CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y.

2020 -2021
 PROFESSOR:
DEAN MA. SOLEDAD DERIQUITO-MAWIS

SUBMITTED BY:
AGUSTIN, NATHAN RAPHAEL D.L.
CRUZ, JOHN DWIGHT V.
ISIDRO, CHANELLE MIKAELLA T.
LEDESMA, DARREN NATHAN S.
MACALINAO, SHARA MAE D.
MARTIN, DOMINIC A.
MATUTINA, MONICO JOSEPH L.
ORCULLO, MA. DANICA
PIGAR, KYRA FRENEL

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 TABLE OF CONTENTS

THE RULES OF CIVIL PROCEDURE 2019 SALIENT RULE 23: DEPOSITIONS PENDING ACTIONS .. 118
CHANGES .......................................................... 1 RULE 24: DEPOSITIONS BEFORE ACTION OR
GENERAL PRINCIPLES OF REMEDIAL LAW ......... 7 PENDING APPEAL .......................................... 129
JURISDICTION.................................................. 12 RULE 25: INTERROGATORIES TO PARTIES ..... 132
RULE 1: GENERAL PROVISIONS ....................... 32 RULE 26: ADMISSION BY ADVERSE PARTY .... 134
RULE 2: CAUSE OF ACTION .............................. 35 RULE 27: PRODUCTION OR INSPECTION OF
RULE 3: PARTIES TO CIVIL ACTION .................. 37 DOCUMENTS OR THINGS .............................. 135

RULE: 4 VENUE OF ACTIONS ........................... 47 RULE 28 – PHYSICAL AND MENTAL

EXAMINATION OF PERSONS.......................... 137
RULE 5: UNIFORM PROCEDURE IN TRIAL
COURTS ........................................................... 48 RULE 29: REFUSAL TO COMPLY WITH MODES OF
DISCOVERY .................................................... 138
RULE 6: KINDS OF PLEADINGS ......................... 50
RULE 30 Sections 1-9..................................... 140
RULE 7: PARTS AND CONTENTS OF A PLEADING
........................................................................ 54 RULE 31: CONSOLIDATION OR SEVERANCE ... 144

RULE 8: MANNER OF MAKING ALLEGATIONS IN RULE 32: TRIAL BY COMMISSIONER .............. 146
PLEADINGS ...................................................... 59 RULE 33: DEMURRER TO EVIDENCE .............. 148
RULE 9: EFFECT OF FAILURE TO PLEAD ........... 64 RULE 34: JUDGMENT ON THE PLEADINGS .... 150
RULE 10: AMENDED AND SUPPLEMENTAL RULE 35: SUMMARY JUDGMENTS ................ 152
PLEADINGS ...................................................... 66 RULE 36: JUDGEMENTS, FINAL ORDERS and
RULE 11: RESPONSIVE PLEADINGS .................. 69 ENTRY THEREOF ............................................ 155
RULE 12: BILL OF PARTICULARS ...................... 71 RULE 37: NEW TRIAL OR RECONSIDERATION 163
RULE 13: FILING AND SERVICE OF PLEADINGS, RULE 38: PETITION FOR RELIEF FROM
JUDGMENT AND OTHER PAPERS .................... 75 JUDGMENT.................................................... 167
RULE 14- Summons ......................................... 83 RULE 39: ........................................................ 168
RULE 15: MOTIONS ......................................... 93 EXECUTION, SATISFACTION AND EFFECT OF
RULE 17: DISMISSAL OF ACTIONS ................... 97 JUDGMENTS .................................................. 168

RULE 18: PRE-TRIAL....................................... 100 RULES 40-45: APPEAL .................................... 189

RULE 19: INTERVENTION............................... 109 RULE 41: APPEAL FROM THE REGIONAL TRIAL
COURTS ......................................................... 201
RULE 20: CALENDAR OF CASES ..................... 112
RULE 42: PETITION FOR REVIEW FROM THE
RULE 21: SUBPOENA ..................................... 113 REGIONAL TRIAL COURTS TO THE COURT OF
RULE 22: COMPUTATION OF TIME ................ 116 APPEALS ........................................................ 207

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

RULE 43 – APPEALS FROM THE QUASI-JUDICIAL RULE 70: FORCIBLE ENTRY AND UNLAWFUL
AGENCIES TO THE COURT OF APPEALS ......... 210 DETAINER ...................................................... 303
RULE 44: ORDINARY APPEALED CASES .......... 215 RULE 71 – CONTEMPT ................................... 320
RULE 45: APPEAL BY CERTIORARI TO THE
SUPREME COURT .......................................... 223
RULE 46: ORIGINAL CASES ............................ 227
RULE 47: ANNULMENT OF JUDGMENTS OF
FINAL ORDERS AND RESOLUTIONS ............... 229
RULE 48: PRELIMINARY CONFERENCE .......... 231
RULE 49: ORAL ARGUMENT .......................... 231
RULE 50: DISMISSAL OF APPEAL ................... 232
RULE 51: JUDGMENT ON APPEAL ................. 233
RULE 52: MOTION FOR RECONSIDERATION .. 235
RULE 53: MOTION FOR NEW TRIAL ............... 235
RULE 54: MOTION FOR RECONSIDERATION .. 236
RULE 55: PUBLICATION OF JUDGMENTS AND
FINAL RESOLUTIONS ..................................... 236
RULE 56: ORIGINAL / APPEALED CASES......... 237
PROVISIONAL REMEDIES ............................... 238
RULE 57: PRELIMINARY ATTACHMENT ......... 238
RULE 58: PRELIMINARY INJUNCTION ............ 246
RULE 59: RECEIVERSHIP ................................ 251
RULE 60: REPLEVIN ....................................... 253
RULE 61: SUPPORT ‘PENDENTE LITE’ ............ 258
RULE 62: INTERPLEADER ............................... 261
RULE 63: DECLARATORY RELIEF AND SIMILAR
REMEDIES ..................................................... 263
RULE 65: CERTIORARI, PROHIBITION AND
MANDAMUS ................................................. 265
RULE 66: QUO WARRANTO ........................... 273
RULE 67: EXPROPRIATION ............................. 279
RULE 69: PARTITION ..................................... 285
RULE 68: FORECLOSURE OF REAL ESTATE
MORTGAGE................................................... 290

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021
 THE RULES OF CIVIL PROCEDURE 2019 SALIENT VIOLATIONS OF THE RULES ON PLEADING
CHANGES SIGNATURE MAY RESULT TO SANCTION.
If the court determines, on motion or motu propio
Pleadings
and after notice and hearing, that this rule (Sec. 3) has
been violated, it may impose an appropriate sanction
REPLY IS PROHIBITED
or refer such violation to the proper office for Page | 1
Exception: An answer may be responded to by a reply
disciplinary action, on any attorney, law firm, or party
only if the defending party attaches an actionable
that violated the rule, or is responsible for the
document to the answer (Sec. 2, Rule 6). If the
violation. Absent exceptional circumstances, a law
plaintiff wishes to interpose any claims arising out of
firm shall be held jointly and severally liable for a
the new matters so alleged, such claims shall be set
violation committed by its partner, associate, or
forth in an amended or supplemental complaint (Sec.
employee.
10, Rule 6).

The sanction may include, but shall not be limited to,

REJOINDER IS PROHIBITED
non-monetary directive or sanction; an order to pay a
Exception: In the event of an actionable document
penalty in court; or, if imposed on motion and
attached to the reply, the defendant may file a
warranted for effective deterrence, an order directing
rejoinder if the same is based solely on an actionable
payment to the movant of part or all of the
document (Sec. 10, Rule 6).
reasonable attorney’s fees and other expenses
directly resulting from the violation, including
AFFIRMATIVE DEFENSES MAY ALSO INCLUDE
attorney’s fees for the filing of the motion for
GROUNDS FOR DISMISSAL OF A COMPLAINT
sanction. The lawyer or law firm cannot pass on the
Aside from those enumerated in Sec. 5 (b), affirmative
monetary penalty to the client (Sec. 3, Rule 7).
defenses may also include grounds for the dismissal
of the complaint, such as lack of jurisdiction over the
FOR PLEADINGS NEEDING VERIFICATION, THE
subject matter, there is another action pending
AFFIANT MUST ATTEST THAT THE PLEADING IS NOT
between the same parties for the same cause of
FRIVOLOUS.
action (litis pendentia) or the action is barred by a
The affiant shall allege the following attestations:
prior judgment (res judicata) (Sec. 5, Rule 6)
a. The allegations in the pleading are true
and correct based on his or her personal
COMPULSORY COUNTERCLAIMS ARE BARRED, IF
knowledge, or based on authentic
NOT RAISED
documents;
A compulsory counterclaim not raised in the same
b. The pleading is not filed to harass, cause
action is barred unless otherwise allowed by the Rules
unnecessary delay, or needlessly increase
(Sec. 7, Rule 6).
the cost of litigation; and
c. The factual allegations therein have
THIRD-PARTY COMPLAINT IS DISALLOWED IN
evidentiary support after a reasonable
CERTAIN INSTANCES.
opportunity for discovery (Sec. 4, Rule 7).
The third (fourth, etc.)-party complaint shall be
denied admission, and the court shall require the
AUTHORIZATION TO SIGN VERIFICATION AND
defendant to institute a separate action, where: (a)
CERTIFICATION AGAINST FORUM SHOPPING MUST
the third (fourth, etc.)-party defendant cannot be
BE ATTACHED.
located within thirty calendar days from the grant of
A pleading is verified by an affidavit of an affiant duly
such leave; (b) matters extraneous to the issue in the
authorized to sign said verification.
principal case are raised; or (c) the effect would be to
introduce a new and separate controversy into the
The authorization of the affiant to act on behalf of a
action (Sec. 11, Rule 6).
party, whether in the form of a secretary’s certificate

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 or special power of attorney, should be attached to RAISE YOUR AFFIRMATIVE DEFENSES AT THE
the pleading (Secs. 4 & 5, Rule 7). EARLIEST OPPORTUNITY.
Failure to raise the affirmative defenses at the earliest
PLEADINGS MUST CONTAIN A SUMMARY OF opportunity shall constitute a waiver thereof (Sec. 12,
TESTIMONIES AND SHALL ATTACH EVIDENCE, Rule 8)
Page | 2 INCLUDING JUDICIAL AFFIDAVITS.
Every pleading stating a party’s claims or defenses DON'T FILE A MOTION FOR RECONSIDERATION OR A
shall, in addition to those mandated by Section 2, Rule PETITION FOR CERTIORARI IF THE COURT DENIES
7, state the following: YOUR AFFIRMATIVE DEFENSES.
Affirmative defenses, if denied, shall not be the
(a) Names of witnesses who will be presented to subject of a motion for reconsideration or petition for
prove a party’s claim or defense; certiorari, prohibition, or mandamus, but maybe
(b) Summary of the witnesses’ intended among the matters to be raised in appeal after a
testimonies, provided that the judicial judgment on the merits (Sec. 12, Rule 8).
affidavits of said witnesses shall be attached
to the pleading and form an integral part THE COURT SHALL REFUSE TO LEAVE TO AMEND
PLEADINGS IN CERTAIN CASES.
thereof. Only witnesses whose judicial
If a responsive pleading has already been filed,
affidavits are attached to the pleading shall
substantial amendments may be made only upon
be presented by the parties during trial.
leave of court.
Except if a party presents meritorious
reasons as a basis for the admission of But such leave shall be refused if it appears to the
additional witnesses, no other witness or court that the motion was made with intent to delay
affidavit shall be heard or admitted by the or confer jurisdiction on the court, or the pleading
court; and, stated no cause of action from the beginning which
(c) Documentary and object evidence in could be amended (Sec. 3, Rule 10).
support of the allegations contained in the
pleading (Sec. 6, Rule 7). DON'T AMEND YOUR PLEADING TO CONFORM TO
EVIDENCE (WHEN ISSUES NOT RAISED ARE TRIED
STATE BOTH THE ULTIMATE FACTS AND THE WITH THE CONSENT OF THE PARTIES). IT IS DEEMED
EVIDENCE. AMENDED.
Every pleading shall contain in a methodical and When issues not raised by the pleadings are tried with
logical form, a plain, concise and direct statement of the express or implied consent of the parties, they
the ultimate facts, including the evidence on which shall be treated in all respects as if they had been
the party pleading relies for his or her claim or raised in the pleadings.
defense, as the case may be (Sec. 1, Rule 8)
No amendment of such pleadings deemed amended
WHEN PLEADING A JUDGMENT, ATTACH ITS is necessary to cause them to conform to the
AUTHENTICATED COPY TO THE PLEADING evidence (Sec. 5, Rule 10).

In pleading a judgment or decision of a domestic or NEW PERIODS TO FILE RESPONSIVE PLEADINGS

foreign court, judicial or quasi-judicial tribunal, or a
board or officer, it is sufficient to judge or decide Responsive Pleadings Period
without setting forth matter showing jurisdiction to Answer to the Complaint 30 calendar days
render it. An authenticated copy of the judgment or Answer of a defendant foreign 60 calendar days
decision shall be attached to the pleading (Sec. 6, Rule juridical entity
8). Answer to Amended 30 or 15 calendar
Complaint days

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 Answer to counterclaim or 20 calendar days SOME PLEADINGS AND DOCUMENTS MUST BE
cross-claim SERVED OR FILED PERSONALLY OR BY REGISTERED
Reply (if allowed) 15 calendar days MAIL
Answer to Supplemental 20 calendar days Notwithstanding the foregoing, the following orders,
Complaint pleadings, and other documents must be served or
filed personally or by registered mail when allowed, Page | 3
FILING AND SERVICE OF PLEADINGS AND and shall not be served or filed electronically, unless
DOCUMENTS express permission is granted by the Court:

YOU CAN FILE COURT SUBMISSIONS THROUGH AN (a) Initiatory pleadings and initial
ACCREDITED COURIER OR VIA EMAIL responsive pleadings, such as an
The filing of pleadings and other submissions shall be answer;
made by: (b) Subpoena, protection orders, and
(a) Submitting personally the original writs;
thereof, plainly indicated as such, to the court; (c) Appendices and exhibits to motions or
(b) Sending them by registered mail; other documents that are not readily
(c) Sending them by accredited courier, or (d) amenable to electronic scanning may,
Transmitting them by electronic mail or at the option of the party filing such,
other electronic means as may be authorized
be filed and served conventionally;
by the Court in places where the court is
and
electronically equipped (Sec. 3, Rule 13)
(d) Sealed and confidential documents or
YOU CAN SERVE PLEADINGS AND OTHER COURT records (Sec. 14, Rule 13).
SUBMISSIONS THROUGH AN ACCREDITED COURIER,
EMAIL, OR FAX COURT NOTICE AND SUMMONS
Pleadings, motions, notices, orders, judgments, and
other court submissions shall be served personally or A PARTY IS PRESUMED TO HAVE RECEIVED A NOTICE
by registered mail, accredited courier, electronic mail, OF COURT SETTING IF IT HAS BEEN MAILED 20 (OR
facsimile transmission, other electronic means as may 30) DAYS BEFORE THE HEARING.
be authorized by the Court, or as provided for in There shall be presumptive notice to a party of a court
international conventions to which the Philippines is setting if such notice appears on the records to have
a party (Sec. 5, Rule 13). been mailed at least twenty (20) calendar days before
the scheduled date of hearing and if the addressee is
ELECTRONIC MODES OF SERVICE SHALL BE MADE IF from within the same judicial region of the court
THE PARTY CONSENTS where the case is pending, or at least thirty (30)
Service by electronic means and facsimile shall be calendar days if the addressee is from outside the
made if the party concerned consents to such modes judicial region (Sec. 10, Rule 13).
of service. Service by electronic means shall be made
by sending an e-mail to the party’s or counsel’s THE COURT MAY ELECTRONICALLY SERVE ORDERS
electronic mail address, or through other electronic AND DOCUMENTS TO THE PARTIES.
means of transmission as the parties may agree on, or The court may electronically serve orders and other
upon the direction of the court. documents to all the parties in the case which shall
have the same effect and validity as provided herein.
Service by facsimile shall be made by sending a A paper copy of the order or other document
facsimile copy to the party’s or counsel’s given electronically served shall be retained and attached
facsimile number (Sec. 9, Rule 13). to the record of the case (Sec. 18, Rule 13; See also
Sec. 13, Rule 13).

