Civil Procedure

1 CIVIL PROCEDURE RULE 1 GENERAL PROVISIONS 1.

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; may be ordinary or special

Criminal action –

one by which the state prosecutes a person for an act or omission punishable by law

Special proceeding – 2.

remedy by which a party seeks to establish a status, a right, or a particular fact

Rules of Court shall NOT be applicable to the following, except by analogy or in a suppletory character, and whenever practicable and convenient a.

Election cases;

b.

Land registration;

c.

Cadastral proceedings;

d.

Naturalization proceedings; and

e.

Insolvency proceedings

RULE 2 CAUSE OF ACTION 1.

Cause of action – an act or omission by which a party violates the right of another

2.

REQUISITES OF JOINDER OF CAUSES OF ACTION: 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 action or actions governed by special rules;

c.

Where the causes of action are between the same parties but pertain to different venues or jurisdiction, the joinder may be allowed in the RTC provided one of the causes of action falls within the jurisdiction of the RTC and the venue lies therein;

3.

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.

4.

Misjoinder of causes of action NOT a ground for dismissal; the action may, on motion or motu proprio, be severed and proceeded with separately.

RULE 3 PARTIES TO CIVIL ACTIONS 1.

CLAIMS THAT SURVIVE THE DEATH OF A PARTY: a.

Actions to recover real and personal property against the estate;

b.

Actions to enforce liens thereon;

c.

Actions to recover for injury to persons or property by reason of tort;

d.

Actions to recover money arising from contract, express or implied.

2. Death of defendant in action on contractual money claims before judgment of RTC NOT ground for dismissal. Action continues until entry of final judgment. Any judgment against estate of deceased will be enforced as money claim. Writ of preliminary attachment, if any, not dissolved. 3. REQUISITES OF PERMISSIVE JOINDER OF PARTIES:

4.

5.

a.

Right to relief arises out of the same transaction or series of transactions, whether jointly, severally, or in the alternative;

b.

There is a question of law or fact common to all the plaintiffs and defendants;

c.

Such joinder is not otherwise proscribed by the provisions of the Rules on jurisdiction and venue.

REQUISITES OF A CLASS SUIT: a.

Subject matter of the controversy is one of common or general interest to many persons;

b.

Parties affected are so numerous that it is impracticable to bring them all to the court;

c.

Parties bringing the class suit are sufficiently numerous or representative of the class and have the legal capacity to file the action.

TRANSFER OF INTEREST

2  Action may be continued by or against the original party, unless the court, on motion, directs the transferee to be substituted in the action or joined with the original party; however, if transfer is made before commencement of the action, the transferee must necessarily be the party, since only he is the real party in interest.

RULE 4 VENUE OF ACTIONS * Uniform rule on venue in RTC and MTC 1.

VENUE OF REAL ACTIONS – in the proper court which has jurisdiction over the area wherein real property involved or a portion thereof is situated.

2.

VENUE FOR FORCIBLE ENTRY AND DETAINER ACTIONS – in the MTC of the municipality or city wherein the real property or a portion thereof is situated.

3.

VENUE OF PERSONAL ACTIONS – 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. NOTE:

4.

5.

“residence” means place where party actually resides at time of action; does NOT mean permanent home or domicile.

Action against non-resident not found in the Philippines A.

ACTION AFFECTS plaintiff resides.

B.

ACTION AFFECTS ANY PROPERTY OF THE DEFENDANT property or any portion thereof is situated or found.

THE

PLAINTIFF’S PERSONAL STATUS - in the court of the place where the IN THE

PHILIPPINES - where the

Rules on Venue shall NOT apply: a.

In those case where a specific rule or law provides otherwise (e.g., civil case for damages in cases of libel, where Article 360 of RPC provides specific rules on venue); OR

b.

Where the parties have validly agreed IN WRITING before the filing of the action on the EXCLUSIVE venue thereof.  In this instance, the action can only be filed in the place agreed upon even if the other place is the place of residence of the parties or the location of the real property involved.

RULE 5 UNIFORM PROCEDURE IN TRIAL COURTS 1.

The procedure in the MTCs shall be the same as that in the RTC.

2.

Uniform Procedure shall NOT be applicable: a.

Where a particular provision expressly or impliedly applies only to either of said courts.

b.

In civil cases governed by the Rule on Summary Procedure.

RULE 6 KINDS OF PLEADINGS 1.

Negative Defense –

specific denial of the material fact or facts alleged in the pleading of the claimant essential to his cause of action.

2.

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. Includes: a.

Fraud

b.

Statute of limitations

c.

Release

d.

Payment

e.

Illegality

f.

Statue of frauds

g.

Estoppel

h.

Former recovery

i.

Discharge in bankruptcy

3 j.

Any other matter by way of confession or avoidance.

3. Compulsory counterclaim – REQUISITES: a.

Arises out of or is necessarily connected with the transaction or occurrence which is the subject matter of the opposing party’s claim;

b.

Does not require for its adjudication the presence of 3 rd parties of whom the court cannot acquire jurisdiction; and

c.

Must be within the jurisdiction of the court both as to the nature and the amount, except that in an ORIGINAL action in the RTC, the counterclaim may be considered regardless of the amount.

 Agustin vs. Bacalang A court (if MTC) has no jurisdiction to hear and determine a set-off or counterclaim in excess of its jurisdiction. A counterclaim beyond the court’s jurisdiction may only be pleaded by way of defense, the purpose of which is to defeat or weaken the plaintiff’s claim, but NOT to obtain affirmative relief. MOREOVER, the amount of judgment obtained by the defendant on appeal cannot exceed the jurisdiction of the court in which the action began. Since the trial court did not acquire jurisdiction over the counterclaim in excess of the jurisdictional amount, the appellate court likewise did not have jurisdiction over the same. In such a case, the award in excess of the jurisdiction of the trial court is void.  Calo vs. Ajax A counterclaim, even if otherwise compulsory, but amount exceeds the jurisdiction of the inferior court, will only be considered permissive. Hence, fact that it is not set-up in the inferior court will not bar plaintiff from instituting a separate action to prosecute it. RULE 7 PARTS OF A PLEADING 1. FORMAL REQUIREMENTS OF PLEADINGS: a.

Caption

b.

Title

c.

Body divided into headings and paragraphs

d.

Body divided into headings and paragraphs

e.

Signature and address

f.

Verification in some cases

2. Signature of the lawyer constitutes a certification by him that: a.

He has read pleading

b.

To the best of his knowledge, information, and belief, there is good ground to support it

c.

It is not interposed for delay.

3. HOW A PLEADING IS VERIFIED: By an affidavit stating that

4.

a.

Affiant (person verifying) has read the pleading

b.

Allegations therein are true and correct as of his personal knowledge or based on authentic records. (SC Circular 48-2000, effective May 1, 2000)

A pleading required to be verified which: a.

Contains a verification based on “information and belief”, OR

b.

Contains a verification based on “knowledge, information and belief,” OR

c.

Lacks a proper verification

 Shall be treated as an unsigned pleading. 5. What pleadings have to be verified: a.

Petition for relief from judgment (38.3)

b.

Appeal by certiorari from CA to SC (45.1)

c.

Complaint with prayer for preliminary attachment (57. 3)

d.

Complaint for injunction (58.4)

e.

Complaint for replevin (60.2)

4 f.

Petition for certiorari (65.1)

g.

Petition for prohibition (65.2)

h.

Petition for mandamus (65.3)

i.

Complaint for forcible entry or unlawful detainer (70.4)

j.

Petition for appointment of general guardian (93.2)

k.

Petition for leave to sell or encumber property of estate or guardian (95.1)

l.

Petition for declaration of competency of the ward (97.1)

m. Petition for habeas corpus (102.3) n.

Petition for change of name (103.2)

o.

Petition for voluntary dissolution of a corporation (104.1)

p.

Petition for cancellation or correction of entries in the civil registry (108.1)

q.

Petition to take deposition in perpetuam rei memoriam (before action or pending appeal) (24.2)

r.

Motion to set aside a default order of an inferior court

s.

Motion for dissolution of preliminary injunction on the ground of irreparable damage to the movant while the adverse party can be fully compensated

t.

Petition for appointment of receiver

u.

Petition for review of the decision of an RTC in cases within the exclusive original jurisdiction of the inferior court, by and elevated to the CA.

v.

Pleadings that need not be verified but must be under oath:

w. Denial of the genuineness and due execution of an actionable document (8.8) x.

Denial of allegations of usury (8.11)

y.

Answer to written interrogatories (25.2)

z.

Answer to request for admission (26.2)

aa. Notice of appeal from administrative tribunals to the CA 6.

7.

Supporting affidavits of merit required: a.

Motion to postpone for absence of evidence (30.3)

b.

Motion to postpone for illness of a party or counsel (30.4)

c.

Motion for summary judgment or opposition thereto (35.1,2,3,5)

d.

Motion for new trial on the ground of FAME or opposition thereto (37.2)

e.

Petition for relief from judgment (38.3)

f.

Third-party claim (39.16)

g.

Proof required of a redemptioner (39.30)

h.

Motion for preliminary attachment (57.3)

i.

Motion for dissolution of preliminary injunction (58.6)

j.

Application for writ of replevin (60.2)

k.

Claim against the estate of the decedent (86.9)

l.

Motion for new trial based on newly discovered evidence in criminal cases (121.4)

CERTIFICATION AGAINST FORUM-SHOPPING: Plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading or in a sworn certification annexed and filed therewith: a.

That he has not commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency; to the best of his knowledge no such other claim or action pending;

b.

If there is such other pending action, a complete statement of the present status thereof;

c.

If he should thereafter learn that same or similar action or claim is filed or pending, he shall report the same within 5 days therefrom to the court where he filed his complaint.

NOTE: FAILURE TO COMPLY NOT CURABLE BY MERE AMENDMENT OF THE COMPLAINT OR PLEADING BUT SHALL BE CAUSE FOR DISMISSAL OF THE CASE WITHOUT PREJUDICE; IF THE ACTS OF PARTY OR COUNSEL CLEARLY CONSTITUTE

5 WILLFUL & DELIBERATE FORUM SHOPPING, GROUND FOR SUMMARY DISMISSAL WITH PREJUDICE AND CONSTITUTE DIRECT CONTEMPT.  For Forum-Shopping to exist, there must be: i.

Same transactions involved;

ii. Same essential facts and circumstances; and iii. Actions raise identical cause of action, subject matter, and issues RULE 8 MANNER OF MAKING ALLEGATIONS IN PLEADINGS 1.

2.

Allegations of capacity a.

Capacity of 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 that is made a party must be averred;

b.

To raise an issue as to the legal existence of a party or the capacity of a party in a representative capacity, do so by specific denial, including such supporting particulars as are peculiarly within the pleader’s knowledge.

Action or defense based on document a.

Substance of such document set forth in the pleading;

b.

Original or copy attached to the pleading as exhibit and deemed to be part of the pleading; OR

c.

Copy may be set forth in the pleading with like effect.

3. How to contest actionable document: Genuineness and due execution of instrument deemed admitted unless adverse party: a.

Specifically denies them under oath;

b.

Sets forth what he claims to be the facts.

 Requirement of an oath does NOT apply: i.

When diverse party does not appear to be a party to the instrument; or

ii. When compliance with an order for an inspection of the original instrument is refused.  Admission of genuineness and due execution: i.

Party whose signature appears admits that he signed it, or that it was signed by another with his authority

ii. Was in words and figures as set out at the time it was signed iii. Document was delivered iv. Any formal requisites required by law which it lacks are waived by him  The following defenses are cut-off by admission of genuineness and due execution of the document: i.

Signature is a forgery

ii. Signature is unauthorized iii. Corporation is not authorized under its charter to sign the instrument iv. Party charged signed the instrument in some other capacity than that alleged in the pleading setting it out v.

Document was never delivered.

4. SPECIFIC DENIAL a.

Defendant must specify each material allegation of fact the truth of which he does not admit;

b.

Defendant must set forth the substance of the matters upon which he relies to support his denial, whenever practicable;

c.

If denying only part of an averment, he shall specify so much of it as is true and material and shall deny the remainder;

d.

If defendant does not have knowledge or information sufficient to form a belief as to the truth of a material averment, he shall so state and this has effect of denial.

 Negative pregnant –

a denial which at the same time involves an admission of the substantial facts in the pleading responded to.

6 5.

Allegations not specifically denied, other than those as to amount of unliquidated damages deemed admitted.

RULE 9 EFFECT OF FAILURE TO PLEAD 1.

General Rule:

Defenses and objections not pleaded in answer or motion to dismiss are deemed waived (Omnibus Motion Rule).

Exception: Court shall dismiss the claim, even without allegation in answer or motion to dismiss, if any of the following appear from the pleadings or the evidence on record: a.

Lack of jurisdiction over the subject matter;

b.

Litis pendentia between same parties for the same cause;

c.

Res judicata

d.

Action barred by statute of limitations.

2. DECLARATION OF DEFAULT a.

Defendant entitled to notice of motion to declare him in default and of order of default;

b.

Motion to set aside order of default may be filed after notice and before judgment;

c.

Party may make motion, under oath, to set aside order of default upon proper showing that failure to answer was due to FAME;

d.

Effect of order of default – party in default entitled to notice of subsequent proceedings but not to take part in trial;

e.

Partial default – if several defending parties and not all in default, the court shall try the case against all upon the answers thus filed and evidence presented;

f.

After declaration of default, court may render judgment on the basis of the complaint or require claimant to submit evidence;

g.

Judgment against party in default shall not exceed the amount or differ in kind from that prayed for nor award unliquidated damages;

h.

No defaults in action for annulment or declaration of nullity of marriage or for legal separation.

RULE 10 AMENDED AND SUPPLEMENTAL PLEADINGS 1.

Amendments of pleadings may be made once as a matter of right: a.

At any time before responsive pleading is served

b.

In the case of a reply, anytime within 10 days after service.

 Plaintiff may amend complaint as a matter of right even after defendant files a Motion to Dismiss, since the same is not a “responsive pleading.” 2. Substantial amendments may be made only with leave of court, except as provided above. 3. An amended pleading supersedes the pleading that it amends but admissions in superseded pleadings may be received in evidence against the pleader. (NOT judicial admissions anymore; thus, must be formally offered) 4. Claims and defenses alleged in original but not incorporated in the amended pleading shall be deemed waived. 5. Amended and Supplemental pleadings distinguished: AMENDED

SUPPLEMENTAL

Refers to facts existing at the time of the commencement of the action

Refers to facts arising after the filing of the original pleading

Results in the withdrawal of the original pleading

Merely an addition, and does NOT result in the withdrawal of, the original pleading

Can sometimes be made as a matter of right

Always filed with leave of court

RULE 11 WHEN TO FILE RESPONSIVE PLEADINGS 1. Answer to complaint – 15 days from service, unless different period fixed by the courts;

7 2. Answer of defendant foreign private juridical entity – when service of summons is made on the government official designated by law, answer to be filed within 30 days from receipt of summons by such entity. 3. Answer to amended complaint – if amended as a matter of right, 15 days from being served with copy thereof  If amended not as a matter of right, 10 days from notice of order admitting the same  Answer earlier filed may be answer to amended complaint, if no new answer is filed  Applicable to amended counterclaim, cross, third, etc, 4. Answer to counterclaim or cross-claim – within 10 days from service. 5. Answer to 3rd party complaint – 15 days from service 6. Reply – may be filed within 10 days from service of the pleading responded to RULE 12 BILL OF PARTICULARS 1. Bill of particulars a.

Period of filing motion – before responding to a pleading; if pleading is a reply, within 10 days from service thereof;

b.

Order for bill must be complied with in 10 days from notice OR period fixed by court

c.

After service of bill or denial of motion – party has balance of time he was entitled to file responsive pleading, but not less than 5 days

 Motion for Bill of Particulars may NOT call for matters which form part of the proof of the complaint. Thus, motion should not be granted if the complaint, while not very definite, nonetheless already states a sufficient cause of action. RULE 13 FILING AND SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERS 1. Kinds of service of pleadings: a.

Personal service – to be done whenever practicable (Most preferred mode)

b.

Service by mail (ordinary if no registered mail)

c.

Substituted service (delivering copy to clerk of court with proof of failure of 1st 2 modes)

 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.  Violation of rule may be cause to consider the paper as not filed. 2. Kinds of service of final orders:

3.

a.

Personal

b.

Registered mail

c.

Publication (if summons by publication)

Proof of personal service a.

Written admission of party served;

b.

Official return of the server; or

c.

Affidavit of party serving, containing a full statement of the date, place and manner of service.

RULE 14 SUMMONS 1. Contents of summons a.

Signed by the clerk under the seal of the court

b.

Name of the court and that parties to the action

c.

Direction that the defendant answer within the time fixed by these rules

d.

Notice that unless defendant so answers, plaintiff will take judgment by default

2. Kinds of service of summons: A.

PERSONAL: i.

Handing a copy to the defendant in person; OR

8 ii. If he refuses to receive and sign for it, by tendering it to him B.

SUBSTITUTED: i.

Leave copies at his residence, with person of suitable age and discretion residing therein; OR

ii. Leave copies at defendant’s office/regular place of business, with competent person in charge thereof. c.

By publication

3. By whom served: a.

Sheriff

b.

Other proper court officer

c.

Any suitable person specially authorized by the judge

4. When extraterritorial service allowed: a.

Defendant is a non-resident and is not found in the Philippines and action affects plaintiff’s personal status

b.

Subject of action is property within the Philippines in which the defendant has or claims a lien or interest

c.

Where relief demanded consists in whole or in part in excluding the defendant from any interest in such property

d.

When property of defendant has been attached within the Philippines

5. Kinds of extra territorial service a.

Personal service

b.

Publication and summons sent by registered mail to last known address

c.

Any other matter the court may deem sufficient

6. When service by publication in a newspaper of general publication allowed: a.

Identity of defendant unknown

b.

Whereabouts of defendant unknown and cannot be ascertained by diligent inquiry  (a) and (b), applies to ANY action, even actions in personam

c.

Defendant is non-resident and the suit is quasi in rem

d.

Defendant is temporarily out of the country and the suit is quasi in rem

7. Service upon private domestic juridical entity – refers to corporation, partnership, or association organized under Phil. Laws with a juridical personality: a.

President

b.

Managing partner

c.

General manager

d.

Corporate secretary

e.

Treasurer

f.

In-house counsel

8. Service upon private foreign juridical entity transacting business in the Phils: a.

Resident agent designated in accord with Law

b.

If no such agent, on government official designated by law OR

c.

On any of its officers or agents within the Phils

NOTE: IF NO RESIDENT AGENT, SERVICE OF SUMMONSES AND PROCESSES ON THE SEC. 9. Newspaper of general circulation (RA 4883, PD 1079) a.

Published for the dissemination of local news and general information

b.

Has a bona fide subscription list of subscribers

c.

Published at regular intervals

d.

Not published for nor devoted to the interest of a particular group of persons

9 e.

Must have been regularly published for at least 2 years before the date of the publication in question.

 Mere filing of an answer per se should not be automatically treated as a voluntary appearance by the defendant for the purpose of sumons. It should be noted that when the appearance of the defendant is precisely to object to the jurisdiction of the court over his person, it cannot be considered as an appearance in court. RULE 15 MOTIONS 1. All motions must be in writing except: a.

Those made in open court; OR

b.

Those made in the course of a hearing or trial.

2. Exceptions to the three-day notice rule: a.

Ex parte motion

b.

Urgent motion

c.

When court sets hearing on shorter notice for good cause

d.

Motion for summary judgment (must be served at least 10 days before the hearing)

 A prudent judge would, in the absence of the opposing party in the hearing of a motion, inquire from the other party or inquire from the records the proof of the service of notice rather than proceed with the hearing. He should not rely on a party’s undertaking to notify the adverse party of a scheduled hearing. The judge must demand what the rule requires, i.e., proof of such notice on the adverse party. Otherwise, a contentious motion should be considered a mere scrap of paper which should not have even been received for filing.  Subsequent service of the motion on the adverse party may be considered substantial compliance with the Rule 15, § 6. Failure to attach to the motion proof of service thereof to the adverse party is not fatal when the adverse party had actually received a copy of the motion and was in fact present in court when the motion was heard. RULE 16 MOTION TO DISMISS 1. Motion to Dismiss must be filed within the time for and before the filing of an answer to complaint. 2. Grounds for motion to dismiss: a.

Court has no jurisdiction over the person of the defendant- unlike old rule, inclusion in motion to dismiss of other grounds aside from lack of jurisdiction over the person does NOT constitute a waiver of the said ground or voluntary appearance;

b.

Court has no jurisdiction over the subject matter of the claim;

c.

Venue is improperly laid;

d.

Plaintiff has no legal capacity to sue;

e.

There is another action pending between the same parties for the same cause;  Requisites of litis pendentia: i.

Identity of parties/interest

ii. Identity of rights asserted and prayed for/relief founded on the same facts; iii. Identity of the 2 cases (such that judgment in one would amount to res judicata in the other) f.

Cause of action is barred by a prior judgment or by statute of limitations;  Requisites of res judicata: i.

Final judgment or order

ii. Rendered by court of competent jurisdiction iii. On the merits (even without trial, such as cases decided by Judgment on the Pleadings, Summary Judgment, or dismissed for failure to prosecute or for refusal to obey an order of the court) iv. Identity of the parties g.

Pleading asserting claim states no cause of action;

10 h.

Claim or demand in the plaintiff’s pleading has been paid, waived, abandoned, extinguished;

i.

Claim on which action is founded is unenforceable under the statute of frauds;

j.

Condition precedent for filing has not been complied with (this includes prior recourse to barangay conciliation, or failure to make attempts to reach a compromise in cases between members of the same family)

 The court shall not defer the resolution of the motion for the reason that the ground relied upon is not indubitable. 3.

Actions that court may take on a Motion to Dismiss: a.

Grant it – remedy: appeal

b.

Deny – NOT appealable; but may avail of certiorari, prohibition and mandamus

c.

Order amendment of the pleading

4.

If denied, defendant must file answer within the balance of the 15-day period, but not less than 5 days from the time he received notice of the denial;

5.

Subject to the right to appeal, dismissal based on the following grounds will be bar to refiling: a.Res judicata b.Extinguishment of claim or demand c.Prescription d.Unenforceability under the Statute of Frauds

6.

The dismissal of the complaint shall be without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer.  A motion to dismiss on the ground of failure to state a cause of action in the complaint must hypothetically admit the truth of the facts alleged in the complaint. The admission, however, is limited only to all material and relevant facts which are well pleaded in the complaint. The demurrer does not admit the truth of mere epithets charging fraud; nor allegations of legal conclusions; nor an erroneous statement of law; nor matters of evidence; nor to legally impossible facts.

RULE 17 DISMISSAL OF ACTIONS 1. Dismissal by the plaintiff a.

Notice of dismissal any time before service of the answer or a motion for summary judgment;  Dismissal is without prejudice EXCEPT on 2nd notice of dismissal, which operates as adjudication on the merits when filed by same plaintiff who has once dismissed an action based on or including said claim.

b.

If answer or motion for summary judgment already served, dismissal by a Motion for Dismissal, which shall require approval of the court; shall be without prejudice unless otherwise specified by the court  If counterclaim has been pleaded by a defendant prior to the service upon him of plaintiff’s motion to dismiss, dismissal is limited to the complaint; dismissal is without prejudice to defendant’s right to prosecute counterclaim in a separate action or, if he makes a manifestation within 15 days from notice of the motion, to prosecute CC in same action.

2. Dismissal due to plaintiff’s fault - the following must be without justifiable cause a.

If plaintiff fails to appear on the date of presentation of his evidence in chief;

b.

Plaintiff fails to prosecute claim for an unreasonable length of time

c.

Plaintiff fails to comply with the Rules of Court or any order of the court

 Complaint may be dismissed upon defendant’s motion or motu proprio.  Unless otherwise declared by the court, dismissal has effect of adjudication upon the merits. RULE ON SEVERANCE OF COMPULSORY CC: Dismissal of principal action upon plaintiff’s motion or due to plaintiff’s fault does not necessarily carry with it the dismissal of the compulsory CC; defendant is also given option to prosecute the same in same or separate action.

11 3. Dismissal of counterclaim, cross-claim, or 3 rd-party complaint – must be made by claimant before a responsive pleading or a motion for summary judgment is served, or if there is none, before the introduction of evidence. RULE 18 PRE-TRIAL 1.

What to consider in pre-trial (with notice to counsel or party without counsel) a.

Possibility of amicable settlement or arbitration

b.

Simplification of the issues

c.

Amendments to the pleadings

d.

Stipulations or admissions of facts and documents

e.

Limitation of number of witnesses

f.

Preliminary reference of issues to a commissioner

g.

Propriety of judgment on the pleadings, summary judgments, or dismissal of action

h.

Other matters for the prompt disposition of the action

2. It is the duty of the plaintiff to move ex parte for the setting of the case for pre-trial. However, if plaintiff answers the defendant’s counterclaim, it will be the latter’s duty to set the pre-trial. 3. Failure of plaintiff to appear shall be cause for dismissal of the action. Non-appearance of defendant is cause to allow plaintiff to present evidence ex parte and the court to render judgment on basis thereof. 4. Non-appearance of party excused only if: a.

A valid cause is shown therefor OR

b.

If 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,

5. Must file pre-trial brief so as to ensure that other party receives it at least 3 days before pre-trial. Failure to file brief has same effects as failure to appear at pre-trial. 6. Proceedings recorded, and court shall issue an order reciting in detail matters taken up. RULE 19 INTERVENTION 1. Grounds for intervention a.

Legal interest in the matter in litigation

b.

Interest in the success of either or both parties or interest against both

c.

Party is so situated as to be adversely affected by the distribution of the court

d.

Disposition of property in the custody of the court or of an officer thereof.

2. Motion may be filed at any time before rendition of judgment. 3. Answer to complaint-in-intervention must be filed within 15 days from notice of court admitting the complaint. 4. Motion for intervention will be granted if it will not unduly delay or prejudice adjudication of rights or original parties and if the intervenor’s rights may be fully protected in separate proceedings. 5. Complaint in intervention is merely collateral to the principal action. Hence, it will be dismissed if main action is dismissed. 6.

A complaint in intervention that seeks affirmative relief prevents a plaintiff from taking a voluntary dismissal of the main action. Such a case is not subject to dismissal upon intervenor’s petition showing him to be entitled to affirmative relief. The petition will be preserved and heard regardless of the disposition of the main action.

RULE 20 CALENDAR OF CASES 1.

Calendar of cases to be kept by clerk of court for cases set for pre-trial, trial, those whose trials adjourned or postponed and those with motions set for hearings.

2. Preference given to habeas corpus, election cases, special civil actions and those so required by law.

12 RULE 21 SUBPOENA 1. Subpoena issued by: a.

The court before whom 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 its investigations;

d.

Any Justice of the SC or CA in any case or investigation pending within the Phils

2. No prisoner sentenced to death, reclusion perpetua, or life imprisonment and who is confined in any penal institution shall be brought outside said institution for appearance or attendance in any court unless authorized by the SC. 3. Grounds for quashing subpoena duces tecum a.

It is unreasonable or oppressive

b.

The articles sought to be produced do not appear to be relevant

c.

Person asking for subpoena does not advance cost of production

4. Ground for quashing subpoena ad testificandum a.

The witness is not bound thereby – if witness resides more than 100 km from the place where he is to travel by the ordinary course of travel, or if he is a detention prisoner and no permission is obtained from the court in which his case is pending  This is known as the “viatory right” of the witness; NOTE, however, that the right is available only in CIVIL cases

b.

Witness fees and kilometrage allowed by rules not tendered when subpoena served.

5. Service of subpoena made in the same manner as personal or substituted service of summons. 6. Person present in court before a judicial officer may be required to testify as if he were in attendance upon a subpoena. 7. Failure by any person without adequate cause to obey a subpoena served upon him shall be deemed a contempt of the court from which subpoena issued. RULE 22 COMPUTATION OF TIME 1. Computing for any period of time: day of the act or event from which designated period of time begins to run is to be excluded and the date of performance included. 2. If last day of period falls on Saturday, Sunday or legal holiday in place where court sits, the time shall not run until the next working day. 3. If there is effective interruption of period, it shall start to run on the day after notice of the cessation of the cause of the interruption. The day of the act that caused the interruption is excluded in the computation of the period. RULE 23 DEPOSITIONS PENDING ACTION DEPOSITIONS DE BENE ESSE – taken for purposes of pending action 1. Depositions pending action a.

Taken by leave of court after court obtains jurisdiction over any defendant or property subject of the action

b.

Taken without leave after an answer has been served

c.

Upon the instance of any party

d.

May be deposition upon oral examination or written interrogatories

2. Scope of examination – deponent may be examined regarding any matter not privileged relevant to the subject of the action 3. Examination and cross-examination proceeds as in trials 4. Depositions and Affidavits distinguished DEPOSITIONS

AFFIDAVITS

Written testimony of witness in course of judicial proceedings, in advance of trial and hearing

Mere sworn written statements

13 Opportunity for cross-examination

No cross-examination

Can be competent testimonial evidence

Little probative value (hearsay)

5. Use of depositions  Any part or all of a deposition which is admissible in evidence may be used against any party who was present or represented during the taking of the deposition or who had notice thereof as follows: DEPOSITION OF

MAY BE USED BY

PURPOSE

A witness

Any party

To contradict or impeach the deponent’s testimony as a witness

Any party, or anyone who at the time of taking the deposition was an officer, director, or managing agent of a public or private corporation

An adverse party

For any purpose

Of any witness, whether a party or not

Any party

For any purpose, IF court finds that: a.

Witness is dead;

b. Witness resides at a distance more than 100 km from place of trial, UNLESS absence procured by party offering the deposition c. Witness is unable to testify because of age, sickness, infirmity, or imprisonment; d. Party offering the deposition has been unable to procure the attendance of the witness by subpoena; OR e. Other exceptional circumstances make it desirable to allow deposition to be used.  Deponent is made the witness of the party offering the deposition.  If only part of the deposition is introduced, adverse party may require that all of it which is relevant to the part introduced be introduced. 6.

Persons before whom depositions may be taken a.

Within the Philippines i.

Judge

ii. Notary public iii. Any person authorized to administer oaths if the parties so stipulate in writing b.

In foreign countries i.

On notice, before a secretary of any embassy or legation, consul-general, consul, viceconsul, consular agent of the Phils

ii. Before such person or officer as may be appointed by commission or under lettersrogatories iii. Any person authorized to administer oaths if the parties so stipulate. Commission – addressed to any authority in a foreign country authorized therein to take down depositions; the taking of such depositions is subject to the rules laid down by the court issuing the commission Letters Rogatory – addressed to judicial authority in the foreign country; the taking of the depositions is subject to the rules laid down by such foreign judicial authority. 7.

Persons disqualified to take depositions a.

Relative within 6th degree of consanguinity or affinity of any party

b.

Employee of any party

14

8.

c.

Counsel of any party

d.

Relative within the same degree of party’s counsel

e.

Employee of party’s counsel

f.

Anyone financially interested in the action

Depositions upon written interrogatories  Party desiring to take such deposition 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 and descriptive title of the officer before whom the deposition is to be taken;  Party so served may serve cross-interrogatories upon the proponent within 10 days thereafter  Re-direct interrogatories served within 5 days  Re-cross interrogatories served within 3 days

9.

Effects of errors and irregularities in the depositions a.

As to notice – waived unless written objection is promptly served upon the party giving the notice

b.

As to disqualification of officer – 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 - NOT waived by failure to make them before or during the taking of the deposition, unless ground is one which might have been obviated or removed if presented at that time

d.

As to oral exam and other particulars - Errors occurring at the oral exam in the manner of taking the deposition, in the form of questions and answers, in oath or affirmation, or in conduct of parties, and errors of any kind which might be obviated, removed, cured if promptly prosecuted are waived unless reasonable objection is made at the taking of the deposition.

e.

As to form of written interrogatories - waived unless served in writing upon party propounding them within the time allowed for serving succeeding cross or other interrogatories and within 3 days after the service of the last interrogatories authorized.

f.

As to manner of preparation - errors as to 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 are waived unless a motion to suppress the deposition or some part of it is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained.

 A deposition, in keeping with its nature as a mode of discovery, should be taken before and not during trial. IN fact, the rules on criminal practice – particularly on the defense of alibi – states that when a person intends to rely on such a defense, that person must move for the taking of the deposition of his witness within the time provided for filing a pre-trial motion. RULE 24 DEPOSITIONS PENDING ACTION DEPOSITIONS IN PERPETUAM REI MEMORIAM – taken to perpetuate evidence for purposes of an anticipated action or further proceedings in a case or appeal. 1. Depositions before action A person desiring to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of the Phils may file a verified petition in the court of the place of the residence of any expected adverse party, which petition shall be entitled in the name of the petitioner and shall show: a.

That petitioner expects to be a party to an action in a court of the Phils 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 description of the persons he expects will be the adverse parties and their addresses so far as known;

15 e.

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

2. Use of deposition If deposition to perpetuate testimony is taken under this rule or if not so taken is still admissible in evidence may be used in any action involving the same subject matter subsequent brought in accordance with the provisions of Rule 23. RULE 25 INTERROGATORIES TO PARTIES 1.

Interrogatories and the answers thereto should be filed in court and served on adverse parties, so that the answers may constitute judicial admissions.

2.

Effect of failure to serve written interrogatories – a party not served with such may NOT be compelled by the adverse party to give testimony in open court or deposition pending appeal.

RULE 26 ADMISSION BY ADVERSE PARTY 1. Request for admission A written request for the admission of the other party of the genuineness of any material or document or request for the truth of any material and relevant matter of fact set forth in the request may be filed and served upon the other party at any time after issues have been joined. 2. Implied admission Each of the matter requested to be admitted shall be deemed admitted within a period designated in the request, which shall not be less than 15 days after service thereof or within such further time as the court may allow on motion, UNLESS, party requested serves upon the party requesting a sworn statement either specifically denying or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters. 3. Effect of admission Admission is only for the purpose of the pending action and shall NOT constitute an admission for any other person nor may it be used against him in any other proceeding. 4. A party who fails to file and serve a request for admission on the adverse party of material facts within the personal knowledge of the latter shall not be permitted to present evidence thereon, RULE 27 PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS 1.

Any party may move for the court in which the action is pending to order any party to: a.

Produce and permit the inspection and copying or photographing of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, not privileged, which: i.

Constitute or contain evidence material to any matter involved in the action AND

ii. Are in his possession, custody or control. b.

2.

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: a.

Shall specify the time, place and manner of making the inspection and taking copies AND

b.

May prescribe such terms and conditions which are just.

RULE 28 PHYSICAL AND MENTAL EXAMINATION OF PERSONS 1.

If the mental or physical condition of a party is in controversy, the court may order him to submit to a physical or mental examination by a physician.

2.

The party examined waives any privilege he may have in that action regarding the testimony of the person who has examined or may examine him with respect to that same mental or physical examination by: a.

Requesting and obtaining a report of the examination so ordered OR

b.

Taking the deposition of the examiner.

RULE 29 REFUSAL TO COMPLY WITH THE MODES OF DISCOVERY

16 1.

If a party/deponent refused to answer: a.

The examination may be completed on other matters

b.

The examination may be adjourned

c.

The proponent may apply to the court for order to compel answer  The court may then order: i.

The refusing party or his counsel to pay the expenses incurred in obtaining the order, including the attorney’s fees (if it finds the refusal to answer without substantial justification)

ii. The proponent or his counsel to pay the expenses incurred in opposing the application, including attorney’s fees (if it finds the application to be without substantial justification) 2. If a party/witness refuses to be sworn or to answer after being directed to do so by the court, the refusal may be considered a contempt of that court. 3.

If a party/officer or managing agent of a party refuses to obey an order requiring him: a.

To answer designated questions

b.

To produce a thing for inspection or to permit entry upon property

c.

To submit to a physical or mental examination

 the court may order: i.

That the matters regarding which the questions were asked, or the character of the land or the thing, or the physical and mental condition of the party be taken to be established.

ii. The disallowance of the disobedient party’s claims iii. The prohibition of the disobedient party to present evidence iv. The striking out of the pleadings or parts thereof v.

The dismissal of the action or parts thereof

vi. Rendering judgment by default against the disobedient party OR vii. The arrest of any party or agent EXCEPT in disobeying an order to submit to a physical or mental examination. 4.

If a party refuses to attend or serve answers, the court may: a.

Strike out all or any part of any pleading of that party.

b.

Dismiss the action or any part thereof.

c.

Enter a judgment by default against that party, OR/AND

d.

Order that party to pay reasonable expenses incurred, including attorney’s fees.

5. The Republic of the Philippines cannot be required to pay expenses and attorney’s fees under this Rule. RULE 30 TRIAL 1. Order of trial 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 adduce evidence in support of his defense, counterclaim, cross-claim, and third-party complaint;

c.

The 3rd-party defendant, if any, shall adduce evidence of his defense, counterclaim, crossclaim, and 4th party complaint;

d.

The 4th party and so forth, if any, shall adduce evidence of the material facts pleaded by them;

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;

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

17 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.

2. Judge should personally receive evidence EXCEPT that in default or ex parte hearings and in any case where the parties so 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 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 10 days from the termination of the hearing. RULE 31 CONSOLIDATION OR SEVERANCE 1. CONSOLIDATION – the court may order a joint hearing or trial of any or all matters in issue when actions involving a common question of law or fact are pending before the court. 2. BUT the court may order a separate trial of any claim, cross-claim, counterclaim, or third-party complaint, in furtherance of convenience or in the interest of justice. RULE 32 TRIAL BY COMMISSIONER Trial by commissioner: 1. Reference by consent of both parties 2. Reference by motion of one of the parties or motu proprio: a.

Trial requires examination of a long account of either side

b.

Taking of an account is necessary for the information of the court before judgment or for carrying a judgment order into effect

c.

Question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of the case.

RULE 33 DEMURRER TO EVIDENCE Demurrer to evidence is made by the defendant after the plaintiff has completed the presentation of his evidence where the defendant moves for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. 1. If motion denied – defendant has the right to present evidence 2. If motion granted, but reversed on appeal –

defendant deemed to have waived the right to present evidence.

RULE 34 JUDGMENT ON THE PLEADINGS 1. Judgment on the Pleadings is proper: a.

If answer fails to tender an issue; or

b.

If answer otherwise admits the material allegations of the adverse party’s pleading

 Then court may, on motion of that party, direct judgment on the pleadings 2.

However, the material facts alleged in the complaint shall always be proved in actions for: a.

Declaration of nullity of marriage

b.

Annulment of marriage

c.

Legal separation

RULE 35 SUMMARY JUDGMENTS Summary judgment: 1. Proper if no genuine issue as to any material fact (except as to damages recoverable) and if moving party is entitled to a judgment as a matter of law 2. Based not only on pleadings but also on affidavits, deposition, and admissions of the parties showing that, except as to the amount of damages, there is no genuine issue. 3. Motion shall be served at least 10 days before the time specified for the hearing. 4. May be asked for by a party seeking to recover upon a claim, counterclaim, cross-claim or to obtain a declaratory relief.

18 5.

Although Rule does not specifically provide, also unavailable in actions for annulment of and declaration of nullity of marriage, and for legal separation since Sec. 1 refers to actions “to recover upon a claim”, or to recover a debt or a liquidated demand for money, or “to obtain declaratory relief.”

6. Judgment on the pleadings and summary judgment distinguished: Judgment on the pleadings

Summary judgment

Proper when there is no genuine issue between the parties

Proper even if there is an issue as to the damages recoverable

Based exclusively on the pleadings without introduction of evidence

Based not only on pleadings but also on affidavits, depositions and admissions of the parties

Available in any action, except the 3 exceptions

Proper only in actions to recover a debt, or for a liquidated sum of money, or for declaratory relief

 Motions for summary judgment may be filed by the claimant or by the defending party. The defending party may file such motion, pursuant to Rule 35, §2“at any time”, as distinguished from §1 where the claimant may file the motion at any time after the answer is filed. RULE 36 JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF 1. The date of the finality of the judgment or final order shall be deemed to be the date of its entry. The judgment or final order shall be entered by the clerk in the book of entries of judgments if no appeal or motion for new trial or consideration is filed within 15 days 2. Several Judgments In action against several defendants, the court may render judgment against one or more of them, leaving the action to proceed against the others. 3. Separate judgments Judgment rendered to dispose of one of the several claims for relief presented in an action, made 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, which terminates such claim. Action shall proceed as to other claims RULE 37 NEW TRIAL OR RECONSIDERATION 1. Motion for new trial or reconsideration filed within 15 days from notice of judgment and resolved by the court within 30 days from submission for resolution. 2. Grounds: Motion for New Trial a.

