over the
the period to appeal from the decision had already defendant;
expired. [David v. CA (1992)] (b) When there is lack of jurisdiction over the subject
matter;
TIME TO FILE PETITION
(c) When judgment was taken by default;
(d) When judgment was entered by mistake or was
Rule 38, Sec.3. Time for filing petition; contents and obtained by fraud; or
verification. — A petition provided for in either of the (e) Other similar cases.
preceding sections of this Rules must be verified,
filed within 60 days after the petitioner learns of the Two Hearings an a Petition for Relief from Judgment
judgment, final order, or other proceeding to be set (a) Hearing to determine whether or not the
aside, and not more than 6 months after such judgment should be set aside;
judgment or final order was entered, or such (b) If option a) is in the affirmative, hearing upon the
proceeding was taken; and must be accompanied merits of the case.
with affidavits showing the fraud, accident, mistake,
or excusable negligence relied upon, and the facts Other Remedies After Finality of Judgment
constituting the petitioner’s good and substantial (a) Action to Annul a Judgment
cause of action or defense, as the case may be. (b) Certiorari
(c) Collateral Attack of a Judgment that is Void on its
Both periods must concur. They are also non- Face
extendible and never interrupted.
ANNULMENT OF JUDGMENTS OR FINAL
CONTENTS OF PETITION ORDERS AND RESOLUTIONS
Rule 38, Sec.2. Petition for relief from denial of
appeal.—When a judgment of final order is rendered GROUNDS FOR ANNULMENT [Rule 47, Section 2]
by any court in a case, and a party thereto, by fraud, Grounds for Annulment
accident, mistake, or excusable negligence, has been
prevented from taking an appeal, he may file a Extrinsic Fraud
petition in such court and in the same case praying Extrinsic fraud - any fraudulent act of the prevailing
that the appeal be given due course. party in the litigation which is committed outside of
the trial of the case, whereby the unsuccessful party
PAGE 92
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
has been prevented from exhibiting fully his case. timely motion for new trial had been granted
[Tolentino v. Leviste (2004)] therein.
PAGE 93
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 94
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
(c) When the judgment has been NOVATED BY THE and thereafter by action before it is barred by the
PARTIES statute of limitations.
(d) When SUBSEQUENT FACTS AND
CIRCUMSTANCES transpire as to render such The maximum period within which a final and
execution unjust or impossible executory judgment may be executed is 20 years
(e) On EQUITABLE GROUNDS as when there has [Rule 39, Sec. 6 in relation to New Civil Code provision
been a change in the situation of the parties on prescription of judgment]
which makes execution INEQUITABLE.
(f) When the judgment becomes DORMANT, the 5- Exceptions:
year period under Rule 39.6 having expired (a) Judgments for support WHICH DO NOT BECOME
without the judgment having been revived. DORMANT AND WHICH CAN BE EXECUTED BY
MOTION [Canonizado v. Benitez (1984)] except for
AEXECUTION AS A MATTER OF RIGHT support in arrears beyond 10 years from the date
See Annex D. they become due;
(b) Contempt orders by reason of unauthorized
General rule: An ex parte motion for the issuance of reentry on the land by the ejected defendant
the writ of execution would suffice since the trial [Azotes v. Blanco (1947)];
court may take judicial notice of the record of the (c) Issuance of writs of possession in FORECLOSURE
case to determine the propriety of the issuance CASES within the statute of limitations;
thereof. (d) Land registration proceedings (and other special
proceedings), hence the right to ask for a WRIT
Exception: However when the losing party shows that OF POSSESSION THEREIN NEVER PRESCRIBES
subsequent facts had taken place which would
render the execution unjust, a hearing on the motion DISCRETIONARY EXECUTION
should be held. [Luzon Surety v. Beson (1976)] See Annex E.
General rule: An appeal seasonably perfected shall General rule: Under the Rule on Discretionary
stay the execution of the judgment, unless Execution (also called execution pending appeal),
discretionary execution is granted by the court. the court rendering the judgment, if it still has
jurisdiction, may exercise discretion and order
Exceptions: However, judgments in the following execution pending appeal (Asked in the 2002 Bar
action, despite perfection of an appeal, shall be Exam). It is the execution of a judgment or final order
executed, unless the court orders otherwise: before it attains finality. The court which rendered
(a) injunction the decision can grant an execution pending appeal
(b) receivership if it still retains jurisdiction over the case and is in
(c) accounting possession of the records at the time of the filing of
(d) support the motion; otherwise, the motion shall be acted
(e) such other judgments as shall now or may upon by the appellate court. To be valid, there
hereafter be declared to be immediately should be a good reason to justify the execution of
executory the judgment pending appeal, the same to be stated
in the order granting it.
Judgments in these actions shall be enforceable
after their rendition and shall not, be stayed by an Exception: This rule, however, is inapplicable in the
appeal taken therefrom, UNLESS OTHERWISE case of the Court of Appeals.
ORDERED BY THE TRIAL COURT. (a) The Rule on Discretionary Execution
contemplates a situation where a judgment or
General rule: A final and executory judgment or order final order rendered in the exercise of its original
may be executed on motion within five (5) years from jurisdiction and the prevailing party in said
the date of its entry. [Rule 39, Sec. 6] decision seeks immediate execution during the
pendency of an appeal.
After the lapse of such time, and before it is barred (b) The CA has no authority to issue IMMEDIATE
by the statute of limitations, a judgment may be EXECUTION PENDING APPEAL OF ITS OWN
enforced by action. DECISIONS THEREIN.
(c) Discretionary execution is allowed pending
The revived judgment may also be enforced by appeal of judgment or final order of the trial court
motion within five (5) years from the date of its entry upon good reasons to be stated in a special order.
PAGE 95
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
Heirs of Justice J.B.L. Reyes v. CA (2000): A judgment (c) If it be for the sale of real or personal property, to
of the ca cannot be executed pending appeal. It is sell such property, describing it, and apply the
acquired either by the arrest of the accused or by his proceeds in conformity with the judgment, the
voluntary appearance in court. material parts of which shall be recited in the writ
of execution;
General rule: The filing of a supersedeas bond is (d) If it be for the delivery of the possession of real or
sufficient to stay the enforcement of a discretionary personal property, to deliver the possession of the
execution. same, describing it, to the party entitled thereto,
and to satisfy any costs, damages, rents, or profits
Exception: However, THE FILING OF SUPERSEDEAS covered by the judgment out of the personal
BOND does not entitle the judgment debtor to the property of the person against whom it was
suspension of execution as a MATTER OF RIGHT. rendered, and if sufficient personal property
Where the needs of the prevailing party are cannot be found, then out of the real property;
URGENT, the Court can order immediate execution and
despite such SUPERSEDEAS BOND. [Regalado] (e) In all cases, the writ of execution shall specifically
state the amount of the interest, costs, damages,
HOW A JUDGMENT IS EXECUTED rents, or profits due as of the date of the issuance
EXECUTION BY MOTION OR BY INDEPENDENT ACTION of the writ, aside from the principal obligation
[Rule 39, Sec. 6] under the judgment. For this purpose, the motion
for execution shall specify the amounts of the
When judgment/order may be executed by motion foregoing reliefs sought by the movant.
Within 5 years from the date of its entry
EXECUTION OF JUDGMENTS FOR MONEY (asked in the
When judgment/order may be executed by 2007 Bar Exam)
independent action
After the lapse of 5 years from date of its entry and Immediate payment on demand
before it is barred by the statute of limitations Procedure
The sheriff or executing officer demands from the
Note: The revived judgment may be enforced by judgment obligor the immediate payment of the
motion within five (5) years from the date of its entry full amount stated in the writ of execution and all
and thereafter by action before it is barred by the lawful fees.
statute of limitations.
PAGE 96
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
If the judgment obligee or his authorized If the judgment obligor cannot pay all or part
representative is not present to receive of the obligation in cash, certified bank check
payment, the judgment obligor shall deliver or other mode of payment acceptable to the
the aforesaid payment to the executing judgment obligee, the officer shall levy upon:
sheriff. The latter shall turn over all the (a) the properties of the judgment obligor of
amounts coming into his possession within every kind and nature whatsoever which
the same day to the clerk of court of the court may be disposed, of for value, and
that issued the writ, or if the same is not (b) not otherwise exempt from execution
practicable, deposit said amounts to a
fiduciary account in the nearest government
depository bank of the Regional Trial Court of
the locality.
The sheriff gives the judgment obligor the
option as to which of the property or part
thereof may be levied upon, sufficient to satisfy
the judgment.
The clerk of said court shall thereafter arrange
for the remittance of the deposit to the account
of the court that issued the writ whose clerk of
court shall then deliver said payment to the
judgment obligee in satisfaction of the
If the judgment obligor does not exercise the
judgment.
option, the officer shall first levy on the
personal properties, if any, and then on the real
properties if the personal properties are
insufficient to answer for the judgment.
The excess, if any, shall be delivered to the
judgment obligor while the lawful fees shall be
retained by the clerk of court for disposition as
provided by law. In no case shall the executing The sheriff shall sell only a sufficient portion of
sheriff demand that any payment by check be the personal or real property of the judgment
made payable to him. obligor which has been levied upon.
Satisfaction by levy
Nature
Levy means the act or acts by which an officer sets When there is more property of the judgment
apart or appropriates a part or the whole of the obligor than is sufficient to satisfy the judgment
property of the judgment debtor for purposes of the and lawful fees, he must sell only so much of
prospective execution sale [Llenares v. Vandevella the personal or real property as is sufficient to
(1966)]. satisfy the judgment and lawful fees.
PAGE 97
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 98
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
(b) if real or personal property is situated within the is rendered, or upon any other person required
Philippines, the court in lieu of directing a thereby, or by law, to obey the same, and such party
conveyance thereof may by an order divest the or person may be punished for contempt if he
title of any party and vest it in others, which shall disobeys such judgment.
have the force and effect of a conveyance
executed in due form of law. Special judgments are those which can be complied
with by the judgment obligor because of his personal
Sale of real or personal property qualifications or circumstances (e.g., a judgment
If judgment is rendered ordering the sale of real or ordering a partner to render an accounting, a
personal property, an order for execution shall be judgment ordering a party to comply with his
issued describing such property as may be ordered recording contract otherwise, pay damages).
sold, selling it, and applying the proceeds in
conformity with the judgment’s instructions. Note the difference with sections 9 and 10 (on
execution of money judgments and specific acts)
Delivery or restitution of real property where contempt is not a remedy against
The officer shall demand of the person against disobedience by a party.
whom the judgment for the delivery or restitution of
real property is rendered and all persons claiming EFFECT OF LEVY ON THIRD PERSONS [Rule 39, Sec. 12]
rights under him to peaceably vacate the property Effect
within three (3) working days, and restore possession The levy on execution shall create a lien in favor of
thereof to the judgment obligee. the judgment obligee over the right, title and interest
of the judgment obligor in such property at the time
Otherwise, the officer shall oust all such persons of the levy, subject to liens and encumbrances then
therefrom with the assistance, if necessary, of existing.
