Civil-procedure-md.pdf

REMEDIAL LAW REVIEWER

PART III OF IX

ORDINARY CIVIL ACTIONS

A civil action may either be ordinary or special. Both are governed by the rules for ordinary civil actions, subject to the specific rules prescribed for a special civil action. (n) (b) A criminal action is one by which the State prosecutes a person for an act or omission punishable by law. (n) (c) A special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact. (2a, R2) Memorize! Civil action – one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong

MARK DE LEON, JD 2001

GENERAL PROVISIONS

Criminal action – one by which the State prosecutes a person for an act or omission punishable by law. Special proceeding – a remedy by which a party seeks to establish a status, a right, or a particular fact Special civil actions are called so because special rules govern.

RULE 1 Section 1. Title of the Rules. — xxx Sec. 2. In what courts applicable. — These Rules shall apply in all the courts, except as otherwise provided by the Supreme Court. (n) Sec. 3. Cases governed. — These Rules shall govern the procedure to be observed in actions, civil or criminal, and special proceedings. (a) A civil action is one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong. (1a, R2)

Sec. 4. In what cases not applicable. — These Rules shall not apply to election cases, land registration, cadastral, naturalization and insolvency proceedings, and other cases not herein provided for, except by analogy or in a suppletory character and whenever practicable and convenient. (R143a) Cases where the Rules apply only by analogy or suppletorily 1. election cases 2. land registration 3. cadastral 4. naturalization and

5. insolvency proceedings, and 6. other cases not herein provided for Sec. 5. Commencement of action. — A civil action is commenced by the filing of the original complaint in court. If an additional defendant is impleaded in a later pleading, the action is commenced with regard to him on the date of the filing of such later pleading, irrespective of whether the motion for its admission, if necessary, is denied by the court. (6a)   

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A civil action is commenced by the filing of the original complaint in court. Where the complaint is filed by registered mail, it is the actual date of mailing that is considered as the date of filing.

However, where the docket fee is subsequently paid, the date of such payment or the mailing of said amount thereof shall be considered as the date of the filing of the complaint. (Sun Ins. V. Asuncion).

In a cse filed for replevin and for purposes of determining the jurisdiction of the ocurt, the value of the personal property involved is controlling; the damages and attorney’s fees claimed are merely incidental. The filing if the complaint in court tolls the running of the prescriptive period.

Sec. 6. Construction. – These Rules shall be liberally construed in order to promote their objective of securing a just, speedy and inexpensive disposition of every action and proceeding. (2a) Memorize Sec.6. (Just, Speedy, Inexpensive – catch-all answer in the bar!) Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

CASES

CABRERA V. TIANO, 8 SCRA 542 (1963) FACTS: Josefina Potestas Cabrera and her sister Cresencia Potestas Omulon filed an action for “Partition and Recovery of Real Estate, with Damages against Mariano Tiano. Their complaint alleged that they were entitled to a portion of the land, since Josefina did not sign the Deed of Sale while Cresencia was a minor at the time of the sale. Tiano claimed that he was the absolute owner of the land by acquisitive prescription of 10yrs, from the date of purchase 02jul47. Plaintiffs commenced this case on 20jun57. Court issued summons on 21jun57. Defendant received the summons on 02jul57 which was incidentally, the end of the 10yr prescriptive period. The trial court declared that the plaintiffs are entitled each to 1/8 of the property in question plus P1,000 damages for both of them and P200 attorney’s fees. Defendant moved for recon and was denied. Defendant red to SC contending that prescription has already set in. He insists that the period should be counted from the date the summons was served on him. He claims that the judicial summons, which could civilly interrupt his possession, was received by him only of 02jul57. HELD: Civil actions are deemed commenced from date of the filing and docketing of the complaint with the Clerk of Court, without taking into account the issuance and service of summons. Commencement of the suit prior to the expiration of the prescriptive period, interrupts the prescription period. Mark de Leon, JD 2001

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SUN INSURANCE V. ASUNCION, 170 SCRA 274 (1989) FACTS: Petitioner Sun Insurance filed a complaint with the Makati RTC for the consignation of a premium refund on a fire insurance policy with prayer for the judicial declaration of its nullity against private respondent Manuey Uy Po Tiong. Private respondent was declared in default for failure to file the required answer within the reglementary period. Private respondent filed a compliant in the Quezon City RTC for the refund of premiums and the issuance of a writ of preliminary attachment. Only the amount of P210 was paid by private respondent as docket fee which prompted petitioner to raise objection. Upon order of the SC, the case was assigned to a different branch due to under-assessment of docket fees.

HELD: 1) It is not simply the filing of the complaint or appropriate initiatory pleading, but the payment of the prescribed docket fee, that vests a trial court with jurisdiction over the subject matter or nature of the action. Where the filing of the initiatory pleading is not accompanied by payment of the docket fee, the court may allow payment of the fee within a reasonable time but in no case beyond the applicable prescriptive or reglementary period. 2) Permissive counterclaims, third party claims and similar pleadings, shall not be considered filed until and unless the filing fee prescribed therefore is paid. The court may also allow payment of said fee within a reasonable time but also in no case beyond its applicable prescriptive or reglementary period. 3) If the judgment awards a claim not specified in the pleading, or if specified the same has been left for determination by the court, the additional filing fee therefor shall constitute a lien on the judgment.

The case was thereafter assigned to Judge Asuncion who required the parties to comment on the Clerk of Court’s letter-report signifying her difficulty in complying with the SC Resolution since the pleadings filed by private respondent did not indicate the exact amount sought to be recovered.

Escolin: There are some compulsory counterclaim that needs payment of docket fees, and some which does not.

Private respondent filed a Re-Amended complaint stating therein a claim of not less than 10M as actual compensatory damages in the prayer. However, the body of the amended complaint alleges actual and compensatory damages and atty’s fees in the total amount of about P44,601,623.70

FACTS: Gellada filed an action for damages against Hodges in the Iloilo CFI for some alleged defamatory statements of defendant against plaintiff. The defendant pointed out that the court cannot acquire jurisdiction over the case unless the corresponding docket fee is paid. CFI ruled against Hodges. CA affirmed CFI ruling.

Judge Asuncion issued another Order admitting the second amended complaint and stating that the same constituted proper compliance with the SC Resolution. Petitioner filed a petition for Certiorari with the CA questioning the order of Judge Asuncion. Private respondent filed a supplemental complaint alleging an additional claim of P20M as damages bringing the total claim to P64,601,623.70. CA denied petition and granted writ of prelim attachment.

HELD: SC reversed CA ruling. Filing fees should be paid in full for the court to acquire jurisdiction. Partial payment of docket fees prevents the court from acquiring jurisdiction and any proceeding undertaken thereafter is null and void.

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HODGES V. CA, GR 87617, 184 SCRA (1990)

SPOUSES DE LEON V. CA, 287 SCRA (1998) Mark de Leon, JD 2001

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FACTS: Private respondent Elayda filed in the Quezon City RTC a complaint for annulment or rescission of a contract of sale of 2 parcels of land against petitioners. The trial court held the fees should be based on the value of the property. CA reversed and held that the flat rate of P400 should be charged. HELD: An action for rescission of contract should be treated similar to an action for specific performance. An action for rescission of contract is one which cannot be estimated and therefore the docket fee for its filing should be the flat amount for actions incapable of pecuniary estimation, regardless of the value of the real property which is the subject of the contract. MANCHESTER DEVELOPMENT V. CA, 149 SCRA 562 (1987) Facts: Manchester filed an action for torts and damages and specific performance. Body of the complaint specified amount of damages, but the prayer did not. Complaint was amended deleting all amounts. Only after court order did complainant specify the amount, but still only in the body, not in the prayer. Said amended complaint was admitted. Held: In civil cases, all pleadings should specify in both the body and prayer the amount of damages sought. The court does not acquire jurisdictions until the proper docket fee has been paid. Where an action is both for specific performance and damages, the docket fees must be based on the total damages sought to be recovered, even if it is not spelled out in the prayer. Where the prayer clearly shows that the action was one for damages, there can be “no honest difference of opinion” as to the amount of filing fees. Where payment was insufficient and there was “no honest difference of opinion” as to the correct amount of filing fees, the court never acquired jurisdiction over the original complaint. There was thus no complaint to amend. Docket fees must be based on the original, not amended complaint. A case is deemed filed only upon Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

payment of the docket fee regardless of the actual date of filing in court. Henceforth, the amount sought to be recovered should be stated both in the body of the complaint and in prayer. Escolin: The SC in Manchester prohibited plaintiffs in civil cases from not specifying the amount of damages. MANUEL V. ALFECHE, 259 SCRA 475 (1996) Facts: Manuel filed a libel case against writer/author and editors of the newspaper Panay News. RTC found 3 people to be guilty but acquitted a fourth accused. However the civil indemnity by way of moral damages were dismissed for lack of jurisdiction. Complainant in a libel case, where the information stated the amount of moral damages, did not pay filing fees for the impliedly instituted civil action. Held: When a civil action is deemed impliedly instituted with the criminal, when the amount of damages, other than actual, is alleged in the complaint or information filed in court, then the corresponding filing fees shall be paid. However, when the amount of damages is not so alleged, filing fees need not be paid and shall simply constitute a first lien on the judgment, except in an award for actual damages (in every crime there is also civil liability. These are the actual damages. Thus they should not be charged docket fees). In no case shall filing fees for actual damages be collected. Manuel case is applicable to civil cases impliedly instituted with criminal cases. In purely civil actions, the Manchester ruling applies. de Leon: Note that under the Criminal Procedure Rules of 2000, filing fees for actual damages may be collected in case of cases for violation of BP 22. Mark de Leon, JD 2001

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CIVIL PROCEDURE

ORDINARY CIVIL ACTIONS (RULES 2-5)

Section 1. Ordinary civil actions, basis of. — Every ordinary civil action must be based on a cause of action. (n) Sec. 2. Cause of action, defined. — A cause of action is the act or omission by which a party violates a right of another. (n) Memorize!

CAUSE OF ACTION KINDS OF ACTIONS

cause of action – act or omission by which a party violates a right of another. Elements of cause of action:

REAL OR PERSONAL ACTION Real action – the subject matter of the action is real property (disputes about ownership, possession, and interest concerning real property) (e.g. foreclosure of real mortgage)

1. The legal right of the plaintiff 2. The correlative obligation of the defendant to respect that right; 3. An act or omission of the defendant in violation of said legal

Personal action – the subject matter of the action is personal property (e.g. foreclosure of chattel mortgage) Basis of cause of action: ACTION IN PERSONAM, IN REM, AND QUASI IN REM Action in personam – the decision is enforceable only against the parties (no extra-territorial service of summons) Action in rem – the decision is enforceable against the whole world (there is extra-territorial service of summons thru publication) Action quasi in rem - A real action may still be an action in personam. de Leon: is it proper to say that all special proceedings are actions in rem? RULE 2

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A cause of action must be based on a source of obligation: law, contract, quais-contract, delict or quais-delict.

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The existence of a cause of action is determined by the allegations in the complaint

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The remedy of the defendant against lack of cause of action is to file a motion to dismiss under Section 1(g), Rule 16.

Sec. 3. One suit for a single cause of action. — A party may not institute more than one suit for a single cause of action. (3a) Sec. 4. Splitting a single cause of action; effect of. — If two or more suits are instituted on the basis of the same cause of action, the filing Mark de Leon, JD 2001

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of one or a judgment upon the merits in any one is available as a ground for the dismissal of the others. (4a) cf grounds for MtD 

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Splitting a cause of action is the act of dividing a single cause of action, claim or demand into two or more parts, and bringing suit for one of such part and another suit for the other. It is the filing of separate complaints for these several reliefs that constitutes splitting up of the cause of action. If there are two of more suits are instituted on the basis of the same cause of action, only one should remain and the others must be dismissed on the grounf that there is another action pending between the same parties for the same cause (Sec. 1[e], Rule 16; If the first action has been already terminated, the action may be dismissed on the ground that the cause of action is barred by prior judgment or res judicata.

otherwise provided in these Rules, join as plaintiffs or be joined as defendants in one complaint, where any question of law or fact common to all such plaintiffs or to all such defendants may arise in the action; but the court may make such orders as may be just to prevent any plaintiff or defendant from being embarrassed or put to expense in connection with any proceedings in which he may have no interest. (6) Escolin: if there is joinder of parties, the cause of action asserted by all the plaintiffs must be based on a common question of law common to all plaintiffs or to all the defendants. 

Joinder of causes of action is meant the uniting of two or more demands or right of action in one action; the statement of more than one cause of action in a declaration.

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The joinder of separate causes of action is permissive, not mandatory

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Thus, petitions for adoption and for change for change of name cannot be joined there being no relation between between these two petitions, nor are they of the same nature and character, much less do they present any common question of fact or law. (Republic v. Hernandez)

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An action to compel recognition as a natural child and a claim to inheritance may be joined in one complaint. (Tayag v. CA, GR 95229).

Sec. 5. Joinder of causes of action. — A party may in one pleading assert, in the alternative or otherwise, as many causes of action as he may have against an opposing party, subject to the following conditions: (a) The party joining the causes of action shall comply with the rules on joinder of parties; cf Rule 3, Sec. 6 Sec. 6. Permissive joinder of parties. — All persons in whom or against whom any right to relief in respect to or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative, may, except as Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

(b) The joinder shall not include special civil actions or actions governed by special rules; e.g. forcible entry and unlawful detainer; actions governed by the rules on summary procedure (e.g. ejectment) Mark de Leon, JD 2001

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(c) Where the causes of action are between the same parties but pertain to different venues or jurisdictions, the joinder may be allowed in the Regional Trial Court provided one of the causes of action falls within the jurisdiction of said court and the venue lies therein; and Joiner of actions in different venues and jurisdictions must be in a RTC, not MTC (d) Where the claims in all the causes of action are principally for recovery of money, the aggregate amount claimed shall be the test of jurisdiction. (5a)  

TOTALITY RULE-

In the determination of the aggregate amount of the claims , the amount od interest, damages, of whatever kind,

Joiner of causes of action was introduced in the 1997 Rules of Civil Procedure. Memorize Section 5! A plaintiff can not split a single cause of action, but he may join several causes of action against the same defendant, subject to the following rules 1. must comply with the rules on joinder of parties 2. joinder shall not include special civil actions or actions governed by special rules (e.g. summary procedure) 3. where the causes of action are between the same parties but pertain to different venues or jurisdictions, the joinder may be allowed in the RTC provided Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

a. one of the causes of action falls within the jurisdiction of the RTC court and b. the venue lies within such RTC 4. where the claims in all the causes of action are principally for recovery of money, the aggregate amount claimed shall be the test of jurisdiction. Sec. 6. Misjoinder of causes of action. – Misjoinder of causes of action is not a ground for dismissal of an action. A misjoined cause of action may, on motion of a party or on the initiative of the court, be severed and proceeded with separately. (n) cf Rule 31, Sec. 2 Sec. 2. Separate trials. — The court, in furtherance of convenience or to avoid prejudice, may order a separate trial of any claim, cross-claim, counterclaim, or third-party complaint, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party complaints or issues. cf Rule 36, Sec. 5 Sec. 5. Separate judgments. — When more than one claim for relief is presented in an action, the court, at any stage, upon a determination of the issues material to a particular claim and all counterclaims arising out of the transaction or occurrence which is the subject matter of the claim, may render a separate judgment disposing of such claim. The judgment shall terminate the action with respect to the claim so disposed of and the action shall proceed as to the remaining claims. In case a separate judgment is rendered, the court by order may stay its enforcement until the rendition of a subsequent judgment or judgments and may prescribe such conditions as may be Mark de Leon, JD 2001

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necessary to secure the benefit thereof to the party in whose favor the judgment is rendered. (5a) cf Rule 41, Sec. 1 (g) Section 1. Subject of appeal. — An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by these Rules to be appealable. No appeal may be taken from: (g) A judgment or final order for or against one or more of several parties or in separate claims, counterclaims, cross-claims and third-party complaints, while the main case is pending, unless the court allows an appeal therefrom; xxx Escolin: A party generally can not appeal from a judgment on 1 cause of action in joined causes of action. He must file a leave of court before appealing, or wait for judgment from all other joined causes of action. CASES CITIZEN SURETY V. MELENCIO-HERRERA, 38 SCRA 369 (1971) FACTS: Spouses Dacanay were indebted to Citizens’ Surety Insurance. As security, the Dacanays mortgaged a parcel of land in Baguio. Since they were not able to pay said debt, the said lot was sold in a foreclosure sale. However, proceeds of the sale were insufficient to satisfy said debt. Thus Citizens’ Surety filed a complaint with the Manila CFI, seeking to recover the balance, plus 10% thereof as atty’s fees, and other costs. At petitioner’s request, respondent Judge caused summons to be made by publication in the Phils Herald. But despite the publication and Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

deposit of a prepaid copy of the complaint at the Manila Post Office, defendants did not appear within the period of 60days from last publication, as required by the summons. Plaintiff then asked that defendants be declared in default; but instead, respondent Judge asked it to show cause why the action should not be dismissed, the suit being in personam and the defendants not having appeared. Respondent Judge dismissed the case despite plaintiff’s argument that the summons by publication was sufficient and valid under sec16 Rule14 RRC. HELD: Where the action is in personam (e.g. action for deficiency judgment), the Court could not validly acquire jurisdiction on a nonappearing defendant, absent a personal service of summons. Without such personal service, any judgment on a non-appearing defendant would be violative of due process. Summons by publication cannot confer upon the court jurisdiction over said defendants, who does not voluntarily submit himself to the authority of the court. The proper recourse for a creditor is to locate properties, real or personal, of the resident defendant debtor and cause them to be attached, in which case, the attachment converts the action into a proceeding in rem or quasi in rem and the summons by publication may then accordingly be deemed valid and effective. The case should not be dismissed but should be held pending in the court's archives, until plaintiff succeeds in determining the whereabouts of the defendants' person or properties and causes valid summons to be served personally or by publication. Escolin: Citizen Surety could not have availed of summons by publication because this provision applies only to actions in rem or quasi in rem. He should have invoked Rule 57, Sec. 1 (f) to convert the action into quasi in rem Section 1. Grounds upon which attachment may issue. — At the commencement of the action or at any time before entry of Mark de Leon, JD 2001

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judgment, a plaintiff or any proper party may have the property of the adverse party attached as security for the satisfaction of any judgment that may be recovered in the following cases:

of action (i.e. default of the debtor). Such actions can not therefore be split or filed separately. The filing or judgment on one action will necessarily bar the filing of the other.

(f) In an action against a party who does not reside and is not found in the Philippines, or on whom summons may be served by publication.(1a)

INDUSTRIAL FINANCE CORP. V. APOSTOL, 177 SCRA 521 (1989)

BACHRACH MOTOR V. ICARAÑGAL, 68 PHIL 287 (1939) FACTS: Icarañgal, with Figueroa, for value received, executed in favor of Bachrach, a promissory note; and executed a real estate mortgage on a parcel of land in Laguna as security for the pro note. Thereafter, promissors defaulted in the payment of the agreed monthly installments. Bachrach instituted in the Manila CFI an action for the collection of the amount due. Judgment was rendered for the plaintiff. A writ of execution was issued and in pursuance thereof, the Laguna sheriff, at the indication of the plaintiff, levied on the properties of the defendants, including the mortgaged lot. The other defendant herein Oriental Commercial, interposed a thirdparty claim, alleging that by virtue of a writ of execution issued in a civil case in the municipal court of Manila City, the said lot had already been acquired by it at the public auction. Thus the sheriff desisted from the sale of the property and the judgment in favor of Bachrach remained unsatisfied. Bachrach then instituted an action to foreclose the mortgage. Trial court dismissed the complaint. Thus Bachrach took the present appeal. HELD: An action for a collection on a loan and an action for foreclosure of the mortgage that secures such loan are based on one a single cause Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

FACTS: Spouses Padilla bought on credit 3 units of Isuzu trucks from Industrial Transport & Equipment. They executed a prom note for the balance of the purchase price. This was secured by a chattel mortgage of said trucks and, as additional collateral, a real estate mortgage on their land. The Padillas failed to pay several installments on the prom note, the assignee Industrial Finance Corp. (IFC) sued them in the CFI for the recovery of the unpaid balance including attys fees. CFI ruled on 16Apr75 in favor of IFC. On appeal, CA sustained the CFI’s ruling except for modification of attys fees from 25% to 12% of the balance. Meanwhile on 09Sep71 private respondents Juan and Honorata Delmendo filed a complaint against IFC, as principal party, and the Padillas, as formal parties, in respondent CFI. The Delmendos alleged that they were the transferees of the real property which was mortgaged earlier by the Padillas to Ind’l Transport. The Delmendos prayed for the cancellation of the mortgaged lien annotated of the TCT and the delivery to them by petitioner of the owner’s copy of said title with damages and attys fees, considering that IFC waived its rights over the mortgage when it instituted a personal action against the Padillas for collection of sum of money. IFC moved for the dismissal of the complaint, contending that is has not waived its right over the mortgage lien. The Delmendos filed a motion Mark de Leon, JD 2001

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for summay judgment which the CFI granted. CFI ruled in favor of the Delmendos. IFC filed a MfR which was denied. Hence this petition. HELD: A mortgage creditor may elect to waive his security and instead bring an ordinary action to collect with the right to execute on all the properties of the debtor, including the subject-matter of the mortgage. If he fails in the collection suit, he can not thereafter foreclose on the mortgage. Escolin: In case of splitting of a single cause of action, the ground for dismissal is res judicata. Escolin: If there is one cause of action but two remedies, the plaintiff should have pleaded alternative remedies in his complaint. PROGRESSIVE DEVELOPMENT CORP. V. CA, 301 SCRA 637 (1999) Facts: Pursuant to a lease contract, for non-payment of rentals Progressive (lessor) repossessed the leased properties and seeks to auction-off movable property found therein. Westin Seafood Market (lessee) files a forcible entry case before the MTC against the lessor. Settlement was agreed upon which was reneged (meaning: go back on promise) by the plaintiff. Lessor seeks to auction-off lessee’s properties again. Lessee now files a case for damages with the RTC against the lessor. Lessor filed a MtD the damage suit on the ground of litis pendencia and forum shopping. Instead of ruling on the motion, Judge Santiago issued an order archiving the case pending the outcome of the forcible entry case being heard at the MeTC for the reason that “the damages is principally anchored on whether or not the defendants (petitioner herein) have committed forcible entry.” Petitioner moved for recon of the order and reiterated its motion to dismiss the damages suit. Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

Before petitioner’s MtD could be resolved, private respondent filed with the RTC an amended complaint for damages. Westin also filed an Urgent Ex-Parte Motion for the Issuance of a TRO and Motion for the Grant of a Prelimi Prohibitory and Prelim Mandatory Injunction. RTC denied petitioner’s MtD and admitted Westin’s amended complaint and granting the TRO. Progressive filed with CA a special civil action for certiorari and prohibition in the ground that Judge Santiago acted in excess of his jurisdiction and/or committed grave abuse of discretion amounting to lack of jurisdiction in admitting the amended complaint of Westin and issuing a restraining order against Progressive; in allowing private respondent to engage in forum shopping; and, taking cognizance of the action for damages despite lack of jurisdiction. CA dismissed the petition due to the failure of petitioner to file a MfR of Judge Santiago’s order, which it explained was a prerequisite to the institution of a petition for certiorari and prohibition. CA also found that the elements of litis pendencia were lacking to justify the dismissal of the action for damages with the RTC because despite the pendency of the forcible entry case with the MeTC the only damages recoverable thereat were those caused by the loss of the use and occupation of the property and not the kind of damages being claimed before the RTC which had no direct relation to loss of material possession. CA clarified that since the damages prayed for in the amended complaint with the RTC were those caused by the alleged high-handed manner with which petitioner reacquired possession of the leased premises and the sale of Westin’s movable found therein, the RTC and not the MeTC had jurisdiction over the action of damages. Petitioner filed petition for review on certiorari under Rule 45 alleging that CA erred in finding that petitioner failed to avail of its plain, speedy and adequate remedy of a prior MfR with the RTC; ruling that the trial judge did not act with grave abuse of discretion in taking cognizance of Mark de Leon, JD 2001

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the action for damages and injunction despite the pendency of the forcible entry case with the MeTC; and ruling that private respondent did not commit forum shopping since the causes of action before the RTC and MeTC were not identical with each other. Held: Petition is with merit. While generally a MfR must first be filed before resorting to certiorari in order to give the lower court an opportunity to correct the errors imputed to it, this rule admits of exceptions and is not intended to be applied without considering the circumatances of the case. The filing of the MfR before availing of the remedy of certiorari is not sine qua non when the issue raised is one purely of law, or where the error is patent or the disputed order is void, or questions raised on certiorari are the same as those already squarely presented to and passed upon the lower court. The MtD the action for damages with the RTC on the ground that another action for forcible entry was pending at the MeTC between that same parties involving the same matter and cause of action. Outrightly rejected by the RTC, the same issue was elevated by petitioner on certiorari before the CA. Clearly, any MfR on the trial court would have been a pointless exercise.

of the MTC. But if the claim is other than reasonable use of the property, it must be within the jurisdiction of the MTC. de Leon: Counterclaims for moral and exemplary damages in ejectment cases before the MTC should be within the the amounts prescribed for summary procedure. AGUSTIN V. BACALAN, 135 SCRA 340 (1985) Facts: Administrator of estate-lessor files a case for ejectment before the City Courts against the lessee. Lessee files counterclaim in excess of the City Court’s jurisdiction. City Court decides for plaintiff. On appeal, CFI rules for defendant and grants him damages. This became final. Plaintiff files separate for nullifying the CFI decision on the ground that the damages awarded was beyond the jurisdiction of the City Court.

Escolin: The SC was wrong. Previous jurisprudence ruled that in cases filed with the MTC, a compulsory counterclaim in excess of the jurisdiction of the MTC should be filed as a separate action, or if filed in the same action, the excess is waived.

Held: A counterclaim not presented in the lower court can not be entertained on appeal. Defendant is deemed to have waived his counterclaim in excess of the City Court’s jurisdiction. It is as though it has never been brought before City Court. It may not be entertained on appeal. The amount of judgment, therefore, obtained by the defendantappellee on appeal, cannot exceed the jurisdiction of the court in which the action began. Since the trial court did not acquire jurisdiction over the defendant's counterclaim in excess of the jurisdictional amount, the appellate court, likewise, acquired no jurisdiction over the same by its decisions or otherwise. When court transcends the limits prescribed for it by law and assumes to act where it has no jurisdiction, its adjudications will be utterly void and of no effect either as an estoppel or otherwise. The excess award of the CFI is therefore null and void. Action to declare nullity of award is proper. The award not in excess stands.

de Leon: Under Rule 70, if a claim in an ejectment case in the MTC is for reasonable use of the property, the claim may go beyond the jurisdiction

Escolin: A compulsory counterclaim beyond the jurisdiction of the court can be filed as a separate action.

The forcible entry and damages case arose from a single cause of action. Hence, the case for damages may be dismissed. Petition is granted. CA decision and order of RTC reversed and set aside. RTC directed to dismiss the damages case. MeTC directed to proceed with forcible entry case.

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Mark de Leon, JD 2001

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MACEDA V. CA, 176 SCRA (1989) Facts: Transferee of leased property files an ejectment case against the lessee. Lessee sets up counterclaim for reimbursement of renovation expenses, in excess of the MTC’s jurisdiction. MTC ejects lessee. RTC reinstates lessee and orders plaintiff to reimburse lessee. CA affirms RTC but deletes award of reimbursement. Held: MTC had no jurisdiction over the excess counterclaim. Hence, neither did the RTC. A counterclaim in excess of the limit may be pleaded only by way of defense to weaken the plaintiff's claim, but not to obtain affirmative relief. BAYANG V. CA, 148 SCRA 91 (1987) Facts: Pending a quieting of title case, defendant dispossesses the plaintiff. CA rules in favor of plaintiff. Plaintiff now files separate action for the fruits during the period of dispossession. Held: Ownership of the land and income from the land is a single cause of action in case of quieting of title. The claim for the income from the land was incidental to a claim for ownership of the land. During the whole period of dispossession, plaintiff made no move to amend his complaint to include a claim for the income supposedly received by the defendant. Failure to do so is res judicata to the subsequent case.

RULE 3 Section 1. Who may be parties; plaintiff and defendant. — Only natural or juridical persons, or entities authorized by law may be parties in a civil action. The term "plaintiff" may refer to the claiming party, the counter-claimant, the cross-claimant, or the third (fourth, etc.)-party plaintiff. The term "defendant" may refer to the original defending party, the defendant in a counterclaim, the crossdefendant, or the third (fourth, etc.)-party defendant. (1a) Sec. 2. Parties in interest. — A real party in interest is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by law or these Rules, every action must be prosecuted or defended in the name of the real party in interest. (2a) Memorize! real party in interest – the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit.

Escolin: Plaintiff should have filed a supplementary complaint after the defendant has dispossessed him.

Sec. 3. Representatives as parties. — Where the action is allowed to be prosecuted or defended by a representative or someone acting in a fiduciary capacity, the beneficiary shall be included in the title of the case and shall be deemed to be the real party in interest. A representative may be a trustee of an express trust, a guardian, an executor or administrator, or a party authorized by law or these Rules. An agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without joining the principal except when the contract involves things belonging to the principal. (3a)

PARTIES TO CIVIL ACTIONS

Sec. 4. Spouses as parties. — Husband and wife shall sue or be sued jointly, except as provided by law. (4a)

Famador: Compulsory counterclaims should be filed with the original case. Permissive counterclaims may be filed in a separate case.

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Sec. 5. Minor or incompetent persons. — A minor or a person alleged to be incompetent, may sue or be sued, with the assistance of his father, mother, guardian, or if he has none, a guardian ad litem. (5a)

indispensable parties — parties in interest without whom no final determination can be had of an action

Sec. 6. Permissive joinder of parties. — All persons in whom or against whom any right to relief in respect to or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative, may, except as otherwise provided in these Rules, join as plaintiffs or be joined as defendants in one complaint, where any question of law or fact common to all such plaintiffs or to all such defendants may arise in the action; but the court may make such orders as may be just to prevent any plaintiff or defendant from being embarrassed or put to expense in connection with any proceedings in which he may have no interest. (6)

Sec. 8. Necessary party. — A necessary party is one who is not indispensable but who ought to be joined as a party if complete relief is to be accorded as to those already parties, or for a complete determination or settlement of the claim subject of the action. (8a)

Memorize!

Failure to implead a necessary party is a waiver of the claim against such party. It is not ground to dismiss the case.

Rule on permissive joinder of parties – All persons in whom or against whom any right to relief in respect to or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative, may join as plaintiffs or be joined as defendants in one complaint, where any question of law or fact common to all such plaintiffs or to all such defendants may arise in the action Misjoinder of causes of action is not a ground to dismiss a case. The proper remedy is to sever the other cause of action and to try separately. Sec. 7. Compulsory joinder of indispensable parties. — Parties in interest without whom no final determination can be had of an action shall be joined either as plaintiffs or defendants. (7) Memorize! Key word “final”

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Failure to implead an indispensable party is ground to dismiss the case.

Memorize! Key word “complete” necessary party – one who is not indispensable but who ought to be joined as a party if complete relief is to be accorded as to those already parties, or for a complete determination or settlement of the claim subject of the action.

Sec. 9. Non-joinder of necessary parties to be pleaded. — Whenever in any pleading in which a claim is asserted a necessary party is not joined, the pleader shall set forth his name, if known, and shall state why he is omitted. Should the court find the reason for the omission unmeritorious, it may order the inclusion of the omitted necessary party if jurisdiction over his person may be obtained. The failure to comply with the order for his inclusion, without justifiable cause, shall be deemed a waiver of the claim against such party. The non-inclusion of a necessary party does not prevent the court from proceeding in the action, and the judgment rendered therein shall be without prejudice to the rights of such necessary party. (8a, 9a) Mark de Leon, JD 2001

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When necessary party not pleaded 1. the pleader shall set forth his name, if known, and shall state why he is omitted

the court finds to be sufficiently numerous and representative as to fully protect the interests of all concerned may sue or defend for the benefit of all. Any party in interest shall have the right to intervene to protect his individual interest. (12a)

2. Should the court find the reason for the omission unmeritorious, it may order the inclusion of the omitted necessary party if jurisdiction over his person may be obtained.

Memorize!

3. failure to comply with the order for his inclusion, without justifiable cause, shall be deemed a waiver of the claim against such party.

1. the subject matter of the controversy is one of common or general interest

4. The non-inclusion of a necessary party does not prevent the court from proceeding in the action, and the judgment rendered therein shall be without prejudice to the rights of such necessary party.

2. to many persons so numerous it is impracticable to join all as parties

Sec. 10. Unwilling co-plaintiff. — If the consent of any party who should be joined as plaintiff can not be obtained, he may be made a defendant and the reason therefor shall be stated in the complaint. (10) Sec. 11. Misjoinder and non-joinder of parties. — Neither misjoinder nor non-joinder of parties is ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action and on such terms as are just. Any claim against a misjoined party may be severed and proceeded with separately. (11a)

Requisites of a Class Suit

3. a number of them which the court finds to be sufficiently numerous and representative as to fully protect the interests of all concerned sues or defends for the benefit of all 4. Any party in interest shall have the right to intervene to protect his individual interest. Sec. 13. Alternative defendants. — Where the plaintiff is uncertain against who of several persons he is entitled to relief, he may join any or all of them as defendants in the alternative, although a right to relief against one may be inconsistent with a right of relief against the other. (13a)

de Leon: The non-joinder of a party which does not cause dismissal refers to necessary parties. Non-joinder of an indispensable party is a ground to dismiss the action.

Sec. 14. Unknown identity or name of defendant. — Whenever the identity or name of a defendant is unknown, he may be sued as the unknown owner, heir, devisee, or by such other designation as the case may require; when his identity or true name is discovered, the pleading must be amended accordingly. (14)

Sec. 12. Class suit. — When the subject matter of the controversy is one of common or general interest to many persons so numerous that it is impracticable to join all as parties, a number of them which

Sec. 15. Entity without juridical personality as defendant. — When two or more persons not organized as an entity with juridical

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personality enter into a transaction, they may be sued under the name by which they are generally or commonly known. In the answer of such defendant, the names and addresses of the persons composing said entity must all be revealed. (15a) cf Rule 14, Sec. 8 Sec. 8. Service upon entity without juridical personality. — When persons associated in an entity without juridical personality are sued under the name by which they are generally or commonly known, service may be effected upon all the defendants by serving upon any one of them, or upon the person in charge of the office or place of business maintained in such name. But such service shall not bind individually any person whose connection with the entity has, upon due notice, been severed before the action was brought. (9a) Chang Kai Shek v. CA, 172 SCRA 389 (1989) Facts: Dismissed teacher sues unincorporated school. Plaintiff tries to amend to implead school officials, but CFI dismissed the case. CA reverses. Held: The school can not invoke its non-compliance with the law to escape being sued. It is now in estoppel. Sec. 16. Death of party; duty of counsel. — Whenever a party to a pending action dies, and the claim is not thereby extinguished, it shall be the duty of his counsel to inform the court within thirty (30) days after such death of the fact thereof, and to give the name and address of his legal representative or representatives. Failure of counsel to comply with this duty shall be a ground for disciplinary action.

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The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor heirs. The court shall forthwith order said legal representative or representatives to appear and be substituted within a period of thirty (30) days from notice. If no legal representative is named by the counsel for the deceased party, or if the one so named shall fail to appear within the specified period, the court may order the opposing party, within a specified time, to procure the appointment of an executor or administrator for the estate of the deceased and the latter shall immediately appear for and on behalf of the deceased. The court charges in procuring such appointment, if defrayed by the opposing party, may be recovered as costs. (16a, 17a) Sec. 20. Action on contractual money claims. — When the action is for recovery of money arising from contract, express or implied, and the defendant dies before entry of final judgment in the court in which the action was pending at the time of such death, it shall not be dismissed but shall instead be allowed to continue until entry of final judgment. A favorable judgment obtained by the plaintiff therein shall be enforced in the manner especially provided in these Rules for prosecuting claims against the estate of a deceased person. (21a) Money claims are now not extinguished by the death of a party. The court can not cite in contempt a legal representative who refuses to appear in court. cf Rule 78, Sec. 6 which shows that the plaintiff-creditor may apply for letters of administration. Mark de Leon, JD 2001

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Rule 78 Letters Testamentary and of Administration, When and to Whom Issued Sec. 6. When and to whom letters of administration granted. – If no executor is named in the will, or the executor or executors are incompetent, refuse the trust, or fail to give bond, or a person dies intestate, administration shall be granted: (a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion of the court, or to such person as such surviving husband or wife, or next of kin, requests to have appointed, if competent and willing to serve; (b) If such surviving husband or wife, as the case may be, or next of kin, or the person selected by them, be incompetent or unwilling, or if the husband or widow, or next of kin, neglects for thirty (30) days after the death of the person to apply for administration or to request that administration be granted to some other person, it may be granted to one or more of the principal creditors, if competent and willing to serve; (c) If there is no such creditor competent and willing to serve, it may be granted to such other person as the court may select. “Next of kin” is someone who will inherit next to the spouse. The remedy in case conflict of interest where a creditor being appointed administrator is in Rule 86, Sec. 8, is to appoint a special administrator where the creditor appointed will have to file his claim. Rule 86 Claims Against Estate Sec. 8. Claim of executor or administrator against an estate. – If the executor or administrator has a claim against the estate he represents, he shall give notice thereof, in writing, to the court, and the court shall appoint a special administrator, who shall, in Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

the adjustment of such claim, have the same power and be subject to the same liability as the general administrator or executor in the settlement of other claims. The court may order the executor or administrator to pay to the special administrator necessary funds to defend such claim. If the plaintiff wins in a money claim, he must present a writ of execution with the probate court as a claim in the estate proceedings. If the plaintiff wins in a non-money claim, the writ of execution may be enforced without going to the probate court. cf Rule 39, Sec. 7 Rule 39, Execution Satisfaction and Effect of Judgments Sec. 7. Execution in case of death of party. — In case of the death of party, execution may issue or be enforced in the following manner: (a) In case of the death of the judgment obligee, upon the application of his executor or administrator, or successor in interest; (b) In case of the death of the judgment obligor, against his executor or administrator or successor in interest, if the judgment be for the recovery of real or personal property, or the enforcement of the lien thereon; (c) In case of the death of the judgment obligor, after execution is actually levied upon any of his property, the same may be sold for the satisfaction of the judgment obligation, and the officer making the sale shall account to the corresponding executor or administrator for any surplus in his hands. (7a)

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If the judgment creditor dies after the final judgment, the judgment will be executed upon initiative of the executor or administrator. If the judgment debtor dies after the final judgment, and the judgment is a real action or action for damages, the executor or administrator substitutes the decedent and judgment is executed. But if the case is for a sum of money, and if he dies before levy was executed, the judgment is filed as a claim before the estate proceedings. But if levy was already made, the sale of the property proceeds, the proceeds is delivered to the plaintiff and the excess is delivered to the executor/administrator. cf Rule 87, Sec. 1 Sec. 1. Actions which may and which may not be brought against executor or administrator. - No action upon a claim for the recovery of money or debt or interest thereon shall be commenced against the executor or administrator; but actions to recover real or personal property, or an interest therein, from the estate, or to enforce a lien thereon, and actions to recover damages for an injury to person or property, real or personal, may be commenced against him.

1. before a case is filed a. for recovery of a sum of money – file a claim before the estate proceedings, where the creditor will have to present evidence on the validity of his claim b. real action and action for damages – file a separate case against the executor/administrator 2. after a case is filed but before judgment a. for recovery of a sum of money – case shall not be dismissed but shall instead be allowed to continue until entry of final judgment; the judgment is then filed as a claim in the estate proceedings; Regalado, p. 101: Decedent’s legal representative should be substituted for the decedent. b. real action and action for damages 1)

heirs of the deceased may be allowed to be substituted, without requiring the appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor heirs.

2)

If no legal representative appears, the court may order the opposing party, within a specified time, to procure the appointment of an executor or administrator for the estate of the deceased and the latter shall immediately appear for and on behalf of the deceased. Priority to in the appointment to

If the defendant dies before a case may be filed 1. for recovery of sum of money – file a claim before the estate proceedings, where the creditor will have to present evidence on the validity of his claim; because the amount sought to be collected is definite 2. for recovery of property – file a separate case against the executor/administrator; because the amount of the claim is unliquidated 3. for damages for injury – file a separate case before the courts. de Leon’s Rules: (SUMMARY) If the defendant dies Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

a) Surviving spouse, or next of kin b) one or more of the principal creditors, if competent and willing to serve Mark de Leon, JD 2001

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c) other person as the court may select. 3)

in case conflict of interest where a creditor being appointed administrator is to appoint a special administrator where the creditor appointed will have to file his own claim

3. after judgment but before execution a. for sum of money – present the writ of execution as a claim before the probate court

Sec. 18. Incompetency or incapacity. — If a party becomes incompetent or incapacitated, the court, upon motion with notice, may allow the action to be continued by or against the incompetent or incapacitated person assisted by his legal guardian or guardian ad litem. (19a) Sec. 19. Transfer of interest. — In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. (20)

b. real action and action for damages – substitute the defendant with his administrator or executor, and enforce the writ against him without going to the probate court

Sec. 20. Action on contractual money claims. — xxx (moved to under Rule 3, Sec. 16)

4. after levy on execution (applies only to recovery of a sum of money) – continue with the auction sale and the officer making the sale shall deliver the proceeds to the plaintiff, and account to the executor or administrator for any excess

Sec. 21. Indigent party. — A party may be authorized to litigate his action, claim or defense as an indigent if the court, upon an ex parte application and hearing, is satisfied that the party is one who has no money or property sufficient and available for food, shelter and basic necessities for himself and his family.

Sec. 17. Death or separation of a party who is a public officer. — When a public officer is a party in an action in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action may be continued and maintained by or against his successor if, within thirty (30) days after the successor takes office or such time as may be granted by the court, it is satisfactorily shown to the court by any party that there is a substantial need for continuing or maintaining it and that the successor adopts or continues or threatens to adopt or continue the action of his predecessor. Before a substitution is made, the party or officer to be affected, unless expressly assenting thereto, shall be given reasonable notice of the application therefor and accorded an opportunity to be heard. (18a)

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Such authority shall include an exemption from payment of docket and other lawful fees, and of transcripts of stenographic notes which the court may order to be furnished him. The amount of the docket and other lawful fees which the indigent was exempted from paying shall be a lien on any judgment rendered in the case favorable to the indigent, unless the court otherwise provides. Any adverse party may contest the grant of such authority at any time before judgment is rendered by the trial court. If the court should determine after hearing that the party declared as an indigent is in fact a person with sufficient income or property, the proper docket and other lawful fees shall be assessed and collected by the clerk of court. If payment is not made within the time fixed by the Mark de Leon, JD 2001

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court, execution shall issue for the payment thereof, without prejudice to such other sanctions as the court may impose. (22a) Indigent party — one who has no money or property sufficient and available for food, shelter and basic necessities for himself and his family. Sec. 22. Notice to the Solicitor General. — In any action involving the validity of any treaty, law, ordinance, executive order, presidential decree, rules or regulations, the court, in its discretion, may require the appearance of the Solicitor General who may be heard in person or through a representative duly designated by him. (23a) CASES JUASING HARDWARE V. MENDOZA, 115 SCRA 783 (1982) FACTS Juasing Hardware, single proprietorship owned by Ong Bon Yong, filed a complaint for the collection of a sum of money against Pilar Dolla. The case proceeded to pre-trial and trial. After plaintiff presented its evidence and rested its case, defendant filed a Motion for Dismissal of Action (Demurrer to Evidence) praying that the action be dismissed for the plaintiff’s lack of capacity to sue. Defendant in said Motion contended that plaintiff Juasing is a single prop, not a corp or partnership duly registered in accordance with law and therefor is not a juridical person with legal capacity to bring an action in court. Juasing filed an Opposition and moved for the admission of an Amended Complaint. CFI Judge dismissed the case and denied admission of Amended Complaint. HELD Correction of the designation of the plaintiff (from name of sole proprietorship to name of individual owner) is merely formal, not substantial, and hence may be corrected at any stage of the action. Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

CHANG KAI SHEK V. CA, 172 SCRA 389 (1989) FACTS Fausta Oh was abruptly dismissed for no apparent or given reason from her teaching job in Chang Kai Shek School. Fausta sued and demanded separation pay, SSS benefits, salary differentials, maternity benefits, moral and exemplary damages. Chang Kai Shek filed MtD on the ground that it could not be sued. Complaint was amended. Certain school officials were also impleaded to make them solidarily liable with the school. CFI dismissed the complaint. On appeal, CA set aside CFI decision and held the school suable and liable while absolving the school officials. MfR was denied. The school then came to SC in a petition for review on certiorari. HELD An unincorporated entity sued as such can not invoke its noncompliance with the law to escape being sued. It is now in estoppel. Petition denied. CA decision affirmed. HANG LUNG BANK V. SAULOG, 201 SCRA 137 (1991) FACTS Hang Lung Bank (HLB), foreign corp not doing business in the Phils, entered into 2 continuing guarantee agreements with Cordova Chin San (CCS) in HK whereby CCS agreed to pay on demand all sums of money which may be due the bank from Worlder Enterprises (WE). WE having defaulted in its payment, HLB filed a collection suit against WE and CCS in the HK SC. Thereafter, HLB sent a demand letter to CCS at his Phils address but again, no response was made thereto. Hence HLB instituted in the Makati RTC an action seeking enforcement of its just and valid claims. CCS raised in his answer to the complaint the affirmative defenses of; lack of cause of action, incapacity to sue, and improper venue.

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A day before pre-trial, CCS filed MtD on grounds that HLB had no legal capacity to sue and that venue is improper. RTC granted the MtD. HLB filed MfR but was denied. Hence the instant petition for certiorari seeking reversal of said orders. HELD License as a requirement for a foreign corporation to sue applies only to foreign corporations doing business in the Philippines. “Isolated Transaction Rule” – unlicensed foreign corporation not doing business may sue on an isolated transaction. RTC orders set aside. Case reinstated and RTC is directed to proceed with the disposition of the case.

Held: The defendant is estopped to deny the capacity of the foreign corporation to sue, having dealt with the corporation. USA V. REYES, 219 SCRA 192 (1993)

COMMISSIONER OF CUSTOMS V. KMK GANI, 182 SCRA 591 (1990)

The doctrine of immunity from suit will not apply and may not be invoked where the public official is being sued in his private and personal capacity as an ordinary citizen. The cloak of protection afforded the officers and agents of the government is removed the moment they are sued in their individual capacity. This situation usually arises where the public official acts without authority or in excess of the powers vested in him. A public official may be liable in his personal private capacity for whatever damage he may have caused by his act done with malice and in bad faith, or beyond the scope of his authority or jurisdiction.

Unlicensed foreign corporations not engaged in business may sue in the Philippines based on an isolated transaction. Fact of not doing business must be alleged in the suit.

FLORES V. MALLARE-PHILIPS, 144 SCRA 377 (1986)

Escolin: In Commissioner of Customs, KMK’s personality was not recognized because it was not able to prove that it was a duly formed corporation by presenting a certification from the government of its country of origin. Unlike in Hang Lung, the foreign corporation was able to prove its corporate existence under the foreign law. de Leon: Even if a plaintiff foreign entity is not required to obtain a license because it is not doing business, it must still prove its due incorporation in its country of origin. MERRILL LYNCH V. CA, 211 SCRA 824 (1992) Facts: Unlicensed foreign corporation sues for recovery of money. They were doing business in the Philippines. Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

Facts: Plaintiff files 1 complaint against 2 distinct defendants before the RTC under distinct separate causes of action. Total amount of the claim is with RTC jurisdiction, but individual claim is under MTC jurisdiction. RTC dismisses the complaint . Held: In cases of joinder of causes of action, the amount of the demand shall be the totality of the claims in all the causes of action irrespective of whether the causes of action arose out of the same or different transactions. In cases of permissive joinder of parties, whether as plaintiffs or as defendants, the total of all the claims shall now furnish the jurisdictional test. However, there should be a proper joinder of parties for the totality rule to apply. In this case, the 2 causes of action did not arise out of the same transaction or series of transactions and there was not common question of law or fact. There was improper joining of parties, hence the totality rule does not apply. MTC has jurisdiction. Mark de Leon, JD 2001 - 20 -

RALLA V. RALLA, 199 SCRA 495 (1991) Facts: Validly disinherited son (Pedro) sues for annulment of sale of property from the decedent to another heir. Held: The disinherited son has no legal standing to question the validity of the sale. He is not a real party in interest as he does not stand to be benefited or injured by the judgment or a party entitled to the avails of the suit. “Interest” means material interest. MANSION BISCUIT V. CA, 250 SCRA 195 (1995) FACTS Ty Teck Suan, as Pres of Edward Ty Brothers Corp (ETB Corp), ordered cartons of nutri-wafers from Mansion Biscuit Corp. B4 delivery of goods on nov81, Ty issued to Ang Cho Hong, pres of Mansion, 4 postdated checks. 4 other PD checks were issued by Ty with Siy Gui as co-signor in dec81. Mansion delivered the good. First 4 PD checks were deposited but were dishonored due to ISF. Ang informed Ty of the dishonor and asked him to replace the checks with cash or good checks. Ang sent a formal demand letter. Thereafter, the second batch of checks were deposited but was also dishonored. Mansion then filed a crim case for violation of BP22 in Valenzuela RTC. Ty pleaded not guilty. Ang filed a verified motion for the issuance of a writ of attachment. After prosecution rested its case, Ty filed a MtD by way of demurrer to evidence, which Siy adopted as his own. RTC granted the MtD stating that the stare decisis in these cases where the check is issued as part of an agreement to guarantee or secure payment of an obligation, whether pre-existing or not, the drawer is not criminally liable for either Estafa or Violation of BP22. Both accused are found not guilty. Order of Attachment set aside. Prosecution then filed MfR and for clarification as to the civil aspect of the crim actions. MfR was denied.

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Mansion filed certiorari and injunction with the CA questioning RTC’s setting aside of the order of attachment. CA annulled and set aside the portion of the order which set aside the Order of Attachment. Mansion filed another appeal with the CA assailing RTC’s ruling absolving defendants from civil liability. While appeal was pending, Ty died. MtD the appeal was filed. CA denied MtD and granted the substitution of Ty’s children. CA dismissed the appeal filed by Mansion for lack of merit. CA held that civil liab sought to be enforced by Mansion was not the personal liab of Ty but a contractual liab of ETB Corp. The civil liab of ETB Corp to Mansion was not litigated and resolved in the crim cases because ETB Corp was not a party thereto. CA held that a separate civil action should be instituted by Mansion against ETB Corp. HELD Death of the accused pending appeal of his conviction extinguishes his criminal liability as well as the civil liability based solely thereon. However, the claim for civil liability survives, if the same may also be predicated on a source of obligation other than delict. Where the civil liability survives, an action for recovery therefor may be pursued but only by way of filing a separate civil action against the executor/administrator or the estate of the accused, depending on the source of obligation. In cases where in the civil action is impliedly instituted with the criminal action, the statute of limitations on the civil liability is deemed interrupted during the pendency of the criminal case. NUÑAL V. CA, 221 SCRA 26 (1993) Facts: Frank and Mary had children, one of whom was Mary Lyon Martin. They also owned a parcel of land. They died. Luisa Lyon Nuñal was in possession of the land. Emma Lyon de Leon in her behalf and as guardian ad litem of the minor heirs of Frank and Mary (but not including Mary Mark de Leon, JD 2001

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Lyon Martin) sued Luisa Lyon, now deceased and herein represented by her heirs, for partition and accounting. CFI ordered the partition but dismissed the complaint for accounting. Affirmed by the CA, with a finding that Mary Lyon Martin was a child of Frank and Mary, but the order of partitioning did not include Mary Lyon Martin. Decision became final and writ of execution was issued. Thereafter, Mary Lyon Martin filed a motion to quash the order of execution with preliminary injunction. Eventually, the lower court ordered the inclusion of Mary Lyon Martin in the partitioning as a coowner, invoking the fact that the earlier decision had a finding that Mary Lyon Martin is one of the children of Frank and Mary. CA affirms. Held: When a final judgment becomes executory, it thereby becomes immutable and unalterable. The judgment may no longer be modified in any respect, even if the modification is meant to correct what is perceived to be an erroneous conclusion of fact or law, and regardless of whether the modification is attempted to be made by the Court rendering it or by the highest Court of land. The only recognized exceptions are the correction of clerical errors or the making of so-called nunc pro tunc entries which cause no prejudice to any party, and, of course, where the judgment is void. Any amendment. or alteration which substantially affects a final and executory judgment is null and void for lack of jurisdiction, including the entire proceedings held for that purpose. In the case at bar, the decision of the trial court has become final and executory. Thus, upon its finality, the trial judge lost his jurisdiction over the case. Consequently, any modification that he would make, as in this case, the inclusion of Mary Lyon Martin would be in excess of his authority. The remedy of Mary Lyon Martin is to file an independent suit against the parties and all other heirs for her share in the subject property, in order that all the parties in interest can prove their respective claims. Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

Escolin: Once a judgment has been rendered, even if it is not yet final, intervention may no longer be allowed. It is not necessary for the judgment of partition be final before the excluded heir may not be allowed to intervene. cf Rule 19, Sec. 2 Sec. 2. Time to intervene. - The motion to intervene may be filed at any time before rendition of judgment by the trial court. xxx ROBLES V. CA, 83 SCRA 180 (1978) Facts: Heirs sign power of attorney authorizing an heir to sell land inherited. One heir did not sign. The land was sold and registered. Excluded heir now sues the buyer and the RoD to “cancel” the buyer’s title. TC dismisses the case on ground that the vendors should have been impleaded as an indispensable party Held: The action is not really one for cancellation of title, but really one questioning RoD’s acceptance of the PoA as a Declaration of heirship. The vendors are not indispensable parties. The action for cancellation pertains only to plaintiff’s rights as an excluded heir, and does not affect the rights and interests of the vendors. In reality, plaintiff’s action is one of legal redemption where the vendors are clearly not indispensable parties. Besides, the defendant RoD had the option of impleading the vendors as 3rd party defendants if he wanted to. IMSON V. CA, 239 SCRA 58 (1994) Facts: Plaintiff sues for damages from a vehicular accident. Beneficial owner and the driver were declared in default. Compromise was reached with the insurer and the claim against him was withdrawn. Registered owners now seek dismissal of the claims against them as well.

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Held: The case should proceed. The rule is dismissal of the case against an indispensable party results in dismissal of the case against the other indispensable parties. The insurer is merely a necessary party. Dismissal of the case against him will not result to dismissal of the claim against the other defendants. Escolin: The insurer is not an indispensable party to the case. The only indispensable party here is the driver of the truck. All the others are mere necessary parties. MINA V. PACSON, 6 SCRA 775 (1963) Facts: Plaintiffs Mina are the illegitimate children of Joaquin Mina. Joaquin executed a two deeds of absolute sale to Crispino Medina and Cresencia Mina (legitimate child). These deeds bear the conformity of Joaquin’s wife Antonia. Joaquin died in 1958. Plainitffs Mina sued Crispino and Cresencia for declaration of nullity of the deeds of sale and that defendants be required to deliver to plaintiffs ¼ of said properties together with moral damages (1st case). The RTC directed plaintiffs to amend their complaint to include Antonia and other intestate heirs of Joaquin. Plaintiffs failed to comply, so 1st case was dismissed. Thereafter plainitffs Mina brought another action with the same pleading with an additional prayer for recognition as Joaquin’s illegitimate children (2 nd case). Defendants filed a MTD on the ground of res judicata. The court thereby dismissed the 2nd case. Plaintiffs now contend that there is no res judicata because the 1st dismissal was void. Held: To order an amendment to a complaint within a certain period in order to implead as party plaintiff or defendant one who is not a party to the case lies within the discretion of the Court. Where it appears that the person to be impleaded is an indispensable party, the party to whom such order is directed has no other choice but to comply with it. His Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

refusal or failure to comply with the order is a ground for the dismissal of his complaint and is res judicata to a 2nd complaint. CASENAS V. ROSALES, 19 SCRA 463 (1967) Facts: Arañas and Caseñas filed a complaint for specific performance and enforcement of their alleged right under a certain deed of sale, and damages against the spouses Rosales. After answer has been filed and before trial, counsel for plaintiffs informed the trial court that plaintiff Arañas and defendant Rosales had both died. The lower court directed the surviving plaintiff, Caseñas, to amend the complaint to effect the necessary substitution of parties thereon. Caseñas failed to do this, so the TC dismissed the case. The dismissal became final. Thereafter, Caseñas filed another complaint against the widow Rosales and heirs of the late Rosales "to quiet, and for reconveyance of, title to real property, with damages." This suit referred itself to the very same property litigated in the previous dismissed case. and asserted exactly the same allegations as those made in the former complaint. Defendants filed MTD on ground of res judicata. TC dismissed the case. Held: When certain of the parties died and due notice thereof was given to the trial court, it devolved on the said court to order, not the amendment of the complaint, but the appearance of the legal representatives of the deceased. An order to amend the complaint, before the proper substitution of parties has been effected, is void and imposes upon the plaintiff no duty to comply therewith to the end that an order dismissing the said complaint, for such non-compliance, would similarly be void. Escolin: where the defendant dies pending the case, the duty of the court is to order the substitution of the defendant, not to order the amendment of the complaint to implead the heirs of the defendant Mark de Leon, JD 2001

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de Leon: In Mina, the court ordered the amendment of the complaint to implead an indispensable party. The order was proper, hence failure to comply was a valid ground for dismissal of the complaint. In Casenas, the court ordered the amendment of the complaint to implead the heirs of a deceased party. The order was improper because the proper procedure was to substitute. Hence failure to comply was not a valid ground for dismissal of the complaint. Escolin: Heirs of the decedent are indispensable parties in an action to for support by an illegitimate child of the decedent. VDA DELA CRUZ V. CA, 88 SCRA 695 (1979) Facts: Defendant in an ejectment case died before judgment could be rendered. TC acknowledged in its decision that the defendant had died. Decision became final and was executed. Heirs of the defendant now filed a motion to substitute the deceased and to set aside as null void the decisions, orders, writ of execution and sale at public auction made and entered against the latter. TC allowed substitution, but denied setting aside of the decision and execution. CA reverses. Held: In case of the death of a party and due notice is given to the trial court, it is the duty of the court to order the legal representative of the deceased to appear for him. In the case at bar, no legal representative was ever summoned appear in court. No legal representative appeared to be substituted. The plaintiffs did not procure the appointment of such legal representatives. As a result, the continuance of a proceeding during the pendency of which a party thereto dies, without such having been validly substituted in accordance with the rules, amounts to lack of jurisdiction.

