Civil Procedure
Civil Procedure
Facts: This was a case for the MANCHESTER: if award to judgment creditor
recovery of a sum of money plus is greater than the amount prayed form,
damages = P49,400.00. AA MTD was difference in docket fees constitutes first lien.
filed bec. of failure to undergo NOTE: but no payback of excess fees even if
conciliation proceeding in the brgy. awarded less
Failure to undergo condition precedent
L: Remember to bill your client for "incidental" can only be raised in a MTD or as an affirmative
or "out of pocket" costs for sheriff's defense
transportation, food and vitamins
Summary Procedure
JURISDICTION (power to hear, try and Rules on Summary Procedure (Oct. '91)
decide cases)
Conferred by law. Law can only be changed by Del Rosario v. CA, 241 SCRA 519 ('95)
passing through Congress. Party can't amend
rules on jurisdiction by agreement or voluntary Held: The presence of an action for
act Jurisdiction can be raised at any time even quieting of title does not divest the
on appeal, after termination of case of decision MeTC of original jurisdiction over the
becomes final and executory, subject to rules on ejectment case. An ejectment case
prescription. Raise issues of jurisdiction via a (possession de facto) is independent
MTD (Rule 16) but court can act motu proprio. of any claim of ownership (possession
Rule on place not necessarily a rule on venue. de jure). Under the revised Summary
Procedure (Nov. 15, 1991) all types of
TIJAM. Bar problem. Qualifies who can raise ejectment cases are now covered by it
matters of jurisdiction. If estopped by laches, regardless of whether or not the issue
can't file MTD in equity of ownership of subject property is
pleaded by a party. No hearings are
JURISDICTION. May be subject to nature of required in this procedure. The
1. Cause of action - eg. Admiralty cases, adjudication of cases here are done on
domestic violence the basis of affidavits & position
1. Relief papers.
1. Subject matter (thing over which the rights
and duties occur - eg. rights or title to real SUMMARY PROCEDURE
property > P50 T; claims incapable of pecuniary Remedy for forcible entry, unlawful detainer, <
estimation P10,000
1. Remedy - eg. forcible entry and unlawful Katarunggang Pambaranggay condition
detainer, review by certiorari; BULAO v CA precedent before parties can obtain judicial relief
Not apply to ordinary civil actions in RTC
Jurisdiction, once acquired, is never lost.
Exception: DY V CA. Court violates Summary Procedure
constitution; ousted from jurisdiction. Ordinary Civil Action
NOTE: judgment still valid, no jurisdiction only Pleadings Allowed
for purposes of issuing writ of execution due to Verified complaint
lack of notice to party Compulsory counterclaim
Answer to complaint
WORD GAME: Crossclaim v existing defendant
Conferment of Jurisdiction: law prescribes Complaint
jurisdiction Counterclaim
Acquisition of Jurisdiction: Rule 1 Section 5: a. Compulsory(relates to transaction)
Filing of complaint vests court with jurisdiction a. Permissive (not related)
over res. Summons vests court with jurisdiction Crossclaim
over the corpus. Third party claim
NOTE: filing of complaint happens upon full Intervention
payment of docket fees Answer
Reply
CONDITIONS PRECEDENT Answer
NOTE: Failure to undergo Katarunggang File answer w/in 10 days of service of summons
Pambarangay not issue of jurisdiction Sec. 412 File answer w/in 15 days of service of summons
Loc. Government Code; neither a defect in Can court act motu proprio in dismissing the
jurisdiction but vulnerable to a MTD (Rule 16 case?
sec. J) for failure to undergo condition YES. Court can act motu proprio and dismiss
precedent.
NO. Court cannot dismiss action motu proprio Section 3. One suit for a single cause of action.
but must wait for MTD - A party may not institute more than one suit for
Effect of other party's failure to file an answer a single cause of action.
Get judgment. No need for motion for default or
order for default Section 4. Splitting a single cause of action;
File a motion to declare the other party in effect of. - If two or more suits are instituted on
default the basis of the same cause of action, the filing
of one or a judgment upon the merits in any one
Preliminary Conference not later than 30 days is available as a ground for the dismissal of the
others.
Effect of P's failure to appear
Cause for dismissal Section 5. Joinder of causes of action. - A party
Counterclaim barred may in one pleading assert, in the alternative or
otherwise, as many causes of action as he may
Main Action dismissed but Compulsory have against an opposing party, subject to the
Counterclaim not dismissed. D gets judgment following conditions:
Cause for dismissal with prejudice (a) The party joining the causes of
action shall comply with the rules on joinder of
Main action dismissed and Compulsory parties;
counterclaim also dismissed (b) The joinder shall not include special
Process civil actions or actions governed by special
Submit position papers and affidavits 10 days rules;
from receipt of pre-trail order (c) Where the causes of action are
L: on those affidavits hinge your entire case so between the same parties but pertain to different
pray (Angel of God, hindi motion) that the court venues or jurisdictions, the joinder may be
ask for clarificatory affidavits (motu proprio) allowed in the Regional Trial Court provided
Extension of time not allowed one of the causes of action falls within the
You figure it out. jurisdiction of said court and the venue lies
Contents of Affidavits therein; and
State facts (d) Where the claims in all the causes
Show competence to testify of action are principally for recovery of money,
Show admissibility of witness the aggregate amount claimed shall be the test of
jurisdiction.
Absent these: affidavits excluded and lawyer
may be subject to disciplinary action Section 6. Misjoinder of causes of action. -
Misjoinder of causes of action is not a ground
Prohibited Motions for dismissal of an action. A misjoined cause of
MTD on sec. 16 except lack of jurisdiction action may, on motion of a party or on the
Bill of particulars initiative of the court, be severed and proceeded
New judgment with separately.
Periods
No time period from beginning to end but Joseph v. Bautista, 170 SCRA 540 ('89)
mandatory periods in between
FACTS: Joseph was a paying
passenger in a cargo truck. The cargo
Rule 2 truck tried to overtake a tricycle
proceeding in the same direction. At
Actions in General the same time, a pick-up truck tried to
overtake the cargo truck, thus the
Section 1. Ordinary civil actions, basis of. - cargo truck was forced to veer towards
Every ordinary civil action must be based on a the shoulder of the road & rammed a
cause of action. mango tree in the process. Joseph
sustained a bone fracture in one of his
Section 2. Cause of action, defined. - A cause of legs. Joseph sued the owner of the
action is the act or omission by which a party cargo truck for breach of the contract
violates a right of another. of carriage & the owner of the pick-up
for quasi-delict for injuries he
sustained. The owner of the pick-up
paid Joseph the amount he was surcharges. The act of the City of filing
claiming thru a settlement agreement. separate complaints for each of the two reliefs
Joseph still wants to maintain the related to the same single cause of action
action vs. the truck owner claiming resulted in the splitting of the cause of action.
that he still has another cause of Under the rule that a party may not institute
action vs. the latter, for breach of more than 1 suit for a single cause of action, the
contract of carriage. City’s 2nd complaint is barred by res judicata.
HELD: When there is only one delict Bayang v. CA, 148 SCRA 91 ('87)
or wrong (i.e. one injury), there is only
one cause of action regardless of the FACTS: Bayang sued Biong for
number of rights that may have been Quieting of Title w/ damages in 1969,
violated belonging to one person w/c resulted in a ruling in his favor in
(violation of contract of carriage & 1978. In 1978, Bayang sued Biong
quasi-delict). again but this time for the income
The singleness of a cause of earned fr. the land while it was still in
action lies in the singleness of the the latter’s possession fr. 1970 to
delict or wrong violating the rights of 1978.
one person. Nevertheless, if only one
injury resulted fr. several acts, only 1 HELD: The subject matter in the 2
cause of action arises. In this case, cases are essentially the same as the
the petitioner sustained a single injury income is only a consequence or
on his person. That vested in him a accessory of the disputed property.
single cause of action, albeit w/ the The claim for income fr. the land is
correlative rights of action vs. the incidental to, & should have been
different respondents thru appropriate raised by Bayang in his earlier claim
remedies allowed by law. for ownership of the land. As the filing
The resps. having been of the 2 cases constitute splitting of
found to be solidarily liable to the pet., the cause of action, the 2 nd case is
the full payment made by some of the barred by the 1st. Also, for about 7
solidary debtors & their subsequent years, the petitioner made no move
release fr. any & all liability to pet. at all to amend his complaint to
inevitably resulted in the include a claim for the income
extinguishment & release fr. liability of supposedly received by private resp.
other solidary debtors. during that period. He did not make
the proper claim at the proper time &
JOSEPH V BAUTISTA: NCC 2177: Bar v in the proper proceeding. Whatever
double recovery right he might have had is now
deemed waived bec. of his negligence.
City of Bacolod v. SM Brewery 29 SCRA
Enriquez v. Ramos, 7 SCRA 265 ('63)
FACTS: The City of BCD passed an
ordinance imposing a bottling tax for FACTS: Enriquez sold to Ramos 11
every case of soft drinks sold. For parcels of land for P101,000. Ramos
delinquency in paying said tax, a paid 5,000 as down payment.( 2,500-
surcharge was to be imposed. For cash, 2,500-check). To secure the
failure to pay said taxes on time, City 96,000 balance, Ramos mortgaged the
of BCD sued SMB. The SC ruled in land to the vendors. Enriquez filed a
favor of the City & ordered SMB to pay complaint vs. Ramos for stopping
taxes. Later, the City of BCD filed a the ;payment of the check. Enriquez
second complaint vs. SMB to recover filed another case for foreclosure of
the surcharges it forgot to claim in the the mortgage due to Ramos’ failure to
first case. comply w/ it’s conditions. Ramos now
moves to dismiss the 2nd case on
HELD: SMB’s failure to pay the taxes violated grounds that Enriquez split the cause
the City’s right to be paid. Thus, there was a of action.
single cause of action. However, under the
ordinance, the City became entitled to 2 reliefs: HELD: An examination of the 1 st
payment of taxes & the corresponding complaint shows it was based on
appellant’s having unlawfully stopped
payment of the check for P2,500 she CUEVAS V PINEDA: Petition for Certiorari
had issued in favor of appellees; while was dismissed on the ground of non-exhaustion
the complaint in the first action is for of administrative remedies, not for lack of cause
the non-payment of the balance of of action: was dismissed due to primary
96,000 guaranteed by the mortgage. administrative jurisdiction = failure to undergo
The claim for 2,500 was therefore a condition precedent
distinct debt not covered by security;
the security was for the balance of the L: We are concerned with law, not with justice,
purchase price amounting to 96,000.
which is why we're not called the College of
Therefore, there is no splitting of C of
A in this case. Justice but the College of Law. Technique lang
lahat iyan.
Cuevas v. Pineda, 143 SCRA 674 ('86) LECTURE ON ACTIONS
FACTS. Priv. Resps. filed a complaint Action : Remedy /
in the CFI for quieting of title alleging
Process
that they are the heirs of Igaya &, as
such, are the rightful owners of the Cause of Action : Basis to file
parcels of land. They came to know an action Rule 2 sec. 2
that petitioners have caused the
preparation of a table-survey plan of Prohibition against splitting a single cause of
the lots in the name of Cancio action:
(prepared by Roxas for Cuevas). 1. Prevent multiplicity of suits
Petitioners then filed an Application 1. Prevent indirect violation / avoidance of res
for Free Patent for the lots, w/c was judicata rule
granted. Priv. resps. filed an Remedy: Instead, file cause of action and ask
administrative protest w/ the Bureau for different reliefs
of Lands & Register of Deeds, seeking BAYANG: File supplemental pleading for new
the recall & cancellation of the free relief or file amendment to pleading to introduce
patents. They then prayed for the new facts which arose after filing
issuance of writ of preliminary
injunction to declare null & void the WORD GAME:
free patents & be declared as the REMEDY: Procedure
absolute owners. This was granted RELIEF: Specific things asked from court or
upon the posting of a bond. right granted by a specific court due to violation
Meanwhile, a hearing on the protest of another right
did not materialize as the ct. had
already issued the writ of preliminary
injunction. Did the ct. actually acquire
jurisdiction over the complaint?
Period to plead
Oversight, inadvertence, excusable Rule 11, Sec. 4
neglect, et al An counterclaim or cross-claim must be
Rule 11, Sec. 10, supra. answered within 10 days from service.
L: Distinguish between: Conclusion of Law; Document: res ipsa loquitur: thing speaks for
Ultimate Facts; and Evidentiary Facts itself
Deny under oath: a) genuineness and
Non-issue if a) not alleged therefore not due execution of the document
need to be denied b) usury charges
b) acceptance of allegation
L: Amended and Supplemental Pleadings
Defense: tends to defeat claim as alleged in
complaint Joinder of Parties: arises from the same
L: prayer would be to dismiss for fact of merit transaction or common question of fact or law
Counterclaim: if answer with affirmative relief Joinder of Causes of Action: so long as the court
has jurisdiction, party can raise all causes of
Negative defenses: which factual allegations in action between the original P and D
complaint alleged as issues P can raise all causes of action against D arising
Issues: allegations and denials joined from different sources but if court has no J over
General denial: accept everything: admission the cause of action, can't join cause of action
of everything: it specifically denies each and But if complaint filed with the RTCF for a sum
every allegation made by the plaintiff: therefore, of money, if the sum is within RTC's
no factual issues anymore and so no more need jurisdiction, then can raise
to go through trial or pre-trial If you want to bring in a new D, need to find
L: Counsel for P: file motion for judgment on commonality in cause of action originally raised,
the pleading not commonality of parties
Specific denial proper: qualified, under oath and Counsel for D: Remedies when a complaint is
allege lack of knowledge or information filed:
sufficient to support a belief (WIT) (note: D must wait until court acquires
jurisdiction and serves him with summons
Affirmative defense: defeats allegations (service, not summons, if court sends him other
contained in complaint pleadings) or he can voluntarily appear and let
Effect: if able to prove during hearing, the court acquire jurisdiction over him
then entire pleading of the other party is file bill of particulars; file motion for extension
defeated of time for filing a pleading and file an amended
Eg. Defense of Lack of jurisdiction or failure to pleading / supplemental pleading
undergo a condition precedent. It is a new
matter. Hypothetical admission but still Final Order/Dismissal
avoidance. Relief prayed for is dismissal of 1. MTD (filed by D)
complaint 1. Dismissal of action by notice or motion (filed
by P)
1. Default (D not act) recall it & set it aside. For every ct.
1. Non-sut (P acts maliciously and not do what has the inherent power to amend its
is required of him Rule 17 sec. 3 process & orders so as to make them
Or P acts passively) conform to law & justice.