appropriate peace officers, and employing such
means as may be reasonably necessary to retake PROPERTIES EXEMPT FROM EXECUTION
possession, and place the judgment obligee in General rule: Except as otherwise expressly provided
possession of such property. by law, the following property, and no other, shall be
exempt from execution: (FOTNUP-LBS-GMRE)
Any costs, damages, rents or profits awarded by the (a) The judgment obligor's family home as provided
judgment shall be satisfied in the same manner as a by law, or the homestead in which he resides,
judgment for money. and land necessarily used in connection
therewith;
Removal of improvements on property subject of (b) Ordinary tools and implements personally used
execution by him in his trade, employment, or livelihood;
When the property subject of the execution contains (c) Three horses, or three cows, or three carabaos,
improvements constructed or planted by the or other beasts of burden, such as the judgment
judgment obligor or his agent, the officer shall not obligor may select necessarily used by him in his
destroy, demolish or remove said improvements ordinary occupation;
except upon special order of the court, issued upon (d) His necessary clothing and articles for ordinary
motion of the judgment obligee after the hearing personal use, excluding jewelry;
and after the former has failed to remove the same (e) Household furniture and utensils necessary for
within a reasonable time fixed by the court. housekeeping, and used for that purpose by the
judgment obligor and his family, such as the
Delivery of personal property judgment obligor may select, of a value not
In judgment for the delivery of personal property, the exceeding one hundred thousand pesos;
officer shall take possession of the same and (f) Provisions for individual or family use sufficient
forthwith deliver it to the party entitled thereto and for four months;
satisfy any judgment for money as therein provided. (g) The professional libraries and equipment of
judges, lawyers, physicians, pharmacists,
EXECUTION OF SPECIAL JUDGMENTS dentists, engineers, surveyors, clergymen,
When a judgment requires the performance of any teachers, and other professionals, not exceeding
act other than those mentioned in the two preceding three hundred thousand pesos in value;
sections (execution of judgment for money and specific (h) One fishing boat and accessories not exceeding
acts), a certified copy of the judgment shall be the total value of one hundred thousand pesos
attached to the writ of execution and shall be served owned by a fisherman and by the lawful use of
by the officer upon the party against whom the same which he earns his livelihood;
PAGE 99
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
(i) So much of the salaries, wages, or earnings of with the court and copies thereof promptly furnished
the judgment obligor for his personal services the parties. [Rule 39, Sec. 12]
within the four months preceding the levy as are
necessary for the support of his family; Notice Requirement
(j) Lettered gravestones; Before the sale of property on execution, notice
(k) Monies, benefits, privileges, or annuities thereof must be given as follows:
accruing or in any manner growing out of any (a) In case of perishable property, by posting written
life insurance; notice of the time and place of the sale in three
(l) The right to receive legal support, or money or (3) public places, preferably in conspicuous areas
property obtained as such support, or any of the (CPM) municipal or city hall, post office and
pension or gratuity from the Government; public market in the municipality or city where
(m) Properties specially exempted by law. (e.g., the sale is to take place, for such time as may be
property mortgaged to the DBP [Section 26, CA reasonable, considering the character and
458]; savings of national prisoners deposited condition of the property;
with the POSTAL SAVINGS BANK [Act 2489]; (b) In case of other personal property, by posting a
benefits from private retirement systems of similar notice in the three (3) public places above-
companies and establishments with limitations mentioned for not less than five (5) days;
[RA 4917]; laborer’s wages except for debts (c) In case of real property, by posting for twenty (20)
incurred for food, shelter, clothing and medical days in the three (3) public places
attendance [ART 1708, CIVIL CODE]; benefit abovementioned a similar notice particularly
payments from SSS [Section 16, RA 1161 AS describing the property and stating where the
AMENDED]) property is to be sold, and if the assessed value of
the property exceeds fifty thousand (P50,000.00)
Exception: However, no article or species of property pesos, by publishing a copy of the notice once a
mentioned in this section shall be exempt from: week for two (2) consecutive weeks in one
(a) execution issued upon a judgment recovered for newspaper selected by raffle, whether in English,
its price, or Filipino, or any major regional language
(b) upon a judgment of foreclosure of a mortgage published, edited and circulated or, in the
thereon. absence thereof, having general circulation in the
province or city;
Herrera v. Mcmicking (1909): The exemptions MUST (d) In all cases, written notice of the sale shall be
BE CLAIMED, otherwise they are deemed waived. It given to the judgment obligor, at least three (3)
is not the duty of the sheriff to set off the exceptions days before the sale, except as provided in
on his own initiative. paragraph (a) hereof where notice shall be given
the same manner as personal service of
Return of Writ of Execution pleadings and other papers as provided by
The writ of execution shall be returnable to the court section 6 of Rule 13.
issuing it immediately after the judgment has been
satisfied in part or in full. The notice shall specify the place, date and exact
time of the sale which should not be earlier than nine
If the judgment cannot be satisfied in full within o'clock in the morning and not later than two o'clock
thirty (30) days after his receipt of the writ, the officer in the afternoon (9am-2pm).
shall report to the court and state the reason
therefor. The place of the sale MAY BE AGREED UPON BY
THE PARTIES. In the absence of such agreement, the
Such writ shall continue in effect during the period sale of the property or personal property not capable
within which the judgment may be enforced by of manual delivery shall be held in the office of the
motion. clerk of court of the Regional Trial Court or the
Municipal Trial Court which issued the writ of or
The officer shall make a report to the court every which was designated by the appellate court.
thirty (30) days on the proceedings taken thereon
until the judgment is satisfied in full, or its effectivity In the case of personal property capable of manual
expires. delivery, the sale shall be held in the place where the
property is located. [Rule 39, Sec. 15]
The returns or periodic reports shall set forth the
whole of the proceedings taken, and shall be filed
PAGE 100
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 101
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
CERTIORARI AS A REMEDY in the event that his (e) The right of redemption is transferable and may
claim was denied since HE IS A NONPARTY to the be voluntarily sold [Gomez v. La Germinal (1918)]
original action. but said right cannot be levied upon by the
judgment creditor. The creditor may not deprive
Intervention by a third-party claimant whose the debtor of any further rights to the property
property had been levied upon by the sheriff in the [Lichauco v. Olegario (1922)]
action from which the writ pursuant to which the levy
was made was issued must be made before rendition (f) In effecting redemption, the mortgagor has the
of judgment by the trial court. He can no longer duty of tendering payment (actual tender of
intervene once the trial court already issues a writ of payment of the redemption price) before the
execution. [Bautista] redemption period expires. [Banco Filipino
Savings and Mortgage Bank v. CA (2005)]
RULES ON REDEMPTION However, neither to make an offer to redeem nor
(a) There is no right of redemption where the to make tender of payment of the repurchase
property sold at judicial sale is personal property. price is necessary when the right to redeem is
exercised through the filing of a complaint to
(b) Real property sold or any part thereof sold redeem. The filing of an action to redeem within
separately, may be redeemed in the manner that period is equivalent to a formal offer to
hereinafter provided, by the following persons: redeem. [Vda. de Panaligan v. CA (1996)]
(1) The judgment obligor; or his successor in
interest in the whole or any part of the (g) Redemption price varies depending on who the
property; redemptioner is:
(2) A creditor having a lien by virtue of an (1) If judgment obligor: Purchase price
attachment, judgment or mortgage on the (i) 1 % interest thereon up to the time of
property sold, or on some part thereof, redemption
subsequent to the lien under which the (ii) Any amount of assessments or taxes which
property was sold. Such redeeming creditor is the purchaser may have paid thereon after
termed a redemptioner. [Rule 39, Sec. 27] purchase and interest on such last named
amount at the same rate.
(c) Redemption can be made by either: (iii) If the purchaser be also a creditor having
(1) JUDGMENT OBLIGOR, within one year from prior lien to that of the redemptioner, other
the date of registration of the certificate of than the judgment under which such
sale purchase was made, the amount of such
(2) REDEMPTIONER, within one year from the other lien, with interest.
date of registration of the certificate of sale; or
within 60 days from the last redemption by (2) If redemptioner: Amount paid on the last
another redemptioner. redemption
(3) BUT IN ALL CASES, the judgment obligor (i) 2% interest thereon.
shall have the entire period of 1 YEAR from the (ii) Any amount of assessments or taxes which
date of registration of the sale to redeem the the last redemptioner may have paid thereon
property. after redemption by him with interest on
(4) IF THE JUDGMENT OBLIGOR REDEEMS, no such last named amount;
further redemption is allowed and he is (iii) Amount of any liens held by said last
restored to his estate. redemptioner prior to his own with interest
(5) THE PERIOD FOR REDEMPTION IS NOT
SUSPENDED by an action to annul the EFFECTS OF REDEMPTION
foreclosure sale. [Rule 39, Sec. 29]
(a) If the judgment obligor redeems he must make
(d) If the certificate of sale is not registered, the the same payments as are required to effect a
period for redemption does not run [Garcia v. redemption by a redemptioner, whereupon, no
Ocampo (1959)]. But where parties agreed on the further redemption shall be allowed and he is
date of redemption, the statutory period for legal restored to his estate.
redemption was converted into one of (b) The person to whom the redemption payment is
conventional redemption and the period binding made must execute and deliver to him a
on them is that agreed upon. [Lazo v. Republic certificate of redemption acknowledged before a
Surety & Insurance Co., Inc (1970)] notary public or other officer authorized to take
PAGE 102
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
acknowledgments of conveyances of real (3) Use the property in the same manner it was
property. previously used;
(c) Such certificate must be filed and recorded in the (4) Make Necessary repairs to buildings thereon
registry of deeds of the place in which the while he occupies the property
property is situated and the registrar of deeds (5) Use it in the ordinary course of husbandry
must note the record thereof on the margin of the (6) Collect rents, earnings and income derived
record of the certificate of sale. from the property until the expiration of
(d) The payments mentioned in this and the last period of redemption.
preceding sections may be made to the purchaser
or redemptioner, or for him to the officer who [Rule 39, Sec. 33]
made the sale. (a) If no redemption be made within one (1) year from
the date of the registration of the certificate of
[Rule 39, Sec. 30] sale, the purchaser is entitled to a conveyance
A redemptioner must produce to the officer, or and possession of the property; or,
person from whom he seeks to redeem, and serve (b) if so redeemed whenever sixty (60) days have
with his notice to the officer elapsed and no other redemption has been
(a) a copy of the judgment or final order under which made, and notice thereof given, and the time for
he claims the right to redeem, certified by the redemption has expired, the last redemptioner is
clerk of the court wherein the judgment or final entitled to the conveyance and possession;
order is entered, OR, (c) but in all cases the judgment obligor shall have
(b) if he redeems upon a mortgage or other lien, a the entire period of one (1) year from the date of
memorandum of the record thereof, certified by the registration of the sale to redeem the
the registrar of deeds, OR property.
(c) an original or certified copy of any assignment (d) The deed shall be executed by the officer making
necessary to establish his claim; AND the sale or by his successor in office, and in the
(d) an affidavit executed by him or his agent, latter case shall have the same validity as though
showing the amount then actually due on the the officer making the sale had continued in
lien. office and executed it.
(e) Upon the expiration of the right of redemption,
[Rule 39, Sec. 31] the purchaser or redemptioner shall be
(a) Until the expiration of the time allowed for substituted to and acquire all the rights, title,
redemption, the court may, as in other proper interest and claim of the judgment obligor to the
cases, restrain the commission of waste on the property as of the time of the levy.
property by injunction, on the application of the (f) The possession of the property shall be given to
purchaser or the judgment obligee, with or the purchaser or last redemptioner by the same
without notice; officer unless a third party IS ACTUALLY
(b) but it is not waste for a person in possession of HOLDING THE PROPERTY adversely to the
the property at the time of the sale, or entitled to judgment obligor.
possession afterwards, during the period allowed
for redemption, to continue to use it in the same RECOVERY OF PURCHASE PRICE AND REVIVAL OF
manner in which it was previously used, or to use JUDGMENT:
it in the ordinary course of husbandry; or to make (a) A judgment co-debtor may compel a contribution
the necessary repairs to buildings thereon while from the others:
he occupies the property. (1) When property liable to an execution against
(c) The purchaser or a redemptioner shall not be several persons is sold thereon, and
entitled to receive the rents, earnings and income (2) more than a due proportion of the judgment
of the property sold on execution, or the value of is satisfied out of the proceeds of the sale of
the use and occupation thereof when such the property of one of them, or
property is in the possession of a tenant. (3) one of them pays, without a sale, more than
(d) All rents, earnings and income derived from the his proportion,
property pending redemption shall belong to the (b) A surety may compel repayment from the
judgment obligor until the expiration of his period principal:
of redemption. In all, the judgment debtor shall
exercise the following rights: When a judgment is upon an obligation of one of
(1) Remain in possession of the property them, as security for another, and the surety pays
(2) He cannot be ejected; the amount, or any part thereof, either by sale of
his property or before sale. [Section 35, Rule 39].