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Escolin: It is the duty of the court to order substitution and such substitution is mandatory otherwise the court does not acquire jurisdiction. de Leon: If the heirs ordered to substitute refuses to appear, they may not be held in contempt. The remedy is for the creditor to procure the appointment of an administrator for the estate and then substitute him for the decedent. VDA. DE HABERER V. CA, 104 SCRA 534 (1981) Facts: TC dismisses 11 complaints for recovery of parcel of land. Plaintiff dies pending appeal. Counsel notifies the court of appellant’s death, and prayed for suspension of the period for filing an appellant’s brief pending appointment of an executor. CA denies extension and dismisses the appeal. Held: The RoC requires appearance of the deceased legal representatives instead of dismissing the case. Dismissal of an appeal on the ground of failure to file appellant’s brief must be in accordance with the tenets of justice and fair play. The extension should have been granted. VDA. DE SALAZAR V. CA, 250 SCRA 305 (1995) Formal substitution of heirs is not necessary when the heirs themselves voluntarily appeared, participated in the case and presented evidence in defense of deceased defendant. ACAR V. ROSAL, 19 SCRA 625 (1967) An applicant for leave to sue in forma pauperis, need not be a pauper; the fact that he is able-bodied and may earn the necessary money is no answer to his statement that he has not sufficient means to prosecute Mark de Leon, JD 2001 - 24 -

the action or to secure the costs. It suffices that plaintiff is indigent, though not a public charge. “Indigents” are persons who have no property or source of income sufficient for their support aside from their own labor, though self-supporting when able to work and in employment. It is in this sense of being indigent that "pauper" is taken when referring to suits in forma pauperis. In class suits, the nominal plaintiffs directly bear the cost of the suit. The proof of the indigence of the nominal parties is enough to support a petition to sue as pauper litigants. It need not be proved that every beneficiary of the class suit is indigent. The remedy in case of denial of a meritorious petition to sue as pauper litigants is mandamus. Appeal is unavailing because the plaintiffs were not even accorded the status of litigants. VENUE OF ACTIONS DISTINCTIONS BETWEEN VENUE AND JURISDICTION Jurisdiction – authority to hear and decide a case, established by substantive law, establishes relation between court and subject matter; fixed by law and can not be conferred by the party Venue – place of trial, established by procedural law, establishes relation between parties; conferred by agreement of parties, can be fixed by agreement JURISDICTION

VENUE

Authority to hear and decide a case

Place of trial

Established by substantive law

Established by procedural law

Establishes relation between the court Establishes relation between and subject matter parties Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

Fixed by law

Can be fixed by agreement

Cannot be conferred by the party

Conferred by agreement of parties

Improper venue may not be a Lack of jurisdiction is a ground for ground for dismissal if there dismissal by the court motu propio is no motion from

RULE 4 Section 1. Venue of real actions. — Actions affecting title to or possession of real property, or interest therein, shall be commenced and tried in the proper court which has jurisdiction over the area wherein the real property involved, or a portion thereof, is situated. Forcible entry and detainer actions shall be commenced and tried in the municipal trial court of the municipality or city wherein the real property involved, or a portion thereof, is situated. (1[a], 2[a]a) Venue of real actions is where the real property is located. Sec. 2. Venue of personal actions. — All other actions may be commenced and tried where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, or in the case of a non-resident defendant where he may be found, at the election of the plaintiff. (2[b]a) Sec. 3. Venue of actions against nonresidents. — If any of the defendants does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff, or any property of said defendant located in the Philippines, the action may be commenced and tried in the court of the place where the plaintiff Mark de Leon, JD 2001

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resides, or where the property or any portion thereof is situated or found. (2[c]a) Venue of personal actions is (at the option of the plaintiff) 1. where plaintiff or any of the plaintiffs reside 2. where defendant or any of the defendants reside 3. where the non-resident defendant a. is in the Philippines – where he may be found b. outside the Philippines and the action affects the personal statuts of the plaintiff or any property of the defendant located in the Philippines, either 1) 2)

where the plaintiff resides, or where the property or any portion thereof is situated or found

Sec. 4. When Rule not applicable. — This Rule shall not apply(a) In those cases where a specific rule or law provides otherwise; or e.g. Labor cases are filed with the Labor arbiter (RA 1171) (b) Where the parties have validly agreed in writing before the filing of the action on the exclusive venue thereof. (3a, 5a) Escolin: the rules now allow raising the issue of improper venue as an affirmative defense in the answer even if there was failure to raise it in a motion to dismiss. CASES Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

DACOYCOY V. CA, 195 SCRA 641 (1991) FACTS Jesus Dacoycoy filed before RTC of Antipolo, Rizal a complaint against private respondent Rufino de Guzman praying for annulment of 2 deeds of sale involving a parcel of riceland located in Lingayen, Pangasinan, the surrender of the produce, and damages. Before summons could be served on de Guzman, RTC judge ordered counsel for petitioner to confer with respondent trial judge on the matter of venue. After said conference, RTC dismissed the complaint due to improper venue. RTC found that petitioner’s action is a real action as it sought not only the annulment of the deeds of sale but also recovery of ownership of the riceland which was outside of the RTC’s territorial jurisdiction. Petitioner appealed to IAC which affirmed RTC’s order of dismissal. Petitioner faults the IAC in affirming RTC finding that the venue was improperly laid when de Guzman has not even answered the complaint nor waived the venue. HELD Petition granted. The court can not motu proprio dismiss the case on ground of improper venue. Objections to venue may be waived by the parties. Improper venue does not necessarily divest the court of jurisdiction over the subject matter of the controversy. Even granting that the action of petitioner is a real action, respondent trial court would still have jurisdiction over the case, it being a RTC vested with the exclusive original jurisdiction over “all civil actions which involve the title to, or possession of, real property, or any interest therein.” de Leon: This does not apply in summary procedure cases where the court may motu propio dismiss the complaint even on the ground of improper venue (SC Resolution 15 October 1991, Sec. 4). FORTUNE MOTORS V. CA, 178 SCRA 564 (1989) Mark de Leon, JD 2001 - 26 -

FACTS Metrobank extended various loans to Fortune which was secured by a real estate mortgage on the Fortune building and lot in Makati. For failure of Fortune to pay the loans, Metrobank initiated extrajudicial foreclosure proceedings. After notice were served, posted and published, the mortgaged property was sold at a public auction to Metrobank as the highest bidder. 3days after the expiration of the 1yr redemption period, Fortune filed a complaint for annulment of the extrajudicial foreclosure sale alleging that the foreclosure was premature because its obligation to Metrobank was not yet due, publication of the notice of sale was incomplete, there was no public auction, and the price for which the property was sold was “shockingly low”. Before summons could be served, Metrobank filed a MtD the complaint on the ground that the venue of the action was improperly laid in Manila for the subject real property is situated in Makati, therefore the action to annul the foreclosure sale should be filed in Makati RTC. MtD was opposed by Fortune alleging that its action “is a personal action” and that “the issue is the validity of the extrajudicial proceedings” so that it may have a new 1yr redemption period. Manila RTC issued an order reserving the resolution of Metrobank’s MtD until after the trial on the merits as the grounds relied upon by the defendant were not clear and indubitable. Metrobank filed a MfR but was denied by Manila RTC. Metrobank appealed to CA. CA granted and dismissed the annulment case without prejudice to its being filed in the proper venue. HELD An action to annul a real estate mortgage foreclosure sale is no different from an action to annul a private sale of real property. Both are actions that affect title and seek recovery of the real property sold. It is therefore a real action which should be commenced and tried in the Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

province where the property or part thereof lies. Petition denied. CA decision affirmed. CLAVECILLA RADIO V. ANTILLON, 19 SCRA 379 (1967) FACTS New Cagayan Grocery Bacolod Branch sent a message (REURTEL WASHED NOT AVAILABLE REFINED TWENTY FIFTY IF AGREEABLE SHALL SHIP LATER REPLY) to New Cagayan Grocery CDO Branch thru Clavecilla Radio Bacolod. Clavecilla Radio Cagayan received the message. However, in delivering the same to New Cagayan Grocery CDO, the word “NOT” between the word “WASHED” and “AVAILABLE” was omitted, thus changing entirely the contents and purport of the message and causing the addressee to suffer damages. New Cagayan filed a complaint against Clavecilla in the MTC. After service of summons, Clavecilla filed MtD the complaint on the grounds that it states no cause of action and the venue is improperly laid. New Cagayan interposed opposition to which Clavecilla filed its rejoinder. Thereafter, MTC judge Antillon denied MtD for lack of merit. Clavecilla filed a petition for prohibition and prelim injunction with the CFI praying that judge Antillon be enjoined from further proceeding with the case on the ground of improper venue. Respondents filed MtD the petition but was opposed by Clavecilla. CFI held that Clavecilla may be sued in Manila where it has its principal office or in CDO where it was served with summons thru the branch manager. In other word, CFI upheld the authority of MTC to take cognizance of the case. In appealing, Clavecilla contends that the suit against it should be filed in Manila where it holds its principal office. HELD The residence of the corporation is the place where its principal office is established. Branch offices are not “residences” where it may be Mark de Leon, JD 2001 - 27 -

sued. The phrase “where he (defendant) may be found” as to venue of actions applies only to non-residents. It does not apply to defendants residing in the Philippines. YOUNG AUTO V. CA, 223 SCRA 670 (1993) Facts: Young Auto (YASCO) sold its shares of stock in Consolidated Mktg & Dev’t Corp (CMDC) to Roxas. Purchase price 8M, dp 4M check bal 4M in pd checks 1M each. After execution of the agreement, Roxas took full control of the four markets of CMDC. However YASCO held on to stock certificates as security pending full payment. First 4M was honored but the four 1M checks were dishonored. Roxas sold one of the markets to a 3rd party. Out of the proceeds, YASCO rcvd 600k leaving a bal of 3.4M YASCO filed a complaint against Roxas in Cebu RTC praying that Roxas be ordered to pay the bal or that full control of the 3 markets be turned over to YASCO. Roxas filed MtD, ground: improper venue. RTC dismissed MTD. Roxas appealed to CA. CA ordered dismissal of the complaint on the ground of improper venue. YASCO appealed to SC. The Articles of Incorporation of Young Auto Motors stated that its principal office was in Cebu. In its transactions with Roxas, Young Auto stated in its letterhead that its principal office was in Manila. Young Auto sued Roxas in Cebu based on such transactions. Roxas files MTD on the ground of improper venue. Held: A corporation is a resident of the place where its principal office is located as stated in the articles of incorporation. Hence, Cebu was a valid venue for Young’s action.

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Escolin: If it was Roxas who filed the case against Young in Pasay City based on the address in the letterhead, Young would be estopped from objecting on the ground of improper venue. HERNANDEZ V. DBP, 71 SCRA 290 (1976) Facts: Hernandez resides in Batangas. He was awarded a lot in Quezon City by DBP. Subsequently, DBP refused to accept Hernandez’s payment and cancelled the award. Hernandez filed an action to annul the cancellation of the award in Batangas. DBP filed MTD on ground of improper venue. Held: Hernandez's action is not a real but a personal action. His action is one to declare null and void the cancellation of the lot and house in his favor which does not involve title and ownership over said properties but seeks to compel respondent to recognize that the award is a valid and subsisting one which it cannot arbitrarily and unilaterally cancel and to accept payment. Such an action is a personal action which may be properly brought by petitioner in his residence. LIZARES V. CALAUAG, 4 SCRA 746 (1962) FACTS: Flaviano Cacnio bought from Dr. Antonio Lizares on installment a parcel of land located in Sinkang Subd Bacolod City. Cacnio made a dp of Php1,206 bal Php10,858 to be paid in 10yearly installments. Cacnio received a letter from Lizares demanding payment of arrears in installment payments, interests, and taxes. Cacnio sent a check to pay the amount due but Lizares returned the check and refused the tender of payment. Cacnio instituted a civil case in the Rizal CFI praying that Lizares be ordered “to accept the payment being made” by him.

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Petitioner MtD the complaint due to improper venue for the action affects the title or possession of real property located in Bacolod. CFI denied MtD holding that it was a personal action. Petitioner appealed to the CA. CA denied petition. HELD: An action praying that defendant be ordered "to accept the payment being made" by plaintiff for the lot which the latter contracted to buy on installment basis from the former, to pay plaintiff compensatory damages and attorney's fees and to enjoin defendant and his agents from repossessing the lot in question, is one that affects title to land, and "shall be commenced and tried in the province where the property or any part thereof lies," because, although the immediate remedy is to compel the defendant to accept the tender of payment allegedly made, it is obvious that this relief is merely the first step to establish plaintiff's title to real property. Escolin: In the Bar exams of 1978, Wigberto Tañada was the Bar examiner. There was a question using the facts of Lizares. The consensus was the case should be filed in the place where the property was located. Tañada cited the Hernandez case in ruling that the case should be filed in the residence of the plaintiff. Eventually, both where considered correct. de Leon: So where should we side now? ESUERTE V. CA, 193 SCRA 541 (1991) For purposes of venue of personal actions, the venue is to be determined where the plaintiff or the defendant is actually located. It is actual residence, not legal domicile, which is relevant. de Leon: The meaning of “residence” in determining venue of personal actions is the same as “residence” in determinng venue of estate proceedings. Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

CAPATI V. OCAMPO, 113 SCRA 794 (1982) Stipulation as to venue which uses the word “may” is permissive and does not limit the venue of the action only to the venue stipulated. UNIMASTERS V. CA, 267 SCRA (1997) Stipulation as to venue which uses the word “shall” is permissive and does not limit the venue of the action only to the venue stipulated. Escolin: They should have used the words “solely,” “exclusively,” or “only.” “Shall” is not enough to confer exclusive venue with a court. DIAZ V. ADIONG, 219 SCRA 631 (1993) Filing of answer waives MTD on ground of improper venue. Escolin: the rules now allow raising the issue of improper venue as an affirmative defense in the answer even if there was failure to raise it in a motion to dismiss (Rule 16, Sec. 6). SWEETLINES V. TEVES, 83 SCRA 361 (1978) Facts: Boat tickets stipulated that the venue of actions arising out of the tickets should be filed in Cebu City. Held: Although venue may be changed or transferred by agreement of the parties in writing, such an agreement will not be held valid where it practically negates the action of the claimants. Considering the expense and trouble a passenger residing outside of Cebu City would incur to prosecute a claim in the Cebu City, he would most probably decide not to file the action at all. The condition will thus defeat, instead of enhance, the ends of justice. On the other hand, Sweetlines has branches or offices in the respective ports of call of its vessels and can afford to litigate in any Mark de Leon, JD 2001 - 29 -

of these places. Hence, the filing of the suit in residence of plaintiff, as was done in the instant case, will not cause inconvience to, much less prejudice Sweetlines. The stipulation, if enforced, will be subversive of the public good or interest, since it will frustrate in meritorious cases, actions of passenger claimants outside of Cebu City, thus placing Sweetlines company at a decided advantage over said persons, who may have perfectly legitimate claims against it. The said condition should, therefore, be declared void and unenforceable, as contrary to public policy

COVERAGE

Escolin: The SC characterized a contract of adhesion as void for being against public policy.

(1) All cases of forcible entry and unlawful detainer, irrespective of the amount of damages or unpaid rentals sought to be recovered. Where attorney's fees are awarded, the same shall not exceed twenty thousand pesos (P20,000.00).

de Leon: Contrast the rationale in the cases of Sweetlines and Clavecilla re: “confusion” and “untold inconvenience” on the part of defendants. UNIFORM PROCEDURE IN TRIAL COURTS RULE 5 Section 1. Uniform procedure. — The procedure in the Municipal Trial Courts shall be the same as in the Regional Trial Courts, except (a) where a particular provision expressly or impliedly applies only to either of said courts, or (b) in civil cases governed by the Rule on Summary Procedure. (n) Sec. 2. Meaning of terms. — The term "Municipal Trial Courts" as used in these Rules shall include Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts, and Municipal Circuit Trial Courts. (la) RULE ON SUMMARY PROCEDURE (SC RESOLUTION DATED OCTOBER 15, 1991) Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

I.

Applicability

Sec. 1. Scope. - This rule shall govern the summary procedure in the Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the Municipal Trial Courts, and the Municipal Circuit Trial Courts in the following cases falling within their jurisdiction: A. Civil Cases:

Now, the amount of damages is irrelevant. (2) All other civil cases, except probate proceedings, where the total amount of the plaintiff's claim does not exceed ten thousand pesos (P10,000.00), exclusive of interest and costs. B. Criminal Cases: (1) Violations of traffic laws, rules and regulations; (2) Violations of the rental law; (3) Violations of municipal or city ordinances; (4) All other criminal cases where the penalty prescribed by law for the offense charged is imprisonment not exceeding six months, or a fine not exceeding (P1,000.00), or both, irrespective of other imposable penalties, accessory or otherwise, or of the civil liability arising therefrom: Provided, however, that in offenses involving damage to property through criminal negligence, this Rule shall Mark de Leon, JD 2001

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govern where the imposable fine does not exceed ten thousand pesos (P10,000.00). This Rule shall not apply to a civil case where the plaintiffs cause of action is pleaded in the same complaint with another cause of action subject to the ordinary procedure; nor to a criminal case where the offense charged is necessarily related to another criminal case subject to the ordinary procedure. Rules on summary procedure are applicable in the following cases before the MTCs 1. Civil cases a. forcible entry and unlawful detainer, regardless of amount of damages (compensation for use of property) or unpaid rentals b. except probate proceedings, civil cases where the total amount of the plaintiff's claim does not exceed P10,000 exclusive of interest and costs. 2. Criminal cases

1. civil case where the plaintiff’s cause of action is pleaded in the same complaint with another cause of action subject to the ordinary procedure 2. criminal case where the offense charged is necessarily related to another criminal case subject to the ordinary procedure. Recall that criminal cases that should undergo reconciliation proceedings under the Katarungang Pambaranggay are offenses punishable by not more than 1 year or a fine not over P5,000 de Leon: Therefore nearly all summary procedure criminal cases must go through the Katarungang Pambaraggay. Sec. 2. Determination of applicability. - Upon the filing of a civil or criminal action, the court shall issue an order declaring whether or not the case shall be governed by this Rule. A patently erroneous determination to avoid the application of the Rule on Summary Procedure is a ground for disciplinary action. Upon filing of the initiatory pleading, the court shall declare whether the case is governed by the rule on summary procedure.

a. traffic violations b. rental law violations c. municipal or city ordinances violations d. damage to property through criminal negligence, where the imposable fine does not exceed P10,000 e. penalty not exceeding 6-month imprisonment, or a P1,000 fine Exceptions: Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

CIVIL CASES II. Civil Cases Procedure in summary civil cases 1. complaint is filed 2. court declares it falls under summary procedure 3. may dismiss the case motu propio; if not, issue summons Mark de Leon, JD 2001

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4. defendant files his answer within 10 days (defenses and claims not pleaded are waived, except lack of jurisdiction over subject matter) 5. answer to counterclaims or cross-claims within 10 days from service of the answer 6. preliminary conference not later than 30 days after the last answer is filed; absence of a. plaintiff – cause for the dismissal of his complaint; defendant entitled to judgment on his counterclaim as if plaintiff did not file an answer to the counterclaim; all cross-claims dismissed b. sole defendant - plaintiff shall be entitled to judgment as if defendant did not file an answer c. 1 or some of many defendants sued under a common cause of action who had pleaded a common defense – no adverse effect on the defense 7. the court issues record of preliminary conference, within 5 days after the termination of the preliminary conference, covering

8. parties shall submit the affidavits of their witnesses and other evidence on the factual issues defined in the order, together with their position papers, within 10 days issuance of record of preliminary conference 9. within 30 days after receipt of the last affidavits and position papers, or the expiration of the period for filing the same, the court either a. renders judgment b. requires clarification of certain material facts, within 10 days from receipt of said order; then render judgment within 15 days from receipt of the last clarificatory affidavits, or the expiration of the period for filing the same Sec. 3. Pleadings. A. Pleadings allowed. - The only pleadings allowed to be filed are the complaints, compulsory counterclaims and cross-claims' pleaded in the answer, and the answers thereto. B. Verifications. - All pleadings shall be verified.

a. terms of any amicable settlement

Allowable pleadings (must all be verified)

b. stipulations or admissions entered into by the parties

1. complaint

c. Whether, on the basis of the pleadings and the stipulations and admissions made by the parties, judgment may be rendered without the need of further proceedings, in which event the judgment shall be rendered within 30 days from issuance of the order

2. compulsory counterclaims

d. material facts which remain controverted

3. cross-claims in the answer 4. answer Note that permissive counterclaims and 3rd party complaints are not allowed.

e. matters intended to expedite the disposition of the case. Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

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Sec. 4. Duty of Court. - After the court determines that the case falls under summary procedure, it may, from an examination of the allegations therein and such evidence as may be attached thereto, dismiss the case outright on any of the grounds apparent therefrom for the dismissal of a civil action. If no ground for dismissal is found it shall forthwith issue summons which shall state that the summary procedure under this Rule shall apply. The only grounds where the defendant may file a MTD (Sec. 19)

Sec. 6. Effect of failure to answer. - Should the defendant fail to answer the complaint within the period above provided, the court, motu proprio, or on motion of the plaintiff, shall render judgment as may be warranted by the facts alleged in the complaint and limited to what is prayed for therein: Provided, however, that the court may in its discretion reduce the amount of damages and attorney's fees claimed for being excessive or otherwise unconscionable. This is without prejudice to the applicability of Section 4, Rule 15 of the Rules of Court, if there are two or more defendants.

1. lack of jurisdiction

cf Rule 15, Sec. 4

2. failure to resort to Katarungang Pambaranggay when required de Leon: Note that in summary procedure, the GR is the court may motu propio dismiss the case. In ordinary civil actions, the court can motu propio dismiss the case only on specific grounds. Escolin: Dacoycoy case does not apply in cases of summary procedure. The court has the power to motu proprio dismiss the case on the ground that venue was improperly laid. If it does not, the ground of improper venue should be included as a special defense in the defendant’s answer, otherwise it is deemed waived (Sec. 5). Sec. 5. Answer. - Within ten (10) days from service of summons, the defendant shall file his answer to the complaint and serve a copy thereof on the plaintiff. Affirmative and negative defenses not pleaded therein shall be deemed waived, except for lack of jurisdiction over the subject matter. Cross-claims and compulsory counterclaims not asserted in the answer shall be considered barred. The answer to counterclaims or cross-claims shall be filed and served within ten (10) days from service of the answer in which they are pleaded.

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Sec. 4. Hearing of motion. — Except for motions which the court may act upon without prejudicing the rights of the adverse party, every written motion shall be set for hearing by the applicant. Every written motion required to be heard and the notice of the hearing thereof shall be served in such a manner as to ensure its receipt by the other party at least three (3) days before the date of hearing, unless the court for good cause sets the hearing on shorter notice. (4a) Failure of the defendant to answer – the court shall render judgment as may be warranted by the facts alleged in the complaint and limited to what is prayed for; the court may in its discretion reduce the amount of damages and attorney's fees claimed for being excessive or otherwise unconscionable. de Leon: Note that when the defendant fails to answer in summary procedure, the court may motu propio rule for the plaintiff. In ordinary civil actions, the court can do so only upon motion by the plaintiff to declare the defendant in default and after plaintiff supports his claim with evidence. Mark de Leon, JD 2001

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Sec. 7. Preliminary conference; appearance of parties. - Not later than thirty (30) days after the last answer is filed, a preliminary conference shall be held. The rules on pre-trial in ordinary cases shall be applicable to the preliminary conference unless inconsistent with the provisions of this Rule. The failure of the plaintiff to appear in the preliminary conference shall be a cause for the dismissal of his complaint. The defendant who appears in the absence of the plaintiff shall be entitled to judgment on his counterclaim in accordance with Section 6 hereof. All crossclaims shall be dismissed. If a sole defendant shall fail to appear, the plaintiff shall be entitled to judgment in accordance with Section 6 hereof. This Rule shall not apply where one of two or more defendants sued under a common cause of action who had pleaded a common defense shall appear at the preliminary conference. Effect of failure to appear at the preliminary conference by 1. the plaintiff – cause for the dismissal of his complaint; defendant who appears entitled to judgment on his counterclaim as may be warranted by the facts alleged. All cross-claims shall be dismissed. 2. the sole defendant –plaintiff entitled to judgment as may be warranted by the facts alleged in his complaint 3. one of many defendants sued under a common cause of action who had pleaded a common defense – case continues Sec. 8. Record of preliminary conference. - Within five (5) days after the termination of the preliminary conference, the court shall issue an order stating the matters taken up therein, including but not limited to: Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

a) Whether the parties have arrived at an amicable settlement, and if so, the terms thereof; b) The stipulations or admissions entered into by the parties;. c) Whether, on the basis of the pleadings and the stipulations and admissions made by the parties, judgment may be rendered without the need of further proceedings, in which event the judgment shall be rendered within thirty (30) days from issuance of the order; d) A clear specification of material facts which remain controverted; and e) Such other matters intended to expedite the disposition of the case. Sec. 9. Submission of affidavits and position papers. - Within ten (10) days from receipt of the order mentioned in the next preceding section, the parties shall submit the affidavits of their witnesses and other evidence on the factual issues defined in the order, together with their position papers setting forth the law and the facts relied upon by them. Sec. 10. Rendition of judgment. - Within thirty (30) days after receipt of the last affidavits and position papers, or the expiration of the period for filing the same, the court shall render judgment. However should the court find it necessary to clarify certain material facts, it may, during the said period, issue an order specifying the matters to be clarified, and require the parties to submit affidavits or other evidence on the said matters within ten (10) days from receipt of said order. Judgment shall be rendered within fifteen (15) days after the receipt of the last clarificatory affidavits, or the expiration of the period for filing the same. Mark de Leon, JD 2001

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The court shall not resort to the clarificatory procedure to gain time for the rendition of the judgment.

8. If the accused is in custody for the crime charged, he shall be immediately arraigned and if he enters a plea of guilty, he shall forthwith be sentenced.

CRIMINAL CASES

9. Preliminary conference

III. Criminal Cases Summary Procedure in Criminal cases 1. Initiated either by complaint or information (only by information, in Metro Manila and Chartered cities, except when the offense cannot be prosecuted de oficio) 2. As many copies of the information or complaint, with affidavits of complainant and his witnesses, as there are accused plus 2, within 5 days from filing; otherwise the case may be dismissed 3. Court declares if the case is covered by the rule on summary procedure 4. If commenced by complaint and patently without basis or merit, court may dismiss the case; otherwise, court requires accused to submit his counter-affidavit and the affidavits of his witnesses and any evidence in his behalf

a. no admission by the accused shall be used against him unless reduced to writing and signed by the accused and his counsel b. parties must manifest intention to present additional affidavits or counter-affidavits as part of his direct evidence, and it should be allowed by the court; filed and served within 3 days after the termination of the preliminary conference; accused may file and serve his counter-affidavits within 3 days from such service. 10. Trial – the affidavits submitted by the parties shall constitute the direct testimonies, subject to cross-examination, redirect or re-cross examination; failure of affiant to testify will render his affidavit incompetent for the offeror, but admissible for the opposing party; witnesses must submit affidavits before testifying, except on rebuttal or surrebuttal 11. Accused shall not be arrested, except for failure to appear when required; Accused may be released either on bail or recognizance

5. Filing and service on prosecution of defense’s evidence within 10 days from receipt of the order

12. the court renders judgment within 30 days after the termination of trial.

6. prosecution may file reply affidavits within 10 days after receipt of the counter-affidavits of the defense.

Note that preliminary conference is required in both civil and criminal cases.

7. Court either dismisses the case, or set arraignment and trial

In criminal cases, there is hearing and actual trial. In civil cases, only the pleadings, affidavit, evidence, and position papers are considered. There is no hearing or trial in summary civil cases.

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Only those who have executed affidavits may testify on the stand, except rebuttal and sur-rebuttal witnesses.

reply affidavits within ten (10) days after receipt of the counteraffidavits of the defense.

Sec. 11. How commenced. - The filing of criminal cases falling within the scope of this Rule shall be either by complaint or by information: Provided, however, that in Metropolitan Manila and in Chartered Cities. such cases shall be commenced only by information, except when the offense cannot be prosecuted de oficio.

Ground for motu propio dismissal of criminal case covered by summary procedure initiated by complaint - patently without basis or merit

The complaint or information shall be accompanied by the affidavits of the complainant and of his witnesses in such number of copies as there are accused plus two (2) copies for the court's files. If this requirement is not complied with within five (5) days from date of filing, the case may be dismissed.

Sec. 13. Arraignment and trial. - Should the court, upon a consideration of the complaint or information and the affidavits submitted by both parties, find no cause or ground to hold the accused for trial, it shall order the dismissal of the case; otherwise, the court shall set the case for arraignment and trial.

In Metro Manila, offenses can not be commenced by complaint, except if it can not be prosecuted de oficio. (cf with the 2000 Criminal Procedure Rules).

If the accused is in custody for the crime charged, he shall be immediately arraigned and if he enters a plea of guilty, he shall forthwith be sentenced.

Sec. 12. Duty of court. (a) If commenced by compliant. - On the basis of the compliant and the affidavits and other evidence accompanying the same, the court may dismiss the case outright for being patently without basis or merit and order the release of the accused if in custody. (b) If commenced by information. - When the case is commenced by information, or is not dismissed pursuant to the next preceding paragraph, the court shall issue an order which, together with copies of the affidavits and other evidence submitted by the prosecution, shall require the accused to submit his counter-affidavit and the affidavits of his witnesses as well as any evidence in his behalf, serving copies thereof on the complainant or prosecutor not later than ten (10) days from receipt of said order. The prosecution may file Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

The court can not dismiss a criminal case outright if it is commenced by information.

Sec. 14. Preliminary conference. - Before conducting the trial, the court shall call the parties to a preliminary conference during which a stipulation of facts may be entered into, or the propriety of allowing the accused to enter a plea of guilty to a lesser offense may be considered, or such other matters may be taken up to clarify the issues and to ensure a speedy disposition of the case. However, no admission by the accused shall be used against him unless reduced to writing and signed by the accused and his counsel. A refusal or failure to stipulate shall not prejudice the accused. Sec. 15. Procedure of trial. - At the trial, the affidavits submitted by the parties shall constitute the direct testimonies of the witnesses who executed the same. Witnesses who testified may be subjected to cross-examination, redirect or re-cross examination. Should the affiant fail to testify, his affidavit shall not be considered as Mark de Leon, JD 2001

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competent evidence for the party presenting the affidavit, but the adverse party may utilize the same for any admissible purpose.

apply to criminal cases where the accused was arrested without a warrant.

Except on rebuttal or surrebuttal, no witness shall be allowed to testify unless his affidavit was previously submitted to the court in accordance with Section 12 hereof.

Failure to comply with Katarungang Pambaranggay when required is ground for dismissal of the complaint, unless the accused was arrested without a warrant.

However, should a party desire to present additional affidavits or counter-affidavits as part of his direct evidence, he shall so manifest during the preliminary conference, stating the purpose thereof. If allowed by the court, the additional affidavits of the prosecution or the counter-affidavits of the defense shall be submitted to the court and served on the adverse party not later than three (3) days after the termination of the preliminary conference. If the additional affidavits are presented by the prosecution, the accused may file his counteraffidavits and serve the same on the prosecution within three (3) days from such service.

Sec. 19. Prohibited pleadings and motions. - The following pleadings, motions or petitions shall not be allowed in the cases covered by this Rule:

Sec. 16. Arrest of accused. - The court shall not order the arrest of the accused except for failure to appear whenever required. Release of the person arrested shall either be on bail or on recognizance by a responsible citizen acceptable to the court. Sec. 17. Judgment. - Where a trial has been conducted, the court shall promulgate the judgment not later than thirty (30) days after the termination of trial. IV. Common Provisions Sec. 18. Referral to Lupon. - Cases requiring referral to the Lupon for conciliation under the provisions of Presidential Decree No. 1508 where there is no showing of compliance with such requirement, shall be dismissed without prejudice and may be revived only after such requirement shall have been complied with. This provision shall not Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

(a) Motion to dismiss the complaint or to quash the complaint or information except on the ground of lack of jurisdiction over the subject matter, or failure to comply with the preceding section (concillation proceedings); (b) Motion for a bill of particulars; (c) Motion for new trial, or for reconsideration of a judgment, or for opening of trial; (d) Petition for relief from judgment; (e) Motion for extension of time to file pleadings, affidavits or any other paper; (f) Memoranda; (g) Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court; (h) Motion to declare the defendant in default; (i) Dilatory motions for postponement; (j) Reply; Mark de Leon, JD 2001

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(k) Third party complaints; (l) Interventions. Prohibited pleadings and motions 1. Motion to dismiss the complaint or to quash the complaint or information, except on the ground of lack of jurisdiction over the subject matter, or failure to comply with the Katarungang Pambaranggay 2. Motion for a bill of particulars 3. MNT, or MfR, or motion for opening of trial 4. Petition for relief from judgment 5. Motion for extension of time to file pleadings, affidavits or any other paper 6. Memoranda 7. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court 8. Motion to declare the defendant in default 9. Dilatory motions for postponement 10. Reply 11. Third party complaints 12. Interventions. Sec. 20. Affidavits. - The affidavits required to be submitted under this Rule shall state only facts of direct personal knowledge of the Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

affiants which are admissible in evidence, and shall show their competence to testify to the matters stated therein. A violation of this requirement may subject the party or the counsel who submits the same to disciplinary action, and shall be cause to expunge the inadmissible affidavit or portion thereof from the record. Special requirement for affidavits under summary procedure: must state only admissible evidence and show their competence to testify on such matters. Otherwise, the offering party or counsel may be subject to disciplinary action and the inadmissible portion is expunged Sec. 21. Appeal. - The judgment or final order shall be appealable to the appropriate regional trial court which shall decide the same in accordance with Section 22 of Batas Pambansa Blg. 129. The decision of the regional trial court in civil cases governed by this Rule, including forcible entry and unlawful detainer, shall be immediately executory, without prejudice to a further appeal that may be taken therefrom. Section 10 of Rule 70 (of the 1964 Rules of Court) shall be deemed repealed. Summary decisions are appealable to the RTC. RTC decision in ejectment cases are immediately executory. Sec. 22. Applicability of the regular rules. - The regular procedure prescribed in the Rules of Court shall apply to the special cases herein provided for in a suppletory capacity insofar as they are not inconsistent herewith. Sec. 23. Effectivity. – xxx CASES

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COMBATE V. SAN JOSE, 135 SCRA (1985) Facts: Combate was charged with theft of a rooster before the MTC. He pleaded not guilty without aid of counsel. Without trial, judgment was rendered based on the affidavits and counter-affidavits presented. Held: Summary procedure is applicable for offenses punishable by not more than 6 months. Theft is punishable up to 2 years and 4 months. Summary procedure is inapplicable. Even if applicable, summary procedure does not dispense with trial in criminal cases. All it allows is affidavits to be considered as direct testimony, but subject to crossexamination. Otherwise, this would violate the right of the accused to due process (de Leon: and his right to confront witnesses against him). de Leon: contrast this case with the prevailent practice of courts, even in cases not covered by the rules on summary procedure, to substitute direct examination with affidavits of the witnesses, subject to crossexamination. BAYUBAY V. CA, 224 SCRA 557 (1993) Facts: Bayubay files an ejectment case against Big Mak Burger. Pre-trial was terminated, but the court ordered only the submission of position papers. 3 months later, the court ruled that Big Mak should be ejected. Held: The rules on summary procedure require that immediately after the preliminary conference, an order should be issued distinctly setting forth the issues of the case and other matters taken up during the preliminary conference. This is important because only after receipt of the order does the 10 day period to submit affidavits and other evidence begin to run. Failure of the MTC to issue such order means the 10 day period never began to run. It could not therefore have decided the case then. Furthermore, this was not a pure question of law as the defendant claimed reimbursement for expenses and damages. Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

PLEADINGS (RULE 6–11)

KINDS OF PLEADINGS RULE 6 Section 1. Pleadings defined. Pleadings are the written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment. (1a) Sec. 2. Pleadings allowed. The claims of a party are asserted in a complaint, counterclaim, cross-claim, third (fourth, etc.)-party complaint, or complaint-inintervention.

The defenses of a party are alleged in the answer to the pleading asserting a claim against him.

An answer may be responded to by a reply. (n)

Sec. 3. Complaint. The complaint is the pleading alleging the plaintiff's cause or causes of action. The names and residences of the plaintiff and defendant must be stated in the complaint. (3a) Mark de Leon, JD 2001

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Sec. 4. Answer. An answer is a pleading in which a defending party sets forth his defenses. (4a)

negative defense – specific denial of the material fact or facts alleged in the pleading of the claimant essential to his cause or causes of action. affirmative defense – an allegation of a new matter which, while hypothetically admitting the material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by him

Pleadings — written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment

Affirmative defenses

Complaint — the pleading alleging the plaintiff's cause or causes of action

2. statute of limitations

Answer — a pleading in which a defending party sets forth his defenses.

1. fraud

3. release 4. payment 5. illegality

Sec. 5. Defenses. — Defenses may either be negative or affirmative. (a) A negative defense is the specific denial of the material fact or facts alleged in the pleading of the claimant essential to his cause or causes of action. (b) An affirmative defense is an allegation of a new matter which, while hypothetically admitting the material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by him. The affirmative defenses include fraud, statute of limitations, release, payment, illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy, and any other matter by way of confession and avoidance. (5a)

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6. statute of frauds 7. estoppel 8. former recovery 9. discharge in bankruptcy 10. other matter by way of confession and avoidance.

Sec. 6. Counterclaim. A counterclaim is any claim which a defending party may have against an opposing party. (6a)

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Sec. 7. Compulsory counterclaim. — A compulsory counterclaim is one which, being cognizable by the regular courts of justice, arises out of or is connected with the transaction or occurrence constituting the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. Such a counterclaim must be within the jurisdiction of the court both as to the amount and the nature thereof, except that in an original action before the Regional Trial Court, the counterclaim may be considered compulsory regardless of the amount. (n) Sec. 8. Cross-claim. — A cross-claim is any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant. (7) Sec. 9. Counter-counterclaims and counter-cross-claims. — A counterclaim may be asserted against an original counter-claimant. A cross-claim may also be filed against an original cross-claimant. (n) Counterclaim — any claim which a defending party may have against an opposing party Requirements for a compulsory counterclaim 1. arises out of or is connected with the transaction or occurrence constituting the subject matter of the opposing party's claim 2. does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

3. must be within the jurisdiction of the court both as to the amount and the nature In an original action before the RTC, a counterclaim may be considered compulsory regardless of the amount. A permissive counterclaim must also be within the jurisdiction of the court, and must not require the presence of 3rd parties over whom the court can not acquire jurisdiction. It must not be connected with the transaction or occurrence constituting the subject matter of the opposing party’s claim, otherwise, it would be a compulsory counterclaim. Cross-claim — any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein.

Sec. 10. Reply. — A reply is a pleading, the office or function of which is to deny, or allege facts in denial or avoidance of new matters alleged by way of defense in the answer and thereby join or make issue as to such new matters. If a party does not file such reply, all the new matters alleged in the answer are deemed controverted. If the plaintiff wishes to interpose any claims arising out of the new matters so alleged, such claims shall be set forth in an amended or supplemental complaint. (11)

Reply — a pleading to deny, or allege facts in denial or avoidance of new matters alleged by way of defense in the answer and thereby join or make issue as to such new matters. Mark de Leon, JD 2001

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If a party does not file such reply, all the new matters alleged in the answer are deemed controverted. If the plaintiff wishes to interpose any claims arising out of the new matters so alleged, such claims shall be set forth in an amended or supplemental complaint. (e.g. in a case for recovery of land, defendant alleges that he bought the land from plaintiff’s predecessor-in-interest. Plaintiff can file an amended complaint to annul the sale to defendant). Sec. 11. Third, (fourth, etc.)-party complaint. — A third (fourth, etc.)-party complaint is a claim that a defending party may, with leave of court, file against a person not a party to the action, called the third (fourth, etc.)-party defendant, for contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim. (12a)

Third (fourth, etc.)-party complaint – a claim that a defending party may, with leave of court, file against a person not a party to the action for contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim. Sec. 12. Bringing new parties. — When the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim or cross-claim, the court shall order them to be brought in as defendants, if jurisdiction over them can be obtained. (l4) This refers to necessary parties. Sec. 13. Answer to third (fourth, etc.)- party complaint. — A third (fourth, etc.)-party defendant may allege in his answer his defenses, counterclaims or cross-claims, including such defenses that the third (fourth, etc.)- party plaintiff may have against the original plaintiff's Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

claim. In proper cases, he may also assert a counterclaim against the original plaintiff in respect of the latter's claim against the third-party plaintiff. (n) CASES CALO V. AJAX, 22 SCRA 996 (1968) Counterclaims that are beyond the jurisdiction of the MTC are not compulsory and are not waived by the failure to set up before the MTC. The rules allow such counterclaims to be set-up only for the defendant to prevent plaintiff from recovering from him. This means that should the court find both plaintiff's complaint and defendant's counterclaim (for an amount exceeding said court's jurisdiction) meritorious, it will simply dismiss the complaint on the ground that defendant has a bigger credit. However, any counterclaim set-up in excess of the court’s jurisdiction is waived. Failure of the defendant to set-up such claim does not bar him from filing a separate civil action on the same claim before the RTC. de Leon: compare this with the Progressive Development Corp. v. CA, 301 SCRA 637 (1999) which Escolin said was wrong. SINGAPORE AIRLINES V. CA, 243 SCRA (1995) Facts: Rayos was an employee of Aramco. Aramco reimburses the amounts its employees pay for excess baggage. Rayos validly claimed reimbursement. Aramco investigates Rayo for fraudulent claims. Rayo asked Singapore Airlines to issue a certification. Singapore delays in issuing the certification. Rayo’s contract with Aramco was not renewed. Rayo sues Singapore. Singapore blames PAL and files a 3 rd party complaint against PAL. PAL answers that the tampering was Singapore’s fault. Judge rules for Rayo on the main case, and for Singapore in the 3rd party complaint. Judgment for Rayo became final. PAL appeals the 3 rd Mark de Leon, JD 2001

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party complaint claiming for the 1st time that Rayo was not entitled to damages from Singapore because his contract with Aramco was not renewed because of his unsatisfactory performance. Held: Judgment for Rayo being final, PAL may not question it. A 3 rd-party defendant is allowed to set up in his answer the defenses which the 3 rdparty plaintiff (original defendant) has or may have against the original plaintiff's claim. However, he must do so in his 3rd party answer, and not raise it for the 1st time on appeal. PAL should have raised in its 3rd party answer everything that it may conceivably interpose by way of its defense, including specific denials of allegations in the main complaint which implicated it along with Singapore. PARTS OF A PLEADING RULE 7 Section 1. Caption. — The caption sets forth the name of the court, the title of the action, and the docket number if assigned. The title of the action indicates the names of the parties. They shall all be named in the original complaint or petition; but in subsequent pleadings, it shall be sufficient if the name of the first party on each side be stated with an appropriate indication when there are other parties. Their respective participation in the case shall be indicated. (1a, 2a) Sec. 2. The body. — The body of the pleading sets forth its designation, the allegations of the party's claims or defenses, the relief prayed for, and the date of the pleading. (n)

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(a) Paragraphs.— The allegations in the body of a pleading shall be divided into paragraphs so numbered as to be readily identified, each of which shall contain a statement of a single set of circumstances so far as that can be done with convenience. A paragraph may be referred to by its number in all succeeding pleadings. (3a) (b) Headings.— When two or more causes of action are joined, the statement of the first shall be prefaced by the words "first cause of action," of the second by "second cause of action," and so on for the others. When one or more paragraphs in the answer are addressed to one of several causes of action in the complaint, they shall be prefaced by the words "answer to the first cause of action" or "answer to the second cause of action" and so on; and when one or more paragraphs of the answer are addressed to several causes of action, they shall be prefaced by words to that effect. (4) (c) Relief.— The pleading shall specify the relief sought, but it may add a general prayer for such further or other relief as may be deemed just or equitable. (3a, R6) (d) Date.— Every pleading shall be dated. (n) Escolin: Never mind this section. Sec. 3. Signature and address. — Every pleading must be signed by the party or counsel representing him, stating in either case his address which should not be a post office box. The signature of counsel constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay. Mark de Leon, JD 2001

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An unsigned pleading produces no legal effect. However, the court may, in its discretion, allow such deficiency to be remedied if it shall appear that the same was due to mere inadvertence and not intended for delay. Counsel who deliberately files an unsigned pleading, or signs a pleading in violation of this Rule, or alleges scandalous or indecent matter therein, or fails to promptly report to the court a change of his address, shall be subject to appropriate disciplinary action. (5a)

A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true and correct of his personal knowledge or based on authentic records.

Escolin: A post office box address is not allowed because receipt of pleadings will be adversely affected.

Memorize!

A pleading required to be verified which contains a verification based on "information and belief, or upon "knowledge, information and belief," or lacks a proper verification, shall be treated as an unsigned pleading. (4a)

Significance of counsel’s signature

Verification – affidavit by an affiant that he has read the pleading and that the allegations therein are true and correct of his personal knowledge or based on authentic records.

1. The signature of counsel constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay.

Note that “belief” as basis for verification has been deleted by a 1 May 2000 amendment.

2. An unsigned pleading produces no legal effect. However, the court may, in its discretion, allow such deficiency to be remedied if it shall appear that the same was due to mere inadvertence and not intended for delay.

Not all pleadings need to be verified.

3. Counsel who deliberately files an unsigned pleading, or signs a pleading in violation of this Rule, or alleges scandalous or indecent matter therein, or fails to promptly report to the court a change of his address, shall be subject to appropriate disciplinary action. Sec. 4. Verification. – Except when otherwise specifically required by law or rule, pleadings need not be under oath, verified or accompanied by affidavit.

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based on "information and belief," or upon "knowledge, information and belief" is not sufficient verification.

Sec. 5. Certification against forum shopping. — The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days Mark de Leon, JD 2001

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therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed. Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false certification or non-compliance with any of the undertakings therein shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions. (n) Certification against forum shopping (applies to initiatory pleadings; de Leon: and also to petitions for review, and petition for review on certiorari) 1. that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein 2. if there is such other pending action or claim, a complete statement of the present status thereof; and 3. if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within 5 days to the court wherein his aforesaid complaint or initiatory pleading has been filed If dismissal of a case on the ground of lack of certificate against forum shopping is silent, it is deemed to be without prejudice. If forum shopping was willful and deliberate, dismissal shall be with prejudice. Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

cf Rule 16, Sec. 5 Sec. 5. Effect of dismissal. — Subject to the right of appeal, an order granting a motion to dismiss based on paragraphs (f), (h) and (i) of section 1 hereof shall bar the refiling of the same action or claim. (n) Section 1. Grounds. — Within the time for but before filing the answer to the complaint or pleading asserting a claim, a motion to dismiss may be made on any of the following grounds: (f) That the cause of action is barred by a prior judgment or by the statute of limitations; (h) That the claim or demand set forth in the plaintiff's pleading has been paid, waived, abandoned, or otherwise extinguished; (i) That the claim on which the action is founded is unenforceable under the provisions of the statute of frauds; xxx CASES CHAVEZ V. SANDIGANBAYAN, 193 SCRA 282 (1991) A claim for damages based on malice and evident bad faith of a litigant’s counsel in filing a case is not a compulsory counterclaim in the case filed against him. It must be filed as a separate and distinct civil action for damages against such counsel. When a lawyer acts in the name of a client, he should not be sued in a counterclaim in the very same case he has filed only as counsel and not as a party. A counterclaim is possible only against a party to the action. BULACAN V. TORCINO, 134 SCRA 252 (1985) Mark de Leon, JD 2001 - 45 -

Facts: Complaint for forcible entry was signed by a non-lawyer friend of the plaintiff. Judgment for plaintiff. Defendant appeals before the RTC and moves to dismiss the case on the ground that the complaint was not signed by the plaintiff or by an attorney. Held: The complaint is valid as non-lawyer friends may assist litigants before the MTC. However, in cases before the RTC, the litigant must be aided by a member of the bar. ESTOESTA V. CA, 191 SCRA 303 (1990) Facts: Accused files motion to withdraw petition for review of an RTC judgment modifying an MTC conviction for slight physical injuries, in order to apply for probation. Probation was denied. Accused now moves to reconsider the withdrawal and to reinstate the petition for review because its withdrawal was filed without advice of counsel. Held: A party can always conduct litigation personally. If in the process his cause suffers reverses, he only has himself to blame. CORTEZ V. CA, 83 SCRA 31 (1978) Until counsel of record formally withdraws, court processes may be validly served upon him, even if his services have in fact been terminated. Service to him, is service to his client, even if he returns the document served on him to the court. Requirements for Substitution of Counsel during proceeding 1. written consent of party 2. written consent of attorney to be substituted

JUREIDINI V. CA, 83 SCRA 90 (1978) Lawyers' rights to fees from their clients cannot have a standing higher than the rights of the clients or parties themselves and may not be invoked by the lawyers themselves as a ground for disapproving or otherwise holding in abeyance the approval of the compromise agreement, since said rights can be enforced in the proper court in an appropriate proceeding. A petition for intervention cannot prevent the approval of a compromise agreement entered into by and between the parties litigants and the same will be denied where the claim of the intervenor can be properly ventiliated before the proper court in a separate proceeding. Escolin: In criminal cases, the accused has a constitutional right to counsel. Hence if his defense was handled by a fake attorney which resulted in to a conviction, the case should be remanded. The same is true when it comes to civil cases (Telan v. CA, 1991) STO. TOMAS UNIVERSITY V. SURLA, 294 SCRA 382 (1998) * A party need not execute a certification of non-forum shopping on a compulsory counterclaim. Only a permissive counterclaim must contain such certification. KAVINTA V. CASTILLO, JR., 249 SCRA 604 (1995) Mere submission of a certification of non-forum shopping after the filing of a motion to dismiss on the ground of such failure does not operate as a substantial compliance and does not cure the defect. The case may still be dismissed.

3. approval of court Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

Mark de Leon, JD 2001

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INTERNATIONAL CONTAINER TERMINAL V. CA, 249 SCRA 389 (1995)

defense, as the case may be, omitting the statement of mere evidentiary facts. (1)

For forum shopping to exist, both actions must involve the same transactions, same essential facts and circumstances. The actions must also raise identical causes of action, subject matter, and issues. There is forum shopping whenever, as a result of an adverse opinion in one forum, a party seeks a favorable opinion (other than by appeal or certiorari) in another.

If a defense relied on is based on law, the pertinent provisions thereof and their applicability to him shall be clearly and concisely stated. (n)

ORTIZ V. CA, 299 SCRA (1998) * Facts: Petition for review from the judgment of the RTC was filed with the CA. Certificate against forum-shopping was signed by counsel, not by the party. Held: A petition for review, for certiorari, for mandamus, and even appeal requires a certificate against forum-shopping. It must be the party himself who must certify. If only counsel certifies, the case should be dismissed, unless there is a statement of a reasonable and sufficient cause why the party could not sign the certification. de Leon: A perusal of the rules on appeal reveal that ordinary appeals does not require a certificate against forum shopping while petitions for review, petition for review on certiorari, and special civil action for certiorari does require a certificate against forum-shopping. MANNER OF MAKING ALLEGATIONS IN PLEADINGS RULE 8 Section 1. In general. — Every pleading shall contain in a methodical and logical form, a plain, concise and direct statement of the ultimate facts on which the party pleading relies for his claim or Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

Sec. 2. Alternative causes of action or defenses. — A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one cause of action or defense or in separate causes of action or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. (2) (Gatchalian v. Pabing). Sec. 3. Conditions precedent. — In any pleading a general averment of the performance or occurrence of all conditions precedent shall be sufficient. (3) Sec. 4. Capacity. — Facts showing the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party, must be averred. A party desiring to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued in a representative capacity, shall do so by specific denial, which shall include such supporting particulars as are peculiarly within the pleader's knowledge. (4) Sec. 5. Fraud, mistake, condition of the mind. — In all averments of fraud or mistake, the circumstances constituting fraud or mistake must be stated with particularity. Malice, intent, knowledge or other condition of the mind of a person may be averred generally. (5a) Mark de Leon, JD 2001

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Manner of making averments of 1. Fraud or mistake – particular 2. malice, intent, knowledge, or other condition of the mind – general If allegation of fraud or mistake is not particular, the remedy is to file a bill of particulars. Sec. 6. Judgment. — In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without setting forth matter showing jurisdiction to render it. (6) Judgment of other tribunals can be averred without alleging its jurisdiction. Sec. 7. Action or defense based on document. — Whenever an action or defense is based upon a written instrument or document, the substance of such instrument or document shall be set forth in the pleading, and the original or a copy thereof shall be attached to the pleading as an exhibit, which shall be deemed to be a part of the pleading, or said copy may with like effect be set forth in the pleading. (7) Sec. 8. How to contest such documents. — When an action or defense is founded upon a written instrument, copied in or attached to the corresponding pleading as provided in the preceding section, the genuineness and due execution of the instrument shall be deemed admitted unless the adverse party, under oath, specifically denies them, and sets forth what he claims to be the facts; but the requirement of an oath does not apply when the adverse party does not appear to be a party to the instrument or when compliance with an order for an inspection of the original instrument is refused. (8a) Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

Where an action or defense is based on a document, the substance of such document be set forth in the pleading and a copy thereof attached as an exhibit. The opposing party must specifically deny such document under oath, otherwise, the genuineness and due execution of the instrument shall be deemed admitted. The rule applies only to “pleadings,” not motions. Hence, an actionable document in a MTD need not be denied under oath. Note that even documents on which a defense is based must be denied under oath. This is an exception to the rule that all new matters in the answer are deemed controverted by failure to file a reply. cf Rule 7, Sec. 10 Sec. 10. Reply. — xxx If a party does not file such reply, all the new matters alleged in the answer are deemed controverted. “under oath” is the same as verified, or affidavit. Recall that pleadings need not be verified unless required by law or the rules (Rule 7, Sec. 4) Sec. 4. Verification. — Except when otherwise specifically required by law or rule, pleadings need not be under oath, verified or accompanied by affidavit. (5a) When denial under oath of an actionable document not required 1. the adverse party is not a party to the instrument 2. compliance with an order for an inspection of the original is refused The order referred to here is the order issued by the court pursuant to Rule 27, Sec. 1 Section 1. Motion for production or inspection; order. — Upon motion of any party showing good cause therefor, the court in which an action is pending may (a) order any party to produce Mark de Leon, JD 2001 - 48 -

and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, xxx. Sec. 9. Official document or act. — In pleading an official document or official act, it is sufficient to aver that the document was issued or the act done in compliance with law. (9) Allegations that may be general 1. ultimate fact, no evidentiary facts 2. pertinent provisions of law on which a defense relies on 3. conditions precedent 4. capacity or authority to sue and be sued, or legal existence must be averred 5. Malice, intent, knowledge or other condition of the mind 6. judgment of another court or tribunal, domestic or foreign 7. official document or official act 8. denial of unliquidated damages Allegations that must be specific 1. Questions as to legal existence or capacity to sue and be sued 2. circumstances constituting fraud or mistake must be stated with particularity 3. substance of an document on which an action or defense is based 4. contest of an actionable document (under oath) Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

5. denial of plaintiff’s allegations 6. denial of usurious interest (under oath) Sec. 10. Specific denial. — A defendant must specify each material allegation of fact the truth of which he does not admit and, whenever practicable, shall set forth the substance of the matters upon which he relies to support his denial. Where a defendant desires to deny only a part of an averment, he shall specify so much of it as is true and material and shall deny only the remainder. Where a defendant is without knowledge or information sufficient to form a belief as to the truth of a material averment made in the complaint, he shall so state, and this shall have the effect of a denial. (10a) For an allegation that defendant is “without knowledge or information sufficient to form a belief as to the truth of a material averment made in the complaint” to constitute denial, it must be shown that the defendant indeed was in no position to know the truth of the averment in the complaint. But if it can be demonstrated that he in fact was in a position to know, then the denial is ineffective and the averment is deemed admitted. Sec. 11. Allegations not specifically denied deemed admitted. — Material averment in the complaint, other than those as to the amount of unliquidated damages, shall be deemed admitted when not specifically denied. Allegations of usury in a complaint to recover usurious interest are deemed admitted if not denied under oath. (1a, R9) Sec. 12. Striking out of pleading or matter contained therein. — Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these Rules, upon motion made by a party within twenty (20) days after the service of the pleading upon him, or upon the court's own initiative at any time, the Mark de Leon, JD 2001

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court may order any pleading to be stricken out or that any sham or false, redundant, immaterial, impertinent, or scandalous matter be stricken out therefrom. (5, R9) Matters that may be stricken out from a pleading 1. sham or false

BOUGH AND BOUGH V. CANTIVEROS, 40 PHIL 209 (1919) Failure of a party to deny under oath the genuineness of an actionable document does not bar him from proving fraud, mistake, or other defenses that do not deny the genuineness and due execution of the instrument.