Fraud, accident, mistake, or excusable negligence;

b.

Newly discovered evidence  Requisites: i.

Discovered after trial

ii. Could not have been discovered and produced at trial despite the exercise of reasonable diligence iii. If presented, could probably alter the result of the action 3.

4.

Grounds: Motion for Reconsideration a.

Damages awarded are excessive

b.

Evidence is insufficient to justify the decision or final order

c.

Decision is contrary to law

Motion for new trial shall be in writing, and supported by affidavits of merit if the ground is FAME; for newly-discovered evidence, it must be supported by affidavits of witnesses by whom such evidence is expected to be given, or by duly authenticated documents to be introduced. Motion for reconsideration shall specifically point out the findings or conclusions of the judgment which are unsupported by evidence or contrary to law, with express reference to the testimonial or documentary evidence or the provisions of law alleged to be contrary to such findings.

5.

Pro forma motion for new trial or reconsideration shall not toll the period for appeal.

19 6.

No second motion for reconsideration allowed. Second motion for new trial must be based on a ground not existing or available when the first motion was made, which may be filed during the remainder of the 15-day period.

RULE 38 RELIEF FROM JUDGMENTS, ORDERS, OR OTHER PROCEEDINGS 1. Petition for relief from judgment filed within 60 days after learning of judgment and not more than 6 months after such judgment  Must be supported by affidavit showing the FAME and the facts constituting the petitioner’s good or substantial cause of action or defense 2. Party who has filed a timely motion for new trial cannot file a petition for relief after the former is denied. The two remedies are exclusive of one another. 3. Grounds: a.

Judgment or final order entered against a party by FAME; or

b.

Judgment or final order is rendered and party has been prevented by FAME from taking an appeal  For fraud to be extrinsic, the losing party must never have had a chance to controvert the adverse party’s evidence.  Uniform procedure for relief from judgments of MTC and RTC

4. After petition is filed, court shall order adverse parties to answer within 15 days from receipt. After answer is filed or expiration of period therefor, court shall hear the petition. 5. If granted, judgment set aside and court shall proceed as if timely motion for new trial has been granted; if granted against denial of appeal, court shall give due course to appeal. RULE 39 EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS 1. Execution as a matter of right On motion with notice, 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.  For so long as there is a certificate of entry of judgment, execution may already be issued by the court of origin or directed to do so by the CA. 2. Discretionary execution – pending period to appeal or during appeal; may issue only upon good reasons to be stated in a special order after hearing. a.

By trial court – even after the perfection of the appeal for so long as the motion for execution was filed while the TC has jurisdiction over the case and is in possession or the records, upon motion of the prevailing party with notice to the adverse party

b.

Appellate court – after the TC has lost jurisdiction

 Example: P receives judgment: June 3 D receives judgment: June 1 D files notice of appeal: June 5 When does trial court lose jurisdiction? June 18 BUT, if P also files a notice of appeal on June 10, trial court loses jurisdiction on that date.  Execution with respect to appealed cases- there is no need to await remand of the records.  Execution with respect to consequential and exemplary damages should be postponed until such time as the merits of the case have been finally determined in the regular appeal, as the amounts remain uncertain and indefinite pending resolution. 3.

a.

Motion for execution of final and executory judgment should be served on adverse party and set for hearing;

b.

In case of appeal, motion is filed with court of origin supported by certified true copies of final judgment of appellate court.

c.

Appellate court may on motion order court of origin to issue writ of execution (SC Circular No. 24-94, 4/18/94)

4. Judgments NOT stayed by appeal (immediately executory, unless court provides otherwise)

20 a.

Actions for injunction

b.

Receivership

c.

Accounting

d.

Support

e.

Judgments declared immediately executory

5.

A final and executory judgment may be executed on motion within 5 years from entry. May be revived and enforced by action after lapse of 5 years but before 10 years from entry. Revived judgment may be enforced by motion within 5 years from entry and thereafter by action before barred by statute of limitations – file motion within 10 years from the finality of the revived judgment.

6.

Execution in case of party’s death: a.

Death of judgment obligee - application of his executor or administrator or successor-ininterest

b.

Death of judgment obligor i.

Against his executor, etc. if the judgment be for recovery of real or personal property or the enforcement of a lien thereon.

ii. If death after execution is actually levied upon his property, it may be sold for satisfaction of the obligation.  If the judgment obligor dies after the entry but before levy, execution will issue if it be for the recovery of real or personal property. However, if judgment is for a sum of money, and the judgment obligor dies before levy, such judgment cannot be enforced by writ of execution but must be filed as a claim against his estate. 7.

8.

Writ of execution: a.

Shall issue in the name of the Republic of the Phils from court which granted the motion

b.

State the name of the court, case number and title, dispositive portion of the judgment order

c.

Require the sheriff or other proper officer to whom it is directed to enforce the writ according to its terms

Manner of executing writ: a.

If judgment against property of the judgment obligor – out of real or personal property with interest

b.

If against his real or personal property in the hands of the personal representatives, heirs, devisees, legatees, tenants, or trustees of the judgment obligor – out of that property, with interest

c.

If for sale of real or personal property – to sell property, describing it and apply the proceeds in conformity with judgment.

d.

If for delivery of possession of property – deliver possession of the same to the party entitled to it, describing it, 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 out of real property if sufficient personal property cannot be found.

e.

In all cases, writ of execution shall specifically state the amount of the interest, costs, damages, rents, or profits due as of date of issuance of writ, aside from principal obligation.

 Judgment obligor is given option to choose which property may be levied on sufficient to satisfy the judgment. 9.

Property exempt from execution a.

Family home as provided by law, homestead in which he resides, and land necessarily used in connection therewith;

b.

Tools and implements used in trade, employment, or livelihood;

c.

3 horses, cows, or carabaos or other beasts of burden used in his ordinary occupation;

d.

Necessary clothing and articles for ordinary personal use, excluding jewelry;

e.

Household furniture and utensils necessary for housekeeping not exceeding P3,000;

f.

Professional libraries and equipment of judges, lawyers, physicians, etc. not exceeding P300,000;

21 g.

One fishing boat and accessories not more than P100,000 owned by a fisherman and by which he earns his living;

h.

Salaries, wages, or earnings for personal services within the 4 months preceding the levy which are necessary for the support of the family;

i.

Lettered gravestones;

j.

Money, benefits, annuities accruing or in any manner growing out of any life insurance;

k.

Right to receive legal support or any pension or gratuity from the government;

l.

Properties especially exempted by law.

 Exemption does not apply if execution upon a judgment for its purchase price or for foreclosure of mortgage.  Right of Exemption is a personal right granted to the judgment creditor. The sheriff may thus not claim it. 10. Third party claims: a.

Purpose of bond filed by judgment obligee or plaintiff is to indemnify third-party claimant, not the sheriff or officer;

b.

Amount of bond not less than value of property levied on;

c.

Sheriff not liable for damages if bond is filed;

d.

Judgment obligee or plaintiff may claim damages against third-party claimant in the same or a separate action.

e.

3rd Party claimant may vindicate his claim to property levied in a separate action because intervention is no longer allowed since judgment already executory; in preliminary attachment and replevin, 3rd party claimant may vindicate his claim to the property by intervention since the action is still pending.

11. Who may redeem real property sold: a.

Judgment obligor or his successor in interest in the whole or any part of the property;

b.

Creditor having lien by virtue of an attachment, judgment, or mortgage on the property sold subsequent to the lien under which the property was sold. (Redeeming creditor is termed a redemptioner).

12. Judgment obligor has one year from the date of the registration of the certificate of sale to redeem property sold by paying the purchaser the amount of his purchase, with 1% per month interest plus any assessments or taxes which he may have paid thereon after purchase with interest on said amount at 1% per month. Redemptioners have one year to redeem from the date of registration of the certificate of sale. They may also redeem beyond one-year period within 60 days after the last redemption, with 2 % interest on the sum to be paid on the last redemption. The judgment obligor’s right to redeem within 60 days from last redemption is limited to the one-year period, beyond which he can no longer redeem.  Purchaser or redemptioner not entitled to receive rents and income of property sold inasmuch as these belong to the judgment obligor until the expiration of the period of redemption. 13. Effect of judgment or final orders a.

In case of judgment against a specified thing, probate of will, or administration of estate or legal condition or status, it is conclusive on the title or condition, status, relationship, will or administration.

b.

In other cases/matters directly adjudged, or matters relating thereto that could have been raised subsequent to commencement of action, judgment is conclusive between parties and their successors in interest.

c.

In any other litigation, that only is deemed to have been adjudged in a former judgment or which was actually and necessarily included therein.

14. Effect of foreign judgment a.

Judgment upon a specific thing, conclusive upon title to the thing;

b.

If against a person, judgment is presumptive evidence of a right as between the parties and their successors in interest;

22 15. When foreign judgment may be repelled a.

Evidence of want of jurisdiction

b.

Want of notice to party

c.

Collusion

d.

Fraud

e.

Clear mistake of law.

16. Requisites for res judicata a.

Final former judgment

b.

Judgment is on the merits

c.

Rendered by a court of competent jurisdiction

d.

Between first and second actions, identity of subject matter, parties and cause of action.

17. When quashal of writ of execution proper a.

Improperly issued

b.

Defective in substance

c.

Issued against the wrong party

d.

Judgment was already satisfied

e.

Issued without authority

f.

Change of the situation of the parties renders execution inequitable

g.

Controversy was never validly submitted to the court

h.

Writ varies the terms of the judgment

i.

Writ sought to be enforced against property exempt from execution

j.

Ambiguity in the terms of the judgment

18. SPECIAL JUDGMENT - requires the performance of any other act than the payment of money or the sale or delivery of real or personal property. 19. Remedies against executory judgments or orders: a.

Petition for relief

b.

Direct attack

c.

Collateral attack - judgment is null on its face or court had no jurisdiction

20. When court may order execution even before an executory judgment and pending an appeal a. Lapse of time would make the ultimate judgment ineffective; b. Appeal is clearly dilatory; c. Judgment is for support and the beneficiary is in need thereof; d. Articles subject of the case are perishable; e. Defendants are exhausting their income and have no other property aside from the proceeds from the subdivision of lots subject of the action; f. Movants were in extreme need of the premises subject of the suit and the bond to answer for damages in case of reversal on appeal (supersedeas bond) was posted by them; g. Judgment debtor is in imminent danger of insolvency; h. Prevailing party is of advanced age and in a precarious state of health and the right in the judgment is non-transmissible being for support; i. Prevailing party posts sufficient bond to answer for damages in case of reversal of judgment  But in most cases, the mere filing of a bond is not sufficient justification for discretionary execution. 21. Order granting writ of execution ONLY appealable when: a.

Order varies terms of the judgment

b.

When vague and court renders what is believed to be wrong interpretation.

23 22. Garnishment – act of appropriation by the sheriff if the property involved is money, stocks, or other incorporeal property in the hands of third persons; merely sets apart such funds but does not constitute the creditor the owner of the garnished property. 23. Persons disqualified from participating in the execution sale: a.

Officer conducting the execution sale or his deputy;

b.

Guardian with respect to the property under his guardianship;

c.

Agents, the property entrusted to them, unless with principal’s consent;

d.

Executors and administrators, the property of the estate under administration;

e.

Public officers and employees, the property of the State or any subdivision thereof, or any GOCC, the administration of which has been entrusted to them;

f.

Justices, judges, prosecuting attorneys, clerks of courts, and other officers and employees connected with the administration of justice, the property and rights in litigation or levied upon an execution before the court within whose jurisdiction or territory they exercise their respective functions;

g.

Lawyers, the property and rights which may be the subject of litigation in which they take part by virtue of their profession;

h.

Others specifically disqualified by law. (e.g. seller of goods who exercise right of resale of goods).

RULE 40 APPEAL FROM MTC TO RTC 1.

Appeal from judgment or final order of MTC taken to RTC exercising jurisdiction over the area to which MTC pertains. File notice of appeal with the MTC which rendered decision appealed from within 15 days after notice of such judgment.

2.

Record on appeal is filed within 30 days and required only for special proceedings

3.

Appellate docket fees paid to clerk of court of MTC - payment not a condition precedent for perfection of appeal but must nonetheless be paid within the period for taking appeal;

4.

Procedure for appeal from cases dismissed without trial for lack of jurisdiction: a.

If affirmed because the MTC has no jurisdiction, RTC will try case on the merits as if it has original jurisdiction;

b.

If reversed, the case shall be remanded to the MTC;

c.

If the first level court tried the case on the merits without jurisdiction, the RTC should not dismiss the case but shall decide it in the exercise of original jurisdiction.

RULE 41 APPEAL FROM THE RTC 1.

Appeal may be taken from a judgment or final order that completely disposes of the case or of a particular matter therein.

2.

No appeal may be taken from: a.

Order denying a motion for new trial or recon;

b.

Order denying a petition for relief or any similar motion seeking relief from judgment;

c.

Interlocutory order;

d.

Order disallowing or dismissing an appeal;

e.

Order denying a motion to set aside a judgment by consent, confession, compromise on the ground of fraud, mistake, or duress, or any other ground vitiating consent;

f.

Order of execution;  Not appealable because execution is only the result of the judgment. If order of execution is not in accord with the dispositive portion, remedy is certiorari under Rule 65.

g.

Judgment or final order for or against one or more of several parties or in separate claims, while the main case is pending, unless the court allows an appeal therefrom;

h.

Order dismissing an action without prejudice;

 In all these cases, aggrieved party may file an appropriate civil action under Rule 65.

24 3.

Ordinary appeal from RTC (in the exercise of original jurisdiction) to CA is by filing notice of appeal with the RTC within 15 days from notice of its judgment. Record on appeal required only for special proceedings and where multiple appeals allowed filed within 30 days.

4.

Motion for extension of time to file a motion for new trial or reconsideration is prohibited.

5.

Contents of Notice on appeal: a.

Names of the parties to the appeal;

b.

Specify judgment or final order or part thereof appealed from;

c.

Court to which the appeal is being taken;

d.

Material dates showing timeliness of appeal;

6. Contents of Record on appeal: a.

Full names of all parties to the proceedings shall be stated in the caption;

b.

Include judgment or final order from which appeal taken;

c.

In chronological order, copies of only such pleadings, petitions, etc. and all interlocutory orders as are related to the appealed judgment;

d.

Data showing that appeal perfected in time - material data rule;

e.

If an issue of fact is to be raised, include by reference all the evidence, oral or documentary, taken upon the issues involved.

7.

Appeal from decision of RTC in appellate jurisdiction is by petition for review filed with CA.

8.

Where only questions of law are raised, by petition for review on certiorari with SC.

9.

Notice of Appeal and Record of Appeal distinguished:

Notice of Appeal

Record of Appeal

Party’s appeal by notice of appeal deemed perfected as to him upon the filing of the notice of appeal in due time

Deemed perfected as to appellant with respect to the subject matter upon the approval of the record on appeal filed in due time

Court loses jurisdiction over case upon perfection of the appeals filed in due time and expiration of time to appeal of other parties

Court loses jurisdiction only over subject matter upon approval of records on appeal filed in due time and expiration of the time to appeal of other parties.

10. Failure to pay appellate docket fees within the reglamentary period is ground for dismissal of appeal. 11. General Rule: An ordinary appeal stays the execution of a judgment Exceptions:

a.

Decisions of quasi-judicial body appealed to the CA

b.

Executions pending appeal

c.

Cases covered by Summary Procedure

RULE 42 PETITION FOR REVIEW FROM THE RTC TO THE CA 1. Form and contents of petition for review (from RTC to CA) In 7 legible copies: a.

Full names of parties to case, without impleading the lower courts or judges thereof;

b.

Indicate specific material dates showing it was filed on time;

c.

Concise statement of matters involved, issues raised, specification of errors of fact or law, or both allegedly committed by the RTC, and the reasons or arguments relied upon for the allowance of the appeal;

d.

Accompanied by clearly legible duplicate originals or true copies of the judgments or final order of both MTC and RTC;

e.

Certification under oath of non-forum shopping.

2. Contents of comment In 7 legible copies, accompanied by certified true copies of material portions of record and other supporting papers: a.

State whether or not appellee accepts the statement of matters involved in the petition;

25

3.

b.

Point out such insufficiencies or inaccuracies as he believes exists in petitioner’s statement of matters;

c.

State reasons why petition should not be give due course.

CA may: a.

Require respondent to file a comment; or

b.

Dismiss the petition if it finds: i.

Patently without merit

ii. Prosecuted manifestly for delay iii. Questions raised are to insubstantial to require consideration RULE 43 APPEALS FROM THE CTA AND QUASI-JUDICIAL AGENCIES TO THE CA 1. Appeals from judgments and final orders of the Court of Tax Appeals and quasi-judicial agencies in exercise of quasi-judicial functions (unless otherwise provided by law and the Labor Code [NLRC decisions]) shall be by petition for review to the CA, to be taken within 15 days from notice of award or judgment or from notice of the denial of the motion for reconsideration. Only 1 Motion for reconsideration allowed 2. Quasi-judicial agencies covered: a.

Civil Service Commission;

b.

Central Board of Assessment Appeals;

c.

Securities and Exchange Commission;

d.

Office of the President;

e.

Land Registration Authority;

f.

Social Security Commission;

g.

Civil Aeronautics Board;

h.

Bureau of Patents, Trademarks and Technology Transfer;

i.

National Electrification Administration;

j.

Energy Regulatory Board;

k.

National Telecommunications Commission;

l.

Department of Agrarian Reform under RA No. 6657;

m. GSIS; n.

Employees Compensation Commission;

o.

Agricultural Inventions Board;

p.

Insurance Commission;

q.

Construction Industry Arbitration Commission;

r.

Voluntary arbitrators

 St. Martin’s Funeral Home vs. NLRC - DECISIONS OF THE NLRC – ORIGINAL ACTION FOR CERTIORARI UNDER RULE 65 FILED WITH THE CA, NOT SC  Fabian vs. Desierto – Appeals from decisions of the Office of the Ombudsman in administrative disciplinary cases should be taken to the CA under Rule 43. ∅ According to A.M. no. 99-2-02-SC (promulgated February 9, 1999), any appeal by way of petition for review from a decision, final resolution or order of the Ombudsman, or special civil action relative to such decision, filed with the SC after March 15, 1999 shall no longer be referred to the CA, but shall be dismissed. RULE 45 APPEAL BY CERTIORARI TO THE SUPREME COURT 1.

2.

Question of Law –

exists when doubt or difference arises as to what the law is, based on a certain state of facts

Question of Fact –

exists when doubt or difference arises as to the truth or the falsehood of alleged facts

Findings of fact of the CA may be reviewed by the SC on appeal by certiorari when:

26

3.

a.

The conclusion is a finding grounded entirely on speculations, surmises, or conjectures;

b.

The inference made is manifestly mistaken, absurd, or impossible;

c.

There is grave abuse of discretion;

d.

The judgment is based on misapprehension of facts;

e.

Findings of fact of trial court and CA are conflicting;

f.

The CA, in making its findings, went beyond the issues of the case and the same is contrary to the admissions made;

g.

CA manifestly overlooked certain relevant facts not disputed by the parties and which, if properly considered, would justify a different conclusion.

Certiorari as mode of appeal: From judgment or final order of the CA, Sandiganbayan, RTC on pure questions of law, or other courts whenever authorized by law, by filing a petition for review on certiorari with the SC within 15 days from notice of judgment.

4. Rule 45 and Rule 65 distinguished: Rule 45

Rule 65

No need for Motion for Recon

Motion for Recon generally required

Relates to final judgments

Applies to interlocutory excess/lack of jurisdiction

An appeal

Not an appeal in the strict sense

15 days from notice of judgment

60 days from notice of judgment

orders

rendered

 Kho vs. Camacho: An RTC judge has no right to disapprove a notice of appeal on the ground that the issues raised involve a pure question of law, and that the mode of appeal is erroneous. That is the prerogative of the CA, not the RTC judge. A notice of appeal need not be approved by the judge, unlike a record on appeal. RULE 47 ANNULMENT OF JUDGMENTS OR FINAL ORDERS AND RESOLUTIONS 1.

Grounds for annulment of judgment of RTC in civil cases: a.

Extrinsic fraud – not available as a ground if availed of earlier in a motion for new trial or petition for relief

b.

Lack of jurisdiction.

2.

Petition for annulment available only if ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies no longer available through no fault of the Petitioner.

3.

Periods:

4.

a.

For extrinsic fraud – four years from discovery;

b.

Lack of jurisdiction – must be filed before action barred by laches.

Effects of judgment of annulment – gives the CA authority to order the trial court on motion to try the case if the ground for annulment is extrinsic fraud, but not if it is lack of jurisdiction.  Prescriptive period for refiling the original action is suspended unless the extrinsic fraud is attributable to the plaintiff in the original action.

RULE 50 DISMISSAL OF APPEAL 1. Grounds for dismissal of appeal by the CA: a.

Failure of the record on appeal to show on its face that the appeal was taken within the reglamentary period;

b.

Failure to file the notice of appeal or record on appeal within the period;

c.

Failure of the appellant to pay the docket and other lawful fees;

d.

Unauthorized alterations, omissions, or additions in the approved record on appeal;

e.

Failure of the appellant to serve and file the required number of copies of his brief or memorandum within the time provided;

f.

Absence of specific assignment of errors in appellants brief or page references to the record;

in

27 g.

Failure of the appellant to take necessary steps for the completion or correction of the record within the time limited by the order;

h.

Failure of appellant to appear at the preliminary conference or to comply with orders, circulars, or directives of the court without justifiable cause

i.

Judgment or order appealed from is not appealable.

RULE 51 JUDGMENT 1.

Memorandum decisions are permitted in the CA.

2.

After judgment or final resolution of the CA and dissenting or separate opinions if any, are signed by the Justices taking part, they shall be delivered for filing to the clerk who shall indicate thereon the date of promulgation and cause true copies to be served upon parties or counsel.

3.

Date when judgment or final resolution becomes executory shall be deemed as date of entry.

RULE 56 PROCEDURE IN THE SUPREME COURT 1. Original cases cognizable – exclusive list: a.

Petitions for certiorari, prohibition, mandamus, quo warranto, habeas corpus;

b.

Disciplinary proceedings against judges and attorneys;

c.

Cases affecting ambassadors, other public ministers, and consuls.

2.

An appeal to SC can only be taken by petition for review on certiorari, except in criminal cases where the penalty imposed is death, reclusion perpetua, or life imprisonment.

3.

Grounds for dismissal of appeal by SC a.

Failure to take appeal within the reglementary period;

b.

Lack of merit in the petition;

c.

Failure to pay the requisite docket fee and other lawful fees or to make deposit for costs;

d.

Failure to comply with the requirements regarding proof of service and contents of and the documents which should accompany the petition;

e.

Failure to comply with any circular, directive or order of the SC without justifiable cause;

f.

Error in choice or mode of appeal

g.

Case is not appealable to the SC.

4.

Discretionary upon SC (and CA) to call for preliminary conference similar to pre-trial.

5.

General Rule: Appeal to SC by notice of appeal shall be dismissed. Exception: In criminal cases where the penalty imposed is life imprisonment, or when a lesser penalty is imposed but involving offenses committed on the same occasion or arising out of the same occurrence which gave rise to the more serious offense for which the penalty of death or life imprisonment is imposed (Section 3, Rule 122)

6.

Appeal by certiorari from RTC to SC submitting issues of fact may be referred to the CA for decision or appropriate action, without prejudice to considerations on whether or not to give due course to the appeal as provided in Rule 45.

PROVISIONAL REMEDIES Provisional remedies (ancillary/auxiliary)  Writs and processes available during the pendency of the action which may be resorted to by a litigant to preserve and protect rights and interests therein pending rendition, and for the purpose of ultimately affecting a final judgment in the case.  PROVISIONAL - constituting temporary measures availed of during the pendency of the action.  ANCILLIARY - incidents in and dependent on the result of the main action. RULE 57 PRELIMINARY ATTACHMENT 1. Preliminary Attachment a.

Available even if the recovery of personal property is only an incidental relief sought in the action;

b.

May be resorted to even if the personal property is in the custody of a third person;

28

2.

3.

c.

Extends to all kinds of property, real or personal or incorporeal;

d.

To recover possession of personal property unjustly detained, presupposes that the same is being concealed, removed, or disposed of to prevent its being found or taken by the applicant;

e.

Can still be resorted to even if the property is in custodia legis, as long as the property belongs to the defendant, or is one in which he has proprietary interests, AND with permission of the court

Grounds a.

Recovery of specified amount of money and damages, except moral or exemplary, where party is about to depart from the Phils with intent to defraud creditors;

b.

Action for money or property embezzled or for willful violation of duty by public officers, officers of corporation, agent, or fiduciary;

c.

Recovery of possession of property (both real and personal) unjustly detained, when the property is concealed or disposed of to prevent is being found or taken;

d.

Action against party guilty of fraud in contracting the debt or incurring the obligation or in the performance thereof;

e.

Action against party who is concealing or disposing of property, or is about to do so, with intent to defraud creditors;

f.

Action against party who is not a resident of the Phils and cannot be found therein or upon who service by publication can be made.

PRINCIPLE OF PRIOR OR CONTEMPORARY JURISDICTION: Enforcement of writ of preliminary attachment must be preceded by or simultaneously accompanied by service of summons, copy of complaint, application and affidavits for the attachment and the bond upon the adverse party; BUT the requirement of prior or contemporaneous service of summons shall not apply where the summons could not be served despite diligent efforts, or the defendant is a resident of the Phils temporarily absent therefrom, or the defendant is a non-resident of the Phils or the action is in rem or quasi in rem.

4. When preliminary attachment is discharged a. Debtor posts a counterbond or makes requisite cash deposit- if attachment to be discharged is with respect to particular property, counterbond or deposit shall be equal to the value of the property as determined by the court; in all other cases, amount of counterbond should be equal to the amount fixed in the order of attachment.  CASH DEPOSIT OR COUNTERBOND SHALL SECURE THE PAYMENT OF ANY JUDGMENT THAT ATTACHING PARTY MAY RECOVER b. Applicant’s bond is insufficient or sureties fail to justify; c. Attachment was improperly or irregularly issued; d. Property attached is exempt from execution; e. Judgment is rendered against attaching party; f. Attachment is excessive – discharge is with respect to the excess 5.

Application for discharge may only be filed with the court where the action is pending and may be filed even before enforcement of the writ so long as there has been an order of attachment.

6.

When to apply for damages against the attachment bond a.

Before trial;

b.

Before appeal perfected;

c.

Before judgment becomes executory;

d.

In the appellate court for damages pending appeal, before judgment becomes executory.

7. When judgment becomes executory, sureties on counterbond to lift attachment are charged and can be held liable for the amount of judgment and costs upon notice and summary hearing. There is no need to first execute judgment against the judgment obligor before proceeding against sureties. 8. Claims for damages cannot be subject of independent action except: a. When principal case is dismissed by the trial court for lack of jurisdiction without giving the claiming party opportunity to prove claim for damages; b. When damages sustained by a third person not a party to the action.

29

RULE 58 PRELIMINARY INJUNCTION 1. Preliminary injunction distinguished from Prohibition Preliminary Injunction

Prohibition

Generally directed against party to the action but may be against any person

Directed against a court, tribunal, or person exercising judicial powers

Does NOT involve the jurisdiction of the court

May be on the ground that the court against whom the writ is sought acted without or in excess of jurisdiction;

May be main action itself or just a provisional remedy in the main action

Always a main action

2. Grounds for Preliminary Injunction

3.

a.

Plaintiff is entitled to relief sought which consists in restraining or requiring the performance of acts (latter is preliminary mandatory injunction);

b.

The commission of acts or non-performance during pendency of litigation would probably work injustice to the plaintiff;

c.

Defendant is doing or about to do an act violating plaintiff’s rights respecting the subject of the action and tending to render judgment ineffectual.

Injunction may be refused or dissolved when: a.

Complaint is insufficient;

b.

Defendant is permitted to post a counterbond it appearing that he would sustain great and irreparable injury if injunction granted or continued while plaintiff can be fully compensated;

c.

Plaintiff’s bond is insufficient or defective

4. No Preliminary Injunction or TRO may be issued without posting of bond and notice to adverse party and hearing. 5.

PRINCIPLE OF PRIOR OR CONTEMPORARY JURISDICTION:  When an application for a writ of preliminary injunction or a temporary restraining order is included in a complaint or any initiatory pleading, the case, if filed in a multiple-sala court, shall be raffled only after NOTICE to and IN THE PRESENCE of the adverse party or the person to be enjoined. In any event, such notice shall be preceded, or contemporaneously accompanied by service of summons, together with a copy of the complaint and the applicant’s affidavit and bond, upon the adverse party in the Phils; BUT the requirement of prior or contemporaneous service of summons shall NOT apply where the summons could not be served despite diligent efforts, or the defendant is a resident of the Phils temporarily absent therefrom, or the defendant is a non-resident of the Phils  Difference with principle in preliminary attachment – In attachment, the principle applies only in the implementation of the writ, while in applications for injunction or TRO, this principle applies before the raffle and issuance of the writs or TRO.

6.

TRO good for only 20 days from service; 60 days for CA; until further orders from SC.

7. TRO can be issued ex parte only if matter of grave urgency and plaintiff will suffer grave injustice and irreparable injury. Good for 72 hours from issuance, within which judge must comply with service of summons, complaint, affidavit and bond, and hold summary hearing to determine whether TRO should be extended for 20 days. In no case can TRO be longer than 20 days including 72 hours. 8. No TRO, preliminary injunction or preliminary mandatory injunction may issue against the government in cases involving implementation of government infrastructure projects. (Garcia vs. Burgos, reiterated in Administrative Circular no. 7-99, promulgated June 25,1999) RULE 59 RECEIVERSHIP 1. When receiver may be appointed:

30 a.

Party has an interest in the property or fund subject of the action and such is in danger of being lost, removed, or materially injured;

b.

Action by mortgagee for foreclosure of mortgage when the property is in danger of being wasted or materially injured and that its value is probably insufficient to discharge the mortgage debt, OR that the parties have stipulated in the contract of mortgage;

c.

After judgment, to preserve the property during the pendency of the appeal, or to dispose of it, or to aid in execution when execution has been returned unsatisfied or the judgment debtor refuses to apply his property to satisfy judgment, or to carry out the judgment.

d.

When appointing one is the most convenient and feasible means to preserve, administer, or dispose of the property in litigation.

2. When receivership may be denied/lifted a.

Appointment sought is without sufficient cause;

b.

Adverse party files sufficient bond for damages;

c.

Applicant or receiver’s bond is insufficient.

3.

Both the applicant for the receivership and the receiver appointed must file separate bonds.

4.

In claims against the bond, it shall be filed, ascertained and granted under the same procedure as Section 20, Rule 57, whether is be damages against the applicant’s bond for the unlawful appointment of the receiver or for enforcing the liability of the sureties of the receiver’s bond by reason of the receiver’s management (in the latter case, no longer need to file a separate action).

RULE 60 REPLEVIN 1. Replevin a.

Available only where the principal relief sought in the action is the recovery of possession of personal property;

b.

Can be sought only where the defendant is in the actual or constructive possession of the personal property involved.

c.

Extends only to personal property capable of manual delivery;

d.

Available to recover personal property even if the same is NOT being concealed, removed, or disposed of;

e.

Cannot be availed of if property is in custodia legis, as where is it under attachment, or was seized under a search warrant or distrained for tax assessment.

2. Defendant entitled to return of property taken under writ if: a.

He seasonably posts redelivery bond

b.

Plaintiff’s bond is insufficient or defective

c.

Property is not delivered to plaintiff for any reason.

 Replevin bond is only intended to indemnify defendant against any loss that he may suffer by being compelled to surrender the possession of the disputed property pending trial of the action. Thus, surety not liable for payment of judgment for damages rendered against plaintiff on a counterclaim for punitive damages for fraudulent or wrongful acts committed by the plaintiffs which are unconnected with the defendant’s deprivation of possession by the plaintiff. SPECIAL CIVIL ACTIONS 1.

Types of Special Civil Actions a.

Mandamus

b.

Interpleader

c.

Certiorari

d.

Contempt

e.

Prohibition

f.

Eminent Domain

g.

Declaratory Relief

h.

Quo warranto

31 i.

Partition of real estate

j.

Foreclosure of mortgage

k.

Unlawful detainer

l.

Forcible Entry

RULE 62 INTERPLEADER 1.

Interpleader a.

Original action

b.

Presupposes that the plaintiff has no interest in the subject matter of the action or has an interest therein which, in whole or part, is not disputed by the other parties to the action;

c.

Complaint in interpleader must be answered 15 days from service of summons

RULE 63 DECLARATORY RELIEF AND SIMILAR REMEDIES 1.

Requisites for action for declaratory relief: a.

Subject matter of controversy is a deed, will, contract, or other written instrument, statute, executive order, or regulation, or ordinance;  Court may refuse to adjudicate where decision would not terminate the uncertainty or controversy which gave rise to the action OR where the declaration is not necessary and proper at the time;

b.

Terms and validity thereof are doubtful and require judicial construction;

c.

No breach of the document, otherwise ordinary civil action is the remedy;  Must be before breach is committed, as in the case where the petitioner paid under protest the fees imposed by an ordinance. Declaratory relief still proper because the applicability of the ordinance to future transactions still remains to be resolved, although the matter could be threshed out in an ordinary suit for the recovery of the fees paid.

d.

There is an actual justiciable controversy between persons whose interests are adverse;

e.

The same is ripe for adjudication;

f.

Adequate relief is not available through other means or other forms of action or proceeding.

RULE 64

REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS ON ELECTIONS AND THE COMMISSION ON AUDIT

OF THE

COMMISSION

 For petition for review of judgments and final orders of the COMELEC and COA – period to file is 30 days to be counted from notice of the judgment or final order or resolution sought to be reviewed and not from the receipt of the denial of the Motion for Reconsideration; the period to file petition is merely interrupted by the filing of the Motion for Reconsideration and continues to run again for the remaining period which shall not be less than 5 days from notice of denial. RULE 65 CERTIORARI, PROHIBITION AND MANDAMUS 1. Certiorari a.

Purpose – to correct an act performed by respondent;

b.

Act sought to be controlled – discretionary acts;

c.

Respondent – one who exercises judicial functions and acted with grave abuse of discretion or in lack or excess of jurisdiction.

d.

Generally directed against an interlocutory order of the court prior to appeal from the judgment in the main case;

e.

Need merely be filed seasonably (within 60 days), without undue delay and before the act, order, or proceedings, sought to be reviewed or set aside has become fait accompli such that any reversal thereof shall have become academic;

f.

Unless a writ of preliminary injunction shall have issued, does NOT stay the challenged order;

g.

Parties are the aggrieved parties against the lower court or quasi-judicial agency and the prevailing parties;

h.

Motion for reconsideration is a condition precedent, subject to certain exceptions;

32 i.

Higher court exercises original jurisdiction under its power of control and supervision over the orders of lower courts.  If CA reverses the judge, the latter may not go the SC via a petition for certiorari. He is merely a nominal party, and he should not seek the reversal of a decision that is unfavorable to the action taken by him.  Professional Regulation Commission vs. CA – It is well settled that the remedies of ordinary appeal and certiorari are mutually exclusive, not alternative or successive. However, it has also been held that after a judgment has been rendered and an appeal therefrom had been perfected, a petition for certiorari relating to certain incidents therein may prosper where the appeal does not appear to be a plain, speedy and adequate remedy. In this case, the SC noted that, while petitioners tried to justify their recourse to both an appeal and to a petition for certiorari by claiming that their appeal would not constitute a plain, speedy and adequate remedy, they did not see fit to withdraw or abandon said appeal after filing the petition. Thus, both the CA and SC are reviewing the same decision of the RTC at the same time. Such a situation would lead to absurdity and confusion in the ultimate disposition of the case.

2. Prohibition a.

Purpose – to prevent the commission or carrying out of an act;

b.

Act sought to be controlled – discretionary and ministerial acts;

c.

Respondent – one who exercises judicial or non-judicial functions.

3. Mandamus a.

Purpose – to compel the performance of the act desired;

b.

Act sought to be controlled – ministerial act;

c.

Respondent – one who performs judicial or non-judicial functions.

4. When SC allows the writ of certiorari even when appeal is available and proper: a.

Appeal does not constitute a speedy and adequate remedy;

b.

Orders were issued either in excess of or without jurisdiction;

c.

For certain special considerations, such as public welfare or policy;

d.

Where in criminal actions, the court rejects rebuttal evidence for the prosecution, as in acquittal;

e.

Where the order is a patent nullity;

f.

Where the decision in the certiorari case will avoid future litigation.

5. Cases where Motion for Reconsideration is NOT condition precedent for certiorari: a.

Order is a patent nullity;

b.

Questions raised in the certiorari proceeding were duly raised and passed upon by the lower court, or are the same as those raised and passed upon in the lower court;

c.

Urgent necessity for the resolution of the question and any further delay would prejudice the interests of the government;

d.

Under the circumstances, a motion for recon would be useless;

e.

Petitioner was deprived of due process and there is extreme urgency for relief;

f.

Where in a criminal case, relief from order or arrest is urgent and the granting of such relief by the trial court is improbable;

g.

Proceedings in the lower court are null for lack of due process;

h.

Proceeding was ex parte or in which petitioner had no opportunity to object;

i.

Issue raised is one purely of law or where public interest is involved.

6. The period for filing any of the 3 actions is not later than 60 days from notice of judgment, order, or resolution sought to be reviewed.  In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the 60-day period shall be counted from notice of the denial of said motion. (SC Circular 56-2000, effective September 1, 2000)

33  No extension of time to file the petition shall be granted except for compelling reason and in no case exceeding 15 days. (SC Circular 56-2000) RULE 66 QUO WARRANTO 1. Quo Warranto distinguished from Election Contest: Quo Warranto

Election Contest

Basis is that occupant is disqualified from holding office by reason of ineligibility or disloyalty

Challenge rights of a person to hold office on the ground of irregularities in the conduct of the election

If successful, respondent is ousted but petitioner shall not automatically assume the office vacated

Successful protestant will assume office if he had obtained plurality of valid votes

RULE 67 EXPROPRIATION 1.

In expropriation, the complaint must be verified.

2.

The defendant can only file an answer instead of a motion to dismiss

3.

The final order of expropriation is appealable, but the lower court may determine the just compensation to be paid.  The power of eminent domain is exercised by the filing of a complaint which shall join as defendants all persons owning or claiming to own, or occupying, any party of the expropriated land or interest therein. If a known owner is not joined as defendant, he is entitled to intervene in the proceedings; or if he is joined but not served with process and the proceeding is already closed before he came to know of the condemnation, he may maintain an independent suit for damages.

34 RULE 70 FORCIBLE ENTRY AND UNLAWFUL DETAINER 1. Forcible entry distinguished from Unlawful detainer Forcible entry

Unlawful detainer

Possession of land is unlawful from the beginning due to force, intimidation, threat, strategy or stealth

Possession of defendant is inceptively lawful but becomes illegal by reason of termination of right of possession

No requirement of previous demand for defendant to vacate premises

Demand is jurisdictional

Plaintiff must prove that he was in prior physical possession until he was deprived thereof by defendant

Plaintiff need not have been in prior physical possession

1-year period counted from date of actual entry or when plaintiff learned thereof.

1-year period from date of last demand

2. When prior demand in unlawful detainer actions not required; a.

When purpose of action is to terminate lease because of expiry of term and not because of failure to pay rental or to comply with terms of lease contract;

b.

Purpose of suit is not for ejectment but for enforcement of terms of contract;

c.

When defendant is not a tenant but a pure intruder

 In all other cases, there must be a demand: i.

To pay or to comply with the conditions of the lease; AND

ii. To vacate by written notice on the person in the premises or by posting such notice on the premises if no person is found thereon and this is a condition precedent to the filing of the case; ORAL demand is not permitted. iii. If demand is in the alternative (pay OR vacate), this is NOT the demand contemplated by the Rules. 3.