PAGE 103
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 104
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 105
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
Orders granting or denying provisional remedies are (b) Action for money or property, embezzled or
merely interlocutory and cannot be the subject of an fraudulently misapplied or converted to his own
appeal. They may however be challenged before a use by either:
superior court through a petition for certiorari under (1) a public officer, an officer of a corporation, an
Rule 65. attorney, factor, broker, agent, or clerk, in the
course of his employment as such,
JURISDICTION OVER PROVISIONAL REMEDIES (2) OR by any other person in a fiduciary capacity,
All inferior courts can grant appropriate provisional or for a willful violation of duty;
remedies provided that the main action is within
their jurisdiction. [B.P. 129, Section 33] (c) Action to recover the possession of property
unjustly or fraudulently taken, detained or
PRELIMINARY ATTACHMENT (Asked in the 2002 converted,
Bar Exam)
when the property, or any part thereof, has been
DEFINITION concealed, removed, or disposed of to prevent its
A provisional remedy issued upon order of the court being found or taken by the applicant or an
where an action is pending to be levied upon the authorized person;
property of the defendant so the property may be
held by the sheriff as security for the satisfaction of NOTE: rule makes no distinction between real
whatever judgment may be rendered in the case and personal property [Riano]
[Davao Light v CA ](1991)
(d) Action against a party who has been guilty of a
A preliminary attachment may be applied for fraud in contracting the debt or incurring the
(a) at the commencement of the action or obligation upon which the action is brought, OR
(b) at any time before the entry of judgment. in the performance thereof;
It may be applied for by the plaintiff OR any proper NOTE: the delivery of counterfeit money or
party (including a defendant who filed a knowingly issuing a bounced check are
counterclaim, cross-claim, or a third party complaint) considered as grounds under this rule [Riano]
PAGE 106
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
For the first two stages, jurisdiction over the person Condition of applicant’s bond [Rule 57, Sec. 4]
of the defendant is NOT necessary. However, once Applicant must give a bond executed to the adverse
the implementation of the writ commences, the party in the amount fixed by the court in its order
court must have acquired jurisdiction over the granting the issuance of the writ conditioned that the
defendant. [Cuartero, supra] applicant will pay:
(a) all the costs which may be adjudged to the
REQUISITES adverse party and
(a) Case must be any of those where preliminary (b) all damages which the adverse party may sustain
attachment is proper by reason of the attachment if the court shall
(b) Applicant must file a motion (ex parte or with finally adjudge that the applicant was not
notice and hearing) entitled thereto.
(c) Applicant must show by affidavit (under oath)
that there is no sufficient security for the claim Note: the bond shall only be applied to all damages
sought to be enforced; sustained due to the attachment. It cannot answer
(d) Applicant must post an attachment bond for those that do not arise by reason of the
executed to the adverse party (Rule 57, Sec. 3) attachment [Riano].
PAGE 107
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
Exceptions to Contemporaneous Service of any, or with such other person or his agent if
Summons: [Rule 57, Sec. 5] found within the province.
(a) Summons could not be served personally or by
substituted service despite diligent efforts, or Where the property has been brought under the
(b) Defendant is a resident of the Philippines operation of either the Land Registration Act or
temporarily absent therefrom, or the Property Registration Decree, the notice
(c) Defendant is a non-resident, or shall contain a reference to the number of the
(d) The action is in rem or quasi in rem. certificate of title, the volume and page in the
registration book where the certificate is
Sheriff’s Return [Rule 57, Sec. 6] registered, and the registered owner or owners
The sheriff, after enforcing the writ, shall make a thereof.
return to the court which issued the writ stating the
ff: (b) Personal property capable of manual delivery
(a) a full statement of his proceedings under the writ by taking and safely keeping it in the sheriff’s
(b) a complete inventory of the property attached, custody, after issuing the corresponding receipt
together with any counter-bond given by the therefor;
party against whom attachment is issued
(c) Stocks or shares, or an interest in stocks or shares,
The sheriff shall serve copies of the return to the of any corporation or company
applicant.
by leaving with the president or managing agent
MANNER OF ATTACHING REAL AND PERSONAL PROPERTY; thereof,
WHEN PROPERTY ATTACHED IS CLAIMED BY THIRD PERSON (1) a copy of the writ, and
(2) a notice stating that the stock or interest of
Manner of attaching property [Rule 57, Sec. 5] the party against whom the attachment is
The sheriff enforcing the writ shall attach only so issued is attached in pursuance of such writ;
much of the property in the Philippines of the
adverse party not exempt from execution as may be (d) Debts and credits, including bank deposits, financial
sufficient to satisfy the applicant’s demand, UNLESS interest, royalties, commissions, and other personal
(a) Party against whom writ is issued makes a property not capable of manual delivery
deposit with the court from which the writ is
issued, or by leaving with the person owing such debts, or
(b) He gives a counter-bond executed to the having in his possession or under his control, such
applicant credits or other personal property, or with his
agent,
The levy on attachment shall be preceded or (1) a copy of the writ, and
contemporaneously accompanied by service on the (2) A notice that the debts owing by him to the
defendant within the Philippines of: party against whom attachment is issued, and
(a) summons the credits and other personal property in his
(b) copy of complaint possession, or under his control, belonging to
(c) application for attachment said party, are attached in pursuance of such
(d) affidavit and bond of applicant writ;
(e) order and writ of attachment.
(e) Interest of the party whom attachment is issued in
Manner of attachment of real and personal property property belonging to the estate of the decedent
[Rule 57, Sec. 7]: (1) by serving the executor or administrator or
(a) Real property, or growing crops thereon, or any other personal representative of the decedent
interest therein with a copy of the writ and notice that said
(1) filing with the registry of deeds: interest is attached and
(i) a copy of the order, together with a (2) By filing a copy of the writ and notice in the
description of the property attached, office of the clerk of the court in which said
(ii) notice that it is attached, or that such real estate is being settled and served upon the
property and any interest therein held by or heir, legatee or devisee concerned.
standing in the name of such other person
are attached, Note:
(2) leaving a copy of such order, description, and Property in custodia legis may be attached by:
notice with the occupant of the property, if
PAGE 108
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 109
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
attachment, or affidavit and/or bond filed or sureties after notice and summary hearing in
therefore are defective or insufficient; the same action. [Rule 57, Sec. 17]
(c) Attachment is excessive but the discharge shall
be limited to the excess [Rule 57, Sec. 13]; (b) Where the party against whom attachment had
(d) Property attached is exempt from execution [Rule been issued has deposited money instead of
57, Sec. 2 and Rule 57, Sec. 5]; giving counter-bond, it shall be applied under the
(e) Judgment is rendered against the attaching direction of the court to the satisfaction of any
creditor [Rule 57, Sec. 19]. judgment rendered in favor of the attaching
party, and after satisfying the judgment the
SATISFACTION OF JUDGMENT OUT OF PROPERTY ATTACHED balance shall be refunded to the depositor or his
The sheriff may cause judgment to be satisfied out of assignee.
the property attached if it be sufficient for that
purpose in the following manner: (c) If the judgment is in favor of the party against
(1) By paying to the judgment obligee the proceeds whom attachment was issued, the whole sum
off all sales of perishable or other property sold in deposited must be refunded to him or his
pursuance of the order of the court, or so much as assignee. [Rule 57, Sec. 18]
shall be necessary to satisfy the judgment;
(2) If any balance remains due, by selling so much of (d) If judgment be rendered against the attaching
the property, real or personal, as may be party, all the proceeds of sales and money
necessary to satisfy the balance, if enough for collected or received by the sheriff, under the
that purpose remain in the sheriff’s hands, or in order of attachment, and all property attached
those the clerk of the court; remaining in any such officer's hands, shall be
(3) By collecting from all persons having in their delivered to the party against whom attachment
possession credits belonging to the judgment was issued, and the order of attachment
obligor, or owing debts to the latter at the time of discharged. [Rule 57, Sec. 19]
the attachment of such credits or debts, the
amount of such credits or debts as determined by Improper, Irregular or Excessive Attachment (Asked in
the court in the action, and stated in the the 2008 bar exam)
judgment, and paying the proceeds of such An application for damages must be filed before the
collection over to the judgment obligee. [Rule 57, trial, or before appeal is perfected, or before the
Sec. 15] judgment becomes executory.
Balance due collected upon an execution; excess Such damages may be awarded only after hearing
delivered to the judgment obligor and shall be included in the judgment on the main
(a) If after realizing upon all the property attached, case. [Rule 57, Sec. 20]
including the proceeds of any debts or credits
collected, and applying the proceeds to the Procedure for claiming damages is EXCLUSIVE.
satisfaction of the judgment less the expenses of Such claims for damages cannot be the subject of an
proceedings upon the judgment, any balance independent action.
shall remain due, the sheriff must proceed to
collect such balance as upon ordinary execution. Exceptions:
(b) Whenever the judgment shall have been paid, the (a) Where the principal case was dismissed for lack
sheriff, upon reasonable demand, must return to of jurisdiction by the trial court without giving
the judgment obligor the attached property opportunity to the party whose property was
remaining in his hands, and any proceeds of the attached to apply for and prove his claim; and
sale of the property attached not applied to the (b) Where the damages by reason of the attachment
judgment. [Rule 57, Sec. 16] was sustained by a third person who was not a
party to the action wherein such writ was issued.
Recovery Upon the Counter-Bond; Disposition of [Santos v. CA (1954)]
Deposit/ Attached Property After Judgment
(a) When the judgment has become executory, the
surety or sureties on any counter-bond given to
secure the payment of the judgment shall
become charged on such counter-bond and
bound to pay the judgment obligee upon
demand the amount due under the judgment,
which amount may be recovered from such surety
PAGE 110
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PRELIMINARY INJUNCTION Status Quo Order vs. Injunction (Asked in the 2006
bar exams)
DEFINITIONS AND DIFFERENCES: DRELIMINARY A status quo order is in the nature of a cease and
INJUNCTION AND TEMPORARY RESTRAINING ORDER; desist order. It is resorted to when the projected
STATUS QUO ANTE ORDER proceedings in the case made the conservation of
the status quo desirable or essential, but the affected
A preliminary injunction is an order granted at any party neither sought such relief nor did the
stage of an action or proceeding prior to the allegations in his pleading sufficiently make out a
judgment or final order, requiring a party or a court, case for a temporary restraining order.
agency or a person to either
(a) refrain from a particular act or acts or It does NOT direct the doing or undoing of acts but is
(b) require the performance of a particular act or an order to maintain the last, actual, peaceable and
acts, in which case it shall be known as a uncontested state of things which preceded the
preliminary mandatory injunction controversy.