2. redundant HIBBERD V. ROHDE, 32 PHIL 476 (1915)

3. immaterial 4. impertinent 5. scandalous CASES The rule requiring denial under oath does not apply where the litigant signed the instrument merely as a witness, not as a party (Donato v. CA, 217 SCRA 196 [1993]). TORIBIO V. BIDIN, 134 SCRA 162 (1985) The requirement of denial under oath applies also to defenses based on a document attached to an answer. The offeror need not be a party to the instrument in order to require a denial under oath, as long as the adverse party is a party to the instrument. Allegation in a previous sworn pleading negating the possibility of execution of the instrument subsequently offered by the oppenent is sufficient denial under oath of such instrument. Escolin: Objection to evidence barred by the rule requiring denial under oath must be upon calling the witness, even before the question is put forth. Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

Failure to deny under oath the genuineness and due execution of an actionable document bars only evidence to controvert its due execution. Execution can only refer to the actual making and delivery, but it cannot involve other matters without enlarging its meaning beyond reason. The party whose signature it bears admits that he signed it or that it was signed by another for him with his authority; that at the time it was signed it was in words and figures exactly as set out in the pleading of the party relying upon it; that the document was delivered and that any formal requisites required by law, such as a seal, an acknowledgment, or revenue stamp, which it lacks, are waived by him (memorize!). It does not bar evidence of other defenses like want or illegal consideration. Defenses that are barred by failure to deny under oath a document upon which an action or defense is based 1. signature is a forgery 2. the signature was by an unauthorized agent or partner 3. the corporation was not authorized under its charter to sign the instrument 4. the party charged signed the instrument in some other capacity than that alleged in the pleading setting it out Mark de Leon, JD 2001

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5. the instrument was never delivered

document as having been raised in the pleadings (i.e. as if there had been a specific denial under oath).

JABALDE V. PNB, 7 SCRA 791 (1963) Presentation of evidence as to facts admitted by the failure to deny under oath, and failure to object when the opposing party offers evidence to controvert what he has already deemed to have admitted, amounts to a waiver of the admission. Escolin: Counsel for Jabalde should have objected on the ground that the fact that the evidence sought to prove had already been admitted. de Leon: If counsel did object, I submit that the offeror’s mere presentation of supporting evidence was enough waiver of the technical admission. cf Rule 10, Sec. 5 Sec. 5. Amendment to conform to or authorize presentation of evidence. — When issues not raised by the pleadings are tried with the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so with liberality if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby. The court may grant a continuance to enable the amendment to be made. (5a) Presentation of evidence by the offeror of the actionable document treats the issue of authenticity and due execution of the actionable Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

CENTRAL SURETY V. CN HODGES, 38 SCRA 159 (1971) Failure of the plaintiff to object to evidence constitutes a waiver of admission from failure to deny under oath. CAPITOL MOTORS V. YABUT, 32 SCRA 1 (1970) * The rule that deems as a denial an allegation of “lack of knowledge sufficient to form a belief as to the truth of an allegation of the adverse party” does not apply where the fact as to which the lack of knowledge is asserted is plainly within the defendant’s knowledge and his averment of ignorance must be palpably untrue (e.g. whether or not he executed a PN). The allegation of lack of knowledge must be in good faith and in sincerity. Mere allegation of ignorance is insufficient to raise an issue. Defendant must aver positively how it is that the is ignorant of the facts so alleged. de Leon: This in effect ruled that in order to effectively deny an actionable document, there must be a specific denial, and not just an allegation of lack of knowledge. Lack of knowledge as a denial is ineffective against actionable documents because the adverse party is always a party to the instrument being offered. Being a party to the instrument, it is always “plainly within his knowledge” whether the instrument offered is authentic or duly executed. Hence, to deny an actionable document, the denial must always be specific, and not just a mere allegation of lack of knowledge. EFFECT OF FAILURE TO PLEAD Mark de Leon, JD 2001 - 51 -

RULE 9 Rule 16 enumerate the grounds for MTD. Such grounds may not be raised in a MTD may be raised in the answer as an affirmative defense. Section 1. Defenses and objections not pleaded. — Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. However, when it appears from the pleadings or the evidence on record that the court has no jurisdiction over the subject matter, that there is another action pending between the same parties for the same cause, or that the action is barred by a prior judgment or by statute of limitations, the court shall dismiss the claim. (2a) Defenses appearing on the complaint which are not waived by failure to plead, on which the court may dismiss the claim 1. lack of jurisdiction over the subject matter 2. another action pending between the same parties for the same cause (lis pendentia) 3. action is barred by a prior judgment (res adjudicata) 4. Statute of limitations Sec. 2. Compulsory counterclaim, or cross-claim, not set up barred. — A compulsory counterclaim, or a cross-claim, not set up shall be barred. (4a) There are no exceptions to waiver of compulsory counterclaims, and cross-claims. Sec. 3. Default; declaration of. — If the defending party fails to answer within the time allowed therefor, the court shall, upon motion of the claiming party with notice to the defending party, and proof of Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

such failure, declare the defending party in default. Thereupon, the court shall proceed to render judgment granting the claimant such relief as his pleading may warrant, unless the court in its discretion requires the claimant to submit evidence. Such reception of evidence may be delegated to the clerk of court. (1a, R18) (a) Effect of order of default.— A party in default shall be entitled to notice of subsequent proceedings but not to take part in the trial. (2a, R18) A party in default is still entitled to notice of subsequent proceedings. (b) Relief from order of default.— A party declared in default may at any time after notice thereof and before judgment file a motion under oath to set aside the order of default upon proper showing that his failure to answer was due to fraud, accident, mistake or excusable negligence and that he has a meritorious defense. In such case, the order of default may be set aside on such terms and conditions as the judge may impose in the interest of justice. (3a, R18) (c) Effect of partial default.— When a pleading asserting a claim states a common cause of action against several defending parties, some of whom answer and the others fail to do so, the court shall try the case against all upon the answers thus filed and render judgment upon the evidence presented. (4a, R18) (d) Extent of relief to be awarded.— A judgment rendered against a party in default shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages. (5a, R18) (e) Where no defaults allowed.— If the defending party in an action for annulment or declaration of nullity of marriage or for legal separation fails to answer, the court shall order the prosecuting attorney to investigate whether or not a collusion between the parties exists, and if there is no collusion, to intervene for the State in Mark de Leon, JD 2001 - 52 -

order to see to it that the evidence submitted is not fabricated. (6a, Rl8) Procedure for declaring a defending party in default 1. failure to answer within the time allowed

prosecute his counterclaim in the same or in a separate action. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise declared by the court. (3a) Effects of default

2. motion of the claiming party

1. defaulting party still entitled to notice of subsequent proceedings, but not to take part in the trial

3. notice to the defending party

2. defaulting party may move to set aside the order of default, provided

4. court declares the defending party in default

a. filed at any time after notice of default and before judgment

5. Court either

b. motion must be under oath

a. requires the claimant to submit evidence (may be delegated to the clerk of court), or b. renders judgment granting the claimant such relief as his pleading may warrant, which shall not 1)

exceed the amount prayed for or

2)

be different in kind from that prayed for nor

3)

award unliquidated damages

The court has no authority to motu proprio declare a defendant in default. If the plaintiff does not move to declare the defendant in default, the court may motu proprio dismiss with prejudice the action on the ground of failure to prosecute under Rule 17 Sec. 3 Sec. 3. Dismissal due to fault of plaintiff. — If, for no justifiable cause, the plaintiff fails xxx to prosecute his action for an unreasonable length of time, xxx the complaint may be dismissed upon motion of the defendant or upon the court's own motion, without prejudice to the right of the defendant to Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

c. proper showing that 1)

his failure to answer was due to fraud, accident, mistake or excusable negligence (FAME), and

2)

he has a meritorious defense

3. When some of several defending parties answer and the others fail to do so, the court shall try the case against all upon the answers thus filed and render judgment upon the evidence presented. Escolin: after judgment on default is rendered, the remedy is Rule 37 (New Trial or Reconsideration), then appeal. But if the judgment has become final and executory, the remedy is Rule 38 (Relief from Judgments, Orders, or Other Proceedings). de Leon: If Rule 38 is no longer available, then use Rule 47 (Annulment of Judgments or Final Orders and Resolutions) Actions where no defaults allowed 1. annulment Mark de Leon, JD 2001

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2. declaration of nullity 3. legal separation

prescription. Plaintiff appeal on the ground that prescription as a ground to dismiss was waived by failure to file an answer. Held: The dismissal was proper.

CASES FERRER V. ERICTA, 84 SCRA 705 (1978) Facts: Dennis Pfleider, then 16 years old, drove a pick-up of his parents. He met an accident which resulted in injuries to Annette Ferrer in 31 December 1970. Ferrer parents sued in 6 January 1975. Actions for damages arising from physical injuries because of a tort must be filed within 4 years. Defendants’ answer did not raise the defense of prescription. They did not appear at the pre-trial and was declared in default. Held: Defense of prescription, even if not raised in a motion to dismiss or in the answer, is not waived unless such defense raises issues of fact not appearing upon the preceding pleading. The general rule that the defense of prescription can only be considered if invoked in the answer does not obtain when the evidence shows that the cause of action upon which plaintiff’s complaint is based is already barred by the statute of limitations. Moreso if the plaintiff’s own allegation in the complaint or the evidence it presented shows clearly that the action had prescribed. (PACSON V. LORENZO) * Facts: Plaintiff sues for reconveyance of land. Defendant filed MTD on the ground of prescription. Court denies the MTD on the ground that prescription was not indubitable. Defendant does not file an answer and was declared in default. Plaintiff’s evidence shows that the action had already prescribed. Plaintiff’s action was dismissed on the ground of Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

GARCIA V. MATHIS, 100 SCRA 251 (1980) Facts: Colonel Mathis dismissed Garcia from his employment at the Clark Air Force Base on the ground of bribery and collusion on 23 August 1956. Garcia sues on 18 November 1977, or after a lapse of more than 21 years Defendant enters a special appearance and files an MTD on the ground that no jurisdiction was acquired over his person because he was sued as a representative of a foreign sovereign not consenting to be sued. TC dismissed on the ground of prescription though this was not raised by the defendant. Held: The general rule is an action can not be held as prescribed if this was not raised in a motion to dismiss. An exception is when plaintiff’s own allegations in his complaint show that the action has prescribed. A MTD on this ground is not necessary. Furthermore, because of the special appearance which the defendant had entered, he was constrained to confine himself to showing that the trial court did not have jurisdiction over his person and had to exclude all other nonjurisdictional grounds in his MTD, otherwise he would have been deemed to have abandoned his special appearance and voluntarily submitted himself to the jurisdiction of the court. de Leon: cf Rule 14, Sec. 20. Sec. 20. Voluntary appearance. — The defendant's voluntary appearance in the action shall be equivalent to service of summons. The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. (23a) Mark de Leon, JD 2001 - 54 -

This is a reiteration of La Naval case. Assertion by the defendant of an affirmative relief in the MTD or filing of an answer is a voluntary appearance before the court.

dismiss the complaint on the ground that defendant has a bigger credit. However, any counterclaim set-up in excess of the court’s jurisdiction is waived. Failure of the defendant to set-up such claim does not bar him from filing a separate civil action on the same claim before the RTC.

GABUYA V. LAYUG, 250 SCRA 218 (1995) Facts: Gabuya sold land to Layug. Layug defaulted on the final installment. Gabuya sues Layug for annulment of contract with damages in Lanao Del Norte CFI (now RTC). Gabuya obtains a final and executory judgment in his favor. Thereafter, Layug files a complaint for reimbursement of the value of the improvements buildings and materials introduced on the lands. MTD by Gabuya was denied. Held: The claim for reimbursement should have been raised as a counterclaim in the previous case. Failure to do so precludes the relitigation of the same facts in a separate complaint. The claim for such improvements and indemnity is necessarily connected with the suit for the restitution or recovery of land. cf Rule 9 Sec. 2 Sec. 2. Compulsory counterclaim, or cross-claim, not set up barred. — A compulsory counterclaim, or a cross-claim, not set up shall be barred. (4a) CALO V. AJAX, 22 SCRA 996 (1968) Counterclaims that are beyond the jurisdiction of the MTC are not compulsory and are not waived by the failure to set up before the MTC. The rules allow such counterclaims to be set-up only for the defendant to prevent plaintiff from recovering from him. This means that should the court find both plaintiff's complaint and defendant's counterclaim (for an amount exceeding said court's jurisdiction) meritorious, it will simply Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

CAVILI V. FLORENDO, 154 SCRA 610 (1987) FACTS Private respondents Clarita, Ulpiano, Estrella, & Placida (all surnamed Cavili) filed a civil case against herein petitioners Perfecta, Primitivo, and Quirino (all surnamed Cavili) with the NegOcc CFI for Partition, Accounting, and Damages. Petitioners failed to file their Answer within the requested period. Upon motion of the private respondents, the petitioners were declared in default. Counsel for petitioner received a copy of the decision and filed a motion for new trial on the grounds of lack of jurisdiction over Primitivo and Quirino who had not been legally served with summons. Motion for new trial was granted in an Order in 23April. Private respondents filed MfR of the order granting new trial and prayed that a writ of execution be issued but only in so far as Perfecta is concerned. On 21July CFI set aside the order granting new trial and directed the execution. Petitioners MfR which was denied. Thus petitioner brought the case to the SC. SC granted petition, setting aside the 21July Order and reviving the 23April Order. Thereafter, the pre-trial and trial was scheduled before RTC. Petitioners presented Perfecta as their first witness. The respondents moved for her disqualification as a witness on the ground that having been declared in default, Perfecta has lost her standing in court and she cannot be allowed to participate in all proceedings therein, even as witness. Respondent Mark de Leon, JD 2001

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judge Florendo sustained the respondents’ contention and disqualified Perfecta from testifying. Petitioners filed MfR which was denied. HELD Parties in default are not disqualified from testifying in favor of non-defaulting co-defendants.

requires a showing of meritorious defense and FAME. A meritorious defense must concur with the satisfactory reason for the non-appearance of the defaulted party. AMENDED AND SUPPLEMENTAL PLEADINGS

PACETE V. CARRIAGA, 231 SCRA 321 (1994) FACTS Concepcion Alanis filed with Cotabato CFI a complaint for the declaration of nullity of the marriage between her husband Enrico. HELD There can be no defaults in actions for annulment of marriage or for legal separation. The court should instead order the prosecutor to investigate whether or not collusion between the parties exists, and to intervene for the State to see to it that the evidence submitted is not fabricated. Escolin: Actions for nulliy or annulment of marriage, and legal separation need not pass thru the Katarunggang Pambaranggay because the law does not authorize settlement of such cases.

RULE 10 Section 1. Amendments in general. — Pleadings may be amended by adding or striking out an allegation or the name of any party, or by correcting a mistake in the name of a party or a mistaken or inadequate allegation or description in any other respect, so that the actual merits of the controversy may speedily be determined, without regard to technicalities, and in the most expeditious and inexpensive manner. (1) How pleadings may be amended 1. by adding or striking out a. an allegation or

RAMNANI V. CA, 221 SCRA (1993) The remedies available to a defendant who has been declared in default are: a) before judgment – file a motion, under oath, to set aside the order of default on the ground that his failure to answer was due to FAME, and that he has a meritorious defense; b) after judgment, but before it has become final and executory – file a motion for new trial; c) after judgment has become final and executory – file a petition for relief (60days to file petition for relief); d) He may also appeal (certiorari – 60days to file) from the judgment rendered against him as contrary to the evidence or to the law, even if no petition to set aside the order of default has been presented by him. A motion to lift order of default Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

b. name of any party 2. by correcting a. a mistake in the name of a party b. a mistaken or inadequate allegation or description in any other respect Sec. 7. Filing of amended pleadings. — When any pleading is amended, a new copy of the entire pleading, incorporating the amendments, which shall be indicated by appropriate marks, shall be filed. (7a) Mark de Leon, JD 2001

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Sec. 2. Amendments as a matter of right. — A party may amend his pleading once as a matter of right at any time before a responsive pleading is served or, in the case of a reply, at any time within ten (10) days after it is served. (2a) Sec. 3. Amendments by leave of court. — Except as provided in the next preceding section, substantial amendments may be made only upon leave of court. But such leave may be refused if it appears to the court that the motion was made with intent to delay. Orders of the court upon the matters provided in this section shall be made upon motion filed in court, and after notice to the adverse party, and an opportunity to be heard. (3a) When amendments a matter of right (only once) 1. before a responsive pleading is served, or 2. in the case of a reply, within 10 days after it is served Procedure for substantial amendments by leave of court 1. motion filed in court 2. notice to the adverse party 3. opportunity to be heard 4. leave may be refused if it appears to the court that the motion was made with intent to delay Sec. 4. Formal amendments. — A defect in the designation of the parties and other clearly clerical or typographical errors may be summarily corrected by the court at any stage of the action, at its initiative or on motion, provided no prejudice is caused thereby to the adverse party. (4a) Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

Formal amendments — may be summarily corrected at any stage (even on appeal), motu propio or on motion, provided no prejudice is caused thereby to the adverse party 1. defect in the designation of the parties 2. other clearly clerical or typographical errors CUYUGAN V. DIZON, 79 PHIL 80 (1947) Facts: Cuyugan enters into a lease with Dizon. Dizon defaulted on his rentals, hence Cuyugan sued in Pampanga CFI. Cuyugan was married, but her husband did not join her as plaintiff. SC rules in favor of Cuyugan. Held: The fact that plaintiff’s husband was not joined as plaintiff does not merit dismissal nor remand of the case. The complaint may be amended to cure the defect even after a final decision has been rendered. Furthermore, there is no indication that plaintiff’s husband is hostile to his wife’s demand, or claims any interest adverse to hers, or that defendant has any evidence to present with reference to the husband. Plaintiff has 10 days from notice to file an amended complaint making her husband party plaintiff. After the amended complaint is filed, let judgment be entered. cf Rule 3 Sec. 4 Sec. 4. Spouses as parties. — Husband and wife shall sue or be sued jointly, except as provided by law. (4a) Sec. 5. Amendment to conform to or authorize presentation of evidence. — When issues not raised by the pleadings are tried with the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the Mark de Leon, JD 2001

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evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so with liberality if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby. The court may grant a continuance to enable the amendment to be made. (5a) When issues not raised by the pleadings are tried with the express or implied consent of the parties 1. treated as if raised in the pleadings 2. pleadings may be amended to conform to the evidence and to raise these issues, upon motion at any time, even after judgment 3. failure to amend does not affect the result of the trial of these issues.

Sec. 8. Effect of amended pleadings. — An amended pleading supersedes the pleading that it amends. However, admissions in superseded pleadings may be received in evidence against the pleader; and claims or defenses alleged therein not incorporated in the amended pleading shall be deemed waived. (n) For admissions in superseded pleadings to be received in evidence against the pleader, the adverse party must offer the superseded pleading as evidence. Sec. 6. Supplemental pleadings. — Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented. The adverse party may plead thereto within ten (10) days from notice of the order admitting the supplemental pleading. (6a)

If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings

Procedure for supplemental pleadings (refers to transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented)

1. the court may allow the pleadings to be amended and shall do so with liberality if it will subserve

1. motion of a party

a. the presentation of the merits of the action and b. the ends of substantial justice 2. The court may grant a continuance to enable the amendment to be made Sec. 6. Supplemental pleadings. — xxx (moved to after Sec. 8) Sec. 7. Filing of amended pleadings. — xxx (moved to after Sec. 1) Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

2. reasonable notice to the other party 3. upon such terms as are just, the court permits the party to serve a supplemental pleading 4. adverse party may plead thereto within 10 days from notice of the order admitting the supplemental pleading Amended pleading

Supplemental pleading

1. as to fact, events occurring before or at time of filing 1. event occurs after filing Mark de Leon, JD 2001

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of original pleading 2. supersedes original 3. may be filed as a matter of right in some instances CASES

introduced. Gulang filed a similar motion introducing the same defenses. Both motions were denied. MfR was also denied. 2. just additional to original pleading CFI ruled that Gulang encroached on Nadayag’s land. Gulang appealed 3. always with leave oftocourt the IAC. IAC held that CFI correctly denied the motion to amend the answer considering that it was filed after the case had been set for hearing and that it substantially altered his defense by adding grounds of prescription, estoppel, laches and fraud.

GULANG V. NADAYAG, 214 SCRA 355 (1992) FACTS Nadayag filed with Iligan CFI a complaint against Gulang. The Nadayags are co-owners of a parcel of land located in the port area. Gulang is also an owner of a parcel of land located in the port area. Before Gulang acquired the lot, she rented a portion of the same from Lasmarias. Lasmarias purchased from Nadayag’s predecessor-in-interest a parcel of land adjacent to the lot of the Nadayags. Nadayags complained against Gulang’s occupancy in their lot, the rentals of which Gulang paid to Lasmarias instead of Nadayag. Nadayags pray that Gulang be ordered to vacate and restore possession and/or ownership to them and that defendants be ordered to pay back rentals, moral and exemplary damages, and atty’s fees. In their answer, defendants deny the claim of plaintiffs and by way of affirmative and special defenses alleged that the defendants are the true, legal and lawful owner and in actual possession and occupation of the land in question. A survey by the Bureau of Lands was conducted and in conclusion stated that Gulang is occupying a portion of Nadayag’s land. But defendants counsel made an open court manifestation that his clients will not abide with the survey results. Lasmarias filed a motion to admit his amended answer in which defenses of want of cause of action, prescription, estoppel, laches and fraud were Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

HELD Though substantial amendments may be made even after the case has been set for hearing provided prior leave of court is obtained, such leave may be refused if the motion requesting for the same would delay the action or the cause of action or defenses would be substantially altered by the proposed amendment (e.g. raises issues of want of cause of action, prescription, estoppel, laches and fraud) WHEN TO FILE RESPONSIVE PLEADINGS RULE 11 Section 1. Answer to the complaint. — The defendant shall file his answer to the complaint within fifteen (15) days after service of summons, unless a different period is fixed by the court. (la) Sec. 2. Answer of a defendant foreign private juridical entity. — Where the defendant is a foreign private juridical entity and service of summons is made on the government official designated by law to receive the same, the answer shall be filed within thirty (30) days after receipt of summons by such entity. (2a) cf Rule 14, Sec. 12 Sec. 12. Service upon foreign private juridical entity. — When the defendant is a foreign private juridical entity which has Mark de Leon, JD 2001

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transacted business in the Philippines, service may be made on its resident agent designated in accordance with law for that purpose, or, if there be no such agent, on the government official designated by law to that effect, or on any of its officers or agents within the Philippines. (14a) Escolin: If the corporation is not doing business in the Philippines, the period to answer is 30 days from receipt of summons by such foreign entity. If the corporation is doing business in the Philippines, the period to answer is 15 days from receipt of summons by its resident agent. Sec. 3. Answer to amended complaint. — Where the plaintiff files an amended complaint as a matter of right, the defendant shall answer the same within fifteen (15) days after being served with a copy thereof. Where its filing is not a matter of right, the defendant shall answer the amended complaint within ten (10) days from notice of the order admitting the same. An answer earlier filed may serve as the answer to the amended complaint if no new answer is filed. This Rule shall apply to the answer to an amended counterclaim, amended cross-claim, amended third (fourth, etc.)-party complaint, and amended complaint-in-intervention. (3a) Period to answer when the complaint is amended 1. as a matter of right – within 15 days 2. not as a matter of right – within 10 days Sec. 4. Answer to counterclaim or cross-claim. — A counterclaim or cross-claim must be answered within ten (10) days from service. (4)

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Sec. 5. Answer to third (fourth, etc.)- party complaint. — The time to answer a third (fourth, etc.)- party complaint shall be governed by the same rule as the answer to the complaint. (5a) Sec. 6. Reply. — A reply may be filed within ten (10) days from service of the pleading responded to. (6) Sec. 7. Answer to supplemental complaint. — A supplemental complaint may be answered within ten (10) days from notice of the order admitting the same, unless a different period is fixed by the court. The answer to the complaint shall serve as the answer to the supplemental complaint if no new or supplemental answer is filed. (n) When response to the following pleadings must be filed 1. main complaint, third or fourth party complaint – within 15 days after service of summons, unless a different period is fixed by the court 2. if defendant is a foreign private juridical entity and service of summons is made on the government official so designated by law – within 30 days after receipt of summons by the foreign entity 3. amended claims a. 15 days from service of amended complaint, if amended as a matter of right b. 10 days from notice of admission of amended complaint, if amended with leave of court (An answer earlier filed may serve as the answer to the amended complaint if no new answer is filed) 4. answer, counterclaim or cross-claim – within 10 days from service 5. supplemental complaint – within 10 days from notice of the admitting court order, unless a different period is fixed by the court Mark de Leon, JD 2001 - 60 -

(answer to the complaint shall serve as the answer to the supplemental complaint if no new or supplemental answer is filed) Escolin: The period to answer to the counterclaim or cross-claim is shorter because the defendant is already familiar with the case, unlike in an original complaint, the defendant is not yet familiar with the claim.

Sec. 11. Extension of time to plead. — Upon motion and on such terms as may be just, the court may extend the time to plead provided in these Rules. The court may also, upon like terms, allow an answer or other pleading to be filed after the time fixed by these Rules. (7)

Sec. 8. Existing counterclaim or cross-claim. — A compulsory counterclaim or a cross-claim that a defending party has at the time he files his answer shall be contained therein. (8a, R6)

CASES

Sec. 9. Counterclaim or cross-claim arising after answer. — xxx (moved to after Sec. 10)

FACTS Segundo Goyala together with his wife Antonina sold to Faustino Gojo by a “Deed of Pacto de Retro Sale” a parcel of agri land, repurchase to be made within one year. About 10yrs after execution of said document, Gojo filed with the Sorsogon CFI a petition for consolidation of ownership of the land.

Sec. 10. Omitted counterclaim or cross-claim. — When a pleader fails to set up a counterclaim or a cross-claim through oversight, inadvertence, or excusable neglect, or when justice requires, he may, by leave of court, set up the counterclaim or cross-claim by amendment before judgment. (3a, R9) Grounds to admit an omitted counterclaim or cross-claim by amendment(before judgment) 1. oversight 2. inadvertence 3. excusable neglect 4. justice requires Sec. 9. Counterclaim or cross-claim arising after answer. — A counterclaim or a cross-claim which either matured or was acquired by a party after serving his pleading may, with the permission of the court, be presented as a counterclaim or a cross-claim by supplemental pleading before judgment. (9, R6) Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

GOJO V. GOYALA, 35 SCRA 557 (1970)

Goyala filed an opposition to the petition alleging that it was a mere mortgage and not a Pacto de Retro sale as evidenced by a deed of mortgage executed by the Goyalas. Goyala also alleged that he and Antonina went to Gojo’s house and tendered to him the payment of the debt, but Gojo refused to receive the same and to cancel the document of mortgage. Goyala also prayed that Gojo be ordered to pay Php1800 per annun (less the legl annual interest of the loan) as the reasonable monetary value of the products of the said land. Goyala’s counsel filed a manifestation informing the trial court the Antonina was already dead. Hearing was had on that manifestation and the trial court ordered Gojo’s counsel to submit an amemded complaint substituting Antonina with her successors-in-interest. Goyala filed MtD the complaint on the ground of failure to submit amended complaint. TC dismissed complaint without prejudice. Mark de Leon, JD 2001

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Thereafter, Goyala filed a motion to declare Gojo in default for failure to answer the counterclaim. TC declared Gojo in default. Gojo appeals to CA. CA certified the appeal to SC upon finding that the appeal involves purely questions of law. HELD A plaintiff who fails or chooses not to answer a compulsory counterclaim may not be declared in default, principally because the issues raised in the counterclaim are deemed automatically joined by the allegations of the complaint. BALLECER V. BERNARDO, 18 SCRA 291 (1966) FACTS Petitioner spouses Jose Agawin and Felicisima Ballecer instituted a civil case against Jose Bernardo to recover damages allegedly caused by him in consequence of the destruction and demolition of a portion of a wall of petitioners along the common boundary line of their lot and that of Bernardo, as well as recovery of possession of a portion of petitioners’ lot which was allegedly encroached upon by the wall subsequently erected by Bernardo. Bernardo filed his answer denying petitioners’ averments, and alleging that the demolition made by him took place within the boundary of his own property. By way of counterclaim, Bernardo claimed that petitioners were the ones who encroached and that petitioners’ complaint is premature, uncalled for, capricious and without any justifiable cause, for which Bernardo prayed that petitioners be sentenced to vacate his portion of land and to pay damages. On the last day of the reglementary period to answer counterclaim, petitioners filed an ex-parte urgent motion for extension of time, but the motion was denied and stricken off the record. Petitioners were declared in default as to counterclaim. Bernardo presented his evidence the Manila CFI ruled in favor of him. Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

Petitioners MfR but was denied. Petitioners filed a petitioner for relief from judgment which was granted only to be denied by the CFI on MfR by Bernardo. Petitioner filed their notice of appeal. Petitioners sought an extension of time to file their appeal bond and their record on appeal but was denied for lack of merit. The court ordered the issuance of the writ of execution but said writ was ordered stayed pending trial on the merits on petitioners’ complaint. On motion of Bernardo, said order was set aside and the issuance of a writ of execution was ordered. Petitioner MfR but was denied. Clerk of Court issued an alias writ of execution and Sheriff of Manila caused to be published a notice of sale at public auction of petitioners’ property. ISSUE WON CFI erred in declaring petitioners in default. HELD YES. Where the allegations in the counterclaim (not necessarily compulsory) have already been controverted by the original complaint, failure of the the defendant in the counterclaim to file an answer to the counterclaim is not sufficient to declare him in default. CALO V. AJAX, 22 SCRA 996 (1968) Counterclaims that are beyond the jurisdiction of the MTC are not compulsory and are not waived by the failure to set up before the MTC. The rules allow such counterclaims to be set-up only for the defendant to prevent plaintiff from recovering from him. This means that should the court find both plaintiff's complaint and defendant's counterclaim (for an amount exceeding said court's jurisdiction) meritorious, it will simply dismiss the complaint on the ground that defendant has a bigger credit. However, any counterclaim set-up in excess of the court’s jurisdiction is Mark de Leon, JD 2001

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waived. Failure of the defendant to set-up such claim does not bar him from filing a separate civil action on the same claim before the RTC. AGUSTIN V. BACALAN, 135 SCRA 340 (1985) Facts: Administrator of estate-lessor files a case for ejectment before the City Courts against the lessee. Lessee files counterclaim in excess of the City Court’s jurisdiction. City Court decides for plaintiff. On appeal, CFI rules for defendant and grants him damages. This became final. Plaintiff files separate action for nullifying the CFI decision on the ground that the damages awarded was beyond the jurisdiction of the City Court. Held: A counterclaim not presented in the lower court can not be entertained on appeal. Defendant is deemed to have waived his counterclaim in excess of the City Court’s jurisdiction. It is as though it has never been brought before City Court. It may not be entertained on appeal. The amount of judgment, therefore, obtained by the defendantappellee on appeal, cannot exceed the jurisdiction of the court in which the action began. Since the trial court did not acquire jurisdiction over the defendant's counterclaim in excess of the jurisdictional amount, the appellate court, likewise, acquired no jurisdiction over the same by its decisions or otherwise. When court transcends the limits prescribed for it by law and assumes to act where it has no jurisdiction, its adjudications will be utterly void and of no effect either as an estoppel or otherwise. The excess award of the CFI is therefore null and void. Action to declare nullity of award is proper. The award not in excess stands.

RULE 12 Section 1. When applied for; purpose. — Before responding to a pleading, a party may move for a definite statement or for a bill of particulars of any matter which is not averred with sufficient definiteness or particularity to enable him properly to prepare his responsive pleading. If the pleading is a reply, the motion must be filed within ten (10) days from service thereof. Such motion shall point out the defects complained of, the paragraphs wherein they are contained, and the details desired. (1a) Bill of particulars – definite statement of any matter which is not averred with sufficient definiteness or particularity to enable the adverse party properly to prepare his responsive pleading. Sec. 2. Action by the court. — Upon the filing of the motion, the clerk of court must immediately bring it to the attention of the court which may either deny or grant it outright, or allow the parties the opportunity to be heard. (n) Sec. 3. Compliance with order. — If the motion is granted, either in whole or in part, the compliance therewith must be effected within ten (10) days from notice of the order, unless a different period is fixed by the court. The bill of particulars or a more definite statement ordered by the court may be filed either in a separate or in an amended pleading, serving a copy thereof on the adverse party. (n)

Escolin: A compulsory counterclaim beyond the jurisdiction of the court can be filed as a separate action. If filed in the same action, the excess is deemed waived.

Sec. 4. Effect of non-compliance. — If the order is not obeyed, or in case of insufficient compliance therewith, the court may order the striking out of the pleading or the portions thereof to which the order was directed or make such other order as it deems just. (1[c]a)

BILL OF PARTICULARS

Sec. 5. Stay of period to file responsive pleading. — After service of the bill of particulars or of a more definite pleading, or after notice of

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denial of his motion, the moving party may file his responsive pleading within the period to which he was entitled at the time of filing his motion, which shall not be less than five (5) days in any event. (1[b]a)

time of filing his motion, which shall not be less than 5 days in any event.

Sec. 6. Bill a part of pleading. — A bill of particulars becomes part of the pleading for which it is intended. (1[a]a)

7. If the order is not obeyed, or in case of insufficient compliance, the court may order the striking out of the pleading or the portions thereof to which the order was directed or make such other order as it deems just.

A Bill of Particulars is not a pleading because it prays for relief not included in the judgment.

8. A bill of particulars becomes part of the pleading for which it is intended.

Procedure in bill of particulars 1. application by an adverse party before responding to a pleading, or within 10 days from service of the reply 2. clerk of court brings it to the attention of the court 3. (no hearing necessary) the court either a. deny it outright b. grant it outright c. allow the parties the opportunity to be heard 4. If the motion is granted, the compliance therewith must be effected within 10 days from notice of the order, unless a different period is fixed by the court. 5. The bill of particulars may be filed either in a separate or in an amended pleading, serving a copy thereof on the adverse party 6. After service of the bill of particulars or of a more definite pleading, or after notice of denial of his motion, the moving party may file his responsive pleading within the period to which he was entitled at the Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

CASES

SALITA V. MAGTOLIS, 233 SCRA 100 (1994) Facts: Espinosa sues his wife Salita for declaration of nullity on ground of psychological incapacity. Salita moves for bill of particulars. Granted. Espinosa complies by specifying that . . . at the time of their marriage, respondent (Joselita Salita) was psychologically incapacitated to comply with the essential marital obligations of their marriage in that she was unable to understand and accept the demands made by his profession — that of a newly qualified Doctor of Medicine — upon petitioner's time and efforts so that she frequently complained of his lack of attention to her even to her mother, whose intervention caused petitioner to lose his job. Salita was not content, but TC upholds its sufficiency and directed Joselita to file her responsive pleading. Held: A complaint only needs to state the ultimate facts constituting the plaintiff's cause or causes of action. Ultimate facts has been defined as Mark de Leon, JD 2001

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those facts which the expected evidence will support. The term does not refer to the details of probative matter or particulars of evidence by which these material elements are to be established. It refers to the facts which the evidence on the trial will prove, and not the evidence which will be required to prove the existence of those facts. A motion for bill of particulars will not be granted if the complaint, while not very definite, nonetheless already states a sufficient cause of action. A motion for bill of particulars may not call for matters which should form part of the proof of the complaint upon trial. Such information may be obtained by other means. The Bill of Particulars filed by private respondent is sufficient to state a cause of action, and to require more details from private respondent would be to ask for information on evidentiary matters. On the basis of the aforequoted allegations, it is evident that petitioner can already prepare her responsive pleading or for trial. AGCANAS V. MERCADO, 7 SCRA 688 (1963) Facts: Agcanas sues Mercado for recovery of parcels of land and damages. Mercado moves for a bill of particulars. Pending the motion, he also moves to dismiss with a prayer that consideration of the motion for a bill of particulars be held in abeyance pending resolution of the MTD. TC denied MTD and ordered Mercado to answer the complaint. Mercado did not, hence was declared in default. Mercado’s attempts to set aside the order of default were futile. Held: Both a motion to dismiss and a motion for a bill of particulars interrupt the time to file a responsive pleading. In the case of a motion to dismiss, the period starts running again as soon as the movant receives a copy of the order of denial. In the case of a motion for a bill of particulars, the suspended period shall continue to run upon service on the movant of the bill of particulars, if the motion is granted, or of the notice of its denial, but in any event he shall have not less than five days within which to file his responsive pleading. When Mercado’s MTD was denied, the Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

period to file an answer remained suspended until the motion for a bill of particulars is denied or, it is granted, until the bill is served on the moving party. No action having been taken on the motion for bill of particulars until the present, the period to answer has not yet expired. The TC, therefore, erred in declaring Mercado in default. SANTOS V. LIWAG, 101 SCRA 327 (1980) Facts: Santos files a complaint against Liwag seeking the annulment of certain documents as having been executed by means of misrepresentations, machination, false pretenses, threats, and other fraudulent means, as well as for damages. Liwag moved for a bill of particulars. BoP was granted. Santos fails to comply, hence his complaint was dismissed. Held: We find no merit in the appeal. The complaint is without doubt imperfectly drawn and suffers from vagueness and generalization to enable the defendant property to prepare a responsive pleading and to clarify issues and aid the court in an orderly and expeditious disposition of the case. The present action is one for the annulment of documents which have been allegedly executed by reason of deceit, machination, false pretenses, misrepresentation, threats, and other fraudulent means. Deceit, machination, false pretenses, misrepresentation, and threats, however, are largely conclusions of law and mere allegations thereof without a statement of the facts to which such terms have reference are not sufficient. The allegations must state the facts and circumstances from which the fraud, deceit, machination, false pretenses, misrepresentation, and threats may be inferred as a conclusion. In his complaint, the appellant merely averred that all the documents sought to be annulled were all executed through the use of deceits, machination, false pretenses, misrepresentation, threats, and other fraudulent means without the particular facts on which alleged fraud, deceit, machination, or misrepresentations are predicated. Hence, it was proper for the trial Mark de Leon, JD 2001

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court to grant the defendant's motion for a bill of particulars, and when the plaintiff failed to comply with the order, the trial court correctly dismissed the complaint. cf Rule 8, Sec. 5 Sec. 5. Fraud, mistake, condition of the mind. — In all averments of fraud or mistake, the circumstances constituting fraud or mistake must be stated with particularity. Malice, intent, knowledge or other condition of the mind of a person may be averred generally. (5a) de Leon: Was this dismissal for failure to file a bill of particulars with or without prejudice? I think it is with prejudice because it should be in the nature of a dismissal based on failure to prosecute.

counsel appears for several parties, he shall only be entitled to one copy of any paper served upon him by the opposite side. (2a) Filing – the act of presenting the pleading or other paper to the clerk of court. Service – the act of providing a party with a copy of the pleading or paper concerned. 1. If any party has appeared by counsel, service should be upon his counsel, unless service upon the party himself is ordered by the court. 2. Where one counsel appears for several parties, he shall only be entitled to one copy of any paper served upon him by the opposite side.

PLEADINGS, JUDGMENTS AND OTHER PAPERS

Sec. 4. Papers required to be filed and served. — Every judgment, resolution, order, pleading subsequent to the complaint, written motion, notice, appearance, demand, offer of judgment or similar papers shall be filed with the court, and served upon the parties affected. (2a)

RULE 13

Papers required to be filed and served

Section 1. Coverage. — This Rule shall govern the filing of all pleadings and other papers, as well as the service thereof, except those for which a different mode of service is prescribed. (n)

1. judgment

Sec. 2. Filing and service, defined. — Filing is the act of presenting the pleading or other paper to the clerk of court.

3. order

FILING AND SERVICE OF

Service is the act of providing a party with a copy of the pleading or paper concerned. If any party has appeared by counsel, service upon him shall be made upon his counsel or one of them, unless service upon the party himself is ordered by the court. Where one Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

2. resolution

4. pleading subsequent to the complaint 5. written motion 6. notice Mark de Leon, JD 2001

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7. appearance 8. demand 9. offer of judgment 10. or similar papers Sec. 11. Priorities in modes of service and filing. — Whenever practicable, the service and filing of pleadings and other papers shall be done personally. Except with respect to papers emanating from the court, a resort to other modes must be accompanied by a written explanation why the service or filing was not done personally. A violation of this Rule may be cause to consider the paper as not filed. (n) Except court papers, resort to modes other than personal service must be accompanied by a written explanation why the service or filing was not done personally, otherwise it is ground to consider the paper as not filed. Sec. 3. Manner of filing. — The filing of pleadings, appearances, motions, notices, orders, judgments and all other papers shall be made by presenting the original copies thereof, plainly indicated as such, personally to the clerk of court or by sending them by registered mail. In the first case, the clerk of court shall endorse on the pleading the date and hour of filing. In the second case, the date of the mailing of motions, pleadings, or any other papers or payments or deposits, as shown by the post office stamp on the envelope or the registry receipt, shall be considered as the date of their filing, payment, or deposit in court. The envelope shall be attached to the record of the case. (la) 2 ways of filing

1. personally presenting the original copies to the clerk of court, who shall endorse on the pleading the date and hour of filing 2. sending the original copies by registered mail, the date of the mailing as shown by the post office stamp on the envelope or the registry receipt, shall be considered as the date of their filing Note that filing may not be by ordinary mail or substituted service. These methods are available only on service of papers, not filing. Sec. 12. Proof of filing. — The filing of a pleading or paper shall be proved by its existence in the record of the case. If it is not in the record, but is claimed to have been filed personally, the filing shall be proved by the written or stamped acknowledgment of its filing by the clerk of court on a copy of the same; if filed by registered mail, by the registry receipt and by the affidavit of the person who did the mailing, containing a full statement of the date and place of depositing the mail in the post office in a sealed envelope addressed to the court, with postage fully prepaid, and with instructions to the postmaster to return the mail to the sender after ten (10) days if not delivered. (n) Proof of filing 1. its existence in the record of the case 2. If it is not in the record, but is claimed to have been filed a. Personally – written or stamped acknowledgment of its filing by the clerk of court on a copy b. registered mail – by the 1) 2)

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registry receipt and

affidavit of the person who did the mailing, containing a full statement of Mark de Leon, JD 2001 - 67 -

a) the date and place of depositing the mail in the post office

locality of either the sender or the addressee, service may be done by ordinary mail. (5a)

b) in a sealed envelope

Sec. 8. Substituted service. — If service of pleadings, motions, notices, resolutions, orders and other papers cannot be made under the two preceding sections, the office and place of residence of the party or his counsel being unknown, service may be made by delivering the copy to the clerk of court, with proof of failure of both personal service and service by mail. The service is complete at the time of such delivery. (6a)

c) addressed to the court d) with postage fully prepaid e) with instructions to the postmaster to return the mail to the sender after 10 days if not delivered Sec. 4. Papers required to be filed and served. — xxx (moved to after Sec. 2) Sec. 5. Modes of service. — Service of pleadings, motions, notices, orders, judgments and other papers shall be made either personally or by mail. (3a) Sec. 6. Personal service. — Service of the papers may be made by delivering personally a copy to the party or his counsel, or by leaving it in his office with his clerk or with a person having charge thereof. If no person is found in his office, or his office is not known, or he has no office, then by leaving the copy, between the hours of eight in the morning and six in the evening, at the party's or counsel's residence, if known, with a person of sufficient age and discretion then residing therein. (4a) Sec. 7. Service by mail. — Service by registered mail shall be made by depositing the copy in the office, in a sealed envelope, plainly addressed to the party or his counsel at his office, if known, otherwise at his residence, if known, with postage fully pre-paid, and with instructions to the postmaster to return the mail to the sender after ten (10) days if undelivered. If no registry service is available in the

Sec. 9. Service of judgments, final orders or resolutions. — Judgments, final orders or resolutions shall be served either personally or by registered mail. When a party summoned by publication has failed to appear in the action, judgments, final orders or resolutions against him shall be served upon him also by publication at the expense of the prevailing party. (7a) When a party summoned by publication has failed to appear in the action, judgments, final orders or resolutions against him shall be served upon him also by publication at the expense of the prevailing party. Sec. 10. Completeness of service. — Personal service is complete upon actual delivery. Service by ordinary mail is complete upon the expiration of ten (10) days after mailing, unless the court otherwise provides. Service by registered mail is complete upon actual receipt by the addressee, or after five (5) days from the date he received the first notice of the postmaster, whichever date is earlier. (8a) Sec. 11. Priorities in modes of service and filing. — xxx (moved to before Sec. 3) 4 modes of service of papers 1. personal – complete upon delivery

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2. Registered mail – complete upon actual receipt, or after 5 days receipt of first notice of the postmaster, whichever is earlier 3. ordinary mail – complete upon expiration of 10 days after mailing, unless the court otherwise provides 4. substituted service – complete upon delivery to the clerk of court Priorities in personal service of papers 1. leaving it in his office with his clerk or with a person having charge thereof 2. if not possible, then by leaving the copy, between 8 a.m. to 6 p.m. at his residence, with a person of sufficient age and discretion then residing therein Priorities in service by mail of papers 1. registered mail to office, if known 2. otherwise registered mail to residence, if known 3. If no registry service is available in the locality of either the sender or the addressee, service may be done by ordinary mail. Requisites for substituted service of papers

Sec. 12. Proof of filing. — xxx (moved to after Sec. 3) Sec. 13. Proof of service. — Proof of personal service shall consist of a written admission of the party served, or the official return of the server, or the affidavit of the party serving, containing a full statement of the date, place and manner of service. If the service is by ordinary mail, proof thereof shall consist of an affidavit of the person mailing of facts showing compliance with section 7 of this Rule. If service is made by registered mail, proof shall be made by such affidavit and the registry receipt issued by the mailing office. The registry return card shall be filed immediately upon its receipt by the sender, or in lieu thereof the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee. (10a) cf Rule 13, Sec. 7 Sec. 7. Service by mail. — Service by registered mail shall be made by depositing the copy in the office, in a sealed envelope, plainly addressed to the party or his counsel at his office, if known, otherwise at his residence, if known, with postage fully pre-paid, and with instructions to the postmaster to return the mail to the sender after ten (10) days if undelivered. If no registry service is available in the locality of either the sender or the addressee, service may be done by ordinary mail. (5a)

1. service can not be made personally or by mail

Proof of service of papers

2. the office and residence of the party or his counsel being unknown

1. personal service – shall consist of

3. deliver a copy to the clerk of court 4. with proof of failure of both personal service and service by mail (certified or sworn copy of the notice given by the postmaster to the addressee) Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

a. either 1)

written admission of the party served

2)

official return of the server, or

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3)

the affidavit of the party serving

b. and, containing a full statement of the 1)

date

2)

place and

3)

manner of service.

2. registered mail – proof shall be made by a. affidavit showing 1)

deposit of the copy in the office

2)

in a sealed envelope

3) 4) 5)

plainly addressed to the party or his counsel at his office, if known, otherwise at his residence, if known postage fully pre-paid with instructions to the postmaster to return the mail to the sender after 10 days if undelivered

b. registry receipt issued by the mailing office c. and, registry return card which should be filed immediately upon its receipt by the sender (Escolin: not really required)

Sec. 14. Notice of lis pendens. — In an action affecting the title or the right of possession of real property, the plaintiff and the defendant, when affirmative relief is claimed in his answer, may record in the office of the registry of deeds of the province in which the property is situated a notice of the pendency of the action. Said notice shall contain the names of the parties and the object of the action or defense, and a description of the property in that province affected thereby. Only from the time of filing such notice for record shall a purchaser, or encumbrancer of the property affected thereby, be deemed to have constructive notice of the pendency of the action, and only of its pendency against the parties designated by their real names The notice of lis pendens hereinabove mentioned may be cancelled only upon order of the court, after proper showing that the notice is for the purpose of molesting the adverse party, or that it is not necessary to protect the rights of the party who caused it to be recorded. (24a, R14) Procedure in a notice of lis pendens (either by the plaintiff or the defendant, when affirmative relief is claimed in his answer) 1. action affecting the title or the right of possession of real property 2. record in the office of the registry of deeds of the province in which the property is situated a notice of the pendency of the action 3. notice shall contain the

3. ordinary mail – consist of an affidavit of the person mailing showing no registry service is available in the locality of either the sender or the addressee

a. names of the parties

4. Substituted service

c. description of the property affected

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b. object of the action or defense

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4. Only from the time of filing such notice for record shall a purchaser, or encumbrancer of the property affected thereby, be deemed to have constructive notice of the pendency of the action, and only of its pendency against the parties designated by their real names 5. notice of lis pendens may be cancelled only upon order of the court, after proper showing that a. the notice is for the purpose of molesting the adverse party, or b. it is not necessary to protect the rights of the party who caused it to be recorded CASES BENGUET ELECTRIC V. NLRC, 209 SCRA 55 (1992) FACTS Peter Cosalan was the GenMgr of Benguet Electric Coop (BENECO). Cosalan received Audit Memo#1 issued by the COA. The memo noted that cash advances received by officers and employees of BENECO had beed virtually written off in the books of BENECO. COA directed BENECO to secure the approval of the Nat’l Electric Admin (NEA) before writing off said cash advances. COA issued another memo addressed to Cosalan inviting attention to the fact that the audit of per diems and allowances received by officials and members of the Board of Directors of BENECO showed substantial inconsistencies with the directives of the NEA. The memo once again directed the taking of immediate action in conformity with existing NEA regulations. BENECO received COA Audit Report on the financial status and operations of BENECO. The report noter the irregularities in the use of funds released by NEA to BENECO and recommended that appropriate remedial action be taken. Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

BENECO board adopted resolutions HELD Transmission through a private carrier or letter-forwarder, instead of the Philippine Post Office, is not a recognized mode of filing pleadings. The date of delivery of pleadings to a private letter-forwarding agency is not to be considered as the date of filing thereof in court. In such cases, the date of actual receipt by the court, and not the date of delivery to the private carrier, is deemed the date of filing of that pleading. ALIPOOS V. CA, 106 SCRA 159 (1981) Where a party is represented by counsel on record, service of papers should be made to such counsel. Service to the party himself is ineffective, until the party actually gives the paper served to his counsel on which date the paper is deemed served. MAGNO V. CA, 152 SCRA 555 (1987) When a party is represented by counsel, notice should be made upon the counsel of record at his given address to which notices of all kinds emanating from the court should be sent in the absence of a proper and adequate notice to the court of a change of address. The rule is that in case of failure of the addressee to claim his registered mail, service of notice becomes effective at the expiration of the 5-day period from the date of first notice. If counsel moved to another address without informing the court of his change of address the omission or neglect will not affect the date the paper is deemed served. Subsequent service on the clients themselves is not even necessary. ADAMSON OZANAM EDUCATIONAL INSTITUTION V. ADAMSON UNIVERSITY FACULTY AND EMPLOYEES ASSOCIATION, 179 SCRA 279 (1989) Mark de Leon, JD 2001 - 71 -

Where the copy of the decision is served on a person (e.g. security guard) who is neither a clerk nor one in charge of the attorney's office, such service is invalid and is not considered as service on the party. ARAMBURO V. CA, 101 SCRA 146 (1980) The duty of proving service of the appellant's brief upon the appellee lies with the appellant. Registry receipts alone does not prove service by registered mail. The registry receipts are evidence of the posting of the mail matter with the post office of the sender — not of the delivery of said mail matter by the post office of the addressee. Furthermore, the date of actual delivery to the addressee cannot be ascertained from such registry receipts. To prove serviceby registered mail, the registry receipts must be accompanied by the affidavit of the serving party, and the registry return card or the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee. SOLAR TEAM ENTERTAINMENT V. RICAFORTE, 293 SCRA 661 (1998) Facts: Defendants filed their answer, a copy of which was served on plaintiff’s counsel through registered mail. There was no written explanation as to why service was not made personally. Plaintiff moves to expunge the answer and to declare the defendant in default. Offices of counsels of both parties are only 200 meters apart. Held: Personal service and filing is the general rule, and resort to other modes of service and filing, the exception. Whenever personal service or filing is practicable, in light of the circumstances of time, place and person, personal service or filing is mandatory. Only when personal service or filing is not practicable may resort to other modes be had, which must then be accompanied by a written explanation as to why personal service or filing was not practicable to begin with. In adjudging Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

the plausibility of an explanation, a court shall likewise consider the importance of the subject matter of the case or the issues involved therein, and the prima facie merit of the pleading sought to be expunged. This applies to both service of pleadings and other papers on the adverse party or his counsel and to the filing of pleadings and other papers in court. Here, in view of the proximity between the offices of opposing counsel and the absence of any attendant explanation as to why personal service of the answer was not effected, the motion to expunge was prima facie meritorious. However, the grant or denial of said motion nevertheless remained within the sound exercise of the trial court's discretion. The 1997 Rules of Civil Procedure took effect only on 1 July 1997, while the questioned answer was filed only on 8 August 1997, or on the 39th day following the effectivity of the 1997 Rules. Defendant’s counsel may not have been fully aware of the pertinent requirements. His shortcomings may be condoned. However strictest compliance with Section 11 of Rule 13 is mandated one month from promulgation of this Decision. SUMMONS RULE 14 Section 1. Clerk to issue summons. — Upon the filing of the complaint and the payment of the requisite legal fees, the clerk of court shall forthwith issue the corresponding summons to the defendants. (1a) Sec. 2. Contents. — The summons shall be directed to the defendant, signed by the clerk of court under seal, and contain: (a) the name of the court and the names of the parties to the action; (b) a direction that the defendant answer within the time fixed by these Rules; (c) a notice that unless the defendant so answers, plaintiff will take judgment by default and may be granted the relief applied for. Mark de Leon, JD 2001

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A copy of the complaint and order for appointment of guardian ad litem, if any, shall be attached to the original and each copy of the summons. (3a)

Procedure in summons

Contents of a summons

2. the clerk of court issues the corresponding summons to the defendants

1. names of the court and parties to the action 2. a direction that the defendant answer within the time fixed by these Rules 3. a notice that unless the defendant so answers, plaintiff will take judgment by default and may be granted the relief applied for. 4. copy of the complaint and order for appointment of guardian ad litem, if any Sec. 3. By whom served. — The summons may be served by the sheriff, his deputy, or other proper court officer, or for justifiable reasons by any suitable person authorized by the court issuing the summons. (5a) Sec. 4. Return. — When the service has been completed, the server shall, within five (5) days therefrom, serve a copy of the return, personally or by registered mail, to the plaintiff's counsel, and shall return the summons to the clerk who issued it, accompanied by proof of service. (6a) Sec. 5. Issuance of alias summons. — If a summons is returned without being served on any or all of the defendants, the server shall also serve a copy of the return on the plaintiff's counsel, stating the reasons for the failure of service, within five (5) days therefrom. In such a case, or if the summons has been lost, the clerk, on demand of the plaintiff, may issue an alias summons. (4a) Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

1. filing of the complaint and the payment of the requisite legal fees

3. summons served by a. the sheriff b. his deputy c. other proper court officer, or d. any suitable person authorized by the court issuing the summons, for justifiable reasons 4. If a. service has been completed – within 5 days from service, the server shall 1)

serve a copy of the return, personally or by registered mail, to the plaintiff's counsel and

2)

return the summons to the clerk who issued it, accompanied by proof of service

b. If a summons is returned without being served on any or all of the defendants 1)

server shall serve a copy of the return on the plaintiff's counsel, stating the reasons for the failure of service within 5 days therefrom

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2)

the clerk, on demand of the plaintiff, may issue an alias summons (also if summons has been lost)

de Leon: Here is my humble attempt to condense the rules on summons on defendant who is a 1. resident a. Present in the Philippines 1)

Personal service (Rule 14, Sec. 6)

2)

Substituted service (Rule 14, Sec. 7)

3)

Publication, but only if

a) his identity or whereabouts is unknown (Rule 14, Sec. 14), AND b) the action is in rem or quasi in rem [Citizen Surety v. Melencio-Herrera, 38 SCRA 369 (1971)] b. Absent from the Philippines 1) 2)

Substituted service (Rule 14, Sec. 7) Extraterritorial service {Rule 14, Sec. 16 and 15; action need not be in rem or quasi in rem [Valmonte v. CA, 252 SCRA 92 (1996)]}

2. non-resident a. Present in the Philippines 1)

Personal service (Rule 14, Sec. 6)

2)

Substituted service (Rule 14, Sec. 7)

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b. Absent from the Philippines 1)

Action in rem or quasi in rem – only Extraterritorial service (Rule 14, Sec. 15)

2)

Action in personam, and judgment can not be secured by attachment (e.g. action for injunction)

a) wait for the defendant to come to the Philippines and to serve summons then b) bait the defendant to voluntarily appear in court (Rule 14, Sec. 20) c) plaintiff can NOT resort to extraterritorial service of summons [Kawasaki Port Services v. Amores, 199 SCRA 230 (1991), and Dial Corporation v. Soriano, 161 SCRA 737 (1988)]. Sec. 6. Service in person on defendant. — Whenever practicable, the summons shall be served by handing a copy thereof to the defendant in person, or, if he refuses to receive and sign for it, by tendering it to him. (7a) Sec. 7. Substituted service. — If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendant's residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendant's office or regular place of business with some competent person in charge thereof. (8a) Priority in modes of service of summons

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1. personal - by handing a copy to the defendant, or, if he refuses to receive and sign for it, by tendering it to him 2. substituted – by leaving copies of the summons at the a. defendant's residence with some person of suitable age and discretion then residing therein, or b. defendant's office or regular place of business with some competent person in charge thereof Whenever practicable, the summons shall be served personally. If, for justifiable causes, the defendant cannot be served within a reasonable time, service may be effected by substituted service. Note that in substituted service of summons, priority is the residence of the defendant himself, not counsel, before office, while in service of other papers, priority is the office of counsel of record, before the residence. Summons are served on the defendant himself because he has yet no counsel of record, unlike service of other papers which are served primarily on counsel. Summons may not be served by registered or ordinary mail. Substituted service in summons (leaving copies not with the defendant personally) is different in substituted service of other papers (leaving copies with the clerk of court). de Leon: Distinguish filing of papers, from service of papers and service of summons Sec. 8. Service upon entity without juridical personality. — When persons associated in an entity without juridical personality are sued under the name by which they are generally or commonly known, Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

service may be effected upon all the defendants by serving upon any one of them, or upon the person in charge of the office or place of business maintained in such name. But such service shall not bind individually any person whose connection with the entity has, upon due notice, been severed before the action was brought. (9a) cf Rule 3, Sec. 15 Sec. 15. Entity without juridical personality as defendant. — When two or more persons not organized as an entity with juridical personality enter into a transaction, they may be sued under the name by which they are generally or commonly known. In the answer of such defendant, the names and addresses of the persons composing said entity must all be revealed. (15a) Chang Kai Shek v. CA, 172 SCRA 389 (1989) Facts: Dismissed teacher sues unincorporated school. Plaintiff tries to amend to implead school officials, but CFI dismissed the case. CA reverses. Held: The school can not invoke its non-compliance with the law to escape being sued. It is now in estoppel. Sec. 9. Service upon prisoners. — When the defendant is a prisoner confined in a jail or institution, service shall be effected upon him by the officer having the management of such jail or institution who is deemed deputized as a special sheriff for said purpose. (12a) Sec. 10. Service upon minors and incompetents. — When the defendant is a minor, insane or otherwise\ an incompetent, service shall be made upon him personally and on his legal guardian if he has one, or if none, upon his guardian ad litem whose appointment shall Mark de Leon, JD 2001

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be applied for by the plaintiff. In the case of a minor, service may also be made on his father or mother. (10a, 11a) Service of summons on minor and incompetents should be both personally AND on his legal guardian. Sec. 11. Service upon domestic private juridical entity. — When the defendant is a corporation, partnership or association organized under the laws of the Philippines with a juridical personality, service may be made on the president, managing partner, general manager, corporate secretary, treasurer, or in-house counsel. (13a) Sec. 12. Service upon foreign private juridical entity. — When the defendant is a foreign private juridical entity which has transacted business in the Philippines, service may be made on its resident agent designated in accordance with law for that purpose, or, if there be no such agent, on the government official designated by law to that effect, or on any of its officers or agents within the Philippines. (14a) cf Rule 11 Sec. 2 Sec. 2. Answer of a defendant foreign private juridical entity. — Where the defendant is a foreign private juridical entity and service of summons is made on the government official designated by law to receive the same, the answer shall be filed within thirty (30) days after receipt of summons by such entity. (2a) Sec. 13. Service upon public corporations. — When the defendant is the Republic of the Philippines, service may be effected on the Solicitor General; in case of a province, city or municipality, or like public corporations, service may be effected on its executive head, or on such other officer or officers as the law or the court may direct. (15)

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Sec. 14. Service upon defendant whose identity or whereabouts are unknown. — In any action where the defendant is designated as an unknown owner, or the like, or whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry, service may, by leave of court, be effected upon him by publication in a newspaper of general circulation and in such places and for such time as the court may order. (16a) Escolin: Service by publication can only be possible if the action is in rem or quasi in rem. If the action is in personam, summons by publication is not valid. Requisites for service by publication 1. the action is in rem or quasi in rem 2. defendant’s identity or whereabouts a. are unknown and b. cannot be ascertained by diligent inquiry 3. with leave of court Sec. 15. Extraterritorial service. — When the defendant does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff or relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent, or in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or the property of the defendant has been attached within the Philippines, service may, by leave of court, be effected out of the Philippines by personal service as under section 6; or by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the Mark de Leon, JD 2001

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summons and order of the court shall be sent by registered mail to the last known address of the defendant, or in any other manner the court may deem sufficient. Any order granting such leave shall specify a reasonable time, which shall not be less than sixty (60) days after notice, within which the defendant must answer. (l7a) Sec. 16. Residents temporarily out of the Philippines. — When any action is commenced against a defendant who ordinarily resides within the Philippines, but who is temporarily out of it, service may, by leave of court, be also effected out of the Philippines, as under the preceding section. (18a) Requisites for extraterritorial service 1. Either a. defendant does not reside and is not found in the Philippines, or b. defendant ordinarily resides within the Philippines, but who is temporarily out of it 2. action either a. affects the personal status of the plaintiff or b. relates to, or the subject of which is, property within the Philippines 1) 2)

3)

in which the defendant has or claims a lien or interest, or in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or

3. leave of court 4. the order shall specify a reasonable time, which shall not be less than 60 days after notice, within which the defendant must answer Actions in rem or quasi in rem 1. affects the personal status of the plaintiff or 2. relates to, or the subject of which is, property within the Philippines a. in which the defendant has or claims a lien or interest, actual or contingent, or b. in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or c. belonging to the defendant and has been attached How extraterritorial service of summons effected – with leave of court 1. by personal service out of the Philippines 2. by publication with copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or 3. in any other manner the court may deem sufficient (should be resorted to when #2 is impossible) a. e.g. service by registered mail where registry return shows actual receipt [Carriaga, Jr. v. Malaya, 143 SCRA 441 (1986)] b. must be made outside the Philippines [Valmonte v. CA, 252 SCRA 92 (1996)]

belongs to the defendant and has been attached

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CARRIAGA, JR. V. MALAYA, 143 SCRA 441 (1986) FACTS Plaintiffs (private respondents herein) Ana Almonte Cariaga Soon filed in her behalf and in behalf of her minor daughter Carolina, an action for (1) Annulment of a Deed of Extra-Judicial Partition of Real Property, (2) Cancellation of Transfer Certificate of Title (TCT), (3) Recovery of Real Property with damages, in the Laguna CFI. All defendants in said action filed their answer with counterclaim with the exception of defendants (petitioners herein) Jose C. Cariaga Jr. and Marieta Cariaga-Celis who were both residing abroad and were not served with summons. The lower court upon motion of plaintiffs granted them leave to effect extra-territorial service of summons upon said defendants pursuant to Secs. 7, 17 and 18 of Rule 14 of the New Rules of Court. Accordingly, summons with copies of the complaint were served to the defendants by registered mail abroad (Guam and U.S.A.) by the Clerk of Court at the instance of plaintiffs. Defendants, who are residents of the Philippines, filed a motion to set aside the said summons and to declare the service of summons abroad by registered mail as null and void, it being allegedly irregular and unauthorized under the provisions of Rule 14 of the Rules of Court to which motion plaintiffs filed their opposition. CFI denied the motion and ruled that "Defendants Jose C. Cariaga, Jr., and Marietta C. Cariaga, having already received copies of plaintiffs' Complaint with the service of summons on them, said defendants are given NINETY (90) days from receipt of this Order within which to file responsive pleadings.

principles laid down in the provisions of Secs. 17, 7 and 22, Rule 14 of the New Rules of Court to Wit: "Section 17. Extraterritorial service. When the defendant does not reside and is not found in the Philippines and the action affects the personal status of the plaintiff or relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent, or in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or the property of the defendant has been attached within the Philippines, service may, by leave of court, be effected out of the Philippines by personal service as under Section 7; or by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or in any other manner the court may deem sufficient. Any order granting such leave shall specify a reasonable time, which shall not be less than sixty (60) days after notice, within which the defendant must answer." Sec. 7. Personal service of summons. The summons shall be served by handing a copy thereof to the defendant in person, or if he refuses to receive it, by tendering it to him."