When the defendant raises the issue of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the latter issue shall be resolved only to determine the issue of possession.  A forcible entry/unlawful detainer action has an entirely different subject matter from that of an action for reconveyance. The former involves material possession, and the latter, ownership. Thus, the pendency of an action for reconveyance does not divest the MTC of its jurisdiction over an action for FE/UD, nor will it preclude execution of judgment in the ejectment case where the only issue involved is material possession.

RULE 71 CONTEMPT 1. Criminal contempt a.

Purpose is to vindicate public authority;

b.

Conduct directed against the dignity or authority of the court.

2. Civil Contempt a.

Purpose is to protect and enforce civil rights and remedies for the litigants;

b.

Failure to do something ordered by the court for the benefit of a party.

3. Direct Contempt (contempt in facie curiae) a.

Commit in the presence of or so near a court or judge;

b.

Punished summarily without hearing;

c.

No appeal may be taken but the party adjudged in contempt may avail himself of actions of certiorari or prohibition which shall stay the execution of the judgment, provided a bond fixed by the court is filed.

4. Indirect Contempt a.

Not committed in the presence of the court;

b.

Punished only after hearing – complaint in writing or motion or party or order of court requiring person to appear and explain, opportunity to appear and show cause.

35 JURISDICTION OF THE COURTS JURISDICTION OF THE SUPREME COURT 1.

ORIGINAL jurisdiction over cases involving ambassadors, other public ministers and consuls; petitions for certiorari, prohibition, mandamus, quo warranto and habeas corpus (concurrent with RTC).

2. Review, revise, reverse, modify, or affirm on appeal or certiorari, final judgments of lower courts in: a.

Cases in which the constitutionality or validity of any treaty, international or executive agreement, law, decree, proclamation, order, instruction, ordinance or regulation is in question;

b.

Cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed thereto;

c.

Cases involving the jurisdiction of lower courts;

d. All criminal cases in which the penalty imposed is reclusion perpetua or higher; e.

All cases in which only an error or question of law is involved.

JURISDICTION OF THE COURT OF APPEALS 1.

ORIGINAL jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus, and quo warranto, and auxiliary writs or processes, whether or not in aid of its appellate jurisdiction (concurrent with SC and RTCs)

2.

EXCLUSIVE original jurisdiction over actions for annulment of judgments of RTCs.

3.

EXCLUSIVE appellate jurisdiction over all final judgments, decisions, resolutions, orders or awards of RTCs and quasi-judicial agencies, bodies, or commissions, EXCEPT those which fall within the appellate jurisdiction of the SC, namely: a.

COMELEC;

b.

Commission on Audit;

c.

Sandiganbayan.

JURISDICTION OF THE REGIONAL TRIAL COURTS I. ORIGINAL A. CIVIL CASES 1.

Cases where the subject of the litigation is incapable of pecuniary estimation;

2.

Involving the title to, or possession of, real property, or any interest therein, where the assessed value of the property involved exceeds P20,000/ P50,000, EXCEPT actions for forcible entry and unlawful detainer:

3.

All actions in admiralty and maritime jurisdiction where the demand or claim exceeds P200,000/P400,000;

4.

Probate proceedings, both testate and intestate, where the gross value of the estate P200,000/P400,000;

5.

In all actions involving the contract of marriage and marital relations;

6.

In all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising jurisdiction;

7.

In all civil actions and special proceedings falling within the exclusive original jurisdiction of a Juvenile and Domestic Relations Court and of the Court of Agrarian Relations as now provided by law; and

8.

In all other cases in which the demand, exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses, and costs or the value of the property in controversy exceeds P200,000/P400,000;

B. CRIMINAL CASES All criminal cases not within the exclusive jurisdiction of any court, tribunal, or body EXCEPT those within the jurisdiction of the Sandiganbayan, where the penalty exceeds 6 years imprisonment irrespective of fine, or if only a fine is imposable, exceeds P6,000, regardless of the amount of civil liability.

36  Manzano vs. Valera R.A. 7691 places jurisdiction over criminal cases where the penalty is 6 years or less with the MTCs. Libel is punishable by prision correcional in its minimum and medium periods and prision correcional has a range from six months and one day to six years. ON the other hand, Art. 360 of the RPC gives jurisdiction over libel cases to the CFI (now RTC). The latter is a special law which must prevail over general laws. Moreover, from the provisions of R.A. 7691, there seems to be no manifest intent to repeal or alter the jurisdiction in libel cases. Thus, RTCs still have jurisdiction over libel cases. II. APPELLATE All cases decided by the lower courts (MTCs) in their respective territorial jurisdictions. NOTE: no trial de novo; case is decided on the basis of decision and supporting affidavits. JURISDICTION OF THE FAMILY COURTS (R.A. 8369) Family Courts shall have exclusive original jurisdiction to hear and decide the following cases: 1.

Criminal cases where: a.

One or more of the accused is below eighteen (18) years of age but not less than nine (9) years of age, OR

b.

One or more of the victims is a minor at the time of the commission of the offense.

Provided, That if the minor is found guilty, the court shall promulgate sentence and ascertain any civil liability which the accused may have incurred. The sentence, however, shall be suspended without need of application pursuant to the "Child and Youth Welfare Code"; 2.

Petitions for guardianship, custody of children, habeas corpus in relation to the latter;

3.

Petitions for adoption of children and the revocation thereof;

4.

Complaints [for]: a.

Annulment of marriage

b.

Declaration of nullity of marriage

c.

Those relating to marital status and property relations of: i.

Husband and wife OR

ii. Those living together under different status and agreements, AND d.

Petitions for dissolution of conjugal partnership of gains;

5.

Petitions for support and/or acknowledgment;

6.

Summary judicial proceedings brought under the provisions of the "Family Code of the Philippines";

7.

Petitions for: a.

Declaration of status of children as i.

Abandoned

ii. Dependent OR iii. Neglected children b.

Voluntary or involuntary commitment of children;

c.

The suspension, termination, or restoration of parental authority and other cases cognizable under "Child and Youth Welfare Code", Executive Order No. 56, (Series of 1986), and other related laws;

8.

Petitions for the constitution of the family home;

9.

Cases against minors cognizable under the Dangerous Drugs Act, as amended;

10. Violations of Republic Act No. 7610, otherwise known as the "Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act," as amended by Republic Act No. 7658; and 11. Cases of domestic violence against: a.

Women

37  Which are acts of gender based violence that results, or are likely to result in physical, sexual or psychological harm or suffering to women; and other forms of physical abuse such as battering or threats and coercion which violate a woman's personhood, integrity and freedom of movement; AND b.

Children  Which include the commission of all forms of abuse, neglect, cruelty, exploitation, violence, and discrimination and all other conditions prejudicial to their development.

If an act constitutes a criminal offense, the accused or batterer shall be subject to criminal proceedings and the corresponding penalties. If any question involving any of the above matters should arise as an incident in any case pending in the regular courts, said incident shall be determined in that court. Decisions and orders of the court shall be appealed in the same manner and subject to the same conditions as appeals from the ordinary Regional Trial Courts. JURISDICTION OF THE MUNICIPAL TRIAL COURTS, METROPOLITAN TRIAL COURTS MUNICIPAL CIRCUIT TRIAL COURTS

AND THE

A. CIVIL CASES 1. Civil actions and probate proceedings, testate and intestate, including the grant of provisional remedies where the demand, exclusive of interest, damages, attorney’s fees and costs, does not exceed P100,000/200,000. 2. Exclusive original jurisdiction over cases of forcible entry and unlawful detainer; issue of ownership resolved only to determine issue of possession.  After lapse of 1 year, MTC loses jurisdiction, and case becomes one for recovery of possession de jure (accion publicicana), although MTC may still have jurisdiction if value of property does not exceed P20,000/50,000. 3. Actions involving personal property valued at not more than P100,000/200,000. 4. Actions involving title or possession of real property where the assessed value doe not exceed P20,000/50,000. 5. Inclusion/exclusion of voters. B. CRIMINAL JURISDICTION 1. Violations of city or municipal ordinances. 2. All offenses punishable with not more than 6 years imprisonment, irrespective of fine, or a fine of not more than P6,000, regardless of civil liabilities and accessory penalties.

SUMMARY PROCEDURE I.

CASES APPLICABLE A. CIVIL CASES 1.

All cases of forcible entry and unlawful detainer irrespective of amount of damages or unpaid rentals; without question of ownership; attorney’s fees not exceeding P20,000 if quieting of ownership; resolved to determine question of possession.

2.

Other civil cases EXCEPT probate proceedings, where the total amount of the claim does not exceed P10,000, exclusive of interest and cost.

B. CRIMINAL CASES 1.

Violation of traffic laws, rules, regulations

2.

Violation of rental laws

3.

Violations of city or municipality ordinances

4.

All other criminal cases where the penalty does not exceed 6 months or a fine of P1000 or both

5.

Damage to property through criminal negligence where the fine does not exceed P10,000.

II. PROHIBITED PLEADINGS AND MOTIONS

38 1.

Motion to dismiss or quash EXCEPT for lack of jurisdiction over subject matter or failure to comply with Katarungang Pambarangay (LGC) requirements

2.

Motion for bill of particulars

3.

Motions for new trial, reconsideration, re-opening

4.

Petition for relief from judgment

5.

Motion for extension of time to file pleadings, affidavits

6.

Memoranda

7.

Petition for certiorari, mandamus, and prohibition against any interlocutory order issued by the court

8.

Motion to declare defendant in default

9.

Dilatory motion for postponement

10. Reply 11. Third-party complaints 12. Motion for intervention JURISDICTION OF THE HOUSING AND LAND USE REGULATORY BOARD (HLURB) EXCLUSIVE jurisdiction over 1. Unsound real estate business practices 2. Claims involving refund and any other claims filed by subdivision lot or condominium unit buyer against the project owner, developer, dealer, broker, or salesman 3. Cases involving specific performance of contractual and statutory obligations filed by buyers of subdivision lots or condominium units against the owner, developer, dealer, broker, or salesman JURISDICTION OF THE KATARUNGANG PAMBARANGAY (UNDER THE LOCAL GOVERNMENT CODE OF 1991) 1.

No complaint, petition, action or proceeding involving any matter within the authority of the lupon shall be filed or instituted directly in court or any other government office for adjudication, unless: a.

There has been a confrontation between the parties before the lupon chairman or pangkat, AND

b.

That no conciliation or settlement has been reached as certified by the lupon/pangkat secretary as attested to by lupon chairman or pangkat chairman, or unless such settlement has been repudiated by the parties thereto

2. Disputes subject to Conciliation Requirement: All disputes between parties actually residing in the same city or municipality  HOWEVER, the court in which non-criminal cases not falling within the authority of the Lupon may, at any time before trial, refer the case to the lupon for amicable settlement. 3. EXCEPTIONS TO CONCILIATION REQUIREMENT (SC Circular 14-93) a.

Where one party is the government, or any subdivision or instrumentality thereof;

b.

Where one party is a public officer or employee, and the dispute relates to the performance of his official functions;

c.

Where the dispute involves real properties located in different cities and municipalities, unless the parties thereto agree to submit their difference to amicable settlement by an appropriate Lupon;

d.

Any complaint by or against corporations, partnerships or juridical entities, since only individuals shall be parties to Barangay conciliation proceedings either as complainants or respondents (Sec. 1, Rule VI, Katarungang Pambarangay Rules);

e.

Disputes involving parties who actually reside in barangays of different cities or municipalities, EXCEPT: i.

Where such barangay units adjoin each other, AND

ii. The parties thereto agree to submit their differences to amicable settlement by an appropriate Lupon;

39 f.

Offenses for which the law prescribes a maximum penalty of imprisonment exceeding one (1) year or a fine over five thousand pesos (P5,000.00);

g.

Offenses where there is no private offended party;

h.

Disputes where urgent legal action is necessary to prevent injustice from being committed or further continued, specifically the following: i.

Criminal cases where accused is under police custody or detention;

ii. Petitions for habeas corpus by a person illegally deprived of his rightful custody over another or a person illegally deprived of his liberty or one acting in his behalf; iii. Actions coupled with provisional remedies such as preliminary injunction, attachment, delivery of personal property and support during the pendency of the action; AND iv. Actions which may be barred by the Statute of Limitations. i.

Any class of disputes which the President may determine in the interest of justice or upon the recommendation of the Secretary of Justice;

j.

Where the dispute arises from the Comprehensive Agrarian Reform Law (CARL) (Sections. 46 & 47, R.A. 6657);

k.

Labor disputes or controversies arising from employer-employee relations (Montoya vs. Escayo, et al., 171 SCRA 442; Art. 226, Labor Code, as amended, which grants original and exclusive jurisdiction over conciliation and mediation of disputes, grievances or problems to certain offices of the Department of Labor and Employment);

l.

Actions to annul judgment upon a compromise, which may be filed directly in court.

4. VENUE OF PROCEEDINGS: Situation

Venue

Parties reside in same barangay

That barangay

Parties reside in different barangays

Barangay where respondent, or any of the respondents, actually resides, at the option of the complainant

Disputes involving real property or interest therein

Barangay where property is situated

Disputes arising at the workplace where the contending parties are employed, or at the institution where such parties are enrolled for study

Barangay where such workplace or institution is located

 Objections to venue shall be raised in the mediation proceedings before the punong barangay; otherwise, they are deemed waived. Legal questions confronting the punong barangay which might arise in resolving such objections are to be submitted to the Secretary of the DOJ, whose ruling shall be binding. 5.

EFFECT OF NON-COMPLIANCE: a.

Dismissal upon motion of defendants for failure to state cause of action or prematurity; OR

b.

Suspension of proceedings upon petition and referral of case motu proprio to appropriate barangay authority.

6. PROCEDURE FOR AMICABLE SETTLEMENT: a.

Complainant pays appropriate filing fees, and shall complain, orally or in writing, to the lupon chairman of the barangay;

b.

Lupon chairman shall make attempts at mediation; if he fails within 15 days from date of first meeting, he shall set a date for the constitution of a pangkat ng tagapagsundo (3 members; chosen by the parties from the list of the members of the lupon)

c.

Pangkat shall have power to issue summons, and shall hear both parties and their witnesses, and attempt to arrive at an amicable settlement. It shall arrive at said settlement or resolution of the dispute within 15 days from the day it convenes.

 During the period while the dispute is under mediation, the prescriptive periods for offenses, and for causes of action shall be interrupted upon filing of the complaint with the punong barangay. Said interruption shall not exceed 60 days from said filing.

40  In all proceedings, parties must appear in person without the assistance of counsel or representatives, EXCEPT for minors and incompetents who may be assisted by their next-ofkin who are not lawyers. 7.

Amicable settlement shall have the force and effect of a final judgment upon the expiration of 10 days from its date, unless: a.

It is repudiated, or  Repudiation must be done within 10 days, by filing a sworn statement with the lupon chairman;  The grounds for repudiation are vitiation of consent by fraud, violence or intimidation;  Such repudiation is a sufficient basis for the issuance of a certification for filing a complaint with the court.

b.

A petition to nullify the settlement is filed in the proper city or municipal court  The above does not apply to cases not within jurisdiction of the lupon but submitted to it. In this case, the compromise agreed upon by the parties before the lupon/pangkat chair shall be submitted to the court and upon approval thereof, shall have the force and effect of a judgment of said court.

8. EXECUTION OF AMICABLE SETTLEMENT:

9.

a.

Within 6 months from date of settlement: by the lupon.

b.

Thereafter, by action in the appropriate city of municipal court

CERTIFICATION OF BARANGAY AUTHORITIES (for filing a complaint in court) shall be issued only upon complying with the following requirements: a.

Issued by lupon secretary and attested by lupon chairman/ punong barangay, that confrontation took place and conciliation settlement was reached, but subsequently repudiated.

b.

Issued by pangkat secretary and attested by pangkat chairman, that: i.

There was a confrontation but no settlement; OR

ii. There was no personal confrontation without any fault on the part of the complainant. c.

Issued by the Punong Barangay, as requested by the proper party, on the ground of failure of settlement, where the dispute involves members of the same indigenous cultural community, which shall be settled in accordance with the customs and traditions of that particular cultural community, or where one or more of the parties to the aforesaid dispute belong to the minority and the parties mutually agreed to submit their dispute to the indigenous system of amicable settlement, and there has been no settlement as certified by the datu or tribal leader or elder, to the Punong Barangay of the place of settlement

 If mediation or conciliation proved unsuccessful before punong barangay there having been no agreement to conciliate, OR respondent failed to appear before punong barangay, Punong Barangay shall not issue the certification (because now mandatory for him to constitute the Pangkat before whom mediation, conciliation, or arbitration proceedings shall be held.) JURISDICTION OF THE SANDIGANBAYAN A. ORIGINAL 1.

Violations of: a.

“Anti-Graft and Corrupt Practices Act”;

b.

R.A. 1379 (“An Act Declaring Forfeiture in Favor of the State of Any Property Found to Have Been Unlawfully Acquired By Any Public Officer or Employee and Providing for the Proceedings Therefor”); or

c.

Title VII, Chapter II, § 2 of the RPC (i.e., Articles 210-212 of RPC)

 Where one or more of the principal accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense: i.

Officials of executive branch occupying positions classified as Grade 27 or higher

ii. Members of Congress and officials thereof classified as Grade 27 or higher

41 iii. Members of the Judiciary, without prejudice to the provisions of the Constitution (on impeachment) iv. Chairmen and members of the Constitutional Commissions, without prejudice to the provisions of the Constitution v.

All other national and local officials classified as Grade 27 or higher; or

2.

Other offenses or felonies, committed by public officials and employees mentioned in #1, in relation to their office, whether simple or complexed with other crimes

3.

Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A.

B. APPELLATE If none of the principal accused are occupying positions of grade 27 or higher, original jurisdiction will be with either the MTC or RTC; SB will exercise exclusive appellate jurisdiction on said cases.  The procedure prescribed in BP Blg. 129, as well as the implementing rules that the Supreme Court has promulgated and may hereafter promulgate, relative to appeals/petitions for review to the Court of Appeals shall apply to appeals and petitions for review filed with the Sandiganbayan. C. NOTES: 1.

Private individuals charged as co-principals, accomplices or accessories with the public officers or employees shall be tried jointly with said public officers and employees in the proper courts

2.

Any provisions of law or Rules of Court to the contrary notwithstanding, the criminal action and the corresponding civil action for the recovery of civil liability arising from the offense charged shall at all times be simultaneously instituted with, and jointly determined in, the same proceeding by the Sandiganbayan or the appropriate courts, the filing of the criminal action being deemed to necessarily carry with it the filing of the civil action, and no right to reserve the filing of such civil action separately from the criminal action shall be recognized.

3.

Decisions of the Sandiganbayan: a.

Appealable to the SC by petition for review on certiorari raising pure questions of law in accordance with Rule 45 of the Rules of Court;

b.

If SB imposes penalty of reclusion perpetua or higher, the decision shall be appealable to the SC by Notice of Appeal;

c.

If penalty imposed is death, review by the Supreme Court shall be automatic, whether or not the accused filed an appeal.

REMEDIAL LAW DEFINITIONS/CONCEPTS JURISDICTION AND VENUE DIFFERENTIATED JURISDICTION

VENUE

Authority to hear and determine a case

Court/place where the case is to be tried and heard

A matter of substantive law

A matter of procedural law

Fixed by law and cannot be conferred by the parties

May be conferred by the act or agreement of the parties

Establishes a relation between the court and subject matter

Establishes a relation between plaintiff defendant, or petitioner and respondent

CLASSIFICATIONS OF JURISDICTION 1.

General vs. Specific/Limited:

General - power to adjudicate all controversies EXCEPT those expressly withheld from the plenary powers of the court

and

42 Specific/Limited - restricted to particular cases and subject to such limitations as may be provided by the governing law 2.

Original vs. Appellate

Original – power of the court to take judicial cognizance of a case instituted for judicial action for the first time Appellate – authority of a court higher in rank to reexamine the final order or judgment of a lower court which tried the case now elevated for judicial review 3.

Exclusive vs. Concurrent

Exclusive – power to adjudicate a case or proceeding to the exclusion of all other courts at that stage Concurrent – also known as confluent or coordinate jurisdiction; power conferred upon different courts, whether of the same or different ranks, to take cognizance at the same state of the same case NOTE: General Rule: Jurisdiction, once acquired, continues until the case is finally terminated. Exceptions: 1.

When a subsequent law provides a prohibition for the continued exercise of jurisdiction;

2.

Where the law penalizing an act is punishable is repealed by a subsequent law;

3.

When accused is deprived of his constitutional right such as where the court fails to provide counsel for the accused who is unable to obtain one and does not intelligently waive his constitutional right;

4.

Where the statute expressly provides, or is construed to the effect that it intended to operate as to actions pending before its enactment;

5.

When the proceedings in the court acquiring jurisdiction is terminated, abandoned or declared void;

6.

Once appeal has been perfected.

CLASSIFICATION OF ACTIONS 1.

Real, personal and mixed

Real –

brought for the protection of real rights, land, tenements, or one founded on privity of estate only

Personal – not founded upon the privity of real rights or real property Mixed – 2.

brought for protection or recovery of real property and also for an award for damages sustained

In rem, in personam, and quasi in rem

In rem – not directed against particular persons but against the thing itself; object is to bar indifferently all who might be minded to make objection against the right sought to be enforced; hence, judgment is binding upon the whole world (e.g., land registration; special proceedings) In personam – directed against particular persons on the basis of their personal liability to establish a claim against them; judgment is binding only upon the parties impleaded and their successors in interest (e.g., action for breach of contract) Quasi in rem – directed against particular persons, but the purpose of which is to bar and bind not only said persons but any other person who claims any interest in the property or right subject of the suit (e.g. action for judicial foreclosure of mortgage) 3.

Transitory vs. local

Transitory – one the venue of which depends generally upon the residence of the parties, regardless of where the cause of action arose (e.g., personal actions) Local – one required by the Rules to be instituted in a particular place in the absence of an agreement to the contrary (e.g., real actions) KINDS OF PARTIES 1.

Real party in interest – person having an interest in the subject of the action and in obtaining the relief demanded.

43 2.

Indispensable party –

a person without whom no final determination can be had of an action.

3.

Proper party –

4.

Pro forma party – a husband or wife who is required to be joined in suits by or against his spouse

5.

Quasi-parties –

a person who is not indispensable but should be included if complete relief is to be accorded as between those already parties. those in whose behalf a class or representative suit is brought; parties not initially/ formally impleaded as original parties but later bind themselves to comply with the terms of a judgment or compromise rendered therein.

PLEADINGS Pleading –

written allegation of the parties of their respective claims and defenses submitted to the court for trial and judgment.

KINDS OF PLEADINGS 1.

COMPLAINT – concise statement of the ultimate facts constituting the plaintiff’s cause or causes of action.

2.

ANSWER – pleading where an adverse party sets forth negative and affirmative defenses upon which he relies.

3.

a.

Negative Defense – specific denial of a fact alleged.

b.

Affirmative Defense –

COUNTERCLAIM –

an allegation of new matter which, though admits the material allegations of the complaint, nevertheless prevents recovery.

any claim for money or other relief which a party may have against an opposing party.

a.

Compulsory Counterclaim – one arising out of or is necessarily connected with the subject matter of the claim (e.g., recoupment).

b.

Permissive Counterclaim – does not arise or is not connected with the subject matter of the claim (e.g., set-off).

4.

CROSS CLAIM –

claim by one party against a co-party arising out of a transaction or occurrence which is the subject matter of the action or counterclaim.

5.

REPLY – a pleading that denies or alleges facts in denial of new matters alleged by way of defense in the answer with the purpose of joining the issues as to such new matters.

6.

THIRD-PARTY COMPLAINT –

a claim which a defending party may file against a person not a party to the action for contribution, indemnity, subrogation or any other relief.

OTHER DEFINITIONS Specific Denial –

specific allegation of the fact the truth of which he does not admit and setting forth the substance of the matter relied upon to support the denial OR allegation of lack of knowledge or information sufficient to form a belief as the truth of the averment.

Negative Pregnant –

a form of denial where only the qualification or modification of the fact alleged is denied while the fact itself is admitted.

Summons – an order directed to a defendant in the name of the court and under its seal directing that the defendant answer the complaint upon failure of which judgment will be taken. Motion – application for an order not included in the judgment. Subpoena –

process directed to a person requiring him to attend and to testify at a hearing or the trial or to bring with him any book or thing under his control.

Demurrer to Evidence – Preliminary Attachment –

Preliminary Injunction –

a motion to dismiss based on insufficiency of evidence of the prosecution. an order of the court granted at the commencement of the action or at any time before entry of judgment to seize the property of the debtor in advance of final judgment to hold it for the purpose of satisfying the judgment. an order granted at any stage of an action prior to the judgment or final order requiring a person to refrain from a particular act.

44 Preliminary Mandatory Injunction – Criminal Complaint – Information –

an order requiring the performance of a particular act.

sworn written statement charging a person with an offense subscribed by an offended party, peace officer, or other public officer.

an accusation in writing charging a person with an offense subscribed by the fiscal and filed with court.

Preliminary Investigation –

an inquiry or proceeding for the purpose of determining whether there is sufficient ground to engender a well-founded belief that a crime has been committed and that the respondent is probably guilty thereof.

Arrest – taking a person into custody in order that he may be bound to answer for the commission of an offense. Bail – the security for the release of a person in custody of the law furnished by him or a bondsman conditioned upon his appearing before any court as required under the condition hereinafter specified. Property Bond –

an undertaking constituted as lien on the real property given as security for the amount of bail.

45 CIVIL PROCEDURE

LET'S START AT THE VERY BEGINNING Angel of God, my Guardian dear To Whom His Love entrusts Me here Ever this day, be at my side To Light and Guide, to Rule and Guard Amen

DISCLAIMER: This is not authoritative since this is based solely on the lecture notes, hence the frequent WITs (what is this?) NOTE: all WORD GAMES are not formal definitions but word for word transcriptions of L's mind maps. Hence, these are practical definitions just to juggle your memory according to SIr's mental outline

COALITION FOR REPRODUCTIVE EQUALITY BRIEF. Though leave policies that are gender-neutral may affect the employment interests of both sexes, such policies place an additional burden on females with the fundamental non-employment right of procreative choice. The law in question reduces the discriminatory impact of inadequate leave policies on women's procreative rights, while conferring no special benefit on any group of employees, and imposing no special burden on others. There is no inconsistency between the federal law's goal of removing artificial barriers to equal employment opportunity between the sexes, and the California statute's effect of equalizing male and female employees' ability to exercise procreative choice w/o jeopardizing their jobs. MENKEL. PORTIA IN A DIFFERENT VOICE.

GILLIAN, IN A DIFFERENT VOICE. Jake: Rule Based on Principle Based Resolution. Apply the law, and make allowances for mistakes in the law. Situation does not create the rule. Amy: Relational / Consensual / Processional Based Resolution CALIFORNIA FEDERAL SAVINGS AND LOAN V. GUERRA. Issue: Re: 1978 California legislation re: State mandated employee benefits but not for other temporary disabilities. Single mother lost her job as a receptionist after her maternity leave, and as a result of her unemployment, lost custody of her daughter. Mother filed case to enforce maternity benefits: employer challenged statute as inconsistent with Federal Pregnancy Discrimination Act (PDA) which treats pregnancy as similar with other temporary disabilities for employment purposes. ACLU BRIEF. Elimination of pregnancy-based distinctions valid re: employment purposes since protectionist laws tend to promote stereotype of female childbearers and caregivers, and deter employers from hiring them or putting them in more responsible positions; they make women appear as more expensive, less reliable employees. By making pregnancy comparable to other temporary physical conditions, Congress directs attention away from debilitating stereotypes and focus attention on workers' need for disability leave itself. Benefits should be provided on a genderneutral basis.

Re: Gillian's observations about M/F differences in moral reasoning re: structure of legal system, practice of law, creation of laws, legal reasoning and law as part of the decision-making process; 2 questions: 1. How has the exclusion, or at least the devaluation of women's voices affected the choices made in the values underlying our current legal structures? (Value system) 2. Is there another set of values within existing legal structures? Usually, tendency for one set of characteristics to mitigate the excesses of the other, therefore the harshness of law produced the flexibility of equity, and the abuse of flexibility gave rise to rules of law to limit discretion. Still, the tendency for maledominated or male-created forms and values to control.

RULE 1 Purpose of Rules Alonzo v. Villamor, 16 Phil 315, 321-322 Facts: Defendant members of the Municipal Board took over certain church & personal properties on the ground that the buildings were erected on the land owned by the municipality & therefore the municipality can administer & collect the revenues. The CFI granted recovery of the properties. One of the arguments posed by the defendants was that Fr. Alonso, the parish priest, was not the real party-ininterest but rather the Bishop of the diocese. Held: The property in question at the time it was taken was Church property. It is undoubted that the Bishop is the real party. But by Code of Civil

46 Procedure §10, cts. are authorized & directed to allow a party to amend any pleading or proceeding at any stage of the action, in furtherance of justice. § 503 prohibits the reversal of any judgment on merely formal or technical grounds or for such error as has not prejudiced the rights of the excepting party, The error in CAB is purely technical. The plaintiff has asserted all throughout that he is prosecuting the case not for himself but for the Bishop. Substantially, no one is deceived. Substitution is not substantial but formal & mere defect in form cannot possibly prejudice so long as the substantial is clearly evident. ALONZO V VILLAMOR. misjoinder/nonjoinder of parties not ground for dismissal. Must allege lack of cause of action Amendment allowed for matters of form; therefore, if parties acquiesce during trial, there may be no need for formal lesson. Lesson in ALONZO: If rules are clear, apply; if there is ambiguity, constr5uct so that there is justice for all Jurisdiction BP Blg. 128 RA No. 7691 RA No. 8369 Javier v. CA, 214 SCRA 572 (1992) Facts: Javier filed a case vs. Jebsens Maritime, Inc. in RTC Makati to avail of death benefits when her husband drowned off the coast of Spain. JMI’s new counsel instead of continuing the trial filed a Motion to Dismiss (MTD) on the ground that it is the POEA that has jurisdiction. RTC denied. JMI failed to appear at the hearing & RTC declared them as having waived right to cross-examine. Motion for Reconsideration was denied. JMI successfully appealed to CA. Javier’s MFR was denied. Held: EO 247 §3 (d) provides that the POEA shall have exclusive & original jurisdiction to hear & decide all claims arising out of an EE-ER relation or by virtue of any law or contract involving Filipino workers for overseas employment. Javier’s’ contention that JMI is estopped fr. assailing the jurisdiction of the RTC considering that the latter had actively participated in the proceedings before said ct. is unavailing since JMI had raised the question of jurisdiction in the RTC. The doctrine of estoppel cannot be properly invoked by Javier despite the participation of JMI at the initial stages of the trial proceedings as the issue of jurisdiction may be raised at any time & at any stage of the action. JAVIER V CA. Doctrine of Primary Administrative Jurisdiction: file original and exclusive jurisdiction of administrative tribunal, even if possible to lead jurisdiction in both. Exhaustion of administrative remedies is to give a chance for administrative functions to work. Santos v. NW, 210 SCRA 256 (1992)

Facts: Santos was bumped off his flight back to the USA despite confirmation. He sued in the Makati RTC for damages. NWOA filed a MTD for on the ground of lack of jurisdiction citing the Warsaw Convention Art. 28(1) w/c states that the complaint could be instituted only in the territory of one of the High Contracting Parties, before: (1) the ct. of the domicile of the carrier; (2) the ct. of the principal place of business; (3) the ct. where it has a place of business thru w/c the contract had been made; & (4) the ct. of the place of destination. The suit was not filed in any of these places. Held: The Warsaw Convention applies to all international transportation cases. A number of reasons tends to support the characterization of Art. 28 (1) as a jurisdiction & not a venue provision. First, the wording of Art. 32, w/c indicate the places where the actin for damages must be brought underscores the mandatory nature of Art. 28 (1). Second, this characterization is consistent wit one of the objectives of the Convention w/c is to regulate in a uniform manner the condition of international transportation by air. Third, the Convention does not contain any provision prescribing rules on jurisdiction other than Art. 28 (1) w/c means that the phrase “rules of jurisdiction” used in Art. 32 must refer only to Art. 28 (1). In fact, the last sentence of Art. 32 specifically deals w/ the exclusive enumeration in Art. 28 (1) as jurisdictions w/c as such cannot be left to the will of the parties regardless of the time when the damage occurred. The Constitutional right on free access to cts. refers to cts. w/ jurisdiction over the suit. The place of destination as determined by the contract is the ultimate destination w/c is San Francisco, not Manila. Domicile is where NWOA is incorporated. Important is the distinction between the country where the principal place of business is located & the country in w/c it has a place of business thru w/c the particular contract in question was made. SANTOS V NORTHWEST. Jurisdiction. 2 meanings: a) place of filing and b) level of court. Can't be changed, set by law. Venue. Place of filing. Can be changed by consent of parties subject to pertinent rules. In the case at bar, the source of law is treaty, not contract. Therefore, jurisdiction set by law. Venue prescribed by process or Rules of Court (what does this mean?) The difference between jurisdiction and venue. Look at a) consequence and b) source of law Lopez v. NW, 223 SCRA 469 Facts: Lopez was bumped off her flight to New York by Northwest. She filed a complaint for breach of contract of carriage w/ damages, alleging bad faith on the part of the airline. NW filed MTD on the ground that the RTC had no jurisdiction under the Warsaw Convention. RTC & CA denied: Art. 28 (1) prescribes venue for actions under Arts. 17-19 & does not cover carrier’s bad faith in absolutely refusing to comply w/ contract of carriage; off-loading, & bumping off is not covered under the Warsaw Convention. Appeal in the SC failed. After trial on the merits, RTC directed parties to submit their respective memoranda for decision 30 days & it expired Feb. 14, 1992. On July, NW filed MTD after SC ruling on Santos vs. NW. RTC granted.

47 Held: RTC had jurisdiction. It is not clear whether the complaint contains the allegation w/c may fall w/in Art. 28 (1). What is clear is that NW did not object to RTC’s order to submit evidence & declare case submitted for decision pursuant to 1987 Consti, Art. 8, Sec. 15, Nos. 1 & 2. TC had 90 days fr. Feb. 15 to decide w/c was the only thing left for it to do. BY virtue of the SC’s resolution, RTC had prima facie jurisdiction. It was also not established that the facts in Santos were substantially the same. Besides, posterior changes in SC doctrines cannot be retroactively applied to nullify a prior SC ruling. Jurisdiction continues until termination. While jurisdiction over subject matter may be raised at any time, party may be barred on ground of laches/estoppel. Bulao v. CA, 218 SCRA 321 (1992) Facts: Santiago Belleza sued Honorio Bulao for damages in MuTC for having built a dam on an irrigation canal, causing the waterflow to divert to Belleza’s land, resulting into crop damage. Bulao filed a MTD on the ground that RTC had jurisdiction - denied. He then argued that it was the National Water Resources Council that had jurisdiction - denied. MuTC declared Bulao in default & ruled for Belleza. Bulao appealed to the RTC -denied. Held: MuTC had jurisdiction. But to resolve this, determine first the nature of the action. This can be ascertained fr. the ultimate facts averred in the complaint constituting the COA. Allegations in the complaint determine the nature of the action & consequently the jurisdiction of the cts.. It is clear fr. a reading of the complaint that it is an action for damages predicated on quasi-delict Although the title of the complaint (“Damages”) is not necessarily determinative of the nature of the action, it would nevertheless indicate that what was contemplated was an action for damages. Allegations of the facts set forth in the complaint & not the prayer for relief determine the nature of the action. BULAO V CA. The wonderful thing about the servient's estate's complaint was the allegation that the dominant estate "maliciously put a dam" and this phrase placed it within the court's jurisdiction. To place the case within the National Water Resources Council (NWRC)'s jurisdiction, allege that dominant estate set up dam without a permit in violation of PD 1067 and took control of the water, in effect appropriated water illegally. Name game: Jurisdiction is prescribed by law and acquired by court. Tijam v. Sibonghanoy, 23 SCRA Facts: The Tijams filed a civil case against the Sibonghanoys for recovery of P1,900 + interest. The Sibonghanoys filed an answer w/ counterclaim, to w/c the Tijams filed a reply. The CFI Cebu ruled in the Tijam’s favor. A writ of execution was returned unsatisfied so the Tijams filed a motion for execution against the Manila Surety & Fidelity Co., w/c was denied due to lack of demand. A demand later made was unsatisfied,

so the ct., upon motion, issued a writ of execution. Appeal w/ the CA failed. MFR filed, alleging that the CFI had no jurisdiction bec. 1 month before the case was filed, RA 926, or the Judicial Reorganization Act of 1948, took effect, Sec. 88 of w/c places original & exclusive jurisdiction in inferior cts. over all civil actions where the value of the subject matter is ≤P2T. CA set aside decision by certifying the case to the SC, w/c has exclusive appellate jurisdiction over all cases in w/c the jurisdiction of inferior cts. is at issue. Held: Although objections to jurisdiction may be raised at any stage of the proceedings, in the CAB, it took almost 15 years before the Surety filed its MTD (1963), raising lack of jurisdiction for the first time. It is now barred by laches. From the time it became a quasi-party upon filing of a counter bond in 1948, it could have raised the objection. Instead, at several stages of the action, it invoked the jurisdiction of said cts. to obtain an affirmative relief. It was only when the CA ruled adversely that it finally raised the question of jurisdiction. SC frowns upon the undesirable practice of a party submitting his case for decision & then accepting the judgment only if it is favorable & attacking it for lack of jurisdiction when adverse. TIJAM V SIBONGHANOY. The trial court, after 15 years, can act motu proprio and dismiss the case for lack of jurisdiction. Estoppel by laches does not apply to judge. Abalos v. CA, 30 April 1991 Facts: Abalos spouses sued to recover possession of a lot in Quezon City registered in their name. The squatters, against whom the action was filed, lost the case in the QC RTC so they appealed to the CA on the ground that the RTC erred in not dismissing the case for failure to comply w/ the Katarungang Barangay conciliation procedure. CA granted. Held: RTC had jurisdiction. When the Abalos spouses filed their complaint, they placed QC as their address. But they were able to change it to Caloocan upon leave of ct. w/o the respondents objecting. The requirement of conciliation cannot be enforced since the property is in QC, where the respondents reside, while the Abalos spouses live in Caloocan (PD 1508 Sec. 20). Respondents effectively waived their right when they failed to object to the correction of the Abalos’ residence fr. QC to Caloocan participated in the trial on the merits. The fact that they argued their case & adduced their evidence amounts to a waiver of this defense. Once a party submits to the jurisdiction of the ct. & participates in the trial on the merits, he cannot thereafter, after an unfavorable judgment, take a total turnabout & say that compliance w/ PD 1508 was not made. ABALOS V CA. Ruling (acc. to L): Amendment already happens implicitly when parties acquiesce Q: Is failure to undergo Katarunggang Pambaranggay a ground for dismissal for failure to comply with condition precedent? L: Abalos fails to clarify this. Formerly, grounds for MTD in ROC Rule 16 provided "failure to state a cause of action". Now clarified

48 by Revised ROC Rule 16 (j) which now states "failure to comply with condition precedent"

CALIMLIM V RAMIREZ. Res judicata: bar by prior judgment (diff. From estoppel)

NOTE: In this class, L is synonymous with A in Q & A; but more often, he prefers to be Q. All Qs are Ls unless otherwise indicated

L: General Rule: Jurisdiction is conferred by law and thus it can be raised at any point in the proceedings even on appeal TIJAM rule: Estoppel by laches occurs when 2 requisites concur a. passage of an unreasonable length of time a. party sleep on its rights to make other party believe that the former has abandoned his rights Therefore, party can't raise question of jurisdiction if he is guilty of estoppel by laches CALIMLIM rule: W/N party asked for affirmative relief irrelevant; what matters is whether party was led to believe that the other party slept on his rights. A rule on equity. General Rule: Court can dismiss case for lack of jurisdiction motu proprio

Galuba v. Laureta, 157 SCRA 627 LECTURE ON JURISDICTION RA 8369: Changes jurisdiction for cases Jurisdiction, remedy, relief, cause of action, subject matter (what is this?) Place: Rules prescribing place to file may not necessarily refer to venue but to jurisdiction as well P20T/P50T P100T/P200T

-- subject matter -- relief

If allegations not coMplete, vulnerable to MTD

Ortigas & Co. v. CA 106 SCRA

Judicial power: sum total of all courts comprising the judiciary power of judicary of make decisions on actual controversies. Jurisdiction: a particular court exercising power over a specific controversy

Facts: Abalos spouses sued to recover possession of a lot in Quezon City registered in their name. The squatters, against whom the action was filed, lost the case in the QC RTC so they appealed to the CA on the ground that the RTC erred in not dismissing the case for failure to comply w/ the Katarungang Barangay conciliation procedure. CA granted.