PAGE 111
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
(2) Within 72 hours, judge shall conduct a (i) Transfer of possession of property to party with
summary hearing to determine whether the disputed legal title via preliminary injunction
TRO shall be extended until the application
for preliminary injunction can be heard. Exceptions:
(3) Maximum period of effectivity of TRO = 20 (a) Forcible entry and unlawful detainer cases in
days (including 72 hrs) which the court may issue preliminary mandatory
injunction [Rule 70, Sec. 15]
If the application for preliminary injunction is denied (b) Property covered by Torrens Title when there is a
or not resolved within said period, the TRO is clear finding of ownership and possession of the
deemed automatically vacated. land. [GSIS v. Florendo(1989)]
PAGE 112
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
GROUNDS FOR ISSUANCE OF PRELIMINARY INJUNCTION GROUNDS FOR OBJECTION TO, OR FOR THE DISSOLUTION
[Rule 58, Sec. 3] (Asked in the 2006 bar exam) OF INJUNCTION OR RESTRAINING ORDER
(a) Applicant is entitled to the relief demanded, and Grounds for Objection to/Motion for Dissolution of
the relief consists in Injunction/Restraining Order [Rule 58, Sec. 6]
(1) restraining the commission or continuance of (a) Insufficiency of application
the acts or acts complained of, or (b) other grounds (e.g. applicant’s bond is
(2) in requiring performance of an act or acts; insufficient/defective), upon affidavits of the party
(b) Commission, continuance or non-performance of or person enjoined
the acts complained of during the litigation (c) if it appears after hearing that although the
would probably work injustice to the applicant; or applicant is entitled to the injunction or
(c) A party, court, agency or a person is doing, restraining order, the issuance or continuance
threatening, or is attempting to do, or is thereof would cause irreparable damage to the
procuring or suffering to be done, some act or party/person enjoined, while the applicant can be
acts probably in violation of the rights of the fully compensated for such damages as he may
applicant respecting the subject of the action or suffer, provided the former files a bond
proceeding, and tending to render the judgment
ineffectual. If it appears that the extent of the preliminary
injunction or restraining order granted is too great, it
may be modified.
PAGE 113
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
Global Injunction of a Foreign Court (Asked in the (a) Acquisition, clearance and development of the
2007 Bar Exam) right-of-way and/or site or location of any
A global injunction issued by a foreign court to national government project;
prevent dissipation of funds against the defendant (b) Bidding or awarding of contract/ project of the
who has assets in the Philippines may be enforced in national government as defined under Section 2
our jurisdiction, subject to our procedural laws hereof;
(Suggested Answers to the 2007 Bar Exam, UP Law (c) Commencement prosecution, execution,
Center) implementation, operation of any such contract
or project;
As a general rule, no sovereign is bound to give (d) Termination or rescission of any such
effect within its dominion to a judgment or order of a contract/project; and
tribunal of another country. (e) The undertaking or authorization of any other
lawful activity necessary for such
However, under the rules of comity, utility and contract/project.
convenience, nations have established a usage
among civilized states by which final judgments of This prohibition shall apply in all cases, disputes or
foreign courts of competent jurisdiction are controversies instituted by a private party, including
reciprocally respected and rendered efficacious but not limited to cases filed by bidders or those
under certain conditions that may vary in different claiming to have rights through such bidders
countries. [St. Aviation Services v. Grand International involving such contract/project.
Airways (2006)]
This prohibition shall NOT APPLY when the matter is
Note: In Pangalangan and Coquia’s book on Conflict of extreme urgency involving a constitutional issue,
of Laws (2000), citing Cheshire, it was stated that an such that unless a temporary restraining order is
interlocutory or provisional judgment of a foreign issued, grave injustice and irreparable injury will
court, creates no obligation on the forum court to arise. The applicant shall file a bond, in an amount to
enforce it. be fixed by the court, which bond shall accrue in
favor of the government if the court should finally
DURATION OF A TEMPORARY RESTRAINING ORDER decide that the applicant was not entitled to the
General rule: TRO is effective only for a period of 20 relief sought.
days from service on the party or person sought to be
enjoined Any TRO, preliminary injunction, or preliminary
mandatory injunction issued in violation of Sec. 3 is
Exceptions: If the matter is of extreme urgency and void and of no force and effect. [Sec 4]
the applicant will suffer grave injustice and
irreparable injury: effective for only 72 hours from RULE ON PRIOR OR CONTEMPORANEOUS SERVICE OF
issuance [Rule 58, Sec.5] SUMMONS IN RELATION TO ATTACHMENT
When an application for a writ of preliminary
Issued Effectivity: injunction or a temporary restraining order is
by: included in a complaint or any initiatory pleading,
RTC 20 days, non-extendible (including the the case, if filed in a multiple-sala court, shall be
original 72 hours) raffled only after notice to and in the presence of the
CA May be effective for 60 days from service adverse party or the person to be enjoined. In any
on the party or person sought to be event, such notice shall be preceded, or
enjoined. contemporaneously accompanied, by service of
SC May be effective until further orders summons, together with a copy of the complaint or
initiatory pleading and the applicant's affidavit and
IN RELATION TO RA 8975, BAN ON ISSUANCE OF TRO OR bond, upon the adverse party in the Philippines.
WRIT OF INJUNCTION IN CASES INVOLVING GOVERNMENT
INFRASTRUCTURE PROJECTS Exception:
Sec. 3, RA 8975: No court, except the Supreme Court, Where the summons could not be served personally
shall issue any TRO, preliminary injunction or or by substituted service despite diligent efforts, or
preliminary mandatory injunction against the the adverse party is a resident of the Philippines
government, or any of its subdivisions, officials or any temporarily absent therefrom or is a nonresident
person or entity, whether public or private acting thereof, the requirement of prior or
under the government direction, to restrain, prohibit contemporaneous service of summons shall not
or compel the following acts: apply. [Rule 58, Sec.4] The executive judge of a
PAGE 114
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
multiple-sala court or the presiding judge of a single dissipated or materially injured, and that its value
sala court may issue ex parte a TRO effective for only is probably insufficient to discharge the mortgage
72 hours from ISSUANCE if the matter is of extreme debt, or that the parties have so stipulated in the
urgency and the applicant will suffer grave injustice contract of mortgage;
and irreparable injury. However, he shall (c) After judgment, to preserve the property during
immediately comply with the provisions of Rule 38, the pendency of an appeal, or to dispose of it
Sec. 4 as to service of summons and the documents according to the judgment, or to aid execution
to be served therewith. [Rule 38, Sec. 5] when the execution has been returned unsatisfied
or the judgment obligor refuses to apply his
property in satisfaction of the judgment, or
RECEIVERSHIP (Asked in the 2001 Bar Exam) otherwise to carry the judgment into effect;
(d) Whenever in other cases it appears that the
NATURE appointment of a receiver is the most convenient
Receiver. and feasible means of preserving, administering,
person appointed by the court in behalf of all the or disposing of the property in litigation. [Rule 59,
parties to the action for the purpose of preserving Sec. 1]
and conserving the property in litigation and prevent
its possible destruction or dissipation if it were left in Specific situations when a receiver may be appointed
the possession of any of the parties. (a) If a spouse without just cause abandons the other
or fails to comply with his/her obligations to the
PURPOSE family, the aggrieved spouse may petition the
The purpose of a receivership as a provisional court for receivership. [Family Code, Article 101]
remedy is to protect and preserve the rights of the (b) The court may appoint a receiver of the property
parties during the pendency of the main action, of the judgment obligor; and it may also forbid a
during the pendency of an appeal or as an aid in the transfer or other disposition of, or any
execution of a judgment when the writ of execution interference with, the property of the judgment
has been returned unsatisfied. The receivership obligor not exempt from execution. [Rule 39, Sec.
under Rule 59 is directed to the property which is the 41]
subject of the action and does not refer to the (c) After the perfection of an appeal, the trial court
receivership authorized under banking laws and retains jurisdiction to appoint a receiver of the
other rules or laws. Rule 59 presupposes that there property under litigation since this matter does
is an action and that the property subject of the not touch upon the subject of the appeal. [Rule
action requires its preservation. Receivership under 41, Sec. 9; Acuña v. Caluag (1957)]
Rule 59 is ancillary to the main action. (Riano). (d) After final judgment, a receiver may be appointed
as an aid to the execution of judgment. [Philippine
Commodities Storage v. CA (1997): The guiding Trust Company v. Santamaria (1929)]
principle is the prevention of imminent danger to the (e) Appointment of a receiver over the property in
property. If an action by its nature, does not require custodia legis may be allowed when it is justified
such protection or preservation, said remedy cannot by special circumstances, as when it is reasonably
be applied for and granted. necessary to secure and protect the rights of the
real owner. [Dolar v. Sundiam (1971)]
Arranza v. B.F. Homes (2000): Receivership is aimed
at the preservation of, and at making more secure, Alcantara v. Abbas (1963): The general rule is that
existing rights; it cannot be used as an instrument for neither party to the litigation should be appointed as
the destruction of those rights. a receiver without the consent of the other because a
receiver is supposed to be an impartial and
CASES WHEN RECEIVER MAY BE APPOINTED disinterested person.
(a) When it appears from the verified application and
other proof that the applicant has an interest in Abrigo v. Kayanan (1983): A clerk of court should not
the property or fund which is the subject of the be appointed as a receiver as he is already burdened
action or proceeding, and that such property or with his official duties.
fund is in danger of being lost, removed, or
materially injured unless a receiver be appointed REQUIREMENTS BEFORE ISSUANCE OF AN ORDER
to administer and preserve it; Requisites and Procedure
(b) When it appears in an action by the mortgagee (a) Verified application filed by the party requesting
for the foreclosure of a mortgage that the for the appointment of the receiver;
property is in danger of being wasted or
PAGE 115
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
(b) Applicant must have an interest in the property or Liability for refusal or neglect to deliver property to
funds subject of the action; receiver
(c) Applicant must show that the property or funds is (a) Contempt; and
in danger of being lost, wasted, or dissipated; (b) Be liable to the receiver for the money or the
(d) Application must be with notice and must be set value of the property and other things so refused
for hearing; or neglected to be surrendered together with all
(e) Before appointing a receiver, the court shall damages that may have been sustained by the
require applicant to post a bond in favor of the party or parties entitled thereto as a consequence
adverse party. When the receiver is appointed, the of such refusal or neglect. [Rule 59, Sec. 7]
receiver shall file a bond then take his oath.
(f) Before entering upon his duties, the receiver must TWO (2) KINDS OF BOND
be sworn to perform his duties faithfully. (a) Applicant’s bond
(b) Receiver’s bond
Who appoints receiver
(a) Court where the action is pending TERMINATION OF RECEIVERSHIP
(b) CA
(c) SC Ground
(d) During the pendency of an appeal, the appellate The necessity for a receiver no longer exists
court may allow an application for the
appointment of a receiver to be filed in and Procedure
decided by the court of origin. [Rule 59, Sec. 1] (a) Motu proprio or on motion of either party
(b) Notice to all interested parties and hearing [Rule
Denial of application or discharge of receiver 59, Sec. 8]
(a) If the appointment sought or granted is without
sufficient cause Effect
(b) Adverse party files a sufficient bond to answer for (a) Settle accounts of receiver
damages [Rule 59, Sec. 3] (b) Delivery of funds to person entitled
(c) Bond posted by the applicant for grant of (c) Discharge of receiver
receivership is insufficient (d) Receiver entitled to reasonable compensation to
(d) Bond of receiver is insufficient be taxed as costs against defeated party.