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 THE COURT MAY AUTHORIZE THE PLAINTIFF TO by the court to serve the summons on his or her client
SERVE THE SUMMONS (TOGETHER WITH THE (Sec. 13, Rule 14).
SHERIFF).
The summons may be served by the sheriff, his THE COURT MAY ALLOW SUBSTITUTED SERVICE OF
deputy, or another proper court officer, and in case SUMMONS VIA EMAIL.
Page | 4 of failure of service of summons by them, the court If for justifiable causes, the defendant cannot be
may authorize the plaintiff – to serve the summons – served personally after at least three (3) attempts on
together with the sheriff. two (2) separate dates, service may be effect

In cases where the summons is to be served outside (d) By sending an electronic mail to the
the judicial region of the court where the case is defendant’s electronic mail address, if
pending, the plaintiff shall be authorized to cause the allowed by the court (Sec. 6, Rule 14).
service of the summons (Sec. 3, Rule 14; See Sec. 2,
Rule 14: The plaintiff, upon ex-parte motion, may be If summons was served by electronic mail, a printout
authorized to serve to summon to the defendant). of said e-mail, with a copy of the summons as served,
and the affidavit of the person mailing, shall
THE COURT SHALL DISMISS THE CASE WITH constitute as proof of service (Sec. 21, Rule 14).
PREJUDICE AND IMPOSE SANCTIONS IF THE
PLAINTIFF MISREPRESENTS THAT SUMMONS WAS THE DEFENDANT IS DEEMED SERVED WITH THE
SERVED. SUMMONS IF HE MOVES TO DISMISS THE CASE ON
OTHER GROUNDS ASIDE FROM LACK OF
If the plaintiff misrepresents that the defendant was JURISDICTION OVER THE PERSON.
served the summons, and it is later proved that no The defendant's voluntary appearance in the action
summons was served, the case shall be dismissed shall be equivalent to the service of summons. The
with prejudice, the proceedings shall be nullified and inclusion in a motion to dismiss other grounds aside
the plaintiff shall be meted appropriate sanctions from lack of jurisdiction over the defendant’s person
(Sec. 3, Rule 14). shall be deemed a voluntary appearance (Sec. 23,
Rule 14).
SUMMONS
MOTIONS
IN SERVING THE SUMMONS, THE SERVER MUST
INFORM THE DEFENDANT THAT HE IS BEING SERVED. AFTER THE ADVERSE PARTY IS ALLOWED TO
IF HE REFUSES TO RECEIVE, THE SERVER CAN LEAVE OPPOSE, THE COURT SHOULD IMMEDIATELY
THE SUMMONS WITHIN HIS VIEW. RESOLVE IN OPEN COURT A MOTION MADE IN THE
Whenever practicable, the summons shall be served COURSE OF A HEARING.
by handing a copy thereof to the defendant in person A motion made in open court or the course of a
and informing the defendant that he or she is being hearing or trial should immediately be resolved in
served, or, if he or she refuses to receive and sign for open court after the adverse party is allowed to argue
it, by leaving the summons within the view and in his or her opposition thereto.
presence of the defendant (Sec. 5, Rule 14).
When a motion is based on facts not appearing on the
IF THE DEFENDANT QUESTIONS THE VALIDITY OF record, the court may hear the matter on affidavits or
THE SERVICE, THE COURT WILL DEPUTIZE THE depositions presented by the respective parties, but
DEFENDANT'S COUNSEL TO SERVE THE SUMMONS the court may direct that the matter be heard wholly
ON HER CLIENT. or partly on oral testimony or depositions (Sec. 2, Rule
Where the summons is improperly served and a 15).
lawyer makes a special appearance on behalf of the
defendant to, among others, question the validity of
service of summons, the counsel shall be deputized
CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021
THE COURT WILL NOT SET FOR HEARING NON- of hearing shall be addressed to all parties concerned
LITIGIOUS MOTIONS; IT MUST RESOLVE THEM and shall specify the time and date of the hearing [Sec
WITHIN 5 CALENDAR DAYS. 6, Rule 15].
Motions that the court may act upon without
prejudicing the rights of adverse parties are non- MOTIONS AND PRE-TRIAL
litigious motions. These motions include: Page | 5
PROHIBITED MOTIONS
1. Motion for the issuance of an alias 1. Motion to dismiss (except lack of jurisdiction
summons; over the subject matter, litis pendencia, res
2. Motion for extension to file answer; judicata, and statute of limitations)
3. Motion for postponement;
2. Motion to hear affirmative defenses
4. Motion for the issuance of a writ of
execution; 3. Motion for reconsideration of the court's
5. Motion for the issuance of an alias writ of action on the affirmative defenses
execution; 4. Motion to suspend proceedings without a
6. Motion for the issuance of a writ of temporary restraining order or injunction
possession; issued by a higher court
7. Motion for the issuance of an order directing
5. Motion for extension of time to file
the sheriff to execute the final certificate of
pleadings, affidavits, or other papers
sale;
8. Other similar motions. 6. Motion for postponement intended for
delay (Sec. 12, Rule 15)
These motions shall not be set for hearing and shall
be resolved by the court within five (5) calendar days DISMISSAL WITH PREJUDICE
from receipt thereof (Sec. 4, Rule 15). Subject to the right of appeal, an order of dismissal
based on the following grounds shall bar the refiling
RULES ON LITIGIOUS MOTIONS of the same action:
1. Proof of Service. All motions shall be served by 1. Barred by prior judgment
personal service, accredited private courier or 2. Barred by the statute of limitations
registered mail, or electronic means to ensure their 3. The claim or demand outlined in the
receipt by the other party. No written motion shall be plaintiff’s pleading has been paid, waived,
acted upon by the court without proof of service abandoned, or otherwise extinguished
thereof [Sec. 5 (b) & Sec. 7, Rule 15].
4. The claim on which the action is founded is
unenforceable under the provisions of the
2. Five days to Oppose. The opposite party shall file
statute of frauds (Sec. 13, Rule 15)
his or her opposition to a litigious motion within five
(5) calendar days from receipt thereof. No other
submissions shall be considered by the court in the NEW MATTERS THE COURT WILL CONSIDER DURING
resolution of the motion [Sec. 5 (c), Rule 15]. PRE-TRIAL

3. 15 days to Resolve. The motion shall be resolved 1. The limitation of the number and
by the court within fifteen calendar days from its identification of witnesses and the setting of
receipt of the opposition thereto or upon expiration trial dates
of the period to file such opposition [Sec. 5 (c), Rule 2. Marking of parties' respective evidence if not
15]. yet marked in the judicial affidavits of their
witnesses
4. Discretionary Hearing. In the exercise of its 3. Examination and comparisons of the adverse
discretion, the court may and if deemed necessary for parties' evidence vis-a-vis the copies to be
its resolution, call a hearing on the motion. The notice marked

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 4. Stipulations regarding the faithfulness of the YOU NEED TO OBSERVE THE CONTINUOUS TRIAL
reproductions and the genuineness and due SYSTEM.
execution of the adverse parties' evidence The schedule of the trial dates, for both plaintiff and
5. Reservations of evidence not available at the defendant, shall be continuous... (See Sec. 1 (a)-(c),
pre-trial, but only in the following manner: Rule 30).
Page | 6 ● For testimonial evidence, by giving the
THE CONTINUOUS TRIAL SYSTEM
name or position and the nature of the
Section 1, Rule 30. Schedule of Trial.
testimony of the proposed witness
● For documentary evidence and other
The parties shall strictly observe the scheduled
object evidence, by giving a particular
hearings as agreed upon and set forth in the pre-trial
description of the evidence order.

The failure without just cause of a party and counsel (a) The schedule of the trial dates, for both plaintiff
to appear during pre-trial, despite notice, shall result and defendant, shall be continuous and within the
in a waiver of any objections to the faithfulness of the following periods:
reproductions marked, or their genuineness and due
execution (Sec. 2, Rule 18). 1. Plaintiff’s evidence: Not later than 30
calendar days after the termination of the
DISCOVERY AND PRE-TRIAL
pre-trial conference. Presentation: within 90
calendar days.
YOU MAY FILE AND SERVE WRITTEN
2. Defendant’s evidence: Not later than 30
INTERROGATORIES TO AN ADVERSE PARTY UPON EX
calendar days after the court ruled on the
PARTE MOTION.
Interrogatories to parties; service thereof.- Upon ex plaintiff's formal offer of evidence.
parte motion, any party desiring to elicit material and Presentation: within 90 calendar days.
relevant facts from any adverse parties shall file and 3. Third-Party Claim, Counterclaim, Cross-
serve upon the latter written interrogatories to be claim: Court determines the setting.
answered by the party served or, if the party served is Presentation: total shall not exceed 90
a public or private corporation or a partnership or calendar days.
association, by any officer thereof competent to 4. Rebuttal: Court determines the setting.
testify in its behalf (Sec. 1, Rule 25). Presentation (if necessary): within 30
calendar days.
YOU MAY DEPOSE ANY PERSON UPON EX PARTE
MOTION. Presentations by all parties:
Depositions pending action, when may be taken.- - within 300 calendar days (with a third-party
Upon ex parte motion of a party, the testimony of any claim, counterclaim, cross-claim)
person, whether a party or not, maybe taken, at the
- within 180 calendar days (without third-
instance of any party, by deposition upon oral
party claim, counterclaim, cross-claim)
examination or written interrogatories (Sec. 1, Rule
23).
Court Decision: within 90 calendar days from
submission of the case for resolution
YOU HAVE TO STRICTLY FOLLOW THE AGREED
SCHEDULE OF TRIAL.
YOU HAVE TO ORALLY OFFER YOUR EVIDENCE.
The parties shall strictly observe the scheduled
The offer of evidence, the comment or objection
hearings as agreed upon and set forth in the pre-trial
thereto, and the court ruling shall be made orally
order (Sec. 1, Rule 30).
under Sections 34 to 40 of Rule 132 (Sec. 6, Rule 30).

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

YOU CANNOT APPEAL OR ASSAIL THRU A PETITION forthwith if the pleadings, supporting
FOR CERTIORARI AN ORDER DENYING YOUR affidavits, depositions, and admissions on
DEMURRER TO EVIDENCE. file, show that, except as to the number of
A demurrer to evidence shall be subject to the damages, there is no genuine issue as to any
provisions of Rule 15 (procedure on motions). material fact and that the moving party is
entitled to judgment as a matter of law. Page | 7
The order denying the demurrer to evidence shall not
- Any action of the court on a motion for
be subject to an appeal or petition for certiorari,
summary judgment shall not be subject to an
prohibition, or mandamus before judgment (Sec. 2,
appeal or petition for certiorari, prohibition,
Rule 33).
or mandamus (Sec. 3, Rule 35).
THE COURT MAY MOTU PROPRIO OR ON MOTION
RENDER JUDGMENT ON THE PLEADINGS.
The court may motu proprio or on motion render GENERAL PRINCIPLES OF REMEDIAL LAW
judgment on the pleadings if it is apparent that the
answer fails to tender an issue, or otherwise admits CONCEPTS IN REMEDIAL LAW
the material allegations of the adverse party’s
Remedial Law
pleadings. Otherwise, the motion shall be subject to
the provisions of Rule 15 of these Rules (Sec. 2, R.34). Remedial law provides the “means and methods
whereby causes of action may be effectuated, wrongs
JUDGMENT ON THE PLEADINGS; SUMMARY redressed and reliefs obtained” (Black’s Law
JUDGMENT Dictionary, 5th Ed., 1162, citing Schmitt v. Jenkins
Truck Lines, Inc., 260 Iowa 556, 149 N.W.2d 789, 792).
YOU CANNOT APPEAL OR ASSAIL THRU A PETITION
FOR CERTIORARI AN ORDER DENYING YOUR Nature of remedial law
MOTION FOR JUDGMENT ON THE PLEADINGS.
Any action of the court on a motion for judgment on 1. Has the force and effect of law if not in
the pleadings shall not be subject to an appeal or conflict with positive law (Alvero v. De La
petition for certiorari, prohibition, or mandamus (Sec. Rosa, et. al., G.R. No. L-286, March 29, 1946).
2, Rule 34). 2. Subordinate to statutes - in case of conflict,
the latter will prevail.
3. Strict compliance is mandatory and
YOUR MOTION FOR SUMMARY JUDGMENT MUST
imperative (Alvero v. De La Rosa, supra).
CITE THE SUPPORTING AFFIDAVITS, DEPOSITION OR
ADMISSIONS, AND THE SPECIFIC LAW RELIED UPON. XPN: Liberal construction to promote a just,
- The motion shall cite the supporting speedy and inexpensive disposition of every
affidavits, depositions or admissions, and action and proceeding (Rule 1, Sec. 6, RoC).
the specific law relied upon.
- The adverse party may file a comment and Scope of Civil Procedure
serve opposing affidavits, depositions, or 1. Ordinary Civil Actions (Rules 1-56);
admissions within a non-extendible period 2. Provisional Remedies (Rules 57-61);
of five (5) calendar days from receipt of the 3. Special Civil Actions (Rules 62-71)
motion. (Sec. 3, Rule 35).
Substantive Law v. Remedial Law
THE COURT MAY OR MAY NOT CONDUCT A HEARING Substantive law that part of the law which creates,
ON YOUR MOTION FOR SUMMARY JUDGMENT. defines and regulates rights, or which regulates the
- Unless the court orders the conduct of a rights and duties which give rise to a cause of action.
hearing, judgment sought shall be rendered Remedial Law, on the other hand, prescribes the

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 method of enforcing rights or obtains redress for their actions are
invasion. excepted from
its operation;
The test is whether the rule really regulates 2. If applying the
procedure, that is, the judicial process for enforcing rules to
rights and duties recognized by substantive law. If the pending
Page | 8 answer is in the affirmative, then it is an adjective or proceedings
remedial law. (Bernabe v. Alejo, G.R. No. 140500, would impair
January 21, 2002) vested rights;
3. If to do so
would involve
SUBSTANTIVE LAW REMEDIAL LAW
intricate
Creates, defines, and Does not create rights problems of
regulates rights and or obligations but lays due process or
duties concerning life, down the methods by impair the
liberty or property. which the rights and independence
obligations arising from of the courts.
substantive law are (Tan v. CA,
protected, enforced supra)
4. A new rule
and given effect.
cannot be
Creates vested rights. Does not create vested retroactively
rights. applied to final
and executory
Enacted by Congress Promulgated by
decisions.
Supreme Court
Generally prospective May be applied Q: Under the Family Code, if an illegitimate child
in application. retroactively. seeks recognition of filiation based on secondary
evidence, the illegitimate child can only file a case
In Rules of Procedure, against the putative father within the lifetime of the
no one can claim a father (See Art. 175 of the Family Code).
vested right in any
Will the same provision apply to an illegitimate child
remedy, and a litigant
born before the enactment of the Family Code, when
cannot insist on the
Art. 285 of the Civil Code was still applicable?
application to the trial
of his case, whether civil A: NO. The Family Code cannot impair or take the
or criminal, of any other child’s right to file an action for recognition because
than the existing rules that right had already been vested prior to the Family
of procedure (Tan v. CA, Code’s enactment.
G.R. No. 136368,
January 12, 2002). Art. 285 is a substantive law, as it gives the child the
right to file an action for recognition within the
XPNs: specified period (remember: substantive law creates
rights) (Bernabe v. Alejo, supra).

1. Statute itself NOTE: Not all provisions of the Family Code are
expressly or by substantive laws. Article 40, which requires that,
necessary before invoking the absolute nullity of a previous
implication
marriage, a final judgment must be rendered
provides that
declaring such previous marriage void, is a rule of
pending
procedure.
CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021
Retroactivity of Remedial Law period to file a petition for certiorari is only
interrupted upon the filing of a motion for
As a general rule, remedial law may be applied
reconsideration. Republic elevated the case to the
retroactively.
Supreme Court (SC) via Petition for Review. During
XPNs: the pendency before the SC, a new rule was
promulgated, providing that a fresh 60-day period Page | 9
1. Statute itself expressly or by necessary shall be given after an order denying a motion for
implication provides that pending actions reconsideration. Will the new rule apply in favor of
are excepted from its operation; Republic?
2. If applying the rules to pending proceedings
would impair vested rights; A: Yes. Procedural rules may be given retroactive
3. If to do so would involve intricate problems effect to actions pending and undetermined at the
of due process or impair the independence time of their passage and this will not violate any right
of the courts. (Tan v. CA, supra) of a person who may feel that he is adversely
affected, inasmuch as there are no vested rights in
Remedial law may be given retroactive effect to rules of procedure. Strictly speaking, the CA did not
actions pending and undetermined at the time of err in dismissing the petition for having been filed out
their passage. This will not violate any right of a of time because the prevailing rule was that the 60-
person who may feel that he is adversely affected, day period is only interrupted, and not replenished,
inasmuch as there is no vested rights in the rules of by a motion for reconsideration. However, the
procedure. (Republic v. CA, G.R. No. 141530, March decision of the CA was not yet final and executory as
18, 2003) Republic seasonably filed a Petition for Review. With
this, Republic’s action is still pending and
Q: A decision becomes final and executory 15 days undetermined. Therefore, the new 60-day fresh-
from the receipt of the decision. If the plaintiff period rule may be retroactively applied in favor of
received the decision on October 1, and the
the Republic, and the petition for certiorari before the
defendant received it on October 5, the decision
CA deemed filed on time. (Republic vs. Court of
becomes final and executory on October 21.
Appeals, G.R. No. 141530, March 17, 2003)
However, as to the plaintiff, the decision becomes
final and executory on October 17. The plaintiff can OBJECTIVES OF PROCEDURAL LAWS
no longer file a Motion for Reconsideration, Motion
for New Trial or Appeal on the said date. Objectives of Rules of Court

On October 22, a new rule extending the To secure a: [JuSi]

reglementary period to 30 days will be in force. If the
Motion for Reconsideration was filed by the 1. Just;
2. Speedy; and
defendant on October 21, is it filed on time?
3. Inexpensive disposition of every action and
A: No. A new rule cannot be retroactively applied to proceeding (Sec. 6, Rule 1, RoC)
final and executory decisions. The decision was Compliance with procedural rules
already final and executory on October 21. Even if the
new law extended the period to 30 days, it only came Strict compliance is enjoined to facilitate the orderly
into effect on October 22, the day after the decision administration of justice. (Spouses Bergonia vs. Court
in this case became final and executory. of Appeals, G.R. No. 189151, January 25, 2012; citing
Galang v. Court of Appeals)
Q: Republic filed a petition for certiorari before the
Court of Appeals (CA). However, the CA dismissed However, technicality and procedural imperfection
the petition on the ground that it was filed out of should not serve as the basis of decisions. For, indeed,
time, relying on the existing rule that the 60-day the general objective of procedure is to facilitate the

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 application of justice to rival claims of contending A: Yes. The verification of a complaint and the
parties, bearing always in mind that procedure is not attachment of a certificate of non-forum shopping are
to hinder but to promote the administration of requirements that are basic, necessary and
justice. (id.) mandatory for procedural orderliness. The rule for
the submission of a certificate of non-forum shopping
The following shall be strictly complied with: remains to be a strict and mandatory rule. (BPI v. CA,
Page | 10
G.R. No. 168313, Oct. 6, 2020)
1. Reglementary periods;
2. Rule on forum shopping; and Non-application to Non-Judicial Proceedings
3. Service of summons
1. Labor disputes - not governed by the strict
APPLICATION OF PROCEDURAL RULES
and technical rules on evidence and
procedure observed in the regular courts of
Implementation of remedial laws
law, as the said rules are merely analogous
Through the judicial system, including the prosecutor or supplementary to labor disputes (Sime
Darby Employees Association v. NLRC, G.R.
service of courts and quasi-judicial agencies.
No. 119205, April 15, 1998).
Liberal construction 2. Quasi-judicial and administrative bodies -
not bound by the technical rules of
The Rules shall be liberally construed in order to procedure as technicalities should never be
promote their objective of securing a just, speedy and used to defeat the substantive rights of a
party. (Birkenstock Orthopaedie GMBH and
inexpensive disposition of every action and
Co. KG v. Philippine Shoe Expo Marketing
proceeding. (Rule 1, Sec. 6, RoC)
Corp., G.R. No. 194307, Nov. 20, 2013)
If the strict application of the rules would tend to
NOTE: While administrative or quasi-judicial bodies
frustrate rather than promote justice, this Court is not
are not bound by the technical rules of procedure,
without power to exercise its judicial discretion in
this rule cannot be taken as a license to disregard
relaxing the rules of procedure. (CMTC International
fundamental evidentiary rules; the decision of the
Marketing Corp. v. Bhagis International Trading Corp.,
administrative agencies and the evidence it relies
G.R. No. 170488, December 10, 2012).
upon must, at the very least, be substantial. (Primo v.
Q: Who has the burden of invoking liberal Mendoza Vda. de Erederos, G.R. Nos. 172532 &
construction? 172544-45, Nov. 20, 2013).