No judgment, or order whether final or
L: the trial is not about justice, it's about what interlocutory, has juridical existence until &
you can prove unless it is set down in writing, signed &
promulgated, i.e., delivered by Judge to clerk of
ct. for filing, release to the parties &
Rule 13 implementation & even after this, it does not
Service of Pleadings bind the parties unless & until notice thereof is
duly served on them by any of the modes
prescribed by law.
Coverage, Rule 13, Secs. 1, 4
Filing Service of Judgments, Final
Defined, Rule 13, Sec. 2 Orders or Resolutions, Rule 13, Sec. 9
How, Rule 13, Sec. 12 Completeness of Service, Rule
Proof of Filing, Rule 13, Sec. 12 13, Sec. 10
Service Proof of Service, Rule 13, Sec. 12, 13
Defined, Rule 13, Sec. 12 See also SC Circular No.
Modes of Service 19-91
Generally, Rule 13, Sec. 5, Sec.
11
Personal, Rule 13, Sec. 6 Rule 14
Registered Mail, Rule 13, Sec. 7 Summons
Substituted Service, Rule 13,
Sec. 8 Definition and purpose
Duty to issue, Rule 14, Sec 1, 5
Echaus v. CA Form
Content, Rule 14, Sec 2
Facts: Spouses Gonzales file action
for collection of debt vs. Echaus. Ct. If with leave of court, Rule 14,
orders E to pay. E files w/ SC certiorari Sec. 17
to set aside decision, denied; then Who serves, Rule 14, Sec 3
mandamus to allow appeal, granted. On Whom,
E files w/ TC Urgent Motion to Transmit
Record on Appeal to CA. At the In general, Rule 14, Sec 1, 6
hearing, Judge verbally approves the Entity without juridical
record on appeal in abeyance, until personality, Rule 14, Sec 8
resolution of Gps Motion for Execution
of the TC judgment. E asks CA to Associations, Rule 14, Sec 9
order Judge to comply w/ SC decision, Domestic, Rule 14, Sec
denied. CA says no willful refusal on 11
part of Judge to comply w/ order. E
goes to SC, says her appeal had been Rebolido v. CA, 170 SCRA 800 (1989)
perfected when the Judge verbally
approved the record on appeal.
Facts: Pepsi Cola was served
Held: The oral order approving the summons, in connection w/ a case for
record on appeal had no juridical damages arising fr. vehicle-collision,
existence; to give it that existence it through Sison who represented herself
had to be reduced to writing & as a person authorized to received ct.
promulgated (filed w/ clerk of ct.). But process as she was a secretary of the
even if it had been written & legal dept. of Pepsi Cola. Later, Pepsi
promulgated, even if it had already Cola was dissolved, & all its debts &
been properly served on the parties, it liabilities were assumed by PEPSICO.
still was w/in the power of the Judge to Meanwhile, Pepsi Cola was declared in
default in the aforementioned case, & the latter may be regarded as an
writ of execution was served on “agent” w/in the meaning of Sec. 13.
PEPSICO. The latter now moves to Note: Remember that SC did
vacate judgment, alleging lack of not rule that service upon Secretaries
jurisdiction of the ct. as the summons is always proper. It was only under the
was served on the legal secretary of facts of the CAB that Sec. may be
Pepsi Cola, not PEPSICO. considered as an agent of the
Held: There was valid service of corporation.
summons.
1. Although Pepsi Cola was already Foreign, Rule 14, Sec 12
dissolved when summons was served,
the same may be served upon the Public corporation, Rule
same person upon whom the process 14, Sec 13
could be served before the Minors, RuLe 14, Sec 10
dissolution. Therefore, service to any Insane, incompetents, Rule 14,
of the persons in R 14 Sec. 13 is
allowed. Sec 10
2. Purpose of Summons: To render it Prisoners, Rule 14, Sec 9
reasonably certain that corporation Unknown defendant, Rule 14,
will receive prompt & proper notice in Sec 14
an action vs. it.
Residents temporarily out, Rule
3. Liberal Interpretation of Sec. 13:
That there is Substantial Compliance 14, Sec 18, 16
w/ the requirement of Sec. 13 if the
purpose for the service of summons is Venturanza v. CA, 156 SCRA 305 (1987)
attained, & the person served knew
what to do w/ the legal papers served Facts: Venturanza was sued for
upon him. collection of a sum of money.
Summons for V was served upon her
Summit Trading v. Avendano, 146 SCRA 197 father at his residence in Tondo. V was
(1986) later held in default. V filed Motion to
Set Aside Default Judgment on the
Facts: In connection w/ a case for ground that there was no proper
redemption of lots filed vs. ST (Type!), service of summons when it was
summons were served on the served not in her residence w/c was in
Secretary of the President of Summit Pasay City.
Trading. ST was later held in default. Held: There was no proper service of
Judgment was rendered vs. it. ST filed summons.
MFR contending that ct. in the first 1. It is only when defendant cannot be
place did not acquire jurisdiction over served w/in reasonable time that a
the company when it served summons substituted service may be availed of
on the Sec of the Pres. who is not an under Sec. 8 (Pls. see Part VI). The law
agent of the company. requires an effort or attempt to
Held: Since the Secretary did not personally serve the defendant, & only
explain what she did to the summons, after this has failed that a substituted
the logical assumption is that she service may be availed of. Why? Bec.
gave it to her boss. (SC here Substituted Service is in derogation of
considered the fact that a copy of the the usual method of service. It is a
default judgment held vs. ST was also method extraordinary in character &
served on the Sec. & the same hence may be used only as prescribed
reached the Pres., & consequently, ST in the circumstances authorized by
was able to file a MFR.) statute.
While Summit Trading is 2. Substituted service is valid only if
technically correct in contending that served at defendant’s residence, NOT
there was no strict compliance w/ Sec. former residence. “Residence” means
13, under the facts of this case, where where he is living at the time service
the President contact the outside was made, even though temporarily
world normally through his Secretary, out of the country.
personal service were made by the
Non-resident, Rule 14, Sec 15 Sheriff & that such attempts had
failed, prompting him to resort to
Modes of service Substituted service. HOWEVER, it
Personal, Rule 14, Sec 6 must be emphasized that Absence in
Substituted, Rule 14, Sec 7 the Sheriff’s Return of a statement
about the impossibility of personal
service DOES NOT conclusively prove
Laus v. CA, 219 SCRA 688 (1993)
that the service is invalid. Proof of
Facts: This is the 10-minute case.
such prior attempts may be submitted
Torres filed a complaint for Collection
vs. Laus. Deputy Sheriff went to Laus’ by the plaintiff during the hearing of
any incident assailing the validity of
residence to serve summons, but
found that there was no one in the the substituted service. While Sheriff’
Return carries w/ it the presumption of
house. He waited for 10 minutes.
Then a three-wheeled vehicle (tricykol) regularity, that entries therein are
deemed correct, it does not
came w/ the savior who claimed to be
the maid in the house. The Sheriff necessarily follow that an act done in
relation to the official duty for w/c the
served summons upon the latter. Laus
was declared in default. Before he return is made was not simply done
bec. it is not disclosed therein.
received the final judgment, Laus filed
an MTD on the ground that there was Besides, the sheriff’s neglect in
making such a disclosure should not
ineffective service of summons bec.
there was no indication that S first unduly prejudice the plaintiff if what
was undisclosed was in fact done.
exerted efforts to serve the same
personally before resorting to
substituted service. 2. The EE may be considered as an
Held: There was an ineffective “agent” for the purpose of Sec. 13, &
service of summons. there was a substantial compliance
under the said sec. bec. in the CAB,
General Rule: Must serve personally.
petitioner failed to deny the statement
Exception: If cannot serve personally in Sheriff’s Return that the EE is
w/in reasonable period of time, may “authorized to receive process of this
resort to Substituted Service. nature”, said Return enjoying the
How can Impossibility of Service be presumption of regularity, & the
shown? By stating efforts made to logical conclusion is that she delivered
find defendant personally & the fact the summons to the corporation.
that such efforts failed.
Mapa v. CA, 214 SCRA 417 (1993) 3. In an action in personam as in the
Facts: A complaint for Recovery of CAB, personal service of summons
sum of money was filed vs. High Peak w/in the forum is essential to the
Mining. Summons was issued to be acquisition of jurisdiction over the
served upon Mapa, the chairperson, & person of the defendant who does not
upon other officers of the corporation. voluntarily submit himself to the
However, said summons was served authority of the ct..
upon an employee of said corp.
Defendants were declared in default.
Defs. filed MTD & Set Aside Default Extraterritorial, Rule 14, Sec 15
Judgment on the ground of lack of
jurisdiction of the ct. over their person Dial Co. v. Soriano, 161 SCRA 737 (1988)
as the service of summons was
improper, i.e., served upon an EE who DIAL CO. V. SORIANO
may not be considered as an “agent” Facts: Dial is a foreign corporation
of the corporation; moreover, Sheriff organized & existing under the laws of
did not indicate in his Return his UK, US & Malaysia. It has NO agents,
efforts at serving summons personally officers or office in the Philippines.
before resorting to substituted service. Imperial Vegetable Oil, a Phil. corp.,
Held: Court lacked jurisdiction. entered, through its President, into
several contracts w/ Dial for the
delivery of coco oil by the former to
1. General Rule: Sheriff’s Return the latter. Later, IVO repudiated said
must show that prior attempts at contracts on the ground that they are
“mere paper trading in futures” as no applied for by a plaintiff “at the
actual delivery of coco oil was really commencement of the action or at
intended. IVO also filed complaint for anytime thereafter...” However, what
Damages vs. Dial. RTC, upon motion should be identified is not the time
of IVO, authorized the latter to effect when the action may be regarded as
Extraterritorial Service of Summons to having commenced, as this is not
Dial through DHL. Dial, w/o submitting necessarily fixed nor identical. The
itself to court’s jurisdiction, filed MTD Critical Time to be identified is when
on the ground that Extraterritorial the trial ct. acquires authority under
Service was improper, hence RTC the law to act coercively vs. the
acquired no jurisdiction. defendant or his property in a
Held: There was an Improper service proceeding in attachment. Answer:
of summons. the time of the vesting of jurisdiction
1. There are 4 instances when in the ct. over the person of the
Extraterritorial service of summons defendant in the main case.
can be properly done: 2. NON-RESIDENT DEFENDANT:
a) Action affects status of the plaintiff Attachment of property may be sought
in order to bring RES w/in the
b) Action relates to, or the subject of jurisdiction of the ct., in substitution,
w/c is, property w/in the Phils., in w/c as it were, of the body of the
defendant has or claims a lien or defendant. Jurisdiction over the res &
interest, actual or contingent the person of the defendant is, in
c) When relief demanded consists in such case, acquired by service of
whole or in part, in excluding the def. summons by publication, though that
fr. any interest in the property located jurisdiction may be made effective
in the Phils. only in respect of the res attached.
d) Defendant non-resident’s property RESIDENT DEFENDANT: A ct. w/c
has been attached w/in the Phils. has not acquired jurisdiction over the
2. The CAB is purely an action for person of the defendant cannot bind
Injunction, not any of the 4. This is that def. whether in the main case or
only an action in personam. In in an ancillary proceeding such as
any of the 4 instances, Court has attachment proceedings. The service
jurisdiction over the RES, i.e. personal of a Petition for Prelim Attachment w/o
status or property, so jurisdiction over the prior or simultaneous service of
the person is NOT essential. summons & a copy of the complaint in
In Personam - an action vs. a the main case does not confer
person on the basis of his personal jurisdiction upon the issuing ct. over
liability; the person of the defendant.
In Rem - action vs. the thing
itself instead of vs. the person. Citizen's Surety v. Herrera, 38 SCRA 369
3. In CAB, Court cannot subject Dial & (1972)
Co. to processes of RTC w/c are Facts: Citizen’s Surety filed complaint
powerless to reach them outside the for reimbursement of money vs.
region over w/c they exercise their Dacanay. Since Dacanay’s address
authority. was unknown, CS petitioned the Court
that summons be made by
publication. Petition was granted, but
Sievert v. CA, 168 SCRA 692 (1988)
still no Dacanay appeared. (Kung kayo
Facts: Sievert, a citizen & resident of
the Phils. received by mail a Petition ba s’ya lalabas kayo?) CS asked the ct.
that Dacanay be held in Default. Trial
for Issuance of Preliminary Attachment
w/o previously receiving any summons ct. denied since this is an action in
personam, & dismissed the case.
& copy of the complaint filed vs. him.
His counsel entered a special Held: The judge was correct that the
appearance for a limited purpose of Court could not validly acquire
objecting to the jurisdiction of the ct.. jurisdiction on a non-appearing
defendant, absent a personal service
Held: RTC has no jurisdiction over
Sievert. of summons w/in the forum.
Otherwise, there would be a violation
1. Rule 57 Sec. 1. -- Writ of of Due Process.
Preliminary Attachment may be
The proper recourse for the Appearance of counsel is equivalent to
creditor is to locate properties, real or summons unless such is made to
personal, of the resident defendant protest the jurisdiction of the ct. over
debtor w/ unknown address & cause the person of the defendant. The MFR
them to be attached under R57 Sec. filed cannot be treated as a special
1(f), in w/c case, the attachment appearance as it raised other grounds
converts the action into a proceeding than the invalid service of summons,
in rem or quasi in rem, & the i.e. failure to state COA, no
summons by publication may then Katarungang Pambarangay).
accordingly be deemed valid &
effective.
Return of service, Rule 14, Sec 4
Consolidated Plywood v.
Proof of service, Rule 14, Sec 18
Breve, 166 SCRA 589 (1988) Publication, Rule 14, Sec
Facts: Consolidated Plywood & 19
Mindanao Hemp Export are co-owners Registered mail, Rule 14,
of real property: land & building.