Defendants (petitioner herein), residing abroad, by special appearance and thru counsel filed their motion to consider the service of summons upon them by registered mail as null and void. CFI issued another order denying the said motion.

Sec. 22. Proof of service by registered mail. Service by registered mail under this rule may be proved by a certificate of the sheriff or affidavit of the person especially authorized by the court, showing that a copy of the summons and papers attached thereto, inclosed in an envelope and addressed to the defendant, with postage prepaid, has been mailed, to which certificate or affidavit the registry receipt and return card shall be attached."

ISSUE Whether the service of summons by registered mail upon defendants in the case at bar is one which is contemplated within the

HELD Under Section 17, extraterritorial service of summons is proper: (1) when the action affects the personal status of the plaintiff; (2) when the

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action relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent; (3) when the relief demanded in such an action consists, wholly or in part, in excluding the defendant from any interest in property located in the Philippines; and (4) when defendant nonresident's property has been attached within the Philippines (Sec. 17, Rule 14, Rules of Court). In any of such four cases, the service of summons may, with leave of court, be effected out of the Philippines in three ways: (1) by personal service; (2) by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court should be sent by registered mail to the last known address of the defendant; and (3) in any other manner which the court may deem sufficient. The third mode of extraterritorial service of summons was substantially complied with in this case. (De Midgely v. Ferandos, 64 SCRA 23, 33, 34). There is no question that the requirement of due process has been met as shown by the fact that defendants actually received the summonses and copies of the complaint and as evidenced by the Registry Return Cards marked as Annex A-1 (page 56-Record) and Annex B-1. Whatever defect there may have been in the service of summons was aptly corrected by the court a quo in its assailed order dated January 16, 1978, which gave said defendants ninety (90) days from receipt of order within which to file their responsive pleadings. Defendants have no reason to complain that they were unaware of the action filed against them or claim that they were denied due process. The case of Habana v. Vamenta et al., L-27091, June 30, 1970, or 33 SCRA 569, cited by the petitioners in support of their claim has no bearing in the case at bar since in said case service of summons was never made, even if defendant knew of the case against him, while in the case under Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

consideration, service of summons was made upon them (although claimed erroneously by them as defective). HELD When extraterritorial service of summons is proper, service by registered mail is sufficient (“in any other manner which the court may deem sufficient”). More so if the defendants actually received the summons and copies of the complaint and as evidenced by the Registry Return Cards. Whatever defect there may have been in the service of summons may be corrected by the court by giving the defendants 90 days from receipt of order within which to file their responsive pleadings. Escolin: There is no provision that allows extraterritorial service by registered mail only. In this case, it was allowed only because the registry card was returned which proved that the defendant abroad did in fact receive the summons, otherwise the court would not have allowed it. MONTALBAN V. MAXIMO, 22 SCRA 1070 (1968) Summons is validly served if it is left wth "some person of suitable age and discretion then residing" in the defendant’s residence, even if defendant was abroad at that time. Plaintiff is not obligated to ensure that the summons was actually delivered to the defendant. The fact that the defendant did not actually receive the summons will not invalidate the service of such summons. Extraterritorial service is but one of the modes of effective service to bring a defendant in court. The normal method of service of summons on one temporarily absent is by substituted service. Extraterritorial service (personal service outside the country and service by publication) are not ordinary means of summoning defendants. Where personal service is impossible, substituted service becomes a necessity. NOTE: Laus ruling now applies. Mark de Leon, JD 2001

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FACTS Plaintiffs commenced suit against Fr. Gerardo Maximo who, according to the complaint, was residing at the parish church at Concepcion, Malabon, Rizal. Plaintiffs' cause of action for damages sprang from a motor vehicle accident which occurred at Padre Faura St., Manila. Paul Hershell Montalban, son of plaintiffs, suffered injuries.

defendant alleged that he was then "financially hard up," and that the Sheriff found no property that could be subject to execution.

The complaint was filed, summons was served on defendant Fr. Maximo at the parish church of Concepcion, Malabon, Rizal, through Fr. Arsenio Bautista — a priest in the same parish church.

Deputy Sheriff attached and levied on a residential house located in Caloocan City and purportedly belonging to defendant.

Fr. Bautista sent a letter to the Clerk of Court of the Manila CFI, informing him that defendant Fr. Maximo left for Europe and "will be back on the first week of November." Actually, Fr. Maximo returned from abroad about the second week of October, 1958. CFI declared defendant in default, on plaintiffs' motion. Upon plaintiffs' evidence, the court rendered judgment sentencing defendant to pay damages claimed by plaintiff.

An alias writ of execution was issued. Copy thereof was received by defendant.

Two years and two months after defendant admittedly learned of the lower court's decision from counsel for plaintiffs herein, said defendant, by counsel, filed a verified motion in the same case praying for the annulment of the entire proceedings. His ground is this: Summons was not duly served upon him "as provided under Sec. 7, Rule 7 of the Rules of Court"; accordingly, the lower court "did not acquire jurisdiction over his person", and "the trial and decision by default" are "null and void," The court denied this motion.

Plaintiffs themselves wrote defendant Fr. Maximo, at the Malabon Catholic Church, informing the latter of the CFI's decision, requesting prompt compliance therewith and suggesting that he communicate with or personally see their lawyer, Jose W. Diokno, at the latter's address, 332 Regina Building, Escolta, Manila.

Defendant's move to reconsider was rejected by the court.

Defendant, through his legal counsel, Dr. Nicanor T. Santos, answered the foregoing letter expressing regret that he could not comply with plaintiffs' request, because he (defendant) was not aware of the said civil case, and that, in the criminal action arising out of the same incident, said defendant was acquitted by the Municipal Court of Manila.

Following extensive efforts to have the deceased defendant substituted by any of his heirs or the executor or administrator of his estate, which were to no avail, the SC appointed the Clerk of Court of the Maniala CFI, representative of the deceased defendant.

Deputy Sheriff of Rizal notified defendant of the issuance of the writ of execution and demanded payment of the amount set forth therein. The Sheriff's return to the writ shows that in response to such demand, Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

Hence, this appeal from the orders duly certified to the SC by the CA. After the case was submitted for decision, defendant's lawyer informed the SC of the death of defendant on August 1, 1965.

HELD 1. A question of transcendental importance which necessarily involves an inquiry into procedural due process is whether summons in a suit in personam against a resident of the Philippines temporarily absent therefrom may be validly effected by substituted service under Section 8, Mark de Leon, JD 2001

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Rule 14 (formerly Section 8, Rule 7) of the Rules of Court. A head on collision of views becomes inevitable considering the diametrically opposing positions taken by plaintiffs, on the one hand, and defendant, on the other. For, plaintiffs make the point that even with defendant temporarily abroad, substituted service is valid under Section 8 by leaving a copy of the summons "at the defendant's dwelling house or residence with some person of suitable age and discretion then residing therein." Plaintiffs argue that if the ordinary method prescribed by the rules, that is, personal service under Section 7, Rule 14, is not feasible, then the substituted service in Section 8 aforesaid comes into play. Section 8 says: "SEC. 8. Substituted service. — If the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendant's dwelling house or residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendant's office or regular place of business with some competent person in charge thereof." Upon the other hand, defendant advances the theory that in a situation like the present, where defendant was temporarily abroad, the sole and exclusive method of service of summons in a case in personam is that set forth in Section 18, Rule 14 of the Rules (formerly Section 18, Rule 7), which reads: "SEC. 18. Residents temporarily out of the Philippines. — When an action is commenced against a defendant who ordinarily resides within the Philippines, but who is temporarily out of it, service may, by leave of court, be effected out of the Philippines, as under the preceding section." Section 17 referred to in Section 18 (Section 17, Rule 7 in the old Rules) in turn states: Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

"SEC. 17. Extraterritorial service. — When the defendant does not reside and is not found in the Philippines and the action affects the personal status of the plaintiff or relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent, or in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or the property of the defendant has been attached within the Philippines, service may, by leave of court, be effected out of the Philippines by personal service as under section 7; or by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or in any other manner the court may deem sufficient. Any order granting such leave shall specify a reasonable time which shall not be less than sixty (60) days after notice, within which the defendant must answer." Historically, in its common-law origin, the jurisdiction of courts to render judgments in personam was grounded on their de facto power over defendant's person. Jurisdiction was based on the power to seize and imprison defendant. If a defendant was absent from the territory, the fact that he was a citizen would not enable the court's officers to seize him and service could not represent this power. Hence, his presence within the territorial jurisdiction was a pre- requisite to the rendition of a judgment personally binding against him. Anglo-American law then emphasized the power concept of jurisdiction. Continental law, however, was somewhat different. It had two fundamental principles of Roman origin: (1) in suits in personam and those relating to movables, courts of the domicile of the defendant have general jurisdiction — actor rei forum sequitur; and (2) in actions concerning immovables, the courts of the situs have exclusive jurisdiction. Mark de Leon, JD 2001

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In the development of the law, the variance between Anglo- American law and continental law became "less and less clear-cut" because "American law has had to yield to the increasing necessity of enlarging more and more the catalogue of forums available to the plaintiff."

that the service be such as may be reasonably expected to give the notice desired. Once the service provided by the rules reasonably accomplishes that end, the requirement of justice is answered, the traditional notions of fair play are satisfied; due process is served.

Thus it is, that American cases forged the doctrine, now long recognized, that domiciliaries of a state, though temporarily out of its territorial jurisdiction, are always amenable to suits in personam therein. And this precept is the foundation for the American rule that declares substituted service binding on absent residents. The leading case of Milliken vs. Meyer, furnishes the rationale:

In American jurisprudence, whether a defendant be in another state under the federal system or is abroad in Europe, substituted service is still considered to be valid. The language in Milliken vs. Meyer, supra, is expressive: "Its adequacy so far as due process is concerned is dependent on whether or not the form of substituted service provided for such cases and employed is reasonably calculated to give him actual notice of the proceedings and an opportunity to be heard. If it is, then traditional notions of fair play and substantial justice (McDonald vs. Mabee, supra) implicit in due process are satisfied."

" . . . the authority of a state over one of its citizens is not terminated by the mere fact of his absence from the state. The state which accords him privileges and affords protection to him and his property by virtue of his domicile may also exact reciprocal duties. 'Enjoyment of the privileges of residence within the state and the attendant right to invoke the protection of its laws, are inseparable' from the various incidences of state citizenship . . . The responsibilities of that citizenship arise out of the relationship to the state which domicile creates. That relationship is not dissolved by mere absence from the state. The attendant duties, like the rights and privileges incident to domicile, are not dependent on continuous presence in the state. One such incident of domicile is amenability to suit within the state even during sojourns without the state, where the state has provided and employed e reasonable method for apprising such an absent party of the proceedings against him." There should be no doubt, therefore, that in suits in personam, courts have jurisdiction over residents temporarily out of the country. This brings us to the question of procedural due process. Substituted service such as one contemplated in Section 8 upon a temporarily absent resident, it has been held, is wholly adequate to meet the requirements of due process. The constitutional requirement of due process exacts Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

When the framers of our Rules adapted Section 8, it is to be implied that they intended to give the provision the same meaning shaped out by the jurisprudence of the jurisdiction from whence it was patterned. Section 8 is to be viewed in the same context it is understood in the American legal system. The word "defendant" in that provision is to be construed as including any resident of this country. By comparative construction, Section 8 is to be applied to all resident defendants — without distinction as to whether he is physically present in this country or not. Chief Justice Moran shares this view. Commenting on Section 18, Rule 14, he states: "Since the defendant is residing in the Philippines, jurisdiction over his person may be acquired by Philippine courts by substituted service of summons under section 8. But extraterritorial service is allowed also by leave of court according to the above provision [Section 18]." Justice Martin regards the word "residence" in Section 8 as "the place where the person named in the summons is living at the time when the service is made, even though he may be temporarily out of the state at the time." Mark de Leon, JD 2001

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This construction is but fair. It is in accord with substantial justice. The burden on a plaintiff is not to be enlarged with a restrictive construction as desired by defendant here. Under the rules, a plaintiff, in the initial stage of suit, is merely required to know the defendant's "dwelling house or residence" or his "office or regular place of business" — and no more. He is not asked to investigate where a resident defendant actually is, at the precise moment of filing suit. Once defendant's dwelling house or residence or office or regular place of business is known, he can expect valid service of summons to be made on "some person of suitable age and discretion then residing" in defendant's dwelling house or residence, or on "some competent person in charge" of his office or regular place of business. By the terms of the law, plaintiff is not even duty-bound to see to it that the person upon whom service was actually made delivers the summons to defendant or informs him about it. The law presumes that for him. It is immaterial then that defendant does not in fact receive actual notice. This will not affect the validity of the service. Accordingly, the defendant may be charged by a judgment in personam as a result of legal proceedings upon a method of service which is not personal, "which in fact may not become actual notice to him," and which may be accomplished in his lawful absence from the country. For, the rules do not require that papers be served on defendant personally or a showing that the papers were delivered to defendant by the person with whom they were left. Reasons for the views just expressed are not wanting. A man temporarily absent from this country leaves a definite place of residence, a dwelling where he lives, a local base, so to speak, to which any inquiry about him may be directed and where he is bound to return. Where one temporarily absents himself, he leaves his affairs in the hands of one who may be reasonably expected to act in his place and stead; to do all that is necessary to protect his interests; and to communicate with him from Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

time to time any incident of importance that may affect him or his business or his affairs. It is usual for such a man to leave at his home or with his business associates information as to where he may be contacted in the event a question that affects him crops up. If he does not do what is expected of him, and a case comes up in court against him, he cannot in justice raise his voice and say that he is not subject to the processes of our courts. He cannot stop a suit from being filed against him upon a claim that he cannot be summoned at his dwelling house or residence or his office or regular place of business. Not that he cannot be reached within a reasonable time to enable him to contest a suit against him. There are now advanced facilities of communication. Long distance telephone calls and cablegrams make it easy for one he left behind to communicate with him. In the light of the foregoing, we find ourselves unwilling to concede that substituted service provided in Section 8 may be down- graded as an ineffective means to bring temporarily absent residents within the reach of our courts. As we go back to the case at hand, there is the temporarily absent defendant who was a parish priest. Summons upon him was served upon Fr. Bautista who lived in the same convent where defendant resided. Fr. Bautista, we must assume, is a responsible person. Service upon him is effective. 2. The view we take of this case sweeps away defendant's argument that Section 18 is the sole provision that governs summons upon a defendant temporarily absent in an action in personam, as here. Indeed, defendant's posture strikes at the very language employed by this reglementary provision cited by him. The word "may" — in the statement in Section 18 that "service may, by leave of court, be effected out of the Philippines," as under Section 17 — will not support the deduction, without more, that Section 18 is the only provision controlling in this Mark de Leon, JD 2001

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case. On the contrary, the phraseology of the rule is a recognition of the fact that substituted service — out of the Philippines — under Section 17 is but one of the modes of effective service to bring a defendant in court. And upon the basic concepts under which our rules governing processes operate, the normal method of service of summons on one temporarily absent is by substituted service set forth in Section 8. And this, because personal service outside the country and service by publication are not ordinary means of summoning defendants. In practical terms, we perceive that — in suits in personam — the more circuitous procedure delineated in Sections 17 and 18 is resorted to by a plaintiff if defendant's dwelling house or residence or place of business in this country is not known; or, if known, service upon him cannot be had thereat upon the terms of Section 8. Here, since personal service is impossible, resort to substituted service becomes a necessity. A comparison between the service in Section 8 and that in Sections 17 and 18 is beside the point. They both provide for substituted service. Anyway, as Goodrich observed: "[I]f a substitute is to be made where an actual personal service is impossible, 'the best is none too good.'" 3. The judgment has long since become final. It enjoys the presumption of regularity. It is, unless stricken down, entitled to respect. Non quieta movere. Because "[p]ublic policy and sound practice demand that, at the risk of occasional errors, judgments of courts should become final at some definite date fixed by law." 25 The norm of conduct observed by defendant would not, we believe, tilt the scales of justice in his favor. We go to the background facts. Logic and common sense tell us that Fr. Bautista who received the summons and who took interest in the case must have informed defendant one way or another of the suit, at the latest upon his return in October, 1958. By then there was still time for him to move to set aside the default order of September 20, 1958. Defendant did not move. It is well to remember also that judgment by default was not rendered against defendant until Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

June 8, 1959, or almost nine (9) months after the default order was issued. Again, defendant did nothing. According to defendant, he learned of that judgment on December 20, 1959. The full impact of the judgment totalling P34,000 must have by then left an indelible mark in his mind. A judgment of a court of justice is no piddling matter. It should not be trifled with. Especially so when the amount is big, as it is here. That same day — December 20 — his attorney took a hand on the matter, wrote back plaintiffs refusing payment of the claim. The first writ of execution was served on defendant on January 14, 1960. That time he did not pay, because according to the Sheriff's return, defendant then stated that he was "financially hard up." Defendant did not bestir himself until February 20, 1962, i.e., not less than two years and two months after he learned-by his own admission-of the judgment. And, that was shortly after levy was made on his house in Caloocan. It is in this factual environment that then CFI Judge Magno Gatmaitan, in his order of March 24, 1962, correctly observed that 'the Court once again believes that this solution (denial of the motion to reconsider the appealed order) is just because of the apparent intentional inaction of defendant since 20 December, 1959." Indeed, it was not right that defendant should have supinely sat on the decision, and deliberately disregarded the import thereof. Neither was it correct for him to have waited so long, slept on his rights, and only put plaintiffs to task when his own property was threatened because of the levy and execution thereon. The decision below may not thus be annulled. Plaintiffs may not be compelled to file a fresh suit. Because, prejudice to plaintiffs, which could have been avoided by defendant, will become a reality. The additional expense, trouble and anxiety need not be essayed. The accident took place on December 16, 1957. The lower court's decision made mention of two eyewitnesses and two doctors of medicine who testified as to injuries. To bring back those witnesses to court becomes a serious Mark de Leon, JD 2001 - 84 -

problem. Plaintiffs will have to search for them and if found, they may not be able to present to the court a narrative as accurately as they had done before. Time has an unfortunate tendency of obliterating occurrences from a witness' memory. Recollections are apt to be blurred. Human memory can even be treacherous. Lapse of time may also carry with it dissipation of other evidence. Surely, there is great validity to the statement that the march of time is truth in flight. 26 These, in broad outlines, give life to the salutary policy on which laches is founded. WHEREFORE, the orders appealed from dated March 3, 1962 and March 24, 1962 are hereby affirmed. Sec. 17. Leave of court. — Any application to the court under this Rule for leave to effect service in any manner for which leave of court is necessary shall be made by motion in writing, supported by affidavit of the plaintiff or some person on his behalf, setting forth the grounds for the application. (19) Sec. 18. Proof of service. — The proof of service of a summons shall be made in writing by the server and shall set forth the manner, place, and date of service; shall specify any papers which have been served with the process and the name of the person who received the same; and shall be sworn to when made by a person other than a sheriff or his deputy. (20) Sec. 19. Proof of service by publication. — If the service has been made by publication, service may be proved by the affidavit of the printer, his foreman or principal clerk, or of the editor, business or advertising manager, to which affidavit a copy of the publication shall be attached, and by an affidavit showing the deposit of a copy of the summons and order for publication in the post office, postage prepaid, directed to the defendant by registered mail to his last known address. (21) Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

Proof of service of summons 1. personal or substituted a. in writing b. by the server c. set forth the manner, place, and date of service d. specify 1)

any papers which have been served with the process and

2)

the name of the person who received the same

e. sworn to when made by a person other than a sheriff or his deputy 2. by publication a. affidavit of 1)

the printer, his foreman or principal clerk, or

2)

the editor, business or advertising manager

b. to which affidavit a copy of the publication shall be attached c. an affidavit showing the deposit of a copy of the summons and order for publication in the post office, postage prepaid, directed to the defendant by registered mail to his last known address Sec. 20. Voluntary appearance. — The defendant's voluntary appearance in the action shall be equivalent to service of summons. The inclusion in a motion to dismiss of other grounds aside from lack Mark de Leon, JD 2001

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of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. (23a) This is a reiteration of La Naval case. Assertion by the defendant of an affirmative relief is a voluntary appearance before the court. Filing of an answer is automatically a voluntary appearance. de Leon: cf this with Corporation Law principles on foreign corporation being sued. CASES BELLO V. UBO, 117 SCRA 91 (1982) The enumeration of persons who may serve summons (sheriff or other proper court officer of the province or, for special reasons, by a person especially authorized to serve the summons by the judge of the court which issued the same) is exclusive. Where summons was served by a police officer, the court which issued the summons did not acquire jurisdiction over the person of the defendants. Mere tender of the summons without giving the defendant a copy of the summons and the of the complaint makes service highly irregular. Proof of service of a summons shall be sworn to when made by a person other than the sheriff or his deputy. One copy of the summons should be served on each defendant. Escolin: The court can deputize anyone, even civilians, to serve summons. Had the police officer been deputized, the fact of service of summons by him is by itself not enough to invalidate such service of summons.

Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

FACTS Plaintiff filed with Leyte CFI a complaint for recovery of real property with damages against the defendants praying, among other things, that he be declared the true and lawful owner of the parcel of land which had been forcibly occupied by the defendants since 1962 under claim of ownership, and that the defendants be ordered to pay him the sums representing the value of the coconuts harvested from the land since 1962; moral damages in an amount the court may find reasonable; P260.00 for expenses of relocation survey; P300.00 attorney's fees and the incidental expenses and costs of the proceeding. Summonses were issued on May 4, 1967, requiring the defendants to file their answer to the complaint within 15 days from service thereof. A certain Patrolman Castulo Yobia of the Police Department of Jaro, Leyte, served the summons on the defendants on May 15, 1967. No answer was filed by the defendants. Plaintiff's counsel filed a motion to declare defendants in default. Acting upon said motion, the CFI declared the defendants in default and directed the plaintiff to present ex-parte his evidence on the 24th day of the same month. Thereafter a judgment by default was rendered by the CFI. Upon receipt of the order of default, the defendants contracted the services of Atty. Generoso Casimpan who immediately inquired from Pat. Castulo Yobia about the service of the summons. Pat. Yobia then showed him a copy of the complaint which he failed to deliver to the defendants. Defendants' counsel filed a motion for relief from judgment charging irregularity in the service of the summons and praying that the order of default and the judgment by default be set aside and that defendants' answer, which was attached to said motion, be admitted. The defendants alleged in said motion that the subject land was inherited by them so that they have a good and valid right thereto. They further alleged that they had been paying taxes on the land that the complaint Mark de Leon, JD 2001

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was filed merely to compel them to settle a criminal case for frustrated homicide which they had filed against the plaintiff's son. Leyte CFI issued an order denying the motion for relief from judgment on the ground that the same was not accompanied by an affidavit of merit. A copy of said order was received by the defendants on September 28, 1967. Defendants' counsel filed a motion for reconsideration contending that since the motion for relief from judgment was predicated on lack of jurisdiction over the person of the defendants, the same need not be accompanied by an affidavit of merit, However, before the court could act on the motion for reconsideration, the defendants' counsel amended the same and attached thereto, their affidavit of merit. Leyte CFI issued an order denying defendants' motion for reconsideration. A copy of said order was received by the defendants on January 9, 1968. Defendants, thru counsel, filed a notice of appeal and a motion to appeal as pauper and submitted to the court for approval their record on appeal. The plaintiff, on the other hand, filed on January 31, 1968, a motion for execution pending appeal. Leyte CFI issued an omnibus order approving defendants' record on appeal and directing that the appeal be given due course; granting defendants' motion to appeal as pauper; and denying plaintiff's motion for execution pending appeal. ISSUE Was there a valid and effective service of summons? HELD We hold that there was no valid service of summons on the defendants and, consequently, the Leyte CFI did not acquire jurisdiction over their person. Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

Sec. 5, Rule 14 of the Rules of Court, expressly provides that summons may be served by the sheriff or other proper court officer of the province or, for special reasons, by a person especially authorized to serve the summons by the judge of the court which issued the same. Contrary to appellee's contention, this enumeration is exclusive. Thus, in Sequito vs. Letrondo, G.R. No. L-11588, July 20, 1959, 105 Phil. 1139, We considered as irregular the service of summons by a police sergeant who was not a sheriff or a court officer and who was not authorized by the court to deliver the summons. And in the more recent case of Spouses Olar vs. Cuna, G.R. No. L-47935, May 5, 1979, 90 SCRA 114, We ruled that the postmaster of Bato, Leyte, not being a sheriff or court officer, or a person authorized by the court to serve the summons cannot validly serve the summons. There, as in the case at bar where summons was served by one who is not included in the specification of Sec. 5, Rule 14 of the Rules of Court, this Court had to rule that the court which issued the summons did not acquire jurisdiction over the person of the defendants. Furthermore, the appellants point to other irregularities which attended the service of summons by Pat. Yobia. Thus, it is alleged that said policeman merely tendered the summons to them and did not give them a copy of the same and of the complaint. While it is true that Pat. Yobia had denied such allegation in his counter-affidavit which We have heretofore quoted, nevertheless, We find appellants' version to be more credible. For, the records of the case are replete with indications that the serving policeman was grossly ignorant of the rules concerning summons. Thus, the return of service shows that the summons was first served on the plaintiff (back of p. 3, records). Besides, such return of service was not made under oath - in violation of Sec. 20, Rule 14 of the Rules of Court - which requires that "the proof of service of a summons . . . shall be sworn to when made by a person other than the sheriff or his deputy." And even if We were to give credence to Pat. Yobia's counteraffidavit, We would still find the service of the summons to be irregular Mark de Leon, JD 2001

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since it is expressly admitted therein that only one copy of the summons and of the complaint was served on the two defendants. Since a court acquires jurisdiction over the person of the defendant only by means of a valid service of summons, trial and judgment without such valid service are, therefore, null and void. WHEREFORE. the trial court's order of default and judgment by default are set aside and said court is directed to accept defendants-appellants' answer to the complaint and to conduct further proceedings on the case. Costs against plaintiff-appellee. LAUS V. CA, 219 SCRA 688 (1993) Facts: Torres filed against Laus a complaint for the collection of a sum of money. Deputy Sheriff proceeded to the defendant’s address to serve summons. He found no one in the house of defendants when he arrived and then waited for 10 minutes. Thereupon, 2 women arrived and told him, upon his inquiry, that the defendants were not around. He then served the summons to the older woman, Josephine Areola, then 11 years old. On the same date, Deputy Sheriff Cruz executed and filed a return. Defendants did not file an answer, and hence was declared and judged in default. Defendants by way of a special appearance, filed a motion to dismiss the case for lack of jurisdiction over their persons. They allege that the service of summons was ineffective because it was not indicated in the return that the sheriff had first exerted efforts to serve the same personally before resorting to substituted service. Held: Since the defendants did not voluntarily submit to the jurisdiction of the trial court, proper service of summons became imperative. The general rule is that summons must be personally served. If this mode of service cannot be effected within a reasonable time, substituted service may be resorted to. "Within a reasonable time" contemplates a period of Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

time longer than "prompt," and presupposes that a prior attempt at personal service, within a justifiable time frame as would be necessary to bring the defendant within the jurisdiction of the court, had failed. The substituted service should be availed only when the defendant cannot be served promptly in person. Impossibility of prompt service should be shown by stating the efforts made to find the defendant personally and the failure of such efforts. The statement should be made in the proof of service. The sheriff's return in the case at bar readily reveals that it does not (a) indicate the impossibility of service of summons within a reasonable time, (b) specify the efforts exerted to locate the petitioners and (c) state that it was served on a person of sufficient age and discretion residing therein. The fact of the matter is that Deputy Sheriff Cruz resorted to a substituted service on his first — and only — attempt to effect a personal service. Upon being informed that the defendants were not around at that time, he immediately resorted to a substituted service through Josephine Areola, a person whose age he did not even know or attempt to discover. He did not even inquire about the whereabouts of the defendants, the time they were expected to return home, the hours of the day they could be contacted at their house or the location of their offices, if any, in order that he could faithfully comply with the requirement of personal service. No earnest efforts were exerted by Deputy Sheriff Cruz to effect the personal service of summons. There was undue, if not indecent, haste to serve the summons at the first attempt without making sure that personal service was, by then and even thereafter, an impossibility. Furthermore, husband of defendant was impleaded as a co-defendant on the theory that the liability is a conjugal partnership liability. He was sued as an indispensable party. It was not even alleged that he had been served with summons at all. Hence the TC never acquired jurisdiction over his person and judgment against him was null and void.

Mark de Leon, JD 2001

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VALMONTE V. CA, 252 SCRA 92 (1996) Facts: Dimalanta files a complaint for partition of real property and accounting of rentals against spouses Valmonte. Lourdes Valmonte was residing in Wasington. Alfredo Valmonte was practicing law in Manila. In a previous letter to Dimalanta, Lourdes stated that in regard to the partition of the property in question, all communications intended for Lourdes should be sent to her husband. The complaint now alleges that summons on Lourdes may be served on her husband Alfredo in his office in Manila. Summons was served on Alfredo. Alfredo accepted the summons, insofar as he was concerned, but refused to accept the summons for his wife, Lourdes on the ground that he was not authorized to accept the process on her behalf. Accordingly the process server left without leaving a copy of the summons and complaint for Lourdes. Alfredo filed his answer with counterclaim. Lourdes did not file her answer. RTC refused to declare Lourdes in default. CA reverses and declared her in default. Held: In an action in personam, personal service of summons or, if this is not possible, substituted service, is essential. If the defendant is temporarily abroad, but a Philippine resident, service of summons may, by leave of court, be made by publication. A resident defendant in an action in personam, who cannot be personally served with summons, may be summoned either by means of substituted service or by publication. It should be noted that the defendant must be a resident of the Philippines. On the other hand, if the action is in rem or quasi in rem, jurisdiction over the person of the defendant is not essential for giving the court jurisdiction so long as the court acquires jurisdiction over the res. If the defendant is a nonresident and he is not found in the country, summons may be served exterritorialy. Plaintiff’s action in this case, which is for partition and accounting, is in the nature of an action quasi in rem. Such an action is essentially for the purpose of affecting the defendant's interest in a specific property and Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

not to render a judgment against him. As defendant Lourdes is a nonresident who is not found in the Philippines, service of summons on her must be either (1) by personal service; (2) by publication and registered mail; or (3) in any other manner which the court may deem sufficient. Since the service of summons upon Lourdes was not done by means of any of the first two modes. Neither does it qualify under the 3rd mode. This mode of service, like the first two, must be made outside the Philippines, such as through the Philippine Embassy in the foreign country where the defendant resides. Furthermore, service of summons on Alfredo was not made upon the order of the court and certainly was not a mode deemed sufficient by the court which in fact refused to consider the service to be valid and on that basis declare Lourdes in default. In the second place, service in the attempted manner was not made upon prior leave of the trial court as required. Such leave must be applied for by motion in writing, supported by affidavit of the plaintiff or some person on his behalf and setting forth the grounds for the application. Finally, because there was no order granting such leave, petitioner Lourdes was not given ample time to file her Answer which, according to the rules, shall be not less than 60 days after notice. It must be noted that the period to file an Answer in an action against a resident defendant (15 days from service) differs from the period given in an action filed against a nonresident defendant who is not found in the Philippines (at least 60 days from notice). Lourdes did not appoint her husband as her attorney-in-fact. Although she wrote plaintiff that "all communications" intended for her should be addressed to her husband who is also her lawyer at the latter's address in Manila, no power of attorney to receive summons for her can be inferred therefrom. In fact the letter was written seven months before the filing of this case below, and it appears that it was written in connection with the negotiations between her and plaintiff, concerning the partition of the Mark de Leon, JD 2001

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property in question. As is usual in negotiations of this kind, the exchange of correspondence was carried on by counsel for the parties. But the authority given to defendant's husband in these negotiations certainly cannot be construed as also including an authority to represent her in any litigation. Escolin: Substituted service could not be made here because an essential requisite of substituted service could not be complied with, cf Rule 14, Sec. 7 Sec. 7. Substituted service. — If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendant's residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendant's office or regular place of business with some competent person in charge thereof. (8a) de Leon: I think the essential requisite that Justice Escolin was referring to is that the defendant is a resident of the Philippines. Remember, if a defendant is a non-resident, he may not be summoned through substituted service, only extraterritorial service. CITIZEN SURETY V. MELENCIO-HERRERA, 38 SCRA 369 (1971) Action for deficiency judgment is an action in personam, in which case, summons may not be served by publication. The remedy is to attach property of the defendant, then serve summons by publication. When summons could not be sereved, the remedy is not to dismiss the case but retain the case in the court’s archives. Escolin: Citizen Surety could not have availed of service by publication under Rule 14, Sec. 14 because this provision applies only to actions in Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

rem. He should have attached defendant’s property under Rule 57, Sec. 1 (f) Section 1. Grounds upon which attachment may issue. — xxx: (f) In an action against a party who does not reside and is not found in the Philippines, or on whom summons may be served by publication.(1a) to convert the action into quasi in rem, and then serve summons by publication. FACTS Petitioner Citizens' Surety filed its complaint in the Manila CFI, alleging that at request of defendant Santiago Dacanay, the plaintiff Surety Company had issued its Surety Bonds Nos. 4942 and 4944, the first, in favor of Gregorio Fajardo to guarantee payment of a P5,000promissory note executed by said Dacanay, and the second, in favor of Manufacturers Bank & Trust Co., to guarantee payment of another promissory note in like amount; that in consideration of said bonds, Santiago and Josefina Dacanay executed Indemnity Agreements, binding themselves jointly and severally to indemnify plaintiff for any losses, costs and expenses which it might sustain in connection with the issuance of the bonds aforesaid, with interest at 12% per annum; that as additional security, the Dacanays mortgaged to plaintiff a parcel of land in Baguio City, covered by Certificate of Title No. T-8116, the mortgage having been duly recorded; that the promissory notes were not paid .and as a result, plaintiff Surety was compelled to pay P5,000.00 to Gregorio Fajardo and P4,081.69 to the Manufacturers' Bank; that the Dacanays failed to reimburse the Surety for such payments, whereupon the Surety caused the extrajudicial foreclosure of the mortgage to pay its claim of P12,941.69 representing its payments, interest and stipulated liquidated damages: that at the foreclosure sale, the land mortgaged was sold to plaintiff, as highest bidder, for the sum of P2,000.00 leaving an Mark de Leon, JD 2001

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unsatisfied balance of P10,491.69, that plaintiff sought to recover from defendants Dacanay, plus 10% thereof as attorneys' fees, and the costs. At petitioner's request, respondent Judge caused summons to be made by publication in the newspaper Philippines Herald. But despite the publication and deposit of a prepaid copy of the complaint at the Manila post office, defendants did not appear within the period of 60 days from last publication, as required by the summons. Plaintiff then asked that defendants be declared in default; but instead, the Judge, by order of May 16, 1970, asked it to show cause why the action should not be dismissed, the suit being in personam and defendants not having appeared. Then, on May 29, 1970, respondent Judge dismissed the case, despite plaintiff Surety's argument that the summons by publication was sufficient and valid under section 16 of Rule 14 of the Revised Rules of Court. HELD We agree with respondent Judge that the action of plaintiff petitioner, being in personam, the Court could not validly acquire jurisdiction on a non-appearing defendant, absent a personal service of summons within the forum. We have explicitly so ruled in Pantaleon vs. Asunción, 105 Phil. 765, pointing out without such personal service, any judgment on a non-appearing defendant would be violative of due process. The proper recourse for a creditor in the same situation as petitioner is to locate properties, real or personal, of the resident defendant debtor with unknown address and cause them to be attached under Rule 57, section 1(f), in which case, the attachment converts the action into a proceeding in rem or quasi in rem and the summons by publication may then accordingly be deemed valid and effective. But because debtors who abscond and conceal themselves are also quite adept at concealing their properties, the dismissal of the case below by Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

respondent Judge should be set aside and the case held pending in the court's archives, until petitioner as plaintiff succeeds in determining the whereabouts of the defendants' person or properties and causes valid summons to be served personally or by publication as the case may be. In this manner, the tolling of the period of prescription for as long as the debtor remains in hiding would properly be a matter of court records and he can not emerge after a sufficient lapse of time from the dismissal of the case to profit from his own misdeed and claim prescription of his just debt. WHEREFORE, the order of dismissal of the case issued by the Court below is hereby set aside, and in the interest of justice, the proceedings are ordered suspended, to be held pending until the plaintiff petitioner succeeds in ascertaining the whereabouts of the defendants and/or locating properties of the same, to enable proper summons to be issued conformably to this Opinion. No costs. KAWASAKI PORT SERVICES V. AMORES, 199 SCRA 230 (1991) Facts: C.F. Sharp Kabushiki Kaisha is corporation organized under the law of Japan. It appears to have incurred obligations to several creditors amongst which are defendants, also foreign corporations organized and existing under the laws of Japan. It defaulted on its creditors. Thereafter defendants have resorted to demanding payment from C.F. Sharp & Co., Inc., a corporation organized and existing under the laws of the Philippines. C.F. Sharp & Co., Inc. filed a complaint for injunction and/or declaratory relief. Since the defendants are non-residents, without business addresses in the Philippines but in Japan, extraterritorial service of summons was resorted to. Thereafter, defendants filed their special appearances to question the court’s jurisdiction over their persons.

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Held: Where the complaint is purely an action for injunction, it is a personal action as well as an action in personam, not an action in rem or quasi in rem. As a personal action, personal or substituted service of summons on the defendants, not extraterritorial service, is necessary to confer jurisdiction on the court. In an action for injunction, extraterritorial service of summons and complaint upon the non-resident defendants cannot subject them to the processes of the RTCs. Extraterritorial service of summons will not confer on the court jurisdiction. DIAL CORPORATION V. SORIANO, 161 SCRA 737 (1988) Where the action is purely an action for injunction (e.g. to restrain the defendants from enforcing against contracts and to recover damages), it is clearly a personal action as well as an action in personam, not an action in rem or quasi in rem. In actions in personam, personal or substituted service of summons on the defendants, not extraterritorial service, is necessary to confer jurisdiction on the court.

MOTIONS

RULE 15

Section 1. Pleadings defined. — Pleadings are the written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment. (1a) Sec. 2. Motions must be in writing. — All motions shall be in writing except those made in open court or in the course of a hearing or trial. (2a) Sec. 3. Contents. — A motion shall state the relief sought to be obtained and the grounds upon which it is based, and if required by these Rules or necessary to prove facts alleged therein, shall be accompanied by supporting affidavits and other papers. (3a) Contents of a motion 1. relief sought to be obtained 2. the grounds upon which it is based 3. supporting affidavits and other papers (if required by these Rules or necessary to prove facts alleged therein) Sec. 4. Hearing of motion. — Except for motions which the court may act upon without prejudicing the rights of the adverse party, every written motion shall be set for hearing by the applicant.

motion – an application for relief other than by a pleading

Every written motion required to be heard and the notice of the hearing thereof shall be served in such a manner as to ensure its receipt by the other party at least three (3) days before the date of hearing, unless the court for good cause sets the hearing on shorter notice. (4a)

A motion is not a pleading!

Non-litigous motions need not be set for hearing.

Section 1. Motion defined. — A motion is an application for relief other than by a pleading. (1a)

cf Rule 6, Sec. 1 Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

Sec. 5. Notice of hearing. — The notice of hearing shall be addressed to all parties concerned, and shall specify the time and date Mark de Leon, JD 2001 - 92 -

of the hearing which must not be later than ten (10) days after the filing of the motion. (5a) Sec. 6. Proof of service necessary. — No written motion set for hearing shall be acted upon by the court without proof of service thereof. (6a) Requisites for a motion not in open court or in the course of a hearing or trial 1. in writing 2. hearing set by the applicant 3. notice of hearing which specifies the time and date of the hearing, not later than 10 days from filing of the motion (except for motions which the court may act upon without prejudicing the rights of the adverse party) 4. served to ensure its receipt by the other party at least 3 days before the date of hearing, unless the court for good cause sets the hearing on shorter notice (except for motions which the court may act upon without prejudicing the rights of the adverse party) 5. proof of service Sec. 7. Motion day. — Except for motions requiring immediate action, all motions shall be scheduled for hearing on Friday afternoons, or if Friday is a non-working day, in the afternoon of the next working day. (7a) Sec. 8. Omnibus motion. — Subject to the provisions of section 1 of Rule 9, a motion attacking a pleading, order, judgment, or proceeding shall include all objections then available, and all objections not so included shall be deemed waived. (8a) Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

cf Rule 9 Sec. 1 Section 1. Defenses and objections not pleaded. — Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. However, when it appears from the pleadings or the evidence on record that the court has no jurisdiction over the subject matter, that there is another action pending between the same parties for the same cause, or that the action is barred by a prior judgment or by statute of limitations, the court shall dismiss the claim. (2a) Sec. 9. Motion for leave. — A motion for leave to file a pleading or motion shall be accompanied by the pleading or motion sought to be admitted. (n) Sec. 10. Form. — The Rules applicable to pleadings shall apply to written motions so far as concerns caption, designation, signature, and other matters of form. (9a) CASES CORPUS V. CORPUS, 148 SCRA 21 (1987) Where a written motion does not state the time and place of the hearing or is not served upon all the parties concerned at least 3 days in advance, the motion is nothing but a useless piece of paper. No motion shall be acted upon by the court without proof of such notice of hearing. FACTS Leona and Iladia Corpus, claiming to be the legal heirs of the late spouses Domingo Corpus and Clara Sibayan, filed an action against the spouses Jacinta Corpus and Pedro Aduca, in the Pangasinan CFI for the recovery of possession, with damages, of a parcel of land, situated in Barrio Pinmaludpud, Urdaneta, Pangasinan, and registered in the name of "Heirs of Domingo Corpus". Mark de Leon, JD 2001

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After several postponements at the behest of both parties, the CFI set the pre-trial conference on 28 August 1967. On 15 August 1967, however, counsel for the defendants filed a motion for the postponement of the pre-trial conference set for 28 August 1967 claiming that he had to appear before the Nueva Ecija CFI on the same date in connection with Civil Case No. SD-206 of said court. A copy of the Order issued in Civil Case No. SD-206 of the Nueva Ecija CFI was appended to the motion. When the motion for postponement was heard on 28 August 1967, counsel for the plaintiffs interposed opposition thereto, claiming that he was not furnished with a copy of said motion for postponement. CFI denied the motion for postponement and allowed the plaintiffs to present their evidence ex-parte before the clerk of court who was commissioned to receive the same. A copy of the trial court's Order dated 28 August 1967 denying defendants' motion for postponement and allowing the plaintiffs to adduce evidence ex-parte was received by defendants on 12 September 1967. 7 Defendants took no step to have said Order reconsidered and set aside. CFI ruled against the defendants and ordered them to vacate the property. Counsel for the defendants received a copy of the decision on 7 June 1968, and on 1 July 1968, he filed a motion for new trial, praying that: (1) a new trial be held on the ground that the failure of the defendants and their counsel to be present at the pre-trial conference set for 28 August 1967 was due to mistake or excusable negligence; (2) the decision dated 1 April 1968 be set aside and the defendants be allowed to cross-examine the witnesses for the plaintiffs and to present evidence on their behalf; and (3) the defendants be awarded such other reliefs and remedies as are just and equitable under the premises. In support of his motion for new trial, counsel for the defendants contended that he complied with the requirement regarding notice to Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

adverse parties by sending a copy of his motion for postponement to counsel for the plaintiffs by registered mail on 15 August 1967; and that his non-appearance at the pre-trial conference on 28 August 1967 was justified as he had to attend on the same date another hearing in the Nueva Ecija CFI. Counsel for the defendants further claimed that Domingo Corpus died on 15 April 1956, and not in 1948, as claimed by the plaintiffs, so that the defendant Jacinta Corpus, although a spurious child of Domingo Corpus, is entitled to a share in the estate of said Domingo Corpus. A copy of the death certificate of Domingo Corpus, attested to by the Local Civil Registrar of Muñoz, Nueva Ecija where the said Domingo Corpus died, was attached to the motion. CFI denied the motion for new trial on the grounds that the Order issued on 28 August 1967, copy of which was received by counsel for the defendants on 12 September 1967, had already become final when the defendants filed their motion for new trial on 1 July 1968; and that the alleged misrepresentation by the plaintiffs of the true date of the death of Domingo Corpus is not a ground for new trial. Whereupon, the defendants interposed the present appeal. They claim that the lower court erred: (1) in denying their motion for postponement and in allowing the plaintiffs to present their evidence ex-parte; and (2) in denying their motion for new trial. HELD We find no merit in the appeal. To begin with, we see nothing abusive or irregular in the actions taken by the lower court in denying the defendants-appellants' motion for postponement of the pre-trial conference set for 28 August 1967, and their motion for new trial. A close examination of the record shows that said motion for postponement does not show that a copy thereof had been served upon the adverse party as there is no proof of service thereof. In fact, the movants did not indicate therein the manner by which a copy of the motion was served Mark de Leon, JD 2001

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upon counsel for the plaintiffs-appellees. Counsel for the defendantsappellants merely stated therein: "Copy furnished Atty. Federico R. Vinluan, San Nicolas, Pangasinan." In the motion for new trial, counsel for the defendants-appellants claimed that he sent to plaintiffsappellees' counsel a copy of the motion for postponement by registered mail. The motion for postponement, however, does not contain an affidavit of the person who mailed the motion, showing compliance with the provisions of Section 5, Rule 11 of the Rules of Court, and the registry receipt issued by the mailing office, as required by Section 10 of the same Rule. Neither does the motion for postponement adverted to state the time and place for the hearing of the same, as required by the Rules of Court. In the said motion for postponement, counsel of the defendantsappellants addressed the Clerk of the Court of First Instance of Pangasinan, Urdaneta Branch, thus: "Upon receipt of the foregoing motion please submit the same to the Honorable Court for its consideration." And yet, the provisions of the Rules of Court requiring that a motion shall state the time and place of the hearing of the same are quite clear. Sections 4 and 5, rule 15 of the rules of Court expressly provide that a motion shall state the time and place of the hearing and shall be served upon all the parties concerned at least three (3) days in advance. And, according to Section 6 of the same Rules no motion shall be acted upon by the court without proof of such notice, and it has been held that, in such a case, the motion is nothing but a useless piece of paper. The reason is obvious: unless the movant sets the time and place of hearing, the court would have no way of determining whether the adverse party agrees or objects to the motion, and if he objects, to hear him on his objection, since the Rules do not fix any period within which he may file his reply or opposition thereto. Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

Besides, it appears that it was defendants-appellants' counsel who had to be in Cabanatuan City on the date of hearing so that the defendantsappellants themselves could have appeared in Court on the date set for the hearing since their presence at the pre-trial conference was also required. But, as it stands, both defendants-appellants and their counsel failed to appear at the pre-trial conference. It is a well-settled rule that the grant or denial of a motion for postponement is discretionary on the court. The defendants-appellants, as well as their counsel, should not have presumed that the motion for the deferment of the pretrial conference would be granted. They had no right to rely on the liberality of the court or on the generosity of the adverse party. Defendants-appellants should also have taken upon themselves the duty to inquire as to what action the court took on their motion for the postponement of the pre-trial conference. In this, they failed. WHEREFORE, the judgment appealed from should be, as it is hereby, AFFIRMED, without pronouncement as to costs. YAP V. CA, 115 SCRA 105 (1982) A motion for extension to file Record on Appeal, does not affect the substantive rights of the adverse party, and may be heard ex-parte, without proof of notice of hearing to the adverse party. FACTS Private respondents, spouses Raymond and Lydia Tomassi, filed a complaint for Damages against petitioner Manuel Yap, before the Cebu CFI. Petitioner-defendant filed his Answer with Special Defenses and Counterclaim, after which, trial ensued. CFI rendered judgment against petitioner. Copy of the Decision was received by petitioner-defendant on February 10, 1978. He filed, on March 2, 1978, a Notice of Appeal, and on March 7, 1978, a Cash Appeal Mark de Leon, JD 2001

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Bond and Motion for Extension of twenty days from March 13, 1978 (or until April 2, 1978) within which to file his Record on Appeal. Said Motion was not acted upon by the Trial Court. On March 30, 1978, or within the extended period prayed for, petitioner submitted his Record on Appeal. On the same date, respondents filed a Motion for the Issuance of Writ of Execution alleging that the Decision had already become final and executory as petitioner's Motion for extension of time to file Record on Appeal failed to comply with the requirements of the Rules of Court on Motions, and therefore, did not toll the running of the period to perfect an appeal. CFI disapproved petitioner's Record on Appeal, stating: "The records show that on March 7, 1978, defendant filed a MOTION FOR EXTENSION OF TIME TO FILE RECORD ON APPEAL, but since said motion did not contain any notice of hearing, the COURT did not act on it. The reglementary period expired on March 13, 1978, without any extension granted to defendant. It is rather, too presumptuous, on the part of the defendant to assume that the Court would grant the extension just because he prayed for it. IN VIEW OF THE FOREGOING, the approval of defendant's RECORD ON APPEAL is hereby denied for having been filed out of time." Petitioner moved to reconsider the said Order, but reconsideration was denied by the Trial Court. Petitioner then filed with the Court of Appeals a Petition for "Certiorari and Mandamus" praying that the CFI be ordered to approve his Record on Appeal and give due course thereto. CA dismissed the Petition ruling that the Trial Court did not commit grave abuse of discretion in disapproving the Record on Appeal as the same was filed beyond the prescribed period. MfR was denied for lack of merit. Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

ISSUE The only issue is whether the said Motion for extension should mandatorily comply with the requirements of the Rules on Motions before the same may be acted upon by the trial Court. Sections 4, 5 and 6 of Rule 15 provide: "Section 4. Notice. - Notice of a motion shall be served by the applicant to all parties concerned at least three days before the hearing thereof, together with a copy of the motion, and other papers accompanying it. The Court, however, for good cause may hear a motion on shorter notice, specially on matters which the Court may dispose of on its own motion. "Section 5. Contents of Notice. - The notice shall be directed to the parties concerned, and shall state the time and place for the hearing of the motion. "Section 6. Proof of service to be filed with motion. - No motion shall be acted upon by the court, without proof of service of the notice hereof, except when the court is satisfied that the rights of the adverse party or parties are not affected." HELD As a general rule, notice of motion is required where a party has a right to resist the relief sought by the motion and principles of natural justice demand that his right be not affected without an opportunity to be heard. The three-day-notice required by law is intended not for the benefit of the movant but to avoid surprises upon the adverse party and to give the latter time to study and meet the arguments of the motion. The Motion in question does not affect the substantive rights of private respondents as it merely seeks to extend the period to file the Record on Appeal, which extension may be granted by the Trial Court upon application made prior to the expiration of the original period. Neither was there any claim that said Motion, which was grounded on justifiable reason, was interposed to delay the appeal. As early as Moya vs. Barton, 76 Phil. 831 [1946], this Court held that a Motion requesting an extension Mark de Leon, JD 2001

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within which to file Record on Appeal may be considered as one which may be heard ex-parte. In Que Tiac vs. Republic, 43 SCRA 56 [1972], it was similarly held that a telegraphic Motion for extension of time to file a Record on Appeal is addressed to the discretion of the Court, which may act thereon ex-parte. And in the more recent case of Commercial Union Assurance Company Limited vs. Lepanto Consolidated Mining Company, 86 SCRA 79, 98 [1978], this Court ruled that the Trial Court has the power and authority to act on an ex-parte Motion for extension of time to file the Record on Appeal, which was filed within the original period prescribed by the Rules since the said Motion did not appear to be a litigated or a contentious Motion and may be acted upon even without proof of service on adverse party. Accordingly, we find for petitioner. Dismissal of appeals on purely technical grounds is frowned upon as the policy of the Court is to encourage the hearing of appeals on the merits. Litigants should be afforded every opportunity to establish the merits of their cases without the constraints of technicalities. WHEREFORE, the Petition is granted. The questioned Decision and Resolution of respondent Court of Appeals dated May 22, 1979 and July 26, 1979, respectively, are hereby annulled and set aside. The Court of First Instance of Cebu, Branch XIII, is hereby directed to approve petitioner's Record on Appeal and to elevate the same to the Court of Appeals.