A: On the parties praying for the liberal RULE-MAKING POWER OF THE SUPREME COURT
interpretation. The bare invocation of “interest of
Sec. 5(5), Art. II, 1987 Constitution
substantial justice” is not a magic wand that will
automatically compel the Court to suspend The Supreme Court has the power to promulgate
procedural rules. (Spouses Bergonia vs. CA, supra) rules concerning:

Q: Linda and First Union failed to settle their 1. The protection and enforcement of
outstanding obligations, which prompted BPI to file constitutional rights;
a complaint for collection of sum of money with the 2. Pleading, practice and procedure in all
RTC. The complaint’s verification and certificate of courts;
non-forum shopping were signed by Asis and Ong, 3. The admission to the practice of law;
however, there was no Secretary’s Certificate or 4. The integrated bar; and
Board Resolution attached to evidence their 5. Legal assistance to the underprivileged.
authority to file the complaint. Did BPI fail to comply
(SUGGESTED MNEMONIC: I-EPAL: Integrated Bar,
with the procedural requirements?
Protection and Enforcement, Pleading, practice and

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

procedure, Admission to the integrated bar, Legal ● “For this one only”
assistance to the underprivileged). ● A ruling qualified as pro hac vice cannot be
used as a precedent to govern other cases.
Conditions/Limitations on the rule making power of
the SC IMPORTANT DOCTRINES

1. Shall provide a simplified and inexpensive 1. HIERARCHY OF COURTS Page | 11

procedure for the speedy disposition of
Where courts have concurrent jurisdiction
cases;
2. Uniform for all courts of the same grade; and over the subject matter, such concurrence of
3. Must not diminish, increase or modify a jurisdiction does not grant the party seeking
substantive right relief the absolute freedom to file a petition
in any court of his choice.
Other powers
2. NON-INTERFERENCE/JUDICIAL STABILITY
1. The Supreme Court has the sole prerogative
to amend, repeal or even establish new No court can interfere by injunction with the
rules for a more simplified and inexpensive judgments or orders of another court of
process, and the speedy disposition of cases.
concurrent jurisdiction having the power to
(Neypes v. Court of Appeals, G.R. No.
grant the relief sought by the injunction.
141524, September 14, 2005)
2. Courts have the power to relax or suspend
However, the doctrine does not apply where
technical or procedural rules or to except a
a third-party claimant is involved (Santos v.
case from their operation when compelling
reasons so warrant or when the purpose of Bayhon, G.R. No. 88643, July 23, 1991).
justice requires it. (Commissioner of Internal
3. DOCTRINE OF IMMUTABILITY OF
Revenue v. Migrant Pagbilao Corp., G.R. No.
JUDGMENTS
159593, Oct. 12, 2006)
A judgment that has attained finality can no
IMPORTANT FACTORS:
longer be disturbed.
a. Existence of special or compelling
Equity
circumstances;
b. Merits of the case; Justice outside legal provisions (Viva Shipping Lines,
c. A cause not entirely attributable to Inc. v. Keppel Philippines, G.R. No. 177382, February
the fault or negligence of the party 17, 2016).
favoured by the suspension of
rules; It regards the spirit of the law and not its letter, the
d. Lack of any showing that the review intent and not the form, the substance rather than
sought si merely frivolous and the circumstance (Air Manila v. CIR, G.R. No. L-39742
dilatory; and June 9, 1978).
e. The other party will not be unjustly
prejudiced thereby. (Sarmiento v.
COURTS OF LAW COURTS OF EQUITY
Zaratan, G.R. No. 167471, Feb. 5,
2007) Any tribunal duly Any tribunal
administering the laws administering justice
Example of suspension of rules.: The locus standi
of the land. outside the law, being
requirement may be waived by the court in the
ethical rather than jural
exercise of its discretion given the transcendental
and belonging to the
importance of the constitutional issues it raises.
sphere of morals rather
(Aguinaldo v. Aquino III, G.R. No. 224302, November
than of law.
29, 2016)

PRO HAC VICE RULE

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021
 Decides the case Adjudicates a All courts in the Philippines, except the Supreme
according to the controversy according Court, are statutory courts. They have been created
promulgated law. to the common by statutory enactments.
precepts of what is right
and just without JURISDICTION
Page | 12 inquiring into the terms
of
Definition
Civil courts and Criminal courts
It is the power and authority of the court to hear, try
and decide a case. It includes the power to determine
CIVIL COURTS CRIMINAL COURTS
whether it has the authority to hear and determine
Those which determine Those which adjudicate the controversy presented, and the right to decide
controversies between offenses alleged to have whether the statement of facts that confer
private persons. been committed jurisdiction exists, as well as other matters that arise
against the State. in the case legitimately (Riano, p. 59, 2019).

Functions of the court Also includes the authority of the court to execute its
decisions (Echegaray v. Secretary of Justice, G.R. No.
1. Decide actual controversies and not give 132601, January 19, 1999).
opinions upon abstract propositions;
2. Apply the law; and Aspects of Jurisdiciton
3. Interpret the law.
1. Jurisdiction over the subject matter;
Court a. Conferred by law, cannot be
Tribunal officially assembled under authority of the conferred on the court by voluntary
law. It is an office and an organ of government with act or agreement of the parties
its own distinct personality, separate from the judge. 2. Jurisdiction over the parties;
a. Over plaintiff/petitioner - by filing
The disqualification of a judge sitting in the court does
the initiatory pleading by the
not affect the court.
plaintiff or petitioner (e.g.
Judge complaint, petition)
b. Over defendant/respondent - by
A physical person and an officer of a court or tribunal. voluntary appearance by
He is considered a public officer and may be defendant/respondent or by
disqualified from such office without affecting the coercive process, generally by
court. service of summons
3. Jurisdiction over the issues;
Courts of record a. Determined and conferred by the
pleadings filed in the case by the
Courts whose proceedings are enrolled and which are parties, or by agreement in the pre-
bound to keep written records of all trials and trial order or stipulation, or by
proceedings handled by them (Luzano v. Romero, et. implied consent due to the failure
al., G.R. No. L-33245, September 30, 1971). of a party to object to evidence on
an issue not covered by the
Nature of Philippine Courts pleadings or pre-trial order.
4. Jurisdiction over the res or the thing
Philippine courts are courts of both law and equity.
involved in the litigation
Hence, both legal and equitable jurisdictions are a. Acquired by the actual or
dispensed with in the same tribunal (US v. constructive seizure by the court of
Tamparong, G.R. No. 9527, August 23, 1915). the thing in question (in custodio
legis, attachment, garnishment)
CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021
 b. Or, by provision of law recognizing complaint (Mendoza v. Germino, G.R. No. 165676,
the power of the court to deal with November 22, 2010).
the property or subject matter
within its territorial jurisdiciton Under the 2019 Revised Rules, the allegations of the
(land registration proceedings or complaint will be based on the ultimate facts,
suits involving civil status or real including the evidence on which the party pleading
property in the Philippines of a non- Page | 13
relies for his claim or defense, as the case may be (Sec.
resident defendant). 1, Rule 8, RoC). Thus, the allegations of the complaint
are no longer based merely on the ultimate facts, but
JURISDICTION OVER THE SUBJECT MATTER
on evidentiary facts.
The power to hear and determine cases of the general
Example: actions for recovery of a sum of money vis-
class to which the proceedings in question belong
a-vis actions where money claim is purely incidental
(Villagracia v. Fifth Shari’a District Court, G.R. No.
188832, April 23, 2014). If it is primarily for the recovery of a sum of money,
the claim is considered capable of pecuniary
Jurisdiction over the subject matter is conferred by
estimation, and the amount of the claim determines
law, not by the parties’ action or conduct, and is,
whether or not jurisdiction is in the first-level courts
likewise, determined from the allegations in the
or in the regional trial courts. (Pajares v. Remarkable
complaint (Tumpag v. Tumpag, G.R. No. 199133, Sept.
Laundry, G.R. No. 212690, February 20, 2017)
29, 2014).
1. RTC: If the value, claim or demand exceeds
Proceedings conducted, or decisions made by a court
P300,000.00 (outside Metro Manila) or
are legally void where there is an absence of
P400,000.00 (within Metro Manila)
jurisdiction over the subject matter. 2. FIRST-LEVEL COURTS: If the value, claim or
demand does not exceed P300,000 (outside
Q: What should the court do when there is lack of
MM) or P400,000.00 (within MM)
jurisdiction over the subject matter?
If the money claim is purely incidental, and the basic
A: It is the duty of the court to dismiss the action.
issue is something other than the right to recover a
When the court dismisses the complaint for lack of
sum of money, such actions will be considered as
jurisdiction over the subject matter, it is performing
actions incapable of pecuniary estimation, and are
the only authority that it has under the circumstances cognizable exclusively by the Regional Trial Courts.
- to order such dismissal (Buenaflor v. Ramirez, G.R.
(Id.)
No. 201607, February 15, 2017).
Q: The following are the allegations in the complaint:
When Lack of Jurisdiction over the Subject Matter
John bought land from Kyra amounting to P10M in
may be raised
cash. Despite the demands for Kyra to turn over the
Lack of jurisdiction over the subject matter of the case TCT, Kyra refused to surrender the same; that in the
can always be raised anytime, even for the first time event the TCT will not be surrendered, John requests
that the deed of absolute sale be rescinded, and the
on appeal, since jurisdictional issues, as a rule, cannot
P5M and all other damages amounting to P10M be
be acquired through a waiver or enlarged by the
paid. The assessed value of the property is
omission of the parties or conferred by the
P15,000.00. What court has jurisdiction?
acquiescence of the court (Tumpag v. Tumpag,
supra.).
(NOTE: in actions involving real property, the court
Determined by the allegations of the complaint having jurisdiction over the subject matter is
determined by the assessed value or interest in of the
It is a basic rule that jurisdiction over the subject real property: if it exceeds P20,000.00 (outside MM)
matter is determined by the allegations in the

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 or P50,000 (inside MM), then the RTC has jurisdiction. attorney’s fees, litigation expenses and costs, or
Otherwise, it is the first level courts.) value of property in controversy exceeds P300,000
outside MM or P400,000 in MM.
A: RTC. This is a case of specific performance. Based
on the allegations of the complaint, the primary A: Sec. 19 of B.P. 129 contemplates a situation where
motive of the plaintiff is to get the TCT. Thus, it is the damages are only incidental to the action. On the
Page | 14 incapable of pecuniary estimation and therefore, the other hand, in an action purely for damages, the
RTC has jurisdiction. primary consideration is the claim for damages itself,
thus the payment of damages is not merely
UNLAWFUL DETAINER incidental, but principal. Therefore, it is the amount
of damages that will be used to determine whether or
An action for unlawful detainer is one the purpose of
not the MTC or RTC has jurisdiction in the latter case.
which is to recover possession of the real property
from one who illegally withholds possession after the Q: In an action purely for damages, plaintiff prayed
expiration of his right to hold possession under any that defendant be held liable to pay moral damages
contract, express or implied (Riano, 2019). in the amount of P300,000; exemplary damages in
P50,000; attorney’s fees in P50,000; and litigation
The MTC has exclusive original jurisdiction over
expenses of P20,000. Which court has jurisdiction?
unlawful detainer cases.
A: RTC. In an action purely for damages, all damages
Q: The following are the allegations in the complaint:
of whatever kind should be counted together in
defendant Monico leased the premises owned by
determining which court has jurisdiction. In this case,
the lessor plaintiff Chanelle; the rent is payable at
the total amount is P420,000.00, well within the
P30K monthly, and the rent period is 2 years.
jurisdiction of the RTC, whether it is situated in or
Beginning the third month, Monico did not pay; on
outside of Metro Manila.
the seventh month, Chanelle sent a demand letter
for Monico to pay P120,000 and vacate. Chanelle Q: What about a case of specific performance with
filed an unlawful detainer case within the 1-year damages amounting to P100k?
period. By that time the arrears went up to
P500,000. Monaco refused to pay and claimed that A: The RTC has jurisdiction because the damages is
the property was inherited from his grandmother. merely incidental to the main cause of action.
Which court has jurisdiction?
Q: Can the jurisdiction of the court over the subject
A: MTC has jurisdiction. The allegations make up an matter be determined through the defenses made
unlawful detainer case. There is a demand to pay and by a defendant in his answer or motion to dismiss?
vacate. The primary consideration is thus to recover
possession, and the payment of P500,000 is merely a A: No. Jurisdiction is based on the allegations in the
consequence of A’s demand to vacate the premises. initiatory pleading - such as the complaint or petition.
(Indophil Textile Mills v. Adviento, G.R. No. 171212,
ACTION PURELY FOR DAMAGES Aug. 14, 2014)

In cases where the claim for damages is the main Lack of jurisdiction over the subject matter can be
cause of action, or one of the causes of action, the raised at any stage
amount of such claim shall be considered in
determining the jurisdiction of the court (Sante v. The defense of lack of jurisdiction over the subject
Claravall, G.R. No. 173915, February 22, 2010). matter may be raised at any stage of the proceedings,
even for the first time on appeal. The court may motu
Q: Distinguish from Sec. 19, B.P. No. 129, which proprio dismiss a complaint at any time when it
provides that the RTC shall exercise exclusive appears from the pleadings or the evidence on record
original jurisdiction over [...] such other cases where that lack of jurisdiction exists (Julao v. Spouses De
the demand, exclusive of interest, damages, Jesus, G.R. No. 176020, Sept. 29, 2014).
CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021
Exceptional case: Estoppel by Laches Jurisdiction over the parties refers to the power of the
court to make decisions that are binding on persons
In the case of Tijam v. Sibonghanoy (G.R. No. L- (Riano, 2019).
21450), the belated objection to the jurisdiction of
the court over the subject matter made only after Q: Distinguish from Jurisdiction over the Subject
about 15 years by a party in the case who already Matter
Page | 15
sought affirmative relief and actively participated in
all stages of the proceedings was held to be barred by JURISDICTION OVER JURISDICTION OVER
laches. THE SUBJECT MATTER THE PARTIES
Conferred by law and In case of the plaintiff or
Jurisdiction over the subject matter determined by
determined by the petitioner, acquired by
the allegations in the complaint and reliefs prayed
allegations in the the filing of the
for
complaint and the initiatory pleading.
If the complaint is for reconveyance of a parcel of character of the relief
land, which involves the title to or interest in real sought. In case of the defendant
property, it requires that the assessed value of the or respondent, by valid
property, or if there is none, the estimated value service of summons or
thereof, shall be alleged (Brgy. Piapi v. Talip, G.R. No. voluntary submission to
138248, Sept. 7, 2005). the court’s authority.