PAGE 116
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 117
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
When third party claims the property and such ORDINARY CIVIL ACTIONS VERSUS SPECIAL CIVIL
person makes affidavit of his title thereto stating his ACTIONS
grounds, and serves such affidavit upon the sheriff The fact that an action is subject to special rules
while the latter has possession of the property and a other than those applicable to ordinary civil actions is
copy upon the applicant, the sheriff SHALL NOT BE what makes a civil action special. [Riano]
BOUND to keep property under replevin or deliver
property to the applicant UNLESS the applicant files Ordinary Civil Action Special Civil Action
a bond approved by the court in favor of the third Governed by ordinary Also governed by
person (the bond should not be less than the value rules ordinary rules but
of stated under Sec. 60, Sec. 2; the court shall subject to specifically
determine the value in case of disagreement). prescribed rules (Rules
62 to 71)
No claim for damages for the taking or keeping of
the property may be enforced against the bond Some concepts applicable to ordinary civil actions
UNLESS the action is filed within 120 days from filing are not applicable in special civil actions. E.g.:
of the bond. (a) the definition of a cause of action requiring
violation of a right does not appear to be relevant
to the special civil action of declaratory relief and
interpleader;
Special Civil Actions (b) ordinary civil actions may be filed initially in MTC
or RTC depending on jurisdictional amount while
some special civil actions can only be filed in MTC
NATURE OF SPECIAL CIVIL ACTIONS (forcible entry and unlawful detainer) and some
Rules on ordinary civil actions shall apply to special cannot be commenced in MTC (certiorari,
civil actions insofar as they are not inconsistent with prohibition, mandamus). [Riano]
or may supplement the rules governing the latter.
[Rule 1, Sec. 3] JURISDICTION AND VENUE
Venue is governed by the general rules on venue,
Since a civil action in general is one by which a party except as otherwise indicated in the particular rules
sues another for the enforcement of a right, or the for special civil actions.
prevention or redress of a wrong, a special civil action
is generally brought or filed for the same purpose. 3 special civil actions within the jurisdiction of inferior
[Riano] courts:
(a) interpleader, provided the amount involved is
HOW COMMENCED: within its jurisdiction [Makati Development Corp. v.
(A) COMPLAINT Tanjuatco (1969)]
(1) interpleader (b) ejectment suits [Rule 70]
(2) expropriation (c) contempt [Rule 71]
(3) foreclosure of real estate mortgage
(4) partition INTERPLEADER
(5) forcible entry and unlawful detainer DEFINITION
(B) PETITION A remedy whereby a person who has property in his
(6) declaratory relief possession or has an obligation to render wholly or
(7) review of adjudications of Constitutional partially, without claiming any right in both, comes
commissions to court and asks that the defendants who have
(8) certiorari made conflicting claims upon the same property or
(9) prohibition who consider themselves entitled to demand
(10) mandamus compliance with the obligation be required to litigate
(11) quo warranto among themselves in order to determine who is
(12) contempt entitled to the property or payment or the obligation
[Beltran v. PHHC, (1969)]
Writs of injunction, mandamus, certiorari,
prohibition, quo warranto and habeas corpus issued PURPOSE
by RTCs are enforceable within their respective (a) To compel conflicting claimants to interplead and
judicial regions. [B.P. 129, Section 21] litigate their several claims among themselves.
[Rule 62, Sec. 1]
PAGE 118
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
Pre-trial
Court order requiring the conflicting claimants
to interplead with one another. If the interests of
justice so require, the court may direct that the
Court shall determine conflicting claimants’
subject matter be paid or delivered to the court.
respective rights and adjudicate their several
[Rule 62, Sec. 2]
claims. [Rule 62, Sec. 6]
WHEN TO FILE
Summons, copy of complaint and order served Whenever conflicting claims upon the same subject
upon the conflicting claimants. [Rule 62, Sec. 3] matter are or may be made against a person who
claims no interest in the subject matter or an interest
which is not disputed by the claimants. [Rule 62, Sec.
1]
Each claimant shall file his answer within 15 days
from service of the summons, serving a copy Cannot be availed of to resolve the issue of breach of
thereof upon each of the other conflicting undertakings made by defendants, which should be
claimants, who may file their reply thereto. resolved in an ordinary action for specific
performance or other relief [Beltran, supra].
PAGE 119
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 120
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
of the parties may ask for the reformation of the (c) An aggrieved party may bring the questioned
instrument to the end that such true intention may judgment, etc. directly to the SC on certiorari
be expressed. under Rule 65. [Rule 64, Sec. 2]
If mistake, fraud, inequitable conduct, or accident Such petition for certiorari shall not stay the
has prevented a meeting of the minds of the parties, execution of the judgment, etc. sought to be
the proper remedy is not reformation of the reviewed unless otherwise directed by the Supreme
instrument but annulment of the contract. Court [Rule 64, Sec. 8]
Definition
Art. 1607, Civil Code. In case of real property, the
consolidation of ownership in the vendee by virtue of
the failure of the vendor to comply with the
provisions of article 1616 shall not be recorded in the
Registry of Property without a judicial order, after the
vendor has been duly heard.
Definition
Art. 476, Civil Code. Whenever there is a cloud on title
to real property or any interest therein, by reason of
any instrument, record, claim, encumbrance or
proceeding which is apparently valid or effective but
is in truth and in fact invalid, ineffective, voidable, or
unenforceable, and may be prejudicial to said title,
an action may be brought to remove such cloud or to
quiet the title.
SCOPE
(a) Applicable only to judgments and final orders of
the COMELEC and COA [Rule 64, Sec. 1]
(b) Judgments/orders of the Civil Service
Commission are now reviewable by the Court of
Appeals under Rule 43, eliminating recourse to
the Supreme Court (SC). [RA 7902; SC Revised
Administrative Circular No. 1-95]
PAGE 121
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
Parties to cases before the Supreme Court are further Parties to cases before the Supreme Court are
required, on voluntary basis for the first six months further required, on voluntary basis for the first
following the effectivity of this Rule and compulsorily six months following the effectivity of this Rule
afterwards unless the period is extended, to submit, and compulsorily afterwards unless the period is
simultaneously with their court-bound papers, soft extended, to submit, simultaneously with their
copies of the same and their annexes (the latter in court-bound papers, soft copies of the same and
PDF format) either by email to the Court’s e-mail their annexes (the latter in PDF format) either by
address or by compact disc (CD). This requirement is email to the Court’s e-mail address or by
in preparation for the eventual establishment of an e- compact disc (CD). This requirement is in
filing paperless system in the judiciary. [Efficient Use preparation for the eventual establishment of an
of Paper Rule, Section 5] e-filing paperless system in the judiciary.
[Efficient Use of Paper Rule, Section 5]
Contents [Rule 64, Sec. 5]:
(a) name of aggrieved party (petitioner) Copy of the comment shall be served on the
(b) respondents: Commission concerned and petitioner.
person(s) interested in sustaining the judgment a
quo
(c) facts
(d) issues involved
(e) grounds and brief arguments relied upon for
review Decision [Rule 64, Sec. 9]
(f) prayer for judgment annulling or modifying the Case is deemed submitted for decision upon:
question judgment, etc. (a) filing of the comments on the petition, and such
(g) material dates showing that it was filed on time other pleadings or papers as may be required or
(h) certification against non-forum shopping allowed.
(b) expiration of the period to file the pleadings.
Findings of fact of the Commission supported by
substantial evidence shall be final and non- Exceptions: SC sets the case for oral argument or
reviewable. requires parties to submit memoranda.
PAGE 122
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
Application of Rule 65 under Rule 64 is read in relation to Section 3, Rule 46, which states
that failure to comply with any of the documentary
DISTINCTION IN THE APPLICATION OF RULE 65 TO requirements, such as the attachment of relevant
JUDGMENTS OF THE COMELEC AND COA AND THE pleadings, “shall be sufficient ground for the
APPLICATION OF RULE 65 TO OTHER TRIBUNALS, PERSONS dismissal of the petition.” [Radio Philippines Network
AND OFFICERS v. Yap (2012)]
The requirement in Section 1 of Rule 65 of the Rules General rule: In the performance of an official duty or
of Court to attach relevant pleadings to the petition act involving discretion, such official can only be
PAGE 123
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
Procedure
HEARING OR MEMORANDA
FILE PETITION FOR CERTIORARI/
After the comment or other pleadings
PROHIBITION / MANDAMUS.
required by the court are filed, or the time for
When filed:
the filing thereof has expired, the court may
(a) Not later than 60 days from notice of
hear the case or require the parties to submit
judgment/order/resolution
memoranda. [Rule 65, Sec. 8]
(b) If a motion for reconsideration/new trial
is filed, the 60-day period shall be
counted from notice of denial of motion.
(c) Extension may be granted for compelling
reasons, not exceeding 15 days. [Rule 65,
JUDGMENT
Sec. 4]
If after such hearing or submission of
memoranda or the expiration of the period
Where filed: for the filing thereof, the court finds that
(a) Supreme Court
the allegations of the petition are true, it
(b) Court of Appeals
shall render judgment for the relief prayed
If it involves the acts of a quasi-judicial
for or to which the petitioner is entitled.
agency, the petition shall be filed only in
the CA, unless otherwise provided by law
The court, however, may dismiss the
or the Rules.
petition if it finds the same to be (1)
(c) Regional Trial Court, if it relates to acts /
patently without merit, (2) prosecuted
omissions of a lower court / corporation / manifestly for delay, or that (3) the
board / officer / person.
questions raised therein are too
Sandiganbayan, if it is in aid of its appellate
unsubstantial to require consideration.
jurisdiction. [Rule 65, Sec. 4]
[Rule 65, Sec. 8]
PAGE 124
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 125
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 126
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
(2) When upon complaint or otherwise, he has any part thereof or any interest therein, showing
good reason to believe that any case specified as far as practicable the separate interest of each
in Sec. 1 can be established by proof. [Rule 66, defendant.
Sec. 2] (d) The following must be clearly stated in the
complaint , if applicable:
(c) When Solicitor General or public prosecutor MAY (1) If the title to any property sought to be
commence action: expropriated appears to be in the Republic of
(1) with permission of the court the Philippines, although occupied by private
(2) at the request and upon the relation of individuals;
another person (2) If the title is otherwise obscure or doubtful so
(3) Officer bringing such action may first require that the plaintiff cannot with accuracy or
an indemnity for the expenses and costs of the certainty specify who are the real owners.
action in an amount approved by and [Rule 67, Sec. 1]
deposited in court. [Rule 66, Sec. 3]
TWO STAGES IN EVERY ACTION FOR EXPROPRIATION
WHEN INDIVIDUAL MAY COMMENCE AN ACTION
By a person claiming to be entitled to a public office Determination of the authority of the plaintiff to
or position, brought in his own name, against exercise the power of eminent domain and the
another who usurped or unlawfully held or exercised propriety of its exercise in the context of the facts.
such public office or position [Rule 66, Sec. 5]
This stage is terminated by either an order of
JUDGMENT IN QUO WARRANTO ACTION dismissal of the action or order of the condemnation
When the respondent is found guilty of usurping, declaring that expropriation is proper and legal.
intruding into, or unlawfully holding or exercising a These orders are final and therefore appealable.
public office, position, or franchise, judgment shall [Municipality of Biñan v. Garcia (1989)]
be rendered that such respondent be ousted and
altogether excluded therefrom, and that the It includes an inquiry into the propriety of the
petitioner or relator recover his costs. [Rule 66, Sec. expropriation – its necessity and public purpose.
9] [Riano]
PAGE 127
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 128
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
may permit amendments to the answer not to be and report to the court the just compensation for the
made later than ten (10) days from filing thereof. property sought to be taken. [Rule 67, Sec. 5]
PAGE 129
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
(3) SET ASIDE the report and APPOINT new (b) Extrajudicially – proper only when so provided in
commissioners; contracts in accordance with Act. No. 3135;
(4) ACCEPT the report IN PART and REJECT it IN governed by A.M. No. 99-10-05-0.