Facts: Ortigas & Co. sold to Maximo Belmonte a piece of land. Terms: Belmonte would be considered a lessee until full payment & in case of default he would be ejected as trespasser or unlawful detainer. Belmonte failed to pay so an action for unlawful detainer was field in the San Juan MuTC, where Ortigas prayed that the residential building constructed by Belmonte be forfeited in its favor. Belmonte lost so he appealed to the CFI Rizal by filing an MTD under ROC 40 Sec. 11 w/c, if granted, would in effect dismiss the case & render judgment by MuTC invalid for lack of jurisdiction. It was denied but an appeal to the CA set aside the MuTC & CFI rulings. On appeal, the SC ruled that the issues were purely legal & should have been brought directly to the SC, but it proceeded to adjudicate the case anyway as if brought for the first time.

Held: RTC had jurisdiction. When the Abalos spouses filed their complaint, they placed QC as their address. But they were able to change it to Caloocan upon leave of ct. w/o the respondents objecting. The requirement of conciliation cannot be enforced since the property is in QC, where the respondents reside, while the Abalos spouses live in Caloocan (PD 1508 Sec. 20). Respondents effectively waived their right when they failed to object to the correction of the Abalos’ residence fr. QC to Caloocan participated in the trial on the merits. The fact that they argued their case & adduced their evidence amounts to a waiver of this defense. Once a party submits to the jurisdiction of the ct. & participates in the trial on the merits, he cannot thereafter, after an unfavorable judgment, take a total turnabout & say that compliance w/ PD 1508 was not made.

Held: MuTC had jurisdiction according to the ruling in Fuentes & Goter vs. Muñoz-Palma. An action for unlawful detainer, w/c is a summary proceeding to wrest possession fr. one who has no right thereto, is applicable only when the issue is that of possession. According to the Judiciary Act Sec. 44 (b), the CFI has original jurisdiction in all civil actions w/c involve title to or possession of real property, except actions of forcible entry & detainer over lands or buildings where original jurisdiction is conferred upon city or municipal cts.. This case involves not merely right of possession but also rights of ownership over the improvements as indicated in the prayer. CFI should have dismissed the case when its was brought on appeal bec. it could only have entertained the same if the parties did not object to nor raised the question of jurisdiction.

FLORES V MALLARE-PHILIPPS: Example where it is possible to allege facts in pleading that gives rise to 2 causes of action: misjoinder of parties L: lack cause of action a separate case (WIT?) Strategy: file answer for 1st cause of action; file MTD for 2nd cause of action

Dy v. CA, 195 SCRA

Flores v. Mallare Philipps, 144 SCRA

Facts: Ramon Roxas filed an ejectment suit in the MeTC Makati vs. Andres & Gloria Dy where he won. Dys appealed to the RTC, but failed. MeTC granted immediate execution, so the next day, the Sheriff & some policemen ejected the Dys by throwing their belongings to the street. They filed a motion to quash/recall of the writ of execution on

49 the ground that they had not received a copy of the RTC decision. MeTC denied. CA appeal failed. Held: There must first be copy of the RTC decision served on the losing party before judgment is executed. Refer to ROC 39 Sec. 1, Rules on Summary Procedure Sec. 12 & BP 129 Sec. 22. Proof of service of copy of judgment determines whether or not the appeal period has lapsed. If no appeal was filed after the copy is served, then the decision is immediately executory as a matter of right. A petition for review by CA of RTC judgment may be filed only after notice of RTC judgment has been served on the losing party. If no notice was served, the losing party has no legal remedy against an illegal judgment nor does the CA have the power to prevent the execution of an illegal order. However, the Dys cannot have the relief prayed for since they failed to appeal after they were served notice. Nothing is more settled than the rule that in every litigation, the parties thereto are entitled to due process, & if there is a denial thereof, then the validity of the proceedings is open to question.

complaint stated a claim of not less than P10M in the prayer but a second amendment raised the amount to P44M+ w/c was admitted in ct.. Sun questions this order. Held: Petition dismissed for lack of merit. The contention that Manchester ruling cannot apply retroactively to this case is untenable. Statutes regulating the procedure of the cts. will be construed to apply to actions pending & undetermined at the time of their passage. Procedural laws are retrospective in that sense & to that extent. It is not simply the filing of the complaint or pleading but the payment of the prescribed docket fee that vests the trial ct. w/ jurisdiction over the subject matter or nature of the action. Where the TC acquires jurisdiction over a claim w/ the filing of the appropriate pleading & payment of the prescribed filing fee, but subsequently the an award of an amount not specified in the pleading, or if specified, the same has been left for determination by the ct., the additional filing fee shall constitute a lien on the judgment. It shall be the responsibility of the Clerk of Court or his duly authorized deputy to enforce said lien & assess the additional fee. Katarungang Pambarangay

Manchester Dev. Co. v. CA, 149 SCRA

See RA 7160 provisions

Facts: MDC filed a complaint for damages & specific performance against City Land to compel the latter to push through w/ the sale of the land. The amount of damages was not specified in the prayer but was alleged in the body of the complaint. Thus, a docket fee of only P410 was paid on the presumption that the amount involved was not capable of pecuniary estimation, when in fact it was. MDC’s second counsel deleted all mention of damages. SC ordered the reassessment of docket fees. Reduced damages were still not specified in the prayer. CA ruled that docket fees should be based on the orig. comp.

Morata v. Go, 125 SCRA 444

Held: A case is deemed filed only upon payment of docket fees regardless of the actual date of filing in ct.. Thus, the TC did not acquire jurisdiction w/ the payment of the P410 docket fee. An amendment of the complaint or similar pleading will not vest jurisdiction, much less payment of the docket fee, based on the amount averred in the amended pleading. The design to avoid payment is obvious since it misled the docket clerk. All complaints, petitions, answers, & similar pleadings should specify the amount of damages being prayed for not only in the pleading but also in the prayer & said damages should be considered in the assessment of the filing of fees in any case. Any pleading that fails to comply w/ this requirement shall not be accepted nor admitted, & shall be expunged fr. the record.

Royales v. IAC, 127 SCRA 470

Sun Insurance v. Asuncion, 170 SCRA Facts: Sun Insurance filed a complaint in the RTC for consignation of a premium fund on a private fire insurance policy against Manuel Uy Po Tiong. Manuel filed for a refund of the premium but the amount of damages was not specified in the prayer, although it could be inferred in the body. Thus, only P210 docket fee was paid. SC ordered reassessment of the docket fees. The amended

Facts: This was a case for the recovery of a sum of money plus damages = P49,400.00. AA MTD was filed bec. of failure to undergo conciliation proceeding in the brgy. The MTD was opposed on the ground that the law on KP covers only to those cases falling w/in the exclusive juris. of the MTCs. Held: There is no distinction whatsoever w/ respect to the classes of civil dispute that should be compromised at the brgy level as contradistinguished w/ that of the criminal cases.

Facts: This is an ejectment case again in the MTC. R, the lessee, participated in the trial & even crossexamined the petitioner. R, then, filed a certiorari & prohibition w/ preliminary injunction when the decision was adverse to him. Held: Petition denied. A party who has affirmed & invoked the jurisdiction of a ct. in a particular matter to secure an affirmative relief cannot, afterwards, deny the same jurisdiction to escape a penalty. LECTURE ON KATARUNGANG PAMBARANGAY General Rule. All civil actions, regardless of amount of relief, between parties of the same baranggay, should undergo Katarunggang Pambaranggay Remedy: a) Don't arrive at a settlement b) File case v. Lupon to compel them to dismiss objectinable Lupon member (This case need not undergo KP re sec. 408 (b) and sec. 406 (a)) (WIT?)

50 MANCHESTER rule: full payment of docket fees necessary for court to acquire jurisdiction All prayers must be in the complaint, not just in the body Overruled LEGASPI re: installment payments no longer allowed SUN INSURANCE: bar problem. If there is an honest difference of opinion as to amount of docket fees and P is in good faith, court can grant period of time to allow payment. Qualifies MANCHESTER only to that extent MANCHESTER: if award to judgment creditor is greater than the amount prayed form, difference in docket fees constitutes first lien. NOTE: but no payback of excess fees even if awarded less L: Remember to bill your client for "incidental" or "out of pocket" costs for sheriff's transportation, food and vitamins

JURISDICTION (power to hear, try and decide cases) Conferred by law. Law can only be changed by passing through Congress. Party can't amend rules on jurisdiction by agreement or voluntary act Jurisdiction can be raised at any time even on appeal, after termination of case of decision becomes final and executory, subject to rules on prescription. Raise issues of jurisdiction via a MTD (Rule 16) but court can act motu proprio. Rule on place not necessarily a rule on venue. TIJAM. Bar problem. Qualifies who can raise matters of jurisdiction. If estopped by laches, can't file MTD in equity JURISDICTION. May be subject to nature of 1. Cause of action - eg. Admiralty cases, domestic violence 1. Relief 1. Subject matter (thing over which the rights and duties occur - eg. rights or title to real property > P50 T; claims incapable of pecuniary estimation 1. Remedy - eg. forcible entry and unlawful detainer, review by certiorari; BULAO v CA Jurisdiction, once acquired, is never lost. Exception: DY V CA. Court violates constitution; ousted from jurisdiction. NOTE: judgment still valid, no jurisdiction only for purposes of issuing writ of execution due to lack of notice to party WORD GAME: Conferment of Jurisdiction: jurisdiction

law prescribes

Acquisition of Jurisdiction: Rule 1 Section 5: Filing of complaint vests court with jurisdiction over res. Summons vests court with jurisdiction over the corpus. NOTE: filing of complaint happens upon full payment of docket fees CONDITIONS PRECEDENT NOTE: Failure to undergo Katarunggang Pambarangay not issue of jurisdiction Sec. 412 Loc. Government Code; neither a defect in jurisdiction but vulnerable to a MTD (Rule 16 sec. J) for failure to undergo condition precedent. Failure to undergo condition precedent can only be raised in a MTD or as an affirmative defense Summary Procedure Rules on Summary Procedure (Oct. '91) Del Rosario v. CA, 241 SCRA 519 ('95) Held: The presence of an action for quieting of title does not divest the MeTC of original jurisdiction over the ejectment case. An ejectment case (possession de facto) is independent of any claim of ownership (possession de jure). Under the revised Summary Procedure (Nov. 15, 1991) all types of ejectment cases are now covered by it regardless of whether or not the issue of ownership of subject property is pleaded by a party. No hearings are required in this procedure. The adjudication of cases here are done on the basis of affidavits & position papers. SUMMARY PROCEDURE Remedy for forcible entry, unlawful detainer, < P10,000 Katarunggang Pambaranggay condition precedent before parties can obtain judicial relief Not apply to ordinary civil actions in RTC Summary Procedure Ordinary Civil Action Pleadings Allowed Verified complaint Compulsory counterclaim Answer to complaint Crossclaim v existing defendant Complaint Counterclaim a. Compulsory(relates to transaction) a. Permissive (not related) Crossclaim Third party claim Intervention Answer Reply Answer File answer w/in 10 days of service of summons File answer w/in 15 days of service of summons Can court act motu proprio in dismissing the case?

51 YES. Court can act motu proprio and dismiss NO. Court cannot dismiss action motu proprio but must wait for MTD Effect of other party's failure to file an answer Get judgment. No need for motion for default or order for default File a motion to declare the other party in default Preliminary Conference not later than 30 days Effect of P's failure to appear Cause for dismissal Counterclaim barred Main Action dismissed but Compulsory Counterclaim not dismissed. D gets judgment Cause for dismissal with prejudice Main action dismissed and Compulsory counterclaim also dismissed Process Submit position papers and affidavits 10 days from receipt of pre-trail order L: on those affidavits hinge your entire case so pray (Angel of God, hindi motion) that the court ask for clarificatory affidavits (motu proprio) Extension of time not allowed You figure it out. Contents of Affidavits State facts Show competence to testify Show admissibility of witness Absent these: affidavits excluded and lawyer may be subject to disciplinary action Prohibited Motions MTD on sec. 16 except lack of jurisdiction Bill of particulars New judgment Periods No time period from beginning to end but mandatory periods in between Rule 2 Actions in General Section 1. Ordinary civil actions, basis of. - Every ordinary civil action must be based on a cause of action. Section 2. Cause of action, defined. - A cause of action is the act or omission by which a party violates a right of another. Section 3. One suit for a single cause of action. - A party may not institute more than one suit for a single cause of action.

Section 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 of one or a judgment upon the merits in any one is available as a ground for the dismissal of the others. Section 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. Section 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. Joseph v. Bautista, 170 SCRA 540 ('89) FACTS: Joseph was a paying passenger in a cargo truck. The cargo truck tried to overtake a tricycle proceeding in the same direction. At the same time, a pick-up truck tried to overtake the cargo truck, thus the cargo truck was forced to veer towards the shoulder of the road & rammed a mango tree in the process. Joseph sustained a bone fracture in one of his legs. Joseph sued the owner of the cargo truck for breach of the contract of carriage & the owner of the pick-up for quasi-delict for injuries he sustained. The owner of the pick-up paid Joseph the amount he was claiming thru a settlement agreement. Joseph still wants to maintain the action vs. the truck owner claiming that he still has another cause of action vs. the latter, for breach of contract of carriage. HELD: When there is only one delict or wrong (i.e. one injury), there is only one cause of action regardless of the number of rights that may have been violated belonging to one person (violation of contract of carriage & quasi-delict). The singleness of a cause of action lies in the singleness of the delict or wrong violating the rights of one person. Nevertheless, if only one injury resulted fr. several acts, only 1 cause of action arises. In this case, the petitioner sustained a single injury on his person. That vested in him a single cause of action, albeit w/ the correlative rights of action vs. the different respondents thru appropriate remedies allowed by law.

52 The resps. having been found to be solidarily liable to the pet., the full payment made by some of the solidary debtors & their subsequent release fr. any & all liability to pet. inevitably resulted in the extinguishment & release fr. liability of other solidary debtors. JOSEPH V BAUTISTA: NCC 2177: Bar v double recovery City of Bacolod v. SM Brewery 29 SCRA FACTS: The City of BCD passed an ordinance imposing a bottling tax for every case of soft drinks sold. For delinquency in paying said tax, a surcharge was to be imposed. For failure to pay said taxes on time, City of BCD sued SMB. The SC ruled in favor of the City & ordered SMB to pay taxes. Later, the City of BCD filed a second complaint vs. SMB to recover the surcharges it forgot to claim in the first case. HELD: SMB’s failure to pay the taxes violated the City’s right to be paid. Thus, there was a single cause of action. However, under the ordinance, the City became entitled to 2 reliefs: payment of taxes & the corresponding surcharges. The act of the City of filing separate complaints for each of the two reliefs related to the same single cause of action resulted in the splitting of the cause of action. Under the rule that a party may not institute more than 1 suit for a single cause of action, the City’s 2nd complaint is barred by res judicata. Bayang v. CA, 148 SCRA 91 ('87) FACTS: Bayang sued Biong for Quieting of Title w/ damages in 1969, w/c resulted in a ruling in his favor in 1978. In 1978, Bayang sued Biong again but this time for the income earned fr. the land while it was still in the latter’s possession fr. 1970 to 1978. HELD: The subject matter in the 2 cases are essentially the same as the income is only a consequence or accessory of the disputed property. The claim for income fr. the land is incidental to, & should have been raised by Bayang in his earlier claim for ownership of the land. As the filing of the 2 cases constitute splitting of the cause of action, the 2nd case is barred by the 1st. Also, for about 7 years, the petitioner made no move at all to amend his complaint to include a claim for the income supposedly received by private resp. during that period. He did not make the proper claim at the proper time & in the proper proceeding. Whatever right he might have had is now deemed waived bec. of his negligence. Enriquez v. Ramos, 7 SCRA 265 ('63) FACTS: Enriquez sold to Ramos 11 parcels of land for P101,000. Ramos paid 5,000 as down payment.( 2,500-cash, 2,500-check). To secure the 96,000 balance, Ramos mortgaged the land to the vendors. Enriquez filed a complaint vs. Ramos for stopping the ;payment of the check. Enriquez filed another case for foreclosure of the mortgage due to

Ramos’ failure to comply w/ it’s conditions. Ramos now moves to dismiss the 2nd case on grounds that Enriquez split the cause of action. HELD: An examination of the 1st complaint shows it was based on appellant’s having unlawfully stopped payment of the check for P2,500 she had issued in favor of appellees; while the complaint in the first action is for the non-payment of the balance of 96,000 guaranteed by the mortgage. The claim for 2,500 was therefore a distinct debt not covered by security; the security was for the balance of the purchase price amounting to 96,000. Therefore, there is no splitting of C of A in this case. Cuevas v. Pineda, 143 SCRA 674 ('86) FACTS. Priv. Resps. filed a complaint in the CFI for quieting of title alleging that they are the heirs of Igaya &, as such, are the rightful owners of the parcels of land. They came to know that petitioners have caused the preparation of a table-survey plan of the lots in the name of Cancio (prepared by Roxas for Cuevas). Petitioners then filed an Application for Free Patent for the lots, w/c was granted. Priv. resps. filed an administrative protest w/ the Bureau of Lands & Register of Deeds, seeking the recall & cancellation of the free patents. They then prayed for the issuance of writ of preliminary injunction to declare null & void the free patents & be declared as the absolute owners. This was granted upon the posting of a bond. Meanwhile, a hearing on the protest did not materialize as the ct. had already issued the writ of preliminary injunction. Did the ct. actually acquire jurisdiction over the complaint? HELD: Resps. have assumed inconsistent positions. After filing an administrative protest w/ the BoL, claiming the lands belong to them, they questioned the jurisdiction w/c they invoked of that same agency, claiming that it is the cts. & not the administrative tribunal that should settle the issue. At this time, both parties had already invoked the jurisdxn. of BoL, alleging that since the BoL, w/c had jurisdiction over the case, had already issued the free patents, the land had become private. Orderly procedure requires that BoL, on a matter w/in its competence & expertise, should first resolve the issues before it. CUEVAS V PINEDA: Petition for Certiorari was dismissed on the ground of non-exhaustion of administrative remedies, not for lack of cause of action: was dismissed due to primary administrative jurisdiction = failure to undergo condition precedent L: We are concerned with law, not with justice, which is why we're not called the College of Justice but the College of Law. Technique lang lahat iyan. LECTURE ON ACTIONS Action Process Cause of Action action Rule 2 sec. 2

:

Remedy /

:

Basis to file an

53 Prohibition against splitting a single cause of action: 1. Prevent multiplicity of suits 1. Prevent indirect violation / avoidance of res judicata rule Remedy: Instead, file cause of action and ask for different reliefs BAYANG: File supplemental pleading for new relief or file amendment to pleading to introduce new facts which arose after filing WORD GAME: REMEDY: Procedure RELIEF: Specific things asked from court or right granted by a specific court due to violation of another right

Rule 3 Parties 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 crossclaimant, or the third (fourth etc.)-party plaintiff. The term “defendant” may refer to the original defending party, the defendant in a counterclaim, the cross-defendant, or the third (fourth, etc.)-party defendant. Section 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. Section 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.

Section 4. Spouses as parties. - Husband and wife shall sue or be sued jointly, except as provided by law. Section 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. Section 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. Section 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. Section 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. Section 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. section 10. Unwilling co-plaintiff. - If the consent of nay 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. Section 11. Misjoinder and non-joinder of parties. - Neither misjoinder or non-joinder of parties is ground for dismissal of an action. Parties may be

54 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. Section 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 the court finds to be sufficiently numerous and representative as to fully protect the interest 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. Section 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. Section 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. Section 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 or persons composing said entity must all be revealed. Section 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 (3) 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. 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 s 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. Section 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 ceased 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. Section 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. Section 19. Transfer of interest. - In case of any transfer of interest, the actin 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. Section 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 or 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. Section 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. Such authority shall include an exemption from payment of docket and other lawful fees, and of transcripts of stenographic notes which the court

55 may order to be furnished him The amount of the docket and other lawful fees which the indigent was exempted from paying shall be alien 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 court, execution shall issue or the payment thereof; without prejudice to such other sanctions as the court may impose. Section 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. Filipinas Industrial Corp. v. Sn. Diego, 23 SCRA 706 ('68) FACTS: Pastor Ago filed a complaint vs. petitioner in his name as atty. in fact of Laiz. Petitioner filed a MTD on the ground that action was not brought in the name of the real party in interest. HELD: Under the RoC, every action must be brought in the name of the real party in interest. This provision is mandatory. The real party in interest is the party who would be benefited or injured by the judgment or is the party entitled to the avails of the suit. An atty.-in-fact is NOT a real party in interest; there is no law permitting an action to be brought by an atty.-in-fact & hence, an action brought by him cannot be maintained. Even if the principal authorizes his agent to commence actions in a ct. for & in behalf of the principal, such action must still be filed in the name of the principal who is the real party in interest. FILIPINAS: Case dismissed due to lack of cause of action; not due to non-joinder of parties. Atty-infact can't represent principal in the case since attyin-fact was not the one injured REPRESENTATIVE PARTIES: Not the real parties but are allowed by law or the Rules to sue on behalf of the principal Example of representative party authorized by the Rules: Class suit Plaintiffs sue in 2 capacities: 1) themselves; 2) on behalf of the parties of the class or those with an interest in the subject matter of the suit but are too numerous to be brought in the suit (OPOSA V FACTORAN)

L: What if defendant is a volleyball player of a sportsfest and the plaintiff wants to sue all participants of the sportsfest? A: Identify all and do not apply sec. 15 since identifiable and also a volleyball team is not a proper juridical entity JOINDER OF PARTIES (Sec. 6) not necessary that parties be indispensable or necessary parties a. Necessary or proper party (Sec. 8) Case may proceed, only plaintiff may not be able to obtain complete relief Aranico-Rabino v. Aquino, 80 SCRA 254 ('77) Facts: Petitioners filed a complaint for recovery of a lot w/c priv. resp. claims to be owned by one Meimban & his successors-in-interest. The ct. ordered the complaint be amended to include all the heirs of the late Meimban in order that there will be a final adjudication of the rights of the parties in the case. Counsel for petners. refused. Held: The heirs of Meimban are indispensable parties who should be included in the complaint in order that there will be a final adjudication of the rights of the parties in their case. ARANICO: Dismissal not due to failure to implead a party but due to contumacious refusal to comply with the order of the court; misjoiner or non-joinder is not basis for the dismissal of case Laperal Dev. Co. v. CA, 223 SCRA 261 ('93) Facts: Counsel sought recovery of atty.’s fees fr. Sunbeams Foods referred to in the complaint as “Mr. Laperal’s Corporation” but w/c was not joined by name as a party-defendant. Held: Sunbeams should have been joined as a party-deft. in order that the judgment of the lower ct. could legally affect it. But even if it was not impleaded, the ct. could still validly proceed w/ the case bec. Sunbeams was not an indispensable party but only a proper party. A proper party is one w/c ought to be a party if complete relief is to be accorded as between those already parties. A party is indispensable if no final determination can be had of an action unless it is joined either as plff. or deft. FILIPINAS INDUSTRIAL - Indispensable LAPERAL DEVT V CA - Proper party. Sunbeam only a necessary party and therefore not a party to the compromise agreement. But atty can't collect atty's fees since there was a udicial admission as to waiver of all claims Barfel Dev. Co. v. CA, 223 SCRA 268 ('93) Facts: Barfel (seller) & Reginas (seller) concluded an agreement to buy/sell 2 parcels of land w/c the former warranted to be free fr. liens & encumbrances except for the BPI mortgage. Reginas found out later that there was a second mortgage in favor of PISO Bank. Things went sour

56 & Reginas found out that Barfel was selling the land to other parties. Reginas brought suit. Reginas filed an amended complaint impleading PISO as additional party.

right to a sound environment constitutes, at the same time, the performance of their obligation to ensure the protection of that right for the generations to come.

Held: The reason for the amendment impleading PISO is to compel the latter to accept payment & release the 2nd mortgage thereby enabling Barfel to deliver to Reginas the titles free fr. all liens & encumbrances. But, PISO is NOT a party to the contracts w/c are the subject of the action for specific performance & damages between Barfel & Reginas. PISO is not a party to the transactions & is thus not an indispensable party. PISO is a 2nd mortgagee, whatever the outcome of the litigation between Reginas & Barfel. A “real interest” means a present substantial interest, as distinguished fr. a mere expectancy or a future, contingent, subordinate or consequential interest. Complete relief by Reginas vs. Barfel can be had even if PISO was not impleaded as a party deft in the original case. Also, amendment sought is a substantial one. Priv. resp. will have to present additional evidence on PISO. Effect would be to start trial anew w/ parties recasting theories of the case.

OPOSA V FACTORAN. Are unborn children w/ capacity to be party to a suit? No, but purposes of this class suit, SC used intergenerational responsibility argument. Limit Consti Art 11 sec. 16 to ecological suits. L's note: no legal basis, natural law only. Also, other Art. 11 provisions hortatory and not basis for a class action suit. Not all taxpayers' suits are class suits

BARFEL: disclosure, not existence of 2nd mortgage is the issue. The 2nd mortgagee is liable to plaintiff in Contract to Purchase. Not a proper party. Mortgages follow property wherever it goes, thus, PISO can't become a party since there is no cause of action against it. b. Indispensable (Sec. 7) If not impleaded, case cannot proceed since there can be no final determination Oposa v. Factoran, 224 SCRA 792 ('93) Facts: Plaintiffs-minors duly represented & joined by their parents instituted this taxpayers’ class suit vs. the Secretary of DENR to order the latter to cancel of timber license agreements (TLA) & to cease & desist fr. renewing & granting new TLAs. The suit was filed for themselves & others who are equally concerned about the preservation of natural resources but are so numerous that it is impracticable to bring them all before the ct.. The minors also asseverate that they represent their generation as well as the generations yet unborn. Held: The case is a class suit: the subject matter of the complaint is of common & general interest not just several but to all citizens of the Phils. Parties are so numerous that it is impracticable, if not totally impossible, to bring them all before the ct.. Plaintiffs are so numerous & representative enough to insure full protection of all concerned interests. Petitioner-minors can, for themselves, for others of their generation, & for the succeeding generation, file a class suit. Their personality to sue in behalf of succeeding generations can only be based on the concept of intergenerational responsibility insofar as the right to a balanced & healthful ecology is concerned. Every generation has a responsibility to preserve the rhythm & harmony for the full enjoyment of a balanced & healthful ecology. The minor’s assertion of their

L: Is the environment property? Note: not need to be property to be subject of a suit. Mathay v. Consolidated Bank, 58 SCRA 559 ('74) Facts: The stockholders of Consolidated Mines filed a class suit vs. the Board of Organizers of Consolidated Bank of alleged anomalies in the incorporation of the latter to w/c the stockholders were subscribers. Held: The necessary elements for the maintenance of a class suit are: (1) the subject matter of the controversy be one of common or general interest to many persons; & (2) such persons be so numerous as to make it impracticable to bring them all in ct.. An action does not become a class suit bec. it is designated as such in the pleadings: it depends upon the attending facts & the complaint, or other pleading initiating the class action should allege the existence of the necessary facts. As to the 1st element: the interest that appellants-plff. & intervenors & the CMI stockholders had in the subject matter was several, not common or general in the sense required by law. Each one had a determinable interest, each had a right, if any, only to his respective portion of the stocks None of them had an interest, or a right to, the stock to w/c another was entitled. As to the 2nd element, the number of said CMI subscribing stockholder was not stated in the complaint. Thus, the ct. could not infer or make sure that the parties before it were sufficiently numerous & representative. Veterans Manpower & Protective Services v, CA, 214 SCRA 286 ('92) FACTS: Petitioner filed a complaint vs. the PC Chief & PC-SUSIA, government agencies regulating security services, to compel said agencies to issue licenses to petitioner. HELD: The State may not be sued w/o its consent. Invoking this rule, the PC Chief & PC- SUSIA, being instrumentalities of the national gov’t. exercising a primarily governmental function may not be sued w/o the Gov’t’s consent. This doctrine is also applicable to complaints filed vs. officials of the state for acts allegedly performed by them in the discharge of their duties. A public official may sometimes be held in his personal or private capacity if he acts in bad faith

57 or beyond his authority or jurisdiction. In this case, however, the acts were performed as part of official duties w/o malice, gross negligence or bad faith. Thus, no recovery may be had vs. them in their private capacity as well. LECTURE ON PARTIES: Remedies available for certain situations. L at his most practical. 1. P not the real party in interest but act as a plaintiff Counsel for D: MTD since no cause of action. No injury v his person 1. X an Indispensable party but P refuses to bring him in as an indispensable party Eg. Co-owner sues for partition of property owned in common; thus, he must implead all co-owners in order that final determination might be made. What if P sues only 1 co-owner? (ARANICORABINO) Counsel for D: Plan A) Motion to implead the other co-owners Plan B) If court refuses to implead the other coowners, file MTD for lack of due process for failure to implead an indispensable party Plan C) Go to CA for certiorari on grounds of grave abuse of discretion on part of trial court judge for refusing to iplead indispensable party w/o whom there can be no final determination of the case. To determine whether or not a party is indispensable: Proper joinder of parties: Parties necessary Permissive joinder of parties: not necessarily imply that parties indispensable or necessary Rule 3 sec. 6 same transaction or common question of law or fact is involved 1. Party becomes insane Counsel for D: Rule 3 sec. 18 file motion to bring guardian of insane party brought in as a representative. If insane > 18 years old, ask for guardian ad litem 1. Party dies. His counsel duty bound to inform court of such fact and of his legal representative If there is no rep, court will order Counsel for D to procure appointment of executor or administrator NOTE: Personal action: remedy filed where cause of action involves personal property or right. Subject matter involves personal property and others. Not a real action which involves title to or possession of real property. Important for proper venue Rule 4 Venue

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. Section 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. Section 3. Venue of actions against nonresidents. If any of the defendants does not reside and ins 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 resides, or where the property of any portion thereof is situated or found. Section 4. When Rule not applicable. - This Rule shall not apply (a) In those cases where a specific rule or law provides otherwise; or (b) Where the parties have validly agreed in writing before the filing of the action on the exclusive venue thereof. Diaz v. Adiong, 219 SCRA 631 ('93) Facts: Certain public officers instituted separate criminal & civil complaints arising fr. libel vs. the publisher & editor of the Mindanao Kris, a newspaper of general circulation in Cotabato City in the RTC of Marawi City. Diaz claims it should not be in Marawi since the resps. didn’t hold office there; nor was the article published there. Held: An offended party who is at the same time a public official can only institute an action arising fr. libel in 2 venues: the place where he holds office & the place where the alleged libelous articles were printed & first published. In this case, although it is indubitable that venue was improperly laid, unless & until the deft. objects to the venue in a MTD prior to a responsive pleading, the venue cannot truly be said to have been improperly laid since, for all practical intents & purposes, the venue through technically wrong may yet be considered acceptable to the parties for whose convenience the rules on venue had been devised. The laying of venue is procedural rather than substantive, relating as it does to jurisdiction of the ct. over the person rather than the subject matter. Venue relates to trial not to jurisdiction. The rule, therefore, is that objections to improper

58 venue must be made in a MTD before any responsive pleading is filed (Sec. 1 Rule 16). Otherwise, it may be deemed waived.

RULE 5 VENUE

LECTURE ON VENUE: Exceptions: 1. non-resident a) where P resides or a) b) where property or port6ion thereof is situated or found 1. when a specific Rule or Law provides otherwise 1. when parties validly agreed in writing before filing of action in the exclusive venue thereof L: state in agreement "shall exclusively be" or "shall only be"; if not phrased this way, can still sue elsewhere Person dies (governed by Rule 87) action dismissed in cases where decedent is required to personally perform his obligation, where his estate or his heirs' defense is that the relief cannot be complied with. If action is for a sum of money, file it as a creditor in the settlement of estate proceedings Pauper litigant: one who has no money or property sufficient and available for food, shelter and basic necessities is exempted from payment of fees. Counsel for D: contest indigent status of party by filing a motion to reverse order declaring party as pauper litigant THE CLAIM-ANSWER-COUNTERCLAIMREPLY-CROSSCLAIM-LABYRINTH P files Complaint So D files answer D files counterclaim So P files Answer to counterclaim P then files Amended Complaint due to new matters raised So D files an amended answer called a reply A third guy files a CROSSCLAIM against D So D files an answer to the crossclaim And he files his own crossclaim against Third While P files his Answer to the 3rd Party Complaint THE OGDEN CASE OGDEN-BECTEL FILIPINO LANDOWNERS Cause of action X breach of contract

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 impliedy applies only to either of said courts, or (b) in civil cases governed by the Rule on Summary Procedure. Section 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. Rule 6 Pleadings (Substantial Requirements) NOTES OF ANZIE-GIRL: PLEADINGS Definition Rule 6, Sec. 1. Pleadings are the written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment Allowed Pleadings Rule 6, Sec. 2 The claims of a party are asserted in a complaint, counter-claim, cross-claim, third (fourth, etc.) party complaint, or complaint - in intervention. 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. Liberal construction Gerales v. CA, 218 SCRA 638 ('93) Facts: Counsel for petitioner: Sir Luigi, este, Camacho pala) A vehicular accident occurred resulting in respondent filing a case for damage to property. Two cases were filed, criminal & civil. The crim. case was dismissed beech. the parties entered into an amicable settlement. The civil case continued but resp. was declared in default for failure to file an answer. What respondent did was merely to send a letter to the Clerk of Court informing the ct. about the amicable settlement. Held: The trial ct. should have considered the letter as a responsive pleading even if it lacks the formalities required by law. The letter contains an affirmative defense, i.e. mutual settlement w/c, if proven in preliminary hearing would constitute a meritorious defense barring pet. fr. recovery. Pleadings as well as remedial laws should be liberally construed in order that the litigant may

59 have ample opportunity to prove their respective claims & to prevent possible denial of substantive due process. Litigations should be decided on the merits not merely on technicality. How allegations made In General Rule 8, Sec. 1 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 defense, as the case may be, omitting the statement of mere evidentiary facts. If a defense relied on is based on law, the pertinent provisions thereof and their applicability to him shall be clearly and concisely stated. Capacity Rule 8, Sec. 4 Facts showing the capacity of a party to sue or be sued or the authority of a prty 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 prty 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. Alternative claims and defenses Rule 8, Sec. 2 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. Conditions precedent Rule 8, Sec. 3 In any pleading a general averment of the performance or occurrence of all conditions precedent shall be sufficient. Fraud and Mistake Rule 8, Sec. 5 In all averments of fraud or mistake, the circumstances constituting the fraud or mistake must be stated with particularity. Malice, intent, knowledge or other condition of the mind of a person may be averred generally. Condition of mind Rule 8, Sec. 5 supra. Judgments

Rule 8, Sec. 6 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 the matter showing jurisdiction to render it. Official Documents Rule 8, Sec. 9 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. Complaint Defined and in general Rule 6, Sec. 3 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. Tantuico v. Republic, 204 SCRA 428 ('91) Facts: A case was filed by the PCGG vs. the Marcoses & Tantuico, the latter on the theory that he collaborated & aided the Marcoses in concealing the ill-gotten wealth. Tantuico filed a motion for a bill of particulars. The SolGen opposed the motion saying that the matters sought by Tantuico are evidentiary in nature & that the complaint was sufficient as it contains the essential elements of a cause of action. Held: A complaint is defined as a concise statement of the ultimate facts constituting the plaintiff’s cause or causes of action. Its office or purpose is to inform the defendant clearly & definitely of the claims made vs. him so that he may be prepared to meet the issues at trial. The complaint should inform the defendant all the material facts on w/c the plaintiffs rely to support his demand The complaint should inform the defendant of all the material facts on w/c the plaintiff relies to support his demand; it should state the theory of a cause of action w/c forms the bases of the plaintiffs claim of liability. The rules on pleading speak of two (2) kinds of facts: the first, the "ultimate facts", & the second, the "evidentiary facts." The term "ultimate facts" as used in Sec. 3, Rule 3 of the Rules of Court, means the essential facts constituting the plaintiffs cause of action. TEST: A fact is essential if it cannot be stricken out w/o leaving the statement of the cause of action insufficient.... Ultimate facts are important & substantial facts w/c either directly form the basis of the primary right & duty, or w/c directly make up the wrongful acts or omissions of the defendant. The term does not refer to the details of probative matter or particulars of evidence by w/c these material elements are to be established. It refers to principal, determinate, constitutive facts, upon the

60 existence of w/c, the entire cause of action rests. "Evidentiary facts" are those facts w/c are necessary for determination of the ultimate facts; they are the premises upon w/c conclusions of ultimate facts are based. Where the complaint states ultimate facts that constitute the three (3) essential elements of a cause of action, namely: (1) the legal right of the plaintiff, (2) the correlative obligation of the defendant, & (3) the act or omission of the defendant in violation of said legal right, the complaint states a cause of action, otherwise, the complaint must succumb to a motion to dismiss on that ground of failure to state a cause of action. However, where the allegations of the complaint are vague, indefinite, or in the form of conclusions, the proper recourse would be, not a motion to dismiss, but a motion for a bill of particulars. Allegations In general Rule 8, Sec. 1 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 defense, as the case may be, omitting the statement of mere evidentiary facts. If a defense relied on is based on law, the pertinent provisions thereof and their applicability to him shall be clearly and concisely stated. Metropolitan Bank v. Quilts, 222 SCRA 486 ('93) Facts: The property of Quilts was mortgaged to Metrobank to secure a personal loan of its pres. Dizon. Quilts asked for the cancellation of the mortgage on the ground that Dizon had no authority to mortgage the property. Metrobank refused. Quilts filed an action vs. Metrobank for the annulment & cancellation of the mortgage. Metrobank moved to dismiss the complaint for failure to state a cause of action as the complaint merely contained a single par. alleging that Metrobank committed illegal acts vs. Quilts. Held: The complaint filed vs. Metrobank does not contain sufficient COA. The complaint expresses legal conclusions & not averments or allegations of ultimate facts. The ultimate facts upon w/c such conclusions rest must be alleged. In CAB, the bare allegations neither establishes any right or COA on part of the plaintiff. Mathay v. Consolidated Bank, 58 SCRA Facts: This is the classic case of the class suit filed by Mathay vs. Consolidated Bank. Mathay & Co. averred in the complaint that they were denied the right to subscribe shares in the Bank. All in all, the complaint filed by Mathay contained 6 COA’s .