The allegation of the assessed value is important in Cannot be conferred by Can be subject to the
order to determine whether the RTC or the first level the agreement of the will of the parties
court has original and exclusive jurisdiction over the parties, by contract, or
action. by the parties’ silence
or acquiescence
Under B.P. 129, Sec. 19(2), jurisdiction over actions Can raise it for the first Can only be raised as an
involving title to or interest in real property is time on appeal affirmative defense in
conferred upon: the answer

1. The RTC if the assessed value or interest of Not waivable. May be waived by
the real property exceeds P20,000.00 voluntary submission or
(outside MM) or P50,000.00 (within MM) failure to state such
2. The first-level courts if the assessed value or ground as an
interest does not exceed P20,000.00 outside affirmative defense in
MM or P50,000.00 within MM. the answer.
Q: Is the allegation of the assessed value an absolute
NOTE: When asked about the distinction of
requirement?
“jurisdiction” vis-a-vis other concepts such as venue,
A: No. The Rule requires that the assessed value of always make sure to further distinguish between
the property, or if there is none, the estimated value jurisdiction over the subject matter and the person of
thereof, shall be alleged by the claimant. Thus, the the accused.
Court has, on occasion, considered the facts
Q: Summons was not validly served on Chandumal.
contained in a Declaration of Real Property (Tumpag
However, the proceedings still went on, and due to
v. Tumpag, supra.) and the market value (Barangay
Chandumal’s non-appearance, she was declared in
Piapi v. Talip, G.R. No. 138248, Sept. 7, 2005) as the
default. When Chandumal found out about this, she
estimated value of the land.
filed an Urgent Motion to Set Aside Order of Default
JURISDICTION OVER THE PARTIES and to Admit Attached Answer. Now, she seeks the
dismissal of the complaint against her because the

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 court failed to acquire jurisdiction over her person. JURISDICTION VS. EXERCISE OF JURISDICTION
Will her contention prosper?
Exercise of Jurisdiction
A: No. When Chandumal filed an Urgent Motion to
Set Aside Order of Default and to Admit Attached Refers to the orders and decisions rendered by the
Answer, she effectively submitted her person to the court in case (Platinum Tours and Travel, Inc. v.
Page | 16 jurisdiction of the trial court as the filing of a pleading Panlilio, G.R. No. 133365, Sept. 16, 2003).
where one seeks an affirmative relief is equivalent to
service of summons and vests the trial court with JURISDICTION OVER JURISDICTION OVER
jurisdiction over the defendant’s person (in other THE SUBJECT MATTER THE PARTIES
words, seeking affirmative relief is tantamount to a Authority of the court Where there is
voluntary submission) (Planters Development Bank v. to hear and decide a jurisdiction over the
Chandumal, G.R. No. 195619, Sept. 5, 2012). case. person and subject
matter, the resolution
Q: X filed a case against Y. Summons was served of all other questions
upon Y. However, Y died after the valid service of arising in the case is but
summons. Did the court acquire jurisdiction over y? an exercise of
jurisdiction.
A: Yes. The summons was served when Y was still
alive. Therefore, the court had already acquired
Where a court has jurisdiction over the person and
jurisdiction, and in this case, there will only be a
the subject matter, the decision on all questions
substitution of parties.
arising from the case is but an exercise of such
If Y died after the filing of the complaint but before jurisdiction. Any error that the court may commit in
the service of summons, then a motion for the exercise of its jurisdiction is merely an error of
substitution will not be proper. The proper remedy is judgment which does not affect its authority to
to amend the complaint and sue the executor or decide the case, much less divest the court of the
administrator of the estate. jurisdiction over the case. (Platinum Tours v. Panlilio,
supra.)
In the case of Boston Equity v. CA (G.R. No. 173946,
June 19, 2013), the Court held that the trial court did Error of jurisdiction vs. Error of judgment
not acquire jurisdiction over the person of Toledo, as
Toledo was already dead even before the filing of the ERROR OF ERROR OF JUDGMENT
complaint against him and his wife before the trial JURISDICTION
court. Court exercises a The court is already
jurisdiction not vested with jurisdiction
Q: Is jurisdiction over the person of the defendant conferred upon it by over the subject matter
required in all cases? law
A: NO. Jurisdiction over the person of the defendant When the court, Mistakes in the
is only necessary in actions in personam. On the other although vested with appreciation of facts
hand, in actions in rem or quasi-in rem, jurisdiction jurisdiction, acts with and evidence leading to
over the person of the defendant is not a prerequisite grave abuse of an erroneous judgment.
to confer jurisdiction on the court provided that the discretion amounting to
court acquires jurisdiction over the res. lack or excess of
jurisdiction.
However, in actions in rem and quasi-in rem,
summons must still be served upon the defendant for JURISDICTION OVER THE SUBJECT MATTER VS.
the purpose of satisfying the requirement of due VENUE
process.

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 JURISDICTION OVER VENUE
THE SUBJECT MATTER
NOTE: The prosecution
Authority of the court Place where the case is and defense may
to hear and determine a to be heard or tried stipulate that the crime
case occurred within the
Page | 17
A matter of substantive A matter of procedural territorial jurisdiction of
law law the court. In this case,
Cannot be waived by May be waived by the the accused is estopped
the parties parties from questioning such
Fixed by law and cannot May be conferred by fact.
be conferred by the the act or agreement of
parties the parties
The court may dismiss The court may not
the case motu proprio. dismiss motu proprio JURISDICTION OF SPECIFIC COURTS
the case
FUNDAMENTALS
May be raised at any Objection to an
stage of the improper venue must Classification of Courts
proceedings since it is be raised in the answer.
conferred by law. 1. Regular Courts
a. Supreme Court;
NOTE: The distinction refers only to jurisdiction over b. Court of Appeals;
the subject matter, and not over persons. Jurisdiction c. Regional Trial Courts; and
over persons may be waived, and must be raised in d. Metropolitan Trial Courts, Municipal Trial
the answer as an affirmative defense. Courts in Cities, Municipal Trial Courts,
Municipal Circuit Trial Courts (First-Level
VENUE IN CIVIL VS. CRIMINAL CASES Courts)
2. Special Courts
VENUE IN CIVIL CASES VENUE IN CRIMINAL a. Sandiganbayan
CASES b. Court of Tax Appeals; and
c. Shari’a District Courts, Shari’a Circuit Courts
Procedural, rather than Venue is jurisdictional, 3. Quasi-Courts or Quasi-Judicial Agencies
substantive or it being an essential
jurisdictional. (Nocum v. element of jurisdiction. Courts of Original Jurisdiction
Tan, G.R. No. 145022, (Id.)
Sept. 23, 2005) Courts exercising jurisdiction in the first instance.

It relates to the place of The place where the Courts of Appellate Jurisdiction
trial or geographical crime was committed
location in which an determines not Superior courts reviewing and deciding cases
action or proceeding previously decided by a lower court.
only the venue of the
should be brought and
action but constitutes Courts of General Jurisdiction
not to the jurisdiction of
an essential element of
the court. (Id.) Those with competence to decide on their own
jurisdiction.
jurisdiction and to take cognizance of all cases, civil
May be waived by the Cannot be waived, as and criminal, of a particular nature.
parties. venue is jurisdictional.
Courts of Special Jurisdiction

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 Those which have only a special jurisdiction for a 2. Mandamus,
particular purpose or are clothed with special powers 3. Prohibition,
for the performance of specified duties beyond which 4. Habeas Corpus, and
they have no authority of any kind. 5. Quo Warranto.

Concurrent Jurisdiction Exclusive Original Jurisdisction

Page | 18
Also known as coordinate jurisdiction, is the power of 1. Petitions for certiorari, prohibition and
different courts to take cognizance of the same mandamus against:
a. Court of Appeals (Sec. 17, R.A. 296);
subject matter. Where there is concurrent
b. Commission on Elections (Sec 7, Art. IX,
jurisdiction, the court first taking cognizance of the
Constitution);
case assumes jurisdiction to the exclusion of other c. Commission on Audit (Sec. 7, Art. IX,
courts. The concurrent jurisdiction among courts of Constitution);
different ranks is subject to the doctrine of hierarchy d. Sandiganbayan (P.D. 1606 as
of courts. amended); and e. Court of Tax Appeals
(en banc)
JURISDICTION OF THE SUPREME COURT 2. Disciplinary proceedings against members of
the Bar and court personnel (Rule 56, Section 1,
Cases to be decided by SC En Banc Rules of Court).
1. All cases involving the constitutionality of a treaty, Notable doctrines on SC’s Original Jurisdiction
international or executive agreement, or law;
Parties seeking to question the resolutions of the
2. Cases involving the constitutionality, application or
Office of the Ombudsman in criminal cases or non-
operation of presidential decrees, proclamations,
administrative cases, may file an original action for
orders, instructions, ordinances and other
certiorari with the SC, not with the CA, when it is
regulations;
believed that the Ombudsman acted with grave
3. A case where the required number of votes in a abuse of discretion (Ombudsman v. Heirs of
division is not obtained; Margarita Vda. De Ventura, G.R. No. 151800, citing
Estrada v. Desierto, G. R. No. 156160).
4. A doctrine or principle laid down in a decision
rendered en banc or by division is modified, or The certiorari jurisdiction of the SC has been
reversed; and rigorously streamlined, such that Rule 65 only admits
cases based on the specific grounds provided therein.
5. All other cases required to be heard en banc under The Rule applies if there is no appeal or any other
the Rules of Court (Sec. 5, Art. VIII, 1987 Constitution). plain, speedy, and adequate remedy in the ordinary
course of law. The independent action for certiorari
Original Jurisdiction will lie only if grave abuse of discretion is alleged and
proven to exist (Lagua v. CA, G.R. No. 173390).
Pursuant to Sec. 5(1) of Art. VIII of the Constitution,
the Supreme Court has original jurisdiction over cases Petitions for certiorari and prohibition are
affecting: appropriate remedies to raise constitutional issues
and to review and/or prohibit or nullify the acts of
1. Ambassadors,
legislative and executive officials. “With respect to
2. Other public ministers, and
3. Consuls. the Court, however, the remedies of certiorari and
prohibition are necessarily broader in scope and
Likewise, the SC also has original jurisdiction over reach, and the writ of certiorari or prohibition may be
Petitions for: issued to correct errors of jurisdiction committed not
only by a tribunal, corporation, board or officer
1. Certiorari, exercising judicial, quasi-judicial or ministerial

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

functions but also to set right, undo and restrain any 1. All cases in which the constitutionality or validity
act of grave abuse of discretion amounting to lack or of any treaty, international or executive
excess of jurisdiction by any branch or instrumentality agreement, law, presidential decree,
of the Government, even if the latter does not proclamation, order, instruction, ordinance, or
exercise judicial, quasi-judicial or ministerial regulation is in question.
functions.” 2. All cases involving the legality of any tax, impost,
assessment, or toll, or any penalty imposed in Page | 19
Concurrent Original Jurisdiction relation thereto.
3. All cases in which the jurisdiction of any lower
1. With the Court of Appeals court is in issue.
a. Petitions for certiorari, prohibition, and 4. All criminal cases in which the penalty imposed
mandamus against: is reclusion perpetua or higher.
i. Regional Trial Courts 5. All cases in which only an error or question of
ii. Civil Service Commission; law is involved (Article VIII, Section 5(2), 1987
iii. Central Board of Assessment Appeals Constitution).
iv. National Labor Relations Commission
v. Other Quasi-Judicial Agencies (B.P. The SC has appellate jurisdiction over petitions for
129); review on certiorari (appeal by certiorari under Rule
NOTE: Although there is concurrent 45) against the following:
jurisdiction as the Constitution grants
this to the SC, SC A.M. No. 07-7-12 1. CA;
issued on 4 December 2007 provides 2. Sandiganbayan;
that if the petition involves an act or 3. RTC
omission of a Quasi-Judicial Agency, a. Pure questions of law (Sec. 1, Rule 45)
the petition shall only be cognizable by and
the CA and must be filed there. b. Cases falling under Sec. 5, Art. VIII,
b. Petitions for a Writ of Kalikasan (Rules 7, 1987 Constitution (refer above)
Section 3, AM No. 09-6-8-SC) 4. CTA in its decisions rendered en banc;
2. With both the CA and RTC 5. MetC, MTC, MCTC in the exercise of their
a. Petitions for certiorari, prohibition and delegated jurisdiction, where the decision, had
mandamus against lower courts and it been rendered by RTC, would be appealable
bodies; directly to the SC (Sec. 34, B.P. 129, as amended)
b. Petitions for Qui Warranto; and
Only pure questions of law are involved when no
c. Petitions for Writs of Habeas Corpus
evidentiary matters are to be evaluated by the SC. If
NOTE: This jurisdiction is subject to the the only issue is whether or not the conclusions of the
doctrine of hierarchy of courts (Section 9 (1), trial court are in consonance with law and
21 (1), B.P. 129). jurisprudence, then the issue is a pure question of law
(Urbano v. Chavez, G.R. No. 87977).
3. With the RTC – in cases affecting ambassadors,
NOTE: The SC has held that appeals from quasi-
public ministers and consuls. (Sec. 21 (2) B.P.
129). judicial agencies – even only on a question of law
4. With the CA, RTC and Sandiganbayan alone – may be brought to the CA, via Rule 43 of the
a. Petitions for a Writ of Amparo; and Rules of Court. This constitutes an exception to the
b. Petitions for a Writ of Habeas Data. general rule that appeals on pure questions of law are
brought to the SC (Santos v. Committee on Claims
Appellate Jurisdiction Settlement, G.R. No. 158071).

The SC shall have the power to review, revise, reverse, In the case of Asian Terminals, Inc. v. Simon
modify, or affirm on appeal or certiorari, as the law or Enterprises (G.R. No. 177116, Feb. 27, 2013), the
the Rules of Court may provide, final judgments and Court presents the following exceptions to the rule
orders of lower courts in:
CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021
 that only questions of law may be entertained by the b. Petitions for Writ of Kalikasan (Section
Court in a petition for review on certiorari: 3, Rules of Procedure for
Environmental Cases)
1. the conclusion is grounded on speculations, 2. With SC and RTC
surmises or conjectures; a. Petitions for certiorari, prohibition and
2. the inference is manifestly mistaken, absurd or mandamus against lower courts and
Page | 20 impossible; bodies;
3. there is grave abuse of discretion; b. Petitions for Quo Warranto; and
4. the judgment is based on a misapprehension of c. Petitions for writs of habeas corpus
facts; 3. With SC, RTC and Sandiganbayan
5. the findings of fact are conflicting; a. Petitions for a Writ of Amparo; and
6. there is no citation of specific evidence on which b. Petitions for Habeas Data
the factual findings are based;
7. the findings of absence of facts are contradicted Exclusive Appellate Jurisdiction
by the presence of evidence on record;
8. the findings of the Court of Appeals are contrary 1. By Ordinary Appeal
to those of the trial court; a. From judgments of RTC and Family
9. the Court of Appeals manifestly overlooked Courts (Sec. 9(3), B.P. 129, as
certain relevant and undisputed facts that, if amended; Sec. 14, R.A. 8369); and
properly considered, would justify a different b. Over decisions of the MTCs in cadastral
conclusion; or land registration cases pursuant to
10. the findings of the Court of Appeals are beyond its delegated jurisdiction (Sec. 34, B.P.
the issues of the case; and 129, as amended by R.A. 7691)
11. such findings are contrary to the admissions of 2. By Petition for Review
both parties.” a. From judgments of the RTC rendered in
its appellate jurisdiction (B.P. 129, as
JURISDICTION OF THE COURT OF APPEALS amended, Sec. 22; Rule 42; B.P. 129,
Sec. 9)
Exclusive Original Jurisdiction b. From decisions, resolutions, orders or
awards of the Civil Service Commission
Actions for annulment of judgments of the RTC (Sec. and other bodies mentioned in Rule 43
9(2), B.P. 129; Sec. 1, Rule 47) (B.P. 129, Sec. 9(3));

Concurrent Original Jurisdiction NOTE: The enumeration of quasi-judicial

agencies under Section 1, Rule 43 is not
1. With the Supreme Court exclusive (Wong v. Wong, G.R. No. 180364
a. Petitions for certiorari, prohibition, and (2014), citing Cayao-Lasam v. Sps. Ramolete,
mandamus against: G.R. No. 159132).
i. RTC;
ii. Civil Service Commission; c. From decisions of the Office of the
iii. Central Board of Assessment Ombudsman in administrative
Appeals; disciplinary cases; and
iv. Other quasi-judicial agencies d. Other bodies mentioned in Rule 43 (BP
mentioned in Rule 43; and Blg. 129, Sec. 9, par. (3)).
v. National Labor Relations
Commission JURISDICTION OF THE SANDIGANBAYAN

NOTE: Under SC A.M. No. 07-7-12, if the Exclusive Original Jurisdiction

petition involves an act or omission of a
Quasi-Judicial Agency, the petition shall only 1. Violations of R.A. 3019 or the Anti-Graft and
be cognizable by the CA. Corrupt Practices Act;
2. Violations of R.A. 1379 or An Act Declaring
Forfeiture in Favor of the State Any Property