PART;
Monte de Piedad v. Rodrigo (1931) : A foreclosure
And make such order or render judgment as shall action must be brought in the RTC of the province
secure to the plaintiff the property essential to where the land or any part thereof is situated.
the exercise of his right of expropriation and to
the defendant just compensation for the property If a mortgage contract covers several distinct parcels
so taken. [Rule 67, Sec. 8] of land situated in different provinces, the action may
be brought in the RTC of any of the provinces and
RIGHTS OF PLAINTIFF UPON JUDGMENT AND PAYMENT the judgment will be enforceable against any of the
(a) Right to enter upon the property expropriated parcels of land involved.
and appropriate it for the public use or purpose
as stated. Upon payment by the plaintiff to the JUDGMENT ON FORECLOSURE FOR PAYMENT OR SALE
defendant of the compensation fixed by the
judgment, with legal interest thereon from the Judgment
taking of the possession of the property, or after Payment
tender to him of the amount so fixed and If upon the trial, the court shall find the facts set
payment of the costs, the plaintiff shall have the forth in the complaint to be true, it shall ascertain
right to enter upon the property expropriated and the amount due to the plaintiff upon the mortgage
to appropriate it for the public use or purpose debt or obligation, including interest and other
defined in the judgment, or to retain it should he charges as approved by the court, and costs, and
have taken immediate possession thereof under shall render judgment for the sum so found due and
Sec. 2. [Rule 67, Sec. 10] order that the same be paid to the court or to the
(b) Right to enter upon the property even pending judgment obligee within a period of not less than 90
appeal. The right of the plaintiff to enter upon the days nor more than 120 days from the entry of
property of the defendant and appropriate the judgment (“equity of redemption”).
same for public use or purpose shall not be
delayed by an appeal from the judgment. Sale
In default of such payment the property shall be sold
The judgment entered in expropriation proceedings at public auction to satisfy the judgment. [Rule 68,
shall state definitely, by an adequate description, the Sec. 2]
particular property or interest therein expropriated,
and the nature of the public use or purpose for which SALE OF MORTGAGED PROPERTY; EFFECT
it is expropriated. [Rule 67, Sec. 13] (a) When the defendant fails to pay the amount of
the judgment within the period specified therein,
EFFECT OF RECORDING OF JUDGMENT
the court, upon motion, shall order the property
When real estate is expropriated, a certified copy of to be sold in the manner and under the provisions
the judgment entered in expropriation proceedings of Rule 39 and other regulations governing sales
shall be recorded in the registry of deeds of the place of real estate under execution.
in which the property is situated, and its effect shall (1) It is the ministerial duty of the court to order
be to vest to plaintiff the title to the real estate so the foreclosure of the property when the debt
described for such public use or purpose. [Rule 67, is not paid within the period specified.
Sec. 13] (2) A motion for such order of sale is non-litigable
and may be made ex parte. [Gov’t of P.I. v De
FORECLOSURE OF REAL ESTATE MORTGAGE las Cajigas (1931)]
(Asked in the 2003 Bar Exam) (b) Such sale shall not affect the rights of persons
holding prior encumbrances upon the property or
The cause of action in a foreclosure suit is generally a part thereof, and
the non-payment of the mortgage loan, but it may (c) When confirmed by an order of the court, also
be on other grounds which under the contract upon motion, it shall operate to divest the rights
warrant the foreclosure, such as the violation of the in the property of all the parties to the action and
other conditions therein. to vest their rights in the purchaser, subject to
such rights of redemption as may be allowed by
Foreclosure may be made: law.
(a) judicially – governed by Rule 68
PAGE 130
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 131
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 132
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
unserviceable for the use for which is it intended They must accept all or none. Parties who had
[Art. 495 Civil Code] or received the property assigned to them are
(e) When the condition imposed upon voluntary heirs precluded from subsequently attacking its validity of
before they can demand partition has not yet any part of it.
been fulfilled. [Art. 1084 Civil Code]
Partition may be inferred from circumstances
MATTERS TO ALLEGE IN THE COMPLAINT FOR PARTITION sufficiently strong to support the presumption. Thus,
Contents of complaint for partition after a long possession in severalty, a deed of
(a) Nature and extent of the complainant’s title partition may be presumed.
(b) Adequate description of the real estate of which
the partition is demanded Recitals in deeds, possession and occupation of land,
(c) All other persons interested in the property must improvements made thereon for a long series of
be impleaded. [Rule 69, Sec. 1] years, and acquiescence for 60 years, furnish
sufficient evidence that there was an actual partition
TWO (2) STAGES IN EVERY ACTION FOR PARTITION of land either by deed or by proceedings in the
Determination of the propriety of partition probate court, which had been lost and were not
This involves a determination of whether the subject recorded.
property is owned in common and whether all the
co-owners are made parties in the case. Where a tract of land held in common has been
The order may also require an accounting of rents subdivided into lots, and one of the lots has long
and profits recovered by the defendant. This order of been known and called by the name of one of the
partition is appealable. [Miranda v. Court of Appeals tenants in common, and there is no evidence of any
(1976)] subsequent claim of a tenancy in common, it may
fairly be inferred that there has been a partition and
If not appealed, then the parties may partition the that such lot was set off to him whose name it bears.
common property in the way they want. If they
cannot agree, then the case goes into the second Venue
stage. However, the order of accounting may in the Actions for partition should be filed in the RTC of the
meantime be executed. [De Mesa v. CA (1994)] province where the property or part thereof is
situated.
The actual partitioning of the subject property
This is also a complete proceeding and the order or If several distinct parcels of land are situated in
decision is appealable. different provinces, venue may be laid in the RTC of
any of said provinces. [Pancho v. Villanueva,(1956)]
When there was a prior partition, the fact that the
share of each co-heir has not been technically ORDER OF PARTITION AND PARTITION BY AGREEMENT
described and the title over the whole lot remains Order of partition
uncancelled does not negate such partition. After trial, if the court finds that the plaintiff has the
right to the property subject of partition, it shall issue
There can be no partition again because there is no an order demanding the partition of the real estate
st
more common property. [Noceda v. CA (1999)] among all the parties in interest. [Sec. 2] (Refers to 1
stage of partition)
Crucillo v. IAC, 1999: Oral partition of land when the
same is fully consummated is valid and binding upon Partition by Agreement
the parties thereto. After the issuance of the order of partition, the
parties will then be asked if they agree to make
Maglucot-aw et al. v. Maglucot et al. (2000): Parties to partition of the property among themselves
a partition proceeding, who elected to take under
partition, and who took possession of the portion
allotted to them, are estopped to question title to
portion allotted to another party. A person cannot
claim both under and against the same instrument. If they agree, proper instruments of conveyance
In other words, they accepted the lands awarded will be executed to effect the partition.
them by its provisions, and they cannot accept the
decree in part, and repudiate it in part.
PAGE 133
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 134
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 135
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
(c) Must be brought at any time within 1 year after (e) in the proper MTC or MeTC
the unlawful withholding of possession in the
proper Municipal Trial Court against the person Nature:
unlawfully withholding possession or persons (a) special civil action involving realty;
claiming under them. (b) subject to the Rules on Summary Procedure;
(d) Action must be for the restitution of possession of [Rule 70, Sec. 3]
property together with damages and costs. [Rule (c) under the original exclusive jurisdiction of first
70.1] level courts;
(d) nature of the action is determined by the
Forcible Entry Unlawful Detainer allegation of the complaint and the character of
Possession becomes Possession was lawful at the relief sought; [Abrin v. Campos (1991)]
unlawful right from the first but later becomes (e) one co-owner may institute the action.
very start (i.e. from the illegal, as when the lease
time of entry) as he contract has expired and Accion Publiciana
acquires possession by the lessee refuses to A plenary action for recovery of the right to possess
FISTS. vacate the premises and which should be brought in the proper regional
despite demand. trial court when the dispossession has lasted for
The deprivation of The unlawful withholding more than one year.
physical possession of of possession is made
land and building is after the expiration or Accion Reivindicatoria
effected through force, termination of the right to Also called accion de reivindicacion, it seeks the
intimidation, strategy, hold possession under recovery of ownership and includes the jus utendi
threat or stealth any contract, express or and the jus fruendi, which must be brought in the
(FISTS). implied. proper regional trial court.
The issue centers on The issue centers on
who was in prior whether the defendant’s It is thus an action whereby plaintiff alleges
possession de facto. right to possess has ownership over a parcel of land and seeks recovery of
expired or not. its full possession. [Javier v. Veridiano (1994)]
Previous demand upon Previous demand to
defendant to vacate not vacate required HOW TO DETERMINE JURISDICTION IN ACCION PUBLICIANA
required. (jurisdictional). AND ACCION REINVINDICATORIA
The plaintiff must allege The plaintiff need not be A/P and A/R are actions involving title to or
and prove that he was in in prior physical possession of real property or an interest therein
prior physical possession. (a) RTC has jurisdiction where the assessed value of
possession of the the property exceeds P20K or, in MM, P50k
premises until deprived (b) MTC has jurisdiction if the assessed value does
thereof. not exceed said amounts
1-year period counted 1-year period counted
from date of actual from date of last demand WHO MAY INSTITUTE THE ACTION AND WHEN; AGAINST
entry on the land. or last letter of demand. WHOM THE ACTION MAY BE MAINTAINED
DISTINGUISHED FROM ACCION PUBLICIANA AND ACCION Who may File, When, Against Whom
REINVINDICATORIA Who
A person deprived of the possession of any land or
Accion Interdictal building by force, intimidation, threat, strategy, or
(a) the summary action for forcible entry stealth, or a lessor, vendor, vendee, or other person
(detentacion) against whom the possession of any land or building
(b) where the defendant’s possession of property is is unlawfully withheld after the expiration or
illegal ab initio, or termination of the right to hold possession, by virtue
(c) the summary action for unlawful detainer of any contract, express or implied, or the legal
(desahucio) where the defendant’s possession representatives or assigns of any such lessor, vendor,
was originally lawful but ceased to be so by the vendee, or other person
expiration of his right to possess,
(d) both of which must be brought within one year When
from the date of actual entry to the land, in case At any time within 1 year after such unlawful
of forcible entry, and from the date of last deprivation or withholding of possession in the
demand, in case of unlawful detainer, proper MTC
PAGE 136
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 137
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
After the court has examined the allegations in Not later than 30 days after the last answer is
the complaint and supporting evidence attached filed, a PRELIMINARY CONFERENCE shall be
to the same, the court may: held.
(a) DISMISS the case outright based on the
grounds for dismissal for ordinary civil actions Rule 18 applicable. Effects of failure to appear:
apparent in the complaint, or (a) When the plaintiff does not appear
(b) ISSUE SUMMONS, if no ground for dismissal (1) It shall be a cause for dismissal of his
is found. [Rule 70, Sec. 5] complaint
(2) All cross-claims shall be dismissed
Cases requiring referral to conciliation, where (3) The defendant who appears in the
there is no showing of compliance with such absence of the plaintiff shall be entitled
requirement, shall be dismissed without prejudice, to the judgment on his counterclaim
and may be revived only after that requirement (b) When the defendant does not appear
have been complied with. [Rule 70, Sec. 12] The plaintiff shall be entitled to judgment
(This is true when there is only one
defendant or when all of the defendants did
not appear)
Affirmative and negative defenses and cross- The court shall issue an ORDER stating matters
claims and compulsory counterclaims not taken up during the preliminary conference
pleaded in the answer are deemed waived. within 5 days after the termination of the same.