FACTS Petitioner Igmedio Azajar filed a complaint against respondent Cham Samco and Sons, Inc. in the Camarines Sur CFI. Azajar purchased from defendant Cham Samco, thru the latter's agent, 100 Kegs of nails of various sizes, specified in one of Cham Samco's printed order forms, and had given to the agent P18,000.00 in full payment thereof; but in breach of contract, Cham Samco had offered to deliver only a part of the quantity ordered. Cham Samco filed a MtD on two grounds: (1) failure of the complaint to state a cause of action ---- the complaint's language indicating not a perfected sale but merely an "offer to buy by plaintiff that was partly accepted by defendant," and failing to show that as explicitly required by the order form, prices had been confirmed by Cham Samco's "Manila Office," and (2) that venue was improperly laid ---- Cham Samco's invariable condition in transactions of this nature, as Azajar well knew from many such transactions in the past, being that "any legal action thereon must be instituted in the City of Manila." MtD contained a notice addressed to the Clerk of Court reading as follows: The Clerk of Court

Court of First Instance of Camarines Sur Naga City

AZAJAR V. CA, 145 SCRA 333 (1986) A MTD should be set for hearing with notice to the other party. A notice in the MTD which was addressed to the clerk of court asking him to submit the motion for the consideration of the court is fatally defective.

Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

S i r:

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Please submit the foregoing motion to the Court for its consideration and resolution immediately upon receipt thereof. Makati, Rizal for Naga City, February 4, 1974

(SGD) POLO S. PANTALEON Copy furnished:

Atty. Augusto A. Pardalias Naga City NF-927 It is this notice that has given rise to the controversy at bar. Contending that such a notice was fatally defective and rendered the MtD incapable of tolling the period to answer, Azajar filed a motion to declare Cham Samco in default, which the CFI granted. CFI pronounced Cham Samco in default and allowed Azajar to present evidence ex-parte. CFI rendered judgment by default against defendant Cham Samco. Cham Samco filed MfNT. It contended that its failure to observe the rules governing notice of motions was due to excusable negligence, "because the grounds alleged in the MtD were all in such nature and character that addressed themselves to a motu proprio resolution by the court and thus rendered a hearing dispensable." It also alleged certain defenses available to it which if duly alleged and proven, would absolve it from all liability. This motion was denied. Cham Samco went to the CA on certiorari asserting that the CFI acted with grave abuse of discretion amounting to lack of jurisdiction in Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

declaring it in default and then rendering judgment by default. CA dismissed the petition was dismissed for lack of merit by the Court of Appeals on November 20, 1974. But on MfR, CA reversed itself. By Resolution dated March 25, 1975, 10 it set aside the Trial Court's order of default of February 22, 1974, judgment by default of March 13, 1974, and Order dated June 4, 1974 denying Cham Samco's motion for new trial, and directed the lower Court to allow Cham Samco to file its answer to the complaint and upon due joinder of issues, to try and decide the case on the merits.

The Court held that:

" . . . (t)he notice in the motion which was addressed to the clerk of court asking him to submit the motion for the consideration of the court is a substantial compliance with the provision of section 3 Rule 16 of the Rules of Court. Verily under the said rule, the Court has the alternative of either hearing the case or deferring the hearing and determination thereof until the trial on the merits. Thus upon the filing of said motion the court should have set the motion for hearing or outrightly deny the motion, or otherwise postpone the hearing until the trial on the ground that the grounds thereof do not appear to be indubitable. The prompt filing and apparently valid grounds invoked in the motion are not the acts and declarations of a defaulting party."

" . . . (E)ven assuming that the declaration of default of the petitioner was in order we find that the trial court committed a grave abuse of discretion when it denied the motion for new trial that was filed by the petitioner Mark de Leon, JD 2001

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not only on the ground of excusable negligence we have above discussed but also on the ground that it has a meritorious defense." and

" . . . (E)xcessive damages have been awarded to the private respondent. In addition to ordering the petitioner to deliver to the private respondent the nails ordered by the latter, the petitioner was also ordered to pay not only P15,000 actual damages for profits that the private respondent could have earned but also consequential damages of P10,000 for the unrealized profits that the said earnings and capital of the plaintiff could have earned, plus interest in both instances, exemplary damages of P5,000 and P7,500 for attorney's fees and related expenses of litigation. Thus for the capital of respondent of P18,100.00 in the purchase of the nails, the petitioner was ordered to pay damages of a total of P37,500.00, which including the interest awarded can amount to over P40,000, more than double the value of the said investment of respondent. Under Section 1, Rule 37 of the Rules of Court award of excessive damages could be a ground for new trial."

The Court concluded its opinion with the observation that "the ends of justice would be better served in this case if we brush aside technicality and afford the petitioner its day in court."

It was wrong, of course, for Cham Samco to have failed to set its motion to dismiss for hearing on a specified date and time. The law explicitly requires that notice of a motion shall be served by the appellant to all parties concerned at least three (3) days before the hearing thereof, together with a copy of the motion, and of any affidavits and other papers accompanying it; and that the notice shall be directed to the parties concerned, stating the time and place for the hearing of the Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

motion. The uniform holding of this Court has been that a failure to comply with the requirement is a fatal flaw. Such notice is required to avoid surprises upon the opposite party and give the latter time to study and meet the arguments of the motion, as well as to determine or make determinable the time of submission of the motion for resolution.

Cham Samco quite frankly admits its error. It pleads however that under the circumstances the error be not regarded as irremediable or that it be deemed as constituting excusable negligence, warranting relief. It argues that legal and logical considerations, which it took to be tenable, caused it to theorize that a hearing on the motion was dispensable. It also adverts to its possession of affirmative defenses in addition to those set out in its motion to dismiss which, if ventilated and established at the trial, would absolve it from all liability under the complaint.

Cham Samco's belief that it was not necessary that its motion to dismiss be set for hearing was avowedly engendered by two factors, namely:

1) the fact that while the Rules of Court "specify the motions which can be heard only with prior service upon adverse parties," 15 said Rules "do not point out which written motions may be ex parte, preferring, it appears, to leave to the court, in motions other than those specified, the discretion either to ex parte resolve . . . or to call the parties to a hearing . . . ; and

2) the further fact that its motion to dismiss was based on two grounds on which a hearing was superfluous, the first, failure of the complaint to Mark de Leon, JD 2001

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state a cause of action, being determinable exclusively from the allegations of the complaint and no evidence being allowable thereon; and the second, that venue is improperly laid, being resolvable exclusively on the basis of documents annexed to the motion.

These considerations, to be sure, did not erase movant's duty to give notice to the adverse party of the date and time of the hearing on its motion, the purpose of said notice being, as already stressed, not only to give the latter time to oppose the motion if so minded, but also to determine the time of its submission for resolution. Without such notice, the occasion would not arise to determine with reasonable certitude whether and within what time the adverse party would respond to the motion, and when the motion might already be resolved by the Court. The duty to give that notice is imposed on the movant, not on the Court.

Withal, the reasons for Cham Samco's erroneous notion of the dispensability of a hearing on its motion to dismiss are not utterly without plausibility. This circumstance, taken together with the fact, found by the Intermediate Appellate Court and not disputed by petitioner Azajar, that Cham Samco has meritorious defenses which if proven would defeat Azajar's claim against it, and the eminent desirability more than once stressed by this Court that cases should be determined on the merits after full opportunity to all parties for ventilation of their causes and defenses, rather than on technicality or some procedural imperfections, all conduce to concurrence with the Court of Appeals that "the ends of justice would be better served in this case if we brush aside technicality and afford the petitioner its day in court."

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WHEREFORE, the Resolutions of the Court of Appeals appealed from, are affirmed. Costs against petitioner. BPI V. FAR EAST MOLASSES, 198 SCRA 689 (1991) FACTS petitioner bank filed with Rizal CFI a complaint for recovery of sum of money against respondent. CFI ruled in favor of BPI. Far East received a copy of the Decision on 07jul (it had until 22jul within which to appeal). Instead of filing a notice of appeal, Far East filed in the morning of 22jul a MfR. The motion did not contain any notice of hearing. HELD A MfR without notice of hearing is a mere scrap of paper. It presents no question which merits the attention and consideration of the court. It is not even a motion for it does not comply with the rules and hence, the clerk has no right to receive it. Without such notice, the motion is pro forma. A pro forma motion for reconsideration does not suspend the running of the period to appeal. Furthermore, the notice of hearing shall be directed to the parties concerned, not to the clerk of court. MOYA V. BARTON, 76 PHIL 831 (1946) If the extension of time asked for in the motion may be shorter than the time required to have the motion set for hearing and acted by the court, the motion for extension may be considered as one which may be heard ex-parte, without need of notice of hearing. Besides, the court has discretion to extend the period for filing the record on appeal.

DISMISSAL

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MOTION TO DISMISS RULE 16

A MTD may be filed against any pleading asserting a claim, not only to a complaint, but also to a counterclaim, cross-claim, 3rd party complaint… etc..

Section 1. Grounds. — Within the time for but before filing the answer to the complaint or pleading asserting a claim, a motion to dismiss may be made on any of the following grounds:

Grounds for a MTD

(a) That the court has no jurisdiction over the person of the defending party;

2. no jurisdiction over the subject matter of the claim;

(b) That the court has no jurisdiction over the subject matter of the claim;

1. no jurisdiction over the person of the defending party

3. venue is improperly laid 4. plaintiff has no legal capacity to sue

(c) That venue is improperly laid;

5. another action pending between the same parties for the same cause

(d) That the plaintiff has no legal capacity to sue;

6. barred by a prior judgment

(e) That there is another action pending between the same parties for the same cause;

7. barred by the statute of limitations

(f) That the cause of action is barred by a prior judgment or by the statute of limitations;

9. the claim or demand has been paid, waived, abandoned, or otherwise extinguished

(g) That the pleading asserting the claim states no cause of action; (h) That the claim or demand set forth in the plaintiff's pleading has been paid, waived, abandoned, or otherwise extinguished; (i) That the claim on which the action is founded is unenforceable under the provisions of the statute of frauds; and (j) That a condition precedent for filing the claim has not been complied with. (1a)

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8. the pleading asserting the claim states no cause of action

10. claim is unenforceable under the statute of frauds 11. non-compliance with a condition precedent for filing the claim Sec. 2. Hearing of motion. — At the hearing of the motion, the parties shall submit their arguments on the questions of law and their evidence on the questions of fact involved except those not available at that time. Should the case go to trial, the evidence presented during the hearing shall automatically be part of the evidence of the party presenting the same. (n)

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Evidence presented at the hearing of the MTD are automatically part of the evidence of the offeror at the trial.

days from service of the amended pleading to answer, unless the court provides a longer period.

Sec. 3. Resolution of motion. — After the hearing, the court may dismiss the action or claim, deny the motion, or order the amendment of the pleading.

de Leon: if a defendant files an answer with counterclaim, an MTD by the defendant to the counterclaim undoubtedly tolls the period to answer the counterclaim, but does it also toll the period to file a reply? I don’t think so. The responses to the answer and the counterclaim are separate.

The court shall not defer the resolution of the motion for the reason that the ground relied upon is not indubitable. In every case, the resolution shall state clearly and distinctly the reasons therefor. (3a) Options of the court after hearing – but not to defer the resolution of the motion for the reason that the ground relied upon is not indubitable 1. dismiss the action or claim 2. deny the MTD 3. order amendment of the pleading Sec. 4. Time to plead. — If the motion is denied, the movant shall file his answer within the balance of the period prescribed by Rule 11 to which he was entitled at the time of serving his motion, but not less than five (5) days in any event, computed from his receipt of the notice of the denial. If the pleading is ordered to be amended, he shall file his answer within the period prescribed by Rule 11 counted from service of the amended pleading, unless the court provides a longer period. (4a) MTD tolls the period to file an answer. If denied, the movant as the remaining period from receipt of notice of denial to file his answer, but not less than 5 days in any case. If the pleading is amended, he has 15

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Sec. 5. Effect of dismissal. — Subject to the right of appeal, an order granting a motion to dismiss based on paragraphs (f), (h) and (i) of section 1 hereof shall bar the refiling of the same action or claim. (n) Grounds for dismissal that bar refilling 1. cause of action is barred by a prior judgment 2. cause of action is barred by the statute of limitations 3. claim or demand set forth in the plaintiff's pleading has been paid, waived, abandoned, or otherwise extinguished 4. claim is unenforceable under the statute of frauds cf Rule 9 Sec. 1 Section 1. Defenses and objections not pleaded. — Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. However, when it appears from the pleadings or the evidence on record that the court has no jurisdiction over the subject matter, that there is another action pending between the same parties for the same cause, or that the action is barred by a prior judgment or by statute of limitations, the court shall dismiss the claim. (2a) Grounds to dismiss that the court may invoke motu proprio Mark de Leon, JD 2001 - 102 -

1. the action is barred by a prior judgment 2. the action is barred by statute of limitations 3. no jurisdiction over the subject matter 4. there is another action pending between the same parties for the same cause Sec. 6. Pleading grounds as affirmative defenses. — If no motion to dismiss has been filed, any of the grounds for dismissal provided for in this Rule may be pleaded as an affirmative defense in the answer and, in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss had been filed. (5a) The dismissal of the complaint under this section shall be without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer. (n) Any of the grounds for dismissal may be pleaded as an affirmative defense in the answer. The court may conduct a preliminary hearing as if an MTD had been filed. If a complaint is dismissed not based on an MTD, but on an affirmative defense pleaded in the answer, a counterclaim pleaded in the answer may be prosecuted in the same or a separate action. de Leon: I recall Justice Relova made a distinction between permissive and compulsory counterclaims on this point. He said if the counterclaim is compulsory, the counterclaim is also dismissed with the complaint. If the counterclaim is permissive, the counterclaim survives the dismissal. In effect, he said that the 2nd par of Sec. 6 applies only to a permissive counterclaim. CASES Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

RAMOS V. PERALTA, 203 SCRA 412 (1991) A case for quieting of title filed by the owner against the lessee is a bar to a case filed by the lessee to compel the owner to accept rental payments. Both cases involve the issue of whether the lease should be respected. For litis pendentia to be invoked as a ground for the dismissal of an action, the concurrence of the following requisites is necessary: 1. Identity of parties or at least such as represent the same interest in both actions; 2. Identity of rights asserted and relief prayed for, the relief being founded on the same facts; and 3. The identity in the two cases should be such that the judgment that may be rendered in one would, regardless of which party is successful, amount to res judicata in the other. Escolin: The issue of which case was filed 1st is not relevant in determining which case to dismiss. The case with the broader scope is the one that must remain. LEE BUN TING V. ALIGAEN, 76 SCRA 416 (1977) L30523 APR22 Contrary doctrine handed down in a subsequent case is not ground to reopen a final and executory case. The doctrine of res judicata applies where, between a pending action and one which has been finally and definitely settled, there is identity of parties, subject matter and cause of action. Escolin: “Law of the case” is a specie of res adjudicata. PNB V. HIPOLITO, 13 SCRA 20 (1965) Mark de Leon, JD 2001 - 103 -

Where the complaint does not show that the claim has prescribed (e.g. it alleges offer of payment which works as a renewal of the obligation), MTD on prescription should be denied. Denial of the offer of payment is improper because in a MTD, the defendant hypothetically admits the truth of the allegations of fact contained in the complaint. Such denial should be raised in the answer, not a MTD. de Leon: Note that the rule now is that the court can not defer ruling on a MTD, but must either grant, deny or order amendment of the complaint (Rule 16, Sec. 3).

upon the merits when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim. (1a) Sec. 4. Dismissal of counterclaim, cross-claim, or third-party complaint. — The provisions of this Rule shall apply to the dismissal of any counterclaim, cross-claim, or third-party complaint. A voluntary dismissal by the claimant by notice as in section 1 of this Rule, shall be made before a responsive pleading or a motion for summary judgment is served or, if there is none, before the introduction of evidence at the trial or hearing. (4a) Procedure in dismissing upon notice by claimant

CONTINENTAL CEMENT CORPORATION V. CA, 184 SCRA 728 (1990) A MTD may be filed within the period to file a responsive pleading. An extension of time to file an answer is also an extension of time to file an MTD. A MTD tolls the period in which to file an answer. de Leon: Under the new rules of civil procedure, after a MTD is denied, a defendant only has the remainder of the period in order to file an answer (Rule 16, Sec. 4).

1. When a. In case of original claims – any time before service of 1)

responsive pleading or

2)

motion for summary judgment

b. In case of non-original claims – any time 1)

before service of

DISMISSAL OF ACTIONS

a) responsive pleading, or

RULE 17

b) motion for summary judgment

Section 1. Dismissal upon notice by plaintiff. — A complaint may be dismissed by the plaintiff by filing a notice of dismissal at any time before service of the answer or of a motion for summary judgment. Upon such notice being filed, the court shall issue an order confirming the dismissal. Unless otherwise stated in the notice, the dismissal is without prejudice, except that a notice operates as an adjudication

2)

where ther is none, before introduction of evidence at the trial or hearing

2. claimant files a notice of dismissal 3. the court shall issue an order confirming the dismissal 4. the dismissal is without prejudice, unless

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a. otherwise stated in the notice b. claimant has once dismissed in a competent court an action based on or including the same claim Sec. 2. Dismissal upon motion of plaintiff. — Except as provided in the preceding section, a complaint shall not be dismissed at the plaintiff's instance save upon approval of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff's motion for dismissal, the dismissal shall be limited to the complaint. The dismissal shall be without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless within fifteen (15) days from notice of the motion he manifests his preference to have his counterclaim resolved in the same action. Unless otherwise specified in the order, a dismissal under this paragraph shall be without prejudice. A class suit shall not be dismissed or compromised without the approval of the court. (2a) cf Rule 16, Sec. 6 Sec. 6. Pleading grounds as affirmative defenses. – xxx The dismissal of the complaint under this section shall be without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer. (n) Procedure in dismissing upon motion by the claimant 1. after service of the answer or of a motion for summary judgment 2. claimant moves to dismiss 3. approval of the court and upon such terms and conditions as the court deems proper Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

4. dismissal shall be without prejudice, unless otherwise specified in the order 5. counterclaims pleaded before service of motion to dismiss survive, either a. resolved in the same action – counterclaimant must manifest such preference within 15 days from notice of the motion to dismiss b. prosecuted in a separate action A class suit shall not be dismissed or compromised without the approval of the court. Sec. 3. Dismissal due to fault of plaintiff. — If, for no justifiable cause, the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint, or to prosecute his action for an unreasonable length of time, or to comply with these Rules or any order of the court, the complaint may be dismissed upon motion of the defendant or upon the court's own motion, without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate action. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise declared by the court. (3a) Grounds for Dismissal due to fault of the claimant – If, for no justifiable cause, the claimant fails to 1. appear on the date of the presentation of his evidence in chief on the claim 2. prosecute his action for an unreasonable length of time 3. comply with these Rules or any order of the court Mark de Leon, JD 2001

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Procedure for dismissal due to fault of claimant 1. claimant commits the grounds for dismissal 2. court dismisses the complaint motu proprio, or upon the defendant’s motion 3. dismissal is with prejudice, unless otherwise declared by the court. Counterclaims survive in the same or in a separate action.

After the prosecution had rested its case, the case may not be dismissed for failure to prosecute. MINA V. PACSON, 8 SCRA 775 (1963) Dismissal of a complaint on the ground that plaintiff refused to obey a court order to implead an indispensable party is a dismissal due to fault of the plaintiff (failure to comply with an order of the court). Such dismissal is valid and with prejudice. It is res judicata to a 2nd complaint.

Dismissal by 1. notice – without prejudice 2. motion – without prejudice 3. fault – with prejudice Sec. 4. Dismissal of counterclaim, cross-claim, or third-party complaint. — xxx (moved to before Sec. 1) CASES GO V. CRUZ, 172 SCRA 247 (1989) A plaintiff has the right to cause dismissal of his action by mere notice before an answer is served on him, even if an answer had already been filed in court. de Leon: Note that service of a motion for summary judgment also precludes right to dismiss by notice. JALOVER V. YTORIAGA, 80 SCRA 100 (1977) Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

CASENAS V. ROSALES, 19 SCRA 462 (1967) For a valid dismissal due to failure to comply with a court order, the court order must be itself valid. Court order requiring amendment of complaint to implead the heirs of a deceased defendant, instead of ordering substitution by the decedent’s representative, is an invalid order. Dismissal on the ground of refusal to obey such an order is void. In Mina, the court ordered the amendment of the complaint to implead an indispensable party. The order was proper, hence failure to comply was a valid ground for dismissal of the complaint. The dismissal due to fault of plaintiff being valid, it was res judicata to a 2nd complaint. In Casenas, the court ordered the amendment of the complaint to implead the heirs of a deceased party. The order was improper because the proper procedure was to substitute. Hence failure to comply was not a valid ground for dismissal of the complaint. There was no valid dismissal due to fault of plaintiff, and therefore no res judicata. REPUBLIC PLANTERS BANK V. MOLINA, 166 SCRA 39 (1988)

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Res judicata requires not only jurisdiction over subject matter, but also jurisdiction over the parties. Where the court in the first case never acquired jurisdiction over a defendant, but the case was dismissed on ground of failure to prosecute, such is not a bar to a 2nd case.

(g) The propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefor be found to exist; (h) The advisability or necessity of suspending the proceedings; and

PRE-TRIAL

(i) Such other matters as may aid in the prompt disposition of the action. (1a, R20)

RULE 18

In civil cases, pre-trial is now mandatory.

Section 1. When conducted. — After the last pleading has been served and filed, it shall be the duty of the plaintiff to promptly move ex parte that the case be set for pre-trial. (5a, R20)

Things to consider in a pre-trial

It is now the plaintiff who moves ex parte that the case be set for pretrial. Sec. 2. Nature and purpose. — The pre-trial is mandatory. The court shall consider: (a) The possibility of an amicable settlement or of a submission to alternative modes of dispute resolution;

1. possibility of an amicable settlement or of a submission to alternative modes of dispute resolution 2. simplification of the issues 3. necessity or desirability of amendments to the pleadings 4. possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof 5. limitation of the number of witnesses

(b) The simplification of the issues;

6. advisability of a preliminary reference of issues to a commissioner

(c) The necessity or desirability of amendments to the pleadings;

7. propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefor be found to exist

(d) The possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof; (e) The limitation of the number of witnesses; (f) The advisability of a preliminary reference of issues to a commissioner; Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

8. advisability or necessity of suspending the proceedings; and 9. other matters as may aid in the prompt disposition of the action

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Sec. 3. Notice of pre-trial. — The notice of pre-trial shall be served on counsel, or on the party who has no counsel. The counsel served with such notice is charged with the duty of notifying the party represented by him. (n)

Effect of failure to appear or failure to file pre-trial brief by the

Sec. 4. Appearance of parties. — It shall be the duty of the parties and their counsel to appear at the pre-trial. The non-appearance of a party may be excused only if a valid cause is shown therefor or if a representative shall appear in his behalf fully authorized in writing to enter into an amicable settlement, to submit to alternative modes of dispute resolution, and to enter into stipulations or admissions of facts and of documents. (n)

2. defendant – cause to allow the plaintiff to present his evidence ex parte and the court to render judgment on the basis thereof

Note that both the parties and their counsel are required to appear at the pre-trial. Grounds for excused absence of a party at the pre-trial 1. valid cause is shown, or 2. a representative appears in his behalf fully authorized in writing to a. enter into an amicable settlement b. submit to alternative modes of dispute resolution, and c. enter into stipulations or admissions of facts and of documents Sec. 5. Effect of failure to appear. — The failure of the plaintiff to appear when so required pursuant to the next preceding section shall be cause for dismissal of the action. The dismissal shall be with prejudice, unless otherwise ordered by the court. A similar failure on the part of the defendant shall be cause to allow the plaintiff to present his evidence ex parte and the court to render judgment on the basis thereof. (2a, R20) Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

1. plaintiff – dismissal of his complaint with prejudice, unless otherwise ordered by the court.

Note failure of the defendant to appear at the pre-trial authorizes the court to render judgment as warranted by the evidence presented. It is not limited by what is alleged in the pleadings, like in case where a defendant has been declared in default. Sec. 6. Pre-trial brief. — The parties shall file with the court and serve on the adverse party, in such manner as shall ensure their receipt thereof at least three (3) days before the date of the pre-trial, their respective pre-trial briefs which shall contain, among others: (a) A statement of their willingness to enter into amicable settlement or alternative modes of dispute resolution, indicating the desired terms thereof; (b) A summary of admitted facts and proposed stipulation of facts; (c) The issues to be tried or resolved; (d) The documents or exhibits to be presented, stating the purpose thereof; (e) A manifestation of their having availed or their intention to avail themselves of discovery procedures or referral to commissioners; and (f) The number and names of the witnesses, and the substance of their respective testimonies. Mark de Leon, JD 2001 - 108 -

Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial. (n)

2. notice of pre-trial shall be served on counsel, or on the party who has no counsel

Some contents of the pre-trial brief

3. parties shall file with the court and serve on the adverse party in such manner as shall ensure their receipt thereof at least 3 days before the date of the pre-trial, their respective pre-trial briefs

1. statement of their willingness to enter into amicable settlement or alternative modes of dispute resolution, indicating the desired terms thereof; 2. summary of admitted facts and proposed stipulation of facts; 3. issues to be tried or resolved; 4. documents or exhibits to be presented, stating the purpose thereof; 5. manifestation of their having availed or their intention to avail themselves of discovery procedures or referral to commissioners; and 6. number and names of the witnesses, and the substance of their respective testimonies. Sec. 7. Record of pre-trial. — The proceedings in the pre-trial shall be recorded. Upon the termination thereof, the court shall issue an order which shall recite in detail the matters taken up in the conference, the action taken thereon, the amendments allowed to the pleadings, and the agreements or admissions made by the parties as to any of the matters considered. Should the action proceed to trial, the order shall explicitly define and limit the issues to be tried. The contents of the order shall control the subsequent course of the action, unless modified before trial to prevent manifest injustice. (5a, R20) Procedure in civil pre-trial 1. plaintiff moves that the case be set for pre-trial Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

4. Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial 5. parties and their counsel must appear at the pre-trial, exceptions a. a valid cause is shown b. a representative shall appear fully authorized in writing to 1)

enter into an amicable settlement

2)

submit to alternative modes of dispute resolution

3)

enter into stipulations or admissions of facts and of documents

6. Effect of failure to appear, or to file a pre-trial brief by the a. plaintiff – cause for dismissal of the action with prejudice, unless otherwise ordered by the court b. defendant – cause to allow the plaintiff to present his evidence ex parte and the court to render judgment on the basis thereof 7. In any case, failure to appear or to file pre-trial brief results in judgment rendered based on evidence ex-parte 8. The proceedings in the pre-trial shall be recorded.

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9. Upon the termination of the pre-trial, the court shall issue an order which shall recite in detail a. the matters taken up in the conference b. the action taken thereon

him. Can have proffer of evidence

Proffer of evidence only aft

CASES

c. the amendments allowed to the pleadings d. the agreements or admissions made by the parties e. Should the action proceed to trial, the order shall explicitly define and limit the issues to be tried. 10. The contents of the order shall control the subsequent course of the action, unless modified before trial to prevent manifest injustice. Distinction between pre-trial in civil and pre-trial in criminal cases

CHAN V. ABAYA, 90 SCRA 61 (1979) The court is directed to hold the pre-trial of the case after the last pleading has been filed. The answer ordinarily is the last pleading. But when the defendant's answer contains a counterclaim plaintiff's answer to it is the last pleading. When no answer to the counterclaim had been filed because of the unresolved motion for a bill of particulars, the calling of a pre-trial conference is premature, since there has yet to be filed the last pleading. Pre-trial is mandatory and notices of pre-trial must be served separately upon the party and his counsel.

DISTINCTION BETWEEN PRE-TRIALS IN CIVIL AND CRIMINAL CASES cf Rule 118, Criminal Pre-trial, 2000 Rules on Criminal Procedure Civil Pre-trial Mandatory Presence of defendant and counsel mandatory Amicable settlement is discussed

FILOIL V. DY PAC, 160 SCRA 133 (1988)

Courts cannot compel the parties to stipulate at pre-trial, under pain of dismissal of the case. The process of securing admissions whether of facts or evidence is essentially voluntary, since stipulations of facts, like Mandatory contracts, bind the parties thereto who are not allowed to controvert statements made therein. Where the parties are unable to arrive at a Accused need not be present, but his counsel must be stipulation of agreed facts and do not reach an amicable settlement of present, otherwise he may be sanctioned their controversy, the court must close the pre-trial proceedings and go the trial of the case. Amicable settlementforward is notwith discussed, unless the Criminal Pre-trial

criminal case is covered by summary procedure SARMIENTO V. JUAN, 120 SCRA 403 (1983) Agreement included in pre-trial order need not be in Agreements or admissions must be written and signed writing by the accused and counsel to be admissible against Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

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The requirement that the last pleading must have been filed before a pre-trial may be scheduled should more appropriately be construed to mean not only if the last pleading had been actually filed, but also if the period for filing the same had expired. The last permissible pleading that a party may file would be the reply to the answer to the last pleading of claim that had been filed in the case, which may either be the complaint, a cross-claim, a counter-claim or a third party complaint, etc. Where neither of the parties appeared at the trial, the better recourse is to dismiss the claim for failure to prosecute, rather than to allow plaintiff to present his case ex parte because while the court may dismiss the claim for failure to prosecute motu proprio, it can not receive evidence ex parte without motion on the part of the plaintiff. A plaintiff who makes no valid appearance at pre-trial may not ask that the defendant be punished for the same shortcoming it was equally guilty of. CITIBANK V. CHUA, 220 SCRA 75 (1993) Since the by-laws are a source of authority for corporate officers and agents of the corporation, a resolution of the Board of Directors appointing an attorney in fact to represent and bind it during the pre-trial conference of the case at bar is not necessary when its by-laws allow its officers to execute a power of attorney to a designated bank officer, clothing him with authority to direct and manage corporate affairs. If the general power of attorney granted specifically allows him to delegate his powers in whole or in part, there can be no doubt that the special power of attorney he executed constitutes a valid delegation of his express power to represent the corporation in the pre-trial conference in the lower court.

RULE 19 Section 1. Who may intervene. — A person who has a legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof may, with leave of court, be allowed to intervene in the action. The court shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and whether or not the intervenor's rights may be fully protected in a separate proceeding. (2[a], [b]a, R12) Who may intervene – a person who 1. has a legal interest a. in the matter in litigation b. in the success of either of the parties, or c. against both parties 2. or is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof Sec. 2. Time to intervene. – The motion to intervene may be filed at any time before rendition of judgment by the trial court. A copy of the pleading-in-intervention shall be attached to the motion and served on the original parties. (n) Requisites for intervention

INTERVENTION Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

1. filed by a proper person Mark de Leon, JD 2001

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2. filed at any time before rendition of judgment 3. copy of the pleading-in-intervention attached to the motion and served on the original parties 4. with leave of court 5. does not unduly delay or prejudice the adjudication of the rights of the original parties 6. intervenor's rights could not be fully protected in a separate proceeding Sec. 3. Pleadings-in-intervention. — The intervenor shall file a complaint-in-intervention if he asserts a claim against either or all of the original parties, or an answer-in-intervention if he unites with the defending party in resisting a claim against the latter. (2[c]a, R12) Sec. 4. Answer to complaint-in-intervention. — The answer to the complaint-in-intervention shall be filed within fifteen (15) days from notice of the order admitting the same, unless a different period is fixed by the court. (2[d]a, R12) CASES

NUÑAL V. CA, 221 SCRA 26 (1993) After judgment has been rendered, motion for intervention is barred, even if the judgment itself recognizes the rights of the movant. The remedy of the movant is to file a seaparate action. ORDONEZ V. GUSTILO, 192 SCRA 469 (1990) Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

Dismissal of the principal action results in dismissal of any corresponding intervention proceedings. In the case at bar, the compromise agreement submitted by the plaintiff and the defendants and the decision approving the same recognized the validity of the Reclamation Contract and the fact that the tract of land involved was the result of the reclamation done by SADECO. In their answer-in-intervention, petitioner alleges that there was no reclamation undertaken by SADECO, that the land in question was the result of accretion from the sea and that the Reclamation Contract is null and void. Clearly then, the compromise agreement and the decision had in effect resolved the aforementioned issues raised by the intervenors. The continuation of the reception of the intervenors' evidence would serve no purpose at all. Should intervenors fail to prove that the Reclamation Contract is null and void and that no actual reclamation w

as made, the correctness and propriety of the decision based on the compromise agreement would be strengthened. Upon the other hand, should they succeed in proving that the contract is null and void, and that the area in question came into being through the natural action of the sea, still the decision of the lower court could no longer be set aside, inasmuch as it has already become final and executed. METROBANK V. PRESIDING JUDGE, 189 SCRA 820 (1990) Facts: Metrobank is the mortgagee of several airconditioning units. Uniwide bought the building of the mortgagor where the airconditioning units are located. Metrobank seeks to foreclose on the mortgage, so it sues Uniwide for replevin. Raycon moved to intervene by complaint Mark de Leon, JD 2001

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against Metrobank. On motion, the principal case was dismiss the case on ground of compromise. TC reconsiders its dismissal on MfR by intervenor Raycor. Held: There is here no final dismissal of the main case. The aforementioned order of the lower court has the effect not only of allowing the intervention suit to proceed but also of vacating its previous order of dismissal. The reinstatement of the case in order to try and determine the claims and rights of the intervenor is proper. The joint motion of therein plaintiff and the original defendants to dismiss the case, without notice to and consent of the intervenor, has the effect of putting to rest only the respective claims of the said original parties inter se, but the same cannot in any way affect the claim of private respondent which was allowed by the court to intervene without opposition from the original parties. Escolin: In Ordoñez, the character of the intervention was truly ancilliary. The compromise agreement between the original parties in effect resolved the issue raised by the intervenor. Hence, there was no need for the intervenors to present evidence since the issue raised by them had already been answered in the principal action. However, in Metrobank, the character of the intervention was that it was entirely independent of the principal action. The settlement by the original parties would not settle the rights fo the intervenor, and in fact such rights may even be prejudiced by the settlement.

corpus cases, election cases, special civil actions, and those so required by law. (1a, R22) Contents of calendar of cases to be kept by the clerk of court 1. cases for pre-trial 2. cases for trial 3. cases whose trials were adjourned or postponed 4. cases with motions to set for hearing Preferred cases 1. habeas corpus cases 2. election cases 3. special civil actions, and 4. those required by law Sec. 2. Assignment of cases. — The assignment of cases to the different branches of a court shall be done exclusively by raffle. The assignment shall be done in open session of which adequate notice shall be given so as to afford interested parties the opportunity to be present. (7a, R22) Procedure in assignment of cases

CALENDAR OF CASES (RULE 20) Section 1. Calendar of cases. — The clerk of court, under the direct supervision of the judge, shall keep a calendar of cases for pre-trial, for trial, those whose trials were adjourned or postponed, and those with motions to set for hearing. Preference shall be given to habeas Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

1. exclusively by raffle 2. in open session 3. adequate notice as to afford interested parties the opportunity to be present Mark de Leon, JD 2001

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SUBPOENA

d) any Justice of the Supreme Court or of the Court of Appeals in any case or investigation pending within the Philippines.

RULE 21

When application for a subpoena to a prisoner is made, the judge or officer shall examine and study carefully such application to determine whether the same is made for a valid purpose.

Section 1. Subpoena and subpoena duces tecum. — Subpoena is a process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted by competent authority, or for the taking of his deposition. It may also require him to bring with him any books, documents, or other things under his control, in which case it is called a subpoena duces tecum. (1a, R23)

No prisoner sentenced to death, reclusion perpetua or life imprisonment and who is confined in any penal institution shall be brought outside the said penal institution for appearance or attendance in any court unless authorized by the Supreme Court. (2a, R23)

Subpoena – a process

Who may issue subpoena

1. directed to a person

1. the court before whom the witness is required to attend

2. requiring him to attend and to testify

2. the court of the place where the deposition is to be taken

a. at the hearing or the trial of an action, or

3. the investigating officer or body authorized by law

b. at any investigation conducted by competent authority, or

4. any SC or CA Justice in any case or investigation pending within the Philippines

c. for the taking of his deposition 3. if it also requires him to bring with him any books, documents, or other things under his control, it is called a subpoena duces tecum Sec. 2. By whom issued. — The subpoena may be issued by— a) the court before whom the witness is required to attend; b) the court of the place where the deposition is to be taken; c) the officer or body authorized by law to do so in connection with investigations conducted by said officer or body; or Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

Only the SC may authorize a prisoner sentenced to death, reclusion perpetua or life imprisonment, and who is confined in any penal institution, to be brought outside the said penal institution for appearance or attendance in any court. Sec. 3. Form and contents. — A subpoena shall state the name of the court and the title of the action or investigation, shall be directed to the person whose attendance is required, and in the case of a subpoena duces tecum, it shall also contain a reasonable description of the books, documents or things demanded which must appear to the court prima facie relevant. (3a, R23) Mark de Leon, JD 2001

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Form and contents 1. name of the court 2. title of the action or investigation 3. directed to the person whose attendance is required 4. a reasonable description of any objects so demanded Sec. 4. Quashing a subpoena. — The court may quash a subpoena duces tecum upon motion promptly made and, in any event, at or before the time specified therein if it is unreasonable and oppressive, or the relevancy of the books, documents or things does not appear, or if the person in whose behalf the subpoena is issued fails to advance the reasonable cost of the production thereof. The court may quash a subpoena ad testificandum on the ground that the witness is not bound thereby. In either case, the subpoena may be quashed on the ground that the witness fees and kilometrage allowed by these Rules were not tendered when the subpoena was served. (4a, R23) Motion to quash a subpoena duces tecum must be filed at or before the time specified therein. Grounds for quashing a subpoena duces tecum 1. unreasonable and oppressive, or 2. relevancy of the object does not appear, or 3. the person in whose behalf the subpoena is issued fails to advance the reasonable cost of the production of the object

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4. witness fees and kilometrage allowed by these Rules were not tendered when the subpoena was served cf Rule 141 for kilometrage fees Grounds for quashing a subpoena ad testificandum 1. the witness is not bound thereby 2. witness fees and kilometrage allowed by these Rules were not tendered when the subpoena was served Sec. 5. Subpoena for depositions. — Proof of service of a notice to take a deposition, as provided in sections 15 and 25 of Rule 23, shall constitute sufficient authorization for the issuance of subpoenas for the persons named in said notice by the clerk of the court of the place in which the deposition is to be taken. The clerk shall not, however, issue a subpoena duces tecum to any such person without an order of the court. (5a, R23) cf Rule 23, Secs. 15 and 25 Sec. 15. Deposition upon oral examination; notice; time and place. — A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs. On motion of any party upon whom the notice is served, the court may for cause shown enlarge or shorten the time. (15, R24) Sec. 25. Deposition upon written interrogatories; service of notice and of interrogatories. — A party desiring to take the deposition Mark de Leon, JD 2001

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of any person upon written interrogatories shall serve them upon every other party with a notice stating the name and address of the person who is to answer them and the name or descriptive title and address of the officer before whom the deposition is to be taken. Within ten (10) days thereafter, a party so served may serve cross-interrogatories upon the party proposing to take the deposition. Within five (5) days thereafter, the latter may serve re-direct interrogatories upon a party who has served crossinterrogatories. Within three (3) days after being served with redirect interrogatories, a party may serve recross-interrogatories upon the party proposing to take the deposition. (25, R24)

Sec. 6. Service. — Service of a subpoena shall be made in the same manner as personal or substituted service of summons. The original shall be exhibited and a copy thereof delivered to the person on whom it is served, tendering to him the fees for one day’s attendance and the kilometrage allowed by these Rules, except that, when a subpoena is issued by or on behalf of the Republic of the Philippines or an officer or agency thereof, the tender need not be made. The service must be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance. If the subpoena is duces tecum, the reasonable cost of producing the books, documents or things demanded shall also be tendered. (6a, R23)

The clerk of court can issue a subpoena ad testificandum to a witness to take his deposition. However, such clerk of court can not issue a subpoena duces tecum unless there is an order of the court.

Note that subpoenas are served like summons, not simply like other papers. Service of a subpoena

Requisites for a clerk of court, of the place in which a deposition is to be taken, to issue a subpoena ad testificandum

1. in the same manner as personal or substituted service of summons.

1. reasonable notice in writing to every other party to the action

2. original shall be exhibited and a copy thereof delivered to the person on whom it is served

2. notice shall state a. the time and place for taking the deposition b. the name and address of each person to be examined, if known, and if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs c. (in case of written interrogatories) name or descriptive title and address of the officer before whom the deposition is to be taken 3. proof of service of the notice

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3. there must be tender of fees for one day’s attendance and the kilometrage, unless the subpoena is issued by or on behalf of the Republic of the Philippines or an officer or agency thereof 4. must allow the witness a reasonable time for preparation and travel to the place of attendance 5. If the subpoena is duces tecum, the reasonable cost of producing the objects demanded shall also be tendered. de Leon: Is service of a subpoena duces tecum issued by or on behalf of the government also exempt from tendering the reasonable cost of producing the object? Mark de Leon, JD 2001

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Sec. 7. Personal appearance in court. — A person present in court before a judicial officer may be required to testify as if he were in attendance upon a subpoena issued by such court or officer. (10, R23) A person present in court may be compelled to testify even without being served a subpoena.

Sec. 10. Exceptions. — The provisions of sections 8 and 9 of this Rule shall not apply to a witness who resides more than one hundred (100) kilometers from his residence to the place where he is to testify by the ordinary course of travel, or to a detention prisoner if no permission of the court in which his case is pending was obtained. (9a, R23)

Sec. 8. Compelling attendance. — In case of failure of a witness to attend, the court or judge issuing the subpoena, upon proof of the service thereof and of the failure of the witness, may issue a warrant to the sheriff of the province, or his deputy, to arrest the witness and bring him before the court or officer where his attendance is required, and the cost of such warrant and seizure of such witness shall be paid by the witness if the court issuing it shall determine that his failure to answer the subpoena was willful and without just excuse. (11, R23)

When witness may disobey subpoena

Requisites for an arrest warrant against a witness

CASES

1. he resides more than 100 kilometers from the place where he is to testify by the ordinary course of travel, 2. a detention prisoner if no permission of the court in which his case is pending was obtained

1. proof of the service of the subpoena 2. failure of a witness to attend 3. issued by the court or judge issuing the subpoena Sec. 9. Contempt. — Failure by any person without adequate cause to obey a subpoena served upon him shall be deemed a contempt of the court from which the subpoena is issued. If the subpoena was not issued by a court, the disobedience thereto shall be punished in accordance with the applicable law or Rule. (12a, R23) Penalty for failure without adequate cause to obey a subpoena served upon and issued by 1. a court - contempt 2. not a court - punished in accordance with the applicable law or Rule Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

PEOPLE V. MONTEJO, 21 SCRA 722 (1967) FACTS 

Felix Wee Sit was charged with double homicide and SPI thru reckless imprudence in the Zambo CFI.



Patrolman Ernesto Uaje was stated as a material and important witness to the accident. At the time of the trial, Patrolman Uaje had already returned to Montalban Rizal.



Upon formal request of the City Fiscal, respondent judge Montejo issued a subpoena to Uaje addressed at Montalban Rizal.

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

Subpoena was served on Uaje, the return showing that he had received it. Uaje did not appear in the trial’s continuation.



City Fiscal moved for an order of arrest or to cite for contempt Uaje for willful failure to appear.



Respondent judge denied said motion. MfR was also denied.



Petition was given due course with prelim injunction issued.

enforced. The right to a bonus is wholly independent of the profits of the company; hence subpoena duces tecum to produce objects that show such profitability is improper. In determining whether the production of the documents described in a subpoena duces tecum should be enforced by the court, it is prope to consider, first, whether the subpoena calls for the production of specific documents, or rather for specific proof, and second, whether that proof is prima facie sufficiently relevant to justify enforcing its production.

HELD 



The rule excusing a witness from obeying a subpoena if the distance exceeds 50 (now 100) kilometers from his place of residence to the place of trial, applies solely to civil cases and not to criminal cases. The refusal of a judge to grant the prosecution's motion to arrest a material witness in a criminal case, or in the alternative, to cite him for contempt, amounts to grave abuse of discretion. LIEBENOW V. PHIL. VEGETABLE, 39 PHIL 60 (1918)

Facts: Liebenow was an employee of Phil. Vegetable Oil Company. He sues Phil. Vegetable claiming to be entitled to bonuses due to the increased profitability of the company. He caused the issuance of a subpoena duces tecum for the defendant to produce various voluminous records in order to show the increased profitability of the company. Defendant moved to vacate the subpoena duces tecum. Held: Subpoena duces tecum may be issued to procure objects which are relevant to the case. A general inquisitorial examination of all the books, papers, and documents of an adversary, conducted with a view to ascertain whether something of value may not show up, will not be Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

COMPUTATION OF TIME (RULE 22) Section 1. How to compute time. — In computing any period of time prescribed or allowed by these Rules, or by order of the court, or by any applicable statute, the day of the act or event from which the designated period of time begins to run is to be excluded and the date of performance included. If the last day of the period, as thus computed, falls on a Saturday, a Sunday, or a legal holiday in the place where the court sits, the time shall not run until the next working day. (n) In computing any period of time, the day from which the period begins to run is to be excluded and the date of performance included. If the last day of the period falls on a Saturday, a Sunday, or a legal holiday in the place where the court sits, the time shall not run until the next working day. Sec. 2. Effect of interruption. — Should an act be done which effectively interrupts the running of the period, the allowable period after such interruption shall start to run on the day after notice of the cessation of the cause thereof. Mark de Leon, JD 2001

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The day of the act that caused the interruption shall be excluded in the computation of the period. (n)

Kinds of depositions

Section 1. Depositions pending action, when may be taken. — By leave of court after jurisdiction has been obtained over any defendant or over property which is the subject of the action, or without such leave after an answer has been served, the testimony of any person, whether a party or not, may be taken, at the instance of any party, by deposition upon oral examination or written interrogatories. The attendance of witnesses may be compelled by the use of a subpoena as provided in Rule 21. Depositions shall be taken only in accordance with these Rules. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes. (1a, R24)

1. Depositions Pending Actions

When depositions of anyone pending action may be taken

2. Depositions Before Action or Pending Appeal

1. after jurisdiction has been obtained over any defendant or over property which is the subject of the action, but before answer has been served – by leave of court

Should the period be interrupted, the day of interruption shall be excluded. The period shall run again on the day after notice of the cessation of the cause.

MODES OF DISCOVERY (RULE 23-29)

3. Interrogatories to Parties 4. Admission by Adverse Party 5. Production or Inspection of Documents of Things 6. Physical and Mental Examination of Persons

2. after an answer has been served – leave of court not required The attendance of witnesses may be compelled by the use of a subpoena.

Famador: Bill of Particulars is a mode of discovery.

The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.

DEPOSITIONS PENDING ACTIONS

Sec. 2. Scope of examination. — Unless otherwise ordered by the court as provided by section 16 or 18 of this Rule, the deponent may be examined regarding any matter, not privileged, which is relevant to the subject of the pending action, whether relating to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts. (2, R24)

Affidavits, by itself, are not admissible against the other party because the other party had no opportunity to cross-examine. Depositions, by itself, are admissible against the other party because the other party had an opportunity to cross-examine. RULE 23 Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

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Sec. 16. Orders for the protection of parties and deponents. — After notice is served for taking a deposition by oral examination, upon motion seasonably made by any party or by the person to be examined and for good cause shown, the court in which the action is pending may make an order that the deposition shall not be taken, or that it may be taken only at some designated place other than that stated in the notice, or that it may be taken only on written interrogatories, or that certain matters shall not be inquired into, or that the scope of the examination shall be held with no one present except the parties to the action and their officers or counsel, or that after being sealed the deposition shall be opened only by order of the court, or that secret processes, developments, or research need not be disclosed, or that the parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court; or the court may make any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression. (16a, R24) Sec. 18. Motion to terminate or limit examination. — At any time during the taking of the deposition, on motion or petition of any party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the Regional Trial Court of the place where the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition, as provided in section 16 of this Rule. If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a notice for an order. In granting or refusing such order, the court may impose upon either party or upon Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

the witness the requirement to pay such costs or expenses as the court may deem reasonable. (18a, R24) The deponent may be examined regarding any matter 1. not privileged, and 2. is relevant to the subject of the pending action After notice is served for taking a deposition by oral examination, upon motion seasonably made by any party or by the person to be examined and for good cause shown, the court in which the action is pending may make an order that 1. deposition shall not be taken 2. it may be taken only at some designated place other than that stated in the notice 3. it may be taken only on written interrogatories 4. certain matters shall not be inquired into 5. the scope of the examination shall be held with no one present except the parties to the action and their officers or counsel 6. after being sealed the deposition shall be opened only by order of the court 7. secret processes, developments, or research need not be disclosed 8. the parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court 9. any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression. Mark de Leon, JD 2001 - 120 -

Requisites for a court order to terminate or limit the scope and manner of taking of the deposition

(1) To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor;

1. motion or petition of any party or of the deponent

(2) Not to be detained longer than the interests of justice require;

2. At any time during the taking of the deposition 3. showing that the examination is being conducted in bad faith or to unreasonably to annoy, embarrass, or oppress the deponent or party 4. issued by the court in which the action is pending or the RTC of the place where the deposition is being taken If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a notice for an order. In granting or refusing such order, the court may impose upon either party or upon the witness the requirement to pay such costs or expenses as the court may deem reasonable. Sec. 3. Examination and cross-examination. — Examination and cross-examination of deponents may proceed as permitted at the trial under sections 3 to 18 of Rule 132. (3a, R24) cf Rule 132, Sec. 3 and 18 Sec. 3. Rights and obligations of a witness. - A witness must answer questions, although his answer may tend to establish a claim against him. However, it is the right of a witness:

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(3) Not to be examined except only as to matters pertinent to the issue; (4) Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law; or (5) Not to give an answer which will tend to degrade his reputation, unless it be to the very fact at issue or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his previous final conviction for an offense. (3 a, l9 a) Sec. 18. Right to inspect writing shown to witness. - Whenever a writing is shown to a witness, it may be inspected by the adverse party. (9 a) Sec. 4. Use of depositions. — At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any one of the following provisions: (a) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness; (b) The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent of a Mark de Leon, JD 2001

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public or private corporation, partnership, or association which is a party may be used by an adverse party for any purpose; (c) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (1) that the witness is dead; or (2) that the witness resides at a distance more than one hundred (100) kilometers from the place of trial or hearing, or is out of the Philippines, unless it appears that his absence was procured by the party offering the deposition; or (3) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or (4) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (5) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used; and (d) If only part of a deposition is offered in evidence by a party, the adverse party may require him to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts. (4a, R24) Memorize Sec. 4! The deposition may be used against any party who 1. was present or represented at the taking of the deposition, or 2. who had due notice When deposition may be used 1. At the trial or 2. upon the hearing of Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

a. a motion or b. an interlocutory proceeding Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness. Instances when the deposition of any witness may be used by the adverse party for any purpose 1. the deponent is a party 2. the deponent, at the time of taking the deposition, was an officer, director, or managing agent of a public or private corporation, partnership, or association which is a party Instances when the deposition of any witness may be used by any party for any purpose 1. the witness is dead; or 2. the witness resides at a distance more than 100 kilometers from the place of trial or hearing 3. the witness is out of the Philippines, unless it appears that his absence was procured by the offeror 4. the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment 5. offeror has been unable to procure the attendance of the witness by subpoena; or 6. upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due Mark de Leon, JD 2001

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regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used; and If only part of a deposition is offered in evidence by a party 1. the adverse party may require him to introduce all of it which is relevant to the part introduced, and 2. any party may introduce any other parts. Sec. 5. Effect of substitution of parties. — Substitution of parties does not affect the right to use depositions previously taken; and, when an action has been dismissed and another action involving the same subject is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefor. (5, R24) Substitution of parties does not affect the right to use depositions previously taken. When an action has been dismissed and another action involving the same subject is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefor. Sec. 6. Objections to admissibility. — Subject to the provisions of section 29 of this Rule, objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying. (6, R24) Sec. 29. Effects of errors and irregularities in depositions. — Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

(a) As to notice.— All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice. (b) As to disqualification of officer.— Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence. (c) As to competency or relevancy of evidence.— Objections to the competency of a witness or the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time. (d) As to oral examination and other particulars.— Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of the parties and errors of any kind which might be obviated, removed, or cured if promptly prosecuted, are waived unless reasonable objection thereto is made at the taking of the deposition. (e) As to form of written interrogatories.— Objections to the form of written interrogatories submitted under sections 25 and 26 of this Rule are waived unless served in writing upon the party propounding them within the time allowed for serving succeeding cross or other interrogatories and within three (3) days after service of the last interrogatories authorized. (f) As to manner of preparation. — Errors and irregularities in the manner in which the testimony is transcribed or the deposition is Mark de Leon, JD 2001

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prepared, signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer under sections 17, 19, 20 and 26 of this Rule are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained. (29a, R24) GR: Objections to depositions raised at the time they are offered in evidence as if the witness were actually testifying. Exceptions: Objections as to 1. notice — promptly served upon the party giving the notice. 2. disqualification of officer — made a. before the taking of the deposition begins or b. as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence. 3. competency or relevancy of evidence which might have been obviated or removed if presented at upon deposition – at the time of deposition 4. conduct of the oral examination which might be obviated, removed, or cured if promptly raised — at the taking of the deposition. 5. form of written interrogatories. — served in writing upon the party propounding them within a. the time allowed for serving succeeding cross or other interrogatories and b. within 3 days after service of the last interrogatories authorized. Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

6. manner of transcribing or preparation by the officer — with reasonable promptness after such defect is, or with due diligence might have been, ascertained. Sec. 7. Effect of taking depositions. — A party shall not be deemed to make a person his own witness for any purpose by taking his deposition. (7, R24) Sec. 8. Effect of using depositions. — The introduction in evidence of the deposition or any part thereof for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition, but this shall not apply to the use by an adverse party of a deposition as described in paragraph (b) of section 4 of this Rule. (8, R24) cf Rule 23, Sec. 4 Sec. 4. Use of depositions. — xxx (b) The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent of a public or private corporation, partnership, or association which is a party may be used by an adverse party for any purpose; GR: A party shall not be deemed to make a person his own witness for any purpose by taking his deposition. Exception: The introduction in evidence of the deposition or any part thereof makes the deponent the witness of the party introducing the deposition. Exception to the exception: Introduction of deposition in evidence does not make the deponent a witness of the offeror where Mark de Leon, JD 2001

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1. the purpose was to contradict or impeach the deponent

2. notary public, or

2. the deposition is that of an adverse party or an officer, director, or managing agent of entities which is an adverse party

3. any person authorized to administer oaths, if the parties so stipulate in writing

Sec. 9. Rebutting deposition. — At the trial or hearing, any party may rebut any relevant evidence contained in a deposition whether introduced by him or by any other party. (9, R24)

Escolin: Never designate a RTC judge to be a deposition officer.

Any party may rebut any relevant evidence contained in a deposition introduced by anybody, including himself.