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 Found to Have Been Unlawfully Acquired by Any prejudice to the provisions of the
Public Officer or Employee and Providing for the Constitution
Proceedings Therefor; e. All other national and local officials
3. Bribery (Chapter II, Sec. 2, Title VII, Book II, RPC), classified as Grade 27 and higher under
where one or more of the principal accused are R.A. 6758.
occupying the following positions in the 4. Other offenses or felonies whether simple or
government, whether in a permanent, acting or complexed with other crimes committed by the Page | 21
interim capacity, at the time of the commission public officials and employees mentioned in
of the offense. subsection a. of section 4 (as amended) in
a. Officials of the executive branch occupying relation to their office;
the positions of regional director and 5. Civil and criminal cases filed pursuant to and in
higher, otherwise classified as Grade 27 connection with E.O. Nos. 1, 2, 14-A; and
and higher, of the Compensation and 6. Petitions for mandamus, prohibition, certiorari,
Position Classification Act of 1989 (R.A. habeas corpus, injunctions, and other ancillary
6758), specifically including: writs and processes in aid of its appellate
i. Provincial governors, vice-governors, jurisdiction, and petitions of similar nature,
members of the sangguniang including quo warranto, arising or that may arise
panlalawigan, and provincial in cases filed or which may be filed under
treasurers, assessors, engineers, and Executive Order Nos. 1, 2, 14 and 14-A, issued in
other provincial department heads 1986 (Section 4, P.D. 1606, as amended by R.A.
ii. City mayors, vice-mayors, members of 10660).
the sangguniang panlungsod, city,
treasurers, assessors, engineers, and NOTE: The RTC shall have exclusive original
other city department heads jurisdiction where the information:
iii. Officials of the diplomatic service
occupying the position of consul and 1. Does not allege any damage to the government
higher or any bribery; or
iv. Philippine army and air force colonels, 2. Alleges damage to the government or bribery
naval captains, and all officers of arising from the same or closely related
higher rank; transactions or acts in an amount not exceeding
v. Officers of the Philippine National P1 million (Sec. 4, P.D. 1606, as amended by R.A.
Police while occupying the position of 10660).
provincial director and those holding
the rank of senior superintendent and Subject to rules promulgated by the SC, the cases
higher falling under the jurisdiction of the RTC shall be tried
vi. City and provincial prosecutors and in a judicial region other than where the official holds
their assistants, and officials and office. (Sec. 4, P.D. 1606, as amended by R.A. 10660)
prosecutors in the Office of the
Ombudsman and special prosecutor; Exclusive Original Jurisdiction in RTC, MeTC, MTC,
vii. Presidents, directors or trustees, or and MCTC in lieu of the Sandiganbayan
managers of government-owned or
controlled corporations, state The exclusive original jurisdiction shall be vested in
universities or educational the proper RTC, MeTC, MTC, and MCTC, as the case
institutions or foundations may be, where none of the accused are occupying
b. Members of Congress and officials thereto positions corresponding to Salary Grade 27 or
classified as Grade 27 and up under R.A. higher, or military and PNP officers mentioned
6758 above (Section 4, P.D. 1606, as amended by R.A.
c. Members of the Judiciary without 10660).
prejudice to the provisions of the
Constitution Exclusive Appellate Jurisdiction
d. Chairmen and Members of the
Constitutional Commissions without
CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021
 The Sandiganbayan shall exercise exclusive incapable of pecuniary estimation if the plaintiff also
appellate jurisdiction over final judgments, seeks to the transfer of possession and control of
resolutions or orders of regional trial courts whether properties: In Home Guaranty v. R-II Builders (G.R.
in the exercise of their own original jurisdiction or of No. 192649), an action that sought the nullification of
their appellate jurisdiction as herein provided a Deed of Assignment and Conveyance was
Page | 22 (Section 4, P.D. 1606, as amended by R.A. 10660). characterized by the respondent on an MR before the
SC as one involving a subject matter incapable of
Expanded Exclusive Original Jurisdiction pecuniary estimation. The SC disagreed and held that
since the action was not solely for the annulment of
The Sandiganbayan shall have exclusive original
the Deed of Assignment and Conveyance – indeed,
jurisdiction over petitions for the issuance of the writs
the respondent consistently sought the transfer of
of mandamus, prohibition, certiorari, habeas corpus,
possession and control of properties – following the
injunctions, and other ancillary writs and processes in
its ruling in Ruby Shelter Builders and Realty
aid of its appellate jurisdiction and over petitions of
Development Corp. v. Formaran III, G.R. No. 175914
similar nature, including quo warranto, arising or that
(2009), the subject of the action was not incapable of
may arise in cases filed or which may be filed under
pecuniary estimation.
E.O. 1, 2, 14 and 14-A, issued in 1986: Provided, that
the jurisdiction over these petitions shall not be However, if the principal nature of an action to cancel
exclusive of the SC (Sec. 4, P.D. 1606, as amended by a contract to sell, where the defendant has already
R.A. 10660). taken possession of the property, involves a
determination on whether a suspensive condition has
Concurrent Original Jurisdiction
been fulfilled – then the subject matter involved is
The Sandiganbayan has concurrent original one that is incapable of pecuniary estimation.
jurisdiction with the SC, CA, and RTC for petitions for
In the case of Olivarez Realty v. Castillo (G.R. No.
writs of amparo (Sec. 3, Rule on the Writ of Amparo)
196251), the action instituted in the trial court was
and habeas data (Sec. 3, Rule on the Writ of Habeas
one for the cancellation of a contract to sell, and prior
Data).
to the institution of the action the defendant had
JURISDICTION OF REGIONAL TRIAL COURTS already proceeded to occupy the property involved.
In this instance, the SC held that the action involved a
Exclusive Original Jurisdiction subject matter that was incapable of pecuniary
estimation. The difference in the ruling of the SC here
1. All civil actions in which the subject of the and in Home Guaranty lies in that fact that in Olivarez
litigation is incapable of pecuniary estimation Realty, what the plaintiff had principally sought was a
(Sec. 19(1), B.P. 129, as amended by R.A. 7691). determination that a suspensive condition for the
Test: Principal Nature of an Action - If it is primarily perfection of the contract had not been fulfilled: “the
for the recovery of a sum of money, the claim is trial court principally determined whether Olivarez
considered capable of pecuniary estimation. On the Realty Corporation failed to pay installments of the
other hand, where the basic issue is something other property’s purchase price as the parties agreed upon
than the right to recover a sum of money, and the in the deed of conditional sale. The principal nature of
money claim is purely incidental to, or a consequence Castillo’s action, therefore, is incapable of pecuniary
of, the principal relief sought, such actions are cases estimation.”
where the subject of the litigation is incapable of
In Heirs of Bautista v. Lindo (G.R. No. 208232), it states
pecuniary estimation (Heirs of Padilla v. Magdua, G.R.
that where an action to redeem a land subject of a
No. 176858 (2010), quoting Singson v. Isabela
free patent was characterized by the SC as one whose
Sawmill, G.R. No. L-27343).
subject matter was incapable of pecuniary estimation
An action to nullify a Deed of Assignment and since the reacquisition of the land was merely
Conveyance is not one involving a subject matter incidental to and an offshoot of the exercise of the

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

right to redeem the land, pursuant to Sec. 119 of CA the cases within their jurisdiction shall be adjudicated
141. by the RTC [Sec. 17, R.A. 8369].

An expropriation suit is incapable of pecuniary 5. All civil actions and special proceedings falling
estimation (Barangay San Roque v. Heirs of Francisco within exclusive original jurisdiction of the Court
Pastor, G.R. No. 138896). of Agrarian Reform [Sec. 19(7), B.P. 129, as
amended by R.A. 7691]. Page | 23
2. Civil actions involving title to, or possession of 6. All cases not within the exclusive jurisdiction of
real property, or any interest therein, where any court, tribunal, person, or body exercising
assessed value exceeds P20,000 outside Metro judicial or quasi-judicial functions [Sec. 19(6),
Manila, or exceeds P50,000 in Metro Manila B.P. 129, as amended by R.A. 7691]. This
[Sec. 19(2), B.P. 129, as amended by R.A. 7691] jurisdiction is often described as the ‘general’
jurisdiction of the RTC making it a court of
XPN: Forcible entry and unlawful detainer cases [Sec. ‘general jurisdiction.’
33(2), B.P. 129, as amended by R.A. 7691] 7. Intra-corporate controversies
a. Cases involving devises or schemes
An action "involving title to real property" means that employed by or any acts, of board of
the plaintiff's cause of action is based on a claim that directors, business associates, its officers
he owns such property or that he has the legal rights or partnership, amounting to fraud and
to have exclusive control, possession, enjoyment, or misrepresentation which may be
disposition of the same. Title is the "legal link detrimental to interest of public and/or of
between (1) a person who owns property and (2) the stockholders, partners, members of
property itself” (Heirs of Sebe v. Heirs of Sevilla, G.R. associations or organizations registered
with SEC;
No. 174497).
b. Controversies arising out of intra-
3. If the amount involved exceeds P300,000 corporate or partnership relations,
outside Metro Manila or exceeds P400,000 in between and among stockholders,
Metro Manila in the following cases (B.P. 129, as members or associates; between any or all
amended by R.A. 7691): of them and corporation, partnership or
a. Actions in admiralty and maritime association of which they are
jurisdiction, where the amount refers to stockholders, members or associates,
demand or claim [Sec. 19(3)]; respectively; and between such
b. Matters of probate (testate or intestate), corporation, partnership or association
where the amount refers to gross value of and the state insofar as it concerns their
estate [Sec. 19(4)]; and individual franchise or right to exist as
c. In all other cases where the amount refers such entity;
to the demand, exclusive of interest, c. Controversies in election or appointments
damages of whatever kind, attorney’s of directors, trustees, officers or managers
fees, litigation expenses, and costs [Sec. of such corporations, partnerships or
19(8)]. associations; and
4. All actions involving the contract of marriage d. Petitions of corporations, partnerships or
and family relations [Sec. 19(5), B.P. 129, as associations to be declared in state of
amended by R.A. 7691], and all civil actions and suspension of payments in cases where
special proceedings falling within exclusive corporation, partnership of association
original jurisdiction of Juvenile and Domestic possesses sufficient property to cover all
Relations Court [Sec. 19(7), B.P. 129, as its debts but foresees impossibility of
amended by R.A. 7691] meeting them when they respectively fall
due or in cases where corporation,
NOTE: This jurisdiction is deemed modified by Sec. 5, partnership or association has no
R.A. 8369, the law establishing the Family Courts. sufficient assets to cover its liabilities, but
However, in areas where there are no Family Courts, is under management of a Rehabilitation

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 Receiver or Management Committee [Sec. relating to status and property relations of
52, Securities and Regulations Code]. husband and wife or those living together under
8. Petitions for declaratory relief [Sec. 1, Rule 63]. different status and agreements, and petitions
for dissolution of conjugal partnership of gains;
Concurrent Original Jurisdiction 5. Petitions for support and/or acknowledgment;
6. Summary judicial proceedings brought under
Page | 24 1. With SC - In cases affecting ambassadors, public the provisions of Family Code;
ministers and consuls [Sec. 21(2), B.P. 129; Sec. 7. Petitions for: a. Declaration of status of children
5(5), Art. VIII, 1987 Constitution]; as abandoned, dependent or neglected children
2. With SC and CA b. Voluntary or involuntary commitment of
a. Petitions for certiorari, prohibition and children c. Suspension, termination or
mandamus against lower courts and bodies; restoration of parental authority and d. Other
b. Petitions for Quo Warranto; cases cognizable under P.D. 603, E.O. 56, s.
c. Petitions for Writs of Habeas Corpus [Sec. 1986, and other related laws
9(1), 21(2), B.P. 129; Sec. 5(5), Art. VIII, 8. Petitions for constitution of family home
Constitution]. 9. Cases against minors cognizable under
3. With SC, CA and Sandiganbayan In Petitions for Dangerous Drugs Act, as amended (now R.A.
Writs of Amparo [Sec. 3, Rule on the Writ of 9165)
Amparo] and Habeas Data [Sec. 3, Rule on the 10. Violations of R.A. 7610, or the “Special
Writ of Habeas Data]. Protection of Children Against Child Abuse,
Exploitation and Discrimination Act” and
Appellate Jurisdiction
11. Cases of domestic violence against Women and
Children [Sec. 5, R.A. 8369].
Appellate jurisdiction over cases decided by lower
courts in their respective territorial jurisdictions, JURISDICTION OF THE METROPLOITAN TRIAL
except those made in the exercise of delegated COURTS, MUNICIPAL TRIUAL COURTS IN CITIES,
jurisdiction, which are appealable in the same manner MUNICIPAL TRIAL COURTS, MUNICIOPAL CIRCUIT
as decisions of the RTC (Sec. 34, B.P. 129, as TRIAL COURTS
amended).
Exclusive Original Jurisdiction
Special Jurisdiction
1. Where the value of personal property, estate, or
SC may designate certain branches of RTC to try amount of demand does not exceed P300,000
exclusively criminal cases, juvenile and domestic outside Metro Manila or does not exceed
relations cases, agrarian cases, urban land reform P400,000 in Metro Manila, exclusive of interest,
cases not falling within the jurisdiction of any quasi- damages of whatever kind, attorney’s fees,
judicial body and other special cases in the interest of litigation expenses, and costs, in the following
justice (Sec. 23, B.P. 129). cases:
a. Civil actions
JURISDICTION OF FAMILY COURTS b. Probate proceedings (testate or
intestate)
Exclusive Original Jurisdiction c. Provisional remedies in proper cases
(Sec. 33(1), B.P. 129, as amended by
1. Criminal cases where one or more accused is R.A. 7691).
below 18 but not less than 9 years old or where 2. Forcible entry and unlawful detainer
one or more victims was a minor at the time of
the commission of offense; NOTE: When defendant raises questions of
2. Petitions for guardianship, custody of children ownership in his pleadings and the question
and habeas corpus in relation to children; of possession cannot be resolved without
3. Petitions for adoption of children and deciding issue of ownership, the latter issue
revocation thereof; shall be resolved only to determine the
4. Complaints for annulment of marriage,
declaration of nullity of marriage and those
CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021
 former issue (Sec. 33(2), B.P. 129, as 3. Municipal Circuit Trial Court – in each circuit
amended by R.A. 7691). comprising such cities and municipalities grouped
together pursuant to law [Sec. 25, B.P. 129].
3. All civil actions involving title to, or possession of,
real property, or any interest therein where assessed 4. Municipal Trial Courts – in municipalities not
value of property or interest therein does not exceed comprised within a metropolitan area and a municipal
Page | 25
P20,000 outside Metro Manila, or does not exceed circuit [Sec. 30, B.P. 129].
P50,000 in Metro Manila (Sec. 33(3), B.P. 129, as
amended by R.A. 7691). JURISDICTION OF THE SHARI’A COURTS

4. Inclusion and exclusion of voters (Sec. 49, Omnibus Exclusive Original Jurisdiction of Shari’a District
Election Code). Courts

Special Jurisdiction 1. All cases involving custody, guardianship,

legitimacy, paternity and filiation arising under the
Special jurisdiction over petition for writ of habeas Code of Muslim Personal Laws;
corpus OR application for bail in criminal cases in the
absence of all RTC judges in the province or city (Sec. 2. All cases involving disposition, distribution and
35, B.P. 129). settlement of estate of deceased Muslims, probate of
wills, issuance of letters of administration of
Delegated Jurisdiction appointment administrators or executors regardless
of the nature or aggregate value of the property;
Delegated jurisdiction of 1st level courts assigned by
SC to hear and decide cadastral and land registration 3. Petitions for the declaration of absence and death
cases covering: for the cancellation and correction of entries in the
Muslim Registries;
1. Lots where there is no controversy or
opposition; 4. All actions arising from the customary contracts in
2. Contested lots, the value of which does not which the parties are Muslims, if they have not
exceed P100,000. the value is to be ascertained: specified which law shall govern their relations; and
a. By the claimant’s affidavit
b. By agreement of the respective 5. All petitions for mandamus, prohibition, injunction,
claimants, if there are more than one; certiorari, habeas corpus and all other auxiliary writs
or and processes in aid of its appellate jurisdiction. [Art.
c. From corresponding tax declaration of 143(1), P.D. 1083]
the real property
Concurrent Jurisdiction of Shari’a District Courts
MTC decisions in cadastral and land registration cases
are appealable in the same manner as RTC decisions 1. Petitions of Muslim for the constitution of the
(Sec. 34, B.P. 129, as amended by R.A. 7691). family home, change of name and commitment of an
insane person to an asylum
First-Level Courts
2. All other personal and legal actions not mentioned
1. Metropolitan Trial Court – in each metropolitan
in par. (d) of the immediately preceding topic,
area established by law [Sec. 25, B.P. 129],
wherein the parties involved are Muslims Except
particularly Metro Manila [Sec. 27, B.P. 129].
those for forcible entry and unlawful detainer, which
2. Municipal Trial Courts in Cities – In every city not shall fall under the exclusive jurisdiction of the
part of a metropolitan area [Sec. 29, B.P. 129]. Municipal Circuit Court (now MTC under B.P. 129, as
amended by R.A. 7691]