PAGE 138
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
Affidavits required to be submitted shall state Exception: Should the court find it necessary
only facts of direct personal knowledge of the to clarify certain material facts, it may during
affiants which are admissible in evidence, and the 30-day period issue an ORDER specifying
shall show their competence to testify to the the matters to be clarified and require the
matters stated therein. parties to submit affidavits or other evidence
on the said matters within 10 days from
Violation of this requirement may subject the receipt of said order. Judgment shall be
party or the counsel who submits the same to rendered within 15 days after receipt of the
disciplinary action and shall be cause to expunge last affidavit or the expiration of the period for
the inadmissible affidavit or portion thereof from filing the same. [Ibid.]
the records. [Rule 70, Sec. 14]
The court shall not resort to the foregoing
procedure just to gain time for the rendition of
the judgment. [Id.]
Execution of judgment
General Rule: If judgment is rendered against a
defendant, execution shall issue immediately. [Rule
70, Secs. 19 and 21]
PAGE 139
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
PAGE 140
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
BUT upon motion of the plaintiff within 10 days from According to Nature
the perfection of the appeal to the RTC, the court (a) Civil
may still issue a preliminary mandatory injunction to (b) Criminal
restore the plaintiff in possession if the court is
satisfied that the defendant’s appeal is frivolous or PURPOSE AND NATURE OF EACH
dilatory, or that the appeal of the plaintiff is prima Direct Contempt (Contempt In Facie Curiae)
facie meritorious. [Rule 70, Sec. 20] A misbehavior committed in the presence of or so
near a court or judge so as to obstruct or interrupt
SUMMARY PROCEDURE, PROHIBITED PLEADINGS the proceedings before the same, including:
Prohibited pleadings and motions [Rule 70, Sec. 13]: (a) disrespect toward the court
(a) Motion to dismiss (b) offensive personalities toward others
Exceptions: (c) refusal to be sworn or to answer as a witness or to
(1) Motion to dismiss based on lack of jurisdiction subscribe an affidavit/deposition when lawfully
over the subject matter required to do so.
(2) Motion to dismiss for failure to comply with
section 12 (referral to Lupon for conciliation) It can be punished summarily without hearing. It is
(b) Motion for a Bill of Particulars conduct directed against or assailing the authority
(c) Motion for New Trial and dignity of the court or a judge, or in the doing of
(d) Motion for reconsideration of a judgment a forbidden act. [Encinas v. National Bookstore
(e) Motion for reopening of trial (2005); Rule 71, Sec. 1]
(f) Petition for relief from judgment
(g) Motion for extension of time to file pleadings, Indirect Contempt (Constructive Contempt)
affidavits or other papers A misbehavior perpetrated outside of the sitting of
(h) Memoranda the court. [Patricio v. Suplico (1991)]
(i) Petition for Certiorari, Mandamus or Prohibition
against any interlocutory order issued by the Acts of indirect contempt:
court (a) Misbehavior of an officer of the court in the
(j) Motion to declare defendant in default performance of his official duties or in his official
(k) Dilatory motions for postponement transactions;
(l) Reply (b) Disobedience of or resistance to a lawful writ,
(m) Third-party complaints process, order, or judgment of a court, including
(n) Interventions the act of a person who, after being dispossessed
or ejected from any real property by the judgment
CONTEMPT or process of any court of competent jurisdiction,
enters or attempts to or induces another to enter
Definition into or upon such real property, for the purpose of
Contempt of court executing acts of ownership or possession, or in
Is a defiance of the authority, justice or dignity of the any manner disturbs the possession given to the
court, such conduct as tends to bring the authority person adjudged to be entitled thereto;
and administration of the law into disrespect of, to (c) Any abuse of or any unlawful interference with
interfere with, or prejudice parties litigant or their the processes or proceedings of a court not
witnesses during litigation. constituting direct contempt;
It is defined as a disobedience to the court by setting (d) Any improper conduct tending, directly or
up an opposition to its authority, justice and dignity. indirectly, to impede, obstruct or degrade the
administration of justice;
It signifies not only a willful disregard or (e) Assuming to be an attorney or an officer of the
disobedience to the court’s order but such conduct court, and acting as such without authority;
as tends to bring the authority of the court and the (f) Failure to obey a subpoena duly served;
administration of law into disrepute or in some (g) The rescue or attempted rescue, of a person or
manner to impede the due administration of justice. property in the custody of an officer by virtue of
[Heirs of Trinidad de Leon Vda. de Ramos v. Court of an order or process of a court held by him. [Rule
Appeals (2004)] 71, Sec. 3]
PAGE 141
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
remedial or compensatory in nature; instituted for Radio Phils Network v. Yap (2012):_To be considered
the benefit of private party. contemptuous, an act must be clearly contrary to or
prohibited by the order of the court or tribunal. A
Criminal Contempt is conduct directed against the person cannot, for disobedience, be punished for
authority and dignity of a court or of a judge, as in contempt unless the act which is forbidden or
unlawfully assailing or discrediting the authority and required to be done is clearly and exactly defined, so
dignity of a court or a judge or in doing a forbidden that there can be no reasonable doubt or uncertainty
act [People v. Godoy, 1995]; punitive in nature, thus, as to what specific act or thing is forbidden or
the proceedings are to be conducted in accordance required.
with the principles and rules applicable to criminal
cases [SEC v. Recto, 1999]. REMEDY AGAINST DIRECT CONTEMPT; PENALTY
SEC v. Recto (1999): The violation of a TRO issued by REMEDY AGAINST INDIRECT CONTEMPT; PENALTY
the SEC or any quasi-judicial tribunal is criminal
contempt so that acquittal of the respondents is HOW CONTEMPT PROCEEDINGS ARE COMMENCED
unappealable. See Annex G.
Crucillo v. IAC (1999): A writ of execution issued by a Procedure for Indirect Contempt
court after 5 years from entry of final judgment is [Secs. 4-6]
void, and disobedience thereto does not constitute Who Court Motu Propio Party
indirect contempt. Initiates
How it is By ORDER or any By a VERIFIED
Panado v. CA (1998): The power to declare a person initiated WRITTEN CHARGE PETITION with
in contempt of court serves to protect and preserve requiring supporting
the dignity of the court, the solemnity of the respondent to show particulars and
proceedings therein and the administration of cause why he certified true
justice. should not be held copy of
in contempt. documents or
But this must be wielded sparingly. For this power papers involved
should be exercised on the preservative and not on and full
Where it is When the contempt iscompliance
directed against
with
the vindictive principle.
initiated an RTC or equivalentthe or requirements
higher rank:
Same court for filing
Only occasionally should the court invoke its inherent
power in order to retain that respect without which When the contempt isinitiatory
directed against
the administration of justice must falter or fail. a lower court: pleadings in
(a) RTC of the place ordinary
where the lowercivil
LandBank v. Listana (2003): Only the court which court is sitting; or actions.
rendered the order commanding the doing of a (b) in same lower court subject to
certain act is vested with the right to determine appeal to higher court
whether or not the order has been complied with, or Hearing If hearing is not immediately conducted,
whether a sufficient reason has been given for non- and Bail respondent may be released upon filing
compliance, and, therefore, whether a contempt has of BOND in the amount fixed by the
been committed. court.
Appeal Appeal may be taken in proper courts
The power to determine the existence of contempt of as in criminal cases.
court rests exclusively with the court contemned. No Execution Execution of judgment shall not be
court is authorized to punish a contempt against of suspended even by appeal UNLESS
another. Judgment bond is filed conditioned upon the
performance by the respondent of that
Quasi-judicial agencies that have the power to cite judgment should it be decided against
persons for indirect contempt pursuant to Rule 71 him on appeal.
can only do so by initiating them in the proper RTC. It
is not within their jurisdiction and competence to ACTS DEEMED PUNISHABLE AS INDIRECT CONTEMPT
decide the indirect contempt cases. These matters (a) Misbehavior of an officer of the court in the
are still within the province of the RTCs. performance of his official duties or in his official
transactions;
PAGE 142
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
(b) Disobedience of or resistance to a lawful writ, administratrix of the property. The non-payment of
process, order, or judgment of a court, including rentals, which is a civil debt, is covered by the
the act of a person who, after being dispossessed constitutional guarantee against imprisonment.
or ejected from any real property by the judgment [Regalado]
or process of any court of competent jurisdiction,
enters or attempts to or induces another to enter CONTEMPT AGAINST QUASI-JUDICIAL BODIES
into or upon such real property, for the purpose of Rule 71 applies to contempt committed against
executing acts of ownership or possession, or in persons, entities, bodies or agencies exercising
any manner disturbs the possession given to the quasi-judicial functions, or shall have suppletory
person adjudged to be entitled thereto; effect to such rules as they may have adopted
(c) Any abuse of or any unlawful interference with pursuant to authority granted to them by law to
the processes or proceedings of a court not punish for contempt.
constituting direct contempt;
(d) Any improper conduct tending, directly or Where to file: RTC of the place wherein the contempt
indirectly, to impede, obstruct or degrade the has been committed. [Rule 71, Sec. 12]
administration of justice;
(e) Assuming to be an attorney or an officer of the It is not within the jurisdiction and competence of
court, and acting as such without authority; quasi-judicial bodies to decide indirect contempt
(f) Failure to obey a subpoena duly served; cases. The requirement for a verified petition must
(g) The rescue or attempted rescue, of a person or also be complied with (e.g. DARAB has no power to
property in the custody of an officer by virtue of decide the contempt charge filed before it). [Land
an order or process of a court held by him. [Rule Bank v Listana (2003)]
71, Sec. 3]
Rule 71, Sec. 12 confers contempt powers on all
WHEN IMPRISONMENT SHALL BE IMPOSED Quasi-Judicial entities or supplements their rules,
When the contempt consists in the refusal or unless the applicable law provides otherwise.
omission to do an act which is yet in the power of the
respondent to perform, he may be imprisoned by Acts or violations against quasi-judicial bodies
order of the court concerned until he performs it. punishable as contempt: where a person, without
[Rule 71, Sec. 8]. lawful excuse, fails to appear, make oath, give
testimony or produce documents when required to
The respondent “carried the keys to his prison in his do so by the official or body exercising such powers.
own pocket.” [Galvez v. Republic Surety & Insurance Other acts or violations cannot be punished as
Co., Inc. (1959)] contempt unless specifically defined in the governing
law as contempt of court or if it authorizes the quasi-
Only the judge who ordered the confinement of the judicial body to punish for contempt, and providing
person for contempt of court can issue the Order of the corresponding penalty. [People v. Mendoza
Release. [Inoturan v Limsiaco, Jr. (2005)] (1953), §13, Ch. 3, Bk VII, Admin Code of 1987]
PAGE 143
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
ANNEX A
(1) Service on person associated in If sued under the name by which they are commonly known – Serve upon
an entity without juridical either:
personality [Rule 14, Sec. 8] (a) Any/all the defendants;
(b) Person in charge of the office
The service does not bind individually any person whose connection with the
entity was already severed before the service
(2) Service upon minors and Serve upon the minor/incompetent and on his legal guardian.
incompetents [Rule 14, Sec. 10] (a) If there is no guardian, plaintiff may apply for the appointment of a
guardian ad litem.
(b) If minor, may serve on his parents.