1. on notice before Philippine Republic’s

Sec. 10. Persons before whom depositions may be taken within the Philippines. — Within the Philippines, depositions may be taken before any judge, notary public, or the person referred to in section 14 hereof. (10a, R24) Sec. 11. Persons before whom depositions may be taken in foreign countries. — In a foreign state or country, depositions may be taken (a) on notice before a secretary of embassy or legation, consul general, consul, vice-consul, or consular agent of the Republic of the Philippines; (b) before such person or officer as may be appointed by commission or under letters rogatory; or (c) the person referred to in section 14 hereof. (11a, R24) Sec. 14. Stipulations regarding taking of depositions. — If the parties so stipulate in writing, depositions may be taken before any person authorized to administer oaths, at any time or place, in accordance with these Rules, and when so taken may be used like other depositions. (14a, R24) Persons before whom depositions may be taken within the Philippines 1. any judge Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

Persons before whom depositions may be taken in foreign countries

a. a secretary of embassy or legation b. consul general c. consul d. vice-consul, or e. consular agent 2. person or officer as may be appointed by commission or under letters rogatory 3. any person authorized to administer oaths, if the parties so stipulate in writing Sec. 12. Commission or letters rogatory. — A commission or letters rogatory shall be issued only when necessary or convenient, on application and notice, and on such terms and with such direction as are just and appropriate. Officers may be designated in notices or commissions either by name or descriptive title and letters rogatory may be addressed to the appropriate judicial authority in the foreign country. (12a, R24) When commission or letters rogatory may be issued Mark de Leon, JD 2001

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1. only when necessary or convenient 2. on application and notice 3. on such terms and with such direction as are just and appropriate Officers may be designated in notices or commissions either by name or descriptive title and letters rogatory may be addressed to the appropriate judicial authority in the foreign country. Sec. 13. Disqualification by interest. — No deposition shall be taken before a person who is a relative within the sixth degree of consanguinity or affinity, or employee or counsel of any of the parties; or who is a relative within the same degree, or employee of such counsel; or who is financially interested in the action. (13a, R24) Disqualifications in taking depositions 1. relation as to a party a. relative within the sixth degree of consanguinity or affinity b. employee or counsel 2. relation as to counsel of any of the parties a. relative within the same degree b. employee 3. financial interest in the action Sec. 14. Stipulations regarding taking of depositions. — xxx (moved after Secs. 10 and 11) Sec. 15. Deposition upon oral examination; notice; time and place. — A party desiring to take the deposition of any person upon oral Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

examination shall give reasonable notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs. On motion of any party upon whom the notice is served, the court may for cause shown enlarge or shorten the time. (15, R24) Procedure in deposition upon oral examination 1. reasonable notice in writing given to every other party to the action 2. notice shall state a. time and place for taking the deposition b. if known, name and address of each person to be examined c. if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs 3. On motion of any party, the court may enlarge or shorten the time Sec. 16. Orders for the protection of parties and deponents. — xxx (moved to after Sec. 2) Sec. 17. Record of examination; oath; objections. — The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by some one acting under his direction and in his presence, record the testimony of the witness. The testimony shall be taken stenographically unless the parties agree otherwise. All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, Mark de Leon, JD 2001

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and any other objection to the proceedings, shall be noted by the officer upon the deposition. Evidence objected to shall be taken subject to the objections. In lieu of participating in the oral examination, parties served with notice of taking a deposition may transmit written interrogatories to the officers, who shall propound them to the witness and record the answers verbatim. (17, R24) The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by some one acting under his direction and in his presence, record the testimony of the witness. The testimony shall be taken stenographically unless the parties agree otherwise. Following objections, made at the time of the examination, shall be noted by the officer upon the deposition 1. the qualifications of the officer taking the deposition 2. the manner of taking it 3. the evidence presented 4. the conduct of any party, and 5. any other objection to the proceedings. Evidence objected to shall be taken subject to the objections. de Leon: Note that the deposition officer does not rule on the objections. He merely notes them. In lieu of participating in the oral examination, parties served with notice of taking a deposition may transmit written interrogatories to the officers, who shall propound them to the witness and record the answers verbatim. Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

Sec. 18. Motion to terminate or limit examination. — xxx (moved to after Sec. 2) Sec. 19. Submission to witness; changes; signing. — When the testimony is fully transcribed, the deposition shall be submitted to the witness for examination and shall be read to or by him, unless such examination and reading are waived by the witness and by the parties. Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them. The deposition shall then be signed by the witness, unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign. If the deposition is not signed by the witness, the officer shall sign it and state on the record the fact of the waiver or of the illness or absence of the witness or the fact of the refusal to sign together with the reason given therefor, if any, and the deposition may then be used as fully as though signed, unless on a motion to suppress under section 29 (f) of this Rule, the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part. (19a, R24) cf Sec. 29 (f) Sec. 29. Effects of errors and irregularities in depositions. — (f) As to manner of preparation.— Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer under sections 17, 19, 20 and 26 of this Rule are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained. (29a, R24) Mark de Leon, JD 2001

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Sec. 20. Certification and filing by officer. — The officer shall certify on the deposition that the witness was duly sworn to by him and that the deposition is a true record of the testimony given by the witness. He shall then securely seal the deposition in an envelope indorsed with the title of the action and marked "Deposition of (here insert the name of witness)" and shall promptly file it with the court in which the action is pending or send it by registered mail to the clerk thereof for filing. (20, R24) Sec. 21. Notice of filing. — The officer taking the deposition shall give prompt notice of its filing to all the parties. (21, R24) Post examination procedure 1. testimony is fully transcribed 2. deposition shall be submitted to the witness for examination and shall be read to or by him, unless such examination and reading are waived by the witness and by the parties 3. Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them.

5. If the deposition is not signed by the witness a. the officer shall sign it and b. state on the record the fact of 1) 2)

the waiver, illness, or absence of the witness or the refusal to sign together with the reason given therefor, if any

c. the deposition may then be used as fully as though signed, unless on a motion to suppress is filed and the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part. 6. The officer shall then a. certify on the deposition that 1) 2)

the witness was duly sworn to by him and the deposition is a true record of the testimony given by the witness

a. the parties by stipulation waive the signing or

b. securely seal the deposition in an envelope indorsed with the title of the action and marked "Deposition of (here insert the name of witness)"

b. the witness is

c. promptly

4. The deposition shall then be signed by the witness, unless

1)

ill or

1)

2)

cannot be found or

2)

3)

refuses to sign.

file it with the court in which the action is pending or send it by registered mail to the clerk thereof for filing.

d. give prompt notice of its filing to all the parties Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

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Sec. 22. Furnishing copies. — Upon payment of reasonable charges therefor, the officer shall furnish a copy of the deposition to any party or to the deponent. (22, R24) Upon payment of reasonable charges, the officer shall furnish a copy of the deposition to any party or to the deponent. Sec. 23. Failure to attend of party giving notice. — If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and another attends in person or by counsel pursuant to the notice, the court may order the party giving the notice to pay such other party the amount of the reasonable expenses incurred by him and his counsel in so attending, including reasonable attorney’s fees. (23a, R24) Sec. 24. Failure of party giving notice to serve subpoena. — If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena upon him and the witness because of such failure does not attend, and if another party attends in person or by counsel because he expects the deposition of that witness to be taken, the court may order the party giving the notice to pay to such other party the amount of the reasonable expenses incurred by him and his counsel in so attending, including reasonable attorney’s fees. (24a, R24) When court may order the party giving the notice to pay the other attending party reasonable expenses incurred by him and his counsel in so attending, including reasonable attorney’s fees 1. Failure to attend of party giving notice 2. Failure of a witness to attend because of failure of the party giving notice to serve a subpoena upon him

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Sec. 25. Deposition upon written interrogatories; service of notice and of interrogatories. — A party desiring to take the deposition of any person upon written interrogatories shall serve them upon every other party with a notice stating the name and address of the person who is to answer them and the name or descriptive title and address of the officer before whom the deposition is to be taken. Within ten (10) days thereafter, a party so served may serve cross-interrogatories upon the party proposing to take the deposition. Within five (5) days thereafter, the latter may serve re-direct interrogatories upon a party who has served cross-interrogatories. Within three (3) days after being served with re-direct interrogatories, a party may serve recrossinterrogatories upon the party proposing to take the deposition. (25, R24) Sec. 26. Officers to take responses and prepare record. — A copy of the notice and copies of all interrogatories served shall be delivered by the party taking the deposition to the officer designated in the notice, who shall proceed promptly, in the manner provided by sections 17, 19 and 20 of this Rule, to take the testimony of the witness in response to the interrogatories and to prepare, certify, and file or mail the deposition, attaching thereto the copy of the notice and the interrogatories received by him. (26, R24) Sec. 27. Notice of filing and furnishing copies. — When a deposition upon interrogatories is filed, the officer taking it shall promptly give notice thereof to all the parties, and may furnish copies to them or to the deponent upon payment of reasonable charges therefor. (27, R24) Procedure in taking deposition upon written interrogatories 1. service of the written interrogatories and notice every other party 2. notice shall state a. the name and address of the person who is to answer them and Mark de Leon, JD 2001 - 129 -

b. the name or descriptive title and address of the officer before whom the deposition is to be taken 3. Within 10 days thereafter, a party so served may serve crossinterrogatories

notice or that it shall not be taken except upon oral examination. (28a, R24) Requisites for an court order for the protection of parties and deponents

4. Within 5 days thereafter, re-direct interrogatories may be served

1. After the service of the interrogatories and prior to the taking of the testimony

5. Within 3 days thereafter, recross-interrogatories may be served

2. motion made by a party or a deponent

6. A copy of the notice and copies of all interrogatories served shall be delivered by the party taking the deposition to the officer designated in the notice

3. for good cause shown

7. the officer shall proceed to

4. the order either that a. order specified in sections 15, 16 and 18 of this Rule

a. take the testimony of the witness in response to the interrogatories and

b. the deposition shall not be taken before the officer designated in the notice

b. prepare, certify, and file or mail the deposition, attaching thereto the copy of the notice and the interrogatories received by him.

c. the deposition shall not be taken except upon oral examination

c. Notify all parties of the filing of the deposition upon interrogatories The officer may furnish copies of the deposition upon interrogatories to the parties or to the deponent upon payment of reasonable charges. Sec. 28. Orders for the protection of parties and deponents. — After the service of the interrogatories and prior to the taking of the testimony of the deponent, the court in which the action is pending, on motion promptly made by a party or a deponent, and for good cause shown, may make any order specified in sections 15, 16 and 18 of this Rule which is appropriate and just or an order that the deposition shall not be taken before the officer designated in the Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

Sec. 29. Effects of errors and irregularities in depositions. — xxx (moved to after Sec. 6) CASES CAMUS DE LOPEZ V. MACEREN, 95 PHIL 753 (1954) FACTS Salvador Lopez, Sr. died. Second wife Lourdes Camus de Lopez and children filed a civil case in Davao CFI for delivery of some property of the deceased against first wife Maria and children. After defendant’s answer was filed, petitioner filed a “notice for the taking” of her deposition and that of Pilar Cristobal at rm202 of the Vasquez Bldg. Acting upon an urgent motion of the defendants, respondent judge Maceren issued an order prohibiting the taking of said desposition. Mark de Leon, JD 2001 - 130 -

Petitioner instituted the present case for the purpose of annulling said order and of having no restraint to the taking of the deposition.

grave abuse of discretion was committed by respondent judge in issuing the order.

Petitioner maintains that respondent judge committed a grave abuse of discretion in forbidding the taking of said deposition, she being entitled thereto as a matter of right, without leave of court, after the filing of the answer of the defendants.

Said order is annulled and set aside. Famador: Lopez vs Maceren is one of the exceptions to the testimony of witnesses in open court. Another exception is when the witness is a minor.

Respondent invokes Sec16 Rule 29 which explicitly vests in the court the power to “order that the deposition shall not be taken” and, this grant connotes the authority to exercise discretion in connection therewith. HELD If the order of the court forbidding the taking of a deposition does not claim to seek to avert discovery which is intended not as an aid to litigation, but merely to annoy, embarrass or oppress either the deponent or the adverse party, or both, and tends, in effect, to deprive a party of not only the right to take depositions, but also the opportunity to prove his claim (e.g. party can not afford to transport witnesses to testify at the trial) the said order should be set aside. The objection to the effect that if the depositions were taken the court could not observe the behaviour of the deponents is untenable. Otherwise, no deposition could ever be taken, said objection or handicap being common to all deposition. It is not claimed that the order complained of sought to avert any of the evils which Sec16 Rule 29 was meant to prevent or arrest. Moreover, petitioner was permitted to institute and maintain the case as a pauper. As such, she can ill afford to meet the expenses to make, with her witnesses, the trip or trips from Manila (where Lourdez and Salvador settled) to Davao, and to stay there for the duration of the hearing. Hence, the order in question tended, in effect, to deprive her, not only of her right to take the deposition, but also the opportunity to prove her claim, and consequently, of due process. It is consequently clear that a Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

VERAN V. CA, 157 SCRA 438 (1988) FACTS Plaintiffs brought an action to recover possession of a parcel of land in Atimonan Quezon against defendant Primitiva Villareal. Plaintiff alleged that they only allowed Villareal, being a cousin, to erect her house on a portion of the land in dispute which they inherited from Aleja Glodoveza who in turn inherited it from her mother. Villareal however refused to vacate the lot when demanded to do so repeatedly, claiming co-ownership also by inheritance from their common ancestor, the mother of Aleja. Because of the pendency of a protest filed by Villareal to the Director of Lands, the trial was suspended indefinitely on petition of both parties. However, plaintiff’s new counsel moved for the setting of the case for trial. Motion was granted but for failure of the defendants to appear on the date set for hearing, plaintiffs were allowed to present their evidence exparte, after which the trial court decided in favor of the plaintiff.

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Upon MfR, the decision was set aside in order to allow defendant to present her evidence.

although petitioners filed an opposition, this was not acted upon by the trial court before the taking of the deposition.

Defendant offered as part of her evidence the deposition of Apolonia Glodoveza, but it was not admitted by the trial court on the ground that no proof was submitted to show that the witness was so old and infirm as not to be able to come to court to testify, as contended by plaintiff in their opposition to the deposition-taking.

If despite due notice, the counsel for petitioners failed to appear on the date set for the taking of the deposition, petitioners cannot claim denial of their right, to cross-examine the deponent.

Trial court again ruled in favor of the plaintiffs. CA reversed the trial court ruling, dismissed the complaint, and granted the counterclaim. CA held that the rejection by the TC of Apolonia’s deposition was erroneous.

DEPOSITIONS BEFORE ACTION OR PENDING APPEAL (RULE 24) General procedure for depositions before action 1. petition filed by a party who expects to be a party in an action in the court of th residence of the expected adverse party 2. notice of the petition served on expected adverse party 3. court serves notice of hearing, at least 20 days before, to

HELD

a. parties and

Considering that the deposition was taken long after the answer had been filed and served, there was therefore no need to seek the approval of the TC for the taking of the deposition, notice of such taking being sufficient.

b. prospective deponents

Leave of court for the taking of depositions should be distinguished from the approval of the court for the use of the depositions taken. Although approval of court for the taking of the deposition is not required because the answer has already been filed and served, the court has discretion to admit or disallow such deposition when offered in evidence. In the instant case, it is not disputed that notice of the deposition-taking was received by petitioners well before the intended date and that Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

4. court order a. designating or describing the persons whose deposition may be taken and b. specifying the subject matter of the examination and c. specifying whether the depositions shall be taken upon oral examination or written interrogatories. 5. deposition taken would be admissible in evidence, it may be used in any action involving the same subject matter subsequently brought Mark de Leon, JD 2001

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Section 1. Depositions before action; petition. — A person who desires to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of the Philippines, may file a verified petition in the court of the place of the residence of any expected adverse party. (1a, R134)

4. the facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it

Venue of petition for depositions before action – court of the residence of any expected adverse party

6. the names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each

Sec. 2. Contents of petition. — The petition shall be entitled in the name of the petitioner and shall show: (a) that the petitioner expects to be a party to an action in a court of the Philippines but is presently unable to bring it or cause it to be brought; (b) the subject matter of the expected action and his interest therein; (c) the facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it; (d) the names or a description of the persons he expects will be adverse parties and their addresses so far as known; and (e) the names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition for the purpose of perpetuating their testimony. (2, R134)

7. ask for an order authorizing the petitioner to take the depositions of the persons named to perpetuate their testimony.

Contents of petition for deposition before action 1. entitled in the name of petitioner 2. that the petitioner expects to be a party to an action in a court of the Philippines but is presently unable to a. bring it or b. cause it to be brought 3. the subject matter of the expected action and his interest therein Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

5. the names or a description of the persons he expects will be adverse parties and their addresses so far as known; and

Sec. 3. Notice and service. — The petitioner shall serve a notice upon each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition. At least twenty (20) days before the date of the hearing, the court shall cause notice thereof to be served on the parties and prospective deponents in the manner provided for service of summons. (3a, R134) Sec. 4. Order and examination. — If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose deposition may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written interrogatories. The depositions may then be taken in accordance with Rule 23 before the hearing. (4a, R134) Sec. 5. Reference to court. — For the purpose of applying Rule 23 to depositions for perpetuating testimony, each reference therein to the court in which the action is pending shall be deemed to refer to the court in which the petition for such deposition was filed. (5a, R134). Mark de Leon, JD 2001

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Sec. 6. Use of deposition. — If a deposition to perpetuate testimony is taken under this Rule, or if, although not so taken, it would be admissible in evidence, it may be used in any action involving the same subject matter subsequently brought in accordance with the provisions of sections 4 and 5 of Rule 23. (6a, R134) Sec. 7. Depositions pending appeal. — If an appeal has been taken from a judgment of a court, including the Court of Appeals in proper cases, or before the taking of an appeal if the time therefor has not expired, the court in which the judgment was rendered may allow the taking of depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the said court. In such case the party who desires to perpetuate the testimony may make a motion in the said court for leave to take the depositions, upon the same notice and service thereof as if the action was pending therein. The motion shall state (a) the names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each; and (b) the reason for perpetuating their testimony. If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in these Rules for depositions taken in pending actions. (7a, R134) General procedure for depositions pending appeal 1. Either a. appeal has been taken from a judgment of a court (including CA), or

Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

b. before the taking of an appeal if the appeal period has not expired 2. party moves for leave to take deposition pending appeal 3. The motion shall state a. names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each; and b. the reason for perpetuating their testimony. 4. service of notice of hearing on the motion 5. court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice 6. court order allowing the depositions to be taken and used as in depositions pending actions INTERROGATORIES TO PARTIES (RULE 25) Section 1. Interrogatories to parties; service thereof. — Under the same conditions specified in section 1 of Rule 23, any party desiring to elicit material and relevant facts from any adverse parties shall file and serve upon the latter written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association, by any officer thereof competent to testify in its behalf. (1a) cf Rule 23 Sec. 1 Section 1. Depositions pending action, when may be taken. — By leave of court after jurisdiction has been obtained over any Mark de Leon, JD 2001 - 134 -

defendant or over property which is the subject of the action, or without such leave after an answer has been served, xxx. Requisites in interrogatories to parties 1. Leave of court a. after jurisdiction has been obtained over any defendant or over property which is the subject of the action – by leave of court b. after an answer has been served – leave of court not required 2. file and serve written interrogatories upon a. the adverse party, or b. if the party served is an entity, on an officer competent to testify in its behalf Sec. 2. Answer to interrogatories. — The interrogatories shall be answered fully in writing and shall be signed and sworn to by the person making them. The party upon whom the interrogatories have been served shall file and serve a copy of the answers on the party submitting the interrogatories within fifteen (15) days after service thereof, unless the court, on motion and for good cause shown, extends or shortens the time. (2a) Requisites for Answer to interrogatories 1. answered fully in writing 2. signed and sworn to by the person making them 3. file and serve a copy of the answers on the party submitting the interrogatories within 15 days after service thereof, unless the court, on motion and for good cause shown, extends or shortens the time. Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

Sec. 3. Objections to interrogatories. — Objections to any interrogatories may be presented to the court within ten (10) days after service thereof, with notice as in case of a motion; and answers shall be deferred until the objections are resolved, which shall be at as early a time as is practicable. (3a) Procedure in objections to any interrogatories 1. presented to the court within ten 10 days after service of the interrogatories 2. with notice of hearing 3. answers shall be deferred until the objections are resolved Sec. 4. Number of interrogatories. — No party may, without leave of court, serve more than one set of interrogatories to be answered by the same party. (4) Service on a party of interrogatories beyond the 1st set must be with leave of court. Sec. 5. Scope and use of interrogatories. — Interrogatories may relate to any matters that can be inquired into under section 2 of Rule 23, and the answers may be used for the same purposes provided in section 4 of the same Rule. (5a) cf Rule 23, Sec. 2 Sec. 2. Scope of examination. — xxx the deponent may be examined regarding any matter, not privileged, which is relevant to the subject of the pending action, whether relating to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any

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books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts. (2, R24) cf Rule 23, Sec. 4 Sec. 4. Use of depositions. — At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any one of the following provisions: (a) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness; (b) The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent of a public or private corporation, partnership, or association which is a party may be used by an adverse party for any purpose; (c) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (1) that the witness is dead; or (2) that the witness resides at a distance more than one hundred (100) kilometers from the place of trial or hearing, or is out of the Philippines, unless it appears that his absence was procured by the party offering the deposition; or (3) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or (4) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (5) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

presenting the testimony of witnesses orally in open court, to allow the deposition to be used; and (d) If only part of a deposition is offered in evidence by a party, the adverse party may require him to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts. (4a, R24) Interrogatories may relate to any matters, not privileged, which is relevant to the subject of the pending action, whether relating to the claim or defense of any other party. The answers may be used for the same purposes as that of depositions pending actions. Sec. 6. Effect of failure to serve written interrogatories. — Unless thereafter allowed by the court for good cause shown and to prevent a failure of justice, a party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court, or to give a deposition pending appeal. (n) GR: A party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court, or to give a deposition pending appeal. Exception: Allowed by the court for good cause shown and to prevent a failure of justice. REPUBLIC V. SANDIGANBAYAN, G.R. 90478 (1991) The field of inquiry that may be covered by depositions or interrogatories is as broad as when the interrogated party is called as a witness to testify orally at trial. The inquiry extends to all facts which are relevant, whether they be ultimate or evidentiary, excepting only those matters which are Mark de Leon, JD 2001

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privileged. The objective is as much to give every party the fullest possible information of all the relevant facts before the trial as to obtain evidence for use upon said trial. Either party may compel the other to disgorge whatever facts he has in his possession. Leave of court is not necessary to avail of said modes of discovery (depositions before action, pending action, pending appeal, interrogatories to parties, requests for admissions) after an answer to the complaint has been served. It is only when an answer has not yet been filed (but after jurisdiction has been obtained over the defendant or property subject of the action) that prior leave of court is needed to avail of these modes of discovery, the reason being that at that time the issues are not yet joined and the disputed facts are not clear. On the other hand, leave of court is required as regards discovery by (a) production or inspection of documents or things, or (b) physical and mental examination of persons, which may be granted upon due application and a showing of due cause. The fact that a motion for bill of particulars on the same matter has been denied is not ground to deny a resort to modes of discovery. A bill of particulars may elicit only ultimate facts, not evidentiary facts, but modes of discovery can elicit evidentiary facts. That interrogatories deal with factual matters is not ground to deny it. ADMISSION BY ADVERSE PARTY (RULE 26) Section 1. Request for admission. — At any time after issues have been joined, a party may file and serve upon any other party a written request for the admission by the latter of the genuineness of any material and relevant document described in and exhibited with the request or of the truth of any material and relevant matter of fact set forth in the request. Copies of the documents shall be delivered with the request unless copies have already been furnished. (1a) Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

Requisites for request for admission 1. after issues have been joined 2. filed and served upon any other party (not his counsel) 3. written request for the admission of either a. the genuineness of any material and relevant document described in and exhibited with the request or b. the truth of any material and relevant matter of fact set forth in the request. 4. Copies of the documents shall be delivered with the request, unless copies have already been furnished. Sec. 2. Implied admission. — Each of the matters of which an admission is requested shall be deemed admitted unless, within a period designated in the request, which shall not be less than fifteen (15) days after service thereof, or within such further time as the court may allow on motion, the party to whom the request is directed files and serves upon the party requesting the admission a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters. Objections to any request for admission shall be submitted to the court by the party requested within the period for and prior to the filing of his sworn statement as contemplated in the preceding paragraph and his compliance therewith shall be deferred until such objections are resolved, which resolution shall be made as early as practicable. (2a) Requisites for avoiding implied admission Mark de Leon, JD 2001

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1. within a period a. designated in the request, which shall not be less than 15 days after service thereof, or b. such further time as the court may allow on motion 2. files and serves upon the requesting party a sworn statement 3. either a. denying specifically the matters of which an admission is requested or b. setting forth in detail the reasons why he cannot truthfully either admit or deny those matters. Objections to any request for admission shall be submitted to the court within the period for and prior to the filing of his sworn statement. His compliance therewith shall be deferred until such objections are resolved. Note that in interrogatories to parties, the period to answer is 15 days, but the period to object is only 10. In request for admissions, the period to answer and object is the same (15 days). Sec. 3. Effect of admission. — Any admission made by a party pursuant to such request is for the purpose of the pending action only and shall not constitute an admission by him for any other purpose nor may the same be used against him in any other proceeding. (3) Any admission pursuant to such request is for the purpose of the pending action only and shall not constitute an admission by him for any other purpose nor may the same be used against him in any other proceeding.

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de Leon: This is an exception to extra-judicial admissions under Rule 130, Sec. 26 Sec. 26. Admissions of a party. - The act, declaration or omission of a party as to a relevant fact may be given in evidence against him. (22) Sec. 4. Withdrawal. — The court may allow the party making an admission under this Rule, whether express or implied, to withdraw or amend it upon such terms as may be just. (4) The court may allow the party making an admission, whether express or implied, to withdraw or amend it upon such terms as may be just. Sec. 5. Effect of failure to file and serve request for admission. — Unless otherwise allowed by the court for good cause shown and to prevent a failure of justice, a party who fails to file and serve a request for admission on the adverse party of material and relevant facts at issue which are, or ought to be, within the personal knowledge of the latter, shall not be permitted to present evidence on such facts. (n) GR: A party who fails to file and serve a request for admission of material and relevant facts at issue which are, or ought to be, within the personal knowledge of the latter, shall not be permitted to present evidence on such facts. Exception: Allowed by the court for good cause shown and to prevent a failure of justice. BRIBONERIA V. CA, G.R. 101682, (1992) Request for admission must be served directly upon the party, not his counsel. Failure to file answer a requestion for admission is not deemed an admission where request for admission was served on counsel. Mark de Leon, JD 2001

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Furthermore, a party should not be compelled to admit matters of fact already admitted by his pleading and concerning which there is no issue, nor should he be required to make a second denial of those already denied in his answer to the complaint.

d. which constitute or contain evidence material to any matter involved in the action e. which are in his possession, custody or control 2. order any party

PRODUCTION OR INSPECTION OF DOCUMENTS OF THINGS (RULE 27)

a. to permit entry

Section 1. Motion for production or inspection; order. — Upon motion of any party showing good cause therefor, the court in which an action is pending may (a) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody or control; or (b) order any party to permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated relevant object or operation thereon. The order shall specify the time, place and manner of making the inspection and taking copies and photographs, and may prescribe such terms and conditions as are just. (1a)

b. upon designated land or other property

Upon motion of any party showing good cause therefor, the court in which an action is pending may 1. order any party a. to produce and permit the inspection and copying or photographing b. of any designated documents or tangible things c. not privileged Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

c. in his possession or control d. for the purpose of inspecting, measuring, surveying, or photographing e. the property or any designated relevant object or operation thereon. The order shall specify the time, place and manner of making the inspection and taking copies and photographs, and may prescribe such terms and conditions as are just. Subpoena duces tecum

Court order for production

Item is brought to court

Item is not brought to c permit inspection or entry b

Can not cover land

Could cover lands

Must be presented as evidence in court

Need not be presented in e

cf Rule 8, Sec. 8 Sec. 8. How to contest such documents. — When an action or defense is founded upon a written instrument, copied in or attached to the corresponding pleading as provided in the Mark de Leon, JD 2001 - 139 -

preceding section, the genuineness and due execution of the instrument shall be deemed admitted unless the adverse party, under oath, specifically denies them, and sets forth what he claims to be the facts; but the requirement of an oath does not apply when the adverse party does not appear to be a party to the instrument or when compliance with an order for an inspection of the original instrument is refused. (8a) PHYSICAL AND MENTAL EXAMINATION OF PERSONS (RULE 28) Section 1. When examination may be ordered. — In an action in which the mental or physical condition of a party is in controversy, the court in which the action is pending may in its discretion order him to submit to a physical or mental examination by a physician. (1) Sec. 2. Order for examination. — The order for examination may be made only on motion for good cause shown and upon notice to the party to be examined and to all other parties, and shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is to be made. (2) Requisites for a mental or physical examination 1. the mental or physical condition of a party is in controversy in the action 2. on motion for good cause shown 3. upon notice to all parties 4. notice shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is to be made

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5. the court in which the action is pending orders him to submit to a physical or mental examination Sec. 3. Report of findings. — If requested by the party examined, the party causing the examination to be made shall deliver to him a copy of a detailed written report of the examining physician setting out his findings and conclusions. After such request and delivery, the party causing the examination to be made shall be entitled upon request to receive from the party examined a like report of any examination, previously or thereafter made, of the same mental or physical condition. If the party examined refuses to deliver such report, the court on motion and notice may make an order requiring delivery on such terms as are just, and if a physician fails or refuses to make such a report the court may exclude his testimony if offered at the trial. (3a) If requested by the party examined, the party causing the examination to be made shall deliver to him a copy of a detailed written report of the examining physician setting out his findings and conclusions. After such request and delivery, the party causing the examination to be made shall be entitled upon request to receive from the party examined a like report of any examination, previously or thereafter made, of the same mental or physical condition. If the party examined refuses to deliver such report, the court on motion and notice may make an order requiring delivery on such terms as are just. If a physician fails or refuses to make such a report, the court may exclude his testimony if offered at the trial. Sec. 4. Waiver of privilege. — By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege he may have in Mark de Leon, JD 2001 - 140 -

that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine him in respect of the same mental or physical examination. (4) The party examined waives any privilege he may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine him 1. By requesting and obtaining a report of the examination so ordered or

If the application is denied and the court finds that it was filed without substantial justification, the court may require the proponent or the counsel advising the filing of the application, or both of them, to pay to the refusing party or deponent the amount of the reasonable expenses incurred in opposing the application, including attorney’s fees. (1a) Sec. 2. Contempt of court. — If a party or other witness refuses to be sworn or refuses to answer any question after being directed to do so by the court of the place in which the deposition is being taken, the refusal may be considered a contempt of that court. (2a)

2. by taking the deposition of the examiner

If a party or other deponent refuses to answer any question upon oral examination, or interrogatory

REFUSAL TO COMPLY WITH MODES OF DISCOVERY

1. as the proponent of the question may prefer, the examination may be

RULE 29 Section 1. Refusal to answer. — If a party or other deponent refuses to answer any question upon oral examination, the examination may be completed on other matters or adjourned as the proponent of the question may prefer. The proponent may thereafter apply to the proper court of the place where the deposition is being taken, for an order to compel an answer. The same procedure may be availed of when a party or a witness refuses to answer any interrogatory submitted under Rules 23 or 25. If the application is granted, the court shall require the refusing party or deponent to answer the question or interrogatory and if it also finds that the refusal to answer was without substantial justification, it may require the refusing party or deponent or the counsel advising the refusal, or both of them, to pay the proponent the amount of the reasonable expenses incurred in obtaining the order, including attorney’s fees. Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

a. completed on other matters or b. adjourned. 2. The proponent may thereafter apply to the proper court of the place where the deposition is being taken, for an order to compel an answer. 3. If the application is a. Granted – the court shall require the refusing party or deponent to answer the question or interrogatory; if the refusal to answer was without substantial justification, it may require the refusing party or deponent or the counsel advising the refusal, or both of them, to pay the proponent the amount of the reasonable expenses incurred in obtaining the order, including attorney’s fees. Mark de Leon, JD 2001

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b. denied and the court finds that it was filed without substantial justification – the court may require the proponent or the counsel advising the filing of the application, or both of them, to pay to the refusing party or deponent the amount of the reasonable expenses incurred in opposing the application, including attorney’s fees. 4. If a party or other witness refuses to be sworn or refuses to answer any question after being directed to do so by the court of the place in which the deposition is being taken, the refusal may be considered a contempt of that court. Sec. 3. Other consequences. — If any party or an officer or managing agent of a party refuses to obey an order made under section 1 of this Rule requiring him to answer designated questions, or an order under Rule 27 to produce any document or other thing for inspection, copying, or photographing or to permit it to be done, or to permit entry upon land or other property, or an order made under Rule 28 requiring him to submit to a physical or mental examination, the court may make such orders in regard to the refusal as are just, and among others the following: (a) An order that the matters regarding which the questions were asked, or the character or description of the thing or land, or the contents of the paper, or the 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 designated claims or defenses or prohibiting him from introducing in evidence designated documents or things or items of testimony, or from introducing evidence of physical or mental condition; Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

(c) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; and) (d) In lieu of any of the foregoing orders or in addition thereto, an order directing the arrest of any party or agent of a party for disobeying any of such orders except an order to submit to a physical or mental examination. (3a) If any party or an officer or managing agent of a party refuses to obey an order made requiring him to answer designated questions, or an order to produce any document or other thing for inspection, copying, or photographing or to permit it to be done, or to permit entry upon land or other property, or an order requiring him to submit to a physical or mental examination, the court may make such orders in regard to the refusal as are just, and among others the following 1. An order that the matters involved in the order shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order 2. An order refusing to allow the disobedient party to support or oppose designated claims or defenses or prohibiting him from introducing in evidence designated documents or things or items of testimony, or from introducing evidence of physical or mental condition 3. An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party 4. an order directing the arrest of any party or agent of a party for disobeying any of such orders, except an order to submit to a physical or mental examination. Mark de Leon, JD 2001 - 142 -

de Leon: Note that the court may not compel a party to submit to physical or mental examination. Sec. 4. Expenses on refusal to admit. — If a party after being served with a request under Rule 26 to admit the genuineness of any document or the truth of any matter of fact, serves a sworn denial thereof and if the party requesting the admissions thereafter proves the genuineness of such document or the truth of any such matter of fact, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making such proof, including attorney’s fees. Unless the court finds that there were good reasons for the denial or that admissions sought were of no substantial importance, such order shall be issued. (4a) When party may be required to pay the other the reasonable expenses incurred in making proof, including attorney’s fees 1. party is served with a request to admit the genuineness of any document or the truth of any matter of fact

under Rule 25 after proper service of such interrogatories, the court on motion and notice, may strike out all or any part of any pleading of that party, or dismiss the action or proceeding or any part thereof, or enter a judgment by default against that party, and in its discretion, order him to pay reasonable expenses incurred by the other, including attorney’s fees. (5) If a party or an officer or managing agent of a party willfully 1. either a. fails to appear before the officer who is to take his deposition, after being served with a proper notice, or b. fails to serve answers to interrogatories submitted after proper service of such interrogatories 2. the court on motion and notice may a. may strike out all or any part of any pleading of that party, or

2. party serves a sworn denial thereof

b. dismiss the action or proceeding or any part thereof, or

3. the party requesting the admissions thereafter proves the genuineness of such document or the truth of any such matter of fact

c. enter a judgment by default against that party,

4. the court finds a. no good reasons for the denial or b. the admissions sought were of substantial importance Sec. 5. Failure of party to attend or serve answers. — If a party or an officer or managing agent of a party wilfully fails to appear before the officer who is to take his deposition, after being served with a proper notice, or fails to serve answers to interrogatories submitted Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

d. order him to pay reasonable expenses incurred by the other, including attorney’s fees. Sec. 6. Expenses against the Republic of the Philippines. — Expenses and attorney’s fees are not to be imposed upon the Republic of the Philippines under this Rule. (6) Expenses and attorney’s fees are not to be imposed upon the Republic of the Philippines. CASE Mark de Leon, JD 2001

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KOH V. IAC, 144 SCRA (1986) Recourse to discovery procedures is not, and may not be made mandatory. If the parties do not choose to resort to such procedures, the pre-trial conference should be set.

TRIAL (RULE 30-32)

TRIAL RULE 30 Section 1. Notice of trial. — Upon entry of a case in the trial calendar, the clerk shall notify the parties of the date of its trial in such manner as shall ensure his receipt of that notice at least five (5) days before such date. (2a, R22) Sec. 2. Adjournments and postponements. — A court may adjourn a trial from day to day, and to any stated time, as the expeditious and convenient transaction of business may require, but shall have no power to adjourn a trial for a longer period than one month for each adjournment, nor more than three months in all, except when authorized in writing by the Court Administrator, Supreme Court. (3a, R22)

Adjournment v. Postponement Sec. 3. Requisites of motion to postpone trial for absence of evidence. - A motion to postpone a trial on the ground of absence of evidence can be granted only upon affidavit showing the materiality or relevancy of such evidence, and that due diligence has been used to procure it. But if the adverse party admits the facts to be given in evidence, even if he objects or reserves the right to object to their admissibility, the trial shall not be postponed. (4a, R22) Requisites for granting a motion to postpone trial for absence of evidence 1. affidavit showing a. the materiality or relevancy of such evidence, and b. due diligence has been used to procure it. 2. adverse party does not admit to the facts to be given in evidence If the adverse party admits the facts to be given in evidence, even if he objects or reserves the right to object to their admissibility, the trial shall proceed.

1. 1 month for each adjournment, and

Sec. 4. Requisites of motion to postpone trial for illness of party or counsel. — A motion to postpone a trial on the ground of illness of a party or counsel may be granted if it appears upon affidavit or sworn certification that the presence of such party or counsel at the trial is indispensable and that the character of his illness is such as to render his non-attendance excusable. (5a, R22)

2. 3 months in all, except when authorized in writing by the Court Administrator, Supreme Court.

Requisites of motion to postpone trial for illness of party or counsel – affidavit or sworn certification that

A court may adjourn a trial from day to day, and to any stated time, but not more than

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1. the presence of such party or counsel at the trial is indispensable and Mark de Leon, JD 2001 - 144 -

2. the character of his illness is such as to render his non-attendance excusable. Sec. 5. Order of trial. — Subject to the provisions of section 2 of Rule 31, and unless the court for special reasons otherwise directs, the trial shall be limited to the issues stated in the pre-trial order and shall proceed as follows: (a) The plaintiff shall adduce evidence in support of his complaint; (b) The defendant shall then adduce evidence in support of his defense, counterclaim, cross-claim and third-party complaint;

cf Rule 31, Sec. 2 Sec. 2. Separate trials. — The court, in furtherance of convenience or to avoid prejudice, may order a separate trial of any claim, cross-claim, counterclaim, or third-party complaint, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party complaints or issues. (2a) GR: Order of trial – the trial shall be limited to the issues stated in the pre-trial order and shall proceed as follows 1. plaintiff shall adduce evidence in support of his complaint

(c) The third-party defendant, if any, shall adduce evidence of his defense, counterclaim, cross-claim and fourth-party complaint;

2. defendant shall then adduce evidence in support of his defense, counterclaim, cross-claim and third-party complaint

(d) The fourth-party, and so forth, if any, shall adduce evidence of the material facts pleaded by them;

3. third-party defendant, if any, shall adduce evidence of his defense, counterclaim, cross-claim and fourth-party complaint;

(e) The parties against whom any counterclaim or cross-claim has been pleaded, shall adduce evidence in support of their defense, in the order to be prescribed by the court;

4. fourth-party, and so forth, if any, shall adduce evidence of the material facts pleaded by them;

(f) The parties may then respectively adduce rebutting evidence only, unless the court, for good reasons and in the furtherance of justice, permits them to adduce evidence upon their original case; and (g) Upon admission of the evidence, the case shall be deemed submitted for decision, unless the court directs the parties to argue or to submit their respective memoranda or any further pleadings. If several defendants or third-party defendants, and so forth, having separate defenses appear by different counsel, the court shall determine the relative order of presentation of their evidence. (1a, R30) Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

5. parties against whom any counterclaim or cross-claim has been pleaded, shall adduce evidence in support of their defense, in the order to be prescribed by the court; 6. The parties may then respectively adduce rebutting evidence only, unless the court, for good reasons and in the furtherance of justice, permits them to adduce evidence upon their original case; and 7. Upon admission of the evidence, the case shall be deemed submitted for decision, unless the court directs the parties to argue or to submit their respective memoranda or any further pleadings. Exceptions to the order of trial Mark de Leon, JD 2001

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1. when separate trial of any claim or issue is ordered 2. court otherwise directs for special reasons 3. as determined by the court in case of several defendants or thirdparty defendants, and so forth, having separate defenses who appear by different counsel Sec. 6. Agreed statement of facts. — The parties to any action may agree, in writing, upon the facts involved in the litigation, and submit the case for judgment on the facts agreed upon, without the introduction of evidence. If the parties agree only on some of the facts in issue, the trial shall be held as to the disputed facts in such order as the court shall prescribe. (2a, R30) Sec. 7. Statement of judge. — During the hearing or trial of a case any statement made by the judge with reference to the case, or to any of the parties, witnesses or counsel, shall be made of record in the stenographic notes. (3a, R30) Sec. 8. Suspension of actions. — The suspension of actions shall be governed by the provisions of the Civil Code. (n) Sec. 9. Judge to receive evidence; delegation to clerk of court. — The judge of the court where the case is pending shall personally receive the evidence to be adduced by the parties. However, in default or ex parte hearings, and in any case where the parties agree in writing, the court may delegate the reception of evidence to its clerk of court who is a member of the bar. The clerk of court shall have no power to rule on objections to any question or to the admission of exhibits, which objections shall be resolved by the court upon submission of his report and the transcripts within ten (10) days from termination of the hearing. (n) Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

GR: The judge shall personally receive the evidence to be adduced by the parties. Exceptions: the court may delegate the reception of evidence to its clerk of court who is a member of the bar 1. in default 2. ex parte hearings 3. where the parties agree in writing The clerk of court shall have no power to rule on objections. The objections shall be resolved by the court upon submission of his report and the transcripts within 10 days from termination of the hearing. CASES YU V. MAPAYO, 44 SCRA 163 (1972) Where the answer admitted the defendant's obligation as stated in the complaint, albeit special defenses were pleaded, plaintiff need not present evidence in support of his claim. The burden is on the defense to prove its special defenses. Where evidence for the plaitiff eventually was to be presented ex parte, the court can not compel the plaintiff to present evidence. Failure of the defendant to prove his special defenses should result in a ruling for the plaintiff. Escolin: Even in criminal cases, the order of trial may also be reversed, e.g. when the accused’s defense is self-defense. WASSMER V. VELEZ, 12 SCRA 648 (1964) Where defendant had been declared in default, his consent to the designation of reception of evidence to the clerk of court is not required. Mark de Leon, JD 2001 - 146 -

Escolin: The Lim Tanhu case prohibiting the delegation of the power to receive evidence on clerks of court has been repealed by Sec. 9, Rule 30, of the 1997 Rules of Civil Procedure. CONSOLIDATION OR SEVERANCE (RULE 31) Section 1. Consolidation. — When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. (1) Options of the court when actions involving a common question of law OR fact are pending before the court 1. it may order a joint hearing or trial of any or all the matters in issue 2. it may order all the actions consolidated 3. it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay Sec. 2. Separate trials. — The court, in furtherance of convenience or to avoid prejudice, may order a separate trial of any claim, crossclaim, counterclaim, or third-party complaint, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party complaints or issues. (2a) The court, in furtherance of convenience or to avoid prejudice, may order a separate trial of 1. any claim, cross-claim, counterclaim, or third-party complaint, or 2. any separate issue or Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

3. any number of claims, cross-claims, counterclaims, third-party complaints or issues In these cases the court may hold a separate for each cause of action, the render judgment after hearing each cause of action. An appeal may not be filed until all causes of action has been heard. cf Rule 2, Sec. 5 Sec. 5. Joinder of causes of action. — A party may in one pleading assert, in the alternative or otherwise, as many causes of action as he may have against an opposing party, subject to the following conditions: (a) The party joining the causes of action shall comply with the rules on joinder of parties; (b) The joinder shall not include special civil actions or actions governed by special rules; (c) Where the causes of action are between the same parties but pertain to different venues or jurisdictions, the joinder may be allowed in the Regional Trial Court provided one of the causes of action falls within the jurisdiction of said court and the venue lies therein; and (d) Where the claims in all the causes of action are principally for recovery of money, the aggregate amount claimed shall be the test of jurisdiction. (5a) SUPERLINES V. VICTOR, G.R. L-64250 (1983) Considerations of judicial economy and administration, as well as the convenience of the parties, dictate that it is the Cavite court, rather than the Quezon court, which serves as the more suitable forum for the Mark de Leon, JD 2001 - 147 -

determination of the rights and obligations of the parties concerned. To require plaintiffs who are all residents of Kawit, Cavite, to litigate their claims in the Quezon Court would unnecessarily expose them to considerable expenses. On the other hand, no like prejudice would befall the defendants transportation companies if they were required to plead their causes in Cavite, for such change of venue would not expose them to expenses which are not already liable to incur in connection with the Quezon case.

7. refusal of a witness to obey a subpoena issued by the commissioner or to give evidence before him, shall be deemed a contempt of the court which appointed the commissioner 8. commissioner should proceed with all reasonable diligence; either party, on notice to the parties and commissioner, may apply to the court for an order requiring the commissioner to expedite the proceedings and to make his report 9. commissioner files with the court his report in writing

TRIAL BY COMMISSIONER

a. upon the matters submitted to him by the order of reference

Procedure in Trial by Commissioner

b. attach thereto all exhibits, affidavits, depositions, papers and the transcript, if any, of the testimonial evidence presented before him

1. court orders reference to a commissioner 2. clerk furnishes the commissioner with a copy of the order of reference 3. commissioner takes an oath, swearing to a faithful and honest performance of his duties 4. commissioner sets and notifies the parties or their counsel a time and place for their first meeting to be held within 10 days after the date of the order of reference 5. The trial or hearing before him shall proceed in all respects as it would if held before the court. 6. Failure of parties to appear – commissioner may a. proceed ex parte or b. adjourn the proceedings to a future day, giving notice to the absent party or his counsel of the adjournment Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

c. When his powers are not specified or limited, he shall set forth his findings of fact and conclusions of law in his report 10. Upon the filing of the report, the parties shall be notified by the clerk, and they shall be allowed 10 days within which to signify grounds of objections. 11. The report shall be set for hearing. 12. When the parties stipulate that a commissioner’s findings of fact shall be final, only questions of law shall thereafter be considered. 13. The court orders a. Adopting b. modifying, or c. rejecting the report in whole or in part, or Mark de Leon, JD 2001

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d. recommitting it with instructions, or e. requiring the parties to present further evidence before the commissioner or the court. RULE 32 Section 1. Reference by consent. — By written consent of both parties, the court may order any or all of the issues in a case to be referred to a commissioner to be agreed upon by the parties or to be appointed by the court. As used in these Rules, the word "commissioner" includes a referee, an auditor and an examiner. (1a, R33) Procedure in Reference by consent 1. written consent of both parties 2. court order any or all of the issues in a case to be referred 3. to a commissioner, referee, auditor or examiner a. to be agreed upon by the parties or b. to be appointed by the court Sec. 2. Reference ordered on motion. — When the parties do not consent, the court may, upon the application of either or of its own motion, direct a reference to a commissioner in the following cases: (a) When the trial of an issue of fact requires the examination of a long account on either side, in which case the commissioner may be directed to hear and report upon the whole issue or any specific question involved therein;

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(b) When the taking of an account is necessary for the information of the court before judgment, or for carrying a judgment or order into effect; (c) When a question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of a case, or for carrying a judgment or order into effect. (2a, R33) When reference may be ordered 1. the trial of an issue of fact requires the examination of a long account on either side – the commissioner may be directed to hear and report upon the whole issue or any specific question involved therein 2. the taking of an account is necessary for the information of the court before judgment, or for carrying a judgment or order into effect 3. a question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of a case, or for carrying a judgment or order into effect Sec. 3. Order of reference; powers of the commissioner. — When a reference is made, the clerk shall forthwith furnish the commissioner with a copy of the order of reference. The order may specify or limit the powers of the commissioner, and may direct him to report only upon particular issues, or to do or perform particular acts, or to receive and report evidence only, and may fix the date for beginning and closing the hearings and for the filing of his report. Subject to the specifications and limitations stated in the order, the commissioner has and shall exercise the power to regulate the proceedings in every hearing before him and to do all acts and take all measures necessary or proper for the efficient performance of his duties under the order. He may issue subpoenas and subpoenas duces tecum, swear witnesses, and unless otherwise provided in the order of reference, he may rule upon the admissibility of evidence. The trial or hearing Mark de Leon, JD 2001 - 149 -

before him shall proceed in all respects as it would if held before the court. (3a, R33)

5. rule upon the admissibility of evidence, unless otherwise provided in the order of reference

When a reference is made, the clerk shall forthwith furnish the commissioner with a copy of the order of reference. The trial or hearing before him shall proceed in all respects as it would if held before the court.

Note that unlike the deposition officers, and clerks of court who has been delegated power to receive evidence, who have no power to rule on admissibility of evidence, commissioners can rule on the admissibility of evidence, but subject to contrary provision in the order of reference.

The order may

Sec. 4. Oath of commissioner. — Before entering upon his duties the commissioner shall be sworn to a faithful and honest performance thereof. (14, R33)

1. specify or limit the powers of the commissioner 2. direct him to a. report only upon particular issues b. do or perform particular acts c. receive and report evidence only 3. fix the date for a. beginning and closing the hearings and b. for the filing of his report. 4. specify and limit the powers of the commissioner Powers of the commissioner 1. to regulate the proceedings in every hearing before him 2. to do all acts and take all measures necessary or proper for the efficient performance of his duties under the order. 3. may issue subpoenas and subpoenas duces tecum, 4. swear witnesses Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

Sec. 5. Proceedings before commissioner. — Upon receipt of the order of reference and unless otherwise provided therein, the commissioner shall forthwith set a time and place for the first meeting of the parties or their counsel to be held within ten (10) days after the date of the order of reference and shall notify the parties or their counsel. (5a, R33) Sec. 6. Failure of parties to appear before commissioner. — If a party fails to appear at the time and place appointed, the commissioner may proceed ex parte or, in his discretion, adjourn the proceedings to a future day, giving notice to the absent party or his counsel of the adjournment. (6a, R33) Sec. 7. Refusal of witness. — The refusal of a witness to obey a subpoena issued by the commissioner or to give evidence before him, shall be deemed a contempt of the court which appointed the commissioner. (7a, R33) Sec. 8. Commissioner shall avoid delays. — It is the duty of the commissioner to proceed with all reasonable diligence. Either party, on notice to the parties and commissioner, may apply to the court for an order requiring the commissioner to expedite the proceedings and to make his report. (8a, R33) Mark de Leon, JD 2001 - 150 -

Sec. 9. Report of commissioner. — Upon the completion of the trial or hearing or proceeding before the commissioner, he shall file with the court his report in writing upon the matters submitted to him by the order of reference. When his powers are not specified or limited, he shall set forth his findings of fact and conclusions of law in his report. He shall attach thereto all exhibits, affidavits, depositions, papers and the transcript, if any, of the testimonial evidence presented before him. (9a, R33)

Sec. 13. Compensation of commissioner. — The court shall allow the commissioner such reasonable compensation as the circumstances of the case warrant, to be taxed as costs against the defeated party, or apportioned, as justice requires. (13, R33)

Sec. 10. Notice to parties of the filing of report. — Upon the filing of the report, the parties shall be notified by the clerk, and they shall be allowed ten (10) days within which to signify grounds of objections to the findings of the report, if they so desire. Objections to the report based upon grounds which were available to the parties during the proceedings before the commissioner, other than objections to the findings and conclusions therein set forth, shall not be considered by the court unless they were made before the commissioner. (10, R33)

Where defendant had been declared in default, his consent to the designation of reception of evidence to a commissioner is not required.

Objections to the report based upon grounds which were available to the parties during the proceedings before the commissioner, other than objections to the findings and conclusions therein set forth, shall not be considered by the court unless they were made before the commissioner.

RULE 33

Sec. 11. Hearing upon report. — Upon the expiration of the period of ten (10) days referred to in the preceding section, the report shall be set for hearing, after which the court shall issue an order adopting, modifying, or rejecting the report in whole or in part, or recommitting it with instructions, or requiring the parties to present further evidence before the commissioner or the court. (11a, R33) Sec. 12. Stipulations as to findings. — When the parties stipulate that a commissioner’s findings of fact shall be final, only questions of law shall thereafter be considered. (12a, R33) Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

CASE WASSMER V. VELEZ, 12 SCRA 648 (1964)

JUDGMENT (RULE 33-36)

DEMURRER TO EVIDENCE

Section 1. Demurrer to evidence. — After the plaintiff has completed the presentation of his evidence, the defendant may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. If his motion is denied, he shall have the right to present evidence. If the motion is granted but on appeal the order of dismissal is reversed he shall be deemed to have waived the right to present evidence. (1a, R35) Ground for demurrer to evidence in civil cases – upon the facts and the law the plaintiff has shown no right to relief Dismissal on demurrer to evidence in civil cases is always on motion. Mark de Leon, JD 2001 - 151 -

In civil cases, if MTD on demurrer to evidence is 1. denied – movant has right to present evidence

The order denying the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be reviewable by appeal or by certiorari before judgment. (n)

2. granted, but reversed on appeal – movant deemed to have waived his right to present evidence

Ground for MTD on demurrer to evidence in criminal cases – insufficiency of evidence

cf Rule 119, Sec. 23, 2000 Rules on Criminal Procedure

Dismissal on demurrer to evidence in criminal cases may be

Sec. 23. Demurrer to evidence. – After the prosecution rests its case, the court may dismiss the action on the ground of insufficiency of evidence (1) on its own initiative after giving the prosecution the opportunity to be heard or (2) upon demurrer to evidence filed by the accused with or without leave of court.

1. motu proprio, with hearing

If the court denies the demurrer to evidence filed with leave of court, the accused may adduce evidence in his defense. When the demurrer to evidence is filed without leave of court, the accused waives the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution. (15a)

1. when filed with leave of court – accused may adduce evidence in his defense

The motion for leave of court to file demurrer to evidence shall specifically state its grounds and shall be filed within a nonextendible period of five (5) days after the prosecution rests its case. The prosecution may oppose the motion within a nonextendible period of five (5) days from its receipt. If leave of court is granted, the accused shall file the demurrer to evidence within a non-extendible period of ten (10) days from notice. The prosecution may oppose the demurrer to evidence within a similar period from its receipt.

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2. upon motion In criminal cases, if MTD on demurrer to evidence is denied

2. when filed without leave of court – accused waives the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution de Leon: What if in criminal cases, the demurrer is filed with leave of court, granted but reversed on appeal? DISTINGUISH DEMURRER TO EVIDENCE IN CIVIL AND CRIMINAL CASES (RULE 119, SEC. 18) Demurrer Evidence in Cases

to Demurrer to Civil Evidence in Criminal Cases

Ground is: Facts and ground law show no right to Insufficient relief evidence Mark de Leon, JD 2001

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is:

On motion

On motion or motu proprio

If denied – he has right to present evidence, no prior leave of court required; If granted but reversed on appeal it is a waiver of the right to present evidence

If denied and MTD was filed without leave of court – waiver of right to present evidence; If denied and MTD was filed with leave of court – the accused may adduce evidence in his defense

Where the defendant fails to specifically deny the material averment in the complaint other than those as to the amount of unliquidated damages, such shall be deemed admitted and will be a ground for judgment on the pleadings. cf Rule 8, Sec. 11 Sec. 11. Allegations not specifically denied deemed admitted. — Material averment in the complaint, other than those as to the amount of unliquidated damages, shall be deemed admitted when not specifically denied. xxx SUMMARY JUDGMENTS (RULE 35) Section 1. Summary judgment for claimant. — A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory relief may, at any time after the pleading in answer thereto has been served, move with supporting affidavits, depositions or admissions for a summary judgment in his favor upon all or any part thereof. (1a, R34)

JUDGMENT ON THE PLEADINGS AND SUMMARY JUDGMENTS

Requisites for a Summary judgment for claimant

JUDGMENT ON THE PLEADINGS (RULE 34)

1. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory relief

Section 1. Judgment on the pleadings. — Where an answer fails to tender an issue, or otherwise admits the material allegations of the adverse party’s pleading, the court may, on motion of that party, direct judgment on such pleading. However, in actions for declaration of nullity or annulment of marriage or for legal separation, the material facts alleged in the complaint shall always be proved. (1a, R19) Grounds for judgment on the pleadings 1. answer fails to tender an issue, or 2. admits the material allegations of the adverse party’s pleading Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

2. at any time after the pleading in answer thereto has been served 3. move with supporting affidavits, depositions or admissions for a summary judgment in his favor Sec. 2. Summary judgment for defending party. — A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory relief is sought may, at any time, move with supporting affidavits, depositions or admissions for a summary judgment in his favor as to all or any part thereof. (2a, R34) Requisites for a Summary judgment for defending party Mark de Leon, JD 2001 - 153 -

1. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory relief is sought 2. at any time 3. move with supporting affidavits, depositions or admissions for a summary judgment in his favor If summary judgment is sought by the 1. claimant, he must move after the pleading in answer to his claim has been served 2. defending party, he may move any time Sec. 3. Motion and proceedings thereon. — The motion shall be served at least ten (10) days before the time specified for the hearing. The adverse party may serve opposing affidavits, depositions, or admissions at least three (3) days before the hearing. After the hearing, the judgment sought shall be rendered forthwith if the pleadings, supporting affidavits, depositions, and admissions on file, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (3a, R34) Grounds for summary judgment - there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law Sec. 4. Case not fully adjudicated on motion. — If on motion under this Rule, judgment is not rendered upon the whole case or for all the reliefs sought and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel shall ascertain what material facts exist without substantial controversy and what are actually and in good faith Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

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 not in controversy, and directing such further proceedings in the action as are just. The facts so specified shall be deemed established, and the trial shall be conducted on the controverted facts accordingly. (4a, R34) Procedure in summary judgments 1. motion served at least 10 days before the time specified for the hearing 2. any opposing affidavits, depositions, or admissions must be served by the adverse party at least 3 days before the hearing 3. hearing 4. judgment sought shall be rendered forthwith if the pleadings, supporting affidavits, depositions, and admissions on file, show that a. except as to the amount of damages, there is no genuine issue as to any material fact and b. the moving party is entitled to a judgment as a matter of law. 5. if judgment is not rendered upon the whole case or for all the reliefs sought and a trial is necessary, the court ascertains what material facts a. exist without substantial controversy, and b. are actually and in good faith controverted 6. Court makes an order specifying the facts that appear without substantial controversy, including the extent to which the amount of Mark de Leon, JD 2001

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damages or other relief is not in controversy, and directing such further proceedings in the action as are just.

Should it appear to the court that any of the affidavits presented are presented in bad faith, or solely for the purpose of delay, the court shall

7. The facts specified as without substantial controversy shall be deemed established, and the trial shall be conducted only on the controverted facts.

1. order the offending party or counsel to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including attorney’s fees.

Sec. 5. Form of affidavits and supporting papers. — Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Certified true copies of all papers or parts thereof referred to in the affidavit shall be attached thereto or served therewith. (5a, R34)

2. after hearing, further adjudge the offending party or counsel guilty of contempt.