Consolidated undertook to repair & Sec 19
improve the property, subject to
reimbursement fr. Mindanao of 1/2 of NOTES ON SUMMONS:
costs. After Mindanao refused to pay,
a suit for collection was filed by Venturanza - residence means "actual residence"
Consolidated. When summons was
issued, it was found out that Mindanao What make time reasonable is the efforts exerted
was no longer doing business at its by the sheriff in serving the summons personally
former address. Can summons be to the defendants.
served by publication?
Held: No. Suit is for the collection of an Remedies in default judgment:
amount of money--a personal action, ct. cannot 1. Motion for New Trial
acquire jurisdiction over the person by serving 2. Appeal
summons by publication. The proper recourse 3. Motion for Relief from Judgment
for a creditor is to locate properties, real or 4. Motion to Set Aside Judgment
personal, of the resident defendant debtor w/
unknown address & cause them to be attached A judgment rendered without jurisdiction never
under R57 Sec. 1(f), in w/c case, the attachment prescribes, passage of time can never correct the
converts the action into a proceeding in rem or judgment of a court which has never acquired
quasi in rem, & the summons by publication jurisdiction.
may then accordingly be deemed valid &
effective. Personal and real actions are important in
Waiver of service, Rule 14, Sec 20 determining venue of actions.
Actions in personam and in rem are important
Delos Santos v. Montesa, 221 SCRA for service of summons.
15 (1993) Actions affecting personal actions are actions in
Facts: In connection w/ a complaint rem and therefore extraterritorial service by
for Ejectment filed vs. De los Santos, publication may be made.
summons was served upon the latter
through her mother as the process Options for service of summons:
server failed to locate the defendant. 1. Personal service
DLS filed an MFR of MC decision, 2. Substituted service
alleging, inter alia, that the summons 3. Extraterritorial service: not a mode of service,
was improperly served. principally
Held: While it may appear that there (a) personal
is no proof that it was impossible to (b) service by publication (always accompanied
personally serve the summons, & the by registered mail)
statutory norms on service of
summons were not strictly complied Service of other Pleadings: Rule 13 Service of
w/, by the acts of the petitioner’s Summons: Rule 14
counsel, such defects are deemed 1. Personal Delivery
erased. (Counsel filed MFR ) 1. Personal Service
To party/counsel To by Sharp. When such MTD was
the defendant only granted, ICTSI moved for a
Residence, to person of suitable no reconsideration of said order insofar
such thing as service by registered as it dismissed ICTSI’s counterclaim.
Age and Discretion Held:
mail 1. Dismissal of complaint on
defendant’s own motion operated to
Purpose: acquisition of jurisdiction also dismiss the counterclaim
2. Substituted Service questioning the complaint.
2. Substituted Service 2. Defendant himself joined PPA in
3. Extraterritorial Service moving for dismissal of complaint; it
Either personally or by publication did not object to the dismissal.
File a motion for leave of court inorder to be Secondly, compulsory claim was so
able to serve extraterritorially intertwined w/ complaint that it could
not remain pending for independent
Extraterritorial Service by publication - may be adjudication.
made only in four (4) instances as enumerated in
§15 of Rule 14 and Dial Co. v. Soriano. Calalang v. CA, 217 SCRA 462
if D files MTD for failure to state a cause of NOTE Rule 16 sec 6 makes it discretionary on
action, P's remedy is to file an amended the trial court to rule on affirmative defense
pleading raising any of the grounds of MTD as long as
Nature of MTD: hypothetically admits MTD not filed
allegations in complaint as true: affirmative
defense L: res judicata already raised as MTD, MTD
MTD confusion and avoidance (WIT): denied during hearing, then can't raise
hypothetical admission and denial affirmative defense on same ground since
already settled that not res judicata (WIT)
Possible defenses when served with a complaint.
Line by line: LINA V CA: Remedies for default judgment
RTC - lack of jurisdiction a) motion to set aside order of default
NCR, QC - wrong venue b) motion for new trial
P - lack of capacity to sue c) appeal
Summons - lack of J over D d) petition for review of judgment
Pleading - no cause of action
Body - litis pendentia, res judicata, LAUS: no default since D did not receive
paid/waived/unenforceable summons. Period for filing answer has not yet
Allegations of conditions precedent - started to run. Remedy: MTD. Remedy if
failure to undergo conditions precedent MTD denied: certiorari for arbitrary ruling
Failure to include certification against
forum shopping under oath NOTES ON MOTION TO DISMISS
Hearing on motion: receive evidence in support U. P. case - certiorari by Bailen and Salazar in
of motion SC first civil action
Trial : receive evidence on ultimate
causes Certiorari - as a mode of appeal
Certiorari - special civil action, grave abuse of
MTD not a responsive pleading but a motion discretion
After filing MTD can no longer file Bill of Distinguish between petition for review by
Particulars since MTD means that D is certiorari and original special civil action for
presumed to have understood the complaint. certiorari
Must file B of P before MTD then motion for
UP -orders of MTD contained two (2) different Motion for Summary Judgment may be
things substituted by an Answer.
Special civil action is a different thing
Certiorari is an extraordinary remedy Judgment after Trial ]
Summary Judgment ]
Answer-in-intervention: grounds for dismissal Judgment on the merits;
may be raised in an affirmative defense inspite Judgement on the Pleadings ]
of prior dismissal of a MTD by the original ways of terminating trial
defendant. Judgment by Default ]
Section 2. Contents of petition. - The petition Section 27. Depositions pending appeal. - If an
shall be entitled in the name of the petitioner appeal has been taken from a judgment of a
and shall show: (a) that the petitioner expects to court, including the Court of Appeals in proper
be a party to an action in a court of the cases, or before the taking of an appeal if the
Philippines but is presently unable to bring it or time therefor has not expired, the court in which
cause it to be brought; (b) the subject matter of the judgment was rendered may allow the taking
the expected action and his interest therein; (c) of depositions of witnesses to perpetuate their
the facts which he desires to establish by the testimony for use in the event of further
proposed testimony and his reasons for desiring proceedings in the said court. In such case the
to perpetuate it; (d) the names or a description of party who desires to perpetuate the testimony
the persons he expects will be adverse parties may make a motion in the said court for leave to
and them addresses so far as known; and (e) the take the depositions, upon the smae notice and
names and addresses of the persons to be service thereof as if the action was pending
examined and the substance of the testimony therein.. The motion shall state a) the names
which he expects to elicit from each, and shall and addresses of the persons to be examined and
ask for an order authorizing the petitioner to the substance of the testimony which he expects
take the depositions of the persons to be to elicit from each; and (b) the reason for
examined named in the petition for the purpose perpetuating their testimony. If the court finds
of perpetuating their testimony. that the perpetuation of the testimony is proper
to avoid a failure or delay of justice, it may make
Section 3. Notice and service. - The petitioner an order allowing the depositions so be taken,
shall serve a notice upon each person named in and thereupon the depositions may be takne and
used in the same manner and under the smae
conditions as are prescribed in these Rules for Section1. Request for admission. - At any time
depositions taken in pending actions. after issues have been joined, a party may file
and serve upon any party a written request for
RULE 25 the admission by the latter of the genuineness of
INTERROGATORIES TO PARTIES any material and releant document described in
and exhibited with the request or of the truth of
Section 1. Interrogatories to parties; service any meterial and relevant matter of fact set forth
thereof. - Under the same conditions specified in in the request. Copies of the documents shall be
section 1 of Rule 23, any party desiring to elicit delivered with the request unless copies have
material and relevant facts from any adverse already been furnished.
parties shall file and serve upon the latter
written interrogatories to be answered by the Section 2. Implied admission. -0 Each of the
party served or, fi the party served is a public or matters of which an admission is requested shall
private corporation or a partnership or be deemed admitted unless, within a period
association, by any officer thereof competent to designated in the request, which shall not be less
testify in its behalf. than fifteen (15) days after service thereof, or
within such further time as the court may allow
Section 2. Answer to interogatories. - The on motion, the party to whom the request
interrogatories shall be answered fully in writing directed files and serves upon the party
and shall be signed and sworn t by the person requesting the admission a sworn statement
making them. The party upon whom the either denying specifically the matters of which
interrogatories have been sserved shall file and an admission si requested or setting forth in
serve a copy of the answers on the party detail the reasons why he cannot truthfully
submitting the interrogatories within fifteen (15) either admit or deny those matters.
days after service thereof, unless the court on Objections to any request for admission
motino and for good cause shown, extends or shall be submitted to the court by the party
shortens the time. requested within the period for and prior to the
filinf of his sworn statement as contemplated in
Section 3. Objections to interrogatories. - the preceding paragraph and his compliance
Objections to any interrogatories may be therewith shall be deferred until such obligatins
presented to the court within ten (10) days after are resolved, which resolution shall be made as
service thereof, with notice as in case of a early as practicable.
motion; and answers shall be deferred until the
objections are resolved., which shall be at as Section 3. Effect of admission - Any admission
early a time as is practicable. made by a party pursuant to such request is for
the purpose of the pending actin only and shall
Section 4. Number of interrogatoties. - No party not consitute an admission by him for any other
may, without leave of court, serve more than one purpose nor may the same be used against him
set of interrogatories to be answered by the same in any other proceeding.
party.
Section 4. Withdrawal. - The court may allow
Section 5. Scope and use of interrogatories. - the party making an admissin under this Rule,
Interrogatories may relate to any matters that whether express or implied, to withdraw or
can be inquired into under section 2 of Rule 23, amend it upon such terms as may be just.
and the answers may be used for the same
purposes provided in section 4 of the same Rule. Section 5. Effect of failure to file and serve
request for admission. - Unless otherwise
Section 6. Effect of failure to serve written allowed by the court for good cause shown and
interrogatories. - Unless thereafter allowed by to prevent a failure of justice, a party who fails
the court for good cause shown and to prevent a to file and serve aw request for admission on the
failure of justice; a party not served with written adverse party of material and relevant facts at
interrogatories may now be compelled by the issue which, or ought to be within the personal
adverse party to give testimony in open court; or knowledge of the latter, shall not be permitted to
to give a deposition pending appeal. present evidence on such facts.
RULE 26 RULE 27
ADMISSION BY ADVERSE PARTY PRODUCTION OR INSPECTION OF
DOCUMENT OR THINGS report the court may exlude his testimony if
offered at the trial.
Section 1. Motion for productio or inspection;
order. - Upon motion of any party showing good Section 4. Waiver of Privilege. - By requesting
cause therefor, the court in which an action is and obtaining a report of the examination so
pending may (a) order any party to produce and ordered or by taking the deposition of the
permit the inspection and dopying or examiner , the party examined waives any
photographing, by or on behalf of the moving privilege he may have in that action or any other
party, of any designated documents, papers, involving the same controversy, regarding the
books, accounts, loetters, photographs, objects or testimony of every other person who has
tangible things, not privileged, which constitute examined or may thereafter examine him in
or contain evidence material to any matter respect of the mental or physical examination.
involved in the action and which are in his
possessin, custody or control; or (b) order any RULE 29
party or permit entry upon designated land or REFUSAL TO COMPLY WITH MODES OF
other porpoerty in his possession or control for DISCOVERY
the puropse of inspecting, measuring, surveying,
or photogrpahing the property or any designated Section 1. Refusal to answer. - If a party or
relevant object or operation thereon. The order other deponent refuses to answer any question
shall specify the time, place and manner of upon oral examination, the examination may be
making the inspection and taking ciopies and completed on other matters or adjourned as the
photogrpahs, and may prescribe such terms and proponent of the question may prefer. The
conditions as are just. proponent may thereafter apply to the proper
court of the place where the deposition is being
RULE 28 taken, for an order to compel an answer. The
PHYSICAL AND MENTAL EXAMINATION same procedure may be availed of when a party
OF PERSONS or a witness refuses to answer any interrogatory
submitted under Rules 23 or 25.
Section 1. When examination may be ordered. - If the application is granted, the court
In an action on which the mental or physical shall require the refusing party or deponent to
condition of a party is ain controversy, the court answer the question or interrogatory and if it
in which the acito is pending may in its also finds that the refusal to answer was without
discretion order him to submit to a physical or substantial justification, it may require the
mental examination by a physician. refusing party or deponent or the counsel
advising the refusal, or both of them, to pay the
Section 2. Oder for examination. - The orer for proponent the amount of the reasonable
examination may be made only on motion for expenses incurred in obtaining the order,
good cause shown and upon notice to the party including attorney’s fees.
to be examined and to all other parties, and shall If the application is denied and the
specify the time, place, manner, conditions and court finds that it was filed without substantial
scope of the esmination and the person or justification, the court may require the
persons by whom it is to be made. proponent or the counsel advising the filing of
the application, or both of them, to pay to the
Section 3. Report of findings. - If requested by refusing party or deponent the amount of the
the party examined, the party causeing the reasonable expenses incurred in opposing the
esamination to be madee shall deliver to him a application, including attorney’s fees.
copy of a detailed written report of the
examining physician setting out his findings and Sec. 2. Contempt of court. - If the party or other
conclusions. After such request and delivery, the witness refuses to be sworn to answer any
party causing the examination to be made shall question after being directed to do so by the
be entitled upon request to receive from the court of the place in which the deposition is
party examined a like report of any examination, being taken, the refusal may be considered a
previously or thereafter made, of the same contempt of that court.
metnal or physical condition. If the party
examined refuses to deliver such report, the Sec. 3. Other consequences - If any party or an
court on motion and notice may make an order officer or managing agent of a party refuses to
requiring delivery on such terms as are just, and obey an order made under section 1 of this Rule
if a physician fails or refuses to make such a requiring him to answer designated questions, or
an order under Rule 27 to produce any document interrogatories, the court on motion and notice,
or other thing for inspection copying or may strike out all or any part of any pleading of
photographing or to permit it to be done, or to the party, or dismiss the action or proceeding or
permit entry upon land or other property, or an any part thereof, or enter a judgment by default
order made under Rule 28 requiring him to against the party, and in its discretion, order him
submit to a physical or mental examination, the to pay reasonable expenses incurred by the other,
court may make such orders in regard to the including attorney’s fees.