(3) Service upon prisoner [Rule 14, Serve upon the officer having management of the jail/prison
Sec. 9]
(4) Service upon domestic private Serve upon either the:
juridical entity [Rule 14, Sec. 11] (1) President
(2) Managing partner
(3) General manager
(4) Corporate secretary
(5) Treasurer
(6) In-house counsel
(5) Service upon foreign private Serve upon the resident agent;
juridical entity [Rule 14, Sec. 12] Otherwise, upon either:
(1) Government official designated by law;
(2) Any officer or agent of the corporation within the Philippines
(6) Service upon public corporations If the defendant is the Republic of the Philippines – Serve upon the OSG
[Rule 14, Sec. 13]
If the defendant is a province/city/municipality or like public corporations –
Serve upon the executive head or other officers as the law/court may direct
(7) Extraterritorial service [Rule 14, Requisites: (Asked in the 1997 and 2008 Bar Exam)
Sec. 15] (1) Defendant does not reside or is not found in the Philippines;
(2) Action either:
(a) Affects the plaintiff’s personal status;
(b) Relates to or the subject matter of which is property within the
Philippines in which defendant has a lien/interest;
(c) Demands a relief which consists wholly/partially in excluding the
defendant from any interest in any property within the Philippines;
(d) Has defendant’s property in the Philippines, attached.
Modes of service:
(1) With leave of court, serve outside the Philippines by personal service; or
(2) With leave of court, serve by publication in a newspaper of general
circulation, in which case copy of the summons and order of the court
must also be sent by registered mail to the defendant’s last known
address;
(3) Any other manner the court deems sufficient
The court order granting extraterritorial service shall specify a period of at
least 60 days within which the defendant must answer.
(8) Service upon a resident With leave of court, may serve extraterritorially
temporarily out of the
Philippines [Rule 14, Sec. 16]
(9) Service upon a defendant whose With leave of court, by publication in a newspaper of general circulation
identity or whereabouts are
unknown [Rule 14, Sec. 14]
PAGE 144
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
ANNEX B
Nature
Process requiring a person to bring with him any Order any party to produce and permit the inspection
books, documents, documents, or other things under and copying or photographing, by or on behalf of the
his control or possession. moving party,
(a) of any designated documents, papers, books,
accounts, letters, photographs, objects or tangible
things, not privileged,
(b) which constitute or contain evidence material to any
matter involved in the action and which are in his
possession, custody or control, or
PAGE 145
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
ANNEX C
Section 1. REFUSAL TO ANSWER. If a party or other deponent refuses to PARTY OR DEPONENT /WITNESS IN
answer any question upon oral examination (a) RULE 23 (depositions de bene
(a) the examination may be completed on other matters or esse),
(b) adjourned as the proponent of the question may prefer. (b) RULE 24 (depositions in perpetua
The proponent may thereafter apply (i.e., by MOTION FOR THE rei memoriam)
ISSUANCE OF AN ORDER TO COMPEL AN ANSWER) to the proper court (c) RULE 25. INTERROGATORIES TO
of the place where the deposition is being taken, for an order to compel PARTIES
an answer.
IF THE APPLICATION IS DENIED and the court finds that it was filed
without substantial justification, the court may require the proponent or
the counsel advising the filing of the application, or both of them, to pay
to the refusing party or deponent the amount of the reasonable expenses
incurred in opposing the application, including attorney's fees.
Section 2. Contempt of court. If a party or other witness PARTY OR WITNESS IN
(a) refuses to BE SWORN OR (a) RULE 23 (depositions de bene
(b) refuses to answer any question esse),
(b) RULE 24 (depositions in perpetuam
after being directed to do so by the court of the place in which the rei memoriam)
deposition is being taken, the refusal may be considered a contempt of
that court.
Section 3. Other consequences. THE AGGRIEVED PARTY MAY APPLY PARTY or an OFFICER OR MANAGING
FOR: AGENT OF A PARTY in RULE 23, 24,
25 who refuses to obey an order made
An order under RULE 29 Section 1
(a) that the matters regarding which the questions were asked, or the
character or description of the thing or land, or the contents of the PARTY who refuses to obey an order
paper, or the physical or mental condition of the party, under RULE 27 to produce any
(b) or any other designated facts shall be taken to be established for the document or other thing for inspection,
purposes of the action in accordance with the claim of the party or to permit entry upon land
obtaining the order;
PARTY who refuses to obey an order
An order made under RULE 28 requiring him to
(a) refusing to allow the disobedient party to support or oppose take a physical examination
designated claims or defenses or
(b) prohibiting him from introducing in evidence designated documents (APPLIES TO all modes of discovery
or things or items of testimony, or except RULE 26 ON REQUEST FOR
(c) from introducing evidence of physical or mental condition; ADMISSION BY AN ADVERSE PARTY)
An order
(a) striking out pleadings or parts thereof, or
(b) staying further proceedings until the order is obeyed, or
(c) dismissing the action or proceeding or any part thereof, or
(d) rendering a judgment by default against the disobedient party; and
Unless the court finds THAT THERE WERE GOOD REASONS FOR THE
DENIAL OR THAT ADMISSIONS SOUGHT WERE OF NO SUBSTANTIAL
IMPORTANCE, SUCH ORDER SHALL BE ISSUED.
SECTION 5. FAILURE OF PARTY TO ATTEND OR SERVE ANSWERS. PARTY OR AN OFFICER OR
MANAGING AGENT OF A PARTY
If a party or an officer or managing agent of a party RULE 23 (depositions de bene esse),
wilfully fails to appear before the officer who is to take his deposition, RULE 24 (depositions in perpetuam rei
after being served with a proper notice, or memoriam)
fails to serve answers to interrogatories submitted under Rule 25 after RULE 25 INTERROGATORIES TO
proper service of such interrogatories, PARTIES
PAGE 147
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
ANNEX D
JUDGMENT OR FINAL ORDER (order
that disposes of the action or proceeding)
If no appeal has been perfected, or the If an appeal has been perfected and duly
period of appeal has expired resolv ed, there are two ways by whic h
execution can be carried out
PAGE 148
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
ANNEX E
Situation 1: Trial Court still has Situation 2: Trial court has lost
jurisdiction over the case and is in jurisdiction
possession of either the original record
or the record on appeal, as the case
may be.
NOTE HOWEVER that Discretionary execution may be stayed upon approval by the proper
court of a SUFFICIENT SUPERSEDEAS BOND FILED by the party against whom it is
directed, conditioned upon the performance of the judgment or order allowed to be executed
in case it shall be finally sustained in whole or in part. The bond thus given m ay be
proceeded against on motion with notice to the surety
PAGE 149
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
ANNEX F
Certiorari Prohibition Mandamus
(Asked In 2000 And 2006 Bar (Asked In The 2006 Bar Exam)
Exams)
Grounds
(a) When any tribunal, board or (a) When the proceedings of any (a) When any tribunal, corporation,
officer exercising judicial or tribunal, corporation, board, board, officer or person
quasi-judicial functions has officer or person, whether (1) unlawfully neglects the
acted: exercising judicial, quasi- performance of an act which
(1) without or in excess of its judicial, or ministerial functions, the law specifically enjoins as
jurisdiction; or are a duty resulting from an
(2) with grave abuse of discretion (1) without or in excess of its or office, trust or station; or
amounting to lack or excess his jurisdiction; or (2) unlawfully excludes another
1
of its or his jurisdiction (2) with grave abuse of discretion from the use and enjoyment
(b) AND there is no appeal, or any amounting to lack or excess of a right or office to which
plain, speedy, and adequate of its or his jurisdiction such other is entitled
2
remedy in the ordinary course of (b) AND there is no appeal or any (b) AND there is no other plain,
law. (Rule 65, Sec. 1) other plain, speedy, and speedy and adequate remedy in
adequate remedy in the ordinary the ordinary course of law. (Rule
course of law. (Rule 65, Sec. 2) 65, Sec. 3)
Purpose
To correct an act performed by the To prevent the commission or To compel the performance of the
respondent carrying out of an act act desired
Act sought to be controlled
Discretionary acts Discretionary and ministerial acts Ministerial acts
Petitioner
Aggrieved person Aggrieved person Aggrieved person
3
Respondent
Those exercising judicial or quasi- Those exercising judicial and/or Those exercising judicial and/or
judicial functions non-judicial functions non-judicial functions
Form of petition
(a) Verified (a) verified (a) verified
(b) alleging the facts with certainty (b) alleging the facts with certainty (b) alleging the facts with certainty
(c) PRAYER: that judgment be (c) PRAYER: that judgment be (c) PRAYER: that judgment be
rendered annulling or modifying rendered commanding the rendered commanding the
the proceedings of such tribunal, respondent to desist from respondent, immediately or
etc., and granting such incidental further proceedings in the action some other time to be specified
reliefs as law and justice may or matter specified therein, or by the court, to do the act
require. otherwise granting such required to be done to protect
(d) accompanied by a certified true incidental reliefs as law and the rights of the petitioner, and
copy of the subject judgment, justice may require. to pay the damages sustained by
etc., copies of all relevant (d) accompanied by a certified true the petitioner by reason of the
pleadings and documents, and a copy of the subject judgment, wrongful acts of the respondent.
certification of non-forum etc., copies of all relevant (d) contains a certificate of non-
shopping. pleadings and documents, and a forum shopping.
certification of non-forum
shopping.
Without jurisdiction If respondent does not have the legal power to determine the case
Excess of jurisdiction If respondent has the legal power to determine the case but oversteps such power
Grave abuse of discretion If respondent has the legal power to determine the case but acts in a capricious, whimsical, arbitrary or
despotic manner in the exercise of his judgment
2
A remedy is plain, speedy and adequate if it will promptly relieve the petitioner from the injurious effects of the judgment and the acts of the
lower court or agency. [Silvestre v. Torres (1946)]
3
When the petition filed relates to the acts or omissions of a judge, court, quasi-judicial agency, tribunal, corporation, board, officer or person,
the petitioner shall join, as private respondent or respondents with such public respondent or respondents, the person or persons interested in
sustaining the proceedings in the court; and it shall be the duty of such private respondents to appear and defend, both in his or their own
behalf and in behalf of the public respondent or respondents affected by the proceedings. xxx
If the case is elevated to a higher court by either party, the public respondents shall be included therein as nominal parties. However, unless
otherwise specifically directed by the court, they shall not appear or participate in the proceedings therein. [Rule 65, Sec. 5]
PAGE 150
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
ANNEX G
How Committed
Can be committed only in the presence of or so near a Can be committed anywhere as long as the acts
court or judge. mentioned in Sec. 3 are done.
Nature of Proceedings
The person guilty of misbehavior is summarily adjudged The person guilty of misbehavior may be punished
by the court against which the contempt was only after charge in writing has been filed, and an
committed at the very moment of the perpetration. opportunity given to the accused to be heard by himself
[Rule 71, Sec. 1] or counsel [Rule 71, Sec. 3]
Punishment
If the contempt is directed against an RTC, a court of equivalent or higher rank:
FINE = not exceeding P2,000; or FINE = not exceeding P30,000; or
IMPRISONMENT = not exceeding 10 days; or both IMPRISONMENT = not exceeding 6 months; or both
If the contempt is directed against a lower court:
FINE = not exceeding P200; or FINE = not exceeding P5,000; or
IMPRISONMENT = not exceeding 1 day; or both IMPRISONMENT = not exceeding 1 month; or both
[Rule 71, Sec. 1] [Rule 71, Sec. 7]
How proceedings commenced
Summarily adjudged by the court against which the (a) By the court motu propio thru an ORDER or any
contempt is directed and punished there and then. formal charge
[Rule 71, Sec. 1] (b) In all other cases, by a VERIFIED PETITION.
(If the contempt charges arose out of or are related to
a principal action pending in the court, the petition for
contempt shall allege that fact, but said petition shall
be docketed, heard and decided separately, unless the
court in its discretion orders the consolidation of the
contempt charge and the principal action for joint
hearing and decision.)
[Rule 71, Sec. 4]
Remedy
No appeal, but subject to certiorari or prohibition. May be appealed to the proper court as in criminal
[Rule 71, Sec. 2] cases, but execution shall not be suspended until
BOND is filed. [Rule 71, Sec. 11]
PAGE 151