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 3. All special civil actions for interpleader or REVISED RULES ON SUMMARY PROCEDURE, AND
declaratory relief wherein the parties are Muslims or BARANGAY CONCILIATION
the property involved belongs exclusively to Muslims.
[Art. 143(2), P.D. 1083] Cases covered by the Revised Rules of Procedure for
Small Claims Cases
NOTE: Concurrent with existing civil courts.
Page | 26 The Revised Rules shall govern the procedure in
Appellate Jurisdiction of Shari’a District Courts actions before the MeTCs, MTCCs, MTCs and MCTCs
for payment of money where the value of the claim
The appellate jurisdiction of Shari’a District Courts does not exceed PHP 200,000 exclusive of interest
shall be over all cases tried in Shari’a Circuit Courts and costs (Sec. 2, A.M. No. 08- 8-7-SC, February 1,
within their territorial jurisdiction [Art. 144, P.D. 2016)
1083].
NOTE: The limit has been raised to PHP
Exclusive original jurisdiction of Shari’a Circuit 300,000, to take effect on August 1, 2018
Courts (A.M. No. 08-8-7-SC, July 10, 2018).
1. All cases involving offenses defined and punished However, this was superseded in a later
under P.D. 1083 or a Decree to ordain and promulgate resolution, amending the jurisdictional
a code recognizing the system of Filipino Muslim amount of these courts under Republic Act
Laws, codifying Muslim Personal Laws, and providing No. 7691 to PHP 400,000 for the MeTCs and
for its administration and for other purposes; PHP 300,000 for the MTCCs, MTCs, and
MCTCs, exclusive of interest and costs, to
2. All civil actions and proceedings between parties
take effect on April 1, 2019 (SC Resolution,
who are Muslims or have been married in accordance
February 26, 2019).
with Article 13, P.D. 1083 involving disputes relating
to: Applicability

a. Marriage; All actions which are purely civil in nature, where the
b. Divorce recognized under P.D. 1083; claim or relief prayed for by the plaintiff is solely for
c. Betrothal or breach of contract to marry;
payment or reimbursement of sum of money.
d. Customary dowry (mahr);
e. Disposition and distribution of property The claim or demand may be:
upon divorce;
f. Maintenance and support, and consolatory 1. For money owed under a contract of lease, loan,
gifts (mut’a); and services, sale, or mortgage;
g. Restitution of marital rights
2. For liquidated damages arising from contracts; or
3. All cases involving disputes relative to communal
properties (Article 155, P.D. 1083). 3. The enforcement of a barangay amicable
settlement or an arbitration award involving a money
The Shari’a District Court or the Shari’a Circuit Court
claim covered by this Rule pursuant to Sec. 417 of the
shall constitute an Agama Arbitration Council (Art.
LGC (Sec. 2, A.M. No. 08-8-7- SC, February 1, 2016).
160, P.D. 1083) in cases of divorce by talaq and tafwid
(Art. 161, P.D. 1083) and subsequent marriages (Art. Cases covered by the Rules on Summary Procedure
162, P.D. 1083). The Shari’a Circuit Court may also
constitute a council to settle amicably cases involving 1. All cases of forcible entry and unlawful detainer,
offenses against customary law which can be settled irrespective of the amount of damages or unpaid
without formal trial (Art. 163, P.D. 1083). rentals sought to be recovered. However, the
Attorney’s fees awarded shall not exceed PHP 20,000.
JURISDICITION OVER CASES BY THE REVISED RULES
OF PROCEDURE FOR SMALL CLAIMS CASE, THE
CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021
2. All other cases, except probate proceedings where (Section 1, Rule VI, Katarungang Pambarangay Rules;
the total amount of the plaintiff‘s claim does not also see SC Administrative Circular No. 14-93);
exceed PHP 100,000 (outside Metro Manila) or PHP
200,000 (in Metro Manila), exclusive of interest and 9. Disputes where urgent legal action is necessary to
costs (Sec. 1, Revised Rule on Summary Procedure, as prevent injustice from being committed or further
amended by A.M. No. 02-11-09-SC). continued, specifically: a. A criminal case where the
Page | 27
accused is under police custody or detention b. A
Cases covered by Barangay Conciliation petition for habeas corpus by a person illegally
detained or deprived of his liberty or one acting in his
General Rule: behalf c. Actions coupled with provisional remedies,
such as preliminary injunction, attachment, replevin
The Lupon of each barangay shall have the authority
and support pendente lite d. Where the action may
to bring together the parties actually residing in the
be barred by the Statute of Limitations
same municipality or city for amicable settlement of
all disputes. 10. Labor disputes or controversies arising from
employer[1]employee relationship;
Exemptions:
11. Where the dispute arises from the CARL; or
1. Where one party is the government or any
subdivision or instrumentality thereof; 12. Actions to annul judgment upon a compromise
which may be directly filed in court (Supreme Court
2. Where one party is a public officer or employee,
Administrative Circular No. 14-93).
and the dispute relates to the performance of his
official functions; NOTE: Barangay conciliation is a condition
precedent for filing a case. The failure to
3. Offenses punishable by imprisonment exceeding
comply with a condition precedent may be
one (1) year or a fine exceeding P5,000;
raised as an affirmative defense in an answer
4. Offenses where there is no private offended party; under Rule 8, Section 12.

5. Where the dispute involves real properties located PAYMENT OF DOCKET FEES
in different cities or municipalities unless the parties
The rule in jurisdiction is that when an action is filed,
thereto agree to submit their differences to amicable
the filing must be accompanied by the payment of
settlement by an appropriate lupon;
the requisite docket and filing fees.
6. Disputes involving parties who actually reside in
The fees must be paid because the court acquires
barangays of different cities or municipalities, except
jurisdiction over the case only upon payment of the
where such barangay units adjoin each other and the
prescribed fees (Manchester v. CA, G.R. No. 75919,
parties thereto agree to submit their differences to
May 7, 1987).
amicable settlement by an appropriate lupon;
Payment of the full amount of the docket fees is
7. Such other classes of disputes which the President
mandatory and jurisdictional. When the complaint is
may determine in the interest of justice or upon the
filed and the prescribed fees are paid, the action is
recommendation of the Secretary of Justice (Sec. 408,
deemed commenced. The court acquires jurisdiction
LGC);
over the person of the plaintiff and the running of the
8. Any complaint by or against corporations, prescriptive period for the action is interrupted.
partnerships, or juridical entities, since only
This rule was, however, relaxed by the Supreme Court
individuals shall be parties to barangay conciliation
in some cases in which payment of the fee within a
proceedings either as complainants or respondents
reasonable time, but not beyond the prescriptive
period, was permitted.
CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021
 While payment of the prescribed docket fees is a payment of said fee within a reasonable time but also
jurisdictional requirement, even its non-payment at in no case beyond its applicable prescriptive or
the time of filing does not automatically cause the reglementary period.
dismissal of the case, as long as the fee is paid within
the applicable prescriptive or reglementary period, Where the trial court acquires jurisdiction over a
claim by the filing of the appropriate pleading and
Page | 28 more so when the party involved demonstrates a payment of the prescribed filing fee but,
willingness to abide by the rules prescribing such
payment (Proton Pilipinas Corporation v.. Banque subsequently, the judgment awards a claim not
Nationale De Paris). specified in the pleading, or if specified the same has
been left for determination by the court, the
NOTE: Even on appeal, the general rule is that additional filing fee therefor shall constitute a lien on
payment of docket fees within the prescribed period the judgment. It shall be the responsibility of the Clerk
is mandatory for the perfection of the appeal. It is not of Court or his duly authorized deputy to enforce said
simply the filing of the complaint or appropriate lien and assess and collect the additional fee (Sun
initiatory pleading but the payment of the prescribed Insurance v. Asuncion, G.R. No. 79937, February 13,
docket fee that vests a trial court with jurisdiction 1989).
over the subject matter or nature of the action. In
resolving the issue of whether or not the correct If the plaintiff fails to comply with the jurisdictional
amount of docket fees were paid, it is also necessary requirement of payment of the docket fees, the
to determine the true nature of the complaint (The defendant should timely raise the issue of jurisdiction
Heirs of the late Sps. Ramiro v. Sps. Bacaron, G.R. No. or else he would be considered in estoppel.
196874). (Metropolitan Bank vs. Perez citing National Steel
Corp. v. CA)
The Manchester Rule
Q: When do you apply the Manchester Doctrine?
Any defect in the original pleading resulting in
underpayment of the docket fees cannot be cured by A: If there is a deliberate, wilful, and intentional
amendment, such as by the reduction of the claim as, refusal/avoidance/evasion to pay the filing fee
for all legal purposes, there is no original complaint
Q: What is the effect?
over which the court has acquired jurisdiction
(Manchester v. CA, G.R. No. 75919, May 7, 1987). A: The court does not acquire jurisdiction. And
therefore, there is no choice but to dismiss it.
The Sun Insurance Rule
Q: When do you apply Sun Insurance?
While the payment of prescribed docket fee is a
jurisdictional requirement, even its non-payment at A: If there is no deliberate, wilful, and intentional
the time of filing does not automatically cause the refusal/avoidance/evasion to pay the filing fee, the
dismissal of the case, as long as the fee is paid within insufficiency of payment was brought about without
the applicable prescriptive or reglementary period, bad faith.
more so when the party involved demonstrates a
willingness to abide by the rules prescribing such Q: What is the effect?
payment. Thus, when insufficient filing fees were
initially paid by the plaintiffs and there was no A: The court acquires jurisdiction. The court should
intention to defraud the government, the not dismiss the case. The court will have to issue an
Manchester rule does not apply. order to pay the prescribed filing fee.

The same rule applies to permissive counterclaims, Incorrect assessment by the docket clerk
third party claims and similar pleadings, which shall
In the case of Intercontinental BroadCasting Corp. vs.
not be considered filed until and unless the filing fee
Hon. Legasto (G.R. No. 169108), the respondent
prescribed therefor is paid. The court may also allow
relied on the assessment made by the docket clerk
CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021
which turned out to be incorrect. The payment of the The term "immediate family" includes those
assessed docket fees, as assessed, negates any members of the same household who are bound
imputation of bad faith or intent to defraud the together by ties of relationship but does not include
government by the respondent. those who are living apart from the particular
household of which the individual is a member (Tokio
Q: John was unintentionally pushed by Nathan. As a Marine Malaya v. Valdez, G.R. No. 150107 and G.R. Page | 29
result, John suffered broken legs. He needs to pay No. 150108).
P500,000 to the hospital. He filed before the RTC a
case to claim P500,000 as damages against Nathan. Q: Who is an indigent party?
After a few days, however, he died in connection with
the broken legs. The heirs of Jordan decided to go to A: For a party to be considered by the court to be
the RTC for the additional loss of earning capacity. Is indigent and therefore exempted to pay the filing fee,
there a need to pay an additional filing fee? he or she must be:

A: Yes, the loss of earning capacity is included in 1. One whose gross income and that of his
assessing the proper filing fee to be paid. Failure to immediate family do not exceed the amount
pay additional filing fee shall constitute a lien on the double the monthly minimum wage of an
judgment. employee; and

As it currently stands, Rule 141 of the Rules of Court 2. Who does not own a real property with a
concerns the amount of the prescribed filing and fair market value of P300,000.
docket fees which bestows jurisdiction to entertain
Q: Dominic is an unemployed person living alone in a
pleadings, whose amount is determined by the fair
house he owns in Ayala Alabang. He wants to file a
market value of the real property in litigation stated
case for collection of sum of money against Monico.
in the current tax declaration or current zonal
Is Dominic exempted to pay the prescribed filing fee?
valuation of the BIR or the stated value of the real or
personal property in litigation as alleged by the A: No. While Dominic met the income criterion, he did
claimant. (Foronda-Crystal v. Son, G.R. No. 221815, not qualify because of the second criterion. He owns
November 29, 2017) a house in Ayala Alabang, which is a very expensive
neighborhood.
NOTE: This new rule, however, should only
refer to the acquisition of jurisdiction by the NOTE: To be considered an indigent party,
courts through the payment of the the two (2) criteria must be met.
prescribed filing and docket fees. When it Compliance to one does not suffice.
comes to the delineation of the jurisdictions
of the first and second level courts, it is the ADHERENCE OF JURISDICTION
assessed value of the real property as
alleged in the complaint, and if not alleged, Doctrine of Adherence of Jurisdiction
through a facial examination of the
General Rule:
documetns already attached to the
complaint. Once jurisdiction has attached, it cannot be ousted by
subsequent happenings or events, although of a
Indigent Party
character which would have prevented jurisdiction
For purposes of a suit in forma pauperis, an indigent from attaching in the first instance.
litigant is not really a pauper, but is properly a person
Even finality of the judgment does not totally deprive
who is an indigent although not a public charge,
the court of jurisdiction over the case. What the court
meaning that he has no property or income sufficient
loses is the power to amend, modify or alter the
for his support aside from his labor, even if he is self-
judgment. Even after the judgment has become final,
supporting when able to work and in employment.
CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021
 the court retains jurisdiction to enforce and execute the denial of the fundamental right of due process is
it. apparent, a decision rendered in disregard of that
right is void for lack of jurisdiction (Apo Cement v.
When a court of competent jurisdiction acquires Mingson Mining, G.R. No. 206728, November 12,
jurisdiction over the subject matter of a case, its 2014).
authority continues, subject only to the appellate
Page | 30 authority, until the matter is finally and completely EFFECT OF LACK OF JURISDICTION
disposed of, and that no court of coordinate authority
is at liberty to interfere with its action (Pacific Ace All acts performed pursuant to it and all claims
Finance Ltd. v. Yanagisawa, G.R. No. 175303, April 11, emanating from it have no legal effect. The decision
2012). rendered by a court without jurisdiction is void and
will never attain finality. Consequently, any writ of
XPNs: execution based on it is also void.

1. Where a subsequent statute expressly prohibits the A void judgment is no judgment at all. It cannot be the
continued exercise of jurisdiction; source of any right nor the creator of any obligation.
All acts performed pursuant to it and all claims
2. Where the law penalizing an act which is emanating from it have no legal effect (Badillo v.
punishable is repealed by a subsequent law; Badillo, G.R. No. 165423, January 19, 2011).

3. When accused is deprived of his constitutional right EXAMPLE: An unlawful detainer case was filed before
such as where the court fails to provide counsel for the RTC. The judge did not dismiss the case for any
the accused who is unable to obtain one and does not reason. Nobody raised the issue of absence of
intelligently waive his constitutional right; jurisdiction over the subject matter. Eventually, the
plaintiff won. The defendant changed counsel when
4. Where the statute expressly provides, or is
the judgment has already attained finality. Plaintiff’s
construed to the effect that it is intended to operate
counsel moved for the issuance of writ of execution
as to actions pending before its enactment;
to execute the judgment.
5. When the proceedings in the court acquiring
Because the court had no jurisdiction, the judgment
jurisdiction is terminated, abandoned or declared
is inherently void. The defendant’s counsel can very
void;
well oppose the issuance of a writ of execution. As a
6. Once appeal has been perfected; or general rule, a writ of execution, as a matter of right,
will issue once the decision has already attained
7. Curative statutes. finality. However, no writ can be issued if the
judgment is inherently void. The period of time will
EXAMPLE: X filed a case for collection of P500,000 never cure that defect.
before the RTC. Three (3) months after filing, and
after service of summons, a new law was passed and The issue on the validity of the judgment can be raised
effected. The new law expanded the jurisdiction of even first time on appeal. However, in Tijam v.
the MTC. The MTC now has jurisdiction of amounts up Sibonghanoy (G.R. No. L-21450, July 14, 2008), the
to P1,000,000. Supreme Court did not apply this rule because the
case has been pending for 15 years. It is now barred
Here, the jurisdiction of the RTC over X’s case will not by the principle on laches.
be ousted because the new law is not curative in
nature. However, where there is a violation of basic The rule is that jurisdiction over the subject matter is
constitutional rights, courts are ousted from their conferred upon the courts exclusively by law, and as
jurisdiction. The violation of a party’s right to due the lack of it affects the very authority of the court to
process raises a serious jurisdictional issue which take cognizance of the case, the objection may be
cannot be glossed over or disregarded at will. Where raised at any stage of the proceedings. However,

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

considering the facts and circumstances of the committee or rehabilitation receiver to effectively
present case, a party may be barred by laches from exercise its/his powers free from any judicial or
invoking this plea for the first time on appeal for the extrajudicial interference that might unduly hinder or
purpose of annulling everything done in the case with prevent the 'rescue' of the debtor company. To allow
the active participation of said party invoking the plea such other action to continue would only add to the
(Tijam v. Sibonghanoy, G.R. No. L[1]21450, July 14, burden of the management committee or Page | 31
2008). rehabilitation receiver, whose time, effort and
resources would be wasted in defending claims
Q: Do you have to file a motion for the court to against the corporation instead of being directed
dismiss the case on the ground of lack of jurisdiction toward its restructuring and rehabilitation (PAL vs
over the subject matter? Kurangking G.R. No. 146698, September 24, 2002).

A: No. The court, on its own, can order the dismissal RESIDUAL JURISDICTION
of the case, if based on the allegations of the pleading,
the court does not have jurisdiction over the subject Refers to the authority of the trial court to issue
matter. An action for the annulment of a void orders for the protection and preservation of the
judgment, like the remedy of appeal, is a statutory rights of the parties which do not involve any matter
right. No party may invoke it unless a law expressly litigated by the appeal (DBP v. Hon. Carpio, G.R. No.
grants the right and identifies the tribunal which has 195450, February 1, 2017).
jurisdiction over this action. While a void judgment is
no judgment at all in legal contemplation, any action Residual jurisdiction presupposes that even if,
to challenge it must be done through the correct technically, the court has already lost its jurisdiction
remedy and filed before the appropriate tribunal. by reason of a notice of appeal duly approved, such
Procedural remedies and rules of jurisdiction are in court can still exercise limited jurisdiction on matters
place in order to ensure that litigants are able to not subject to the controversy, provided that the
employ the proper legal tools to obtain complete records are still with it.
relief from the tribunal fully equipped to grant it
Before the trial court can be said to have residual
(Imperial v. Hon. Armes, G.R. No. 178842, January 30,
jurisdiction over a case, a trial on the merits must
2017).
have been conducted; the court rendered judgment;
SUSPENDED JURISDICTION and the aggrieved party appealed therefrom (Id.).

In PAL vs Kurangking (G.R. No. 146698, September 24, Residual Jurisdiction Exercised by the Trial Court
2002), the Muslim Filipinos returned to Manila from
1. Issue orders for the protection and preservation
their pilgrimage abroad. They claim that their
of the parties which do not involve any matter
luggages were lost by the Philippine Airlines (PAL). litigated by the appeal;
They sued PAL before the RTC for breach of contract. 2. Approve compromise agreements by the parties
After some time, PAL suffered serious business losses after the judgment has been rendered;
as a result of Asian economic crisis. PAL had to file a 3. Allow appeals of indigent litigants;
petition for rehabilitation and then was placed under 4. Order execution pending appeal in accordance
rehabilitation. with Sec. 2, Rule 39; and
5. Allow withdrawal of appeal.
The RTC definitely has the jurisdiction over the claims
of the passengers but there was an intervening event, NOTE: This must be done prior to the transmittal of
which suspended the jurisdiction of the trial court and the original record to the appellate court in case of
required all the plaintiffs to file their claims before the ordinary appeal, and until the CA gives due course to
rehabilitation court. the petition, in case of a petition for review.

The reason for suspending actions for claim against

the corporation is to enable the management
CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021
 Q: Why is it important that the records of the case the proper venue of appeals and/or the appropriate
are still with the trial court to exercise residual forum for the issuance of extraordinary writs. Thus,
jurisdiction? although this Court, the CA, and the RTC have
concurrent original jurisdiction over petitions for
A: The trial court judge cannot make a ruling if the certiorari, prohibition, mandamus, quo warranto, and
records are not with the trial court anymore. habeas corpus, parties are directed, as a rule, to file
Page | 32
their petitions before the lower-ranked court. Failure
HEIRARCHY OF COURTS
to comply is sufficient cause for the dismissal of the
Concurrent Jurisdiction petition.