refusal as are just, and among others the
following: Sec. 6. Expenses against the Republic of the
(a) An order that the matters regarding Philippines. - Expenses and attorney’s fees are
which the questions were asked, or the character not to be imposed upon the Republic of the
or description of the thing or land, or the Philippines under this Rule.
contents of the paper , or physical or mental
condition of the party, or any other designated
facts shall be taken to be established for the
purposes of the action in accordance with the
claim of the party obtaining the order;
(b) An order refusing to allow the
disobedient party to support or oppose Republic v. Sandiganbayan, 204 SCRA 212
designated claims or defenses or prohibiting him
from introducing in evidence designated The various modes or instruments of
document or things or items of testimony, or discovery are meant to serve (1) as a device,
from introducing evidence of physical or mental along with the pre-trial hearing, to narrow and
condition; clarify the basic issues between the parties, and
(c) An order striking out pleadings or (2) as a device for ascertaining the facts relative
parts thereof, or staying further proceedings to those issues. The evident purpose is, to repeat,
until the order is obeyed, or dismissing the to enable the parties, consistent with recognized
action or proceeding or any part thereof, or privileges, to obtain fullest possible knowledge
rendering a judgment by default against the of the issues and facts before civil trails and thus
disobedient party; and prevent that said trials are carried on in the
(d) In lieu of any of the foregoing dark. To this end, the field of inquiry that may
orders or in addition thereto, an order directing be covered by depositions or interrogatories is as
the arrest of any party or agent of a party for broad as when the interrogated party is called as
disobeying any such orders except an order to a witness to testify orally at trial. The inquiry
submit to a physical or mental examination. extends to all facts which are relevant, whether
they be ultimate or evidentiary, excepting only
Sec. 4. Expenses on refusal to admit. - If a party those matters which are privileged. The
after being served with a request under Rule 26 objective is as much to give every party the
to admit the genuineness of any document or the fullest possible information of all relevant facts
truth of any matter of fact, serves a sworn denial before the trial as to obtain evidence for use
thereof and if the party requesting the upon said trial.
admissions thereafter proves the genuineness of
such document or the truth of any such matter of In line with the principle of according
fact, he may apply to the court for an order liberal treatment to the deposition-discovery
requiring the other party to pay him the mechanism, such modes of discovery as a)
reasonable expenses incurred in making such depositions (whether by oral examination or
proof, including attorney’s fees. Unless the court written interrogatories), (b) interrogatories to
finds that there were good reasons for the denial parties, and (c) requests for admissions, may be
or that admissions sought were of no substantial availed of without leave of court, and generally,
importance, such order shall be issued. without court intervention. The Rules of Court
explicitly provide that leave of court is not
Sec. 5. Failure of party to attend or serve necessary to avail of said modes of discovery
answers. - If a party or an officer or managing after an answer to the complaint has been
agent of a party willfully fails to appear before served. It is only when an answer has not yet
the officer who is to take his deposition, after been filed (but after jurisdiction has been
being served with a proper notice, or fails to obtained over the defendant or property subject
serve answers to interrogatories submitted under of the action) that prior leave of court is needed
Rule 25 after proper service of such to avail of these modes of discovery, the reason
being that at that time the issues are not yet 1. Oral examination
joined and the disputed facts are not clear. 2. Written Interrogatories - different from two
above
On the other hand, leave of court is
required as regards discovery by (a) production
or inspection of documents or things in Motions: Don't forget:
accordance with Rule 27, or (b) physical and Notice, signatures
mental examination of persons under Rule 28, Request for admission, questions are
which may be granted upon due application and answerable by yes or no
a showing of due course. Attach receipt of registered mail in the
pleading to be sent to the court.
For an injury to be irreparable, it does not have Sec. 9. When final injunction granted. - If after
to refer to the amount of damages that may be the trial of the action it appears that the
caused but rather to the difficulty of measuring applicant is entitled to have the act or acts
the damages inflicted. If full compensation can complained of permanently enjoined, the court
be obtained by way of damages, equity will not shall grant a final injunction perpetually
apply the remedy of injunction. restraining the party or person enjoined from
the commission or continuance of the act or
Sec. 6. Grounds for objection to, or for motion acts or confirming the preliminary mandatory
of dissolution of, injunction or restraining injunction.
order. - The application for injunction or
restraining order may be denied, upon a
showing of its insufficiency. The injunction or
restraining order may also be denied, or, if
granted, may be dissolved, on other grounds Gilchrist v. Cuddy
upon affidavits of the party or person enjoined, 29 Phil 542
which may be opposed by the applicant also by
affidavits. It may further be denied or granted,
may be dissolved, if it appears after hearing Receivership
that although the applicant is entitled to the
injunction or restraining order, the issuance or Rule 59
continuance thereof, as the case may be, would
cause irreparable damage to the party or
Sec. 1. Appointment of receiver. - Upon a Neither party to a litigation should be appointed
verified application , one or more receivers of as receiver without the consent of the other
the property subject of the actin or proceeding because a receiver should be a person indifferent
may be appointed by the court where the action to the parties and should be impartial and
is pending, or by the Court of Appeals or by the disinterested. The receiver is not the
Supreme Court, or a member thereof, in the representative of any of the parties but of all of
following cases: them to the end that their interests may be
(a) When it appears from the verified equally protected with the least possible
application, and such other proof as the court inconvenience and expense.
may require, that the party applying for the
appointment of a receiver has an interest in the Sec. 2. Bond on appointment of receiver. -
property or fund which is the subject of the Before issuing the order appointing a receiver
action or proceeding, and that such property or the court shall require the applicant to file a
fund is in danger of being lost, removed, or bond executed to the party against whom the
materially injured unless a receiver be application is presented, in an amount to be
appointed to administer and preserve it; fixed by the court, to the effect that the
(b) When it appears in an action by the applicant will pay such party all damages he
mortgagee for the foreclosure of a mortgage may sustain by reason of the appointment of
that the property is in danger of being wasted or such receiver in case the applicant shall have
dissipated or materially injured, and that its procured such appointment without sufficient
value is probable insufficient to discharge the cause; and the court may, I its discretion, at any
mortgage debt, or that the parties have so time after the appointment, require an
stipulated in the contract of mortgage; additional bond as further security for such
(c) After judgment, to preserve the damages.
property during the pendency of an appeal, or
to dispose of it according to the judgment, or to Sec. 3. Denial of application or discharge of
aid execution when the execution has been receiver. - The application may be denied, or
returned unsatisfied or the judgment obligor the receiver discharged, when the adverse party
refuses to apply his property in satisfaction of files a bond executed to the applicant, in an
the judgment, or otherwise to carry the amount to be fixed b the court, to the effect that
judgment into effect; such party will pay the applicant all damages
(d) Whenever in other cases it appears he may suffer by reason of the acts, omissions,
that the appointment of a receiver is the most or other matters specified in the application as
convenient and feasible means of preserving, ground for such appointment. The receiver may
administering, or disposing of the property in also be discharged if it is shown that his
litigation. appointment was obtained without sufficient
During the pendency of an appeal, the cause.
appellate court may allow an application for the
appointment of a receiver to be filed in and Sec. 4. Oath and bond of receiver. - Before
decided by the court of origin and the receiver entering upon his duties, the receiver shall be
appointed to be subject to the control of said sworn to perform them faithfully, and shall file a
court. bond, executed to such person and in such sum
as the court may direct, to the effect that he will
Commodities Storage v. Court of Appeals faithfully discharge his duties in the action or
G.R. No. 125008 proceeding and obey the orders of the court.
A petition for receivership requires that the Sec. 5. Service of copies of bonds; effect of
property or fund which is the subject of the disapproval of same. - The person filing a bond
action must be in danger of loss, removal or in accordance with the provisions of this Rule
material injury which necessitates protection or shall forthwith serve a copy thereof on each
preservation. In the instant case, there is no interested party, who may except to its
sufficient showing that the ice plant is in danger sufficiency or of the surety or sureties thereon.
of disappearing or being wated and reduced to a If either the applicant’s of the receiver’s bond is
‘scrap heap.” At the time the trial court issued found to be insufficient in amount, or if the
the order for receivership of the property, the surety or sureties thereon fail to justify, and a
problem had been remedied and there was no bond sufficient in amount with sufficient sureties
imminent danger of any leakage. approved after justification is not filed
forthwith, the application shall be denied or the
receiver discharged, as the case may be. If the from further duty as such. The court shall allow
bond of the adverse party is found to be the receiver such reasonable compensation as
insufficient in amount or the surety or sureties the circumstances of the case warrant, to be
thereon fail to justify, and a bond sufficient in taxed as costs against the defeated party, or
amount with sufficient sureties approved after apportioned, as justice requires.
justification is not filed forthwith, the receiver
shall be appointed and re-appointed, as the case Sec. 9. Judgment to include recovery against
may be. sureties. - The amount, if any, to be awarded to
any party upon any bond filed in accordance
Sec. 6. General powers of receiver. - Subject to with the provisions of this Rule, shall be
the control of the court in which the action or claimed, ascertained, and granted under the
proceeding is pending, a receiver shall have the same procedure prescribed in section 20 of Rule
power to bring and defend, in such capacity, 57.
actions in his own name; to take and keep
possession of the property in controversy; to
receive rents; o collect debts due to himself as
receiver or to the fund, property, estate, person,
or corporation of which he is the receiver; to
compound and compromise the same; to make Replevin
transfers; to pay outstanding debts; to divide Rule 60
the money and other property that shall remain
among the persons legally entitled to receive
the same; and generally to do such acts
respecting the property as the court may Sec. 1. Application - A party praying for the
authorize. However, funds in the hands of a recovery of possession of personal property
receiver may be invested only by order of the may, at the commencement of the action or at
court upon the written consent of all the parties any time before answer, apply for an order for
to the action. the delivery of such property to him, in the
No action may be filed by or against a manner hereinafter provided.
receiver without leave of the court which
appointed him. Sec. 2. Affidavit and bond. - The applicant must
show by his own affidavit or that of some other
Sec. 7. Liability for refusal or neglect to person who personally knows the facts:
deliver property to receiver. - A person who (a) That the applicant is the owner of
refuses or neglects, upon reasonable demand, to the property claimed, particularly describing it,
deliver to the receiver all the property, money, or is entitled to the possession thereof;
books, deeds, notes, bills, documents and (b) That the property is wrongfully
papers within his power of control subject of or detained by the adverse party, alleging the
involved in the action or proceeding, or in case cause of detention thereof according to the best
of disagreement, as determined and ordered by of his knowledge, information, and belief;
the court, may be punished for contempt and (c) That the property has not been
shall be liable to the receiver for the money or distrained or taken for a tax assessment or a
the value of the property and other things so fine pursuant to law, or seized under a writ of
refused or neglected to be surrendered, together execution or preliminary attachment, or
with all damages that may have been sustained otherwise placed under custodia legis, or if so
by the party or parties entitled thereto as a seized, that it is exempt from such seizure or
consequence of such refusal or neglect. custody; and
(d) The actual market value of the
Sec. 8. Termination of receivership; property.
compensation of receiver. - Whenever the The applicant must also give a bond,
court, motu propio or on motion of either party, executed to the adverse party in double the
shall determine that the necessity for a receiver value of the property as stated in the affidavit
n longer exists, it shall, after due notice to all aforementioned, for the return of the property to
interested parties and hearing, settle the the adverse party if such return be adjudged,
accounts of the receiver, direct the delivery of and for the payment to the adverse party of such
the funds and other property in his possession to sum as he may recover from the application in
the person adjudged to be entitled to receive the action.
them, and order the discharge of thereceiver
Sec. 3. Order. - Upon the filing of such affidavit whom the writ of replevin had been issued or his
and approval of the bond, the court shall issue agent, and such person makes an affidavit of his
an order and the corresponding writ of replevin title thereto, or right to the possession thereof,
describing the personal property alleged to be stating the grounds therefor, and serves such
wrongfully detained and requiring the sheriff affidavit upon the sheriff while the latter has
forthwith to take such property into his custody. possession of the property and a copy thereof
upon the applicant, the sheriff shall not be
Sec. 4. Duty of the sheriff. - Upon receiving bound to keep the property under replevin or
such order, the sheriff must serve a copy thereof deliver it to the applicant unless the applicant
on the adverse party, together with a copy of the or his agent, on demand of said sheriff shall file
application, affidavit and bond, and must a bond approved by the court to indemnify the
forthwith take the property, if it be in the third-party claimant in a sum not less than the
possession of the adverse party, or his agent, value of the property under replevin as provided
and retain it in his custody. If the property or in section 2 hereof. In case of disagreement as
any part thereof be concealed in a building or to such value, the court shall determine the
enclosure, the sheriff must demand its delivery, same. No claim for damages for the taking or
and if it be not delivered, he must cause the keeping of the property may be enforced against
building or enclosure to be broken open and the bond unless the action therefor is filed
take the property as herein provided, he must within one hundred twenty (120) days from the
keep it in a secure place and shall be date of the filing of the bond.
responsible for its delivery to the party entitled The sheriff shall not be liable for
thereto upon receiving his fees and necessary damages, for the taking or keeping of such
expenses for taking and keeping the same. property, to any such third-party claimant if
such bond shall be filed. Nothing herein
Sec. 5. Return of property. – If the adverse contained shall prevent such claimant or any
party objects of the sufficiency of the applicant’s third person from vindicating his claim to the
bond, or of the surety or sureties thereon, he property, or prevent the applicant from claiming
cannot immediately require the return of the damages against a third-party claimant who
property, but if he does not so object, he may, at filed a frivolous or plainly spurious claim, in
any time before the delivery of the property to the same or a separate action.
the applicant, require the return thereof, by When the writ of replevin is issued in
filing with the court where the action is pending favor of the Republic of the Philippines, or any
a bond executed to the applicant, in double the officer duly representing it, the filing of such
value of the property as stated in the applicant’s bond shall not be required, and in case the
affidavit for the delivery thereof to the sheriff is sued for damages as a result of the
applicant, if such delivery be adjudged, and for replevin, he shall be represented by the Solicitor
the payment of such sum to him as may be General, and if held liable therefor, the actual
recovered against the adverse party, and by damages adjudged by the court shall be paid by
serving a copy of such bond on the applicant. the National Treasurer out of the funds to be
appropriated for the purpose.