Held: Bare allegations that one is entitled to something is an allegation of a conclusion. Such kind of allegation adds nothing to the complaint it being necessary to plead specifically the facts upon w/c such conclusion is founded. In CAB, the pet. did not show their qualifications to being stockholders nor their right to subscribe the shares. Did not show how they acquired the right, the extent of its exercise & amount of shareholdings that they are entitled to. Capacity of parties Rule 8, Sec. 4 Facts showing the capacity of a party to sue or be sued or the authority of a prty 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 prty 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. Actions based upon a document Rule 8, Sec. 7 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. Answer Defined and in general Rule 6, Sec. 4 An answer is a pleading in which a defending party sets forth his defenses. Types of Defenses Negative Rule 6, Sec. 5(a) 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. How alleged, generally Rule 8, Sec. 10 A defendant must specify each material allegation of fact the truth of which he does not admit and, whenever practicable, shall set forth that 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

61 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. Capacity of parties Rule 8, Sec. 4 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 prty 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. Genuineness of document Rule 8, Sec. 8 When an action or defense is founded upon a written instrument, copied in or attached t o the corresponding pleading as provided in the preceding section, the genuineness and due execution of the instrument shall be deemed 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 party to the instrument or when compliance with an order for an inspection of the original instrument is refused. Donato v. CA Controversy over a parcel of land allegedly sold to defendants by Rarang by virtue of special power of attorney executed the by the mother (deceased) of plaintiffs. Trial court held in favor of plaintiffs on the ground that defendants failed to present evidence to prove genuineness of the power of attorney. CA Affirmed. Supreme Court held that while R.8, Sec. 8 provides for rule on implied admission of the genuineness and due execution of a document subject of an action/defense, one exception is when the adverse party does not appear to be a party to the instrument. In this case, their plaintiffs were mere witnesses to the power of attorney in question. Besides, the document should not be afforded presumption of genuineness and due execution in view of the discrepancies in its execution.

number to plaintiff PHILAMGEN. Sweet Lines argued that the action has prescribed since the claim for damages were not presented within the period stipulated in the bills of lading. PHILAMGEN contended that the bills of lading were not presented in evidence, therefore, since the tenor and existence of the stipulations were not established, it was inconceivable how they can comply therewith. Trial court held in favor of PHILAMGEN but CA reversed. Supreme Court held that the action has already prescribed. Besides, plaintiff's failure to specifically deny the existence, genuineness and due execution of the instruments amounted too an admission. PHILAMGEN's denial has procedural earmarks of a "negative pregnant" which is a denial pregnant with the admission of the substantial facts in the pleading responded to which are not squarely denied. Such defense is in effect an admission of the averment. Thus, while they objected to the stipulation in the bills of lading as being contrary to policy, existence of the bills were nevertheless impliedly admitted. Affirmative Rule 6, Sec. 5(b) (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. Periods to plead Rule 11, Sec. 1 The defendant shall file his answer to the complaint within 15 days after service of summons, unless a different period is fixed by the court. Rule 11, Sec. 2 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 30 days after receipt of summons by such entity. Rule 11, Sec. 3 Where the plaintiff files an amended complaint as a matter of right, the defendant shall answer the same within 15 days after being served with a copy thereof.

Negative pregnant PHILAMGEN v. Sweet Lines Controversy over several shipments of chemicals aboard the vessel owned by Sweet Lines which were delivered damaged and lacking in

Where its filing is not a matter of right, the defendant shall answer the amended complaint within 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.

62 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. Waiver of defenses Rule 9, Sec. 2 A compulsory counterclaim, or a crossclaim, not set up shall be barred.

L: Go did not sue Lim since business partners or didn't want to spend more, etc. SC wanted Go to sue Lim, wondered why? L: see that SC not acquainted with business practices Test: if P chose to sue only one P, then the other P can be joined as party Lim could have been necessary party thus Clover v Go Go can file 3rd party complaint v. Lim

Director of Lands v. CA, 106 SCRA 426 ('81) Facts: Resp. filed an application for confirmation of imperfect title. The Dir. of Lands opposed. The trial ct. ruled in favor of resp. On appeal, the Dir. raised the argument that the award to resp. is erroneous on ground of res judicata. The lots were already declared public lots in a cadastral proceeding, it cannot be awarded to the private resp. Held: The failure of the Dir. to raise in the proceedings before the trial ct. to interpose his objection nor set up the defense of res judicata constitutes procedural infirmity w/c cannot be cured on appeal. All defenses not interposed in a motion to dismiss or in an answer are deemed waived. It cannot be pleaded for the first time or on appeal. Counterclaims LECTURE ON CLAIMS AND COUNTERCLAIMS: L: are all counterclaims that are not compulsory permissive? A: No; permissive counterclaims need not arise from same transaction or occurrence constituting the subject matter of the opposing party's claim Compulsory counterclaim: need not pay docket fees since ancillary to main case Permissive counterclaim: need to pay docket fees since has lfe independent of transaction in main case Apply Logical Relationship Test: arising out of same transaction If there is duplication of effort and time, then compulsory counterclaim ROC: if counterclaim only for sum of money less juridical limit, within RTC jurisdiction via compulsory/permissive counterclaim Crossclaims always compulsory since arise from same transaction or occurrence that is the subject matter of the complaint. Mandatory to raise it or else barred forever GO V CA

L: Do all 3rd party complaints arise from the same transaction or question of law? A: No eg. Insurance and torts Test: if 3rd party D can be subrogated for D and D can raise same defense (Rule 14) PASCUAL V BAUTISTA L: SC did not rule on W/N 3rd party complaint propert since not put in issue. Here, 3rd-party complaint, since ancillary, then left behind, not carried with main cause of action on appeal (Differentiate from REPUBLIC V CENTRAL SURETY where CA acquired jurisdiction since Central Surety appealed) Since Flores did not appeal, CA did not acquire appellate jurisdiction over him Defined and in general Rule 6, Sec. 6 A counterclaim is any claim which a defending party may have against an opposing party. Rule 6, Sec. 7 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 the amount and the nature thereof, except that in an original action before the RTC, the counterclaim may be considered compulsory regardless of the amount. BA Finance v. Co, 224 SCRA 163 ('93) Facts: Does the dismissal of the complaint for non-appearance of plaintiff at pre-trial upon motion of the defendant carry w/ it the dismissal of compulsory counterclaim? In CAB, the plaintiff did not appear at pre-trial, the defendant moved for the dismissal of the complaint. The same was granted. Now, the defendant moves for an adjudication of his compulsory counterclaim. Held: YES. Compulsory counterclaim is also dismissed. There are several requirements of a compulsory counterclaim:

63 • It arises out or is necessarily. connected w/ the transaction or occurrence that is the subj. matter of the opposing parties claim. • It does not require the presence of third parties of whom the ct. cannot acquire jurisdiction. • The trial ct. has jurisdiction to entertain the same. The test of compulsoriness is : WON the same evidence to sustain it would refute the plaintiff’s cause of action. In CAB, the compulsory counterclaim cannot remain pending for independent adjudication. The CC is auxiliary to the proceeding in the original suit & merely derives its jurisdictional support fr. the orig. case. If the ct. has no or loses jurisdiction over the main case, it has no jurisdxn over the comp. counterclaim. In CAB, the ct. has lost jurisdxn. over the main case by virtue of its dismissal upon motion by the defendant. Reyes v. CA, 38 SCRA 138 ('71) Facts: Reyes were lessees of a bldg. owned by Kalaw. Kalaw sought the ejectment of Reyes. Reyes filed an action w/ City Court for prel. injunction & Kalaw filed a counterclaim for damages. The CA ultimately awarded temperate damages in favor of Kalaw. Held: The award of temp. damages is in error. the damages contemplated in a forcible entry & detainer cases like the one at bar means rents & reasonable compensation or for use of the property excluding profits w/c might be received. The issue in this kind of suit is merely possession. In CAB, while the damages arose out of the same transaction, these are not CC’s bec. they exceed the jurisdiction of the inferior ct.. The rule on bars to cc, meaning the counterclaim cannot be set up in a difference. case if not set up in the main case, applies only when the inferior ct. involved has jurisdiction over the claim. The reason for barring cc not set up in an orig. case is to avoid multiplicity of suits & to dispose of the whole matter in controversy in one action & adjustments of defendants demand by counterclaim. Maceda v. CA, 176 SCRA 440 ('89) Facts: Three ejectment cases were filed in the MTC vs. Maceda. Maceda set up a counterclaim amounting to 240,000. The RTC granted Maceda’s counterclaim. The CA denied the grant on appeal. Held: The CA correctly ruled that the MTC did not have original jurisdiction over the counterclaim as it exceeds 20,000, correspondingly, the RTC could not have appellate jurisdiction over the claim. Thus, the award to Maceda is invalid for lack of jurisdiction. The jurisdiction of the MTC in a civil action is limited to a demand that does not exceed 20,000 exclusive of interests & costs but inclusive of damages of whatever kind. A counterclaim in a municipal or city ct. beyond that jurisdictional limit may be pleaded only by way defense to weaken the plaintiff’s claim but not to obtain affirmative relief.

How raised Included in answer Rule 6, Sec. 9 A counterclaim may be asserted against an original counterclaimant. A cross-claim may also be filed against an original cross-claimant. Rule 11, Sec. 8 A compulsory counterclaim or a crossclaim that a defending party has at the time he filed his answer shall be contained therein. After answer Rule 6, Sec. 9 supra. Rule 11, sec. 9 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 crossclaim by supplemental pleading before judgment. Rule 11, Sec. 10 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. In criminal actions Rule 111, Sec. 1 Rule 119, Sec. 3 Shafer v. RTC Judge, 167 SCRA 386 ('88) Facts: Shafer is the owner of a car involved in an accident. A case was filed vs. him for reckless imprudence. Shafer filed a third party complaint impleading his insurer. The TPC was dismissed upon motion by the ins. co. on the ground that Shafer has to pay first & found liable before the insurer could be made to pay the claim. Shafer alleges that the dismissal of the TPC amounts to a denial or curtailment of his right to defend himself in the civil aspect of the case. Held: The lower ct. erred in dismissing the TPC on the ground that there is no COA vs. the ins. co. There is no need on the part of the insured to wait for the decision of the trial ct. finding him guilty of reckless imprudence. The occurrence of the injury to third party immediately gave rise to the liability of the insurer. A third party complaint is a device allowed by the ROC by w/c the defendant can bring into the original suit a party vs. whom he will have a claim for indemnity or remuneration as a result of a liability established vs. him in an original suit. TPC’s are allowed to minimize the number of lawsuits established vs. him to avoid the necessity. of two or more lawsuits involving the same subj. matter. Javier v. IAC, 171 SCRA 605 ('89) Facts: A case for violation of BP 22 was filed vs. resp. Resp. on his part filed a separate civil action

64 in another ct. for damages alleging that the check was issued through fraud & deception practiced upon him by the pet. the pet. filed a motion to dismiss the second case on grounds of lack of jurisdiction & litis pendentia. The same was denied. Held: The lower ct. should dismiss the second case for damages. As the civil action was not reserved by the pet. in the orig. case, it is deemed impliedly instituted w/ the crim. case in the RTC in accordance. w/ Rule 111 Sec. 1. It was before the RTC where resp. could have explained why he had issued the check. The civil action filed by resp. based on the same act should be deemed filed in the same RTC too. He could have done this by way of a counterclaim for damages for the alleged deception of the pet. In fact, the counterclaim is compulsory & could have been also set up as an affirmative defense. Kinds of counterclaims Compulsory Rule 6, Sec. 7, supra. Rule 9, Sec. 2, supra. Meliton v. CA, 216 SCRA 485 ('92) Facts: Ziga filed a complaint adjacent Meliton for rescission of a contract of lease. Meliton answered w/ counterclaims. Ziga filed an MTD & the same was granted. The CC of Meliton was dismissed w/o prejudice on the ground that the docket fees were not paid, the ct. did not acquire jurisdiction over the counterclaim. Meliton instituted a separate. civil action for his counterclaim but the same was dismissed on the ground that his claims are compulsory & should have been set up in the case filed vs. him by Ziga. Meliton’s failure to do so amounted to a bar to a filing of a subsequent case based on the same ground. Held: While it is true that the counterclaim of Meliton satisfies the requisites of a compulsory counterclaim, in CAB, the SC allowed Meliton to file a separate. civil action on the counterclaim. The SC held that Sec. 4 of Rule 9 is not applicable beech. 1) Meliton set up the CC in the prior case but the same was dismissed. 2) The prior case was adjudicated not on the merits so that res judicata would not lie. 3) the first counterclaim was dismissed by the RTC on the ground of LOJ. 4) In the RTC order, there was a reservation for the filing of a separate. case based on the counterclaim. The lower ct. in the prior case erred in dismissing the counterclaim for non-payment of docket fees. The lesson of Manchester provides that payment of docket fees for purposes of assuming jurisdiction over the claim is necessary only for permissive counterclaims & does not apply for compulsory counterclaims like the one at bar. TEST OF COMPULSORINESS: Existence of a logical relationship between the claim in the complaint & the counterclaim. Where conducting separate trials of the respective claims would entail substantial duplication of effort & time & involves many of the same factual & legal issues.

Lim Tanhu v. Ramolete, 66 SCRA 425 ('75) Facts: This is the 30++ page case w/c was so diligently digested by Miss Secretary Lourie but was not discussed in class (Ang bitter!). Upon motion of the plaintiff, 4 of the 6 defendants were declared in default while the case vs. the remaining two were dismissed upon motion by the plaintiff. Held: The respondent judge erred in dismissing the 2 defendants fr. the case. The respondent judge disregarded the existence of a counterclaim w/c the judge earlier declared to be compulsory in nature. A counterclaim is compulsory nature if it arose out of or is necessarily connected w/ the occurrence that is the subject matter of the plaintiff’s claim. It is compulsory not only bec. the same evidence to sustain it will also refute the cause of action alleged in plaintiff’s complaint but also bec. fr. its very nature it is obvious that the counterclaim cannot remain pending for independent adjudication of the ct.. ( see Rule 17 Sec. 2 ) Permissive Remedies For failure to raise Rule 9, Sec. 2, supra. Visayan Packing v. Reparations Commission, 155 SCRA 542 ('87) Facts: REPACOM sought to collect vs. Visayan. Visayan instituted an action for declaratory relief alleging that the contract bet. them is ambiguous w/ respect to its failure to define clearly the terms of payment. REPACOM then filed an ordinary civil action for collection. Visayan moved to dismiss the collection suit on the ground of LCOA. Held: The separate. collection suit should have been dismissed & set up as a CC in the declaratory relief suit filed by Visayan packing by way of an amended answer. In CAB, the actions proceeded independently & were decided on the merits. However, under the circ. where the length of time the case has been pending, it would be violative to subs. justice to pronounce the proceedings in the collection suit totally defective for breach of the rule on compulsory counterclaim. Rules of Procedure are after all laid down to attain justice & technicalities cannot prevail over substance. Oversight, inadvertence, excusable neglect, et al Rule 11, Sec. 10, supra. BA Finance v. Co, 224 SCRA 163 ('93) Facts: Does the dismissal of the complaint for non-appearance of plaintiff at pre-trial upon motion of the defendant carry w/ it the dismissal of compulsory counterclaim? In CAB, the plaintiff did not appear at pre-trial, the defendant moved for the dismissal of the complaint. The same was

65 granted. Now, the defendant moves for an adjudication of his compulsory counterclaim. Held: YES. Compulsory counterclaim is also dismissed. There are several requirements of a compulsory counterclaim: • It arises out or is necessarily. connected w/ the transaction or occurrence that is the subj. matter of the opposing parties claim. • It does not require the presence of third parties of whom the ct. cannot acquire jurisdiction. • The trial ct. has jurisdiction to entertain the same. The test of compulsoriness is : WON the same evidence to sustain it would refute the plaintiff’s cause of action. In CAB, the compulsory counterclaim cannot remain pending for independent adjudication. The CC is auxiliary to the proceeding in the original suit & merely derives its jurisdictional support fr. the orig. case. If the ct. has no or loses jurisdiction over the main case, it has no jurisdxn over the comp. counterclaim. In CAB, the ct. has lost jurisdxn. over the main case by virtue of its dismissal upon motion by the defendant. In case main action fails For failure to raise permissive counterclaims Answer to counterclaim In general Rule 6, Sec. 4, supra. Period to plead Rule 11, Sec. 4 An counterclaim or cross-claim must be answered within 10 days from service. Reply Defined and in general Rule 6, Sec. 10 A reply is a pleading, the office 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 a 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. When required Rule 6, sec. 10, supra. Challenge due authenticity of documents Rule 8, Sec. 8, supra. Usury Rule 9, sec. 1

Period to plead Rule 11, Sec. 6 A reply may be filed within 10 days from service of the pleading responded to. Third/Fourth Party Complaint Defined Rule 6, sec. 11 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. Go v. CA, 224 SCRA 143 ('93) Facts: Clover delivered denim garments to Go but the latter refused to pay on the ground that he received the goods fr. Lim to whom he already made payments. Lim was made a witness for Go instead of being impleaded as a third party def. Held: Lim should have been impleaded as a third party def. Go should still pay. A third party complaint is a claim that a def. may w/ leave of ct. file vs. a third person not party to the action called third party def. for cont. indemnity, subrogation or any other relief in respect to opponent’s claim. In CAB, if payments to Lim were true, then Go could have impleaded him as a TPD for relief vs. Clover’s claim vs. him. Pascual v. Bautista, 33 SCRA 301 ('70) Facts: The issue involved in this case is the nature of a third party complaint. Is a third party complaint arising fr. the same transaction or occurrence a separate action fr. the main complaint? Held: A TPC is similar to a cross-claim in that a TPC plaintiff seeks to recover fr. another person some relief w/ respect to the opposing party’s claim but it differs fr. a cross-claim in that in crossclaims, the third party is already impleaded in the main action while in TPC, the def. seeks to implead a third party not yet include in the main action. A counterclaim does not depend upon the main claim but rests on WON the claim is based or related to the same transaction. A TPC, the relation must be to the claim, to the COA & not to the transaction fr. w/c the claim arises. Balbastro v. CA, 48 SCRA 232 ('72) Facts: There are two persons contesting the right to receive rental payments of Balbastro. the Latter filed an action for interpleader & consignation vs. the two claimants. One claimant, Fernandez then filed a third [party complaint vs. Balbastro for refusing to pay the rents to him. Balbastro moved to dismiss the TPC but the RTC & CA denied the motion. Held: A TPC has the following requisites.

66 • The complaint should assert a derivative/ secondary claim for relief fr. the third party defendant. • The third party should not be a party to the action, otherwise, the claim should be a counterclaim or cross-claim • Claim vs. the third party def. must be based on the pltf. claim vs. the orig. def. Thus, citing the case of Capayas, “ the test to determine WON to allow a TPC is WON it arises out of the same transaction on w/c pltf’s claim is based o retired party’s claim, though arising out of a different transaction or contract is connected w/ pltf’s claim. Absent a nexus between third party def. & third party pltf. showing strong evidence of a secondary or derivative liability of former in favor of the latter, no third party complaint may be allowed. However, in the CAB, in lieu w/ the policy of avoiding multiplicity of suits, the SC allowed the TPC of Fernandez. Republic v. Central Surety, 25 SCRA 641 ('68) Facts: Rep. filed an action vs. Central Surety for forfeiture of the bond it issued when Po Kee Kam, a def. in CID proceedings failed to appear . The Surety filed a TPC vs. Po Kee Kam on ground that the latter executed an indemnity agreement in favor of the surety. The TC dismissed the TPC on the ground that the 3rd party claim is only 6,000. Held: A TPC is an ancillary suit w/c depends on the jurisdiction of the ct. over the main action. Jurisdiction over the main action embraces all the incidental matters arising therefr. or connected therew/, otherwise there would be split jurisdiction. The TPC is a continuation of the main action the purpose of w/c is to seek contribution or any other relief in resp. to opponents claim. Thus, regardless of LOJ over the amount in TPC, when ct. has jurisdxn. over main action, it has jurisdxn. over the TPC. In TPC, the defendant sue in capacity he is being sued w/ resp. to pltf. claim in the main action. the def. cannot compel the pltf. to implead the third party def. There must also be privity of contract in relation to the property in litigation. TEST: there must be a showing that such third party is or might be liable to the def. or pltf. for all or part of the claim vs. the def. - WON it arises out of the same transaction on w/c pltf’s claim is based. ( CAVEAT) The ct. must wait before the 3rd party def. files his answer before proceeding to trial since before the answer, the case is not yet ready for trials as issues have not yet been joined. Remedies when denied Appeal, De Dios v. Balagot, 20 SCRA 950 Facts: This is an action for recovery of possession of land filed by De Dios v. Balagot. the latter filed a third party complaint fr. his alleged seller of the lot. The TPC was denied. Held: The remedy for an order denying motion to file TPC is APPEAL. An order disallowing TPC is appealable to enforce the vendor’s warranty vs.

eviction since it leaves no other alternative to enforce such warranty. Remember Sales, where the vendee must file an action vs. the vendor to make him liable for breach of warranty vs. eviction. ( Art. 1559 CC- the vendee may do this in two ways. 1) As a co-defendant. 2) As a third party def.) The appeal would finally dispose of Balagot’s rights to enforce the warranty. Answer to third/fourth party complaint In general Rule 6, Sec. 13 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 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. Time to plead Rule 11, Sec. 5 The time to answer a third (fourth, etc.)party complaint shall be governed by the same rule as the answer to the complaint. Extension of time to plead Rule 11, Sec. 11 Upon motion and on such terms as may be just, the court may extend the time to plead as 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. Formal Requirements Rule 7 Sec. 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 be named in the original complaint or petition; but in subsequent pleadings, it shall be sufficient if the name of the first party in each side be stated with an appropriate indication when there are other parties. Their respective participation in the case shall be indicated. 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. (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

67 convenience. A paragraph may be referred to by its number in all succeeding pleadings. (b) Headings - when 2 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 the words to that effect. (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. d) Date - Every pleading shall be dated. 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. 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. Sec. 4 Verification Except when otherwise specifically required by law or rule, pleadings need not be under oath, verified or accompanied by affidavit. 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 knowledge and belief. A pleading required to be verified which contains a verification based on "information and belief", or upon "knowledge, information and belief", or lacks proper verification shall be treated as an unsigned pleading. 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 5 days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed. Failure to comply with the foregoing instruments 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

LECTURE ON STAGES OF TRIAL: WORD GAME: Motion: request for interlocutory order related to relief prayed for in pleading Pleading: sets forth ultimate facts and defenses Complaint: pleading that starts off civil action Answer: defense against claims in complaint and present issues in case Issue: allegation denied Allegation: ultimate fact L: Distinguish between: Conclusion of Law; Ultimate Facts; and Evidentiary Facts Non-issue if a) not alleged therefore not need to be denied b) acceptance of allegation Defense: tends to defeat claim as alleged in complaint L: prayer would be to dismiss for fact of merit Counterclaim: if answer with affirmative relief Negative defenses: which factual allegations in complaint alleged as issues Issues: allegations and denials joined

68 General denial: accept everything: admission of everything: it specifically denies each and every allegation made by the plaintiff: therefore, no factual issues anymore and so no more need to go through trial or pre-trial L: Counsel for P: file motion for judgment on the pleading Specific denial proper: qualified, under oath and allege lack of knowledge or information sufficient to support a belief (WIT) Affirmative defense: defeats allegations contained in complaint Effect: if able to prove during hearing, then entire pleading of the other party is defeated Eg. Defense of Lack of jurisdiction or failure to undergo a condition precedent. It is a new matter. Hypothetical admission but still avoidance. Relief prayed for is dismissal of complaint Unlike Counterclaim: raises a relief other than dismissal of complaint; always allege a new matter will have specific and general denials. Compulsory counterclaim: arises from the same transaction or relation. If not set up immediately, deemed barred Test: the logical relationship test - if there is substantial duplication of efforts or that the same set of evidences will be used to prove the complaint and the counterclaim Reply: if no reply, matters raised in counterclaim deemed incontroverted If with reply, all new matters raised in answer deemed controverted Reply necessary when need to challenge new matters raised by affirmative defense. Can't rely on implied setting up of specific denial Document: res ipsa loquitur: thing speaks for itself Deny under oath: a) genuineness and due execution of the document b) usury charges L: Amended and Supplemental Pleadings Joinder of Parties: arises from the same transaction or common question of fact or law Joinder of Causes of Action: so long as the court has jurisdiction, party can raise all causes of action between the original P and D P can raise all causes of action against D arising from different sources but if court has no J over the cause of action, can't join cause of action But if complaint filed with the RTCF for a sum of money, if the sum is within RTC's jurisdiction, then can raise

If you want to bring in a new D, need to find commonality in cause of action originally raised, not commonality of parties Counsel for D: Remedies when a complaint is filed: (note: D must wait until court acquires jurisdiction and serves him with summons (service, not summons, if court sends him other pleadings) or he can voluntarily appear and let the court acquire jurisdiction over him file bill of particulars; file motion for extension of time for filing a pleading and file an amended pleading / supplemental pleading Final Order/Dismissal 1. MTD (filed by D) 1. Dismissal of action by notice or motion (filed by P) 1. Default (D not act) 1. Non-sut (P acts maliciously and not do what is required of him Rule 17 sec. 3 Or P acts passively) L: the trial is not about justice, it's about what you can prove Rule 13 Service of Pleadings Coverage, Rule 13, Secs. 1, 4 Filing Defined, Rule 13, Sec. 2 How, Rule 13, Sec. 12 Proof of Filing, Rule 13, Sec. 12 Service Defined, Rule 13, Sec. 12 Modes of Service Generally, Rule 13, Sec. 5, Sec. 11 Personal, Rule 13, Sec. 6 Registered Mail, Rule 13, Sec. 7 Substituted Service, Rule 13, Sec. 8 Echaus v. CA Facts: Spouses Gonzales file action for collection of debt vs. Echaus. Ct. orders E to pay. E files w/ SC certiorari to set aside decision, denied; then mandamus to allow appeal, granted. E files w/ TC Urgent Motion to Transmit Record on Appeal to CA. At the hearing, Judge verbally approves the record on appeal in abeyance, until resolution of Gps Motion for Execution of the TC judgment. E asks CA to order Judge to comply w/ SC decision, denied. CA says no willful refusal on part of Judge to comply w/ order. E goes to SC, says her appeal had been perfected when the Judge verbally approved the record on appeal. Held: The oral order approving the record on appeal had no juridical existence; to give it that existence it had to be reduced to writing & promulgated (filed w/ clerk of ct.). But even if it had been written & promulgated, even if it had already been properly served on the parties, it still was w/in the power of the Judge to recall it & set it

69 aside. For every ct. has the inherent power to amend its process & orders so as to make them conform to law & justice. No judgment, or order whether final or interlocutory, has juridical existence until & unless it is set down in writing, signed & promulgated, i.e., delivered by Judge to clerk of ct. for filing, release to the parties & implementation & even after this, it does not bind the parties unless & until notice thereof is duly served on them by any of the modes prescribed by law. Service of Judgments, Final Orders or Resolutions, Rule 13, Sec. 9 Completeness of Service, Rule 13, Sec. 10 Proof of Service, Rule 13, Sec. 12, 13 See also SC Circular No. 19-91 Rule 14 Summons Definition and purpose Duty to issue, Rule 14, Sec 1, 5 Form Content, Rule 14, Sec 2 If with leave of court, Rule 14, Sec. 17 Who serves, Rule 14, Sec 3 On Whom, In general, Rule 14, Sec 1, 6 Entity without juridical personality, Rule 14, Sec 8 Associations, Rule 14, Sec 9 Domestic, Rule 14, Sec 11 Rebolido v. CA, 170 SCRA 800 (1989) Facts: Pepsi Cola was served summons, in connection w/ a case for damages arising fr. vehicle-collision, through Sison who represented herself as a person authorized to received ct. process as she was a secretary of the legal dept. of Pepsi Cola. Later, Pepsi Cola was dissolved, & all its debts & liabilities were assumed by PEPSICO. Meanwhile, Pepsi Cola was declared in default in the aforementioned case, & writ of execution was served on PEPSICO. The latter now moves to vacate judgment, alleging lack of jurisdiction of the ct. as the summons was served on the legal secretary of Pepsi Cola, not PEPSICO. Held: There was valid service of summons. 1. Although Pepsi Cola was already dissolved when summons was served, the same may be served upon the same person upon whom the process could be served before the dissolution. Therefore, service to any of the persons in R 14 Sec. 13 is allowed. 2. Purpose of Summons: To render it reasonably certain that corporation will receive prompt & proper notice in an action vs. it. 3. Liberal Interpretation of Sec. 13: That there is Substantial Compliance w/ the requirement of Sec. 13 if the purpose for the service of summons is attained, & the person served knew what to do w/ the legal papers served upon him.

Summit Trading v. Avendano, 146 SCRA 197 (1986) Facts: In connection w/ a case for redemption of lots filed vs. ST (Type!), summons were served on the Secretary of the President of Summit Trading. ST was later held in default. Judgment was rendered vs. it. ST filed MFR contending that ct. in the first place did not acquire jurisdiction over the company when it served summons on the Sec of the Pres. who is not an agent of the company. Held: Since the Secretary did not explain what she did to the summons, the logical assumption is that she gave it to her boss. (SC here considered the fact that a copy of the default judgment held vs. ST was also served on the Sec. & the same reached the Pres., & consequently, ST was able to file a MFR.) While Summit Trading is technically correct in contending that there was no strict compliance w/ Sec. 13, under the facts of this case, where the President contact the outside world normally through his Secretary, the latter may be regarded as an “agent” w/in the meaning of Sec. 13. Note: Remember that SC did not rule that service upon Secretaries is always proper. It was only under the facts of the CAB that Sec. may be considered as an agent of the corporation. Foreign, Rule 14, Sec 12 Public corporation, Rule 14, Sec 13 Minors, RuLe 14, Sec 10 Insane, incompetents, Rule 14, Sec 10 Prisoners, Rule 14, Sec 9 Unknown defendant, Rule 14, Sec 14 Residents temporarily out, Rule 14, Sec 18, 16 Venturanza v. CA, 156 SCRA 305 (1987) Facts: Venturanza was sued for collection of a sum of money. Summons for V was served upon her father at his residence in Tondo. V was later held in default. V filed Motion to Set Aside Default Judgment on the ground that there was no proper service of summons when it was served not in her residence w/c was in Pasay City. Held: There was no proper service of summons. 1. It is only when defendant cannot be served w/in reasonable time that a substituted service may be availed of under Sec. 8 (Pls. see Part VI). The law requires an effort or attempt to personally serve the defendant, & only after this has failed that a substituted service may be availed of. Why? Bec. Substituted Service is in derogation of the usual method of service. It is a method extraordinary in character & hence may be used only as prescribed in the circumstances authorized by statute. 2. Substituted service is valid only if served at defendant’s residence, NOT former residence. “Residence” means where he is living at the time service was made, even though temporarily out of the country. Non-resident, Rule 14, Sec 15 Modes of service Personal, Rule 14, Sec 6

70 Substituted, Rule 14, Sec 7 Laus v. CA, 219 SCRA 688 (1993) Facts: This is the 10-minute case. Torres filed a complaint for Collection vs. Laus. Deputy Sheriff went to Laus’ residence to serve summons, but found that there was no one in the house. He waited for 10 minutes. Then a three-wheeled vehicle (tricykol) came w/ the savior who claimed to be the maid in the house. The Sheriff served summons upon the latter. Laus was declared in default. Before he received the final judgment, Laus filed an MTD on the ground that there was ineffective service of summons bec. there was no indication that S first exerted efforts to serve the same personally before resorting to substituted service. Held: There was an ineffective service of summons. General Rule: Must serve personally. Exception: If cannot serve personally w/in reasonable period of time, may resort to Substituted Service. How can Impossibility of Service be shown? By stating efforts made to find defendant personally & the fact that such efforts failed. Mapa v. CA, 214 SCRA 417 (1993) Facts: A complaint for Recovery of sum of money was filed vs. High Peak Mining. Summons was issued to be served upon Mapa, the chairperson, & upon other officers of the corporation. However, said summons was served upon an employee of said corp. Defendants were declared in default. Defs. filed MTD & Set Aside Default Judgment on the ground of lack of jurisdiction of the ct. over their person as the service of summons was improper, i.e., served upon an EE who may not be considered as an “agent” of the corporation; moreover, Sheriff did not indicate in his Return his efforts at serving summons personally before resorting to substituted service. Held: Court lacked jurisdiction. 1. General Rule: Sheriff’s Return must show that prior attempts at personal service were made by the Sheriff & that such attempts had failed, prompting him to resort to Substituted service. HOWEVER, it must be emphasized that Absence in the Sheriff’s Return of a statement about the impossibility of personal service DOES NOT conclusively prove that the service is invalid. Proof of such prior attempts may be submitted by the plaintiff during the hearing of any incident assailing the validity of the substituted service. While Sheriff’ Return carries w/ it the presumption of regularity, that entries therein are deemed correct, it does not necessarily follow that an act done in relation to the official duty for w/c the return is made was not simply done bec. it is not disclosed therein. Besides, the sheriff’s neglect in making such a disclosure should not unduly prejudice the plaintiff if what was undisclosed was in fact done. 2. The EE may be considered as an “agent” for the purpose of Sec. 13, & there was a substantial compliance under the said sec. bec. in the CAB, petitioner failed to deny the statement in Sheriff’s Return that the EE is “authorized to receive process of this nature”, said Return enjoying the presumption of regularity, & the logical conclusion is that she delivered the summons to the corporation.

3. In an action in personam as in the CAB, personal service of summons w/in the forum is essential to the acquisition of jurisdiction over the person of the defendant who does not voluntarily submit himself to the authority of the ct.. Extraterritorial, Rule 14, Sec 15 Dial Co. v. Soriano, 161 SCRA 737 (1988) DIAL CO. V. SORIANO Facts: Dial is a foreign corporation organized & existing under the laws of UK, US & Malaysia. It has NO agents, officers or office in the Philippines. Imperial Vegetable Oil, a Phil. corp., entered, through its President, into several contracts w/ Dial for the delivery of coco oil by the former to the latter. Later, IVO repudiated said contracts on the ground that they are “mere paper trading in futures” as no actual delivery of coco oil was really intended. IVO also filed complaint for Damages vs. Dial. RTC, upon motion of IVO, authorized the latter to effect Extraterritorial Service of Summons to Dial through DHL. Dial, w/o submitting itself to court’s jurisdiction, filed MTD on the ground that Extraterritorial Service was improper, hence RTC acquired no jurisdiction. Held: There was an Improper service of summons. 1. There are 4 instances when Extraterritorial service of summons can be properly done: a) Action affects status of the plaintiff b) Action relates to, or the subject of w/c is, property w/in the Phils., in w/c defendant has or claims a lien or interest, actual or contingent c) When relief demanded consists in whole or in part, in excluding the def. fr. any interest in the property located in the Phils. d) Defendant non-resident’s property has been attached w/in the Phils. 2. The CAB is purely an action for Injunction, not any of the 4. This is only an action in personam. In any of the 4 instances, Court has jurisdiction over the RES, i.e. personal status or property, so jurisdiction over the person is NOT essential. In Personam - an action vs. a person on the basis of his personal liability; In Rem - action vs. the thing itself instead of vs. the person. 3. In CAB, Court cannot subject Dial & Co. to processes of RTC w/c are powerless to reach them outside the region over w/c they exercise their authority. Sievert v. CA, 168 SCRA 692 (1988) Facts: Sievert, a citizen & resident of the Phils. received by mail a Petition for Issuance of Preliminary Attachment w/o previously receiving any summons & copy of the complaint filed vs. him. His counsel entered a special appearance for a limited purpose of objecting to the jurisdiction of the ct.. Held: RTC has no jurisdiction over Sievert. 1. Rule 57 Sec. 1. -- Writ of Preliminary Attachment may be applied for by a plaintiff “at the commencement of the action or at anytime thereafter...” However, what should be identified is not the time when the action may be regarded as having commenced, as this is not necessarily fixed nor identical. The Critical Time to be identified is

71 when the trial ct. acquires authority under the law to act coercively vs. the defendant or his property in a proceeding in attachment. Answer: the time of the vesting of jurisdiction in the ct. over the person of the defendant in the main case. 2. NON-RESIDENT DEFENDANT: Attachment of property may be sought in order to bring RES w/in the jurisdiction of the ct., in substitution, as it were, of the body of the defendant. Jurisdiction over the res & the person of the defendant is, in such case, acquired by service of summons by publication, though that jurisdiction may be made effective only in respect of the res attached. RESIDENT DEFENDANT: A ct. w/c has not acquired jurisdiction over the person of the defendant cannot bind that def. whether in the main case or in an ancillary proceeding such as attachment proceedings. The service of a Petition for Prelim Attachment w/o the prior or simultaneous service of summons & a copy of the complaint in the main case does not confer jurisdiction upon the issuing ct. over the person of the defendant. Citizen's Surety v. Herrera, 38 SCRA 369 (1972) Facts: Citizen’s Surety filed complaint for reimbursement of money vs. Dacanay. Since Dacanay’s address was unknown, CS petitioned the Court that summons be made by publication. Petition was granted, but still no Dacanay appeared. (Kung kayo ba s’ya lalabas kayo?) CS asked the ct. that Dacanay be held in Default. Trial ct. denied since this is an action in personam, & dismissed the case. Held: The judge was correct that the Court could not validly acquire jurisdiction on a non-appearing defendant, absent a personal service of summons w/in the forum. Otherwise, there would be a violation of Due Process. The proper recourse for the creditor is to locate properties, real or personal, of the resident defendant debtor w/ unknown address & cause them to be attached under R57 Sec. 1(f), in w/c case, the attachment converts the action into a proceeding in rem or quasi in rem, & the summons by publication may then accordingly be deemed valid & effective. Consolidated Plywood v. Breve, 166 SCRA 589 (1988) Facts: Consolidated Plywood & Mindanao Hemp Export are co-owners of real property: land & building. Consolidated undertook to repair & improve the property, subject to reimbursement fr. Mindanao of 1/2 of costs. After Mindanao refused to pay, a suit for collection was filed by Consolidated. When summons was issued, it was found out that Mindanao was no longer doing business at its former address. Can summons be served by publication? Held: No. Suit is for the collection of an amount of money--a personal action, ct. cannot acquire jurisdiction over the person by serving summons by publication. The proper recourse for a creditor is to locate properties, real or personal, of the resident defendant debtor w/ unknown address & cause them to be attached under R57 Sec. 1(f), in w/c case, the attachment converts the action into a proceeding in rem or quasi in rem, & the summons by publication may then accordingly be deemed valid & effective.