It is the power of different courts to take cognizance

of the same subject matter. It is the concurrence of
RULE 1: GENERAL PROVISIONS
jurisdiction among several courts which triggers that
application of the doctrine of hierarchy of courts.
The sole authority that has power to issue Rules of
Doctrine of Hierarchy of Courts Procedure is the Supreme Court .Its issuance has the
force of law and effect; and applicable to all court
Where courts have concurrent jurisdiction over a except as provided otherwise by the Supreme Court (
subject matter, such concurrence of jurisdiction does Sec. 2, Rule 1, RoC)
not grant the party seeking relief the absolute
freedom to file a petition in any court of his choice. A The rules should be uniform but in case of small
case must be filed first before the lowest court claims it can only be invoked in the MTC.
possible having the appropriate jurisdiction.
GR: Strictly Comply with the rules of court.
The doctrine of hierarchy of courts is not an iron-clad
XPNs:
rule. This court has "full discretionary power to take
cognizance and assume jurisdiction over special civil The Rules itself expressly states in Section 2 of Rule 1
actions for certiorari ... filed directly with it for that the rules shall be liberally construed. The Courts
exceptionally compelling reasons or if warranted by has the power not only to liberally construe the rules,
the nature of the issues clearly and specifically raised but also to suspend them, in favor of substantive law
in the petition (Mariano vs. Turla, G.R. No. 187094, or substantial rights. (Radena v. CA, G.R. No. 146611,
February 15, 2017). February 6, 2007)
The doctrine that requires respect for the hierarchy of ● This Court has relaxed the rule on the
courts was created by this court to ensure that every binding effect of counsel’s negligence and
level of the judiciary performs its designated roles in allowed a litigant another chance to present
an effective and efficient manner (Mariano vs Turla his case (1) where the reckless or gross
citing Diocese of Bacolod vs. Commission on negligence of counsel deprives the client of
Elections). due process of law; (2) when application of
the rule will result in outright deprivation of
The principle of hierarchy of courts requires that the client’s liberty or property; or (3) where
resources should be made to the lower courts before the interests of justice so require. (Radena v.
they are made to the higher courts. Parties must CA, G.R. No. 146611, February 6, 2007)
observe the hierarchy of courts before they can seek
relief from the Supreme Court.
● Concomitant to a liberal application of the
rules of procedure should be an effort on the
NOTE: You have to put the justification for a direct
part of the party invoking liberality to
resort to a higher court in the first pages of the
adequately explain his failure to abide by the
pleading; otherwise, the case will be dismissed. This
rules. (Vda, De Victoria v. CA, G.R. No.
doctrine of hierarchy of courts guides litigants as to 147550, January 26, 2005)
CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021
Civil Action Real actions

A civil action is one by which a party sues another for Real actions involve real property such as recovery of
the enforcement or protection of a right, or the ownership, possession or any incident involving the
prevention or redress of a wrong real property.

A civil action may either be ordinary or special. Both Personal actions Page | 33
are governed by the rules for ordinary civil actions,
subject to the specific rules prescribed for a special Personal actions involve personal property such as
civil action. (Sec 3(a), Rule 1, RoC) chattel mortgage

An original special civil action may be converted into IN REM, IN PERSONAM, QUASI IN REM
an ordinary an action. e.g. filing of a breach or
The purpose of determining if the action is In rem, in
violation of an instrument in declaratory relief. (Sec.
personam or quasi in rem is important for the
6, Rule 63, RoC)
determination of the jurisdiction over the person.
Criminal Action (Important in Rule 14 and 39)

A criminal action is one by which the State prosecutes Action In Rem

a person for an act or omission punishable by law.
An action in rem is binding against the whole world.
(Sec. 3(b), Rule 1, RoC)
Ex: In registration of title under the Torrens system.
Special Proceedings
Even if a person did not participate in the proceedings
A special proceeding is a remedy by which a party (or has not received summons) and the court granted
seeks to establish a status, a right, or a particular fact. the registration and an OCT is issued then such person
(Sec. 3(c), Rule 1, RoC) would also be bound to the decision.

NOTE: In special proceedings, it is not an enforcement Ex: petition for adoption, correction of entries in the
of right but rather to establish establish a status, a birth certificate; or annulment of marriage; nullity of
right, or a particular fact. e.g. legitimacy marriage; petition to establish illegitimate filiation;
registration of land under the Torres system; and
Ordinary Action forfeiture proceedings

There must be real parties with conflicting or adverse An Action in Personam

claims.
Refers to the personal liabilities of the parties; Binding
Q: What is a claim? only as against the parties, their privies, their
successors-in-interest and heirs but not against the
A: A claim is a right possess by one against another, whole world
the moment said claim is filed in court.
Its purpose is to establish a case against a particular
PERSONAL AND REAL ACTIONS person or property related to him

The purpose of determining if an action is real or Ex: collection of sum of money and damages; action
personal is important for the determination of the for unlawful detainer or forcibly entry; action for
venue. specific performance; action to enforce a foreign
judgment in a complaint for a breach of contract.
It may also be important for the determination of the
jurisdiction over the subject matter. e.g. in cases of Action Quasi in Rem
the whether the subject matter is a real property or
personal property and the assessed value of such
CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021
 There is a judgement between the parties but it party in the case would be bound by the judgement
relates to a specific property. Action brought to a as the proceeding is in rem.
particular defendant but the real motive is to subject
that real property to certain things. Q: P, who lives in Makati, borrowed money,
evidence by a promissory note, from D, who lives in
Ex: suits to quiet title; actions for foreclosure; and Manila. P then received a letter from the D that the
Page | 34 attachment proceedings. latter would foreclose the property of the former in
Baguio which was mortgage to D. P filed a case
In Frias vs. Alcayde, the court held that: “In actions in before the court of Makati. P sought to annul the
personam, the judgment is for or against a person promissory note and to annul the real estate
directly. Jurisdiction over the parties is required in mortgage. D then alleged that the it should be filed
actions in personam because they seek to impose in the court of Baguio as it is an action in rem. Is the
personal responsibility or liability upon a person. argument of D meritorious?

"In a proceeding in rem or quasi in rem, jurisdiction A: No, the argument of D is unmeritorious. (1) The
over the person of the defendant is not a prerequisite issue in this case is venue hence the question should
to confer jurisdiction on the court, provided that the be if it is a real or personal action not a question of in
latter has jurisdiction over the res. (Frias vs. Alcayde, rem, in personam or quasi in rem.
G.R. No. 194262, February 28, 2018)
(2) The action filed was a personal action because the
Q: P and D executed a deed of absolute sale property has not yet been foreclosed. Hence, venue
pertaining to a property owned by P. Subsequently, should be where either the residence of the plaintiff
P then sought to annul the Deed of absolute Sale for or defendant at the election of the plaintiff.
failure of D to comply with his obligations. The court
rendered a judgement in favor of P. However, NOTE: if there is already a foreclosure and the
unknown to P, D mortgage the said property to the complaint filed was for the nullification of the real
bank and the bank in turn sold the same G. P then estate mortgage then it is a real action in which case
filed a case for forcible entry against the bank and G. venue should be where the property lies. (Go v. UCPB,
Can P use the judgement (in the annulment case) to G.R. No. 156187; November 11, 2004)
justify and hold the bank and G liable?
CASES NOT APPLICABLE
A: P cannot use the judgement in the annulment case
because the proceeding in the annulment case is an These Rules shall not apply to election cases, land
action in personam. As only the parties in interest, registration, cadastral, naturalization and insolvency
their privies, their heirs and successors-in-interest are proceedings, and other cases not herein provided for,
bound by the judgement. except by analogy or in a suppletory character and
whenever practicable and convenient. (Sec 4, Rule 1,
Since they were not impleaded as parties and given RoC)
the opportunity to participate in the annulment case,
the final judgment in said case cannot bind the bank COMMENCEMENT OF ACTION
and G. “No man shall be affected by any proceeding
A civil action is commenced by the filing of the original
to which he is a stranger, and strangers to a case are
complaint in court. If an additional defendant is
not bound by any judgment rendered by the court.”
impleaded in a later pleading, the action is
Only real parties in interest in an action are bound by
commenced with regard to him on the dated of the
the judgment therein. (Muñoz v. Atty. Yabut, G.R. No.
filing of such later pleading, irrespective of whether
142676, June 6, 2011)
the motion for its admission, if necessary, is denied by
NOTE: In the question cited above, if the case filed is the court. (Sec 5, Rule 1, RoC)
to have the land titled, instead of an annulment case
Q: In January 1, 2000 X & Y executed a promissory
then all person, even those who were not made a
note and a surety agreement in favour of Z to be paid
CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021
on January 1, 2005. X & Y did not pay the loan Q: D borrowed money from P. On due date and
despite demand. In 2010, Z sued X. In 2014, Z filed a despite demand, D failed to pay. P is now suing D. Is
motion to admit an amended complaint to implead there a cause of action?
Y. In 2017, the court granted the said motion. In
2018, summons and the compliant were served to Y. A: there is a cause of action. (1) P has the right to be
Y then moved to have the complaint dismissed on paid; (2) D has the obligation to pay P; and (3) there is
Page | 35
the ground of prescription. Is Y correct? a breach for failure to pay the obligation.

A: Y is incorrect. Under the laws in obligation and Q: What if the due was on December 31, 2010.
contract the prescriptive period in a breach of However, P sued D on August 15, 2010. Is there a
contract is 10 years. In January 1, 20005 when both X cause of action?
& Y failed to pay the loan they already incurred the
breach hence the last of the prescriptive period A: There is no cause of action. As of August 15, 2010
should be January 1, 2015. there is no yet a breach of obligation. D now may file
an affirmative defense stating that the complaint
Pursuant to Sec. 5, Rule 1, of the RoC, as long as the lacks a cause of action.
motion was filed within the prescriptive period,
regardless of whether the said motion was resolved Q: D borrowed money from P. The said money was
after the prescriptive, the filing is still within the the hard earned money of P from working for many
prescriptive period. years. On maturity date, D did not pay. P sued D for
collection of sum of money and to compel D to pay
moral and exemplary damages. How many causes of
RULE 2: CAUSE OF ACTION action does P have?

Every ordinary civil action must be based on a cause A: There is only 1 cause of action as there is only 1
of action. (Sec 1, Rule 2, RoC) omission (failure to pay) that gave rise to the number
of reliefs. A single act or omission can be violative of
Cause of Action various rights at the same time but where there is
only one delict of wrong, there is but a single cause of
A cause of action is the act or omission by which a
action regardless of the number of rights violated.
party violates a right of another. (Sec 2, Rule 2, RoC)
The singleness of a cause of action lies in the
A cause of action is a formal statement of the singleness of the delict or wrong violating the rights
operative facts that give rise to a remedial right. The of one person.
question of whether the complaint states a cause of
action is determined by its averments regarding the CAUSE OF ACTION VS RIGHT OF ACTION
acts committed by the defendant. Thus it "must Cause of action Right of action
contain a concise statement of the ultimate or As to Definition
essential facts constituting the plaintiff’s cause of A formal statement of Remedial right or relief
action." Failure to make a sufficient allegation of a the operative facts that granted by law to some
cause of action in the complaint "warrants its give right to such persons(the plaintiff)
dismissal." (Samson v. Spouses Gabor, G.R. No. remedial right whose rights have been
182970, July 23, 2014) violated
As to nature
ELEMENTS: It is the reason for filing It is the right to sue. It is
1. Plaintiff has a legal right; the case: it is the delict or the right to commence
2. Correlative obligation of the defendant to honor wrong that was and maintain an action or
plaintiff’s right; and committed by the the remedy or means
3. A breach of the obligation.

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 defendant in violation of afforded or the A: P is correct when D is guilty of splitting causes of
the plaintiff’s rights. consequent relief. action. A real mortgage estate is a collateral
As to Governing Law agreement which is subject to a finding that P did not
Rules on procedure A matter of right and pay or a breach of contract. Hence, in the two cases
depends on substantive filed they have the same cause of action which is the
law breach of obligation.
Page | 36

Ex: Breach of contract. The cause of action is the JOINDER OF CAUSES OF ACTION
breach but the right of action may be specific
performance or recession. A party may in one pleading assert, in the alternative
or otherwise, as many causes of action as he may
Note: A party may not institute more than one suit for have against an opposing party. (Sec 5, Rule 2, RoC)
a single cause of action. (Sec 3, Rule 2, RoC) NOTE: This is permissive the law uses the word “may”
Ex: P borrowed money from D. P execute a
SPLITTING A CAUSE OF ACTION AND EFFECTS promissory note. P again borrowed money and
execute a second promissory note. Both promissory
If two or more suits are instituted on the basis of the notes became due and demandable. Can D lump
same cause of action, the filing of one or a judgment them in one complaint? Yes, D can lump them in one
upon the merits in any one is available as a ground for complaint; or D can also filed them separately without
the dismissal of the others. (Sec 4, Rule 2, RoC) being guilty of forum shopping or litis pendencia
because each cause of action is separate and distinct
Why is splitting a cause of action prohibited? with each other.
1. It breeds multiplicity of suits; Requisites of joining causes of action
2. It leads to vexatious litigation; 1. The party shall comply with the rules on joinder of
3. Clogs the docket of the courts; parties; (Sec. 6, Rule 3, RoC)
4. A form of harassment; and
5. Generates unnecessary expense 2. The joinder shall not include special civil actions or
actions governed by special rules;
Remedies Ex: P borrowed money from D. P was also the lessee
of D. Can D file a collection case and unlawful detainer
If two or more suits were instituted with the same in one compliant? No. Unlawful detainer is governed
parties, issues, cause of action, and reliefs then the by rules which are different to the rules on a simple
defendant may file a motion to dismiss on the grounfd collection case. Hence, they cannot be joined.
of: (1) litis pendencia; or if there is a final judgement,
res judicata. 3. Where the causes of action are between the same
parties but pertain to different venues or
Q: P borrowed money from D which was secured by jurisdictions, the joinder may be allowed in the
a real estate mortgage. On due date, despite Regional Trial Court provided one of the causes of
demand, P did not pay. D, therefore, filed a case for action falls within the jurisdiction of said court and the
collection of sum of money and judgement was venue lies therein; and
rendered in favor of D. the said judgement became Ex: P filed a an accion publiciana. The assessed value
final and executory. A writ of execution was issued of the property was P50,000. P also filed a collection
but only a car was available. Hence, D filed a judicial
case in the sum of P10,000,000. Both cases were filed
foreclosure on the property of P. P then filed a
against D. Can P lump both case in one compliant?
motion to dismiss on the ground that D is guilty of Yes. As both case are within the jurisdiction of the RTC
splitting causes of action which constitutes res then the collection case may also be filed in the venue
judicata. Is P correct? where the property lies.

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

4. Totality test rule – Where the claims in all the MISJOINDER OF CAUSES OF ACTION
causes action are principally for recovery of money,
the aggregate amount claimed shall be the test of Misjoinder of causes of action is not a ground for
jurisdiction. 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.
Totality Rule Page | 37
(Sec. 6, Rule 2, RoC)

The totality rule is applied also to cases where two or Ex: P borrowed P1,000,000 from D. P was also the
more plaintiffs having separate causes of action lessee of D. Can D file a collection case and unlawful
against a defendant join in a single complaint, as well detainer in one compliant before the MTC? No, this is
as to cases where a plaintiff has separate causes of a misjoinder of causes of action. Unlawful detainer is
action against two or more defendants joined in a governed by rules on summary procedure whereas
single complaint. However, the causes of action in the collection case would be governed by ordinary
avour of the two or more plaintiffs or against the two civil action. Hence, they cannot be joined. But the
or more defendants should arise out of the same case should not be dismissed as the MTC has
transaction or series of transactions and there should jurisdiction over the unlawful detainer case.
be a common question of law or fact, as provided in
Section 6 of Rule 3. (Flores v. Mallare-Philipps, G.R. Failure to state a cause of action vs. Lack of cause of
No. L-66620, September 24, 1986) action

Ex: P borrowed from D in the amount of P200,000, Failure to state a cause Lack of cause of action
P300,000 and P1,000,000. The P200,000 and of action
P300,000 are small claims. But D can add the mall up
As to definition
and file the case with the RTC because this is a
collection case and the aggregate amount now will be When Complaint fails to There is insufficiency of
the test of jurisdiction. state a cause of action evidence presented to
and one of the elements show or establish the
Q: P is engaged in selling tires. X bought tires in the of cause of action is cause of action
amount of P200,000. Y also bought tires in the absent
amount of P200,000. Z also bought tire in the
amount of P100,000. All of them executed As to remedy
promissory note with the same due dates.
Thereafter, X, Y and Z defaulted. P then lump all the Remedy file an answer Demurrer to evidence
and raise the failure to
case in one complaint and filed it before the RTC. X,
state a cause of action by
Y & Z filed a motion to dismiss that RTC has no
way of affirmative
jurisdiction over the complaint. Are X, Y, & Z correct?
defense – (defendant
A: X, Y, & Z are correct. The cases filed in this case did affirm that the
not arise from the same series of transaction. They allegations are true but
are separate and distinct from each other and still the plaintiff cannot
entered by different parties. To have a permissive recover from him)
joinder of parties P need to comply with Sec. 3, Rule
6 that it must arise from the same series of
transaction and it must involve the same question of
facts and of law. Therefore, the totality rule cannot be RULE 3: PARTIES TO CIVIL ACTION
applied in this case. (Flores v. Mallare-Philipps, G.R.
No. L-66620, September 24, 1986) Only natural or juridical persons, or entities
authorized by law may be parties in a civil action. The
CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021
 term "plaintiff" may refer to the claiming party, the Example:
counter-claimant, the cross-claimant, or the third
1. A corporation filed a petition for dissolution which
(fourth, etc.) — party plaintiff. The term "defendant"
was granted. A dissolved corporation may prosecute
may refer to the original defending party, the
and defend suits by or against it provided that the
defendant in a counter-claim, the cross-defendant, or
suits occur: (1) within 3 years after its dissolution
Page | 38 the third (fourth, etc.) — party defendant. (Sec. 1, [winding up period]; and (2) the suits are in
Rule 3, RoC)
connection with the settlement and closure of its
NOTE: a plaintiff can be, at the same time, a affairs. (Sec. 122 of the Corporation code)
defendant when the defendant raises a permissive 2. There is a juridical personality in law that would
counter-claim allow the estate to continue a case filed by the
deceased person because the estate being a legal
Ex: X and Y were solidary debtors of Z. Z only sued X.
fiction can own properties and therefore under the
X also want to get the share of Y in the liability hence law even if it is not a duly incorporated corporation it
he may file with leave of court a third party compliant
is allowed to sue. (Limjoco v. Estate of Fragrante, G.R.
against Y. X now becomes a third party plaintiff while
No. L-770, April 27, 1948)
Y becomes a third party defendant.
3. A corporation by estoppel can be considered as a
Ex: Z filed a claim against X in the amount of P10,000. duly incorporated entity hence it can be sued by way
However, Z also had a debt from X in the amount of of estoppel. (Chiang Kai Shek School v. CA, G.R. No.
P30,000. X raises a permissive counterclaim. X now 58028. April 18, 1989)
becomes the plaintiff in his permissive counterclaim
while Z is the defendant. Real Party in Interest

Juridical Persons A real party in interest is the party who stands to be

benefited or injured by the judgment in the suit, or
The following are juridical persons: the party entitled to the avails of the suit. Unless
otherwise authorized by law or these Rules, every
(1) The State and its political subdivisions;
action must be prosecuted or defended in the name
(2) Other corporations, institutions and entities for of the real party in interest. (Sec. 2, Rule 3, RoC)
public interest or purpose, created by law; their
personality begins as soon as they have been Ex: X is the best friend of Y. Z borrowed money from
constituted according to law; Y. Z did not pay Y. X wanted to help Y hence X filed a
claim against Z. If X wins, would she benefit from the
(3) Corporations, partnerships and associations for judgement? No. the benefit should be given to Y and
private interest or purpose to which the law grants a if she lose the case x would not be injured by the
juridical personality, separate and distinct from that judgement hence the real party in interest is Y not X.
of each shareholder, partner or member. (Art. 44 of The remedy of Z is raise by way of affirmative defense
the Civil Code) that the complaint fails to state a cause of action.