Sec. 6. Disposition of property by sheriff. – If
within five (5) days after taking the property by Sec. 8. Return of papers. – The sheriff must file
the sheriff, the adverse party does not object to the order, with his proceedings indorsed
the sufficiency of the bond, or the surety or thereon, with the court within ten (10) days after
sureties thereon; or if the adverse party so taking the property mentioned therein.
objects and the court affirms its approval of the
applicant’s bond or approves a new bond, or if Sec. 9. Judgment. – After trial of the issues, the
the adverse party requires the return of the court shall determine who has the right to the
property but his bond is objected to and found possession to and the value of the property and
insufficient and he does not forthwith file an shall render judgment in the alternative for the
approved bond, the property shall be delivered delivery thereof to the party entitled to the
to the applicant. If for any reason the property same, or for its value in case delivery cannot be
is not delivered to the applicant, the sheriff must made, and also for such damages as either
return it to the adverse party. party may prove, with costs.
Sec. 7. Proceedings where property claimed by Sec. 10. Judgment to include recovery against
third person. – If the property taken is claimed sureties. – The amount, if any, to be awarded to
by any third person other than the party against any party upon any bond filed in accordance
with the provisions of this Rule, shall be
claimed, ascertained, and granted under the Sec. 2. Comment. - A copy of the application
same procedure as prescribed in section 20 of and all supporting documents shall be served
Rule 57. upon the adverse party, who shall have five (5)
days to comment thereon unless a different
period is fixed by the court upon his motion.
Support Pendente Lite The comment shall be verified and shall be
Rule 61 accompanied by affidavits, depositions or other
authentic documents in support thereof.
Sec. 1. Application. - At the commencement of The application for support pendente lite is
the proper action or proceeding, or at any time responded to not by an answer but by a verified
prior to the judgment or final order, a verified comment accompanied by affidavits, depositions
application of support pendente lite may be or other authentic documents in support of the
filed by any party stating the grounds for the facts set forth in the comment.
claim and the financial conditions of both
parties, and accompanied by affidavits, Sec. 3. Hearing. - After the comment is filed, or
depositions or other authentic documents in after the expiration of the period for its filing,
support thereof. the application shall be set for hearing not more
than three (3) days thereafter. The facts in issue
shall be proved in the same manner as is
What is support pendente lite? provided for evidence on motions.
It is a provisional remedy which grants a person Hearing on the application is mandatory. It shall
entitled to support an amount enough for his be held not later than three (3) days from the
“sustenance, dwelling, clothing, medical receipt of the comment or from the expiration of
attendance, education and transportation” (Art. the period to file the same.
194, Family Code) while the action is pending
in court. It may be availed of by any of the Sec. 4. Order. - The court shall determine
parties in the action for support or in a provisionally the pertinent facts, and shall
proceeding where one of the reliefs sought is render such orders as justice and equity may
support for the applicant. The capacity of the require, having due regard to the probable
person who will provide the support and the outcome of the case and such other
needs of the one entitled to be supported are circumstances as may aid in the proper
taken into consideration in setting the amount of resolution of the question involved. If the
support to be granted. application is granted, the court shall fix the
amount of money to be provisionally paid or
Support pendente lite can be availed of at the such other forms of support as should be
commencement of the action or at any time provided, taking into account the necessities of
before the judgment or final order is rendered in the applicant and the resources or means of the
the action or proceeding. adverse party, and the terms of payment or
mode for providing the support, If the
The one claiming for support must establish application is denied, the principal case shall
before the court the relationship between the be tried and decided as early as possible.
parties as to entitle one to receive support from
the other. Ramos v. Court of Appeals
45 SCRA
The following are obliged to support each other:
Held: Where the trial court ruled that the claim
1. The spouses; of filiation and support has been adequately
2. Legitimate ascendants and descendants; proven, alimony pendente lite can be validly
3. Parents and their legitimate children and the granted pending appeal of such decision.
legitimate and illegitimate children of the latter; Trial court’s refusal to grant support pendente
4. Parents and their illegitimate children and the lite does not deprive the appellate court the
legitimate and illegitimate children of the latter; authority to grant the same especially so where,
and in view of the poverty of the child, it would be a
5. Legitimate brothers and sisters, whether of travesty of justice to refuse him support until the
the full or half-blood. ( Art. 195, Family Code) decision of the judge is sustained on appeal.
Sec. 7. Restitution. – When the judgment or
Reyes v. Ines-Luciano final order of the court finds that the person
81 SCRA who has been providing support pendente lite is
not liable therefor, it shall order the recipient
Facts: thereof to return to the former the amounts
Held: Where petitioner failed to present already paid with legal interest from the dates of
evidence on the alleged adultery of his wife actual payment, without prejudice to the right of
when the action for legal separation is heard on the recipient to obtain reimbursement in a
the merits, the grant of support pendente lite is separate action from the person legally obliged
valid. Adultery is a good defense and if properly to give support. Should the recipient fail to
proved and sustained will defeat the action. reimburse said amounts, the person who
However, the alleged adultery of the wife must provided the same may likewise seek
be established by competent evidence. Mere reimbursement thereof in a separate action from
allegation would not suffice to bar her from the person legally obliged to give such support.
receiving support pendente lite.
JUDGMENTS AND FINAL ORDERS
In determining the amount to be awarded as
support pendente lite it is not necessary to go FORM
fully into the merits of the case, it being
sufficient that the court ascertain the kind and Rule 36, Sec. 1. Rendition of final judgements
amount of evidence which it may deem and final orders. -- A judgement or final order
sufficient to enable it to justly resolve the determining the merits of the case shall be in
application, one way or the other, in view of the writing personally and directly prepared by the
merely provisional character of the resolution to judge, stating clearly and distinctly the facts and
be entered. Mere affidavits may satisfy the court the law on which it is based, signed by him, and
to pass upon the application for support filed with the clerk of court.
pendente lite. It is enough that the facts be
established by affidavits or other documentary Concept of Final Judgement and
evidence appearing in the record. Final Order
Sec. 5. Enforcement of order. – If the adverse Rule 41, Sec. 1. Subject of appeal. –
party fails to comply with an order granting An appeal may be taken from a
support pendente lite, the court shall, motu judgement or final order that
propio or upon motion, issue an order of completely disposes of the case, or of a
execution against him, without prejudice to his particular matter therein when declared
liability for contempt. by these Rules to be appealable.
When the person ordered to give
support pendente lite refuses or fails to do so, No appeal may be taken from:
any third person who furnished that support to
the applicant may, after due notice and hearing (a) An order denying a motion for new trial or
in the same case, obtain a writ of execution to reconsideration;
enforce his right of reimbursement against the (a) An order denying a petition for relief or any
person ordered to provide support. similar motion seeking relief from
judgement;
Sec. 6. Support in criminal cases. – In criminal (a) An interlocutory order;
actions where the civil liability includes support (a) An order disallowing or dismissing an
for the offspring as a consequence of the crime appeal;
and the civil aspect thereof has not been (a) An order denying a motion to set aside a
waived, reserved or instituted prior to its filing, judgement by consent, confession or
the accused may be ordered to provide support compromise on the ground of fraud, mistake
pendente lite to the child born to the offended or duress, or any other ground vitiating
party allegedly because of the crime. The consent;
application therefor may be filed successively (a) An order of execution;
by the offended party, her parents, grandparents (a) A judgement or final order for or against
or guardian and the State in accordance with one or more of several parties or in separate
the procedure established under this Rule. claims, counter-claims, cross-claims and
third-party complaints, while the main case
is pending, unless the court allows an No motion for extension of time to file a motion
appeal therefrom; and for new trial or reconsideration shall be allowed.
(a) An order dismissing an action without
prejudice. Rule 42, Sec. 1. How appeal taken; time for
filing – A party desiring to appeal from a
In all the above instances decision of the Regional Trial Court rendered in
where the judgement or final order is not the exercise of its appellate jurisdiction may file
appealable, the aggrieved party may file an a verified petition for review with the Court of
appropriate special civil action under Rule 65. Appeals, paying at the same time to the clerk of
said court the corresponding docket and other
Ceniza v. CA, 218 SCRA 390 lawful fees, depositing the amount of P 500.00
Facts: CA, in a resolution, dismissed for costs, and furnishing the Regional Trial
petitioner Ceniza’s appeal on the Court and the adverse party with a copy of the
ground of delayed filing of appellants’ petition. The petition shall be filed and served
brief. Issue here is WON this resolution within fifteen (15) days from notice of the
was a final order? decision sought to be reviewed or of the denial
Held: Yes. A final order or judgment is one w/c of petitioner’s motion for new trial or
either TERMINATES the action itself or reconsideration filed in due time after
operates to vest some right in such a manner as judgement. Upon proper motion and the
to put out of the power of the ct. making the payment of the full amount of the docket and
order to place in the parties in their original other lawful fees and the deposit for costs before
conditions. A final order disposes of the whole the expiration of the reglementary period, the
subject matter or terminates proceedings/action, Court of Appeals may grant an additional period
LEAVING NOTHING TO BE DONE BUT TO of fifteen (15) days only within which to file the
ENFORCE BY EXECUTION. However, a final petition for review. No further extension shall
order is appealable. be granted except for the most compelling
KINDS reason and in no case to exceed fifteen (15)
days.
As to finality
Entry of judgement
Rendition of Judgement
Rule 36, Sec. 2. Entry of judgements and final
Rule 36, Sec. 1, supra. orders. – If no appeal or motion for new trial or
reconsideration is filed within the time provided
Rule 40, Sec. 2. When to appeal. – An appeal in these Rules, the judgement or final order shall
may be taken within fifteen (15) days after forthwith be entered by the clerk in the book of
notice to the appellant of the judgement or final entries of judgements. The date of finality of the
order appealed from. Where a record on appeal judgement or final order shall be deemed to be
is required, the appellant shall file a notice of the date of its entry. The record shall contain
appeal and a record on appeal within thirty (30) the dispositive part of the judgement or final
days after notice of the judgement or final order. order and shall be signed by the clerk, with a
certificate that such judgement or final order has
The period of appeal shall be interrupted by a become final and executory.
timely motion for new trial or reconsideration.
No motion for extension of time to file a motion Rule 38, Sec. 3. Time for filing petition;
for new trial or reconsideration shall be allowed. contents and verification. – A petition provided
for in either of the preceding sections of this
Rule 41, Sec. 3. Period of ordinary appeal – Rule must be verified, filed within sixty (60)
The appeal shall be taken within fifteen (15) days after the petitioner learns of the judgement,
days from notice of the judgement or final order final order, or other proceeding to be set aside,
appealed from. Where a record on appeal is and not more than six (6) months after such
required, the appellant shall file a notice of judgement or final order was entered, or such
appeal and a record on appeal within thirty (30) proceeding was taken; and must be accompanied
days from notice of the judgement or final order. with affidavits showing the fraud, accident,
mistake, or excusable negligence relied upon,
The period of appeal shall be interrupted by a and the facts constituting the petitioner’s good
timely motion for new trial or reconsideration. and substantial cause of action or defense, as the
case may be.
Rule 33, Sec. 1. Demurrer to evidence. – After
Rule 39, Sec. 6. Execution by motion or by the plaintiff has completed the presentation of
independent action. – A final and executory his evidence, the defendant may move for
judgement or order may be executed on motion dismissal on the ground that upon the facts and
within five (5) years from the date of its entry. the law the plaintiff has shown no right to relief.
After the lapse of such time, and before it is If his motion is denied, he shall have the right to
barred by the statute of limitations, a judgement present evidence. If the motion is granted but
may be enforced by action. The revived on appeal the order of dismissal is reversed he
judgement may also be enforced by motion shall be deemed to have waived the right to
within five (5) years from the date of its entry present evidence.
and thereafter by action before it is barred by the
statute of limitations. Summary Judgements
Rule 39, Sec. 44. Entry of satisfaction of Sec. 1. Summary judgement for claimant. – A
judgement by clerk of court. – Satisfaction of a party seeking to recover upon a claim, counter-
judgement shall be entered by the clerk of court claim, or cross-claim or to obtain a declaratory
in the court docket, and in the execution book, relief may, at any time after the pleading in
upon he return of a writ of execution showing answer thereto has been served, move with
the full satisfaction of the judgement executed supporting affidavits, depositions or admissions
and acknowledged in the same manner as a for a summary judgement in his favor upon all
conveyance of real property by the judgement or any part thereof.
obligee or by his counsel unless a revocation of
his authority is filed, or upon the endorsement of Sec. 2. Summary judgement for defending
such admission by the judgement obligee or his party. – A party against whom a claim, counter-
counsel on the face of the record of the claim, or cross-claim is asserted or a declaratory
judgement. relief is sought may, at any time, move with
supporting affidavits, depositions or admissions
Sec. 45. Entry of satisfaction with or without for a summary judgement in his favor as to all or
admission. – Whenever a judgement is satisfied any part thereof.
in fact, or otherwise than upon an execution, on
demand of the judgement obligor, the judgement Sec. 3. Motion and proceedings thereon. – The
obligee or his counsel must execute and motion shall be served at least ten (10) days
acknowledge, or indorse, an admission of the before the time specified for the hearing. The
satisfaction as provided in the last preceding adverse party may serve opposing affidavits,
section, and after notice and upon motion the depositions, or admissions at least three (3) days
court may order either the judgement obligee or before the hearing. After the hearing, the
his counsel to do so, or may order the entry of judgement sought shall be rendered forthwith if
satisfaction to be made without such admission. the pleadings, supporting affidavits, depositions,
and admissions on file, show that, except as to
As to process of procuring the amount of damages, there is no genuine
issue as to any material fact and that the moving
Judgement of the Pleadings party is entitled to a judgement as a matter of
law.