Waiver of service, Rule 14, Sec 20 Delos Santos v. Montesa, 221 SCRA 15 (1993) Facts: In connection w/ a complaint for Ejectment filed vs. De los Santos, summons was served upon the latter through her mother as the process server failed to locate the defendant. DLS filed an MFR of MC decision, alleging, inter alia, that the summons was improperly served. Held: While it may appear that there is no proof that it was impossible to personally serve the summons, & the statutory norms on service of summons were not strictly complied w/, by the acts of the petitioner’s counsel, such defects are deemed erased. (Counsel filed MFR ) Appearance of counsel is equivalent to summons unless such is made to protest the jurisdiction of the ct. over the person of the defendant. The MFR filed cannot be treated as a special appearance as it raised other grounds than the invalid service of summons, i.e. failure to state COA, no Katarungang Pambarangay). Return of service, Rule 14, Sec 4 Proof of service, Rule 14, Sec 18 Publication, Rule 14, Sec 19 Registered mail, Rule 14, Sec 19 NOTES ON SUMMONS: Venturanza - residence means "actual residence" What make time reasonable is the efforts exerted by the sheriff in serving the summons personally to the defendants. Remedies in default judgment: 1. Motion for New Trial 2. Appeal 3. Motion for Relief from Judgment 4. Motion to Set Aside Judgment A judgment rendered without jurisdiction never prescribes, passage of time can never correct the judgment of a court which has never acquired jurisdiction. Personal and real actions are important in determining venue of actions. Actions in personam and in rem are important for service of summons. Actions affecting personal actions are actions in rem and therefore extraterritorial service by publication may be made. Options for service of summons: 1. Personal service 2. Substituted service 3. Extraterritorial service: not a mode of service, principally (a) personal (b) service by publication (always accompanied by registered mail)

72 Service of other Pleadings: Rule 13 Service of Summons: Rule 14 1. Personal Delivery 1. Personal Service To party/counsel To the defendant only Residence, to person of suitable no such thing as service by registered Age and Discretion mail Purpose: acquisition of jurisdiction 2. Substituted Service 2. Substituted Service 3. Extraterritorial Service Either personally or by publication File a motion for leave of court inorder to be able to serve extraterritorially Extraterritorial Service by publication - may be made only in four (4) instances as enumerated in §15 of Rule 14 and Dial Co. v. Soriano. In rem for publication. Resident temporarily out may be served extraterritorially, personally Can apply to a foreigner having residence in the Philippines Rule 15 Motions Municipality of Binan v. CA, 219 SCRA FACTS: P filed a civil case for unlawful detainer vs. G. After filing an answer, G filed a Motion for Preliminary Hearing as if a Motion to Dismiss has been Filed on the ground that the complaint states no cause of action. The MTC, instead of conducting a hearing, rendered a judgment order in G to vacate the premises. HELD: A motion for Preliminary Hearing is merely PERMISSIVE. Sec. 5 Rule 16 is not mandatory even when prayed for. It rests largely on the sound discretion of the TC & is not a matter of right demandable. A prelim hearing on an affirmative defense of lack of cause of action is not necessary since the question submitted is the sufficiency of allegation in the complaint itself. International Container Terminal Services v, CA, 214 SCRA Facts: ICTSI adopted its co-respondent PPA’s MTD the complaint vs. them filed by Sharp. When such MTD was granted, ICTSI moved for a reconsideration of said order insofar as it dismissed ICTSI’s counterclaim. Held: 1. Dismissal of complaint on defendant’s own motion operated to also dismiss the counterclaim questioning the complaint. 2. Defendant himself joined PPA in moving for dismissal of complaint; it did not object to the dismissal. Secondly, compulsory claim was so

intertwined w/ complaint that it could not remain pending for independent adjudication. Calalang v. CA, 217 SCRA 462 Facts: The 7-year delay in the prosecution of the bank’s case was due to the several MTD’s w/c required oppositions & replies, pre-trial was reset several times, & the judges handling the case were constantly being replaced. Held: 1. Though it is w/in the discretion of the TC to declare a party non-suited for non-appearance in pre-trial conference, such discretion must not be abused. 2. To constitute sufficient ground for dismissal, delay must not only be lengthy but also unnecessary & dilatory resulting in the trifling of judicial process. Rule 16 Motion to Dismiss Lagutan v. Icao, 224 SCRA 9 FACTS: The heirs of L filed a complaint vs. I for specific performance. I, in his answer, raised the ff. defenses: lack of cause of action, prescription, non-compliance w/ the Statute of Frauds. Afterwards, I filed a motion to dismiss. CFI granted the MTD. HELD: Under R. 16, a MTD must be filed w/in the time for pleading (period to answer). Thus, the ct. erred in granting the MTD considering that it was filed 3 mo. after the amended answer was filed. The sufficiency of a motion to dismiss should be tested on the strength of the allegations of facts contained in the complain & no other. The ct. cannot inquire into the truth of the allegations & declare them to be false. Otherwise, there would be a denial of procedural due process. Laus v. CA, 219 SCRA HELD: If a defendant had not been properly summoned, the period to file a MTD for lack of jurisdiction over his person does not commence to run until he voluntarily submits to the jurisdiction of the ct.. In this case, D did not voluntarily submit. Thus, the period to file a responsive pleading did not even commence to run. As a general rule: an order denying a MTD being interlocutory cannot be the subject of certiorari. EXCEPTION: When TC clearly acted outside of its jurisdxn or w/ grave abuse of discretion in denying MTD. Bar by prior judgment DBP v. Pondugar, 218 SCRA 118 FACTS: CFI dismissed the injunction suit filed by IISMI vs. the government, DBP CB BOI & Sheriff of Lanao del Norte w/ prejudice for IISMI’s failure to appear during the pre-trial. Fourteen years later, IISMI, Fernando Jacinto & Jacinto

73 Steel filed a complaint vs. DBP, NDC & NSC before the RTC Iligan praying that the extrajudicial foreclosure conducted in accordance w/ the decision in the first case be annulled. HELD: 1. As a general rule, certiorari is not available since a motion to dismiss is merely interlocutory. However, when the ct., in denying the MTD, acts w/o or in excess of jurisdiction or w/ grave abuse of discretion, certiorari becomes available to relieve the defendant of the trouble of undergoing the ordeal & expense of a useless trial. 2. 2nd Case should be dismissed bec. of res judicata. RES JUDICATA - ELEMENTS a. Former judgment must be final. CFI order has attained finality since there was no motion for recon or appeal. b. The ct. w/c rendered it had jurisdiction over the subject matter & the parties. c. Must be a judgment on the MERITS. The first case was an adjudication on the merits since the CFI considered the evidence presented during the hearing; dismissed w/ prejudice due to failure to appear during pre-trial despite due notice. d. There must be, between the 1st & 2nd actions, identity of parties, subject matter & cause of action. Absolute identity of parties is not required. Substantial identity is sufficient. Inclusion of add’l parties will not affect the application of RJ. Test Of Identity of COA does not lie in the form of the action but on whether the same evidence would support & establish the former & present COA 3. RTC has committed grave abuse of discretion in taking jurisdiction . Although it is not prayed that the CFI orders be annulled, the effect is to annul the findings of mismanagement & to relitigate the same claims. Action for reconveyance is misleading since it is but the inevitable consequence if the CFI orders are annulled. 4. A finding that the complaint states a COA does not imply that the complainant is assured of a ruling in his favor. While a MTD based on failure of the complainant to state a COA necessarily carries w/ it the admission, for purposes of the motion, of the truth of all material facts pleaded in the complaint, what is submitted for determination therein is the sufficiency of the allegations in the complaint. 5. A MTD may be granted even if only 1 ground is present.

PR filed a MTD & or to suspend proceedings 1st case. RTC Makati Br. 63 dismissed the 1st case on the ground of litis pendentia HELD: The 2nd case should be the one dismissed & not the 1st case. REQUISITES OF LITIS PENDENTIA 1. Identity of parties or at least such as representing the same interests in both actions; 2. Identity of rights asserted & relief prayed for; the relief being founded on the same facts; 3. Identity in the 2 cases should be such that the judgment that may be rendered in the pending case would, regardless of w/c party is successful, amount to res judicata in the other. In our jurisdiction, the ROC simply requires that there is a PENDING action, NOT a PRIOR PENDING ACTION. Therefore, the priority in time rule is not applicable. ***CRITERIA IN DETERMINING WHICH OF THE CASES SHOULD BE ABATED 1. The more appropriate action shall be maintained (Teodoro vs. Mirasol) 2. Interest of justice test, taking into account a) the nature of controversy; b) comparative accessibility of the ct. to the parties; c) other similar factors (Roa-Magsaysay vs. Magsaysay) **In both tests, the bona fides or the good faith of the parties shall be taken into consideration

Litis pendencia

Res judicata v. conclusiveness of judgment

Vitrionics Computers v. RTC, 217 SCRA 1

Nabus v. CA, 190 SCRA FACTS: Nabus brought an action for reconveyance of land vs. Lim. This was based on the Public Land Law. Upon failure of N to comply w/ the ct. order (CFI ordered him to deposit the repurchase price), the ct., upon L’s filing of a MTD, dismissed the case w/ prejudice.

FACTS: P filed w/ the RTC Makati Br. 63 a complaint for a sum of money & damages vs. PR (*1st case - Civil Case # 91-2069) The following day, the PR filed a complaint for the nullification of the contract on the ground of fraud. This was docketed as Civil Case # 91-2192 * 2nd case.

Res judicata Abalos v. CA, 223 SCRA FACTS: The RTC, acting as a Land Registration Court, granted the application for registration of title filed by A. After this, PR filed a complaint vs. A for the annulment of the document of sale & or redemption of ownership plus damages. A filed a MTD on the ground of res judicata. HELD: MTD granted on the ground of res judicata. The general rule is that the land registration ct. has limited jurisdiction. EXCEPTIONS: 1. The parties have agreed or have acquiesced in submitting the issues for determination by the ct. in the proceedings; 2. the parties were accorded opportunity in presenting their respective arguments of the issues litigated & of the evidence in support thereof; 3. the ct. has already considered the evidence on record & is convinced that the same is sufficient & adequate for rendering a decision upon the issues controverted. In the CAB, the issue of ownership was fully ventilated. While the jurisdiction of the LRC is limited, the power to determine the validity of the documents pertaining to sale of lands is necessarily w/in its jurisdiction.

74 N filed a 2nd case for the rescission of the contract Was the complaint for rescission & damages barred by prior judgment of dismissal. HELD: NO. A. Res Judicata has 2 concepts: 1. Bar by Former Judgment. There is identity of parties, subject matter & COA. The judgment on the merits rendered on the 1st case constitutes an absolute bar to the subsequent action not only as to every matter w/c was offered but as to any admissible matter w/c might have been offered for that purpose. ELEMENTS OF BAR BY FORMER JUDGMENT a. presence of a final former order b. former judgment rendered by a ct. having jurisdiction over the subject matter & the parties c. former judgment is a judgment on the merits. d. identity of parties, subject matter & cause of action.

This is akin to a prayer for a judicial declaration of citizenship w/c may not be granted in a petition for declaratory relief.

Judgment on the Merits ⇒ When it determines the rights & liabilities of the parties based on disclosed facts, irrespective of formal, technical or dilatory objections. ⇒ Where complaint is dismissed for failure of P to comply w/ a lawful order of the ct., this has the effect of an adjudication upon the merits.

Execptions to motions must be in writing: a) made in open court or made in the course of a hearing or trial eg. Exclude public; hold other counsel in contempt; admissibility of evidence; motion to leave the court a) motions which do not substantially prejudice the rights of the other party eg. Motions for suspension of the trial

In the CAB, there is No identity of Cause of Action since the evidence that was presented in the 1st case is not the same evidence that is needed to sustain the 2nd case. 2. Conclusiveness of Judgment - There is identity of parties but no identity of cause of action. In this case, judgment is conclusive only as to matters actually & directly controverted & determined & not as to matters merely involved. This is not applicable bec. the unpaid balance was never put in issue. B. Nevertheless, the action was dismissed bec. it had has already prescribed. UP v. CA, 218 SCRA 72 FACTS: Elizalde & the Tasaday representatives filed a case vs. B & S based on torts. UP filed a motion to intervene w/c was granted. After UP has filed an answer in intervention, B & S filed a MTD on the ground of lack of COA. Court denied B & S’s MTD. Up also filed a MTD but this was denied bec. UP has already filed an answer. HELD: Res Judicata does not apply bec. there is no identity of subject matter. The ct. denied B & S’s MTD on the ground that there is a COA while it denied UP’s MTD bec. it had already filed an answer. The argument that B & S are protected by academic freedom is a valid defense that must be raised during trial. It is not w/in the competence of the ct. to declare the Tasadays a distinct ethnic community.

LECTURE ON DISMISSALS MTD should contain: a) relief sought to be obtained a) grounds on which it is based a) supporting affidavits and other papers as required by the Rules or to prove the facts alleged a) notice of hearing since MTD can't be heard ex parte Procedure: Movant: one who files motions: sets date for hearing: clerk of court to calendar it after getting proof of service: oppositor should have actual receipt of notice 3 days before hearing and hearing should not be > 10 days from filing of the motion: periods depend on how the filing is done whether personal delivery or registered mail: if the latter, explainwhy not personal delivery and with proof of service

If no MTD filed, any of the grounds for an MTD can be raised as an affirmative defense Except lack of jurisdiction over the person Affirmative defense since it means that D made an answer and subjected himself to the jurisdiction of the court Defenses NOT waived when not set up in an MTD or affirmative defense Rule 9 sec 1 a) jurisdiction over subject matter a) res judicata or statute of limitations a) litis pendencia if D files MTD for failure to state a cause of action, P's remedy is to file an amended pleading Nature of MTD: hypothetically admits allegations in complaint as true: affirmative defense MTD confusion and avoidance (WIT): hypothetical admission and denial Possible defenses when served with a complaint. Line by line: RTC - lack of jurisdiction NCR, QC - wrong venue P - lack of capacity to sue Summons - lack of J over D Pleading - no cause of action Body - litis pendentia, res judicata, paid/waived/unenforceable

75 Allegations of conditions precedent failure to undergo conditions precedent Failure to include certification against forum shopping under oath

JUDGMENT

Court after proper hearing on MTD can: a) sustain MTD and dismiss the complaint b) deny the MTD and compel D to file an answer c) order that the complaint be amended

Former judgment F Valid court with jurisdiction V Merits M

IDENTITY

Court will rule on face of document: no need to receive evidence but should give other party the opportunity to be heard. Other party to file his opposition to the MTD

Cause of action Subject matter Parties

Certiorari

Special civil action May be related to main cause of

Hearing not necessary if there is no need to present evident eg. improper venue, no jurisdiction over subject matter or person - just study complaint or return of summons When hearing necessary, movant has the burden of proving his opposition. D to present evidence first. Evidence presented during hearing on MTD automatically reproduced during trial Hearing on motion: receive evidence in support of motion Trial : receive evidence on ultimate causes MTD not a responsive pleading but a motion After filing MTD can no longer file Bill of Particulars since MTD means that D is presumed to have understood the complaint. Must file B of P before MTD then motion for extension of time to plead then pleading with counterclaim NOTE Rule 16 sec 6 makes it discretionary on the trial court to rule on affirmative defense raising any of the grounds of MTD as long as MTD not filed L: res judicata already raised as MTD, MTD denied during hearing, then can't raise affirmative defense on same ground since already settled that not res judicata (WIT) LINA V CA: Remedies for default judgment a) motion to set aside order of default b) motion for new trial c) appeal d) petition for review of judgment LAUS: no default since D did not receive summons. Period for filing answer has not yet started to run. Remedy: MTD. Remedy if MTD denied: certiorari for arbitrary ruling

action WON court a quo committed grave abuse of discretion U. P. case - certiorari by Bailen and Salazar in SC first civil action Certiorari - as a mode of appeal Certiorari - special civil action, grave abuse of discretion Distinguish between petition for review by certiorari and original special civil action for certiorari UP -orders of MTD contained two (2) different things Special civil action is a different thing Certiorari is an extraordinary remedy Answer-in-intervention: grounds for dismissal may be raised in an affirmative defense inspite of prior dismissal of a MTD by the original defendant. Procedure to intervene: 1. Motion for leave of court to intervene 2. After granting by the court, intervenor may file MTD. Denial of MTD is only a denial of the hypothetical admission mode by the defendant but may still be controverted in the trial. Once a MTD has been filed and denied, grounds raised can no longer be set up as affirmative defenses. Lack of Jurisdiction over the person cannot be raised in an affirmative defense. Default - remedy of the complainant Rule 17 §37 - plaintiff declared non-suited. If answer filed after reglementary period and default (motion) filed thereafter, court should not render an order of default since default are generally frowned upon.

NOTES ON MOTION TO DISMISS Bar by prior judgment conclusiveness of judgment

Remedies for a default judgment: 1. Motion under oath to set aside order of default 2. Motion for new trial - judgment not final & executory

76 3. Petition for relief from judgment - judgment final & executory 4. Appeal - no way that defendant can present evidence. Rule 19 § 5 - failure of defendant to appear, presentation of evidence shall be proved. No more "as in default" No opportunity to jump to judgment, only that plaintiff may present evidence ex-parte. Lesaca - What judgment can be rendered Rule 34. Judgment on the Pleadings If no material issue is contested (e.g. only amount of damages), judgment on the pleadings may be issued. MTD - confession/avoidance Motion for Summary Judgment - remedy so as not to go through the entire trial. Motion for Summary Judgment may be substituted by an Answer. Judgment after Trial Summary Judgment Judgment on the merits; Judgement on the Pleadings of terminating trial Judgment by Default

] ] ]

ways

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MTD - judgment which do not look at the merits Final orders Judgment trial Order

]

Ways of terminating

]

Rule 17 Dismissal of Actions Meliton v. CA, supra Facts: When the complaint vs. Meliton was dismissed, her counterclaims were also dismissed, w/ the trial ct. ruling that it acquired no jurisdiction over such counterclaims due to non-payment of docket fees. Later, Meliton sued on these counterclaims. The defendants therein raised the defense of res judicata. Held: Where a counterclaim is made the subject of a separate suit, it may be abated upon a plea of auter action pendentia or litis pendentia, &/or dismissal on the ground of res judicata. Res judicata, however, is not applicable since counterclaim was dismissed w/o prejudice since the ct. held that it did not acquire jurisdiction due to non-payment of docket fees. Neither is there litis pendentia. Dismissal on the ground of lack of jurisdiction does not constitute res judicata, there

having been no consideration & adjudication of the case on the merits. DBP v. Pondugar, supra Facts: IISMI instituted an injunction suit to stop foreclosure on its property. PI was issued. While case was pending in 1972, Martial Law was declared. 1972 LC dissolved the writ & held there was mismanagement b IISMI. LC said applicant for preliminary injunction should establish a clear case & must come to ct. w/ clean hands. PI being an equitable remedy. LC dismissed the case. 14 years later, complaint was filed to set aside the foreclosure. Held: Complaint should be dismissed. There is res judicata as the former judgment was final, ct. had jurisdiction over subject matter & parties, there was judgment on the merits, & there was identity of parties, subject matter & COA’s. Martial Law doesn’t qualify as a force majeure w/c would suspend the running of the period. That the Jacintos were abroad & couldn’t come home as Marcos canceled their passports is not a bar to the filing of the injunction case. When they lost, they should have filed an appeal or separate action to annul the same through their consuls based here. Rule 9, Sec. 3 Default Lim Tan Hu v. Ramolete, supra Facts: supra. Held: Parties declared in default waive their right to be heard & present evidence & are not entitled to receive notice of other proceedings & to service of papers except when the latter consist of substantially amended pleadings & final orders. If the parties in default file a Motion to Lift Order of Default, they shall not lose their right to the notices. Malanyaon v. Sunga, 208 SCRA Facts: Petitioner got sick & asked the judge to defer the schedule of his appearance at the pre-trial hearings. As P did not appear at the hearings, the judge declared P in default & ordered his arrest. Held: Where the failure to appear at the pre-trial hearing was uncontrovertedly due to illness, the default order may be set aside on the ground of accident over w/c petitioner had no control. Also, the order of arrest was illegal as there is nothing in the Rules of Court w/c authorizes such as a consequence of a default order. Lesaca v. CA, 215 SCRA Facts: Defendant failed to appear at the scheduled preliminary conference for a complaint for ejectment & as such was declared in default. The ct. then considered the case submitted for decision. Held: The Rules on Summary Procedure was applied in this case. Sec. 6 thereof states that in case of failure of parties to appear at the pre-trial conf., the ct. should have issued a "preliminary conference order" defining the issues of the case. Thereafter the parties should have submitted their affidavits & other evidence. Sec. 5 states that it is only when defendants fail to file a responsive

77 pleading w/in the reglementary period may the ct. proceed to render judgment. In the CAB, resp. did not file an answer. TC may not declare him in default bec. a motion to declare defendant in default is a prohibited pleading under Sec. 15 (h) of the Rules on SumPro. Datu v. CA, 215 SCRA Facts: Defendant Habaluyas was declared in default. Decision was rendered in favor of Mangelen awarding him exemplary damages w/c was not included in his prayer for specific performance. Held: In a judgment based on evidence presented ex-parte, judgment should not exceed the amount or be different in kind fr. that prayed for Thus, Mangelen is not entitled to exemplary damages. On the other hand, in a judgment where an answer was filed but def. did not appear at the hearing, the award may exceed the amount or be different in kind fr. that prayed for. Dulos v. CA, 188 SCRA Facts: Dulos spouses were declared as in default for failure to appear at the pre-trial conference. In their action for certiorari w/ the SC, they contend that they were not able to move to set aside the order of default since they were not furnished w/ copies of the order declaring them in default. Held: Party in default is not entitled to notice of subsequent proceedings under the Rules of Court. Ramnami v. CA, 221 SCRA Facts: A complaint for collection of a sum of money was filed vs. the Ramnanis, who failed to appear at pre-trial. They were declared in default. A motion to lift the order of default was filed w/c was denied. TC decision rendered vs. them. They filed w/ the CA a petition for certiorari w/c was dismissed since it was not the proper remedy. Hence this petition. Held: Motion to set aside default order could not be issued since there was inexcusable nonappearance (remember FAME?). The appropriate remedy was an ordinary appeal under Sec. 2, Rule 41 of the Rules of Court. Certiorari is proper only if party was illegally declared in default. In CAB, no irregularities in the pre-trial have been alleged. It is w/in the sound discretion of the ct. to set aside an order of default but it is not error, or abuse of discretion to refuse to set aside order of default & to refuse to accept the answer where it finds no justiciable reason for the delay of the filing of an answer. Gerales v. CA, 218 SCRA 68 Facts: supra. Held: Pleadings, as well as remedial laws, should be liberally construed in order that litigants may have ample opportunity to prove their respective claims, & possible denial of substantial justice, due to technicalities may be avoided. Default judgment is frowned upon, & unless it clearly appears that reopening of the case is intended for delay, it is best to give parties a chance to fight their case. Rule 34 Judgment on the Pleadings

Rule 35 Summary Judgments Rule 18 Pre-Trial Sec. 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. 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; (b) The simplification of the issues; (c) The necessity or desirability of amendments to the pleadings; (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; (g) The propriety of rendering judgement on the pleadings, or summary judgement, or of dismissing the action should a valid ground therefor be found to exist; (h) The advisability or necessity of suspending the proceedings; and (i) Such other matters as may aid in the prompt disposition of the action. Sec. 3. Notice of pre-trial. – The notice of pretrial 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. Sec. 4. Appearance of parties. – It shall be the duty of the parties and their counsel to appear at the pre-trail. 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. 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

78 ex parte and the court to render judgement on the basis thereof. 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. Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial. 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. Citibank v, Chua, 220 SCRA Facts: Pre-Trial was set. Counsel of Citibank appeared w/ an SPOA executed by Citibank officer Tarriela in favor of the counsel to represent & bind Pet at the PT conference. Velezes, the private resps, moved to have Citibank declared “as in default” since SPOA was not executed by the Board of Directors. TC declared the bank “as in default.” Held: TC should have accepted the first SPOA as sufficient for PT. SC admonished Courts vs. precipitate orders of default as they have the effect of denying the litigant the chance to be heard. There are instances when parties may properly be defaulted, but such is the EXC rather than the rule & should be allowed only in clear cases of obstinate refusal or inordinate neglect to comply w/ ct. orders. Municipality of Binan v. Garcia, 180 SCRA Facts: A special civil action for eminent domain/ expropriation. Defendant, instead of filing answer filed “MTD” on grounds not specified under Rule

16 (refer to Rule 16). Her MTD was filed pursuant to R67, S3 of the ROC : “Within the time specified in the summons, each defendant , in lieu of an answer, shall present in a single motion to dismiss of for other appropriate relief, all his objections & defenses to the right of the plaintiff to take his property for the use specified in the complaint.” The TC : ❃ reversed the order of trial allowing defendant to present her evidence before the plaintiff & ❃ subsequently rendered order sustaining defendant’s defense & dismissing the action as to her, solely on her evidence Rule: A MTD under Eminent Domain (R67) is really an answer. Thus if such MTD is filed (under R67), the order of trial remains under R30. CAB: There was no valid cause to reverse the order of trial. MTD here partakes the nature of a pleading. Plaintiff should thus go first. What the trial ct. have in mind was the provision of Sec. 5, R16 allowing “any of the grounds for dismissal in R16 to “be pleaded as an affirmative defense” & authorizing the holding of a preliminary hearing x x thereon as if a MTD has been filed. Defendants defense however was not a ground for dismissal under R16. She meant to prove plaintiff’s lack of cause of action w/c is not the same as failure to state a cause of action. There is also nothing in the record to prove the Municipality’s waiver of right to present contrary proof. Rule 20 Calendar of Cases

Rule 30 Trial

Rule 31 Consolidation or Severance

Rule 32 Trial by Commissioner Laluan v. Malpaya, 64 SCRA Lim Tan Hu v. Ramolete, supra Pagkatipunan v. Bautista, 108 SCRA NOTES ON TRIAL BY COMMISSIONER Rule 18. Pre-Trial Laying down the issues - allegations and what are being denied. Stipulation of facts - evidentiary facts Compromise judgment - final & executory; immediately executory.

79 1. Trial by assessors - Pagkatipunan v. Bautista, mandatory Rarely invoked; tend to earn the ire of the judge Sit only for the trial 2. Trial by commissioners 3. Delegation of reception of evidence by the Clerk of Court Qualifications of Assessors Act 190 -

Rule 33 Demurrer to Evidence

Rule 21 Subpoena 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. Section 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 (d) any Justice of the Supreme Court or of the Court of Appeals in any case or investigation pending within the Philippines. When the 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. No prisoner sentenced to death, reclusion perpetua or life imprisonment and who is confined in any penal institution for appearance or attendance in any court unless authorized by the Supreme court. Section 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.

Section 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 production thereof. The court may quash the 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. Section 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. Section 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 of 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. Section 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. Section 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. Section 9. Contempt. - Failure by any person without adequate cause to obey a subpoena served

80 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. Section 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.

Discovery

Modes of Discovery RULE 23 DEPOSITIONS PENDING ACTION Section 1. Depositions pending actin, 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. Section 2. Scope of examination. - Unless otherwise ordered by the court as provided by section 16 or 18 or 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. Section 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. Section 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 of 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. Section 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; section 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. Section 7. effect of taking depositions. - A party shall not be deemed to make a person his own witness for nay purpose by taking his deposition. Section 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

81 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. Section 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, Section 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. Section 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. Section 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 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. Section 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. Section 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. Section 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. Section 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 in 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 informatin enclosed in sealed envelope 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. Section 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 objectins 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 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 wrtieen interrogatories to the officers, who shall propound them to the witness and record the answers verbatim. Section 18. Motion to terminate or limit examination. - At any time during the taking of the depositin, on motion or petition of any party or of the deponent and upon a shwing 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 examinatin 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

82 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. Section 19. Submission to witness; changes; signing. - When the testimony is fully transcribed, the deposition shall be submitted to the witness for examination and sahll 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 wirness 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 stiplation 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 therfor, 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 hold that the reasons given for the refusla to sign require rejection of the deposition in whole or in part.

counsel in so attensing, including reasonable attorney’s fees. Section 23. 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 andhis counsel in so attending, including reasonable attorney’s fees. Section 25. Deposition ypon written interrogatories; service of notice and of interrogatories. - A party desiring to take the deposition of any person ypon 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 a re-direct interrogatories, a party may serve recrossinterrogatories upon the party proposing to take the deposition.

Section 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.

Section 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.

Section 21. Notice of filing. - The officer taking the deposition shall give prompt notice of its filing to all the parties.

Section 27. Notice of filing and furnishing copies. - When a deposition uon 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.

Section 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. Section 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 pusuant to the notice, the court may order the party giving the notice to pay such other party the amount of the reasonably expenses incurred by him and his

Section 28. Orders for the protectin 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 motin 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

83 designated in the notice or that it shall not be taken except upon oral examination.

may file a verified petition in the court of the place of the residence of any expected adverse party.

Section 29. Effect of errors and irregularities in depositions. (a) As to notice. - All errors and irregularities in the notice for taking a deposition are waived unless writeen 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 disqualificatin 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 bofore 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 examinatin 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 prosectued, 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 parepared, signed, certified, selaed, 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.

Section 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 them 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.

RULE 24 DEPOSITIONS BEFORE ACTION OR PENDING APPEAL Section 1. Depositions before action; petition. - A person who desires to perpetuate his own testimony or taht of another person regarding any matter that may be cognizable in any court of the Philippines,

Section 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 casue notice thereof to be served on the parties and prospective deponenets int he manner provided for service of summons. Section 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 depostion may be takne and specifying the subject matter of the examination and wherher 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. Section 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. Section 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 smae subject matter subsequently brought in accordance with the provisions of sections 4 and 5 of Rule 23. Section 27. Depositions pending appeal. - If an appeal has been taken from a judgment of a court, including the Court of Appeals in proper cases, or

84 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 smae 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 so be taken, and thereupon the depositions may be takne and used in the same manner and under the smae conditions as are prescribed in these Rules for depositions taken in pending actions. RULE 25 INTERROGATORIES TO PARTIES 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, fi the party served is a public or private corporation or a partnership or association, by any officer thereof competent to testify in its behalf. Section 2. Answer to interogatories. - The interrogatories shall be answered fully in writing and shall be signed and sworn t by the person making them. The party upon whom the interrogatories have been sserved 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 motino and for good cause shown, extends or shortens the time.

answers may be used for the same purposes provided in section 4 of the same Rule. Section 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 now be compelled by the adverse party to give testimony in open court; or to give a deposition pending appeal. RULE 26 ADMISSION BY ADVERSE PARTY Section1. Request for admission. - At any time after issues have been joined, a party may file and serve upon any party a written request for the admission by the latter of the genuineness of any material and releant document described in and exhibited with the request or of the truth of any meterial 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. Section 2. Implied admission. -0 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 directed files and serves upon the party requesting the admission a sworn statement either denying specifically the matters of which an admission si 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 filinf of his sworn statement as contemplated in the preceding paragraph and his compliance therewith shall be deferred until such obligatins are resolved, which resolution shall be made as early as practicable.

Section 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.

Section 3. Effect of admission - Any admission made by a party pursuant to such request is for the purpose of the pending actin only and shall not consitute an admission by him for any other purpose nor may the same be used against him in any other proceeding.

Section 4. Number of interrogatoties. - No party may, without leave of court, serve more than one set of interrogatories to be answered by the same party.

Section 4. Withdrawal. - The court may allow the party making an admissin under this Rule, whether express or implied, to withdraw or amend it upon such terms as may be just.

Section 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

Section 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 aw

85 request for admission on the adverse party of material and relevant facts at issue which, or ought to be within the personal knowledge of the latter, shall not be permitted to present evidence on such facts. RULE 27 PRODUCTION OR INSPECTION OF DOCUMENT OR THINGS Section 1. Motion for productio 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 dopying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, loetters, 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 possessin, custody or control; or (b) order any party or permit entry upon designated land or other porpoerty in his possession or control for the puropse of inspecting, measuring, surveying, or photogrpahing 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 ciopies and photogrpahs, and may prescribe such terms and conditions as are just. RULE 28 PHYSICAL AND MENTAL EXAMINATION OF PERSONS Section 1. When examination may be ordered. - In an action on which the mental or physical condition of a party is ain controversy, the court in which the acito is pending may in its discretion order him to submit to a physical or mental examination by a physician. Section 2. Oder for examination. - The orer 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 esmination and the person or persons by whom it is to be made. Section 3. Report of findings. - If requested by the party examined, the party causeing the esamination to be madee 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 metnal 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 exlude his testimony if offered at the trial. Section 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 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 mental or physical examination. RULE 29 REFUSAL TO COMPLY WITH MODES OF DISCOVERY 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. 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. Sec. 2. Contempt of court. - If the party or other witness refuses to be sworn 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

86 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 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 document or things or items of testimony, or from introducing evidence of physical or mental condition; (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 such orders except an order to submit to a 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. Sec. 5. Failure of party to attend or serve answers. If a party or an officer or managing agent of a party willfully 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 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 the party, or dismiss the action or proceeding or any part thereof, or enter a judgment by default against the party, and in its discretion, 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.

Republic v. Sandiganbayan, 204 SCRA 212 The various modes or instruments of discovery are meant to serve (1) as a device, along with the pre-trial hearing, to narrow and clarify the basic issues between the parties, and (2) as a device for ascertaining the facts relative to those issues. The evident purpose is, to repeat, to enable the parties, consistent with recognized privileges, to obtain fullest possible knowledge of the issues and facts before civil trails and thus prevent that said trials are carried on in the dark. To this end, 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 privileged. The objective is as much to give every party the fullest possible information of all relevant facts before the trial as to obtain evidence for use upon said trial. In line with the principle of according liberal treatment to the deposition-discovery mechanism, such modes of discovery as a) depositions (whether by oral examination or written interrogatories), (b) interrogatories to parties, and (c) requests for admissions, may be availed of without leave of court, and generally, without court intervention. The Rules of Court explicitly provide that leave of court is not necessary to avail of said modes of discovery 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 in accordance with Rule 27, or (b) physical and mental examination of persons under Rule 28, which may be granted upon due application and a showing of due course. Po v. CA, 164 SCRA 668 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. A request for admission is not intended to merely

87 reproduce or reiterate the allegations of the requesting party’s pleading but should set forth relevant evidentiary matters of fact, or documents described in and exhibited with the request, whose purpose is to establish said party’s cause of action or defense. Bribonera v. CA, 216 SCRA 607 (Same ruling as in Po v. CA.) The request for admission should be served upon the party himself and not upon counsel. Revilla v. CA, 217 SCRA 583 Evidence is negative when the witness states that he did not see or know the occurrence of a fact, and positive when the witness affirms that a fact did or did not occur. Don Cayetano’s declaration that he did not execute a second will, constitutes positive evidence of a fact personally known to himself: that he did not make a second will. NOTES ON DISCOVERY: Modes of Discovery allowed by the Rules: 1. Depositions 2. Written interrogatories of the parties 3. Admissions of the adverse party 4. Production or inspection of document or things 5. Motion for physical and mental examination of persons Two Kinds of Depositions: 1. Oral examination 2. Written Interrogatories - different from two above Motions: Don't forget: Notice, signatures Request for admission, questions are answerable by yes or no Attach receipt of registered mail in the pleading to be sent to the court. Purpose for suppression of evidence - based on form. Purpose of provisional remedies - to prevent judgment from being useless, judgment can be satisfied DISCOVERY PROVISIONAL PURPOSE ineffective

to discover evidence prevent judgment from being

NATURE

ancilliary ancilliary -may be extrajudicial -should be applied for before the court where the action is pending MODES 1. Deposition 1. Preliminary attachment; pending appeal 2. Written Interrogatories 2. Preliminary injunction 3. Admission of adverse party 3. Receivership - pending appeal 4. Production/Inspection of Doc. 4. Replevin 5. Physical & mental examination 5. Support pendente lite - pending appeal

PROVISIONAL REMEDIES Preliminary Attachment Rule 57 Sec. 1. Grounds upon which attachment may issue. - At the commencement of the action or at any time before entry of 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: (a) In an action for the recovery of a specified amount of money or damages, other than moral and exemplary, on a cause of action arising from law, contract, quasi-contract, delict or quasidelict against a party who is about to depart from the Philippines with intent to defraud his creditors; (b) In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty; (c) In an action to recover the possession of property unjustly or fraudulently taken, detained or converted, when the property, or any part thereof, has been concealed, removed, or disposed of to prevent its being found or taken by the applicant or an authorized person; (d) In an action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upon which the action is brought, or in the performance thereof; (e) In an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors; or (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.

88 116 SCRA If prayer for writ of attachment is included in a Complaint, verification in the Complaint is sufficient, separate affidavit is not necessary. Sec. 2. Issuance and contents of order. - An order of attachment may be issued either ex-parte or upon motion with notice and hearing by the court in which the action is pending, or by the Court of Appeals or the Supreme Court, and must require the sheriff of the court to attach so much of the property in the Philippines of the party against whom it is issued, not exempt from execution, as may be sufficient to satisfy the applicant’s demand, unless such party makes deposit or gives a bond as hereinafter provided in an amount equal to that fixed in the order, which may be the amount sufficient to satisfy the applicant’s demand or the value of the property to be attached as stated by the applicant, exclusive of costs. Several writs may be issued at the same time to the sheriffs of the courts of different judicial regions. Consolidated Bank and Trust Company v. Court of Appeals 197 SCRA Where the basis for the application of a writ of attachment is embezzlement of money or property committed by a defendant who is an officer of a corporation, a public officer, or an atorney, factor, broker or agent or clerk of the plaintiff, it is not necessary to establish his fiduciary capacity before the writ is granted as such fiduciary capacity is assumed from the nature of his position. it is only when the misappropriation was committed by any other person that his fiduciary relationship with the plaintiff will have to be established. Such relationship does not have to be shown because it suffices that the questioned acts of employing illegal machinations in obtaining enormous credit facilities for the corporation were committed by the officers of UPLFC in the course of their duties and not by “any other person in a fiduciary capacity.” Sec. 3. Affidavit and bond required. - An order of attachment shall be granted only when it appears by the affidavit of the applicant, or some other person who personally knows the facts, that a sufficient cause of action exists, that the case is one of those mentioned in section 1 hereof, that there is no other sufficient security for the claim sought to be enforced by the action, and that the amount due to the applicant, or the value of the property the possession of which he is entitled to recover, is as much as the sum for which the order is granted above all legal counterclaims. The affidavit, and the bond required by the next succeeding section, must be duly filed with the court before the order issues. K.O. Glass Const. Co., Inc. v. Valenzuela

Facts: Held: In pleading for attachment against a foreigner, allegation must not be merely that defendant is a foreigner; there must also be a showing that defendant is about to leave the Philippines with intent to defraud their creditor, or that he is a non-resident alien. Requisites for issuance of writ of attachment: 1. a sufficient cause of action exists; 2. case is one of those mentioned in Sec 1(a) of Rule 57; 3. there is no other sufficient security for the claim sought to be enforced by the action; 4. the amount due to the applicant for attachment or the value of the property of which he is entitled to recover is as much as the sum for which the order is granted above all legal counterclaims. Once defendant files a counter-bond, the writ of attachment should be dissolved. Sec. 4. - Condition of applicant’s bond. - The party applying for the order must thereafter give a bond executed to the adverse party in the amount fixed by the court in its order granting the issuance of the writ, conditioned that the latter will pay all the costs which may be adjudged to the adverse party and all damages which he may sustain by reason of the attachment, if the court shall finally adjudge that the applicant was not entitled thereto. Bond - undertaking done by the surety that it will pay the damages in case the party guaranteed does not comply with the orders of the court. Sec. 5. Manner of attaching property. - The sheriff enforcing the writ shall without delay and with all reasonable diligence attach, to await judgment and execution in the action, only so much of the property in the Philippines of the party against whom the writ is issued, not exempt from execution, as may be sufficient to satisfy the applicant’s demand, unless the former makes a deposit with the court from which the writ is issued, or gives a counter-bond executed to the applicant, in an amount equal to the bond fixed by the court in the order of attachment or to the value of the property to be attached, exclusive of costs. No levy on attachment pursuant to the writ issued under section 2 hereof shall be enforced unless it is preceded, or contemporaneously accompanied, by service of summons, together with a copy of the complaint, the application for attachment, the applicant’s affidavit and bond, and the order and writ of attachment, on the defendant within the Philippines. The requirement of prior contemporaneous service of summons shall not

89 apply where the summons could not be served personally or by substituted service despite diligent efforts, or the defendant is a resident of the Philippines temporarily absent therefrom, or the defendant is a non-resident of the Philippines, or the action is one in rem or quasi in rem. Oñate v. Abrogar 230 SCRA 181 Facts: Held: Writ of preliminary attachment may be validly applied for and granted even before the defendant is summoned or is heard from. Enforcement of the preliminary attachment is valid even if it preceded the actual service of summons where a previous attempt to serve the summons and the writ of attachment failed due to factors beyond the control of either the plaintiff or the process server. Reasons: 1. Defendant may put his property beyond the reach of the plaintiff while the latter is trying to serve the summons and the writ anew. 2. Court eventually acquired jurisdiction over the plaintiffs (6 days later). 3. Ease by which a writ of attachment can be obtained is counter-balanced by the ease with which the same can be discharged. To discharge writ of preliminary attachment, defendant simply has to make a cash deposit or post a counter-bond equivalent to the value of the property attached. Sec. 6. Sheriff’s return. - After enforcing the writ, the sheriff must likewise without delay make a return thereon to the court from which the writ issued, with a full statement of his proceedings under the writ, and a complete inventory of the property attached, together with any counter-bond given by the party against whom attachment is issued, and serve copies thereof on the applicant. 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 records of the registry of deeds 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 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 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 deeds 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; (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 against whom attachment is issued in the 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 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 quasijudicial agency, and notice of the attachment served upon the custodian of such property. Properties subject to attachment

Manner of attachment

90 File with register of deeds a copy of the order of attachment with notice that it is Real property, growing attached and a crops thereon, any description of the interest in such real property being property attached Leave copy of attachment order, description and notice with the occupant of the property Serve attachment Personal property order, issue receipt for capable of manual the property being delivery attached and take property in his custody Leave with president or managing agent Stocks or shares, copy of the writ and interest in such stocks notice that said stocks or shares or shares or any interest therein is attached Debts and credits Leave with person (bank deposits, owing such debts or financial interest, credits a copy of the royalties,commissions) writ and a notice that such debts or credits Other personal are attached property not capable of manual delivery Serve executor or administrator with a Interest of an heir, copy of the writ and a legatee or devisee in notice that said interest the property of a is attached. decedent File copy of the writ and notice of attachment with clerk of court where estate is being settled. Sec. 8. Effect of attachment of debts, credits and all other similar personal property. - All persons having in their possession or under their control any credits or other similar personal property belonging to the party against whom attachment is issued, or owing any debts to him, at the time of service upon them of the copy of the writ of attachment and notice as provided in the last preceding section, shall be liable to the applicant for the amount of such credits, debts or other similar personal property, until the attachment is discharged, or any judgment recovered by him is satisfied, unless such property is delivered or transferred, or such debts are paid, to the clerk, sheriff, or other proper officer of the court issuing the attachment.