Requisites for supporting and opposing affidavits 1. personal knowledge 2. state facts as would be admissible in evidence 3. show affirmatively that the affiant is competent to testify to the matters stated therein 4. Certified true copies of all papers or parts thereof referred to in the affidavit shall be attached thereto or served therewith. Sec. 6. Affidavits in bad faith. — Should it appear to its satisfaction at any time that any of the affidavits presented pursuant to this Rule are presented in bad faith, or solely for the purpose of delay, the court shall forthwith order the offending party or counsel to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including attorney’s fees. It may, after hearing, further adjudge the offending party or counsel guilty of contempt. (6a, R34) Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

DISTINGUISH BETWEEN JUDGMENT ON THE PLEADINGS AND SUMMARY JUDGMENT Judgment on the Pleadings

Summary Judgment

Available only a claimant

Available to both claimant

There is no tender of issue

There is no genuine issue

Judgment based on pleadings only

Judgment based on plead admissions

Motion for judgment on the pleadings must be served Motion for summary judgm at least 3 days prior to the scheduled hearing 10 days prior to the schedu CASES PNB V. PHIL LEATHER, 105 PHIL 400 (1959) In their answer, the defendants admit the plaintiff's averments excepts as to the correctness of the amounts due, the correctness of which they were still checking, and for that reason lacking sufficient knowledge or information to form a belief as to the truth and veracity of the amounts due, they deny the amounts claimed by the plaintiff to be due them. Hence, plaintiff is entitled to summary judgment. Mark de Leon, JD 2001

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APELARIO V. CHAVEZ, 3 SCRA 226 (1961) Where defendant admitted the existence of the obligation but alleged inability to pay, judgment on the pleadings is proper. LATI V. VALMORES, 94 PHIL 709 (1954) * L-6877 30MAR1954 A general denial in the answer is ground for judgment on the pleadings. GALICIA V. POLO, 179 SCRA 371 (1989) Facts: Palajos won an ejectment case against Galicia who was also ordered to pay rentals. The case became final and executory. Galicia failed to pay the rentals, so his parcel of land was executed and sold to Palajos. The redemption period has expired. Galicia now sues for recovery of the land sold on public auction. Galicia alleged that pursuant to the earlier forcible entry case, a decision was rendered in Palajos' favor and said decision was executed and which resulted in Palajos taking possession of the land in question. Palajos’ motion for summary judgment was granted, and Galicia’s complaint was dismissed on the ground of res judicata. Held: The issue of ownership of the disputed land subject of the present petition has long been foreclosed in the forcible entry case which culminated in the public auction sale of the parcel of land now sought to be recovered. Having failed to redeem the property sold at the public auction sale within the reglementary period Galicia cannot now claim that they still own said property. Galicia's complaint is but a belated and disguised attempt to revive a judgment debtors' right of redemption which has long expired. There being no issue as to any material fact raised in the pleadings, summary judgment may be rendered. Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

de Leon: Note that in judgment on the pleadings, there is no tender of an issue. In summary judgment, there is a tender of an issue, but it is not genuine. If the pleadings alone (complaint, answer, reply) are enough to decide the case, then the remedy is judgment on the pleadings. If there must be resort to documents outside the pleadings, or if it is the defendant who files the motion, then the remedy is summary judgment. Judgment on the pleadings would have been proper in Galicia had it been available to defendants. Since it was the defendant who moved, his remedy is summary judgment. JUDGMENTS, FINAL ORDERS, AND ENTRY THEREOF RULE 36 Section 1. Rendition of judgments and final orders. — A judgment or final order determining the merits of the case shall be in writing personally and directly prepared by the judge, stating clearly and distinctly the facts and the law on which it is based, signed by him, and filed with the clerk of the court. (1a) cf Secs. 14, Art. VIII, Constitution Section 14. No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based. No petition for review or motion for reconsideration of a decision of the court shall be refused due course or denied without stating the legal basis therefor. Form of judgment or final order determining the merits of the case 1. in writing Mark de Leon, JD 2001

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2. personally and directly prepared by the judge 3. stating clearly and distinctly the facts and the law on which it is based 4. signed by him 5. filed with the clerk of the court Only when the judgment is filed with the clerk of court that a judgment is rendered. Sec. 2. Entry of judgments and final orders. — If no appeal or motion for new trial or reconsideration is filed within the time provided in these Rules, the judgment or final order shall forthwith be entered by the clerk in the book of entries of judgments. The date of finality of the judgment or final order shall be deemed to be the date of its entry. The record shall contain the dispositive part of the judgment or final order and shall be signed by the clerk, with a certificate that such judgment or final order has become final and executory. (2a, 10, R51) If no appeal or motion for new trial or reconsideration is filed within the required time 1. the judgment or final order shall forthwith be entered by the clerk in the book of entries of judgments 2. The date of finality of the judgment or final order shall be deemed to be the date of its entry 3. The record a. shall contain the dispositive part of the judgment or final order b. shall be signed by the clerk, with a certificate that such judgment or final order has become final and executory. Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

When the case is appealed, it is the clerk of court of the appellate court that makes the entry of judgment. cf Sec. 15 (1), Art. VIII, Constitution Section 15. (1) All cases or matters filed after the effectivity of this Constitution must be decided or resolved within twenty-four months from date of submission for the Supreme Court, and, unless reduced by the Supreme Court, twelve months for all lower collegiate courts, and three months for all other lower courts. (2) A case or matter shall be deemed submitted for decision or resolution upon the filing of the last pending, brief, or memorandum required by the Rules of Court or by the court itself. (3) Upon the expiration of the corresponding period, a certification to this effect signed by the Chief Justice or the presiding judge shall forthwith be issued and a copy thereof attached to the record of the case or matter, and served upon the parties. The certification shall state why a decision or resolution has not been rendered or issued within said period. (4) Despite the expiration of the applicable mandatory period, the court, without prejudice to such responsibility as may have been incurred in consequence thereof, shall decide or resolve the case or matter submitted thereto for determination, without further delay. Periods to decide 1. All lower courts: 3 months from the filing of the last pleading 2. Collegiate courts: 12 months Mark de Leon, JD 2001

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3. Supreme Court: 2 years Sec. 3. Judgment for or against one or more of several parties. — Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants. When justice so demands, the court may require the parties on each side to file adversary pleadings as between themselves and determine their ultimate rights and obligations. (3) Judgment may be given for or against one or more of several parties. The court may require the parties on each side to file adversary pleadings as between themselves and determine their ultimate rights and obligations. cf Rule 62, Sec. 1 Sec. 1. When interpleader proper. — Whenever conflicting claims upon the same subject matter are or may be made against a person who claims no interest whatever in the subject matter, or an interest which in whole or in part is not disputed by the claimants, he may bring an action against the conflicting claimants to compel them to interplead and litigate their several claims among themselves. (1a, R63) Sec. 4. Several judgments. — In an action against several defendants, the court may, when a several judgment is proper, render judgment against one or more of them, leaving the action to proceed against the others. (4) Sec. 5. Separate judgments. — When more than one claim for relief is presented in an action, the court, at any stage, upon a determination of the issues material to a particular claim and all counterclaims arising out of the transaction or occurrence which is the subject matter of the claim, may render a separate judgment Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

disposing of such claim. The judgment shall terminate the action with respect to the claim so disposed of and the action shall proceed as to the remaining claims. In case a separate judgment is rendered, the court by order may stay its enforcement until the rendition of a subsequent judgment or judgments and may prescribe such conditions as may be necessary to secure the benefit thereof to the party in whose favor the judgment is rendered. (5a) When more than one claim for relief is presented in an action 1. the court a. at any stage b. upon a determination of the issues material to a particular claim and all counterclaims arising out of the transaction or occurrence which is the subject matter of the claim c. may render a separate judgment disposing of such claim 2. judgment shall terminate the action with respect to the claim so disposed of and the action shall proceed as to the remaining claims 3. In case a separate judgment is rendered, the court by order may stay its enforcement until the rendition of a subsequent judgment/s and may prescribe such conditions as may be necessary to secure the benefit thereof to the party in whose favor the judgment is rendered Sec. 6. Judgment against entity without juridical personality. — When judgment is rendered against two or more persons sued as an entity without juridical personality, the judgment shall set out their individual or proper names, if known. (6a) CASES

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RIVERA V. PEOPLE, GR 93219 (1990) FACTS Marcelino Rivera, Jr. was arrested and detained for he alledgedly was about to transport marijuana to Manila. A case for violation of Sec4, Art2 of RA6425 was filed against him with the Baguio RTC. On arraignment, Rivera pleaded not guilty. The first witness for the prosecution Cpl. Afalla partially testified on direct examination and reserved the right to identify the marijuana specimen. Thus hearing was re-set to May3 & June6, 1989 but due to the absence of any prosecution witness despite notice and the nonavailability of the marijuana specimen, the May and June hearings were postponed to June8, 1989. On June8, for the same reasons, the hearing was re-set to Feb27, 1990. On Feb27, Forensic Chemist Capt Sarmiento who will present the marijuana specimen, despite notice failed to appear. Rivera MfD which was denied and hearing was re-set to Mar28. On Mar28, when the case was called, Capt Sarmiento, despite notice, was not around. When the case was called for the second time, Capt Sarmiento was still not around. Atty Gorospe, in behalf of petitioner, orally MfD invoking the right to speedy trial as the petitioner stands confined and that the Govt failed to prosecute or adduce evidence due to the non-appearance of a vital prosecution witness. Respondent judge verbally granted the motion and ordered the immediate release of the accused. In less than an hour after the verbal order of dismissal, Capt Sarmiento arrived direct from Quezon City. Upon satisfactory explanation, respondent judge set aside his previous verbal order of dismissal and re-scheduled the case for continuation of trial. Hence this petition.

final and executory. Rivera alleges that his constitutional right against double jeopardy was violated. HELD Where an order of dismissal was made orally, the order is not valid. Judgments must be writing in the official language, personally and directly prepared by the judge and signed by him. Petition is denied and remanded to the court of origin for further proceedings. SUAREZ V. CA, 193 SCRA 183 (1991) FACTS Private respondent Rosemarie Manese filed with the Pasig RTC a petition for writ of habeas corpus against Renato Suarez, his mother Paz, and his sisted Milagros. Before she could finish presentation of her evidence, Manese filed a MtD without prejudice to her right to file another action for custody of minor under Rule 99 RoC, contending that the issue as to who between the parties has the rightful and legal custody of the minor child could be fully adjudicated in another action and not in the present action for writ of habeas corpus. RTC granted the MtD with prejudice. Manese filed another action for custody of minor and support before the RTC against Suarez. Suarez MtD the action on the ground of bar of prior judgment (res judicata). MtD was denied. Suarez MfR of the denial whcih was also denied. Manese filed a motion for visitorial rights and thereafter, motion for custody of the minor during xmas season. RTC denied Suarez’s MfR and granted Manese’s two motions. RTC issued another order setting aside its order which granted Suarez’s motion for visitorial rights and setting pre-trial of the case.

Rivera alleges that the verbal order of dismissal made in open court amounted to the acquittal of petitioner and which order is immediately Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

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Suarez filed with CA a petition for certiorari and prohibition with application for restraining order/prelim injunction, seeking to set aside the RTC orders. CA dismissed the special civil action. ISSUE WON the order of dismissal with prejudice in the action for the writ of HC is res judicata to the present action for custody of minor and support. HELD The most important requirement for application of res judicata is that the former judgment must be a valid one. Where the order of dismissal issued by the court without expressing therein clearly and distinctly the facts and the law on which it is based, the order is null and void. This order is not bar to the filing of a second action. Petition denied. PEOPLE V. VENERACION, 249 SCRA 244 (1995) FACTS Abundio Lagunday and Henry Lagarto were charged with the crime of Rape with Homicide of Angel Alquiza in the Manila RTC. Subsequently, Ernesto Cordero, Rolando Manlangit, Richard Baltazar, Catalino Yaon were accused of the same crime. The two cases were consolidated. All accused were arraigned except Lagunday who was already dead. After trial and presentation of evidence of both parties, the RTC rendered decision finding Lagato and Cordero guilty beyond reasonable doubt of the crime of Rape with Homicide and sentenced both with reclusion perpetua with all the accessories provided for by law. Manila City Fiscal disagrees with the sentence imposed and filed a MfR praying for the death penalty against Lagarto and Cordero. Respondent judge refused to act on the merits of the MfR thus denying it for lack of jurisdiction since the accused have complied with the legal requirements for the perfection of an appeal. Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

HELD After an adjudication of guilt, the judge should impose the proper penalty and civil liability provided for by the law on the accused. As long as the death penalty remains in the statute books, and as long as our criminal law provides for its imposition in certain cases, it is the duty of judicial officers to respect and apply the law regardless of their private opinions. Petition granted and case is remanded to the RTC for the imposition of the death penalty subject to automatic review by the SC. MASCUÑANA V. PROVINCIAL BOARD OF NEGROS OCCIDENTAL, 79 SCRA 399 (1977) FACTS Resolution59 of the municipal council of Talisay NegOcc declared a piece of land as municipal property closed to vehicular traffic. Among those adjacent lots are owned by Angel Mascuñana (lot#80) and his children Angeles (lot#81-A), Angel, Jr. (lot#81-B), and Manuel (lot#81C). Angel alleged that the piece of land in question is the terminus or extension of Burgos St. It is occupied by Councilor Leon Treyes, Ulpiana Inson, Gonzalo Ordaniel and Florentino Gargallano who had constructed houses thereon. Mascuñana contends that they own said parcel of land. The Municipal Board contends that it is municipal property. This was affirmed by the Provincial Board when it passed Resolution1035 approving muni council’s Resolution59. Mascuñana filed in the NegOcc CFI against the Prov Board, Muni Council and the 4 occupants a petition praying that Res59 and Res1035 be declared void. The 4 private respondents filed MtD. CFI issued a short or minute order finding the MtD to be well founded and dismissing the petition. It denied the petitioner’s MtD in the same manner. HELD The constitutional requirement of making findings of fact and law applies only to decisions, it does not apply to an order of dismissal. Mark de Leon, JD 2001

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However, the trial court should reason out its order of dismissal and should not merely incorporate therein, by reference, the MTD to facilitate an appeal therefrom. CFI’s minute order of dismissal is reversed and set aside. PAJARITO V. SEÑERIS, 87 SCRA 275 (1978) Facts: Felipe Aizon is the registered owner of a passenger bus driven by Joselito Aizon. The bus was involved in an accident resulted in the death of 2 passengers. Joselito was charged with double homicide through reckless imprudence. The information alleged that Felipe was Joselito’s employer. Joselito pleaded guilty. The writ of execution of civil liability against Joselito returned unsatisfied because of Joselito’s insolvency. Plaintiffs move for subsidiary writ of execution against Felipe. Felipe opposed the motion on the ground that he is not the employer of Joselito, the vehicle in question having been sold already to Isaac Aizon, father of Joselito, but that the deed of transfer has not been executed because the full price has not yet been paid. The court denied motion for Subsidiary Writ of Execution on the ground that Felipe was not a party in the criminal case. Held: An employer may be subsidiary liable for the employee's civil liability in a criminal action when: (1) the employer is engaged in any kind of industry; (2) the employee committed the offense in the discharge of his duties; and (3) he is insolvent and has not satisfied his civil liability. The subsidiary civil liability of the employer, however, arises only after conviction of the employee in the criminal case. A judgment of conviction sentencing a defendant employee to pay an indemnity, in the absence of any collusion between the defendant and the offended party, is conclusive upon the employer in an action for the enforcement of the latter's subsidiary liability. The employer becomes ipso facto subsidiarily liable upon his employee's conviction and upon proof of the latter's insolvency, in the same way that acquittal wipes out not only the Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

employee's primary civil liability but also his employer's subsidiary liability for such criminal negligence. The decision convicting the employee is binding and conclusive upon the employer, not only with regard to the employer’s civil liability but also with regard to its amount because the liability of an employer cannot be separated but follows that of his employee. In the action to enforce the employer's subsidiary liability, the court has no other function than to render decision based upon the indemnity awarded in the criminal case and has no power to amend or modify it even if in its opinion an error has been committed in the decision. Considering that Felipe Aizon does not deny that he was the registered operator of the bus but only claims now that he sold the bus to the father of the accused, it would serve no important purpose to require petitioner to file a separate and independent action against the employer for the enforcement of the latter's subsidiary civil liability. Under the circumstances, it would not only prolong the litigation but would require the heirs of the deceased victim to incur unnecessary expenses. At any rate, the proceeding for the enforcement of the subsidiary civil liability may be considered as part of the proceeding for the execution of the judgment. A case in which an execution has been issued is regarded as still pending so that all proceedings on the execution are proceedings in the suit. There is no question that the court which rendered the judgment has a general supervisory control over its process of execution, and this power carries with it the right to determine every question of fact and law which may be involved in the execution. The validity of the claim of Felipe that he is no longer the owner and operator of the ill-fated bus as he sold it already to Isaac, father of the accused Joselito, is a matter that could be litigated and resolved in the same criminal case. Felipe may adduce all the evidence necessary for that purpose. The enforcement of the employer's subsidiary civil liability may be conveniently litigated within the same proceeding because the execution of the judgment is a logical and integral part of the case itself. Mark de Leon, JD 2001

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IMSON V. CA, 239 SCRA 58 (1994) Facts: Plaintiff sues for damages from a vehicular accident. Beneficial owner and the driver were declared in default. Compromise was reached with the insurer and the claim against him was withdrawn. Registered owners now seek dismissal of the claims against them as well. Held: The case should proceed. The rule is dismissal of the case against an indispensable party results in dismissal of the case against the other indispensable parties. The insurer is merely a necessary party. Dismissal of the case against him will not result to dismissal of the claim against the other defendants. Escolin: The insurer is not an indispensable party to the case. The only indispensable party here is the driver of the truck. All the others are mere necessary parties. PEOPLE V. OCAYA, 83 SCRA 218 (1978) Jurisdiction of a criminal court is based on the allegations in the information. The court does not lose jurisdiction by the mere fact that the evidence indicated the commission of a lesser crime outside its jurisdiction. If from the evidence submitted a lesser offense was established, the court equally had jurisdiction to impose the sentence for such lesser offense, even if the court would not have jurisdiction had such lesser offense been alleged in the information.

NEW TRIAL OR RECONSIDERATION Procedure for MNT or MFR 1. motion shall be made in writing stating the ground or grounds 2. a written notice of which shall be served by the movant on the adverse party. 3. A motion for new trial shall be proved in the manner provided for proof of motions a. A motion on the ground of FAME shall be supported by affidavits of merits which may be rebutted by affidavits. b. A motion on the ground of newly discovered evidence shall be supported by 1)

affidavits of the witnesses by whom such evidence is expected to be given, or

2)

duly authenticated documents which are proposed to be introduced in evidence.

c. Should include all the grounds then available and those not so included shall be deemed waived. 4. A motion for reconsideration shall

de Leon: Note that if the information alleged a more serious crime, but the crime proven was a less serious and prescribed crime, the court can not convict the accused even for the lesser offense.

a. point out specifically the findings or conclusions of the judgment or final order which are not supported by the evidence or which are contrary to law

POST JUDGMENT (RULE 37-39)

b. making express reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or conclusions.

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5. A pro forma motion for new trial or reconsideration shall not toll the reglementary period of appeal. 6. A motion for new trial or reconsideration shall be resolved within 30 days from the time it is submitted for resolution. 7. The trial court may a. set aside the judgment or final order and grant a new trial, upon such terms as may be just, or may deny the motion b. accordingly amend the judgment or final order if it finds that excessive damages have been awarded or that the judgment or final order is contrary to the evidence or law 8. A second motion for a. reconsideration – not allowed b. new trial based on a ground not existing nor available when the first motion was made – may be filed within the time herein provided excluding the time during which the first motion had been pending. RULE 37 Section 1. Grounds of and period for filing motion for new trial or reconsideration. — Within the period for taking an appeal, the aggrieved party may move the trial court to set aside the judgment or final order and grant a new trial for one or more of the following causes materially affecting the substantial rights of said party: (a) Fraud, accident, mistake or excusable negligence which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights; or Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

(b) Newly discovered evidence, which he could not, with reasonable diligence, have discovered and produced at the trial, and which if presented would probably alter the result. Within the same period, the aggrieved party may also move for reconsideration upon the grounds that the damages awarded are excessive, that the evidence is insufficient to justify the decision or final order, or that the decision or final order is contrary to law. (1a) Grounds for new trial — Within the period for taking an appeal when the following causes materially affects the substantial rights of the aggrieved party 1. FAME which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights; or 2. Newly discovered evidence, which he could not, with reasonable diligence, have discovered and produced at the trial, and which if presented would probably alter the result. Grounds for reconsideration – Within the same period 1. the damages awarded are excessive 2. the evidence is insufficient to justify the decision or final order, or 3. the decision or final order is contrary to law Sec. 2. Contents of motion for new trial or reconsideration and notice thereof. — The motion shall be made in writing stating the ground or grounds therefor, a written notice of which shall be served by the movant on the adverse party. A motion for new trial shall be proved in the manner provided for proof of motions. A motion for the cause mentioned in paragraph (a) Mark de Leon, JD 2001 - 163 -

of the preceding section shall be supported by affidavits of merits which may be rebutted by affidavits. A motion for the cause mentioned in paragraph (b) shall be supported by affidavits of the witnesses by whom such evidence is expected to be given, or by duly authenticated documents which are proposed to be introduced in evidence. A motion for reconsideration shall point out specifically the findings or conclusions of the judgment or final order which are not supported by the evidence or which are contrary to law, making express reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or conclusions. A pro forma motion for new trial or reconsideration shall not toll the reglementary period of appeal. (2a) cf Rule 15, Sec. 3 Sec. 3. Contents. — A motion shall state the relief sought to be obtained and the grounds upon which it is based, and if required by these Rules or necessary to prove facts alleged therein, shall be accompanied by supporting affidavits and other papers. (3a) cf Rule 133, Sec. 7 Sec. 7. Evidence on motion. - When a motion is based on facts not appearing of record the court may hear the matter on affidavits or depositions presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions. (7) Note that a MNT should always be accompanied with affidavits or supporting evidence. A MfR is not always required to be so accompanied. Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

The court may accept affidavits and depositions, but this does not preclude the court from holding a hearing. Escolin: The latest jurisprudence ruled that a MfR can cite the same grounds and allegations of a memorandum. Pro forma – Motion did not comply with the requisites in Sec. 2; e.g. MNT is not accompanied with affidavit of merit; MNT did not attach the affidavits of the additional witnesses; the motion is not served on the other party; any violation of the rules on MNT or MFR de Leon: Note that in ordinary appeals, after denial of a MNT or MfR a party has only the remaining period to appeal. In petitions for review, petitions for review on certiorari, and special civil actions for certiorari, after denial of MNT or MfR, a party has a fresh period to seek other remedies. Sec. 3. Action upon motion for new trial or reconsideration. - The trial court may set aside the judgment or final order and grant a new trial, upon such terms as may be just, or may deny the motion. If the court finds that excessive damages have been awarded or that the judgment or final order is contrary to the evidence or law, it may amend such judgment or final order accordingly. (3a) Sec. 4. Resolution of motion. — A motion for new trial or reconsideration shall be resolved within thirty (30) days from the time it is submitted for resolution. (n) Sec. 5. Second motion for new trial. — A motion for new trial shall include all grounds then available and those not so included shall be deemed waived. A second motion for new trial, based on a ground not existing nor available when the first motion was made, may be filed within the time herein provided excluding the time during which the first motion had been pending. Mark de Leon, JD 2001

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No party shall be allowed a second motion for reconsideration of a judgment or final order. (4a; 4, IRG) A 2nd MNT may be allowed on a different ground not previously available. A 2nd MfR is absolutely prohibited. Sec. 6. Effect of granting of motion for new trial. — If a new trial is granted in accordance with the provisions of this Rule, the original judgment or final order shall be vacated, and the action shall stand for trial de novo; but the recorded evidence taken upon the former trial, in so far as the same is material and competent to establish the issues, shall be used at the new trial without retaking the same. (5a) If a new trial is granted 1. the original judgment or final order shall be vacated, and 2. the action shall stand for trial de novo 3. but the recorded evidence taken upon the former trial shall be used at the new trial without retaking Sec.7. Partial new trial or reconsideration. — If the grounds for a motion under this Rule appear to the court to affect the issues as to only a part, or less than all of the matter in controversy, or only one, or less than all, of the parties to it, the court may order a new trial or grant reconsideration as to such issues if severable without interfering with the judgment or final order upon the rest. (6a) If the grounds for a MNT or MFR affect the issues as to only a part of the matter in controversy, the court may order a new trial or grant reconsideration as to such issues if severable without interfering with the judgment or final order upon the rest.

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Sec. 8. Effect of order for partial new trial. — When less than all of the issues are ordered retried, the court may either enter a judgment or final order as to the rest, or stay the enforcement of such judgment or final order until after the new trial. (7a) When less than all of the issues are ordered retried, the court may either 1. enter a judgment or final order as to the rest, or 2. stay the enforcement of such judgment or final order until after the new trial Sec. 9. Remedy against order denying a motion for new trial or reconsideration. — An order denying a motion for new trial or reconsideration is not appealable, the remedy being an appeal from the judgment or final order. (n) An order denying a motion for new trial or reconsideration is not appealable, the remedy being an appeal from the judgment or final order. But the resolution may be taken on review by the appellate court by a special civil action of certiorari, mandamus, or prohibition. CASES RAMNANI V. CA, 221 SCRA (1993) FACTS Spouses Juliette and Cenen Dizon filed a complaint in the Makati RTC against spouses Josephine Anne and Bhagwan Ramnani for the collection of a sum of money representing the alleged unremitted value of jewelry. Josephine submitted an answer with counterclaim.

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The case was set for pre-trial but the Ramnanis did not appear. They were declared in default. They filed a motion to lift the order of default but this was denied. Evidence of the Dizons were received ex-parte HELD The remedies available to a defendant who has been declared in default are: a) before judgment – file a motion, under oath, to set aside the order of default on the ground that his failure to answer was due to FAME, and that he has a meritorious defense; b) after judgment, but before it has become final and executory – file a MNT; c) after judgment has become final and executory – file a petition for relief; d) He may also appeal from the judgment rendered against him as contrary to the evidence or to the law, even if no petition to set aside the order of default has been presented by him. A motion to lift order of default requires a showing of meritorious defense and FAME. A meritorious defense must concur with the satisfactory reason for the non-appearance of the defaulted party. HABALUYAS V. JAPZON, 138 SCRA 46 (1985) The 15 day period for appealing or for filing a motion for reconsideration cannot be extended. BELAMIDE V. CA, 90 SCRA 175 (1979) Discovery after judgment that a document presented during the trial was falsified is not newly discovered evidence that would justify a new trial. VALDEZ V. JUGO, 74 PHIL 49 (NOV 28, 1942) * GR#48859 Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

Where a MfR failed to state in detail the reasons in support of the grounds alleged therein, such MfR does not interrupt the period for appeal. It is now required to point out specifically the findings or conclusions of the judgment which are not supported by the evidence or which are contrary to law, making express reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or conclusions. When the motion fails to make the specification thus required, it will be treated as a motion pro-forma intended merely to delay the proceedings, and as such, it shall be stricken out. DAVID V. FERNANDEZ, 176 SCRA 608 (1989) A granted MNT nullifies the judgment, including all the consequential effects thereof, to wit: the Writ of Execution, the corresponding levy on properties and the public auction sale. ESTRADA V. STO. DOMINGO, 28 SCRA 890 (1969) * 30570 29JUL69 FACTS Erap Estrada and Braulio Sto Domingo are candidates for mayor in San Juan. After the elections, Sto Domingo won by a plurality of just 44 votes. Sto Domingo was proclaimed as elected mayor by the municipal board of canvassers. Estrada lodged an election protest and Sto Domingo counter-protested in the Rizal CFI. CFI annuls and sets aside the proclamation of Sto Domingo and proclaims and declares Erap as duly elected mayor. The next day, Sto Domingo’s counsel was served a copy of the decision. At the last day of the 5-day period to appeal, Sto Domingo filed a MfR the decision. Copy of the motion was sent to Erap’s counsel with notice of hearing of the motion. On the date of hearing, Sto Domingo and counsel were present. Erap and counsel were absent, both of whom until Mark de Leon, JD 2001 - 166 -

then had not rcvd a copy of the motion. For lack of proof that Erap had rcvd notice of the MfR, the hearing was reset. On that afternoon, Erap, got wind of what took place in the CFI, he filed an “omnibus motion” alleging that Sto Domingo’s MfR was not legally sanctioned. HELD A MfR is pro forma if it was but a repetition of the contents of the memorandum filed by the movant, or if it merely makes reference to the contents of the memorandum filed by both parties which had already been considered by the Court before rendering its decision. A pro forma MfR does not suspend the period to appeal. SIMSIM V. BELMONTE, 34 SCRA 536 (1970) Where a court approves record on appeal while a MfR is pending, it has the power to order amendment of the record to conform to the resolution of the MfR. The better solution was for the court to defer approval of the record on appeal until the other party’s MfR had been finally resolved. de Leon: Note that the rules provide that an appeal is perfected upon filing of a notice of appeal in due time, but the court does not lose jurisdiction until the perfection of the appeal and the lapse of the period to appeal for the other parties. In Simsim, though appeal was perfected by one party, an MfR by the other party was still pending. The period to appeal by that party has not yet lapse, and therefore the court did not lose jurisdiction yet. RELIEF FROM JUDGMENTS, ORDERS, OR OTHER PROCEEDINGS In petitioner for relief, the judgment has already been entered. In MNT and MfR, the judgment has not yet been entered.

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If the defendant has been declared in default or parties failed to appear at the pre-trial (except #1 in case of plaintiff who fails to appear at the pre-trial) 1. If there is as yet no judgment that has been rendered, his remedy is to move to lift the order of default which should be accompanied by a. affidavit of FAME b. under oath c. affidavit of good and meritorious defense 2. If there is already a judgment, but it has not yet been entered, he should move for new trial (Rule 37), which should be accompanied by a. affidavit of FAME b. under oath c. affidavit of good and meritorious defense 3. If MNT is denied, the remedy is ordinary appeal. 4. If appeal is denied, he should petition for relief from denial of appeal (Rule 38) 5. If there is already a judgment and it has been entered, within 60 days from discovery but not more than 6 months after entry of judgment – petition for relief from judgment (Rule 38), which should be accompanied by a. affidavit of FAME b. under oath Mark de Leon, JD 2001

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c. affidavit of good and meritorious defense 6. de Leon: If there had been more than 6 months from entry of judgment, but within 4 years from discovery of extrinsic fraud – petition before the CA for annulment of judgments (Rule 47) a. Under oath b. Affidavit of extrinsic fraud

may be just. Thereafter the case shall stand as if such judgment, final order or other proceeding had never been rendered, issued or taken. 5. The court shall then proceed to hear and determine the case as if a timely motion for a new trial or reconsideration had been granted by it. 6. Where the denial of an appeal is set aside, the lower court shall be required

c. Affidavit of good and substantial defense

a. to give due course to the appeal and

d. Certificate against forum-shopping

b. to elevate the record of the appealed case, as if a timely and proper appeal had been made

de Leon: What is the remedy before judgment of a plaintiff who fails to appear at the pre-trial? I think he should MfR the decision to allow defendant’s evidence to be presented ex-parte, or he could petition for relief from the order allowing defendant’s evidence to be presented exparte. RULE 38 Procedure in Petition for relief from judgment or denial of appeal 1. Verified petition filed within 60 days after discovery, but not more than 6 months from entry of judgment or proceedings taken; with affidavits of FAME and good and substantial cause of action or defense 2. court orders adverse parties to answer within 15 days from the receipt of the order 3. After the filing of the answer or the expiration of the period therefor, the court shall hear the petition 4. if after such hearing the court finds that the allegations are true, the court shall set aside the judgment complained of upon such terms as Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

Section 1. Petition for relief from judgment, order, or other proceedings. — When a judgment or final order is entered, or any other proceeding is thereafter taken against a party in any court through fraud, accident, mistake, or excusable negligence, he may file a petition in such court and in the same case praying that the judgment, order or proceeding be set aside. (2a) Sec. 2. Petition for relief from denial of appeal. — When a judgment or final order is rendered by any court in a case, and a party thereto, by fraud, accident, mistake, or excusable negligence, has been prevented from taking an appeal, he may file a petition in such court and in the same case praying that the appeal be given due course. (1a) Grounds for proceedings

Petition for relief from judgment, order, or other

1. a judgment or final order is entered through FAME, or

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2. any other proceeding is thereafter taken against a party in any court through FAME Conditions for Petition for relief from denial of appeal 1. a judgment or final order is rendered by any court in a case, and 2. a party has been prevented from taking an appeal, by FAME Sec. 3. Time for filing petition; contents and verification. — A petition provided for in either of the preceding sections of this Rule must be verified, filed within sixty (60) days after the petitioner learns of the judgment, final order, or other proceeding to be set aside, and not more than six (6) months after such judgment or final order was entered, or such proceeding was taken; and must be accompanied with affidavits showing the fraud, accident, mistake, or excusable negligence relied upon, and the facts constituting the petitioner's good and substantial cause of action or defense, as the case may be. (3) Requisites filing Petition for relief from judgment or denial of appeal 1. verified 2. filed

b. and the facts constituting the petitioner's good and substantial cause of action or defense Sec. 5. Preliminary injunction pending proceedings. — The court in which the petition is filed, may grant such preliminary injunction as may be necessary for the preservation of the rights of the parties, upon the filing by the petitioner of a bond in favor of the adverse party, conditioned that if the petition is dismissed or the petitioner fails on the trial of the case upon its merits, he will pay the adverse party all damages and costs that may be awarded to him by reason of issuance of such injunction or the other proceedings following the petition; but such injunction shall not operate to discharge or extinguish any lien which the adverse party may have acquired upon the property of the petitioner. (5a) cf Rule 58, Sec. 3 (c) Sec. 3. Grounds for issuance of preliminary injunction. - A preliminary injunction may be granted when it is established: (c) That a party, court, agency or a person is doing, threatening or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual. (3a)

a. within 60 days after the petitioner learns of the judgment, final order, or other proceeding to be set aside, and

Court may grant preliminary injunction

b. not more than 6 months after entry of such judgment

1. as may be necessary for the preservation of the rights of the parties

3. must be accompanied with affidavits showing a. the FAME relied upon,

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2. upon the filing by the petitioner of a bond a. in favor of the adverse party

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b. conditioned that he will pay the adverse party all damages and costs that may be awarded to him by reason of issuance of such injunction, if 1) 2)

the appelaed case as if a timely and proper appeal had been made. (7a) CASES

the petition is dismissed or the petitioner fails on the trial of the case upon its merits

3. such injunction shall not operate to discharge or extinguish any lien which the adverse party may have acquired upon the property of the petitioner. Sec. 4. Order to file an answer. — If the petition is sufficient in form and substance to justify relief, the court in which it is filed, shall issue an order requiring the adverse parties to answer the same within fifteen (15) days from the receipt thereof. The order shall be served in such manner as the court may direct, together with copies of the petition and the accompanying affidavits. (4a) Sec. 6. Proceedings after answer is filed. — After the filing of the answer or the expiration of the period therefor, the court shall hear the petition and if after such hearing, it finds that the allegations thereof are not true, the petition shall be dismissed; but if it finds said allegations to be true, it shall set aside the judgment or final order or other proceedings complained of upon such terms as may be just. Thereafter the case shall stand as if such judgment, final order or other proceeding had never been rendered, issued or taken. The court shall then proceed to hear and determine the case as if a timely motion for a new trial or reconsideration had been granted by it. (6a) Sec. 7. Procedure where the denial of an appeal is set aside. — Where the denial of an appeal is set aside, the lower court shall be required to give due course to the appeal and to elevate the record of Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

FRANCISCO V. PUNO, 108 SCRA 427 (1981) Filing a MNT precludes subsequent petition for relief. The remedy of a party is to appeal the denial of the MNT. Besides, the petition for relief was filed more than 60 days from knowledge of the adverse judgment. GORDULAN V. GORDULAN, 3 SCRA 205 (1961) Not only a sworn statement of the facts constituting petitioner's good and substantial defense is required in a petition for relief, but also a showing that the failure to file an answer was by reason of FAME. ARCILLA V. ARCILLA, 138 SCRA 560 (1985) Where petition for relief was filed more than 5 months after receipt of the decision, the petition should be denied. ANURAN V. AQUINO, 38 PHIL 29 (1918) If the period for filing a petition for relief from judgment has lapsed, the remedy is to file an action before the CA to annul the judgment. de Leon: Note that filing of MNT bars a petition for relief, and even petition for annulment of judgment. DEMETRIOU V. CA, 238 SCRA 158 (1994) Mark de Leon, JD 2001

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Extrinsic fraud is that circumstance that would prevent a party from presenting his case fully and fairly. Escolin: Remedy in case of intrinsic fraud is appeal. If the appeal period has already lapsed, then there is no other remedy. de Leon: In Demetriou, the petitioners were deemed to have been parties because of publication. But in Anuran, which was a probate proceeding, there should have been publication as well which would have bound the petitioners as well.

 

upon a judgment or order that disposes of the action or proceeding upon the expiration of the period to appeal therefrom if no appeal has been duly perfected. (1a)

If the appeal has been duly perfected and finally resolved,  the execution may forthwith be applied for in the court of origin,  on motion of the judgment obligee,  

submitting therewith certified true copies of the judgment or judgments or final order or orders sought to be enforced and of the entry thereof, with notice to the adverse party.

The appellate court  may, on motion in the same case, when the interest of justice so requires, direct the court of origin to issue the writ of execution. (n) Requisites for Execution to issue as a matter of right EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS

2. either

RULE 39

SECTION 1. ORDERS.

1. judgment or order that disposes of the action or proceeding

EXECUTION UPON JUDGMENTS OR FINAL

Execution shall issue  as a matter of right,  on motion, Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

a. expiration of the period to appeal, if no appeal has been duly perfected or b. the appeal finally resolved 3. execution applied for in the court of origin 4. motion of the judgment obligee, which states the amounts of the reliefs sought Mark de Leon, JD 2001 - 171 -

5. submitting certified true copies of a. the judgment or judgments or final order or orders sought to be enforced and b. of the entry 6. notice to the adverse party

at the time of the filing of such motion, said court may, in its discretion, order execution of a judgment or final order even before the expiration of the period to appeal. After the trial court has lost jurisdiction, the motion for execution pending appeal may be filed in the appellate court.

de Leon:

Discretionary execution may only issue upon good reasons to be stated in a special order after due hearing.

Note that though it is the court a quo that executes a final judgment, it is the clerk of the appellate court that enters it. Hence, the movant must attach a copy of the entry of judgment before the court a quo in order to enforce the judgment.

(b) Execution of several, separate or partial judgments.—

The appellate court may, on motion in the same case, when the interest of justice so requires, direct the court of origin to issue the writ of execution.

SEC. 2. DISCRETIONARY EXECUTION. — (a) Execution of a judgment or final order pending appeal. 

On motion of the prevailing party



with notice to the adverse party



filed in the trial court while it has jurisdiction over the case and is in possession of either the original record or the record on appeal, as the case may be,

Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

A several separate or partial judgment may be executed under the same terms and conditions as execution of a judgment or final order pending appeal. (2a)

Requisites for Discretionary Execution (partial judgment, or a judgment pending appeal) 1. notice to the adverse party 2. motion of the prevailing party, which state the amounts of the reliefs sought 3. with the a. appellate court – after the trial court has lost jurisdiction Mark de Leon, JD 2001

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b. trial court – while the trial court 1) 2)

has jurisdiction over the case and is in possession of the original record or the record on appeal

4. due hearing. 5. good reasons to be stated in a special order

In appeals by notice of appeal, the court loses jurisdiction over the case upon the perfection of the appeals filed in due time and the expiration of the time to appeal of the other parties. xxx In either case, prior to the transmittal of the original record or the record on appeal, 

“Good reason” depends on the discretion of the court. Offer to file a bond is not a good reason to order discretionary execution, because otherwise such execution would be routinary. de Leon: Note that posting of a bond is not a requisite for execution pending appeal.

the court may issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal, xxx, order execution pending appeal in accordance with section 2 of Rule 39, and allow withdrawal of the appeal. (9a)

The court loses jurisdiction only when the record on appeal is transmitted. cf Sec. 10, Rule 41 SEC. 10. DUTY OF CLERK OF COURT OF THE LOWER COURT UPON PERFECTION OF APPEAL. — Within thirty (30) days after perfection of all the appeals

cf RULE 41, SEC. 9 SEC. 9. PERFECTION OF APPEAL; EFFECT THEREOF. — A party’s appeal by notice of appeal is deemed perfected as to him UPON THE FILING OF THE NOTICE OF APPEAL IN DUE TIME. xxx Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

in accordance with the preceding section, it shall be the duty of the clerk of court of the lower court: xxx (d) To TRANSMIT THE RECORDS TO THE APPELLATE COURT. If the efforts to complete the records fail, Mark de Leon, JD 2001

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he shall indicate in his letter of transmittal  the exhibits or transcripts not included in the records being transmitted to the appellate court,  the reasons for their non-transmittal, and  the steps taken or that could be taken to have them available. The clerk of court shall furnish the parties with copies of his letter of transmittal of the records to the appellate court. (10a) If the clerk of court fails to transmit the record on appeal even after the lapse of 30 days,  the court may still order execution pending appeal. But if the court of origin is an MTC,  the period in which to transmit the record on appeal is just 15 days. cf Rule 40 Sec. 6

 which he shall certify as complete, to the proper Regional Trial Court. A copy of his letter of transmittal of the records to the appellate court shall be furnished the parties. (n) Bottomline: The court a quo can order execution pending appeal while the records on appeal is yet to be transmitted.

SEC. 3. STAY OF DISCRETIONARY EXECUTION. — Discretionary execution issued under the preceding section may be stayed  upon approval by the proper court of a sufficient supersedeas bond filed by the party against whom it is directed,  conditioned upon the performance of the judgment or order allowed to be executed in case it shall be finally sustained in whole or in part.

SEC. 6. DUTY OF THE CLERK OF COURT. —

The bond thus given may be proceeded against on motion with notice to the surety. (3a)

Within fifteen (15) days from the perfection of the appeal,

Requisites for Stay of discretionary execution

the clerk of court or the branch clerk of court of the lower court shall

2. sufficient supersedeas bond filed by the losing party

 transmit the original record or the record on appeal, together with the transcripts and exhibits, Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

1. approval by the proper court

3. conditioned upon the performance of the original judgment in case it shall be finally sustained in whole or in part Mark de Leon, JD 2001

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The bond given to stay discretionary exection may be proceeded against on motion with notice to the surety. SEC. 4. JUDGMENTS NOT STAYED BY APPEAL. — Judgments in actions for

3. accounting 4. support 5. other judgments declared to be immediately executory, e.g. ejectment cases

 injunction,

When judgments not stayed by appeal are stayed

 receivership,

1. ordered by the trial court.

 accounting and  support, and

2. appellate court orders the suspending, modifying, restoring or granting of the injunction, receivership, accounting, or award of support.

 such other judgments as are now or may hereafter be declared to be immediately executory,

de Leon: can judgments not stayed by appeal be stayed by bond?

shall be ENFORCEABLE AFTER THEIR RENDITION and shall not be stayed by an appeal taken therefrom, unless otherwise ordered by the trial court. On appeal therefrom, the appellate court in its discretion may make an order suspending, modifying, restoring or granting the injunction, receivership, accounting, or award of support. The stay of execution shall be upon such terms as to bond or otherwise as may be considered proper for the security or protection of the rights of the adverse party. (4a) Judgments not stayed by appeal 1. injunction 2. receivership Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

SEC. 5. EFFECT OF REVERSAL OF EXECUTED JUDGMENT. — Where the executed judgment is reversed totally or partially, or annulled, on appeal or otherwise, the trial court may, on motion, issue such orders of RESTITUTION OR REPARATION OF DAMAGES as equity and justice may warrant under the circumstances. (5a) Where the executed judgment is modified, on motion, the trial court may issue orders of Mark de Leon, JD 2001

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1. restitution or 2. reparation of damages

SEC. 6. EXECUTION BY MOTION OR BY INDEPENDENT ACTION. — A final and executory judgment or order may be executed on motion within five (5) years from the date of its entry. After the lapse of such time, and before it is barred by the statute of limitations, a judgment may be enforced by action. The revived judgment may also be enforced by motion within five (5) years from the date of its entry and thereafter by action before it is barred by the statute of limitations. (6a)

(b) In case of the death of the judgment obligor, against his executor or administrator or successor in interest, if the judgment be for the recovery of real or personal property, or the enforcement of the lien thereon; (c) In case of the death of the judgment obligor, after execution is actually levied upon any of his property, the same may be sold for the satisfaction of the judgment obligation, and the officer making the sale shall account to the corrsponding executor or administrator for any surplus in his hands. (7a) How execution may issue or be enforced in case of the death of the judgment

A final and executory judgment, or a revived judgment may be executed

1. obligee – upon the application of his executor or administrator, or successor in interest;

1. on motion - within 5 years from entry

2. obligor

2. by action – after 5 years from entry, and before it prescribes

SEC. 7. EXECUTION IN CASE OF DEATH OF PARTY. — In case of the death of party, execution may issue or be enforced in the following manner:

a. if the judgment be for the recovery of real or personal property, or the enforcement of the lien thereon – against his executor or administrator or successor in interest b. If the judgment be for a sum of money 1)

Before levy on execution – case continues (Rule 3, Sec. 20) and judgment presented as claim in the estate proceedings

2)

after execution is actually levied – the property may be sold for the satisfaction of the

(a) In case of the death of the judgment obligee, upon the application of his executor or administrator, or successor in interest; Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

Mark de Leon, JD 2001

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judgment obligation, and the officer making the sale shall account to the corresponding executor or administrator for any surplus

SEC. 8. ISSUANCE, FORM AND CONTENTS OF A WRIT OF EXECUTION. – The writ of execution shall: (1) issue in the name of the Republic of the Philippines from the court which granted the motion; (2) state  the name of the court,  the case number and title,  the dispositive part of the subject judgment or order; and (3) require the sheriff or other proper officer to whom it is directed to enforce the writ according to its terms, in the manner herein after provided: (a) If the execution be against the property of the judgment obligor, to satisfy the judgment, with interest, out of the real or personal property of such judgment obligor; (b) If it be against real or personal property in the hands of personal representatives, heirs, devisees, legatees, tenants, or trustees of the judgment obligor, to satisfy the judgment, with interest, out of such properties; Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

(c) If it be for the sale of real or personal property, to sell such property, describing it, and apply the proceeds in conformity with the judgment, the material parts of which shall be recited in the writ of execution; (d) If it be for the delivery of the possession of real or personal property, to deliver the possession of the same, describing it, to the party entitled thereto, and to satisfy any costs, damages, rents, or profits covered by the judgment out of the personal property of the person against whom it was rendered, and if sufficient personal property cannot be found, then out of the real property; and (e) In all cases, the writ of execution shall specifically state the amount of the interest, costs, damages, rents, or profits due as of the date of the issuance of the writ, aside from the principal obligation under the judgment. For this purpose, the motion for execution shall specify the amounts of the foregoing reliefs sought by the movant. (8a) de Leon: Note that a WRIT OF EXECUTION IS ALWAYS DIRECTED TO A SHERIFF. Hence, mere refusal of a party to comply with a writ of execution does not constitute contempt.

SEC. 9. EXECUTION OF JUDGMENTS FOR MONEY, HOW ENFORCED. — (a) Immediate payment on demand. — The officer shall enforce an execution of a judgment for money by demanding from the judgment obligor the immediate payment of the full amount stated in the writ of execution and all lawful fees. The judgment obligor shall pay in  cash, Mark de Leon, JD 2001

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 certified bank check payable to the judgment obligee or his authorized representative if present at the time of payment. The lawful fees shall be handed under proper receipt to the executing sheriff who shall turn over the said amount within the same day to the clerk of court of the court that issued the writ. If the judgment obligee or his authorized representative is not present to receive payment,  the judgment obligor shall deliver the aforesaid payment to the executing sheriff.  The latter shall turn over all the amounts coming into his possesssion within the same day o

to the clerk of court of the court that issued the writ, or

o

if the same is not practicable, deposit said amount to a fiduciary account in the nearest government depository bank of the Regional Trial Court of the locality. The clerk of court shall thereafter arrange for the remittance of the deposit to the account of the court that issued the writ whose clerk of court shall then deliver said payment to the judgment obligee in satisfactionn of the judgment.

The excess, if any, shall be delivered to the judgment obligor while the lawful fees shall be retained by the clerk of court for disposition as provided by law. Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

In no case shall the executing sheriff demand that any payment by check be made payable to him. (B) SATISFACTION BY LEVY. — If the judgment obligor cannot pay all or part of the obligation in cash, certified bank check or other mode of payment acceptable to the judgment obligee, the officer shall levy upon the properties of the judgment obligor of every kind and nature whatsoever which may be disposed of for value and not otherwise exempt from execution giving the latter the option to immediately choose which property or part thereof may be levied upon, sufficient to satisfy the judgment. If the judgment obligor does not exercise the option, the officer shall first levy on the personal properties, if any, and then on the real properties if the personal properties are insufficient to answer for the judgment. The sheriff shall sell only a sufficient portion of the personal or real property of the judgment obligor which has been levied upon. When there is more property of the judgment obligor than is sufficient to satisfy the judgment and lawful fees, he must sell only so much of the personal or real property as is sufficient to satisfy the judgment and lawful fees. Real property, stocks, shares, debts, credits, and other personal property, or any interest in either real or persoanl property, may be levied upon in like manner and with like effect as under a writ of attachment. (C) GARNISHMENT OF DEBTS AND CREDITS. — Mark de Leon, JD 2001

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The officer may levy on debts due the judgment obligor and other credits, including bank deposits, financial interests, royalties, commissions and other personal property not capable of manual delivery in the posssession or control of third parties. Levy shall be made BY SERVING NOTICE upon the person owing such debts or having in his possession or control such credits to which the judgment obligor is entitled. The garnishment shall cover only such amount as will satisfy the judgment and all lawful fees. The garnishee shall make a written report to the court within five (5) days from service of the notice of garnishment 



otherwise, the choice shall be made by the judgment obligee. The executing sheriff shall observe the same procedure under paragraph (a) with respect to delivery of payment to the judgment obligee. (8a, 15a)

How money judgments are enforced (ILG) 1. Immediate payment on demand 2. Satisfaction by levy

stating whether or not the judgment obligor has sufficient funds or credits to satisfy the amount of the judgment.

3. Garnishment of debts and credits

If not, the report shall state how much funds or credits the garnishee holds for the judgment obligor.

1. officer demands from the judgment obligor the immediate payment of the full amount stated in the writ of execution and all lawful fees.

The garnished amount in cash, or certified bank check issued in the name of the judgment obligee, 

the garnishee or garnishees who shall be required to deliver the amount due;

shall be delivered directly to the judgment obligee WITHIN TEN (10) WORKING DAYS FROM SERVICE OF NOTICE on said garnishing requiring such delivery, EXCEPT THE LAWFUL FEES WHICH SHALL BE PAID DIRECTLY TO THE COURT.

In the event there are two or more garnishees holding deposits or credits sufficient to satisfy the judgment, the judgment obligor, if available, shall have the right to indicate Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

Immediate payment on demand

2. judgment obligor shall pay in a. cash b. certified bank check payable to the judgment obligee or his authorized representative if present at the time of payment. c. In no case shall the executing sheriff demand that any payment by check be made payable to him. 3. The lawful fees shall be handed under proper receipt to the executing sheriff Mark de Leon, JD 2001

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4. If the judgment obligee or his authorized representative is not present, the judgment obligor shall deliver the aforesaid payment to the executing sheriff.

3. The judgment obligor has the option to immediately choose which property or part thereof may be levied upon, sufficient to satisfy the judgment.

5. executing sheriff shall

4. If the judgment obligor does not exercise the option, the officer shall first levy on the

a. turn over all the amounts coming into his possesssion within the same day to the clerk the court that issued the writ, or if the same is not practicable b. deposit said amount to a fiduciary account in the nearest government depository bank of the RTC of the locality. 1)

2)

The clerk of court shall thereafter arrange for the remittance of the deposit to the account of the court that issued the writ clerk of such court shall then deliver said payment to the judgment obligee in satisfaction of the judgment.

6. Any excess shall be delivered to the judgment obligor 7. The lawful fees shall be retained by the clerk of court Satisfaction by levy 1. If the judgment obligor cannot pay all or part of the obligation in cash, certified bank check or other mode of payment acceptable to the judgment obligee 2. the officer shall levy upon any properties of the judgment obligor a. which may be disposed of for value and b. not otherwise exempt from execution Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

a. personal properties b. if the personal properties are insufficient, then real properties 5. The sheriff shall sell only a sufficient portion of the personal or real property of the judgment obligor which has been levied upon. 6. When there is more than sufficient property to satisfy the judgment and lawful fees, he must sell only so much of the personal or real property as is sufficient to satisfy the judgment and lawful fees. 7. Real property, stocks, shares, debts, credits, and other personal property, or any interest in either real or personal property, may be levied upon in like manner and with like effect as under a writ of attachment, cf Rule 57, Sec. 7 Sec. 7. Attachment of real and personal property; recording thereof. — Real and personal property shall be attached by the sheriff executing the writ in the following manner: (a) Real property, or growing crops thereon, or any interest therein, standing upon the record of the registry of deed of the province in the name of the party against whom attachment is issued, or not appearing at all upon such records, or belonging to the party against whom attachment is issued and held by any Mark de Leon, JD 2001

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other person, or standing on the records of the registry of deeds in the name of any other person, by filing with the registry of deeds a copy of the order, together with a description of the property attached, and a notice that it is attached, or that such real property and any interest therein held by or standing in the name of such other person are attached, and by leaving a copy of such order, description, and notice with the occupant of the property, if any, or with such other person or his agent if found within the province. Where the property has been brought under the operation of either the Land Registration Act or the Property Registration Decree, the notice shall contain a reference to the number of the certificate of title, the volume and page in the registration book where the certificate is registered, and the registered owner or owners thereof. The registrar of deed must index attachments filed under this section in the names of the applicant, the adverse party, or the person by whom the property is held or in whose name it stands in the records. If the attachment is not claimed on the entire area of the land covered by the certificate of title, a description sufficiently accurate for the identification of the land or interest to be affected shall be included in the registration of such attachment; (b) Personal property capable of manual delivery, by taking and safely keeping it in his custody, after issuing the corresponding receipt therefor; (c) Stocks or shares, or an interest in stocks or shares, of any corporation or company, by leaving with the president or managing agent thereof, a copy of the writ, and a notice stating that the stock or interest of the party against whom the attachment is issued is attached in pursuance of such writ; Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

(d) Debts and credits, including bank deposits, financial interest, royalties, commissions, and other personal property not capable of manual delivery, by leaving with the person owing such debts, or having in his possession or under his control, such credits or other personal property, or with his agent, a copy of the writ, and notice that the debts owing by him to the party against whom attachment is issued, and the credits and other personal property in his possession, or under his control, belonging to said party, are attached in pursuance of such writ; (e) The interest of the party whom attachment is issued in property belonging to the estate of the decedent, whether as heir, legatee, or devisee, by serving the executor or administrator or other personal representative of the decedent with a copy of the writ and notice that said interest is attached. A copy of said writ of attachment and of said notice shall also be filed in the office of the clerk of the court in which said estate is being settled and served upon the heir, legatee or devisee concerned. If the property sought to be attached is in custodia legis, a copy of the writ of attachment shall be filed with the proper court or quasi-judicial agency, and notice of the attachment served upon the custodian of such property.(7a) Satisfaction by levy on real property 1. filing with the registry of deeds a copy of the order, together with a description of the property attached, and a notice that it is attached, or that such real property and any interest therein held by or standing in the name of such other person are attached, and 2. by leaving a copy of such order, description, and notice with the occupant of the property, if any, or with such other person or his agent if found within the province. Mark de Leon, JD 2001

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3. Where the property has been brought under the operation of either the Land Registration Act or the Property Registration Decree, the notice shall contain a reference to the number of the certificate of title, the volume and page in the registration book where the certificate is registered, and the registered owner or owners thereof.

other personal representative of the decedent with a copy of the writ and notice that said interest is attached. A copy of said writ of attachment and of said notice shall also be filed in the office of the clerk of the court in which said estate is being settled and served upon the heir, legatee or devisee concerned.

4. The registrar of deed must index attachments filed under this section in the names of the applicant, the adverse party, or the person by whom the property is held or in whose name it stands in the records.

If the property sought to be attached is in custodia legis, a copy of the writ of attachment shall be filed with the proper court or quasi-judicial agency, and notice of the attachment served upon the custodian of such property.

5. If the attachment is not claimed on the entire area of the land covered by the certificate of title, a description sufficiently accurate for the identification of the land or interest to be affected shall be included in the registration of such attachment; Satisfaction by levy on personal property capable of manual delivery – by taking and safely keeping it in his custody, after issuing the corresponding receipt therefor Satisfaction by levy on stocks or shares – by leaving with the president or managing agent thereof, a copy of the writ, and a notice stating that the stock or interest of the party against whom the attachment is issued is attached in pursuance of such writ Satisfaction by levy on debts and credits and other personal property not capable of manual delivery – by leaving with the person owing such debts, or having in his possession or under his control, such credits or other personal property, or with his agent, a copy of the writ, and notice that the debts owing by him to the party against whom attachment is issued, and the credits and other personal property in his possession, or under his control, belonging to said party, are attached in pursuance of such writ; Satisfaction by levy on interest of the party in property belonging to the estate of the decedent – by serving the executor or administrator or Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

Garnishment of debts and credits 1. The officer may levy on debts due the judgment obligor and other credits, including a. bank deposits b. financial interests c. royalties d. commissions and e. other personal property 1)

not capable of manual delivery

2)

in the posssession or control of third parties.

2. Levy shall be made by serving notice upon the person owing such debts or having in his possession or control such credits to which the judgment obligor is entitled. 3. The garnishment shall cover only such amount as will satisfy the judgment and all lawful fees. Mark de Leon, JD 2001

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4. The garnishee shall make a written report to the court within 5 days from service of the notice of garnishment stating a. whether or not the judgment obligor has sufficient funds or credits to satisfy the amount of the judgment. b. If not, the report shall state how much funds or credits the garnishee holds for the judgment obligor. 5. The garnished amount in cash, or certified bank check issued in the name of the judgment obligee, shall be

b. deposit said amount to a fiduciary account in the nearest government depository bank of the RTC of the locality. 1)

The clerk of court shall thereafter arrange for the remittance of the deposit to the account of the court that issued the writ

2)

clerk of such court shall then deliver said payment to the judgment obligee in satisfaction of the judgment.