Rule 34, Sec. 1. Judgement on the pleadings. –
Where an answer fails to tender an issue, or Sec. 4. Case not fully adjudicated on motion. –
otherwise admits the material allegations of the If on motion under this Rule, judgement is not
adverse party’s pleading, the court may, on rendered upon the whole case or for all the
motion of that party, direct judgement on such reliefs sought and a trial is necessary, the court
pleading. However, in actions for declaration of at the hearing of the motion, by examining the
nullity or annulment of marriage or for legal pleadings, and the evidence before it and by
separation, the material facts alleged in the interrogating counsel shall ascertain what
complaint shall always be proved. material facts exist without substantial
controversy and what are actually and in good
Judgement on Demurrer to Evidence faith controverted. It shall thereupon make an
order specifying the facts that appear without
substantial controversy, including the extent to
which the amount of damages or other relief is or from introducing evidence of physical or
not in controversy, and directing such further mental condition;
proceedings in the action as are just. The facts (a) An order striking out pleadings or parts
so specified shall be deemed established, and the thereof, or staying further proceedings until
trial shall be conducted on the controverted facts the order is obeyed, or dismissing the action
accordingly. or proceeding or any part thereof, or
rendering a judgement by default against
Sec. 5. Form of affidavits and supporting the disobedient party; and
papers. – Supporting and opposing affidavits (a) In lieu of any of the foregoing orders or in
shall be made on personal knowledge, shall set addition thereto, an order directing the
forth such facts as would be admissible in arrest of any party or agent of a party for
evidence, and shall show affirmatively that the disobeying any of such orders except an
affiant is competent to testify to the matters order to submit to a physical or mental
stated therein. Certified true copies of all papers examination.
or parts thereof referred to in the affidavit shall
be attached thereto or served therewith. Default Judgements
Sec. 6. Affidavits in bad faith. -- Should it Rule 9, Sec. 3. Default; declaration of. – If the
appear to its satisfaction at any time that any of defending party fails to answer within the time
the affidavits presented pursuant to this Rule are allowed therefor, the court shall, upon motion of
presented in bad faith, or solely for the purpose the claiming party with notice to the defending
of delay, the court shall forthwith order the party, and proof of such failure, declare the
offending party or counsel to pay to the other defending party in default. Thereupon, the court
party the amount of the reasonable expenses shall proceed to render judgement granting the
which the filing of the affidavits caused him to claimant such relief as his pleading may
incur, including attorney’s fees. It may, after warrant, unless the court in its discretion
hearing, further adjudge the offending party or requires the claimant to submit evidence. Such
counsel guilty of contempt. reception of evidence may be delegated to the
clerk of court.
Rule 29, Sec. 3. Other consequences. – If any
party or an officer or managing agent of a party (a) Effect of order of default. – A party in
refuses to obey an order made under section 1 of default shall be entitled to notice of
this Rule requiring him to answer designated subsequent proceedings but not to take part
questions, or an order under Rule 27 to produce in the trial.
any document or other thing for inspection, (a) Relief from order of default. – A party
copying, or photographing or to permit it to be declared in default may at any time after
done, or to permit entry upon land or other notice thereof and before judgement file a
property, or an order made under Rule 28 motion under oath to set aside the order of
requiring him to submit to a physical or mental default upon proper showing that his failure
examination, the court may make such orders in to answer was due to fraud, accident,
regard to the refusal as are just, and among mistake or excusable negligence and that he
others the following: has a meritorious defense. In such case, the
order of default may be set aside on such
(a) An order that the matters regarding which terms and conditions as the judge may
the questions were asked, or the character or impose in the interest of justice.
description of the thing or land, or the (a) Effect of partial default. – When a pleading
contents of the paper, or the physical or asserting a claim states a common cause of
mental condition of the party, or any other action against several defending parties,
designated facts shall be taken to be some of whom answer and the others fail to
established for the purposes of the action in do so, the court shall try the case against all
accordance with the claim of the party upon the answers thus filed and render
obtaining the order; judgement upon the evidence presented.
(a) An order refusing to allow the disobedient (a) Extent of relief to be awarded. – A
party to support or oppose designated claims judgement rendered against a party in
or defenses or prohibiting him from default shall not exceed the amount or be
introducing in evidence designated different in kind from that prayed for nor
documents or things or items of testimony, award unliquidated damages.
(a) Where no defaults allowed. – If the proper service of such interrogatories, the court
defending party in an action for annulment on motion and notice, may strike out all or any
or declaration of nullity of marriage or for part of any pleading of that party, or dismiss the
legal separation fails to answer, the court action or proceeding or any part thereof, or enter
shall order the prosecuting attorney to a judgement by default against that party, and in
investigate whether or not a collusion its discretion, order him to pay reasonable
between the parties exists, and if there is no expenses incurred by the other, including
collusion, to intervene for the State in order attorney’s fees.
to see to it that the evidence submitted is not
fabricated. As to parties
Motion to Dismiss (See Rule 16) Rule 9, Sec. 3 (c). Effect of partial default. –
When a pleading asserting a claim states a
Dismissals under Rule 17 (Dismissal common cause of action against several
of Actions) defending parties, some of whom answer and the
others fail to do so, the court shall try the case
Dismissals under Rule 18, Sec. 5 against all upon the answers thus filed and
render judgement upon the evidence presented.
Rule 18, Sec. 5. Effect of failure to appear. –
The failure of the plaintiff to appear when so Against entity without juridical personality
required pursuant to the next preceding section
shall be cause for dismissal of the action. The Rule 36, Sec. 6. Judgement against entity
dismissal shall be with prejudice, unless without juridical personality. – When judgement
otherwise ordered by the court. A similar failure is rendered against two or more persons sued as
on the part of the defendant shall be cause to an entity without juridical personality, the
allow the plaintiff to present his evidence ex judgement shall set out their individual or
parte and the court to render judgement on the proper names, if known.
basis thereof.
As to claims
Dismissals under Rule 29, Sec. 5
At various stages or separate judgements
Rule 29, Sec. 5. Failure of party to attend or
serve answers. – If a party or an officer or Rule 36, Sec. 5. Separate judgements. – When
managing agent of a party wilfully fails to more than one claim for relief is presented in an
appear before the officer who is to take his action, the court, at any stage, upon a
deposition, after being served with a proper determination of the issues material to a
notice, or fails to serve answers to particular claim and all counter-claims arising
interrogatories submitted under Rule 25 after out of the transaction or occurrence which is the
subject matter of the claim, may render a judgement for money by demanding from
separate judgement disposing of such claim. the judgement obligor the immediate
The judgement shall terminate the action with payment of the full amount stated in the
respect to the claim so disposed of and the action writ of execution and all lawful fees. The
shall proceed as to the remaining claims. In judgement obligor shall pay in cash,
case a separate judgement is rendered, the court certified bank check payable to the
by order may stay its enforcement until the judgement obligee, or any other form of
rendition of a subsequent judgement or payment acceptable to the latter, the amount
judgements and may prescribe such conditions of the judgement debt under proper receipt
as may be necessary to secured the benefit directly to the judgement obligee or his
thereof to the party in whose favor the authorized representative if present at the
judgement is rendered. time of payment. The lawful fees shall be
handed under proper receipt to the
Rule 31. Sec. 2. Separate trials. – The court, in executing sheriff who shall turn over the
furtherance of convenience or to avoid prejudice, said amount within the same day to the
may order a separate trial of any claim, cross- clerk of court of the court that issued the
claim, counter-claim, or third-party complaint, writ.
or of any separate issue or of any number of (a)
claims, cross-claims, counter-claims, third-party (a) If the judgement obligee or his authorized
complaints or issues. representative is not present to receive
payment, the judgement obligor shall
Rule 41, Sec. 1 (g). No appeal may be taken deliver the aforesaid payment to the
from: x x x x A judgement or final order for or executing sheriff. The latter shall turn over
against one or more of several parties or in all the amounts coming into his possession
separate claims, counter-claims, cross-claims within the same day to the clerk of court of
and third-party complaints, while the main case the court that issued the writ, or if the same
is pending, unless the court allows an appeal is not practicable, deposit said amounts to a
therefrom; and x x x x fiduciary account in the nearest government
depository bank of the Regional Trial Court
As to how executed of the locality. .
The clerk of said court shall thereafter
Judgements not stayed on appeal arrange for the remittance of the deposit to
the account of the court that issued the writ
Rule 39, Sec. 4. Judgements not stayed by whose clerk of court shall then deliver said
appeal. – Judgements in actions for injunction payment to the judgement obligee in
receivership, accounting, support, and such satisfaction of the judgement. The excess, if
other judgements as are now or may hereafter be any, shall be delivered to the judgement
declared to be immediately executory, shall be obligor while the lawful fees shall be
enforceable after their rendition and shall not be retained by the clerk of court for disposition
stayed by an appeal taken therefrom, unless as provided by law. In no case shall the
otherwise ordered by the trial court. On appeal executing sheriff demand that any payment
therefrom, the appellate court in its discretion by check be made payable to him.
may make an order suspending, modifying,
restoring or granting the injunction, (b) Satisfaction by levy. – If the judgement
receivership, accounting, or award of support. obligor cannot pay all or part of the
obligation in cash, certified bank check or
The stay of execution shall be upon such terms other mode of payment acceptable to the
as to bond or otherwise as may be considered judgement obligee, the officer shall levy
proper for the security or protection of the rights upon the properties of the judgement
of the adverse party. obligor of every kind and nature whatsoever
which may be disposed of for value and not
Judgements for money otherwise exempt from execution giving the
latter the option to immediately choose
Rule 39, Sec. 9. Execution of judgements for which property or part thereof may be levied
money, how enforced. – upon, sufficient to satisfy the judgement. If
the judgement obligor does not exercise the
(a) Immediate payment on demand. – The option, the officer shall first levy on the
officer shall enforce an execution of a personal properties, if any, and then on the
real properties if the personal properties are The executing sheriff shall observe the same
insufficient to answer for the judgement. procedure under paragraph (a) with respect to
(b) delivery of payment to the judgement obligee.
The sheriff shall sell only a sufficient portion of
the personal or real property of the judgement Judgements for specific acts
obligor which has been levied upon.
Rule 39, Sec. 10. Execution of judgements for
When there is more property of the judgement specific acts. –
obligor than is sufficient to satisfy the judgement
and lawful fees, he must sell only so much of the (a) Conveyance, delivery of deeds, or other
personal or real property as is sufficient to specific acts; vesting title. – If a judgement
satisfy the judgement and lawful fees. directs a party to execute a conveyance of
land or personal property, or to deliver
Real property, stocks, shares, debts, credits, and deeds or other documents, or to perform any
other personal property, may be levied upon in other specific act in connection therewith,
like manner and with like effect as under a writ and the party fails to comply within the time
of attachment. specified, the court may direct the act to be
done at the cost of the disobedient party by
(c) Garnishment of debts and credits. – The some other person appointed by the court
officer may levy on debts due the judgement and the act when so done shall have like
obligor and other credits, including bank effect as if done by the party. If real or
deposits, financial interests, royalties, personal property is situated within the
commissions and other personal property Philippines, the court in lieu of directing
not capable of manual delivery in the conveyance thereof may by an order divest
possession or control of third parties. Levy the title of any party and vest it in others,
shall be made by serving notice upon the which shall have the force and effect of a
person owing such debts or having in his conveyance executed in due form of law.
possession or control such credits to which
the judgement obligor is entitled. The (b) Sale of real or personal property. – If the
garnishment shall only cover such amount judgement be for the sale of real or personal
as will satisfy the judgement and all lawful property, to sell such property, describing it,
fees. and apply the proceeds in conformity with
the judgement.
The garnishee shall make a written report to the
court within five (5) days from service of the (c) Delivery or restitution of real property. –
notice of garnishment stating whether or not the The officer shall demand of the person
judgement obligor has sufficient funds or credits against whom the judgement for the
to satisfy the amount of judgement. If not, the delivery or restitution of real property is
report shall state how much funds or credits the rendered and all persons claiming rights
garnishee holds for the judgement obligor. The under him to peaceably vacate the property
garnished amount in cash, or certified bank within three (3) working days, and restore
check issued in the name of the judgement possession thereof to the judgement obligee;
obligee, shall be delivered directly to the otherwise, the officer shall oust all such
judgement obligee within ten (10) working days persons therefrom with the assistance, if
from service of notice on the said garnishee necessary, of appropriate peace officers, and
requiring such delivery, except the lawful fees employing such means as may be
which shall be paid directly to the court. reasonably necessary to retake possession,
and place the judgement obligee in
In the event there are two or more garnishees possession of such property. Any costs,
holding deposits or credits sufficient to satisfy damages, rents or profits awarded by the
the judgement, the judgement obligor, if judgement shall be satisfied in the same
available, shall have the right to indicate the manner as a judgement for money.
garnishee or garnishees who shall be required to
deliver the amount due; otherwise, the choice (d) Removal of improvements on property
shall be made by the judgement obligee. subject of execution. – When the property
subject of the execution contains
improvements constructed or planted by the
judgement obligor or his agent, the officer
shall not destroy, demolish or remove said successors in interest by title subsequent to
improvements except upon special order of the commencement of the action or special
the court, issued upon motion of the proceeding, litigating for the same thing
judgement oblige after due hearing and after and under the same title and in the same
the former has failed to remove the same capacity; and
within a reasonable time fixed by the court.
(c) In any other litigation between the same
(e) Delivery of personal property. – In parties or their successors in interest, that
judgements for the delivery of personal only is deemed to have been adjudged in a
property, the officer shall take possession of former judgement or final order which
the same and forthwith deliver it to the appears upon its face to have been so
party entitled thereto and satisfy any adjudged, or which was actually and
judgement for money as therein provided. necessarily included therein or necessary
thereto.
Special Judgements
Foreign
Rule 39, Sec. 11. Execution of special
judgements. – When a judgement requires the Rule 39, Sec. 48. Effect of foreign judgements
performance of any act other than those or final orders. – The effect of a judgement or
mentioned in the two preceding sections, a final order of a tribunal of a foreign country,
certified copy of the judgement shall be attached having jurisdiction to render the judgement or
to the writ of execution and shall be served by final order is as follows:
the officer upon the party against whom the
same is rendered, or upon any other person (a) In case of a judgement or final order upon a
required thereby, or by law, to obey the same, specific thing, the judgement or final order
and such party or person may be punished for is conclusive upon the title of the thing; and
contempt if he disobeys such judgement.