Garnishment - is a species of attachment for reaching any property or credits pertaining or payable to a judgment debtor. It is a forced novation by the substitution of creditors: the judgment debtor, who is the original creditor of the garnishee, is, through the service of the writ of garnishment, substituted by the judgment creditor who thereby becomes creditor of the garnishee. It serves as a warning to a person having in his possession property or credits of the judgment debtor, not to pay the money or deliver the property to the latter, but rather to appear and answer the plaintiff’s suit. Perla Compania de Seguros, Inc. v. Ramolete 203 SCRA Facts: Held: Service of summons upon the person of the garnishee is not necessary to acquire jurisdiction over his person, all that is necessary is the service of the writ of garnishment. Through the service of the writ of garnishment, the person who has in his possession credits belonging to the judgment debtor becomes a “virtual party” to or a “forced intervenor” in, the case and the trial court thereby acquires jurisdiction over his person. Such person is, therefore, bound to comply with all orders and processes of the trial court with a view to the complete satisfaction of the judgment of the court. Garnishment of third party liability insurance contract may be effected from the moment the insured became liable to the third person for it is also at that moment that the insured acquired an interest in the insurance contract. Such interest may be garnished like any other credit. It is not necessary that the insured has effected payment to the injured third person in order that the obligation of the insurer may arise. Sec. 9. Effect of attachment of interest in property belonging to the estate of a decedent. - The attachment of the interest of an heir, legatee, or devisee in the property belonging to the estate of a decedent shall not impair the powers of the executor, administrator, or other personal representative of the decedent over such property for the purpose of administration. Such personal representative, however, shall report the attachment to the court when any petition for distribution is filed, and in the order made upon such petition, distribution may be awarded to such heir, legatee, or devisee, but the property attached shall be ordered delivered to the sheriff making the levy, subject to the claim of such heir, legatee, or devisee, or any person claiming under him. Sec. 10. Examination of party whose property is attached and persons indebted to him or controlling his property; delivery of property to

91 sheriff. - Any person owing debts to the party whose property is attached or having in his possession or under his control any credit or other personal property belonging to such party, may be required to attend before the court in which the action is pending, or before a commissioner appointed by the court, and be examined on oath respecting the same. The party whose property is attached may also be required to attend for the purpose of giving information respecting his property, and may be examined on oath. The court may, after such examination, order personal property capable of manual delivery belonging to him, in the possession of the person so required to attend before the court, to be delivered to the clerk of court of sheriff on such terms as may be just, having reference to any lien thereon or claim against the same, to await the judgment in the action. Sec. 11. When attached property may be sold after levy on attachment and before entry of judgment. - Whenever it shall be made to appear to the court in which the action is pending, upon hearing with notice to both parties, that the property attached is perishable, or that the interests of all the parties to the action will be subserved by the sale thereof, the court may order such property to be sold at public auction in such manner as it may direct and the proceeds of such sale to be deposited in court to abide the judgment in the action. Sec. 12. Discharge of attachment upon giving counter-bond. - After a writ of attachment has been enforced, the party whose property has been attached or the person appearing on his behalf, may move for the discharge of the attachment wholly or in part on the security given. The court shall, after due notice and hearing, order the discharge of the attachment if the movant makes a cash deposit, or files a counter-bond executed to the attaching party with the clerk of the court where the application is made an amount equal to that fixed by the court in the order of attachment, exclusive of costs. But if the attachment is sought to be discharged with respect to a particular property, the counter-bond shall be equal to the value of that property as determined by the court. In either case, the cash deposit or the counterbond shall secure the payment of any judgment that the attaching party may recover in the action. A notice of the deposit shall forthwith be served on the attaching party. Upon the discharge of the attachment in accordance with the provisions of this section, the property attached, or the proceeds of any sale thereof, shall be delivered to the party making the deposit or giving the counter-bond, or to the person appearing on his behalf, the deposit or counter-bond aforesaid standing in place of the property so released. Should such counter-bond for any reason be found to be or become insufficient, and the party furnishing the same fail to file an

additional counter-bond, the attaching party may apply for a new order of attachment. Motion to Discharge cannot be acted upon ex-parte - must be accompanied by hearing. Sec. 13. Discharge of attachment on other grounds. - The party whose property has been ordered attached may file a motion with the court in which the action is pending, before or after levy or even after the release of the attached property, for an order to set aside or discharge the attachment on the ground that the same was improperly or irregularly issued or enforced, or that the bond is insufficient. If the attachment is excessive, the discharge shall be limited to the excess. If the motion be made on affidavits on the part of the movant but not otherwise, the attaching party may oppose the motion by counter-affidavits or other evidence in addition to that on which the attachment was made. After due notice and hearing, the court shall order the setting aside or the corresponding discharge of the attachment if it appears that it was improperly or irregularly issued or enforced, or that the bond is insufficient, or that the attachment is excessive and the defect is not cured forthwith. Peroxide Philippines Corp. v. Court of Appeals 199 SCRA Where the order lifting of the writ of attachment was improperly issued as the attaching creditor was not allowed to oppose the application for the discharge of the attachment by counter-affidavit or other evidence, such order is void and does not have any effect at all to the writ of attachment. The writ continued to be valid from its issuance since the judgment had not been satisfied , nor has there been a valid discharge thereof either by the filing of a counter-bond or for improper or irregular issuance. Sec. 14. Proceedings where property claimed by third person. - If the property attached is claimed by any person other than the party against whom attachment had been issued 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 such affidavit upon the sheriff while the latter has possession of the attached property, and a copy thereof upon the attaching party, the sheriff shall not be bound to keep the property under attachment, unless the attaching party or his agent, on demand of the sheriff, shall file a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the property levied upon. In case of disagreement as to such value, the same shall be decided by the court issuing the writ of attachment. No claim for damages for the taking or keeping of the property may be enforced against

92 the bond unless the action therefor is filed within one hundred twenty (120) days from the date of the filing of the bond. The sheriff shall not be liable for damages for the taking or keeping of such property, to any such third-party claimant, if such bond shall be filed. Nothing herein contained shall prevent such claimant or any third person from vindicating his claim to the property, or prevent the attaching party from claiming damages against a third-party claimant who filed a frivolous or plainly spurious claim, in the same or separate action. When the writ of attachment 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 is sued for damages as a result of the attachment, 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 the funds to be appropriated for the purpose. Sec. 15. Satisfaction of judgment out of property attached; return of sheriff. - If judgment be recovered by the attaching party and execution issue thereon, the sheriff may cause the judgment to be satisfied out of the property attached, if it be sufficient for that purpose in the following manner: (a) By paying to the judgment obligee the proceeds of all sales of perishable or other property sold in pursuance of the order of the court or so much as shall be necessary to satisfy the judgment; (b) If any balance remains due, by selling so much of the property, real or personal, as may be necessary to satisfy the balance, if enough for that purpose remain in the sheriff’s hands, or in those of the clerk of the court; (c) By collecting from all persons having in their possession credits belonging to the judgment obligor, or owing debts to the latter at the time of the attachment of such credits or debts, the amount of such credits and debts as determined by the court in the action, and stated in the judgment, and paying the proceeds of such collection over to the judgment obligee. The sheriff shall forthwith make a return in writing to the court of his proceedings under this section and furnish the parties with copies thereof. Sec. 16. Balance due collected upon execution; excess delivered to judgment obligor. - If after realizing upon all the property attached, including the proceeds of any debts or credits collected, and applying the proceeds of any debts or credits collected, and applying the proceeds to the satisfaction of the judgment, less the expenses of proceedings upon the judgment, less the expenses of proceedings upon the judgment, any balance shall remain due, the sheriff must proceed to collect such balance as upon ordinary execution.

Whenever the judgment shall have been paid, the sheriff, upon reasonable demand, must return to the judgment obligor the attached property remaining in his hands, and any proceeds of the sale of the property attached not applied to the judgment. Sec. 17. Recovery upon the counter-bond. - When the judgment has become executory, the surety or sureties on any counter-bond given pursuant to the provisions of this Rule to secure the payment of the judgment shall become charged on such counterbond and bound to pay the judgment obligee upon demand the amount due under the judgment, which amount may be recovered from such surety or sureties after notice and summary hearing in the same action. Towers Assurance Co. v. Ororama Supermart 80 SCRA In order that the judgment creditor might recover from the surety on the counterbond, it is necessary (1) that execution be first issued against the principal debtor and that such execution was returned unsatisfied in whole or in part; (2) that the creditor made a demand upon the surety for the satisfaction of the judgment; and (3) that the surety be given notice and a summary hearing in the same action as to his liability for the judgment under his counterbond. Sec. 18. Disposition of money deposited. - Where the party against whom attachment had been issued has deposited money instead of giving counter-bond, it shall be applied under the direction of the court to the satisfaction of any judgment rendered in favor of the attaching party, and after satisfying the judgment the balance shall be refunded to the depositor or his assignee. If the judgment is in favor of the party against whom attachment was issued, the whole sum deposited must be refunded to him or his assignee. Sec. 19, Disposition of attached property where judgment is for party against whom attachment was issued. - If judgment be rendered against the attaching party, all the proceeds of sales and money collected or received by the sheriff, under the order of attachment, and all property attached remaining in any such officer’s hands, shall be delivered to the party against whom attachment was issued, and the order of attachment discharged. Sec. 20. Claim for damages on account of improper, irregular or excessive attachment. - An application for damages on account of improper, irregular, or excessive attachment must be filed before the trial or before appeal is perfected or before the judgment becomes executory, with due notice to the attaching party and his surety or

93 sureties, setting forth the facts showing his right to damages and the amount thereof. Such damages may be awarded only after proper hearing and shall be included in the judgment on the main case. If the judgment of the appellate court be favorable to the party against whom attachment was issued, he must claim damages sustained during the pendency of the appeal by filing an application in the appellate court, with notice to the party in whose favor the attachment was issued or his surety or sureties, before judgment of the appellate court becomes executory. The appellate court may allow the application to be heard and decided by the trial court. Nothing herein contained shall prevent the party against whom the attachment was issued from recovering in the same action the damages awarded to him from any property of the attaching party not exempt from execution should the bond or deposit given by the latter be insufficient or fail to fully satisfy the award. Santos v. Court of Appeals 95 Phil 360 Where a writ of attachment was issued and levied upon a property belonging to a third person not party to the main action, said third person may file a separate action for damages. The rule that recovery of damages on account of the issuance of a writ of attachment cannot be subject of a separate action, is not applicable where damages are sought not because the writ of attachment was illegally or wrongfully issued by the court, but because said writ was caused to levied upon the property of the plaintiff which was not a party in the case where the attachment was issued. Rule on Third party Claim & §20, Rule 57, important. Status quo ante - refers to a legal situtation Preliminary writ of injunction - status quo Final injunction - change in legal relationship, Bacolod Milling Grave & irreparable injury - no fair or reasonable orders can be granted by the court Right in esse and clear for a writ of preliminary mandatory injunction Preliminary Injunction Rule 58 Sec. 1. Preliminary injunction defined; classes. A preliminary injunction is an order granted at any stage of an action or proceeding prior to the judgment or final order, requiring a party or a court , agency or a person to refrain from a particular act or acts. It may also require the performance of a particular act or acts, in which

case it shall be known as a preliminary mandatory injunction. The primary purpose of injunction is to preserve the status quo by restraining action or interference or by furnishing preventive relief. The status quo is the last actual, peaceable, uncontested status which precedes the pending controversy. A mandatory injunction is an extreme remedy and will be granted only on a showing that (a) the invasion of the right is material and substantial, (b) the right of the complainant is clear and unmistakable, and (c) there is an urgent and paramount necessity for the writ to prevent serious damage. Distinctions between injunction and prohibition: a.

b.

c.

Injunction is generally directed against a party in the action while prohibition is directed against a court, tribunal or person exercising judicial powers; Injunction does not involve the jurisdiction of the court, whereas prohibition may be on the ground that the court against whom the writ is sought acted without or in excess of jurisdiction; Injunction may be the main action itself, or just a provisional remedy in the main action, whereas prohibition is always a main action. Hence, for temporary restraint in a proceeding for prohibition, preliminary injunction must be sought therein.

Bataclan v. Court of Appeals 175 SCRA A writ of preliminary injunction is primarily intended to maintain the status quo between the parties existing prior to the filing of the case. As an ancillary or preventive remedy, it may only be resorted to by a litigant to protect or preserve his rights or interests and for no other purpose during the pendency of the principal action. Courts should not just summarily issue an order of denial without an adequate hearing and judicious evaluation of the merits of the application as the same would be a denial of procedural due process and could result in irreparable prejudice to a party. Sec. 2. Who may grant preliminary injunction. - A preliminary injunction may be granted by the court where the action or proceeding is pending. If the action or proceeding is pending in the Court of Appeals or in the Supreme Court, it may be issued by said court or any member thereof.

94 Sec. 3. Grounds for issuance of preliminary injunction. - A preliminary injunction may be granted when it is established: (a) That the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts, either for a limited period or perpetually; (b) That the commission, continuance or non-performance of the act or acts complained of during the litigation would probably work injustice to the applicant; or (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 probable in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual. Bacolod Murcia Milling v. Capitol 17 SCRA For the writ of preliminary injunction to issue, there must be a showing based on facts that the party availing of the remedy is entitled to the relief demanded. An injunction will not issue to protect a right not in esse and which may never arise or to restrain an act, which does not give rise to a cause of action The function of an injunction is the maintenance of the status quo as of the time of its issuance. In the case at bar, the right of the Central in using the railway has already expired: there being no right to be protected anymore, the writ of preliminary injunction cannot be had. Merville Park Homeowners Association Inc. v. Velez 196 SCRA Where the village association seeks to take possession and control of the waterworks system from the Salandanan who failed to undertake certain contractual obligations necessary to assure the homeowners of a steady water supply, a writ of preliminary mandatory injunction will not be granted absent a showing that the severe water shortage had not been remedied and that a clear and present danger of the same or similar default on Salandanan’s part, threatening the same severe consequences for the subdivision residents. A preliminary mandatory injunction is not a proper remedy to take property out of the possession and control of one party and to deliver the same to the other party where possession of such property is being disputed. It may issue pendente lite only in cases of extreme urgency, where the right to the

possession, during the pendency of the main case, of the property involved is very clear; where the considerations of relative inconvenience bear strongly in favor of the complainant seeking the possession of pendente lite; where there was willful and unlawful invasion of plaintiff’s rights, over his protest and remonstrance the injury being a continuing one; where the effect of the preliminary mandatory injunction is to re-establish and maintain a pre-existing and continuing relationship between the parties, recently and arbitrarily interrupted by the defendant, rather than to establish a new relationship during the pendency of the principal case. It is for the party requesting the writ to demonstrate clearly the presence of one or more of the above grounds. Sec. 4. Verified application and bond for preliminary injunction or temporary restraining order. - A preliminary injunction or temporary restraining order may be granted only when: (a) The application in the action or proceeding is verified and shows facts entitling the applicant to the relief demanded; and (b) Unless exempted by the court, the applicant files with the court where the action or proceeding is pending a bond executed to the party or person enjoined, in an amount to be fixed by the court, to the effect that the applicant will pay to such party or person all damages which he may sustain by reason of the injunction or temporary restraining order if the court should finally decide that the applicant was not entitled thereto. Upon approval of the requisite bond, a writ of preliminary injunction shall be issued. (c) When an application for a writ of preliminary injunction or a temporary restraining order is included in a complaint or any initiatory pleading, the case, if filed in a multiple-sala court, shall be raffled only after notice to and in the presence of the adverse party or the person to be enjoined. In any event, such notice shall be preceded, or contemporaneously accompanied by service of summons, together with a copy of the complaint or initiatory pleading and the applicant’s affidavit and bond, upon the adverse party in the Philippines. However, where the summons could not be served personally or by substituted service despite diligent efforts, or the adverse party is a resident of the Philippines temporarily absent therefrom or is a nonresident thereof, the requirement of prior or contemporaneous service of summons shall not apply. (d) The application for a temporary restraining order shall thereafter be acted upon only after all parties are heard in a summary hearing which shall be conducted within twentyfour (24) hours after the sheriff’s return of service and/or the records are received by the branch selected by raffle and to which the records shall be transmitted immediately.

95 Sec. 5. Preliminary injunction not granted without notice; exception. - No preliminary injunction shall be granted without hearing and prior notice to the party or person sought to be enjoined. If it shall appear from facts shown by affidavits or by verified application that great or irreparable injury would result to the applicant before the matter can be heard on notice, the court to which the application for preliminary injunction was made, nay issue ex parte a temporary restraining order to be effective only for a period of twenty (20) days from service on the party or person sought to be enjoined, except as herein provided. Within the said twenty-day period, the court must order said party or person to show cause, at a specified time and place, why the injunction should not be granted, determine within the same period whether or not the preliminary injunction shall be granted, and accordingly issue the corresponding order. However, and subject to the provisions of the preceding sections, if the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury, the executive judge of a multiple-sala court or the presiding judge of a single-sala court may issue ex parte a temporary restraining order effective for only seventy-two (72) hours from issuance but he shall immediately comply with the provisions of the next preceding section as to service of summons and the documents to be served therewith. Thereafter, within the aforesaid seventy-two (72) hours, the judge before whom the case is pending shall conduct a summary hearing to determine whether the temporary restraining order shall be extended until the application for preliminary injunction can be heard. In no case shall the total period of effectivity of the temporary restraining order exceed twenty (20 days, including the original seventy-two hours provided herein. In the event that the application for preliminary injunction is denied or not resolved within the said period, the temporary restraining order is deemed automatically vacated. The effectivity of a temporary restraining order is not extendible without need of any judicial declaration to that effect and no court shall have authority to extend or renew the same on the same ground for which it was issued. However, if issued by the Court of Appeals or a member thereof, the temporary restraining order shall be effective for sixty (60) days from service on the party or person sought to be enjoined. A restraining order issued by the Supreme Court or a member thereof shall be effective until further orders. Temporary restraining order, when issued

1.

When great or irreparable injury would result to the applicant even before the application is heard on notice; 20-day temporary restraining order is issued.

2.

If the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury, the court may issue ex parte a 72-hour temporary restraining order; can only be issued by the executive judge of a multiple-sala court or by the presiding judge of a single-sala court.

The judge issuing a 72-hour TRO is obliged to conduct a summary hearing within the effectivity of the 72-hour TRO to determine whether the TRO shall be extended in which case, the same is converted into a 20-day TRO. Within the 20-day period of effectivity of the TRO the court shall determine in a hearing whether or not the preliminary injunction is to be granted. This 20-day period is inextendible. Thus, a TRO may be converted to a preliminary injunction, which in turn may be converted into a final injunction. TRO and preliminary injunction are issued to maintain the status quo ante, that is, prior to the institution of the main action. A final injunction confirms a preliminary injunction and perpetually enjoins a party or person from doing the act/s complained of. Effectivity of TROs: TRO issued by trail court may either be for 72 hours or 20 days; if issued by the CA or a member thereof, it shall be effective for sixty (60) days; TROs0 issued by the SC shall be effective until further notice. Social Security Commission v. Bayona 5 SCRA Damages are irreparable within the meaning of the rule relative to the issuance of injunction when there is no standard by which their amount can be measured with reasonable accuracy. An irreparable injury which a court of equity will enjoin includes that degree of wrong of a repeated and continuing kind which produce hurt, inconvenience, or damage that can be estimated only by conjecture and not by any accurate standard of measurement. An irreparable injury to authorize an injunction consists of “a serious charge of, or is destructive to, the property it affects, either physically or in the character in which it has been held and enjoined, or when the property has some peculiar quality or use, so that its pecuniary value will not fairly recompense the owner of the loss thereof.”

96 For an injury to be irreparable, it does not have to refer to the amount of damages that may be caused but rather to the difficulty of measuring the damages inflicted. If full compensation can be obtained by way of damages, equity will not apply the remedy of injunction. Sec. 6. Grounds for objection to, or for motion of dissolution of, injunction or restraining order. The application for injunction or restraining order may be denied, upon a showing of its insufficiency. The injunction or restraining order may also be denied, or, if granted, may be dissolved, on other grounds upon affidavits of the party or person enjoined, which may be opposed by the applicant also by affidavits. It may further be denied or granted, may be dissolved, if it appears after hearing that although the applicant is entitled to the injunction or restraining order, the issuance or continuance thereof, as the case may be, would cause irreparable damage to the party or person enjoined while the applicant can be fully compensated for such damages as he may suffer, and the former files a bond in an amount fixed by the court conditioned that he will pay all damages which the applicant may suffer by the denial or the dissolution of the injunction or restraining order. If it appears that the extent of the preliminary injunction or restraining order granted is too great, it may be modified. Sec. 7. Service of copies of bonds; effect of disapproval of same. - The party filing a bond in accordance with the provisions of this Rule shall forthwith serve a copy of such bond on the other party, who may except to the sufficiency of the bond, or of the surety or sureties thereon. If the applicant’s bond is found to be insufficient in amount, or if the surety or sureties thereon fail to justify, and a bond sufficient in amount with sufficient sureties approved after justification is not filed forthwith, the injunction shall be dissolved. If the bond of the adverse party is found to be insufficient in amount, or the surety or sureties thereon fail to justify a bond sufficient in amount with sufficient sureties approved after justification is not filed forthwith, the injunction shall be granted or restored, as the case may be. Sec. 8. Judgment to include damages against party and sureties. - AT the trial, the amount of damages to be awarded to either party, upon the bond of the adverse party, shall be claimed, ascertained, and awarded under the same procedure prescribed in section 20 of Rule 57. Sec. 9. When final injunction granted. - If after the trial of the action it appears that the applicant is entitled to have the act or acts complained of permanently enjoined, the court shall grant a final injunction perpetually restraining the party or person enjoined from the commission or

continuance of the act or acts or confirming the preliminary mandatory injunction.

Gilchrist v. Cuddy 29 Phil 542 Receivership Rule 59 Sec. 1. Appointment of receiver. - Upon a verified application , one or more receivers of the property subject of the actin or proceeding may be appointed by the court where the action is pending, or by the Court of Appeals or by the Supreme Court, or a member thereof, in the following cases: (a) When it appears from the verified application, and such other proof as the court may require, that the party applying for the appointment of a receiver has an interest in the property or fund which is the subject of the action or proceeding, and that such property or fund is in danger of being lost, removed, or materially injured unless a receiver be appointed to administer and preserve it; (b) When it appears in an action by the mortgagee for the foreclosure of a mortgage that the property is in danger of being wasted or dissipated or materially injured, and that its value is probable insufficient to discharge the mortgage debt, or that the parties have so stipulated in the contract of mortgage; (c) After judgment, to preserve the property during the pendency of an appeal, or to dispose of it according to the judgment, or to aid execution when the execution has been returned unsatisfied or the judgment obligor refuses to apply his property in satisfaction of the judgment, or otherwise to carry the judgment into effect; (d) Whenever in other cases it appears that the appointment of a receiver is the most convenient and feasible means of preserving, administering, or disposing of the property in litigation. During the pendency of an appeal, the appellate court may allow an application for the appointment of a receiver to be filed in and decided by the court of origin and the receiver appointed to be subject to the control of said court. Commodities Storage v. Court of Appeals G.R. No. 125008 A petition for receivership requires that the property or fund which is the subject of the action must be in danger of loss, removal or material injury which necessitates protection or preservation. In the instant case, there is no sufficient showing that the ice plant is in danger of

97 disappearing or being wated and reduced to a ‘scrap heap.” At the time the trial court issued the order for receivership of the property, the problem had been remedied and there was no imminent danger of any leakage.

in amount or the surety or sureties thereon fail to justify, and a bond sufficient in amount with sufficient sureties approved after justification is not filed forthwith, the receiver shall be appointed and re-appointed, as the case may be.

Neither party to a litigation should be appointed as receiver without the consent of the other because a receiver should be a person indifferent to the parties and should be impartial and disinterested. The receiver is not the representative of any of the parties but of all of them to the end that their interests may be equally protected with the least possible inconvenience and expense.

Sec. 6. General powers of receiver. - Subject to the control of the court in which the action or proceeding is pending, a receiver shall have the power to bring and defend, in such capacity, actions in his own name; to take and keep possession of the property in controversy; to receive rents; o collect debts due to himself as receiver or to the fund, property, estate, person, or corporation of which he is the receiver; to compound and compromise the same; to make transfers; to pay outstanding debts; to divide the money and other property that shall remain among the persons legally entitled to receive the same; and generally to do such acts respecting the property as the court may authorize. However, funds in the hands of a receiver may be invested only by order of the court upon the written consent of all the parties to the action. No action may be filed by or against a receiver without leave of the court which appointed him.

Sec. 2. Bond on appointment of receiver. - Before issuing the order appointing a receiver the court shall require the applicant to file a bond executed to the party against whom the application is presented, in an amount to be fixed by the court, to the effect that the applicant will pay such party all damages he may sustain by reason of the appointment of such receiver in case the applicant shall have procured such appointment without sufficient cause; and the court may, I its discretion, at any time after the appointment, require an additional bond as further security for such damages. Sec. 3. Denial of application or discharge of receiver. - The application may be denied, or the receiver discharged, when the adverse party files a bond executed to the applicant, in an amount to be fixed b the court, to the effect that such party will pay the applicant all damages he may suffer by reason of the acts, omissions, or other matters specified in the application as ground for such appointment. The receiver may also be discharged if it is shown that his appointment was obtained without sufficient cause. Sec. 4. Oath and bond of receiver. - Before entering upon his duties, the receiver shall be sworn to perform them faithfully, and shall file a bond, executed to such person and in such sum as the court may direct, to the effect that he will faithfully discharge his duties in the action or proceeding and obey the orders of the court. Sec. 5. Service of copies of bonds; effect of disapproval of same. - The person filing a bond in accordance with the provisions of this Rule shall forthwith serve a copy thereof on each interested party, who may except to its sufficiency or of the surety or sureties thereon. If either the applicant’s of the receiver’s bond is found to be insufficient in amount, or if the surety or sureties thereon fail to justify, and a bond sufficient in amount with sufficient sureties approved after justification is not filed forthwith, the application shall be denied or the receiver discharged, as the case may be. If the bond of the adverse party is found to be insufficient

Sec. 7. Liability for refusal or neglect to deliver property to receiver. - A person who refuses or neglects, upon reasonable demand, to deliver to the receiver all the property, money, books, deeds, notes, bills, documents and papers within his power of control subject of or involved in the action or proceeding, or in case of disagreement, as determined and ordered by the court, may be punished for contempt and shall be liable to the receiver for the money or the value of the property and other things so refused or neglected to be surrendered, together with all damages that may have been sustained by the party or parties entitled thereto as a consequence of such refusal or neglect. Sec. 8. Termination of receivership; compensation of receiver. - Whenever the court, motu propio or on motion of either party, shall determine that the necessity for a receiver n longer exists, it shall, after due notice to all interested parties and hearing, settle the accounts of the receiver, direct the delivery of the funds and other property in his possession to the person adjudged to be entitled to receive them, and order the discharge of thereceiver from further duty as such. The court shall allow the receiver such reasonable compensation as the circumstances of the case warrant, to be taxed as costs against the defeated party, or apportioned, as justice requires. Sec. 9. Judgment to include recovery against sureties. - The amount, if any, to be awarded to any party upon any bond filed in accordance with

98 the provisions of this Rule, shall be claimed, ascertained, and granted under the same procedure prescribed in section 20 of Rule 57.

Replevin Rule 60 Sec. 1. Application - A party praying for the recovery of possession of personal property may, at the commencement of the action or at any time before answer, apply for an order for the delivery of such property to him, in the manner hereinafter provided. Sec. 2. Affidavit and bond. - The applicant must show by his own affidavit or that of some other person who personally knows the facts: (a) That the applicant is the owner of the property claimed, particularly describing it, or is entitled to the possession thereof; (b) That the property is wrongfully detained by the adverse party, alleging the cause of detention thereof according to the best of his knowledge, information, and belief; (c) That the property has not been distrained or taken for a tax assessment or a fine pursuant to law, or seized under a writ of execution or preliminary attachment, or otherwise placed under custodia legis, or if so seized, that it is exempt from such seizure or custody; and (d) The actual market value of the property. The applicant must also give a bond, executed to the adverse party in double the value of the property as stated in the affidavit aforementioned, for the return of the property to the adverse party if such return be adjudged, and for the payment to the adverse party of such sum as he may recover from the application in the action. Sec. 3. Order. - Upon the filing of such affidavit and approval of the bond, the court shall issue an order and the corresponding writ of replevin describing the personal property alleged to be wrongfully detained and requiring the sheriff forthwith to take such property into his custody. Sec. 4. Duty of the sheriff. - Upon receiving such order, the sheriff must serve a copy thereof on the adverse party, together with a copy of the application, affidavit and bond, and must forthwith take the property, if it be in the possession of the adverse party, or his agent, and retain it in his custody. If the property or any part thereof be concealed in a building or enclosure, the sheriff must demand its delivery, and if it be not delivered, he must cause the building or enclosure to be

broken open and take the property as herein provided, he must keep it in a secure place and shall be responsible for its delivery to the party entitled thereto upon receiving his fees and necessary expenses for taking and keeping the same. Sec. 5. Return of property. – If the adverse party objects of the sufficiency of the applicant’s bond, or of the surety or sureties thereon, he cannot immediately require the return of the property, but if he does not so object, he may, at any time before the delivery of the property to the applicant, require the return thereof, by filing with the court where the action is pending a bond executed to the applicant, in double the value of the property as stated in the applicant’s affidavit for the delivery thereof to the applicant, if such delivery be adjudged, and for the payment of such sum to him as may be recovered against the adverse party, and by serving a copy of such bond on the applicant. Sec. 6. Disposition of property by sheriff. – If within five (5) days after taking the property by the sheriff, the adverse party does not object to the sufficiency of the bond, or the surety or sureties thereon; or if the adverse party so objects and the court affirms its approval of the applicant’s bond or approves a new bond, or if the adverse party requires the return of the property but his bond is objected to and found insufficient and he does not forthwith file an approved bond, the property shall be delivered to the applicant. If for any reason the property is not delivered to the applicant, the sheriff must return it to the adverse party. Sec. 7. Proceedings where property claimed by third person. – If the property taken is claimed by any third person other than the party against whom the writ of replevin had been issued or his agent, and such person makes an affidavit of his title thereto, or right to the possession thereof, stating the grounds therefor, and serves such affidavit upon the sheriff while the latter has possession of the property and a copy thereof upon the applicant, the sheriff shall not be bound to keep the property under replevin or deliver it to the applicant unless the applicant or his agent, on demand of said sheriff shall file a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the property under replevin as provided in section 2 hereof. In case of disagreement as to such value, the court shall determine the same. 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. The sheriff shall not be liable for damages, for the taking or keeping of such property, to any such third-party claimant if such bond shall be filed. Nothing herein contained shall

99 prevent such claimant or any third person from vindicating his claim to the property, or prevent the applicant from claiming damages against a third-party claimant who filed a frivolous or plainly spurious claim, in the same or a separate action. When the writ of replevin 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 is sued for damages as a result of the replevin, 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 the funds to be appropriated for the purpose. Sec. 8. Return of papers. – The sheriff must file the order, with his proceedings indorsed thereon, with the court within ten (10) days after taking the property mentioned therein. Sec. 9. Judgment. – After trial of the issues, the court shall determine who has the right to the possession to and the value of the property and shall render judgment in the alternative for the delivery thereof to the party entitled to the same, or for its value in case delivery cannot be made, and also for such damages as either party may prove, with costs. Sec. 10. Judgment to include recovery against sureties. – The amount, if any, to be awarded to any party upon any bond filed in accordance with the provisions of this Rule, shall be claimed, ascertained, and granted under the same procedure as prescribed in section 20 of Rule 57. Support Pendente Lite Rule 61 Sec. 1. Application. - At the commencement of the proper action or proceeding, or at any time prior to the judgment or final order, a verified application of support pendente lite may be filed by any party stating the grounds for the claim and the financial conditions of both parties, and accompanied by affidavits, depositions or other authentic documents in support thereof.

The capacity of the person who will provide the support and the needs of the one entitled to be supported are taken into consideration in setting the amount of support to be granted. Support pendente lite can be availed of at the commencement of the action or at any time before the judgment or final order is rendered in the action or proceeding. The one claiming for support must establish before the court the relationship between the parties as to entitle one to receive support from the other. The following are obliged to support each other: 1. The spouses; 2. Legitimate ascendants and descendants; 3. Parents and their legitimate children and the legitimate and illegitimate children of the latter; 4. Parents and their illegitimate children and the legitimate and illegitimate children of the latter; and 5. Legitimate brothers and sisters, whether of the full or half-blood. ( Art. 195, Family Code) Sec. 2. Comment. - A copy of the application and all supporting documents shall be served upon the adverse party, who shall have five (5) days to comment thereon unless a different period is fixed by the court upon his motion. The comment shall be verified and shall be accompanied by affidavits, depositions or other authentic documents in support thereof. The application for support pendente lite is responded to not by an answer but by a verified comment accompanied by affidavits, depositions or other authentic documents in support of the facts set forth in the comment. Sec. 3. Hearing. - After the comment is filed, or after the expiration of the period for its filing, the application shall be set for hearing not more than three (3) days thereafter. The facts in issue shall be proved in the same manner as is provided for evidence on motions. Hearing on the application is mandatory. It shall be held not later than three (3) days from the receipt of the comment or from the expiration of the period to file the same.

What is support pendente lite? It is a provisional remedy which grants a person entitled to support an amount enough for his “sustenance, dwelling, clothing, medical attendance, education and transportation” (Art. 194, Family Code) while the action is pending in court. It may be availed of by any of the parties in the action for support or in a proceeding where one of the reliefs sought is support for the applicant.

Sec. 4. Order. - The court shall determine provisionally the pertinent facts, and shall render such orders as justice and equity may require, having due regard to the probable outcome of the case and such other circumstances as may aid in the proper resolution of the question involved. If the application is granted, the court shall fix the amount of money to be provisionally paid or such other forms of support as should be provided,

100 taking into account the necessities of the applicant and the resources or means of the adverse party, and the terms of payment or mode for providing the support, If the application is denied, the principal case shall be tried and decided as early as possible. Ramos v. Court of Appeals 45 SCRA Held: Where the trial court ruled that the claim of filiation and support has been adequately proven, alimony pendente lite can be validly granted pending appeal of such decision. Trial court’s refusal to grant support pendente lite does not deprive the appellate court the authority to grant the same especially so where, in view of the poverty of the child, it would be a travesty of justice to refuse him support until the decision of the judge is sustained on appeal. Reyes v. Ines-Luciano 81 SCRA Facts: Held: Where petitioner failed to present evidence on the alleged adultery of his wife when the action for legal separation is heard on the merits, the grant of support pendente lite is valid. Adultery is a good defense and if properly proved and sustained will defeat the action. However, the alleged adultery of the wife must be established by competent evidence. Mere allegation would not suffice to bar her from receiving support pendente lite. In determining the amount to be awarded as support pendente lite it is not necessary to go fully into the merits of the case, it being sufficient that the court ascertain the kind and amount of evidence which it may deem sufficient to enable it to justly resolve the application, one way or the other, in view of the merely provisional character of the resolution to be entered. Mere affidavits may satisfy the court to pass upon the application for support pendente lite. It is enough that the facts be established by affidavits or other documentary evidence appearing in the record. Sec. 5. Enforcement of order. – If the adverse party fails to comply with an order granting support pendente lite, the court shall, motu propio or upon motion, issue an order of execution against him, without prejudice to his liability for contempt. When the person ordered to give support pendente lite refuses or fails to do so, any third person who furnished that support to the applicant may, after due notice and hearing in the same case, obtain a writ of execution to enforce his right of reimbursement against the person ordered to provide support.

Sec. 6. Support in criminal cases. – In criminal actions where the civil liability includes support for the offspring as a consequence of the crime and the civil aspect thereof has not been waived, reserved or instituted prior to its filing, the accused may be ordered to provide support pendente lite to the child born to the offended party allegedly because of the crime. The application therefor may be filed successively by the offended party, her parents, grandparents or guardian and the State in accordance with the procedure established under this Rule. Sec. 7. Restitution. – When the judgment or final order of the court finds that the person who has been providing support pendente lite is not liable therefor, it shall order the recipient thereof to return to the former the amounts already paid with legal interest from the dates of actual payment, without prejudice to the right of the recipient to obtain reimbursement in a separate action from the person legally obliged to give support. Should the recipient fail to reimburse said amounts, the person who provided the same may likewise seek reimbursement thereof in a separate action from the person legally obliged to give such support. JUDGMENTS AND FINAL ORDERS FORM Rule 36, Sec. 1. Rendition of final judgements and final orders. -- A judgement 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 court. Concept of Final Judgement and Final Order Rule 41, Sec. 1. Subject of appeal. – An appeal may be taken from a judgement 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:

(a) An order denying a motion for new trial or reconsideration; (b) An order denying a petition for relief or any similar motion seeking relief from judgement; (c) An interlocutory order; (d) An order disallowing or dismissing an appeal; (e) An order denying a motion to set aside a judgement by consent, confession or compromise on the ground of fraud, mistake or duress, or any other ground vitiating consent;

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(f) An order of execution; (g) A judgement or final order for or against one or more of several parties or in separate claims, counter-claims, cross-claims and third-party complaints, while the main case is pending, unless the court allows an appeal therefrom; and (h) An order dismissing an action without prejudice. In all the above instances where the judgement or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65. Ceniza v. CA, 218 SCRA 390 Facts: CA, in a resolution, dismissed petitioner Ceniza’s appeal on the ground of delayed filing of appellants’ brief. Issue here is WON this resolution was a final order? Held: Yes. A final order or judgment is one w/c either TERMINATES the action itself or operates to vest some right in such a manner as to put out of the power of the ct. making the order to place in the parties in their original conditions. A final order disposes of the whole subject matter or terminates proceedings/action, LEAVING NOTHING TO BE DONE BUT TO ENFORCE BY EXECUTION. However, a final order is appealable. KINDS As to finality Rendition of Judgement Rule 36, Sec. 1, supra. Rule 40, Sec. 2. When to appeal. – An appeal may be taken within fifteen (15) days after notice to the appellant of the judgement or final order appealed from. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within thirty (30) days after notice of the judgement or final order. The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No motion for extension of time to file a motion for new trial or reconsideration shall be allowed. Rule 41, Sec. 3. Period of ordinary appeal – The appeal shall be taken within fifteen (15) days from notice of the judgement or final order appealed from. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within thirty (30) days from notice of the judgement or final order. The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No motion for extension of time to file a motion for new trial or reconsideration shall be allowed.

Rule 42, Sec. 1. How appeal taken; time for filing – A party desiring to appeal from a decision of the Regional Trial Court rendered in the exercise of its appellate jurisdiction may file a verified petition for review with the Court of Appeals, paying at the same time to the clerk of said court the corresponding docket and other lawful fees, depositing the amount of P 500.00 for costs, and furnishing the Regional Trial Court and the adverse party with a copy of the petition. The petition shall be filed and served within fifteen (15) days from notice of the decision sought to be reviewed or of the denial of petitioner’s motion for new trial or reconsideration filed in due time after judgement. Upon proper motion and the payment of the full amount of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period, the Court of Appeals may grant an additional period of fifteen (15) days only within which to file the petition for review. No further extension shall be granted except for the most compelling reason and in no case to exceed fifteen (15) days. Entry of judgement Rule 36, Sec. 2. Entry of judgements and final orders. – If no appeal or motion for new trial or reconsideration is filed within the time provided in these Rules, the judgement or final order shall forthwith be entered by the clerk in the book of entries of judgements. The date of finality of the judgement or final order shall be deemed to be the date of its entry. The record shall contain the dispositive part of the judgement or final order and shall be signed by the clerk, with a certificate that such judgement or final order has become final and executory. Rule 38, 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 judgement, final order, or other proceeding to be set aside, and not more than six (6) months after such judgement 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. Rule 39, Sec. 6. Execution by motion or by independent action. – A final and executory judgement 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 judgement may be enforced by action. The revived judgement may also be enforced by motion within five (5) years

102 from the date of its entry and thereafter by action before it is barred by the statute of limitations. Entry of Satisfaction of Judgement Rule 39, Sec. 44. Entry of satisfaction of judgement by clerk of court. – Satisfaction of a judgement shall be entered by the clerk of court in the court docket, and in the execution book, upon he return of a writ of execution showing the full satisfaction of the judgement executed and acknowledged in the same manner as a conveyance of real property by the judgement obligee or by his counsel unless a revocation of his authority is filed, or upon the endorsement of such admission by the judgement obligee or his counsel on the face of the record of the judgement. Sec. 45. Entry of satisfaction with or without admission. – Whenever a judgement is satisfied in fact, or otherwise than upon an execution, on demand of the judgement obligor, the judgement 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 judgement obligee or his counsel to do so, or may order the entry of satisfaction to be made without such admission. As to process of procuring Judgement of the Pleadings Rule 34, Sec. 1. Judgement 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 judgement 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. Judgement on Demurrer to Evidence Rule 33, Sec. 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. Summary Judgements Rule 35

Sec. 1. Summary judgement 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 judgement in his favor upon all or any part thereof. Sec. 2. Summary judgement for defending party. – A party against whom a claim, counter-claim, 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 judgement in his favor as to all or any part thereof. 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 judgement 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 judgement as a matter of law. Sec. 4. Case not fully adjudicated on motion. – If on motion under this Rule, judgement 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 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. 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. 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

103 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. Rule 29, 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; (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 judgement 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.