9. Any excess shall be delivered to the judgment obligor

a. delivered directly to the judgment obligee within ten 10 working days from service of notice on said garnishing requiring such delivery

10. The lawful fees shall be retained by the clerk of court

b. lawful fees shall be paid directly to the court.

(a) Conveyance, delivery of deeds, or other specific acts; vesting title.— If a judgment directs a party who execute a conveyance of land or personal property, or to deliver deeds or other documents, or to perform any other specific act in connection therewith, and the party fails to comply within the time specified, the court may direct the act to be done at the cost of the disobedient party by some other person appointed by the court and the act when so done shall have like effect as if done by the party. If real or personla property is situated within the Philippines, the court in lieu of directing a conveyance thereof may be an order divest the title of any party and vest it in others, which shall have the force and effect of a conveyance executed in due form of law. (10a)

6. In the event there are two or more garnishees holding deposits or credits sufficient to satisfy the judgment a. the judgment obligor, if available, shall have the right to indicate the garnishee or garnishees who shall be required to deliver the amount due b. otherwise, the choice shall be made by the judgment obligee. 7. If the judgment obligee or his authorized representative is not present, the garnishee shall deliver the payment to the executing sheriff. 8. executing sheriff shall a. turn over all the amounts coming into his possesssion within the same day to the clerk the court that issued the writ, or if the same is not practicable Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

Sec. 10. Execution of judgments for specific act.—

(b) Sale of real or personal property. — If the judgment be for the sale of real or personal property, to sell such property, describing it, and apply the proceeds in conformity with the judgment. (8[c]a) (c) Delivery or restitution of real property. — The officer shall demand of the person against whom the judgment for the delivery or Mark de Leon, JD 2001

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restitution of real property is rendered and all person claiming rights under him to peaceably vacate the property within three (3) working days, and restore possession thereof to the judgment obligee; otherwise, the officer shall oust and such persons therefrom with the assistance, if necessary of appropriate peace officers, and employing such means as may be reasonably necessary to retake possession, and place the judgment obligee in possession of such property. Any costs, damages, rents or profits awarded by the judgment shall be satisfied in the same manner as a judgment for money. (13a) (d) Removal of improvements on property subject of execution. — When the property subject of the execution contains improvements constructed or planted by the judgment obligor or his agent, the officer shall not destroy, demolish or remove said improvements except upon special order of the court issued upon motion of the judgment obligee after due hearing and after the former has failed to remove the same within a reasonable time fixed by the court. (14a) Note that the officer can not destroy or remove improvements on the property on the strength of the writ of execution alone. The judgment obligee must move for a special order to demolish, which can only be issued after hearing and unexercised opportunity for the judgment obligor to remove his improvements.

3. Delivery or restitution of real property 4. Removal of improvements on property subject of execution 5. Delivery of personal property Conveyance, delivery of deeds, or other specific connected acts 1. If a party fails to comply within the given period, the court may direct the act to be done at the cost of the disobedient party by some other person appointed by the court 2. The act when so done shall have like effect as if done by the party. 3. If real or personal property is situated within the Philippines, the court a. in lieu of directing a conveyance thereof b. may by an order divest the title of any party and c. vest it in others, which shall have the force and effect of a conveyance executed in due form of law. Sale of real or personal property

(e) Delivery of personal property. — In judgments for the delivery of personal property, the officer shall take possession of the same and forthwith deliver it to the party entitled thereto and satisfy any judgment for money as therein provided. (8a)

1. sell such property

Specific acts which may be executed

Delivery or restitution of real property

1. Conveyance, delivery of deeds, or other specific connected acts

1. The officer shall demand of the judgment obligor and all person claiming rights under him

2. Sale of real or personal property Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

2. describing it, and 3. apply the proceeds in conformity with the judgment

a. to peaceably vacate the property within 3 working days, and Mark de Leon, JD 2001 - 184 -

b. restore possession thereof to the judgment obligee c. otherwise, the officer shall 1)

oust and such persons therefrom

a) with the assistance, if necessary of appropriate peace officers, and b) employing such means as may be reasonably necessary to retake possession, and 2)

place the judgment obligee in possession of such property.

Sec. 11. Execution of special judgments. – When a judgment requires the performance of any act other than those mentioned in the two preceding sections, a certified copy of the judgment shall be attached to the writ of execution and shall be served by the officer upon the party against whom the same is rendered, or upon any other person required thereby, or by law, to obey the same, and such party or person may be punished for contempt if he disobeys such judgment. (9a) Special judgments are acts which can be performed by the judgment obligor alone (e.g. painting by a famous painter). Execution of special judgments

2. Any costs, damages, rents or profits awarded by the judgment shall be satisfied in the same manner as a judgment for money.

1. a certified copy of the judgment shall be attached to the writ of execution and

Removal of improvements on property subject of execution – the officer shall not destroy, demolish or remove said improvements, except

2. shall be served by the officer upon

1. upon special order of the court 2. issued upon motion of the judgment obligee 3. after due hearing and 4. after the judgment obligor has failed to remove within a reasonable time fixed by the court. Delivery of personal property 1. the officer shall take possession of the personal property and 2. deliver it to the party entitled thereto and 3. satisfy any judgment for money Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

a. the judgment obligor, or b. any other person required thereby, or by law, to obey the same 3. such party or person may be punished for contempt if he disobeys such judgment. de Leon: Note that disobedience by a party to a writ of execution, by itself, is not contempt because the writ of execution is not directed to a party. However, in case of special judgments, the judgment is attached to the writ of execution. The judgment is addressed to the party, disobedience to which would now constitute contempt. Sec. 12. Effect of levy on execution as to third persons. — The levy on execution shall create a lien in favor of the judgment obligee over the right, title and interest of the judgment obligor in such property Mark de Leon, JD 2001

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at the time of the levy, subject to liens and encumbrances then existing. (16a) Sec. 13. Property exempt from execution. — Except as otherwise expressly provided by law, the following property, and no other, shall be exempt from execution; (a) The judgment obligor's family home as provided by law, or the homestead in which he resides, and land necessarily used in connection therewith; (b) Ordinary tools and implements personally used by him in hs trade, employment, or livelihood; (c) Three horses, or three cows, or three carabaos, or other beasts of burden such as the judgment obligor may select necessarily used by him in his ordinary occupation; (d) His necessary clothing and articles for ordinary personal use, excluding jewelry; (e) Household furniture and utensils necessary for housekeeping, and used for that purpose by the judgment obligor and his family, such as the judgment obligor may select, of a value not exceeding one hundred thousand pesos; (f) Provisions for individual or family use sufficient for four months; (g) The professional libraries and equipment of judges, lawyers, physicians, pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other professionals, not exceeding three hundred thousand pesos in value;

(h) One fishing boat and accessories not exceeding the total value of one hundred thousand pesos owned by a fisherman and by the lawful use of which he earns his livelihood; (i) So much of the salaries, wages, or earnings of the judgment obligor of his personal services within the four months preceding the levy as are necessary for the support of his family; (j) Lettered gravestones; (k) Monies benefits, privileges, or annuities accruing or in any manner growing out of any life insurance; (l) The right to receive legal support, or money or property obtained as such support, or any pension or gratuity from the Government; (m) Properties specially exempt by law. But no article or species of property mentioned in his section shall be exempt from execution issued upon a judgment recovered for its price or upon a judgment of foreclosure of a mortgage thereon. (12a) Property exempt from execution 1. family home, or the homestead in which he resides, and land necessarily used 2. ordinary tools and implements personally used in his trade, employment, or livelihood; 3. 3 beasts of burden as the judgment obligor may select, necessarily used in his ordinary occupation 4. necessary clothing and articles for ordinary personal use, excluding jewelry;

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5. Household furniture and utensils necessary for housekeeping, and used for that purpose, such as the judgment obligor may select, of a value not exceeding P100k 6. Provisions for individual or family use sufficient for 4 months 7. professional libraries and equipment, not exceeding P300k in value 8. One fishing boat and accessories not exceeding the total value of P100,000 owned by a fisherman and by the lawful use of which he earns his livelihood;

be enforced by motion. The officer shall make a report to the court every thirty (30) days on the proceedings taken thereon until the judgment is satisfied in full, or its effectivity expires. The returns or periodic reports shall set forth the whole of the proceedings taken, and shall be filed with the court and copies thereof promptly furnished the parties. (11a) cf Rule 39, Sec. 6 Sec. 6. Execution by motion or by independent action. — A final and executory judgment or order may be executed on motion within five (5) years from the date of its entry. xxx

9. salaries, wages, or earnings for his personal services within the 4 months preceding the levy as are necessary for the support of his family

Return of writ of execution

10. Lettered gravestones

1. If the judgment has been satisfied in part or in full - the writ of execution shall be returnable to the court

11. Monies benefits, privileges, or annuities accruing or in any manner growing out of any life insurance

2. If the judgment cannot be satisfied in full within 30 days after his receipt of the writ

12. The right to receive legal support, or money or property obtained as such support, or any pension or gratuity from the Government

a. the officer shall report to the court and state the reason therefor.

13. Properties specially exempt by law.

b. Such writ shall continue in effect for 5 years from entry (Rule 39, Sec. 6)

No property shall be exempt from execution issued upon a judgment recovered for its price or upon a judgment of foreclosure of a mortgage thereon.

c. The officer shall make a report to the court every 30 days on the proceedings taken thereon until the judgment is satisfied in full, or its effectivity expires.

Sec. 14. Return of writ of execution. — The writ of execution shall be returnable to the court issuing it immediately after the judgment has been satisfied in part or in full. If the judgment cannot be satisfied in full within thirty (30) days after his receipt of the writ, the officer shall report to the court and state the reason therefor. Such writ shall continue in effect during the period within which the judgment may Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

The returns or periodic reports shall 1. set forth the whole of the proceedings taken, and 2. shall be filed with the court and copies thereof promptly furnished the parties. Mark de Leon, JD 2001

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Sec. 15. Notice of sale of property on execution. — Before the sale of property on execution, notice thereof must be given as follows: (a) In case of perishable property, by posting written notice of the time and place of the sale in three (3) public places, preferably in conspicuous areas of the municipal or city hall, post office and public market in the municipality or city where the sale is to take place, for such time as may be reasonable, considering the character and condition of the property; (b) In case of other personal property, by posting a similar notice in the three (3) public places above-mentioned for not less than five (5) days; (c) In case of real property, by posting for twenty (20) days in the three (3) public places above-mentioned a similar notice particularly describing the property and stating where the property is to be sold, and if the assessed value of the property exceeds fifty thousand (P50,000.00) pesos, by publishing a copy of the notice once a week for two (2) consecutive weeks in one newspaper selected by raffle, whether in English, Filipino, or any major regional language published, edited and circulated or, in the absence thereof, having general circulation in the province or city; (d) In all cases, written notice of the sale shall be given to the judgment obligor, at least three (3) days before the sale, except as provided in paragraph (a) hereof where notice shall be given at any time before the sale, in the same manner as personal service of pleadings and other papers as provided by section 6 of Rule 13. The notice shall specify the place, date and exact time of the sale which should not be earlier than nine o’clock in the morning and not later than two o’clock in the afternoon. The place of the sale may be agreed upon by the parties. In the absence of such agreement, the Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

sale of real property or personal property not capable of manual delivery shall be held in the office of the clerk of court of the Regional Trial Court or the Municipal Trial Court which issued the writ or which was designated by the appellate court. In the case of personal property capable of manual delivery, the sale shall be held in the place where the property is located. (18a) Notice of sale of property on execution 1. specify the a. place b. date and c. exact time of the sale, which should not be earlier than 9 am and not later than 2 pm. 2. personally served to the judgment obligor, at least 3 days before the sale, except in case of perishable property where notice shall be given at any time before the sale cf Rule 13, Sec. 6 Sec. 6. Personal service. — Service of the papers may be made by delivering personally a copy to the party or his counsel, or by leaving it in his office with his clerk or with a person having charge thereof. If no person is found in his office, or his office is not known, or he has no office, then by leaving the copy, between the hours of eight in the morning and six in the evening, at the party's or counsel's residence, if known, with a person of sufficient age and discretion then residing therein. 3. posted in a public place 4. for the following periods Mark de Leon, JD 2001 - 188 -

a. perishable property – reasonable time considering the character and condition of the property

Without such notice or with a defective notice, the sale on execution is void.

b. other personal property – not less than 5 days

Sec. 16. Proceedings where property claimed by third person. — If the property levied on is claimed by any person other than the judgment obligor or his agent, and such person makes an affidavit of his title thereto or right to the possession thereof, stating the grounds of such right or title, and serves the same upon the officer making the levy and a copy thereof upon the judgment obligee, the officer shall not be bound to keep the property, unless such judgment obligee, on demand of the officer, files a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the property levied on. In case of disagreement as to such value, the same shall be determined by the court issuing the writ of execution. No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefor is filed within one hundred twenty (120) days from the date of the filing of the bond.

c. real property – for 20 days 5. for real property the notice must a. particularly describe the property b. state where the property is to be sold c. if the assessed value exceeds P50,000 – publish a copy of the notice once a week for 2 consecutive weeks in one newspaper 1)

selected by raffle

2)

whether in English, Filipino, or any major regional language

3)

published, edited and circulated or, in the absence thereof, having general circulation in the province or city

Place of the sale 1. agreed upon by the parties. 2. In the absence of such agreement – the sale of a. real property or personal property not capable of manual delivery – in the office of the clerk of the court which issued the writ or which was designated by the appellate court. b. personal property capable of manual delivery – in the place where the property is located Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

The officer shall not be liable for damages for the taking or keeping of the property, to any third-party claimant if such bond is filed. Nothing herein contained shall prevent such claimant or any third person from vindicating his claim to the property in a separate action, or prevent the judgment obligee from claiming damages in the same or a separate action against a third-party claimant who filed a frivolous or plainly spurious claim. When the writ of execution is issued in favor of the Republic of the Philippines, or any officer duly representing it, the filing of such bond shall not be required, and in case the sheriff or levying officer is sued for damages as a result of the levy, he shall be represented by the Solicitor General and if held liable therefor, the actual damages adjudged by the court shall be paid by the National Treasurer out of such funds as may be appropriated for the purpose. (17a) Mark de Leon, JD 2001 - 189 -

Requisites for a claim by a 3rd person 1. the property is levied 2. the claimant is a person other than the judgment obligor or his agent 3. makes an affidavit of a. his title thereto or right to the possession thereof b. stating the grounds of such right or title 4. serves the same upon a. the officer making the levy b. the judgment obligee Proceedings where property claimed by third person 1. the officer shall not be bound to keep the property, unless a. judgment obligee, on demand of the officer, files a bond approved by the court to indemnify the 3rd party claimant in a sum not less than the value of the property levied on. b. In case of disagreement as to such value, the same shall be determined by the court issuing the writ of execution. 2. The officer shall not be liable for damages for the taking or keeping of the property, to any 3d party claimant if such bond is filed. 3. No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefor is filed within 120 days from the date of the filing of the bond. 4. Nothing herein contained shall prevent Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

a. such claimant or any 3rd person from vindicating his claim to the property in a separate action, or b. the judgment obligee from claiming damages in the same or a separate action against a 3rd party claimant who filed a frivolous or plainly spurious claim. 5. When the writ of execution is issued in favor of the Republic of the Philippines, or any officer duly representing it a. the filing of such bond shall not be required, and b. in case the sheriff or levying officer is sued for damages as a result of the levy 1) 2)

he shall be represented by the Solicitor General and if held liable, the actual damages adjudged by the court shall be paid by the National Treasurer out of such funds as may be appropriated for the purpose.

Note that 3rd party claims over property levied on execution may be asserted only in a separate action. However, 3rd party claims over property attached may be asserted in the same or a separate action. In both cases, the judgment obligee may claim damages from a frivolous 3 rd party claimant in the same or in a separate action. Sec. 17. Penalty for selling without notice, or removing or defacing notice. — An officer selling without the notice prescribed by section 15 of this Rule shall be liable to pay punitive damages in the amount of five thousand (P5,000.00) pesos to any person injured thereby, in addition to his actual damages, both to be recovered by motion in the same action; and a person willfully removing or defacing the notice posted, if done before the sale, or before the satisfaction of the judgment if it be satisfied before the sale, shall be liable to pay five Mark de Leon, JD 2001

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thousand (P5,000.000) pesos to any person injured by reason thereof, in addition to his actual damages, to be recovered by motion in the same action. (19a) A person may be liable for actual damages and punitive damages of P5,000 to any person injured due to the following acts 1. An officer selling without the notice 2. any person willfully removing or defacing the notice posted a. if done before the sale, or b. before the satisfaction of the judgment if it be satisfied before the sale Such damages may be recovered by motion in the same action Sec. 18. No sale if judgment and costs paid. — At any time before the sale of property on execution, the judgment obligor may prevent the sale by paying the amount required by the execution and the costs that have been incurred therein. (20a) At any time before the sale of property on execution, the judgment obligor may prevent the sale by paying 1. the amount required by the execution 2. costs incurred therein Sec. 19. How property sold on execution; who may direct manner and order of sale. — All sales of property under execution must be made at public auction, to the highest bidder, to start at the exact time fixed in the notice. After sufficient property has been sold to satisfy the execution, no more shall be sold and any excess property or proceeds of the sale shall be promptly delivered to the judgment Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

obligor or his authorized representative, unless otherwise directed by the judgment or order of the court. When the sale is of real property, consisting of several known lots, they must be sold separately; or, when a portion of such real property is claimed by a third person, he may require it to be sold separately. When the sale is of personal property capable of manual delivery, it must be sold within view of those attending the same and in such parcels as are likely to bring the highest price. The judgment obligor, if present at the sale, may direct the order in which property, real or personal, shall be sold, when such property consists of several known lots or parcels which can be sold to advantage separately. Neither the officer conducting the execution sale, nor his deputies, can become a purchaser, nor be interested directly or indirectly in any purchase at such sale. (21a) How property sold on execution 1. at public auction 2. to the highest bidder 3. to start at the exact time fixed in the notice 4. After sufficient property has been sold to satisfy the execution, no more shall be sold and any excess property or proceeds of the sale shall be promptly delivered to the judgment obligor or his authorized representative, unless otherwise directed by the judgment or order of the court. 5. When the sale is of real property a. consisting of several known lots – must be sold separately; or b. a portion of which is claimed by a 3rd person – he may require it to be sold separately Mark de Leon, JD 2001

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6. When the sale is of personal property capable of manual delivery, it must be sold a. within view of those attending the same and b. in such parcels as are likely to bring the highest price. 7. The judgment obligor, if present at the sale, may direct the order in which property shall be sold, when such property consists of several known lots or parcels which can be sold to advantage separately. 8. Neither the officer conducting the execution sale, nor his deputies, can become a purchaser, nor be interested directly or indirectly in any purchase at such sale. Sec. 20. Refusal of purchaser to pay. — If a purchaser refuses to pay the amount bid by him for property struck off to him at a sale under execution, the officer may again sell the property to the highest bidder and shall not be responsible for any loss occasioned thereby; but the court may order the refusing purchaser to pay into the court the amount of such loss, with costs, and may punish him for contempt if he disobeys the order. The amount of such payment shall be for the benefit of the person entitled to the proceeds of the execution, unless the execution has been fully satisfied, in which event such proceeds shall be for the benefit of the judgment obligor. The officer may thereafter reject any subsequent bid of such purchaser who refuses to pay. (22a) If a purchaser refuses to pay the amount bid by him for property struck off to him at a sale under execution 1. the officer a. may again sell the property to the highest bidder and Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

b. shall not be responsible for any loss occasioned thereby 2. the court may a. order the refusing purchaser to pay into the court the amount of such loss, with costs, and b. punish him for contempt if he disobeys the order. c. The amount of such payment shall be for the benefit of the person entitled to the proceeds of the execution, unless the execution has been fully satisfied, in which event such proceeds shall be for the benefit of the judgment obligor. d. The officer may thereafter reject any subsequent bid of such purchaser who refuses to pay. Sec. 21. Judgment obligee as purchaser. — When the purchaser is the judgment obligee, and no third-party claim has been filed, he need not pay the amount of the bid if it does not exceed the amount of his judgment. If it does, he shall pay only the excess. (23a) Sec. 22. Adjournment of sale. — By written consent of the judgment obligor and obligee, or their duly authorized representatives, the officer may adjourn the sale to any date and time agreed upon by them. Without such agreement, he may adjourn the sale from day to day if it becomes necessary to do so for lack of time to complete the sale on the day fixed in the notice or the day to which it was adjourned. (24a) When officer may adjourn the sale 1. By written consent of the judgment obligor and obligee, or their duly authorized representatives – to any date and time agreed upon by them Mark de Leon, JD 2001

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2. Without such agreement – from day to day if it becomes necessary to do so for lack of time to complete the sale on the day fixed in the notice or the day to which it was adjourned. Sec. 23. Conveyance to purchaser of personal property capable of manual delivery. — When the purchaser of any personal property, capable of manual delivery, pays the purchase price, the officer making the sale must deliver the property to the purchaser and, if desired, execute and deliver to him a certificate of sale. The sale conveys to the purchaser all the rights which the judgment obligor had in such property as of the date of the levy on execution or preliminary attachment. (25a) When the purchaser of any personal property, capable of manual delivery, pays the purchase price 1. the officer making the sale must deliver the property to the purchaser and 2. if desired, the officer may execute and deliver to him a certificate of sale. 3. The sale conveys to the purchaser all the rights which the judgment obligor had in such property as of the date of the levy on execution or preliminary attachment. Sec. 24. Conveyance to purchaser of personal property not capable of manual delivery. — When the purchaser of any personal property, not capable of manual delivery, pays the purchase price, the officer making the sale must execute and deliver to the purchaser a certificate of sale. Such certificate conveys to the purchaser all the rights which the judgment obligor had in such property as of the date of the levy on execution or preliminary attachment. (26a)

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When the purchaser of any personal property, not capable of manual delivery, pays the purchase price 1. the officer making the sale must execute and deliver to the purchaser a certificate of sale 2. Such certificate conveys to the purchaser all the rights which the judgment obligor had in such property as of the date of the levy on execution or preliminary attachment. Sec. 25. Conveyance of real property; certificate thereof given to purchaser and filed with registry of deeds. — Upon a sale of real property, the officer must give to the purchaser a certificate of sale containing: (a) A particular description of the real property sold; (b) The price paid for each distinct lot or parcel; (c) The whole price paid by him; (d) A statement that the right of redemption expires one (1) year from the date of the registration of the certificate of sale. Such certificate must be registered in the registry of deeds of the place where the property is situated. (27a) Upon a sale of real property, the officer must give to the purchaser a certificate of sale containing: 1. A particular description of the real property sold 2. The price paid for each distinct lot or parcel 3. The whole price paid by him Mark de Leon, JD 2001

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4. A statement that the right of redemption expires 1 year from the date of the registration of the certificate of sale. Such certificate must be registered in the registry of deeds of the place where the property is situated. Sec. 26. Certificate of sale where property claimed by third person. — When a property sold by virtue of a writ of execution has been claimed by a third person, the certificate of sale to be issued by the sheriff pursuant to sections 23, 24 and 25 of this Rule shall make express mention of the existence of such third-party claim. (28a) Sec. 27. Who may redeem real property so sold. — Real property sold as provided in the last preceding section, or any part thereof sold separately, may be redeemed in the manner hereinafter provided, by the following persons: (a) The judgment obligor, or his successor in interest in the whole or any part of the property; (b) A creditor having a lien by virtue of an attachment, judgment or mortgage on the property sold, or on some part thereof, subsequent to the lien under which the property was sold. Such redeeming creditor is termed a redemptioner. (29a) Real property sold, or any part thereof sold separately, may be redeemed by the following persons: 1. judgment obligor, or his successor in interest in the whole or any part of the property; 2. Redemptioner – a creditor having a lien by virtue of an attachment, judgment or mortgage on the property sold, or on some part thereof, subsequent to the lien under which the property was sold Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

A mortgagee can be a redemptioner even if his mortgage has not yet matured, but his mortgage contract must have been executed after the entry of judgment. de Leon: Note that in judicial foreclosure sale, generally there is no right of redemption, only equity of redemption. In sale of estate property to pay off debts of the estate, there is no redemption at all. Only in extrajudicial foreclosure sale and sale on execution is there the right of redemption. Sec. 28. Time and manner of, and amounts payable on, successive redemptions; notice to be given and filed. — The judgment obligor, or redemptioner, may redeem the property from the purchaser, at any time within one (1) year from the date of the registration of the certificate of sale, by paying the purchaser the amount of his purchase, with one per centum per month interest thereon in addition, up to the time of redemption, together with the amount of any assessments or taxes which the purchaser may have paid thereon after purchase, and interest on such last named amount at the same rate; and if the purchaser be also a creditor having a prior lien to that of the redemptioner, other than the judgment under which such purchase was made, the amount of such other lien, with interest. Property so redeemed may again be redeemed within sixty (60) days after the last redemption upon payment of the sum paid on the last redemption, with two per centum thereon in addition, and the amount of any assessments or taxes which the last redemptioner may have paid thereon after redemption by him, with interest on such last-named amount, and in addition, the amount of any liens held by said last redemptioner prior to his own, with interest. The property may be again, and as often as a redemptioner is so disposed, redeemed from any previous redemptioner within sixty (60) days after the last redemption, on paying the sum paid on the last previous redemption, with two per centum thereon in addition, and the Mark de Leon, JD 2001 - 194 -

amounts of any assessments or taxes which the last previous redemptioner paid after the redemption thereon, with interest thereon, and the amount of any liens held by the last redemptioner prior to his own, with interest. Written notice of any redemption must be given to the officer who made the sale and a duplicate filed with the registry of deeds of the place, and if any assessments or taxes are paid by the redemptioner or if he has or acquires any lien other than that upon which the redemption was made, notice thereof must in like manner be given to the officer and filed with the registry of deeds; if such notice be not filed, the property may be redeemed without paying such assessments, taxes, or liens. (30a) The judgment obligor, or redemptioner, may redeem the property from the purchaser 1. at any time within 1 year from the date of the registration of the certificate of sale 2. by paying the purchaser a. the amount of his purchase b. amount of any assessments or taxes which the purchaser may have paid after purchase c. if the purchaser be also a creditor having a prior lien to that of the redemptioner, other than the judgment under which such purchase was made, the amount of such other lien d. with 1% per month interest up to the time of redemption 3. Property redeemed may again be redeemed within 60 days after the last redemption by a redemptioner, upon payment of Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

a. the sum paid on the last redemption, with additional 2% b. the amount of any assessments or taxes which the last redemptioner may have paid thereon after redemption by him, with interest c. the amount of any liens held by said last redemptioner prior to his own, with interest. 4. The property may be again, and as often as a redemptioner is so disposed, similarly redeemed from any previous redemptioner within 60 days after the last redemption 5. Written notice of any redemption must be given to the officer who made the sale and a duplicate filed with the registry of deeds of the place 6. if any assessments or taxes are paid by the redemptioner or if he has or acquires any lien other than that upon which the redemption was made, notice thereof must in like manner be given to the officer and filed with the registry of deeds 7. if such notice be not filed, the property may be redeemed without paying such assessments, taxes, or liens. Sec. 29. Effect of redemption by judgment obligor, and a certificate to be delivered and recorded thereupon; to whom payments on redemption made. — If the judgment obligor redeems, he must make the same payments as are required to effect a redemption by a redemptioner, whereupon, no further redemption shall be allowed and he is restored to his estate. The person to whom the redemption payment is made must execute and deliver to him a certificate of redemption acknowledged before a notary public or other officer authorized to take acknowledgments of conveyances of real property. Such certificate must be filed and recorded in the registry of deeds of Mark de Leon, JD 2001

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the place in which the property is situated, and the registrar of deeds must note the record thereof on the margin of the record of the certificate of sale. The payments mentioned in this and the last preceding sections may be made to the purchaser or redemptioner, or for him to the officer who made the sale. (31a) If the judgment obligor redeems 1. he must make the same payments as are required to effect a redemption by a redemptioner

thereof, certified by the registrar of deeds; or an original or certified copy of any assignment necessary to establish his claim; and an affidavit executed by him or his agent, showing the amount then actually due on the lien. (32a) A redemptioner must produce to the officer, or person from whom he seeks to redeem, and serve with his notice to the officer 1. either

2. no further redemption shall be allowed and he is restored to his estate

a. a copy of the judgment or final order under which he claims the right to redeem, certified by the clerk of the court wherein the judgment or final order is entered; or

3. The person to whom the redemption payment is made must execute and deliver to him a certificate of redemption

b. if he redeems upon a mortgage or other lien, a memorandum of the record thereof, certified by the registrar of deeds; or

a. acknowledged before a notary public or other officer authorized to take acknowledgments of conveyances of real property

c. an original or certified copy of any assignment necessary to establish his claim

b. filed and recorded in the registry of deeds of the place in which the property is situated

2. and an affidavit executed by him or his agent, showing the amount then actually due on the lien.

4. the registrar of deeds must note the record thereof on the margin of the record of the certificate of sale.

Sec. 31. Manner of using premises pending redemption; waste restrained. — Until the expiration of the time allowed for redemption, the court may, as in other proper cases, restrain the commission of waste on the property by injunction, on the application of the purchaser or the judgment obligee, with or without notice; but it is not waste for a person in possession of the property at the time of the sale, or entitled to possession afterwards, during the period allowed for redemption, to continue to use it in the same manner in which it was previously used; or to use it in the ordinary course of husbandry; or to make the necessary repairs to buildings thereon while he occupies the property. (33a)

5. The payments may be made to the purchaser or redemptioner, or for him to the officer who made the sale. Sec. 30. Proof required of redemptioner. — A redemptioner must produce to the officer, or person from whom he seeks to redeem, and serve with his notice to the officer a copy of the judgment or final order under which he claims the right to redeem, certified by the clerk of the court wherein the judgment or final order is entered; or, if he redeems upon a mortgage or other lien, a memorandum of the record Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

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Until the expiration of the time allowed for redemption, the court may restrain the commission of waste on the property 1. by injunction 2. on the application of the purchaser or the judgment obligee 3. with or without notice 4. it is not waste for a person in possession of the property at the time of the sale, or entitled to possession afterwards, during the period allowed for redemption, to a. continue to use it in the same manner in which it was previously used; or b. use it in the ordinary course of husbandry; or c. make the necessary repairs to buildings thereon while he occupies the property Sec. 32. Rents, earnings and income of property pending redemption. — The purchaser or a redemptioner shall not be entitled to receive the rents, earnings and income of the property sold on execution, or the value of the use and occupation thereof when such property is in the possession of a tenant. All rents, earnings and income derived from the property pending redemption shall belong to the judgment obligor until the expiration of his period of redemption. (34a) The purchaser or a redemptioner shall not be entitled to receive 1. the rents, earnings and income of the property sold on execution, or 2. the value of the use and occupation thereof when such property is in the possession of a tenant. Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

All rents, earnings and income derived from the property pending redemption shall belong to the judgment obligor until the expiration of his period of redemption. Sec. 33. Deed and possession to be given at expiration of redemption period; by whom executed or given. — If no redemption be made within one (1) year from the date of the registration of the certificate of sale, the purchaser is entitled to a conveyance and possession of the property; or, if so redeemed whenever sixty (60) days have elapsed and no other redemption has been made, and notice thereof given, and the time for redemption has expired, the last redemptioner is entitled to the conveyance and possession; but in all cases the judgment obligor shall have the entire period of one (1) year from the date of the registration of the sale to redeem the property. The deed shall be executed by the officer making the sale or by his successor in office, and in the latter case shall have the same validity as though the officer making the sale had continued in office and executed it. Upon the expiration of the right of redemption, the purchaser or redemptioner shall be substituted to and acquire all the rights, title, interest and claim of the judgment obligor to the property as of the time of the levy. The possession of the property shall be given to the purchaser or last redemptioner by the same officer unless a third party is actually holding the property adversely to the judgment obligor. (35a) In all cases the judgment obligor shall have the entire period of 1 year from the date of the registration of the sale to redeem the property. The purchaser is entitled to a conveyance and possession of the property if no redemption be made within 1 year from the date of the registration of the certificate of sale. Mark de Leon, JD 2001

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The last redemptioner is entitled to the conveyance and possession of the property 1. whenever 60 days have elapsed 2. no other redemption has been made, and 3. notice thereof given, and 4. the time for redemption has expired If the purchaser or last redemptioner is entitled to the conveyance and possession of the property 1. The deed shall be executed by the officer making the sale or by his successor in office

motion, have the original judgment revived in his name for the whole price with interest, or so much thereof as has been delivered to the judgment obligor. The judgment so revived shall have the same force and effect as an original judgment would have as of the date of the revival and no more. (36a) Requisites for purchaser on execution of real property to recovery price or revive judgment 1. the purchaser of real property sold on execution, or his successor in interest, either a. fails to recover the possession thereof, or b. is evicted because of 1)

2. Upon the expiration of the right of redemption, he shall be substituted to and acquire all the rights, title, interest and claim of the judgment obligor to the property as of the time of the levy.

or

3. The possession of the property shall be given to the purchaser or last redemptioner by the same officer unless a 3rd party is actually holding the property adversely to the judgment obligor. Sec. 34. Recovery of price if sale not effective; revival of judgment. — If the purchaser of real property sold on execution, or his successor in interest, fails to recover the possession thereof, or is evicted therefrom, in consequence of irregularities in the proceedings concerning the sale, or because the judgment has been reversed or set aside, or because the property sold was exempt from execution, or because a third person has vindicated his claim to the property, he may on motion in the same action or in a separate action recover from the judgment obligee the price paid, with interest, or so much thereof as has not been delivered to the judgment obligor; or he may, on Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

irregularities in the proceedings concerning the sale,

2)

the judgment has been reversed or set aside, or

3)

the property sold was exempt from execution, or

4)

a third person has vindicated his claim to the property

2. Either a. on motion in the same action or in a separate action recover from the judgment obligee 1) 2)

the price paid, with interest, or so much thereof as has not been delivered to the judgment obligor; or

b. on motion have the original judgment revived in his name Mark de Leon, JD 2001 - 198 -

1) 2)

for the whole price with interest, or so much thereof as has been delivered to the judgment obligor.

The judgment so revived shall have the same force and effect as an original judgment would have as of the date of the revival and no more. Sec. 35. Right to contribution or reimbursement. — When property liable to an execution against several persons is sold thereon, and more than a due proportion of the judgment is satisfied out of the proceeds of the sale of the property of one of them, or one of them pays, without a sale, more than his proportion, he may compel a contribution from the others; and when a judgment is upon an obligation of one of them, as security for another, and the surety pays the amount, or any part thereof, either by sale of his property or before sale, he may compel repayment from the principal. (37a) When a judgment obligor can compel contribution from other judgment obligors 1. more than a due proportion of the judgment is satisfied out of the proceeds of the sale on execution of the property of one of the judgment obligors, or 2. a judgment obligor pays, without a sale, more than his proportion Requisites for a judgment obligor to claim reimbursement from other judgment obligors 1. a judgment is upon an obligation of one of them, as security for another 2. the surety pays the amount, or any part thereof

Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

Sec. 36. Examination of judgment obligor when judgment unsatisfied. — When the return of a writ of execution issued against property of a judgment obligor, or any one of several obligors in the same judgment, shows that the judgment remains unsatisfied, in whole or in part, the judgment obligee, at any time after such return is made, shall be entitled to an order from the court which rendered the said judgment, requiring such judgment obligor to appear and be examined concerning his property and income before such court or before a commissioner appointed by it, at a specified time and place; and proceedings may thereupon be had for the application of the property and income of the judgment obligor towards the satisfaction of the judgment. But no judgment obligor shall be so required to appear before a court or commissioner outside the province or city in which such obligor resides or is found. (38a) Requisites for other property and income of the judgment obligor may be applied to a judgment against a property of the judgment obligor 1. When the return of a writ of execution issued against property shows that the judgment remains unsatisfied, in whole or in part, 2. an order from the court requiring such judgment obligor to appear and be examined concerning his property and income a. before such court or before a commissioner appointed by it b. at a specified time and place But no judgment obligor shall be so required to appear before a court or commissioner outside the province or city in which such obligor resides or is found. Sec. 37. Examination of obligor of judgment obligor. — When the return of a writ of execution against the property of a judgment obligor shows that the judgment remains unsatisfied, in whole or in Mark de Leon, JD 2001

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part, and upon proof to the satisfaction of the court which issued the writ, that a person, corporation, or other juridical entity has property of such judgment obligor or is indebted to him, the court may, by an order, require such person, corporation, or other juridical entity, or any officer or member thereof, to appear before the court or a commissioner appointed by it, at a time and place within the province or city where such debtor resides or is found, and be examined concerning the same. The service of the order shall bind all credits due the judgment obligor and all money and property of the judgment obligor in the possession or in the control of such person, corporation, or juridical entity from the time of service; and the court may also require notice of such proceedings to be given to any party to the action in such manner as it may deem proper. (39a) Procedure for Examination of obligor of judgment obligor 1. When the return of a writ of execution against the property shows that the judgment remains unsatisfied, in whole or in part, and 2. upon proof to the satisfaction of the court which issued the writ, that a person, corporation, or other juridical entity has property of such judgment obligor or is indebted to him, 3. the court may, by an order, require such person, corporation, or other juridical entity, or any officer or member thereof, a. to appear before the court or a commissioner appointed by it, b. at a time and place within the province or city where such debtor resides or is found, and c. be examined concerning the same. 4. The service of the order shall bind Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

a. all credits due the judgment obligor and b. all money and property of the judgment obligor in the possession or in the control of such person, corporation, or juridical entity from the time of service 5. the court may also require notice of such proceedings to be given to any party to the action in such manner as it may deem proper. In case the person denies the judgment obligor’s ownership of the property in his possession, cf Rule 39, Sec. 43 Sec. 43. Proceedings when indebtedness denied or another person claims the property. — If it appears that a person or corporation, alleged to have property of the judgment obligor or to be indebted to him, claims an interest in the property adverse to him or denies the debt, the court may authorize, by an order made to that effect, the judgment obligee to institute an action against such person or corporation for the recovery of such interest or debt, forbid a transfer or other disposition of such interest or debt within one hundred twenty (120) days from notice of the order, and may punish disobedience of such order as for contempt. Such order may be modified or vacated at any time by the court which issued it, or by the court in which the action is brought, upon such terms as may be just. Sec. 38. Enforcement of attendance and conduct of examination. — A party or other person may be compelled, by an order or subpoena, to attend before the court or commissioner to testify as provided in the two preceding sections, and upon failure to obey such order or subpoena or to be sworn, or to answer as a witness or to subscribe his deposition, may be punished for contempt as in other cases. Examinations shall not be unduly prolonged, but the proceedings may be adjourned from time to time, until they are completed. If the Mark de Leon, JD 2001

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examination is before a commissioner, he must take it in writing and certify it to the court. All examinations and answers before a court or commissioner must be under oath, and when a corporation or other juridical entity answers, it must be on the oath of an authorized officer or agent thereof. (40a) Enforcement of attendance and conduct of examination 1. Any person may be compelled, by an order or subpoena, to attend before the court or commissioner to testify 2. he may be punished for contempt upon failure to a. obey such order or subpoena or b. be sworn, or c. answer as a witness or d. subscribe his deposition 3. Examinations shall not be unduly prolonged, but the proceedings may be adjourned from time to time, until they are completed. 4. If the examination is before a commissioner, he must take it in writing and certify it to the court. 5. All examinations and answers before a court or commissioner must be under oath, and when a corporation or other juridical entity answers, it must be on the oath of an authorized officer or agent thereof. Sec. 39. Obligor may pay execution against obligee. — After a writ of execution against property has been issued, a person indebted to the judgment obligor may pay to the sheriff holding the writ of execution the amount of his debt or so much thereof as may be Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

necessary to satisfy the judgment, in the manner prescribed in section 9 of this Rule, and the sheriff’s receipt shall be a sufficient discharge for the amount so paid or directed to be credited by the judgment obligee on the execution. (41a) Requisites for sheriff’s receipt to be a sufficient discharge of the judgment obligor’s obligor for the amount so paid or directed to be credited by the judgment obligee on the execution 1. After a writ of execution against property has been issued 2. a person indebted to the judgment obligor 3. pays to the sheriff holding the writ of execution the amount of his debt or so much thereof as may be necessary to satisfy the judgment Sec. 40. Order for application of property and income to satisfaction of judgment. — The court may order any property of the judgment obligor, or money due him, not exempt from execution, in the hands of either himself or another person, or of a corporation or other juridical entity, to be applied to the satisfaction of the judgment, subject to any prior rights over such property. If, upon investigation of his current income and expenses, it appears that the earnings of the judgment obligor for his personal services are more than necessary for the support of his family, the court may order that he pay the judgment in fixed monthly installments, and upon his failure to pay any such installment when due without good excuse, may punish him for indirect contempt. (42a) Requisites for property applied to satisfaction of judgment via court order 1. properties not exempt from execution, either Mark de Leon, JD 2001

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a. property of the judgment obligor b. or money due him 2. in the hands of either a. himself or b. another person, or c. a corporation or d. other juridical entity, 3. subject to any prior rights over such property. Requisites for the court to order the judgment obligor to pay the judgment in fixed monthly installments 1. upon investigation of his current income and expenses 2. the earnings of the judgment obligor for his personal services are more than necessary for the support of his family Upon his failure to pay any such installment when due without good excuse, he may be punished for indirect contempt. Sec. 41. Appointment of receiver. — The court may appoint a receiver of the property of the judgment obligor; and it may also forbid a transfer or other disposition of, or any interference with, the property of the judgment obligor not exempt from execution. (43a) As to the properties of the judgment obligor not exempt from execution, the court may 1. appoint a receiver, and Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

2. also forbid a. a transfer or b. other disposition, or c. any interference Sec. 42. Sale of ascertainable interest of judgment obligor in real estate. — If it appears that the judgment obligor has an interest in real estate in the place in which proceedings are had, as mortgagor or mortgagee or otherwise, and his interest therein can be ascertained without controversy, the receiver may be ordered to sell and convey such real estate or the interest of the obligor therein; and such sale shall be conducted in all respects in the same manner as is provided for the sale of real estate upon execution, and the proceedings thereon shall be approved by the court before the execution of the deed. (44a) Requisites for a receiver to be ordered to sell and convey interest of the judgment obligor in real estate 1. the judgment obligor has an interest in real estate in the place in which proceedings are had, and 2. his interest therein can be ascertained without controversy, 3. such sale shall be conducted in all respects in the same manner as is provided for the sale of real estate upon execution 4. proceedings thereon shall be approved by the court before the execution of the deed. Sec. 43. Proceedings when indebtedness denied or another person claims the property. — If it appears that a person or corporation, alleged to have property of the judgment obligor or to be indebted to Mark de Leon, JD 2001 - 202 -

him, claims an interest in the property adverse to him or denies the debt, the court may authorize, by an order made to that effect, the judgment obligee to institute an action against such person or corporation for the recovery of such interest or debt, forbid a transfer or other disposition of such interest or debt within one hundred twenty (120) days from notice of the order, and may punish disobedience of such order as for contempt. Such order may be modified or vacated at any time by the court which issued it, or by the court in which the action is brought, upon such terms as may be just. (45a) If it appears that a person or corporation, alleged to have property of, or is indebted to the judgment obligor, claims an interest in the property adverse to the judgment obligor or denies the debt, the court may 1. authorize the judgment obligee to institute an action against such person or corporation for the recovery of such interest or debt 2. forbid a transfer or other disposition of such interest or debt within 120 days from notice of the order, and 3. punish disobedience of such order as contempt. Such order may be modified or vacated at any time by the court which issued it, or by the court in which the action is brought, upon such terms as may be just. Sec. 44. Entry of satisfaction of judgment by clerk of court. — Satisfaction of a judgment shall be entered by the clerk of court in the court docket, and in the execution book, upon the return of a writ of execution showing the full satisfaction of the judgment, or upon the filing of an admission to the satisfaction of the judgment executed and acknowledged in the same manner as a conveyance of real property by the judgment obligee or by his counsel unless a revocation of his authority is filed, or upon the endorsement of such Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

admission by the judgment obligee or his counsel on the face of the record of the judgment. (46a) When clerk of court may enter in the court docket and in the execution book the satisfaction of a judgment 1. upon the return of a writ of execution showing the full satisfaction of the judgment, or 2. upon the filing of an admission to the satisfaction of the judgment executed and acknowledged in the same manner as a conveyance of real property by a. the judgment obligee or b. by his counsel, unless a revocation of his authority is filed, or 3. upon the endorsement of such admission by the judgment obligee or his counsel on the face of the record of the judgment. Sec. 45. Entry of satisfaction with or without admission. — Whenever a judgment is satisfied in fact, or otherwise than upon an execution, on demand of the judgment obligor, the judgment obligee or his counsel must execute and acknowledge, or indorse, an admission of the satisfaction as provided in the last preceding section, and after notice and upon motion the court may order either the judgment obligee or his counsel to do so, or may order the entry of satisfaction to be made without such admission. (47a) Whenever a judgment is satisfied in fact, or otherwise than upon an execution, 1. on demand of the judgment obligor, 2. the judgment obligee or his counsel must execute and acknowledge, or indorse, an admission of the satisfaction Mark de Leon, JD 2001 - 203 -

3. If not, after notice and upon motion the court may order a. either the judgment obligee or his counsel to do so, or b. the entry of satisfaction to be made without such admission. Sec. 46. When principal bound by judgment against surety. — When a judgment is rendered against a party who stands as surety for another, the latter is also bound from the time that he has notice of the action or proceeding, and an opportunity at the surety’s request to join in the defense. (48a) Requisites for principal to be bound by judgment against surety 1. a judgment is rendered against a party who stands as surety for another 2. principal has a. notice of the action or proceeding b. an opportunity at the surety’s request to join in the defense cf Rule 9, Sec. 2 Sec. 2. Compulsory counterclaim, or cross-claim, not set up barred. — A compulsory counterclaim, or a cross-claim, not set up shall be barred. (4a) Sec. 47. Effect of judgments or final orders. — The effect of a judgment or final order rendered by a court of the Philippines, having jurisdiction to pronounce the judgment or final order, may be as follows: (a) In case of a judgment or final order against a specific thing, or in respect to the probate of a will, or the administration of the estate Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

of a deceased person, or in respect to the personal, political, or legal condition or status of a particular person or his relationship to another, the judgment or final order is conclusive upon the title to the thing, the will or administration, or the condition, status or relationship of the person; however, the probate of a will or granting of letters of administration shall only be prima facie evidence of the death of the testator or intestate; (b) In other cases, the judgment or final order is, with respect to the matter directly adjudged or as to any other matter that could have been raised in relation thereto, conclusive between the parties and their successors in interest by title subsequent to the commencement of the action or special proceeding, litigating for the same thing and under the same title and in the same capacity; and (c) In any other litigation between the same parties or their successors in interest, that only is deemed to have been adjudged in a former judgment or final order which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto. (49a) Memorize requisites of res judicata! Effect of judgment or final order 1. against a specific thing – conclusive upon the title to the thing 2. in respect to the probate of a will, or the administration of the estate of a deceased person – conclusive upon the will or administration, but only prima facie evidence of the death of the testator or intestate 3. in respect to the personal, political, or legal condition or status of a particular person or his relationship to another - conclusive upon the condition, status or relationship of the person Mark de Leon, JD 2001

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4. Res judicata: conclusive between the parties and their successors in interest by title subsequent to the commencement of the action or special proceeding, litigating for the same thing and under the same title and in the same capacity, with respect to

2. against a person – presumptive evidence of a right as between the parties and their successors in interest by a subsequent title. 3. In either case – may be repelled by evidence of

a. the matter directly adjudged or

a. want of jurisdiction

b. any other matter that could have been raised in relation thereto

b. want of notice to the party

5. In any other litigation between the same parties or their successors in interest – that only is deemed to have been adjudged in a former judgment or final order a. which appears upon its face to have been so adjudged, or b. which was actually and necessarily included therein or necessary thereto Sec. 48. Effect of foreign judgments or final orders. — The effect of a judgment or final order of a tribunal of a foreign country, having jurisdiction to render the judgment or final order is as follows: (a) In case of a judgment or final order upon a specific thing, the judgment or final order is conclusive upon the title to the thing; and (b) In case of a judgment or final order against a person, the judgment or final order is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title. In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact. (50a) Effect of foreign judgments or final orders 1. upon a specific thing – conclusive upon the title to the thing; and Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

c. collusion d. fraud, or e. clear mistake of law or fact CASES ENGINEERING CONSTRUCTION V. NPC, 163 SCRA 9 (1988) FACTS ECI filed a complaint for damages against NPC in the Manila CFI alleging that it suffered damages to its facilities and equipment due to inundation of its campsite as a direct result of the improper and careless opening by NPC of the spillway gates of Angat Dam at the height of typhoon Welming. CFI found NPC guilty of gross negligence and ruled NPC to pay the damages. NPC filed a notice of appeal from the decision. Before NPC could perfect its appeal, ECI moved for and was granted execution pending appeal upon posting a covering bond to fully answer for whatever damages NPC might incur by reason of the premature execution of the decision. Sheriff was assigned to enforce the writ of execution, garnished in favor of ECI all amount due and payable to NPC which were then in possession of MERALCO and sufficient to cover the judgment sum. Mark de Leon, JD 2001

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NPC filed a petition for certiorari with the CA after attempts to lift the order of execution proved futile and the offer of a supersedeas bond was rejected. CA set aside the orders of the CFI.

plus lapse of appeal period of other parties), and power to issue orders including execution pending appeal (before transmittal of records). The court in Ong confused perfection of appeal with loss of jurisdiction.

HELD Damages other than actual may not be executed pending appeal. Posting of a bond by itself is not ground to allow execution pending appeal.

DIRECTOR OF LANDS V. REYES, 68 SCRA 177 (1975) OK

ONG V. CA, 203 SCRA 38 (1991) OK Posting of a bond is not good reason for ordering execution pending appeal. To consider the mere posting of a bond a 'good reason' would make execution pending appeal routinary, the rule rather than the exception. That appeal is frivolous and dilatory is not good reason either because it is not proper for the trial court to find that an appeal is frivolous. The power to deem an appeal as frivolous pertains to the appellate court. “Good reason” must constitute superior circumstances demanding urgency which will outweigh the injury or damages should the losing party secure a reversal of the judgment. In cases where appeal is taken, the perfection of the appeal shall be upon the expiration of the last day to appeal by any party. What determines perfection of the appeal is the expiration of the reglementary period for appeal for all parties. The mere filing of appellant's notice of appeal does not divest the trial court of its jurisdiction. The court may still take cognizance of the other party's MfR, MNT, or a motion for execution pending appeal, provided such motions are filed within 15 days from said party's notice of the decision. de Leon: Don’t be confused with Ong’s reference to expiration of a period to appeal as determinant of perfection of an appeal. Rule 42, Sec. 9 clearly provides for distinctions as to when appeal is perfected (filing of timely notice of appeal), court loses jurisdiction (perfection of an appeal Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

Execution pending appeal is not applicable in a land registration proceeding. A decree shall be issued only after the decision adjudicating the title becomes final and executory. Failure to serve notice of appeal to a party is not fatal where such party was subsequently furnished with copies of the record on appeal which included the notice of appeal. Furthermore, though a party did not receive a notice of appeal, the judgment does not become executory, where notice of appeal was served on other co-parties and the judgment is not severable as to the parties. ARANDA V. CA, 186 SCRA 456 (1990) OK When a judgment is executed pending appeal and subsequently overturned in the appellate court, the party who moved for immediate execution should be required to make specific restitution of such property of the prevailing party as he may have acquired at the execution sale. The appellate court need not specify in the judgment of reversal that there should be restitution of the properties. Such restoration is expressly provided in the Rules in such situations and should apply in the absence of any contrary disposition in the final judgment of the appellate court. If specific restitution becomes impracticable, the losing party in the execution becomes liable for the full value of the property at the time of its seizure, with interest.

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CANONIZADO V. BENITEZ, 127 SCRA 610 (1984) FACTS HELD A judgment for support is a continuing obligation which does not become dormant by the mere lapse of the 5 year period from entry. A judgment for support can always be executed by mere motion. GAA V. CA, 140 SCRA 304 (1985) OK Facts: Gaa was employed by El Grande Hotel. Her salary was garnished pursuant to a final judgment. She argues that her salary is exempt from execution under Art. 1708 of the Civil Code which provides “The laborer's wage shall not be subject to execution or attachment, xxx .” The motion was denied. Held: Article 1708 used the word "wages" and not "salary" in relation to "laborer" when it declared what are to be exempted from attachment and execution. The term "wages" applies to the compensation for manual labor, skilled or unskilled, paid at stated times, and measured by the day, week, month, or season. "Salary" denotes a higher degree of employment, or a superior grade of services, and implies a position of office. “Wages" indicates considerable pay for a lower and less responsible character of employment, while "Salary" is suggestive of a larger and more important service. “Labor” only applies to one engaged in some form of manual or physical labor. Gaa is definitely not within that class. It is beyond dispute that Gaa is not an ordinary or rank and file laborer but "a responsibly place employee," of El Grande Hotel, "responsible for planning, directing, controlling, and coordinating the activities of all housekeeping personnel" so as to ensure the cleanliness, maintenance and orderliness of all guest rooms, function rooms, public areas, and the surroundings of the hotel. Considering the importance of Gaa’s function in El Grande Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

Hotel, it is undeniable that Gaa is occupying a position equivalent to that of a managerial or supervisory position. Gaa is not a laborer, and neither is the money she receives from El Grande Hotel “wages” that are exempt from execution. de Leon: Note that Rule 39, Sec. 13 (i) exempts “So much of the salaries, wages, or earnings of the judgment obligor of his personal services within the four months preceding the levy as are necessary for the support of his family.” Hence, even salaries like Gaa’s are exempt for 4 months preceding the levy as far as necessary for the support of judgment obligor’s family. Beyond these 4 months or beyond those covering support of his family, salaries are no longer exempt. Wages, on the other hand, are always exempt, regardless of time and support required. PENTAGON SECURITY V. JIMENEZ, 192 SCRA 492 (1990) OK Facts: Pentagon Security is a single proprietorship engaged in security services. It was ordered by the NLRC to pay money representing wages and COLA differentials due its employees. A notice of garnishment was issued. Deputy Sheriff issued a Notice of Levy and Sale on Execution of the licensed firearms of Pentagon. Pentagon filed an urgent petition to quash Notice of Levy and Sale on Execution, claiming exemption from execution under the group “tools and implements necessarily used by him in his trade or employment.” This was denied. Held: The term "tools and implements" refers to instruments of husbandry or manual labor needed by an artisan craftsman or laborer to obtain his living. Pentagon is a business enterprise. It does not use the firearms personally, but they are used by its employees. Not being a natural person, Pentagon cannot claim that the firearms are necessary Mark de Leon, JD 2001

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for its livelihood. The exemption contemplated by the provision involved is personal, available only to a natural person. CASANOVA V. LACSAMANA, 90 SCRA 68 (1979) Facts: Defendant was sought to be ejected even without hearing and opportunity remove his improvements. Held: An order of demolition issued without hearing and without granting the judgment obligor a reasonable time within which to remove the improvements he constructed on the property subject of execution is null and void. The officer called upon to enforce a final judgment involving delivery or restitution of property may do so by placing the judgment obligee in possession of such property but the official shall not destroy, demolish or remove the improvements made by the judgment obligor on the property except by special order of the court which may only issue upon petition of the judgment obligee, after due hearing, and upon the failure of the judgment obligor to remove the improvements within a reasonable time fixed by the court. Judgment obligor’s improvements could not be removed pending judgment obligee’s recourse to the court for a special order. ARABAY V. SALVADOR, 82 SCRA 138 (1978) A 3rd party claiming the properties levied on execution can assert his claim in a separate action. Where the court in such separate action enjoins the auction sale of properties levied on execution, such does not constitute interference with the processes of another court. When the sheriff acting beyond the bounds of his authority, seizes a strangers property, the writ of injunction, which is issued to stop the auction sale of that property, is not an interference with the writ of execution issued by another court because the writ of execution was improperly implemented by the sheriff. Under the writ, he could attach the property Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM

of the judgment debtor. He is not authorized to levy upon the property of the 3rd-party claimant. FILINVEST V. IAC, 207 SCRA 59 (1992) Res judicata has two aspects. The first is the effect of a judgment as a bar to the prosecution of a second action upon the same claim, demand or cause of action. The second aspect is that it precludes relitigation of a particular fact or issues in another action between the same parties on a different claim or cause of action. (MEMORIZE!) Thus, a party by varying the form of action or method of case presentation cannot escape the effect of the principle of res judicata nor can a party avoid an estoppel of a former judgment by bringing forward in a second action new or additional grounds in support of his case or defense or new arguments to sustain it, the facts remaining the same at least where such additional matter could have been pleaded and adjudicated in the prior action. ANTICAMARA V. ONG, 82 SCRA 337 (1978) In order that there may be res judicata it is required (a) that the former judgment must be final; (b) that is must have been rendered by a court of competent jurisdiction; (c) that it must be a judgment on the merits, and (d) that between that first and second actions, there should be identity of parties, subject-matter and cause of action. The joining of new parties to a second action does not remove the case from the operation of the doctrines of res judicata if the party against whom judgment is offered in evidence was a party in the first action and had a community of interest with the new parties. The principle of res judicata does not require absolute identity, but only substantial identity of parties, subject-matter and issues.

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PAL V. CA, 181 SCRA 557 (1990) An alias writ of execution may be issued even without a prior return on the original writ by the implementing officer (e.g. implementing sheriff has absconded). So long as judgment is not satisfied, a judgment obligee is entitiled to other writs of execution. Payment must be made to the judgment obligee, or his authorized representative, in order to satisfy the judgment. Ordinarily, the sheriff is an authorized representative of the judgment obligee. However, if payment to the sheriff was by check, and worse, in his own name, such payment is not considered in satisfaction of the judgment. de Leon: Under Rule 39, Sec. 9 (a) checks are acceptable only if the judgment obligee or his authorized representative is present. In PAL, payment by check was in the absence of the judgment obligee, and hence not valid. In fact, the same provision provides “In no case shall the executing sheriff demand that any payment by check be made payable to him.”

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