(b) In case of a judgement or final order against
Effect of Judgements and Final Orders a person, the judgement or final order is
presumptive evidence of a right as between
Local the parties and their successors in interest
by a subsequent title.
Rule 39, Sec. 47. Effect of judgements or final
orders. – The effect of a judgement or final order In either case, the judgement or final order may
rendered by a court of the Philippines, having be repelled by evidence of a want of jurisdiction,
jurisdiction to pronounce the judgement or final want of notice to the party, collusion, fraud, or
order, may be as follows: clear mistake of law or fact.
(a) In case of a judgement or final order against NOTES ON JUDGMENT AND FINAL
a specific thing, or in respect to the probate ORDERS:
of a will, or the administration of the estate
of a deceased person, or in respect to the Rule 36 § 1. Rendition of judgment and final
personal, political, or legal condition or orders. A judgment or final order determining
status of a particular person or his the merits of the case shall be:
relationship to another, the judgement or (1) in writing
final order is conclusive upon the title to the (2) personally and directly prepared by the judge
thing, the will or administration, or the (3) stating clearly and distinctly the facts and the
condition, status or relationship of the law on which it is based.
person; however, the probate of a will or (4) Signed by him
granting of letters of administration shall (5) And filed with the Clerk of Court.
only be prima facie evidence of the death of
the testator or intestate. Rule 36 § 3. Judgment for or against one or
more of several parties.
(b) In other cases, the judgement or final order Judgment is rendered in favor of party
is, with respect to the matter directly A; based on particular judgment is rendered
adjudged or as to any other matter that only against
could have been raised in relation thereto,
conclusive between the parties and their
Final order - Court has nothing else to do. Deed of Absolute Sale w/ mortgage
was executed. BUT Maysilo claimed
Order granting a MTD - a Final Order ownership over the land. Thus, Eternal
Only final orders and judgment are subjects of filed w/ the CFI a complaint for
appeal. Interlocutory orders are not subject of interpleader vs. Mission & Maysilo
appeal. Estate. It alleged that, in view of the
conflicting claims & to protect its
Rendition of judgment - upon the clerk receiving interests, defendants should be
the copy required to interplead & litigate
between themselves.
Book of entry of judgment - date of the lapse of
the fifteen (15) days; not on the date of entry. Mission filed a Motion for placing on
Book of satisfaction of judgment judicial deposit the amounts due &
unpaid fr. Eternal. Motion was DENIED.
The contract was declared ineffective
Entry of judgment - important for counting of
on the ground that the subject matter
petition for entry of judgment, among others. of the sale was not existing.
First Sense - terminates action
Second Sense of finality - final and executory. Mission then filed a Motion to
Dismiss the Interpleader. TC ordered
Eternal to comply w/ the contract
Final judgment under new rules - that which can EXCEPT w/ regard to the interpleader
already be executed of Maysilo Estate. Maysilo filed Motion
Nunc pro tunc - "then as now" for Recon w/c was GRANTED by the TC.
Hearings on the merits were ordered
Final & executory - even if ground is substantial BUT Mission filed for Writ of Execution.
can no longer be modified, except: This was DENIED. On appeal, CA
1. Clerical errors dismissed & this was affirmed by the
2. Nunc pro tunc SC. The order became final &
3. Annulment of judgment based on extrinsic executory.
fraud (Jep Management Co.) In 1983, heirs of Singson spouses
4. Void judgment (Paluwagan and Vda de filed an action for quieting of title
Macoy) a void judgment never prescribes. where Eternal & Mission were
defendants. This case is still pending.
Difference between Motion for Re-open and In the present case, Mission filed a
MNT (taken within the period for taking petition for certiorari w/ the CA for the
appeal): setting aside of RTC orders regarding
To re-open trial - make use of ordinary the setting of the hearing on the
prudence, rules on motions merits. CA dismissed BUT later on
MNT - extrinsic fraud - basis of the cause of reversed. Eternal filed a Motion for
action, performance of a contract Recon w/c was again DENIED.
Content of the action itself. Held: Courts have the power to
amend their judgments, to make them
Extrinsic Fraud - one of the parties prevented conformable to the applicable
the other by fraudulent acts to be given his day jurisprudence PROVIDED said
in court. judgments ARE NOT YET FINAL. In the
CAB, Eternal admitted it still has to
pay whoever will be declared as
owner. Therefore, there was no
Amendment of judgment plausible reason for petitioner’s
objections to the deposit order after
Before it becomes final and having asked the ct. by complaint for
interpleader whose deposit is not only
executory required but is a contractual
obligation.
Eternal Gardens Memorial v. IAC Finally, there is no res judicata
165 SCRA 439 here bec. there was no judgment on
Facts: A Land Development the merits. Also, there was no identity
Agreement was executed between of issues. One case involved the
Eternal & Mission. Mission owned the propriety of motion for recon w/o a
property & Eternal was to develop it hearing & the denial of the motion for
into a memorial park. Thereafter, a execution. The other case involved the
propriety of a CA order that Eternal Register of Deeds to issue separate
shall deposit what was required of it titles in favor of the two. Top
pending the trial on the merits. Management then filed this petition to
annul the orders of the TC on the
ground of extrinsic fraud. It claimed
After it becomes final and the it has title to the same parcel of
executory land w/c was being levied upon since
it bought the same fr. the heirs of
David v. CA< 214 SCRA 644 Greggy. The CA dismissed the petition
Facts: SUPRA for annulment.
Held: The filing of the petition for HELD: Extrinsic fraud is one the effect
relief fr. judgment w/ the TC was an of w/c PREVENTS a party fr. having a
unequivocal admission on Afable’s trial or real contest or fr. presenting all
part that his period to appeal fr. the of his case to the ct. or where it
decision had already expired. When a operates upon matters pertaining NOT
final judgment has become executory, TO THE JUDGMENT ITSELF but of the
it thereby becomes immutable & MANNER in w/c it was procured so that
unalterable. The judgment MAY NO there is not a fair submission of the
LONGER BE MODIFIED in any respect controversy.
even if the modification is meant to In other words, EXTRINSIC FRAUD
correct what is perceived to be an refers to any fraudulent act of the
erroneous conclusion of fact or law, & prevailing party in the litigation w/c is
regardless of whether the modification committed OUTSIDE OF THE TRIAL of
is attempted to be made by the ct. the case, whereby the defeated party
rendering it or by the highest ct. of the has been PREVENTED fr. exhibiting
land. FULLY his side of the case, by fraud,
The only recognized EXCEPTIONS deception or deception practiced upon
are: him by his opponent.
1. Correction of clerical errors The relief is granted on the theory
2. Judgment Nunc Pro Tunc that by reason of the extrinsic fraud
preventing a party fr. fully trying his
3. Where the judgment is VOID
case, there has never been a real
These are entries w/c cause NO INJURY contest before the ct. on the subject
to any party. matter of the action.
The allegations that the judge had
no jurisdiction to order the sheriff to
Judgments nunc pro tunc levy on execution since the judge had
full knowledge that Top Management
Cardoza v. Singson, 181 SCRA 45 & not Greggy who owned the land,
that the writ vs. the prop. was not
justified bec. Top Management was not
Annulment of judgment a party to the case--These DO NOT
CONSTITUTE FRAUD.
Top Management Programs v. CA Top Management has not pointed to
222 SCRA 763 any act w/c prevented it form fully
Facts: Gregorio promised to give a ventilating its case. If ever there was
large tract of land to Trinidad & Fajardo any failure in the presentation of its
if a case bet. Greggy & Velasquez case, it was caused by its own
regarding the lot will be successful. inaction.
Trini & Fajards then filed an action to
ENFORCE the agreement & the TC Paluwagan ng Bayan v. King, 172 SCRA 60
ruled in their favor. Trini & Fajards then
filed a motion for the issuance of a
Vda. De Macoy v. CA, 206 SCRA 244
writ of execution w/c was granted by
the TC. The Register of Deeds,
however, informed the ct. that the
deed of conveyance cannot be issued Motion for New Trial/Reconsideration
in favor of Trini & Fajards bec. the land
had already been sold to other Grounds and nature, Rule 37, Sec. 1
persons. However, the TC directed the
on newly discovered evidence (a
certification fr. a doctor that the
Motion for new trial, Rule 37, decedent can still properly
Sec. 1, par 1 communicate)
Distinguished from Motion to Held: For Velasco. There is no
reopen trial dispute that at the time the MNT was
filed, the reglementary period to
appeal had lapsed, & the decision had
Agulto v. CA, 181 SCRA 30 become final & executory. A judgment
Facts: Agulto was convicted of w/c has become final & executory can
bigamy. He filed a motion to reopen
no longer be altered & modified, mush
trial due to newly discovered evidence
less set aside by the ct. w/c rendered it
AFTER THE PARTIES HAD RESTED BUT
since such ct. has already lost
BEFORE JUDGMENT. His new evidence
jurisdiction over the case. Thereafter,
was a photocopy of a marriage
the power & prerogative to order
certificate of his second wife to
suspension of the rules of procedure is
another man. (His theory was that if
reposed, not in the ct. w/c had
his second wife had been previously
rendered such decision but rather in
married, he could not have validly
an appellate ct. & ultimately in the SC,
married her, therefore, no bigamy).
& then only upon a showing that
Held: The MNT may be filed AFTER otherwise the imperious demands of
judgment but w/in the period of substantial justice will be thwarted.
perfecting an appeal for the grounds
Where the reglementary period
stated in S1,R37 & S2R121.
to appeal had expired, the remedy is
A Motion to Reopen Trial may an MNT. If it has become final &
be presented only after either or both executory, one can file a petition for
parties have formally offered & closed relief under R 38 or a petition for
their evidence but BEFORE judgment. annulment of judgment.
The reopening of a trial for the
An MNT upon the ground of
reception of new evidence is not a
newly discovered evidence is properly
grant of a new trial. There is no
granted where there is concurrence of
specific provision in the rules w/c
the following requisites:
governs. It is only a recognized
procedural recourse deriving validity 1. the evidence had been
fr. long established rules. The discovered after trial;
governing rule is paramount interests 2. the evidence could not have
of justice resting entirely on the sound been discovered & produced during
judicial discretion of the trial ct.. trial even w/ exercise of reasonable
Therefore, the grant/denial is not diligence
subject to certiorari under grave abuse 3. the evidence is material &
of discretion. not merely corroborative, cumulative
On the merits, the SC decided or impeaching.
that the new evidence had defects & it What is essential is not so
failed to show that the 2nd wife's much the time when the evidence
marriage was still existing when she offered first sprang into existence not
married Agulto. the time when it first came to the
knowledge of the party now
Grounds submitting it; what is essential is,
rather, that the offering party had
exercised reasonable diligence in
Velasco v. Ortiz, 184 SCRA 303 seeking to locate such evidence
Facts: The ward of the spouses before or during trial but had not
Velasco was able to w/draw money of nonetheless failed to secure ( it must
the dead husband of P Velasco (the have been searched for but not found
latter was diagnosed as disabled). during trial. )
The ward argued that she was In the CAB, the new evidence
instructed by the decedent to w/draw was already presented as evidence in
money. The TC ruled in favor of a criminal case vs. the ward for
Velasco. Copy of the decision was falsification. Therefore, she had
given to the 1st counsel of the ward.
The NEW counsel filed an MNT based
already come across that evidence Effect of Motion for
before.
Extension of Time to File
Moreover, it is in the nature of
an impeaching evidence for it seeks See also Rule 41,
merely to weaken or controvert Sec. 3, par. 2; Rule 40, Sec. 2, par. 2
previous evidence; it is not material
or corroborative. Habaluyas v. Japson, 142 SCRA 208
This a resolution on a Motion for
Tumang v. CA 172 SCRA 332 Reconsideration on the SC's 2nd
Facts: Tumang filed for an annulment division decision.
of a deed of sale bec. there was no Held: In S 39 of BP 129, the period of
consideration. The trial ct. rule for her. appeal in the RTC was reduced fr. 30 to
The defendant filed an MFR & an MNT 15 days for appeals fr. final orders,
based on the ground that the decision resolution, awards, judgment or
was based on insufficiency of evidence decision. But only 48 hours for habeas
& that it was contrary to law. As corpus cases.
evidence, D presented receipts Only notice of appeal is
proving consideration. Tumang assails required. Record is not required
the decision of the CA w/c granted the except in (a) appeals in spl. proc.; (2)
motion of D by saying that it was where multiple appeals are allowed.
FORGOTTEN EVIDENCE (it had existed In these cases, the period is 30 days.
at trial & w/c could have been According to the Interim Rules, no
discovered by D if due diligence was appeal bond in necessary for appeal.
exercised. Its S 4 disallows a second MFR of a
Held: NEWLY DISCOVERED final order or judgment.
EVIDENCE: need not be newly created The purpose of such is to avoid
evidence. May & does commonly refer procedural delays. But the Rules does
to evidence already in existence prior not expressly prohibit a motion for
or during the trial but w/c could not extension of time to file a MFR of a
have been secured & presented during final order or judgment.
the trial despite reasonable diligence.
The interest of justice would be
FORGOTTEN EVIDENCE: evidence better served if the ruling in the
already in existence or available original decision (denying extension)
before or during the trial, w/c was were applied prospectively fr. the time
known to & obtainable by the party herein stated. It would be unfair to
offering it w/c could have been deprive parties of their right to appeal
presented seasonably were it not for simply bec. they availed themselves of
the oversight or forgetfulness of such a procedure w/c was not expressly
party or his counsel. prohibited or allowed by the law or
In the case at bar, the receipts Rules.
were found during a gen. cleaning, w/c On the other hand, an MNT or
goes to show that the it could hardly MFR is not a prerequisite to an appeal,
have been located w/ the exercise of a petition for review or a petition for
reasonable/average diligence. review on certiorari, & since the
The receipts are MATERIAL purpose is to expedite the final
bec. they are of such import that a disposition of cases, a strict but
reasonably prudent man would have prospective application of said ruling
searched for them. There would be a is in order
great benefit to D if he presents it in From June 30, 1986, the rule
trial, therefore, there is no reason why shall be strictly enforced that no
did not try to locate it. motion for extension of time to file an
MNT or MFR, may be filed w/ the MeTC,
Motion for reconsideration, Rule MTC, RTC, & IAC. Such a motion may
37, Sec. 1, par. 2 be filed only in cases pending w/ the
SC as the ct. of last resort, w/c may in
its sound discretion either grant or
Periods. Rule 37, Sec. 1 deny the extension requested.