(b) Relief from order of default. – A party declared in default may at any time after notice thereof and before judgement 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. (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 judgement upon the evidence presented. (d) Extent of relief to be awarded. – A judgement rendered against a party in default shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages. (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 order to see to it that the evidence submitted is not fabricated. Judgements after ex parte presentation of Evidence Rule 18, 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 judgement on the basis thereof. Compromise Judgement

Default Judgements Order for Dismissal Rule 9, 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 such failure, declare the defending party in default. Thereupon, the court shall proceed to render judgement 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.

(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.

Motion to Dismiss (See Rule 16) Dismissals under Rule 17 (Dismissal of Actions) Dismissals under Rule 18, Sec. 5 Rule 18, 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

104 present his evidence ex parte and the court to render judgement on the basis thereof. Dismissals under Rule 29, Sec. 5 Rule 29, 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 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 judgement by default against that party, and in its discretion, order him to pay reasonable expenses incurred by the other, including attorney’s fees. As to parties As against one or more several parties

Rule 36, Sec. 5. Separate judgements. – 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 counter-claims arising out of the transaction or occurrence which is the subject matter of the claim, may render a separate judgement disposing of such claim. The judgement 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 judgement is rendered, the court by order may stay its enforcement until the rendition of a subsequent judgement or judgements and may prescribe such conditions as may be necessary to secured the benefit thereof to the party in whose favor the judgement is rendered. Rule 31. Sec. 2. Separate trials. – The court, in furtherance of convenience or to avoid prejudice, may order a separate trial of any claim, crossclaim, counter-claim, or third-party complaint, or of any separate issue or of any number of claims, cross-claims, counter-claims, third-party complaints or issues.

Rule 36, Sec. 3. Judgement for or against one or more of several parties. – Judgement 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.

Rule 41, Sec. 1 (g). No appeal may be taken from: x x x x A judgement or final order for or against one or more of several parties or in separate claims, counter-claims, cross-claims and thirdparty complaints, while the main case is pending, unless the court allows an appeal therefrom; and x xxx

Several Judgement

As to how executed

Rule 36, Sec. 4. Several judgements. – In an action against several defendants, the court may, when a several judgement is proper, render judgement against one or more of them, leaving the action to proceed against the others.

Judgements not stayed on appeal

Rule 9, Sec. 3 (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 judgement upon the evidence presented.

Rule 39, Sec. 4. Judgements not stayed by appeal. – Judgements in actions for injunction receivership, accounting, support, and such other judgements as are now or may hereafter be declared to be immediately executory, 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.

Against entity without juridical personality Rule 36, Sec. 6. Judgement against entity without juridical personality. – When judgement is rendered against two or more persons sued as an entity without juridical personality, the judgement shall set out their individual or proper names, if known.

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. Judgements for money

As to claims

Rule 39, Sec. 9. Execution of judgements for money, how enforced. –

At various stages or separate judgements

(a) Immediate payment on demand. – The officer shall enforce an execution of a judgement for

105 money by demanding from the judgement obligor the immediate payment of the full amount stated in the writ of execution and all lawful fees. The judgement obligor shall pay in cash, certified bank check payable to the judgement obligee, or any other form of payment acceptable to the latter, the amount of the judgement debt under proper receipt directly to the judgement 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.

(b) If the judgement obligee or his authorized representative is not present to receive payment, the judgement obligor shall deliver the aforesaid payment to the executing sheriff. The latter shall turn over all the amounts coming into his possession within the same day to the clerk of court of the court that issued the writ, or if the same is not practicable, deposit said amounts to a fiduciary account in the nearest government depository bank of the Regional Trial Court of the locality. . The clerk of said court shall thereafter arrange for the remittance of the deposit to the account of the court that issued the writ whose clerk of court shall then deliver said payment to the judgement obligee in satisfaction of the judgement. The excess, if any, shall be delivered to the judgement obligor while the lawful fees shall be retained by the clerk of court for disposition as provided by law. In no case shall the executing sheriff demand that any payment by check be made payable to him.

(b) Satisfaction by levy. – If the judgement obligor cannot pay all or part of the obligation in cash, certified bank check or other mode of payment acceptable to the judgement obligee, the officer shall levy upon the properties of the judgement 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 judgement. If the judgement 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 judgement. The sheriff shall sell only a sufficient portion of the personal or real property of the judgement obligor which has been levied upon. When there is more property of the judgement obligor than is sufficient to satisfy the judgement and lawful fees, he must sell only so much of the personal or real property as is sufficient to satisfy the judgement and lawful fees.

Real property, stocks, shares, debts, credits, and other personal property, may be levied upon in like manner and with like effect as under a writ of attachment.

(c) Garnishment of debts and credits. – The officer may levy on debts due the judgement obligor and other credits, including bank deposits, financial interests, royalties, commissions and other personal property not capable of manual delivery in the possession 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 judgement obligor is entitled. The garnishment shall only cover such amount as will satisfy the judgement 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 stating whether or not the judgement obligor has sufficient funds or credits to satisfy the amount of judgement. If not, the report shall state how much funds or credits the garnishee holds for the judgement obligor. The garnished amount in cash, or certified bank check issued in the name of the judgement obligee, shall be delivered directly to the judgement obligee within ten (10) working days from service of notice on the said garnishee 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 judgement, the judgement obligor, if available, shall have the right to indicate the garnishee or garnishees who shall be required to deliver the amount due; otherwise, the choice shall be made by the judgement obligee. The executing sheriff shall observe the same procedure under paragraph (a) with respect to delivery of payment to the judgement obligee. Judgements for specific acts Rule 39, Sec. 10. Execution of judgements for specific acts. –

(a) Conveyance, delivery of deeds, or other specific acts; vesting title. – If a judgement directs a party to 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 personal property is situated within the Philippines, the court in lieu of directing

106 conveyance thereof may by 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.

(b) Sale of real or personal property. – If the judgement be for the sale of real or personal property, to sell such property, describing it, and apply the proceeds in conformity with the judgement.

(c) Delivery or restitution of real property. – The officer shall demand of the person against whom the judgement for the delivery or restitution of real property is rendered and all persons claiming rights under him to peaceably vacate the property within three (3) working days, and restore possession thereof to the judgement obligee; otherwise, the officer shall oust all 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 judgement obligee in possession of such property. Any costs, damages, rents or profits awarded by the judgement shall be satisfied in the same manner as a judgement for money.

(d) Removal of improvements on property subject

Rule 39, Sec. 47. Effect of judgements or final orders. – The effect of a judgement or final order rendered by a court of the Philippines, having jurisdiction to pronounce the judgement or final order, may be as follows:

(a) In case of a judgement or final order against a specific thing, or in respect to the probate of a will, or the administration of the estate 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 judgement 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 judgement 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

of execution. – When the property subject of the execution contains improvements constructed or planted by the judgement obligor or his agent, the officer shall not destroy, demolish or remove said improvements except upon special order of the court, issued upon motion of the judgement oblige after due hearing and after the former has failed to remove the same within a reasonable time fixed by the court.

(c) In any other litigation between the same

(e) Delivery of personal property. – In judgements

Rule 39, Sec. 48. Effect of foreign judgements or final orders. – The effect of a judgement or final order of a tribunal of a foreign country, having jurisdiction to render the judgement or final order is as follows:

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 judgement for money as therein provided. Special Judgements Rule 39, Sec. 11. Execution of special judgements. – When a judgement requires the performance of any act other than those mentioned in the two preceding sections, a certified copy of the judgement 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 judgement. Effect of Judgements and Final Orders Local

parties or their successors in interest, that only is deemed to have been adjudged in a former judgement or final order which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto. Foreign

(a) In case of a judgement or final order upon a specific thing, the judgement or final order is conclusive upon the title of the thing; and

(b) In case of a judgement or final order against a person, the judgement 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 judgement 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. NOTES ON JUDGMENT AND FINAL ORDERS:

107 Rule 36 § 1. Rendition of judgment and final orders. A judgment or final order determining the merits of the case shall be: (1) in writing (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) And filed with the Clerk of Court. Rule 36 § 3. Judgment for or against one or more of several parties. Judgment is rendered in favor of party A; based on particular judgment is rendered only against Final order - Court has nothing else to do. Order granting a MTD - a Final Order Only final orders and judgment are subjects of appeal. Interlocutory orders are not subject of appeal. Rendition of judgment - upon the clerk receiving the copy Book of entry of judgment - date of the lapse of the fifteen (15) days; not on the date of entry. Book of satisfaction of judgment Entry of judgment - important for counting of petition for entry of judgment, among others. First Sense - terminates action Second Sense of finality - final and executory. Final judgment under new rules - that which can already be executed Nunc pro tunc - "then as now" Final & executory - even if ground is substantial can no longer be modified, except: 1. Clerical errors 2. Nunc pro tunc 3. Annulment of judgment based on extrinsic fraud (Jep Management Co.) 4. Void judgment (Paluwagan and Vda de Macoy) a void judgment never prescribes. Difference between Motion for Re-open and MNT (taken within the period for taking appeal): To re-open trial - make use of ordinary prudence, rules on motions MNT - extrinsic fraud - basis of the cause of action, performance of a contract Content of the action itself. Extrinsic Fraud - one of the parties prevented the other by fraudulent acts to be given his day in court. Amendment of judgment

Before it becomes final and executory Eternal Gardens Memorial v. IAC 165 SCRA 439 Facts: A Land Development Agreement was executed between Eternal & Mission. Mission owned the property & Eternal was to develop it into a memorial park. Thereafter, a Deed of Absolute Sale w/ mortgage was executed. BUT Maysilo claimed ownership over the land. Thus, Eternal filed w/ the CFI a complaint for interpleader vs. Mission & Maysilo Estate. It alleged that, in view of the conflicting claims & to protect its interests, defendants should be required to interplead & litigate between themselves. Mission filed a Motion for placing on judicial deposit the amounts due & unpaid fr. Eternal. Motion was DENIED. The contract was declared ineffective on the ground that the subject matter of the sale was not existing. Mission then filed a Motion to Dismiss the Interpleader. TC ordered Eternal to comply w/ the contract EXCEPT w/ regard to the interpleader of Maysilo Estate. Maysilo filed Motion for Recon w/c was GRANTED by the TC. Hearings on the merits were ordered BUT Mission filed for Writ of Execution. This was DENIED. On appeal, CA dismissed & this was affirmed by the SC. The order became final & executory. In 1983, heirs of Singson spouses filed an action for quieting of title where Eternal & Mission were defendants. This case is still pending. In the present case, Mission filed a petition for certiorari w/ the CA for the setting aside of RTC orders regarding the setting of the hearing on the merits. CA dismissed BUT later on reversed. Eternal filed a Motion for Recon w/c was again DENIED. Held: Courts have the power to amend their judgments, to make them conformable to the applicable jurisprudence PROVIDED said judgments ARE NOT YET FINAL. In the CAB, Eternal admitted it still has to pay whoever will be declared as owner. Therefore, there was no plausible reason for petitioner’s objections to the deposit order after having asked the ct. by complaint for interpleader whose deposit is not only required but is a contractual obligation. Finally, there is no res judicata here bec. there was no judgment on the merits. Also, there was no identity of issues. One case involved the propriety of motion for recon w/o a hearing & the denial of the motion for execution. The other case involved the propriety of a CA order that Eternal shall deposit what was required of it pending the trial on the merits. After it becomes final and executory David v. CA< 214 SCRA 644 Facts: SUPRA Held: The filing of the petition for relief fr. judgment w/ the TC was an unequivocal admission on Afable’s part that his period to appeal fr. the decision had already expired. When a final judgment has become executory, it thereby becomes immutable & 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, & regardless of whether the

108 modification is attempted to be made by the ct. rendering it or by the highest ct. of the land. The only recognized EXCEPTIONS are: 1. Correction of clerical errors 2. Judgment Nunc Pro Tunc 3. Where the judgment is VOID These are entries w/c cause NO INJURY to any party. Judgments nunc pro tunc Cardoza v. Singson, 181 SCRA 45 Annulment of judgment Top Management Programs v. CA 222 SCRA 763 Facts: Gregorio promised to give a large tract of land to Trinidad & Fajardo if a case bet. Greggy & Velasquez regarding the lot will be successful. Trini & Fajards then filed an action to ENFORCE the agreement & the TC ruled in their favor. Trini & Fajards then filed a motion for the issuance of a writ of execution w/c was granted by the TC. The Register of Deeds, however, informed the ct. that the deed of conveyance cannot be issued in favor of Trini & Fajards bec. the land had already been sold to other persons. However, the TC directed the Register of Deeds to issue separate titles in favor of the two. Top Management then filed this petition to annul the orders of the TC on the ground of extrinsic fraud. It claimed the it has title to the same parcel of land w/c was being levied upon since it bought the same fr. the heirs of Greggy. The CA dismissed the petition for annulment. HELD: Extrinsic fraud is one the effect of w/c PREVENTS a party fr. having a trial or real contest or fr. presenting all of his case to the ct. or where it operates upon matters pertaining NOT TO THE JUDGMENT ITSELF but of the MANNER in w/c it was procured so that there is not a fair submission of the controversy. In other words, EXTRINSIC FRAUD refers to any fraudulent act of the prevailing party in the litigation w/c is committed OUTSIDE OF THE TRIAL of the case, whereby the defeated party has been PREVENTED fr. exhibiting FULLY his side of the case, by fraud, deception or deception practiced upon him by his opponent. The relief is granted on the theory that by reason of the extrinsic fraud preventing a party fr. fully trying his case, there has never been a real contest before the ct. on the subject matter of the action. The allegations that the judge had no jurisdiction to order the sheriff to levy on execution since the judge had full knowledge that Top Management & not Greggy who owned the land, that the writ vs. the prop. was not justified bec. Top Management was not a party to the case--These DO NOT CONSTITUTE FRAUD. Top Management has not pointed to any act w/c prevented it form fully ventilating its case. If ever there was any failure in the presentation of its case, it was caused by its own inaction. Paluwagan ng Bayan v. King, 172 SCRA 60 Vda. De Macoy v. CA, 206 SCRA 244

Motion for New Trial/Reconsideration Grounds and nature, Rule 37, Sec. 1 Motion for new trial, Rule 37, Sec. 1, par 1 Distinguished from Motion to reopen trial Agulto v. CA, 181 SCRA 30 Facts: Agulto was convicted of bigamy. He filed a motion to reopen trial due to newly discovered evidence AFTER THE PARTIES HAD RESTED BUT BEFORE JUDGMENT. His new evidence was a photocopy of a marriage certificate of his second wife to another man. (His theory was that if his second wife had been previously married, he could not have validly married her, therefore, no bigamy). Held: The MNT may be filed AFTER judgment but w/in the period of perfecting an appeal for the grounds stated in S1,R37 & S2R121. A Motion to Reopen Trial may be presented only after either or both parties have formally offered & closed their evidence but BEFORE judgment. The reopening of a trial for the reception of new evidence is not a grant of a new trial. There is no specific provision in the rules w/c governs. It is only a recognized procedural recourse deriving validity fr. long established rules. The governing rule is paramount interests of justice resting entirely on the sound judicial discretion of the trial ct.. Therefore, the grant/denial is not subject to certiorari under grave abuse of discretion. On the merits, the SC decided that the new evidence had defects & it failed to show that the 2nd wife's marriage was still existing when she married Agulto. Grounds Velasco v. Ortiz, 184 SCRA 303 Facts: The ward of the spouses Velasco was able to w/draw money of the dead husband of P Velasco (the latter was diagnosed as disabled). The ward argued that she was instructed by the decedent to w/draw money. The TC ruled in favor of Velasco. Copy of the decision was given to the 1st counsel of the ward. The NEW counsel filed an MNT based on newly discovered evidence (a certification fr. a doctor that the decedent can still properly communicate) Held: For Velasco. There is no dispute that at the time the MNT was filed, the reglementary period to appeal had lapsed, & the decision had become final & executory. A judgment w/c has become final & executory can no longer be altered & modified, mush less set aside by the ct. w/c rendered it since such ct. has already lost jurisdiction over the case. Thereafter, the power & prerogative to order suspension of the rules of procedure is reposed, not in the ct. w/c had rendered such decision but rather in an appellate ct. & ultimately in the SC, & then only upon a showing that otherwise the imperious demands of substantial justice will be thwarted. Where the reglementary period to appeal had expired, the remedy is an MNT. If it has become final & executory, one can file a petition for relief under R 38 or a petition for annulment of judgment.

109 An MNT upon the ground of newly discovered evidence is properly granted where there is concurrence of the following requisites: 1. the evidence had been discovered after trial; 2. the evidence could not have been discovered & produced during trial even w/ exercise of reasonable diligence 3. the evidence is material & not merely corroborative, cumulative or impeaching. What is essential is not so much the time when the evidence offered first sprang into existence not the time when it first came to the knowledge of the party now submitting it; what is essential is, rather, that the offering party had exercised reasonable diligence in seeking to locate such evidence before or during trial but had not nonetheless failed to secure ( it must have been searched for but not found during trial. ) In the CAB, the new evidence was already presented as evidence in a criminal case vs. the ward for falsification. Therefore, she had already come across that evidence before. Moreover, it is in the nature of an impeaching evidence for it seeks merely to weaken or controvert previous evidence; it is not material or corroborative. Tumang v. CA 172 SCRA 332 Facts: Tumang filed for an annulment of a deed of sale bec. there was no consideration. The trial ct. rule for her. The defendant filed an MFR & an MNT based on the ground that the decision was based on insufficiency of evidence & that it was contrary to law. As evidence, D presented receipts proving consideration. Tumang assails the decision of the CA w/c granted the motion of D by saying that it was FORGOTTEN EVIDENCE (it had existed at trial & w/c could have been discovered by D if due diligence was exercised. Held: NEWLY DISCOVERED EVIDENCE: need not be newly created evidence. May & does commonly refer to evidence already in existence prior or during the trial but w/c could not have been secured & presented during the trial despite reasonable diligence. FORGOTTEN EVIDENCE: evidence already in existence or available before or during the trial, w/c was known to & obtainable by the party offering it w/c could have been presented seasonably were it not for the oversight or forgetfulness of such party or his counsel. In the case at bar, the receipts were found during a gen. cleaning, w/c goes to show that the it could hardly have been located w/ the exercise of reasonable/average diligence. The receipts are MATERIAL bec. they are of such import that a reasonably prudent man would have searched for them. There would be a great benefit to D if he presents it in trial, therefore, there is no reason why did not try to locate it. Motion for reconsideration, Rule 37, Sec. 1, par. 2 Periods. Rule 37, Sec. 1 For filing Effect of Motion for Extension of Time to File

See also Rule 41, Sec. 3, par. 2; Rule 40, Sec. 2, par. 2 Habaluyas v. Japson, 142 SCRA 208 This a resolution on a Motion for Reconsideration on the SC's 2nd division decision. Held: In S 39 of BP 129, the period of appeal in the RTC was reduced fr. 30 to 15 days for appeals fr. final orders, resolution, awards, judgment or decision. But only 48 hours for habeas corpus cases. Only notice of appeal is required. Record is not required except in (a) appeals in spl. proc.; (2) where multiple appeals are allowed. In these cases, the period is 30 days. According to the Interim Rules, no appeal bond in necessary for appeal. Its S 4 disallows a second MFR of a final order or judgment. The purpose of such is to avoid procedural delays. But the Rules does not expressly prohibit a motion for extension of time to file a MFR of a final order or judgment. The interest of justice would be better served if the ruling in the original decision (denying extension) were applied prospectively fr. the time herein stated. It would be unfair to deprive parties of their right to appeal simply bec. they availed themselves of a procedure w/c was not expressly prohibited or allowed by the law or Rules. On the other hand, an MNT or MFR is not a prerequisite to an appeal, a petition for review or a petition for review on certiorari, & since the purpose is to expedite the final disposition of cases, a strict but prospective application of said ruling is in order From June 30, 1986, the rule shall be strictly enforced that no motion for extension of time to file an MNT or MFR, may be filed w/ the MeTC, MTC, RTC, & IAC. Such a motion may be filed only in cases pending w/ the SC as the ct. of last resort, w/c may in its sound discretion either grant or deny the extension requested. In appeals in spl. proc. under R 109 & in other cases wherein multiple appeals are allowed, a motion for extension of time to file the record on appeal may be filed w/in the reglementary period of 30 days. If the ct. denies the motion for extension, the appeal must be taken w/in the original period since such a motion does not suspend the period for appeal. The TC may grant said motion after the expiration of the period for appeal provided it was filed w/in the original period. Not required for appeal Director of Lands v. Aquino, 192 SCRA 296 Facts: Abra Industrial applied for registration of a piece of land w/c was granted. The Director opposed saying that the land was mineral & unalienable. Within one year fr. the issuance of the registration decree, Director filed a petition for review the decrees of registration. Held: An MNT or MFR is not a pre-requisite to an appeal for review or petition for review on certiorari. The reglementary period for filing a petition for review on certiorari in the instant case was 30 days fr. notice of order or judgment subject of review w/c period, parenthetically, is now 15 days pursuant to S 39 of BP129. The Director

110 having been granted a total of 60 days w/in w/c to file the petition, the same was timely filed. Second Motion for New Trial, Rule 37, Sec. 5, par. 1 Second Motion for Reconsideration, Rule 37, Sec. 5, par. 2 For Resolution, Rule 37, Sec. 4 Contents of Motion for New Trial, Rule 37, Sec. 2 In general, Rule 37, Sec. 2; see also Rule 15 Motion for New Trial, Rule 37, Sec. 2, par. 2 Motion for Reconsideration, Rule 37, Sec. 2, par. 3 Pro forma motion and its effects, Rule 37, Sec. 2, par. 4 Pojas v. Gozo-Dadole, 192 SCRA 575 Facts: The plaintiff filed a complaint for recovery of possession. The TC ruled for the plaintiff & ordered the defendant to vacate. The defendant filed an MFR BUT IT FAILED TO MENTION THE DAY THE MOTION IS TO BE RESOLVED (no notice of hearing). Later, the defendant filed a notice of appeal. Held: Notice of appeal denied. The MFR was a mere scrap of paper & therefore, pro forma. It did not contain the day when the motion is to be heard, violating S5 R15. As such it does not suspend the running of the period of appeal. The notice of appeal filed out of time. Action upon Motion for New Trial Options in general, Rule 37, Sec. 3 Granting, Rule 37, Sec. 6 Effect in general, Rule 37, Sec. 5 Fernan v. CA, 142 SCRA 208 Facts: Fernan was suspected of having stolen a wallet. The TC ruled against the plaintiff store & awarded damages to Fernan. The CA affirmed the TC but upon the MFR of the plaintiff, the TC was reversed. Held. The appeal of the store raises no question of law but of fact Review of facts is not a function of the CA. An exception to this rule is when manifestly correct findings has been unwarrantedly rejected or reversed. In the CAB, the CA reversed the TC. These instances of conflict of findings between the CA & TC is a basis of recourse to the SC. There must be a showing on the face of the record of gross or extraordinary misperception or manifest bias. In the CAB, there was no substantial reason given by Fernan refuting the assessment of the CA w/c ruled that her testimony had contradictions & inconsistencies. Partial New Trials, Rule 37, Sec. 6, 7 Denying

Remedies, Rule 37, Sec. 9; Rule 41, Sec. 1 (a)

NOTES ON MOTION FOR NEW TRIAL & MOTION FOR RECONSIDERATION: Judgment is vacated. On appeal - accept evidence as it is; attach the evidence as it is. New trial is not de novo, only those affected Denial of MNT - appeal the judgment within the remaining time to file an appeal even if less than five (5) days. MNT- not supported by evidence, not supported by law, damages are excessive. There can be a second MNT only when ________ Order granting MNT - first judgment is vacated for purposes of entering new evidence. When judgment may be vacated in part - in case of separate and several judgments. Motion to Re-open - governed by rules on Motions. Options after judgment: but not yet final & executory: 1. Appeal 2. Motion for new trial FAME/good & substantial grounds for saying so Discovery after J is ren Newly discovered evidence Not discovered with reasonable evidence Not merely colorative 3. Motion for reconsideration (a) evidence (b) law (c) award of damages is excessive After final & executory: 1. Nunc pro tunc 2. Petition for relief from judgment 3. Annulment of judgment 4. Remedies during execution Final judgment - 16th day after notice No prescriptive period in actions to nullify Estoppel - by act Laches - by negligence Petition for relief from judgment- equitable remedy; only very highly discretionary on the part of the court. Action to annul - separate action. Res judicata may be raised. Any kind of order for Petition for relief, if granted, not appealable. If not granted, not appealable - only special civil actions

111 Relief from Judgments, Orders or other Proceedings Grounds and nature, Rule 38, Secs. 1, 2 Grounds Garcia v. CA, 202 SCRA 228 Facts: Eduardo Garcia was able to secure a judgment fr. the trial ct. issuing to him the Certificate of Title to a land actually owned by the spouses Garcia. He did this by misinforming the ct. of the spouses’ address so that the notices wont reach them thereby depriving them of the opportunity to participate in the trial. Garcia further made further recovery of the land difficult by conveying the land to another. The couple filed a petition for relief (PFR) fr. said judgment but failed to categorically allege extrinsic fraud in their affidavit of merit. The PFR was dismissed by CA saying that extrinsic fraud should be expressly alleged in the affidavit of merit for the petition to lie. The SC said that since in case at bar, the spouses were able to allege facts leading to extrinsic fraud, express allegation of such is not necessary. Held: Where fraud is the ground, the fraud must be extrinsic or collateral & the facts upon w/c the extrinsic fraud is based must have not been controverted or resolved in the case where the judgment sought to be annulled was rendered. For this purpose, fraud is regarded as extrinsic or collateral where it has prevented a party fr. having a trial or fr. presenting all of his case to the ct.. Intrinsic fraud takes the form of acts of the party in a litigation during the trial, such as the use of forged instruments of perjured testimony w/c did not affect the presentation of the case but did prevent a fair & just determination of the case. Conde v. IAC, 144 SCRA 144 Facts: Petitioners alleged fraud. Gutierrez was able to make it appear that he was the son of Esteban & Fermina Gutierrez & as a necessary consequence of such filiation, was the absolute owner by succession of the prop. in Q. Held: Petition should be dismissed for lack of merit bec. the fraud allegedly perpetuated by G is only intrinsic in nature & not extrinsic. Fraud is regarded as extrinsic or collateral where it has prevented a party fr. having a trial or fr. presenting all of his case to the ct.. In the case at bar, the fraud was in the nature of documents allegedly manufactured by G to make it appear he was the rightful heir of the disputed property. Hence the fraud is intrinsic in nature. Meralco v. CA, 187 SCRA 200 Facts: Meralco, after failing to appear at a pre-trial conference, was declared in default. Thereafter, Meralco made the following steps: 1) Filed a MFR to Lift Order of Default & to Vacate Judgment by Default - bec. of counsel’s influenza. Denied. 2) Petition for Relief fr. Judgment . Dismissed. 3) Petition for Certiorari. Propriety of this last action is the issue in this case. Held: Certiorari is not proper. Such remedy had already been lost bec. of Meralco’s neglect or error in the choice of remedies. Certiorari shall not lie to shield Meralco fr. the adverse consequences of such neglect or error. Relief under Rule 38 is of

equitable character & is allowed only in exceptional cases where there is no other available or adequate remedy. Meralco could have proceeded by appeal to vacate or modify the default judgment. Relief will not be granted when the loss of remedy at law was due to his own negligence or a mistaken mode of procedure, otherwise the petition for relief will be tantamount to the right of appeal already. Further, when other lawyers could have appeared & moved for postponement, sickness of counsel is not excusable. Requires final judgment or loss of appeal Villa Rey Transit v. Far East Motor Co., 81 SCRA 298 Facts: Villa Rey failed to answer w/in the reglementary period even after denial of its motion to extend time to answer. Hence, & order of default was rendered. Thereafter it filed a MTQ Service of Summons, Motion to Lift Order of Default & To Set Aside Judgment. This was denied. The 30-day appeal period expired w/o any appeal. Villa Rey contends the motion it filed should be considered as Petition for Relief. Held: This is untenable. A petition for relief presupposes a final & unappealable judgment. In this case, judgment has not yet become final & unappealable at the time of the filing of the motion. David v CA, 214 SCRA 644 Facts: An RTC decision was affirmed by CA w/ slight modification to reflect the date for the computation of the interest to be awarded. This was done after denying the petitioner’s relief fr. judgment. Held: CA. In sustaining the RTC decision to deny the petition for relief fr. judgment the respondent Court cannot at the same time modify the decision sought to be overturned by such a petition. The filing of the petition for relief fr. judgment w/ the trial ct. was an unequivocal admission on the private respondent’s that his period to appeal fr. the decision had already expired. A petition for relief fr. judgment under Rule 38 presupposes a final judgment or loss of the right to appeal. The affirmance of the CA of the denial of the petition is a confirmation of the existence of a final & executory judgment. CA can neither amend nor modify it. When a final judgment becomes executory it becomes immutable & unalterable, even if modification is meant to correct an erroneous conclusion of fact or law. Only corrections of clerical errors or the making of socalled NUNC PRO TUNC entries & other judgment w/c cause no prejudice to any party are the exceptions to this rule, otherwise any other modifications of a final & executory judgment is VOID. Time for Filing, Rule 38, Sec. 3 Strictly followed First Integrated Bonding v. Hernando, 199 SCRA 796 Facts: FIB was impleaded as the insurance agency of defendant who figured in an accident killing one person. FIB failed to answer so it was declared in default. FIB took no positive step to vacate the order of default. Instead it chose to file a petition

112 for relief fr. judgment almost five months fr. its receipt of copy of the amended decision. Held: The petition for relief fr. judgment was filed out of time. The rules require that such petition should be filed w/in 60 days after receipt of judgment & not more than six months after entry of judgment. Period required by R 38 is nonextendible & never interrupted. It is not subject to any cond. or contingency, bec. it is itself devised to meet a condition or contingency. The remedy under the Rule 38 was an act of grace, designed to give the party one last chance. Being in the position of one who begs, such party’s privilege is not to impose conditions, haggle, or dilly-dally, but to grab what is offered him. Contents Affidavit of Merit, Rule 38, Sec. 3 Garcia v. CA, 202 SCRA 228 Facts: Eduardo Garcia was able to secure a judgment fr. the trial ct. issuing to him the Certificate of Title to a land actually owned by the spouses Garcia. He did this by misinforming the ct. of the spouses’ address so that the notices wont reach them thereby depriving them of the opportunity to participate in the trial. Garcia further made further recovery of the land difficult by conveying the land to another. The couple filed a petition for relief fr. said judgment but failed to categorically allege extrinsic fraud in their affidavit of merit. The PFR was dismissed by CA saying that extrinsic fraud should be expressly alleged in the affidavit of merit for the petition to lie. The SC said that since in case at bar, the spouses were able to allege facts leading to extrinsic fraud, express allegation of such is not necessary. Held: CA denied PFR for want of express allegation of extrinsic fraud. SC reversed saying that since Rule 38 Sec 3 (FAME as ground in affidavit of merit for PFR) & that in case at bar, petitioners were able to show extrinsic fraud, affidavit is not necessary. HELD: The affidavit of merit serves as a jurisdictional basis for a ct. to entertain a petition for relief. But it admits of exceptions, i.e. Where the attachment of the affidavit of merit in the petition for relief is unnecessary. The affidavit of merit is essential bec. a new trial would be a waste of court’s time if the complaint turned out to be groundless. Thus, where there was no jurisdiction over the defendant on the subject matter of the action, where a judgment was taken by default before defendant’s time to answer had expired, where it was entertained by mistake, or was obtained by fraud & other similar cases, as when the applicant had no notice of the trial, we ruled that an affidavit is not necessary. When motion for reconsideration considered as petition for relief Dulos v. CA, supra Facts: Nocom spouses filed forcible entry case v Dulos spouses in the MTC Las Piñas. Pre-trial was set but the Nocoms still filed another case for annulment & a writ of preliminary injunction in Makati. Dulos’ motion for suspension on forcible entry case was dismissed there being no prejudicial question. Pre-trial saw that the Dulos spouses were in default despite the presence of a purported representative (Rectra) who held a special power of attorney executed by said spouses. Judgment on

forcible entry case for the Nocoms. The Dulos’ filed a motion for reconsideration of said judgment w/c was denied & the aggrieved spouses went to the Supreme Court via special civil action for certiorari, w/c the Supreme Court dismissed. Nocoms filed for a writ of demolition w/c was countered by petitioner spouses by filing for a petition for certiorari, prohibition & preliminary injunction, w/c was granted by the CA. Hence, this appeal. Held: A motion for reconsideration of a judgment of default may be considered a petition for relief fr. judgment under R38 S2 only if it is a)verified, b) filed w/in 60 days fr. time petitioner learns of the decision but not more than 6 months fr. entry of judgment & c) if in case of failure to file an answer the motion must be accompanied by an affidavit of merit. It may be considered as a motion for new trial under R27 S2 only if it is accompanied by an affidavit of merit. Action of Court before Answer Power to Deny, Rule 37, Sec. 4 Remedies after denial, see Rule 41, Sec. 1(b) Service Specialists v. Sheriff of Manila, 145 SCRA 139 Facts: Service Specialists & counsel failed to appear at a pre-trial & was declared in default. Service filed a petition for relief fr. judgment. The lower ct. dismissed the petition for relief for lack of jurisdiction to hear & determine the same. Service filed a notice of appeal to the IAC. Held: Service filed its petition for relief also w/ the RTC Manila but not in the same case but in another case. This is erroneous. A judgment or order denying relief under Rule 38 is final & not appealable, unlike an order granting such relief w/c is interlocutory. However, in such an appeal, the appellate ct. is only to determine the existence of any of the grounds relied upon (fraud, accident, mistake or excusable negligence) & the merit of the petitioner’s cause of action or defense, as the case may be. Moreover, Service merely filed a notice of appeal to the IAC fr. the order of the lower ct. w/c dismissed his petition for relief. The appeal should have been made to this Court through a petition for review on certiorari. Prelimnary Injunction pending proceedings, Rule 38, Sec. 5 Order to file an answer, Rule 38, Sec. 4 Procedure Order to file an answer, Rule 38, Sec. 4 Availability of preliminary injunction, Rule 38, Sec. 5 Proceedings after answer is filed, Rule 38, Sec. 6 Where denial of appeal is set aside, Rule 38, Sec. 7 Action of court after giving due course Granting of petition for relief, Rule 38, Sec. 7 Remedies

113 David v. CA, 214 SCRA 644 Facts: An RTC decision was affirmed by CA w/ slight modification to reflect the date of computing interest. This was done after denying the petitioner’s relief fr. judgment. Held: The remedy under R41 w/c provides that a judgment denying relief under R38 is subject to appeal, & in the course thereof, a party may also assail the judgment on the merits, upon the ground that it is not supported by the evidence or it is contrary to law. This provision, however, can’t be construed as allowing the review of the decision on the specific ground therein indicated, if the denial of the petition for relief by the TC is sustained by the Appellate Court. It may only be done if the appellate ct. overturns such denial. The CA, after sustaining the trial court’s denial of the petition for relief should have dismissed the appeal & to declare the lower court’s decision as firm, final & executory. Cheesman v. IAC, 193 SCRA 93 Facts: Thomas Cheesman attempted to annul the sale by his Filipino wife of a residential lot & building to Padilla. The sale was declared void ab initio. However, judgment was set aside as regards Padilla on a petition for relief filed by her ground on fraud, accident, mistake or excusable negligence w/c had seriously impaired her right to present her case adequately. The petition for relief fr. judgment was given due course & a new judge presided over the case. Padilla filed a motion for summary judgment w/c was granted. The judgment declared sale as valid. Cheesman questions the propriety of such judgment. Held: An order of the CFI granting a petition for relief under Rule 38 is interlocutory & is not appealable. Once the petition for relief is granted & the judgment subject thereof set aside, & further proceedings are thereafter had, the ct. in its judgment on the merits may properly grant the relief sought in the petitioner’s basic pleadings, although different fr. that stated in his petition for relief. Therefore, since both CFI & IAC found that the facts adequately proved fraud, mistake or excusable negligence by w/c Padilla’s rights have been substantially impaired, the sale was declared valid. Denying petition for relief, Rule 41, Sec. 1 (b) Service Specialists v. Sheriff of Manila, supra Facts: Petitioner filed an action for replevin & damages against private respondents. A pre-trial conference was set but private respondent & counsel failed to appear w/c resulted in the issuance of an order & judgment of default against respondents. Private respondent then moved for relief fr. judgment & order of default. This motion was opposed by a motion to dismiss filed by petitioner. The Lower ct. dismissed the petition for relief on the ground of lack of jurisdiction. Respondent filed a notice of appeal but a writ of execution was nevertheless filed. This case stems fr. the deputy sheriff’s refusal to proceed w/ the auction of respondent’s properties. Held: A judgment or order denying relief under Rule 38 is final & appealable, unlike an order granting such relief w/c is interlocutory. However, in the appeal the ct. may not reverse or modify the judgment on the merits. The judgment fr. w/c relief is sought is already final & executory. This remedy only enables the appellate ct. to determine not only the existence of any of the grounds relied

upon whether it be fraud, accident, mistake or excusable negligence, but also & primarily, the merit of the petitioner’s cause of action or the defense, as the case may be. If the appellate ct. finds that one of the grounds exist & that the petitioner has a good cause of action or importance, it will reverse the denial or dismissal, set aside the judgment in the main case & remand the case to the lower ct. for a new trial in accordance w/ Sec 7 Rule 38. Finally, a notice of appeal fr. the order of the lower ct. w/c dismissed his petition for relief fr. judgment “for lack of jurisdiction to hear & determine the same” should have been made to the SC through a petition for review on certiorari & not to the IAC. Remedies after petition for relief expires Ramirez v. CA, 187 SCRA 153 Facts: Ramirez, as a plaintiff in a suit over an airstrip failed to do the following: furnish a copy of the notice of hearing to other party; appear at the pre-trial; file appeal instead of seeking relief; & seasonably file a motion for reconsideration. After the judgment in (favor of Ramirez’s opponent) had become final & executory. Ramirez filed a petition for relief fr. judgment even if the period for filing the same had expired. Held: There is no means whereby the defeated party may procure a final & executory judgment to be set aside w/ a view to the removal of the litigation beyond the period for seeking relief, fr. a final order of judgment under Rule 38 unless A) judgment is void for want of jurisdiction or for lack of due process of law or B) it has been fraud. (In other words, period for filing of PFR is mandatory but admits of exceptions – lack of J & fraud.) Reopening not allowed Alvendia v. IAC, 181 SCRA 252 Facts: Alvendia defaulted on his obligation to pay Bonamy. Alvendia did not do anything fr. the filing of the complaint against him up to the time that the judgment became final & executory. Execution has been ordered & his property has been levied. He moved for extension of time to file petition for review. Held: It is axiomatic that there is no justification in law & in fact for the reopening of a case w/c has long become final & w/c in fact has been executed. Time & again this ct. has said that the doctrine of finality of judgment is grounded on fundamental considerations of public policy & sound practice that at the risk of occasional error, the judgments of cts. must become final at some definite date fixed by law – Alvendia cannot invoke equity to reopen case since they have been given opportunity but failed.