In appeals in spl. proc. under R
For filing 109 & in other cases wherein multiple
appeals are allowed, a motion for Pro forma motion and its effects,
extension of time to file the record on
appeal may be filed w/in the Rule 37, Sec. 2, par. 4
reglementary period of 30 days. If the
ct. denies the motion for extension, Pojas v. Gozo-Dadole, 192 SCRA 575
the appeal must be taken w/in the Facts: The plaintiff filed a complaint
original period since such a motion for recovery of possession. The TC
does not suspend the period for ruled for the plaintiff & ordered the
appeal. defendant to vacate. The defendant
The TC may grant said motion filed an MFR BUT IT FAILED TO
after the expiration of the period for MENTION THE DAY THE MOTION IS TO
appeal provided it was filed w/in the BE RESOLVED (no notice of hearing).
original period. Later, the defendant filed a notice of
appeal.
Held: Notice of appeal denied. The
Not required for appeal MFR was a mere scrap of paper &
therefore, pro forma. It did not contain
Director of Lands v. Aquino, 192 SCRA 296 the day when the motion is to be
Facts: Abra Industrial applied for heard, violating S5 R15. As such it
registration of a piece of land w/c was does not suspend the running of the
granted. The Director opposed saying period of appeal. The notice of appeal
that the land was mineral & filed out of time.
unalienable. Within one year fr. the
issuance of the registration decree,
Director filed a petition for review the Action upon Motion for New Trial
decrees of registration.
Held: An MNT or MFR is not a pre- Options in general, Rule 37, Sec.
requisite to an appeal for review or 3
petition for review on certiorari. The Granting, Rule 37, Sec. 6
reglementary period for filing a
petition for review on certiorari in the Effect in general, Rule 37,
instant case was 30 days fr. notice of Sec. 5
order or judgment subject of review
w/c period, parenthetically, is now 15 Fernan v. CA, 142 SCRA 208
days pursuant to S 39 of BP129. The Facts: Fernan was suspected of
Director having been granted a total of having stolen a wallet. The TC ruled
60 days w/in w/c to file the petition, against the plaintiff store & awarded
the same was timely filed. damages to Fernan. The CA affirmed
the TC but upon the MFR of the
plaintiff, the TC was reversed.
Second Motion for New Held. The appeal of the store raises
Trial, Rule 37, Sec. 5, par. 1 no question of law but of fact Review
of facts is not a function of the CA. An
Second Motion for exception to this rule is when
Reconsideration, Rule 37, Sec. 5, par. 2 manifestly correct findings has been
For Resolution, Rule 37, Sec. 4 unwarrantedly rejected or reversed.
In the CAB, the CA reversed the TC.
These instances of conflict of findings
Contents of Motion for New Trial, Rule between the CA & TC is a basis of
37, Sec. 2 recourse to the SC.
There must be a showing on
In general, Rule 37, Sec. 2; see the face of the record of gross or
extraordinary misperception or
also Rule 15 manifest bias.
Motion for New Trial, Rule 37, In the CAB, there was no
Sec. 2, par. 2 substantial reason given by Fernan
Motion for Reconsideration, Rule refuting the assessment of the CA w/c
ruled that her testimony had
37, Sec. 2, par. 3 contradictions & inconsistencies.
Partial New Trials, Rule 37, Sec. Petition for relief from judgment- equitable
6, 7 remedy; only very highly discretionary on the
part of the court.
Denying
Remedies, Rule 37, Sec. Action to annul - separate action. Res judicata
9; Rule 41, Sec. 1 (a) may be raised.
Any kind of order for Petition for relief, if
granted, not appealable.
If not granted, not
NOTES ON MOTION FOR NEW TRIAL & appealable - only special civil actions
MOTION FOR RECONSIDERATION:
Meralco v. CA, 187 SCRA 200 David v CA, 214 SCRA 644
Facts: Meralco, after failing to appear Facts: An RTC decision was affirmed
at a pre-trial conference, was declared by CA w/ slight modification to reflect
in default. Thereafter, Meralco made the date for the computation of the
the following steps: 1) Filed a MFR to interest to be awarded. This was done
Lift Order of Default & to Vacate after denying the petitioner’s relief fr.
Judgment by Default - bec. of judgment.
counsel’s influenza. Denied. 2) Held: CA. In sustaining the RTC
Petition for Relief fr. Judgment . decision to deny the petition for relief
Dismissed. 3) Petition for Certiorari. fr. judgment the respondent Court
Propriety of this last action is the issue cannot at the same time modify the
in this case. decision sought to be overturned by
Held: Certiorari is not proper. Such such a petition. The filing of the
remedy had already been lost bec. of petition for relief fr. judgment w/ the
Meralco’s neglect or error in the choice trial ct. was an unequivocal admission
of remedies. Certiorari shall not lie to on the private respondent’s that his
shield Meralco fr. the adverse period to appeal fr. the decision had
consequences of such neglect or error. already expired. A petition for relief fr.
Relief under Rule 38 is of equitable judgment under Rule 38 presupposes
character & is allowed only in a final judgment or loss of the right to
exceptional cases where there is no appeal. The affirmance of the CA of
other available or adequate remedy. the denial of the petition is a
Meralco could have proceeded by confirmation of the existence of a final
appeal to vacate or modify the default & executory judgment. CA can neither
judgment. Relief will not be granted amend nor modify it. When a final
when the loss of remedy at law was judgment becomes executory it
due to his own negligence or a becomes immutable & unalterable,
mistaken mode of procedure, even if modification is meant to
otherwise the petition for relief will be correct an erroneous conclusion of fact
tantamount to the right of appeal or law. Only corrections of clerical
already. Further, when other lawyers errors or the making of so-called NUNC
could have appeared & moved for PRO TUNC entries & other judgment
postponement, sickness of counsel is w/c cause no prejudice to any party
not excusable. are the exceptions to this rule,
otherwise any other modifications of a fraud should be expressly alleged in
final & executory judgment is VOID. the affidavit of merit for the petition to
lie. The SC said that since in case at
bar, the spouses were able to allege
facts leading to extrinsic fraud,
Time for Filing, Rule 38, Sec. 3 express allegation of such is not
Strictly followed necessary.
Held: CA denied PFR for want of
First Integrated Bonding v. Hernando, 199 express allegation of extrinsic fraud.
SCRA 796 SC reversed saying that since Rule 38
Facts: FIB was impleaded as the Sec 3 (FAME as ground in affidavit of
insurance agency of defendant who merit for PFR) & that in case at bar,
figured in an accident killing one petitioners were able to show extrinsic
person. FIB failed to answer so it was fraud, affidavit is not necessary.
declared in default. FIB took no HELD: The affidavit of merit serves as
positive step to vacate the order of a jurisdictional basis for a ct. to
default. Instead it chose to file a entertain a petition for relief. But it
petition for relief fr. judgment almost admits of exceptions, i.e. Where the
five months fr. its receipt of copy of attachment of the affidavit of merit in
the amended decision. the petition for relief is unnecessary.
Held: The petition for relief fr. The affidavit of merit is essential bec.
judgment was filed out of time. The a new trial would be a waste of court’s
rules require that such petition should time if the complaint turned out to be
be filed w/in 60 days after receipt of groundless. Thus, where there was no
judgment & not more than six months jurisdiction over the defendant on the
after entry of judgment. Period subject matter of the action, where a
required by R 38 is non-extendible & judgment was taken by default before
never interrupted. It is not subject to defendant’s time to answer had
any cond. or contingency, bec. it is expired, where it was entertained by
itself devised to meet a condition or mistake, or was obtained by fraud &
contingency. The remedy under the other similar cases, as when the
Rule 38 was an act of grace, designed applicant had no notice of the trial, we
to give the party one last chance. ruled that an affidavit is not necessary.
Being in the position of one who begs,
such party’s privilege is not to impose When motion for reconsideration
conditions, haggle, or dilly-dally, but to
grab what is offered him. considered as petition for relief
MODES OF APPEAL
Ordinary Appeal Notice (1
Appeal)
Notice with
record of appeal (Multiple Appeal)
Appeal by Certiorari
Notice: Rule 65 is not an Appeal
Concept of an APPEAL
Errors of
jurisdiction Rule 65
Subject matter
Errors in the
exercise Appeal
Of
jurisdiction
Not applicable.
Discharge of
remedy
Interpleader Declaratory Certiorari Certiorari Prohibition Quo Expropriation Foreclosure of Partition Forcible Detainer Contempt
Relief (COMELEC Mandamus Warranto Real Estate Entry
and COA) Mortgage
Purpose Compel conflicting Declaration of
claimants to litigate rights and duties Division of real Protect judicial
their claims among (reformation of Taking of private Satisfy creditor property among the system from
themselves instrument, Correcting errors of jurisdiction Remove a usurper property for public based upon parties claiming Recover possession in fact unwarranted
quieting of title, use security rights thereto intrusion
consolidation of
ownership)
Requisites Conflicting Person has Judgment or Certiorari: A person Property A person Real property A person A person Direct contempt:
claims exist interest under final order has Any tribunal, board or officer usurps, owned by a owes another is owned by enjoys lawful lawfully A person
upon the a deed, will, been rendered exercising judicial or quasi judicial intrudes into, private party a loan several possession of takes behaved
same subject contract or by the functions has rendered judgment or unlawfully Taking by Loan is persons the property possession of improperly in
matter other written COMELEC Such tribunal, etc. has acted without holds or government secured by Person Another the land at the presence
Such claims instrument or the COA or in excess of its jurisdiction exercises for public use mortgage of claiming person the beginning or so near a
are made Person’s Aggrieved office, Just real property right to the acquires Such lawful court
upon a rights are party wants Prohibition: position, or compensatio Debtor property possession possession Such
person who affected by a the Proceedings in a tribunal, franchise n defaulted in does not of the same has ended misbehavior
claims no statute, judgment or corporation, board, officer or person A public payment want co- property by A demand to obstructed or
interest in the executive final order exercising judicial, quasi judicial or officer does Final demand ownership force, vacate has interrupted
subject order or reviewed by ministerial functions are conducted or suffers an has been to continue intimidation been made court
matter regulation, a higher without or in excess of its act which, by made , threat, proceedings
ordinance, or court jurisdiction the provision strategy or
any other of law, stealth Indirect contempt:
governmental Mandamus: constitutes a
regulation When any tribunal, corporation, ground for Misbehavior
No breach or board, officer or person unlawfully the forfeiture in
violation of neglects performance of an act which of his office; performance
the rights the law specifically enjoins An of official
has yet association functions
occurred Common requisite: acts as a Disobe-
There is no appeal or any plain, corporation dience to
speedy, and adequate remedy in the within the lawful court
ordinary course of law Philippines orders
without Abuse or
being unlawful
legally interference
incorporated with court
or without processes
lawful Improper
authority so conduct
to act which tends
to impede
administratio
n of justice
Pretending to
be a lawyer
or officer
Failure to
obey
subpoena
2. Pr Complaint is Action is 18 copies of Petition must be filed within 60 days Verified Verified Complaint
oc filed brought verified from notice of judgment petition in the complaint filed
Summons before petition shall Court orders respondents to file name of the filed, stating Court
ed served upon appropriate be filed within comment within 10 days from RP is filed right and ascertaines
ur parties RTC 30 days from receipt of order (Person purpose of amount due
e Parties files All persons notice of the Court may order filing of reply or claiming to expropriation to plaintiff
motion to affected made judgment or other responsive pleadings be entitled to Persons and renders
dismiss or parties final order Court may hear the case or require a public owning or judgment
answers the Notice to Sol If motion for parties to submit memoranda office or claiming to ordering
complaint Gen if new trial or Court either grants petition or position own any defendant to
Pre-trial validity of a recon- dismisses the same if it finds the usurped by interest pay within a
Court statue, sideration is same to be patently without merit, another may pertaining to within a
determines executive allowed, prosecuted manifestly for delay, or bring action the property period not
parties’ order or period to file that the questions raised are too in his own must be less than 90
respective regulation of petition is insubstantial to require consideration name) joined as days but not
rights and any other interrupted. If Certified copy of judgment is served Person at defendants more than
adjudicate governmental motion is upon the court, quasi-judicial whose Plaintiff may 120 days
their several regulation is denied, agency, tribunal, corporation, instance the enter If defendant
claims involved petition shall board, officer or person and petition is property after fails to pay,
Notice to be filed within disobedience thereto shall be brought pays filing foreclosure
Note: Docket fees prosecutor or remaining punished as contempt. costs and complaint sale ensues
paid by attorney of period, in no expenses and Costs
complainant LGU if case less than Respondent is depositing deducted
constitute a lien involving 5 days. notified with a from
upon subject matter validity of a Pay docket Court may government proceeds of
of the action local and other reduce depositary sale,
ordinance lawful fees periods for amount mortgagee
Court acts on and deposit of filing equivalent to paid amount
application P500 for costs pleadings to assessed due; if there
If during SC either secure most value of is excess in
pendency of orders respon- expeditious property the proceeds,
action there dents to file determination Defendants same is
occurs their comment of matters allowed to turned over
breach or if it finds involved in file to mortgagor
violation, petition the action objections If proceeds of
action is sufficient in Judgment is Court rules sale is not
converted form and rendered. on the issue sufficient to
into an substance or Court may of cover entire
ordinary dismisses the render expropriation indebtedness,
action petition if it judgment for , granting or deficiency
was filed costs against denying the judgment is
manifestly for petitioner, same rendered:
delay or the relator or If execution
questions person/s expropriation immediately
raised are too claiming to is granted, issues if
unsubstantial be a court whole debt is
Respondents corporation appoints due,
file comment Person notmore than otherwise,
SC either sets adjudged 3 mortagor
case for oral entitled to commisioners entitled to
Jurisdictio RTC RTC SC SC, CA, RTC, Sandiganbayan SC, CA, RTC
n