Ex: X delivered to ABC Corporation 100 bottles. ABC Real interest

Corporation did not pay. Can X sue Y, the biggest
shareholder and the president of the corporation for To be a real party in interest, one "should appear to
the said claim? No. Y is separate and distinct from the be the present real owner of the right sought to be
corporation. Hence X should have sued ABC enforced, that is, his [or her] interest must be a
Corporation. present substantial interest, not a mere expectancy,
or a future, contingent, subordinate, or consequential
NOTE: One need not be a natural or juridical person interest. (Mutilan vs. Mutilan, G.R. 216109, Feb 5,
to be a party in a civil action. There can be entities 2020)
which are authorized by law to be sued or to sue.
CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021
"Interest" within the meaning of the rule means (3) the transaction did not involve the property of
material interest, an interest in issue and to be the principal. (V-Gent, Inc. vs. Morning Star Travel,
affected by the decree, as distinguished from mere G.R. No. 186305, July 22, 2015)
interest in the question involved, or a mere incidental
interest. As a general rule, one having no right or In ISA v CA, When the statutory term of a non-
interest to protect cannot invoke the jurisdiction of incorporated agency expires, the powers, duties and
Page | 39
the court as a party-plaintiff in an action. (Ralla v Ralla, functions as well as the assets and liabilities of that
G.R. No. 78646, July 23, 1991) agency revert back to, and are re-assumed by, the
Republic of the Philippines, in the absence of special
Ex: Y is the daughter of X. Z borrowed from X. X did provisions of law specifying some other disposition
not pay. Y filed a case against X. She alleged that she thereof such as, e.g., devolution or transmission of
is a future heir of X and that the money that borrowed such powers, duties, functions, etc. to some other
would accrue to her upon death of X. Is Y considered identified successor agency or instrumentality of the
a real party in interest? No, her interest is so Republic of the Philippines. Hence as a consequence
contingent and therefore not a real interest. the Republic of the Philippines, acting as the principal,
may be substituted in the proceeding in lieu of the
Representative as Parties non-incorporated agency. (Iron and Steel Authority v.
CA, G.R. No. 102976 October 25, 1995)
Where the action is allowed to be prosecuted and
defended by a representative or someone acting in a Husband and wife
fiduciary capacity, the beneficiary shall be included in
the title of the case and shall be deemed to be the real GR: Husband and wife shall sue or be sued jointly.
property in interest. A representative may be a (Sec. 4, Rule 3, RoC)
trustee of an expert trust, a guardian, an executor or
XPN:
administrator, or a party authorized by law or these
Rules. An agent acting in his own name and for the 1. A spouse without just cause abandons the other or
benefit of an undisclosed principal may sue or be sued fails to comply with his or her obligation to the family
without joining the principal except when the with respect to the marital, parental or property
contract involves things belonging to the principal. relations. ( Art. 101 and 108, Family Code)
(Sec. 3, Rule 3, RoC)
2. A spouse may mortgage, encumber, alienate or
Q: X hired Y as an agent to sell X’s jewellery. Y then dispose of his or her excusive property and appear
went to Z to sell the jewellery in an instalment basis. alone in court to litigate. (Art. 111, Family code
Z did not pay the price. What is the title of the case?
3. Separation of property governs the property
relations of the spouses (Art, 145, Family code)
A: The title would be X vs. Z as they are the real parties
in interest Y was only a mere agent. Y can only be a
Minor
party if there is an SPA given to Y to represent X. Still
the name of X needs to appear as plaintiff. A minor or a person alleged to be incompetent, may
sue or be sued with the assistance of his father,
NOTE: An agent may sue or be sued solely in its own mother, guardian, or if he has none, a guardian ad
name and without joining the principal when the litem. (Sec. 5, Rule 3, RoC)
following elements concur:
JOINDER OF PARTIES
(1) the agent acted in his own name during the
transaction;
Permissive joinder of parties
(2) the agent acted for the benefit of an undisclosed
principal; and All persons in whom or against whom any right to
relief in respect to or arising out of the same
CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021
 transaction or series of transactions is alleged to exist, Indispensable party Necessary party
whether jointly, severally, or in the alternative, may,
except as otherwise provided in these Rules, join as As to definition
plaintiffs or be joined as defendants in one complaint, They are those with such They are those which are
where any question of law or fact common to all such interest in the not necessary to
Page | 40 plaintiffs or to all such defendants may arise in the controversy that a final adjudicate the whole
action; but the court may make such orders as may be decree would necessarily controversy but whose
just to prevent any plaintiff or defendant from being affect their rights so that interest are so far
embarrassed or put to expense in connection with the courts cannot separable that a final
any proceedings in which he may have no interest. proceed without them decree can be made in
(Sec. 6, Rule 3, RoC) their absent without
affecting them
Requisites:
As to effect on judgement if not impleaded
1. A right of relief arises out of the same transaction
or series of transaction The action cannot The case may be
proceed without all of determined in court but
● Series of transaction – separate dealings
them and any judgement the judgement will not
between the parties but all of which are
directly connected with the same type of the would have no effect resolved the whole
same subject matter of the suit (null and void) controversy in
● Ex: P borrowed from X, Y, & Z in the amount connection to the
of P100,000, P200,000 and P250,000 necessary party
respectively. P cannot sue them all in one
action because the loans arose from Failure to adhere to a court order to implead
different transactions Defendant may file a Not cause of dismissal
2. There is a question of law or fact common to all the
motion to dismiss (sec 3, but rather a waiver of the
plaintiffs and defendants.
rule 17) claim against such party
3. Such joinder is not otherwise proscribed by the (Sec. 9, Rule 3)
provisions of the Rules on jurisdiction

● Ex: X is a lessee and at the same time a Ex:

debtor of Y in the amount of P1,000,000. Y
1. One co-owner file an action for an unlawful
cannot lump an in one complaint the
detainer. The other co-owners are not indispensable
unlawful detainer and recovery as it would
be in conflict of jurisdiction. parties because one co-owner may file a claim to
recover the possession of the property for the benefit
Compulsory Joinder of Indispensable Parties of the other co-owners.

2. X sued Y for recovery of the car. While the case was

Parties in interest without whom no final
pending, Y sold the car to Z (a sale pendent lite). The
determination can be had of an action shall be joined
transferee here is necessary. (Sec 19, Rule 3)
either as plaintiffs or defendants. (Sec. 7, Rule 3, RoC)
3. Q: Husband and Wife owned the property
Necessary Party mortgage in favor of Z. Upon failure of H and W to
pay, Z then sued only W for judicial foreclosure. Is H
A necessary party is one who is not indispensable but an indispensable party if the debt is surety only?
who ought to be joined as a party if complete relief is
to be accorded as to those already parties, or for a A: Yes. The case is judicial foreclosure which is a quasi
complete determination or settlement of the claim in rem which mean the case is directed against them
subject of the action. (Sec. 8, Rule 3, RoC) and the property they co-owned. He must be

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

impleaded as it is a suit against the property they co- CLASS SUIT
owned.
When the subject matter of the controversy is one of
NOTE: If the consent of any party who should be common or general interest to many persons so
joined as plaintiff cannot be obtained, he may be numerous that it is impracticable to join all as parties,
made a defendant and the reason therefor shall be a number of them which the court finds to be
Page | 41
stated in the complaint. (Sec. 10, Rule 3, RoC) sufficiently numerous and representative as to fully
protect the interests of all concerned may sue or
MISJOINDER OF PARTIES defend for the benefit of all. Any party in interest shall
have the right to intervene to protect his individual
Neither misjoinder nor non-joinder of parties is interest. (Sec. 12, Rule 3, RoC)
ground for dismissal of an action. Parties may be
dropped or added by order of the court on motion of ELEMENTS:
any party or on its own initiative at any stage the
action and on such terms as are just. Any claim against 1. The subject matter of the controversy is one of
a misjoined party may be severed and proceeded with common or general interest to many persons;
separately. (Sec. 11, Rule 3, RoC) 2. The parties affected are so numerous that it is
impracticable to bring them all to court;

Misjoinder Non-joinder 3. The parties bringing the class suit are sufficiently
numerous or representative of the class and can fully
A party was impleaded A party was not included protect the interest of all concerned; and
but such party should or joined at all when he
4. The representative sue or defend for the benefit of
have not been impleaded was supposed to have
all. (Sulo ng Bayan v. Araneta, G.R. No. L-31061,
been included
August 17, 1976)

A misjoinder of parties is not fatal to the complaint. Common or general interest

The rule prohibits dismissal of a suit on the ground of
non-joinder or misjoinder of parties. Moreover, the A class suit does not require commonality of interest
dropping of misjoined parties from the complaint may in the question involved in the suit. What is required
be done motu proprio by the court, at any stage, by the rules is common or general interest in the
without need for a motion to such effect from the subject matter of litigation. A subject matter is meant
adverse party. Section 11, Rule 3 indicates that the the physical, the things real or personal, the money,
misjoinder of parties, while erroneous, may be lands, chattels, and the like, in relation to the suit
corrected with ease through amendment, without which is prosecuted and not the delict or wrong
further hindrance to the prosecution of the suit. commited by the defendant. It is not also a common
(Chua v. Torres, G.R. No. 151900, Aug. 30, 2005) question of law that sustains a class suit but a
common interest in the interest in the subject matter
In case of a non-joinder of party, the remedy of the of the controversy
defendant is to file a motion to implead the non-party
claimed to be indispensable. If the motion was NOTE: if the class suit is not proper, the remedy is to
granted, then the court will order the plaintiff to make the parties bring individually the cases or joined
amend his complaint to include the indispensable them as parties under the rule on permissive joinder
party and If despite that order the plaintiff did not of parties.
implead the indispensable party then the defendant
may file a motion to dismiss. (Divinagracia v. Parilla, DEFENDANTS TO A CIVIL ACTION
G.R. No. 196750, March 11, 2015)
Alternative defendants

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 Where the plaintiff is uncertain against who of several If later the RP knew the actually name of the
persons he is entitled to relief, he may join any or all defendant then the pleading may be amended
of them as defendants in the alternative, although a accordingly.
right to relief against one may be inconsistent with a
right of relief against the other. (Sec. 13, Rule 3, RoC) Service of summons to an unknown defendant
Page | 42
Q: P bought mask in the US. The mask will be loaded In any action where the defendant is designated as an
to the ship. It will be unloaded by another company unknown owner, or the like, or whenever his or her
which will deliver the mask to a delivery truck. What whereabouts are unknown and cannot be ascertained
if P ordered 500 mask and what was delivered to him by diligent inquiry, within ninety (90) calendar days
as only 100 mask. Who can P sue? from the commencement of the action, service may,
by leave of court, be effected upon him or her by
A: Pursuant to Sec. 13, Rule 3, P can sue all of them, publication in a newspaper of general circulation and
even if the right of relief is different from one another. in such places and for such time as the court may
P can sue the seller on the ground of breach of order.
contract. P can sue the ship on the ground of contract
of carriage while the other companies may be sued on Any order granting such leave shall specify a
the basis of tort. P does not need to initiate one suit reasonable time, which shall not be less than sixty
only against one party. All parties involved in the (60) calendar days after notice, within which the
transaction can be sued and the basis of the suit may defendant must answer. (Sec. 16, Rule 14, RoC)
vary from one defendant to another.
EX: P road a boat going to Boracay. Unfortunately, on
EX: P hired X as agent to sell her diamond. It was then route the boat sunk. P survived and wanted to sue the
sold to Y. Later Y found out that it was not real owner of the boat on the ground of contract of
diamond but a mere glass. Who can Y sue? Y can sue carriage but P did not know the name of the owner he
both the principal and the agent. only knew the name of the name which is S.S. Titanic.
So how can P sue? P can sue indicating the title to be
Unknown identity or name of defendant “P vs. unknown owner of S.S. Titanic. The service of
summon would be done by publication in a
Whenever the identity or name of a defendant is newspaper of general circulation and the unknown
unknown, he may be sued as the unknown owner, owner would be given 60 days to file an answer.
heir, devisee, or by such other designation as the case
may require; when his identity or true name is If later the owner filed an answer and thus P now
discovered, the pleading must be amended knew the actually name of the defendant then the
accordingly. (Sec. 14, Rule 3, RoC) pleading be amended accordingly. (“P vs. D”) P need
to amend the complaint pursuant to Rule 10 of the
Q: The Republic of the Philippines (RP) wants to Rules of Court. So that in the dispositive portion, in
expropriate a land. One of the land that would be case P wins, it orders D to pay P. In turn, when the
expropriated was owned by P. The RP did not know decision becomes final and executory, P may then file
that P owned the said land as it was not yet titled. a writ of execution and enforce against D.
What is the title of the case?
If P did not amend the complaint then the decision
A: The RP, plaintiff v. (fictious name, such as John Doe, would be then ordering the unknown defendant to
etc.), unknown owner of the land (description of the pay. Hence, how can you file a writ of execution if you
land). Service of summons may be done through do not know the defendant and the property of the
publication defendant.

Entity without juridical personality as defendant

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

When two or more persons not organized as an entity 1. Recovery of property
with juridical personality enter into a transaction,
2. Enforcement of a lien on the property
they may be sued under the name by which they are
generally or commonly known. 3. Damages, money claims (express or implied)

In the answer of such defendant, the names and Examples of actions that survive death Page | 43
addresses of the persons composing said entity must
all be revealed. . (Sec. 15, Rule 3, RoC) 1. Chattel mortgage

2. Collection of sum of money based on promissory

In connection with Rule 3, sec. 1 of the Rules of Court
note (express money claim)
only natural or juridical persons, or entities
authorized by law may be parties in a civil action. 3. Solutio indebiti, Negotiorum gestio (implied money
claim)
NOTE: A person who is not a juridical entity can be
sued but they cannot sue because they not have the Test to determine whether an action survives the
legal capacity to sue. death of a party

Q: X and Y not organized as an entity but doing The question as to whether an action survives or not
business under the name of ABC Corporation. How depends on the nature of the action and the damage
will service of summons be effected when they are sued for.
not even a juridical entity?
In the causes of action which survive, the wrong
A: When persons associated in an entity without complained affects primarily and principally property
juridical personality are sued under the name by and property rights, the injuries to the person being
which they are generally or commonly known, service merely incidental, while in the causes of action which
may be effected upon all the defendants by serving do not survive, the injury complained of is to the
upon any one of them, or upon the person in charge person, the property and rights of property affected
of the office or place of business maintained in such being incidental. (Vda. De Salazar v. CA, G.R. no.
name. But such service shall not bind individually any 121510, November 23, 1995)
person whose connection with the entity has, upon
due notice, been severed before the action was filed. NOTE: This rule is applicable regardless of whether it
(Sec. 7, Rule 14, RoC) is the plaintiff or the defendant who dies, or whether
the case is in the trial or in the appellate courts.
If for example, at first your complaint state the (Jardeleza v. Sps. Jardeleza, G.R. No. 167975, June 11,
defendant as the corporation without knowing that 2015) If the action does not survive upon death then
the same has no legal juridical personality. Later on, if the counsel should notify the court as such and the
you know such facts then you have to amend it stating remaining party should file a motion to dismiss
the individual names of the person representing because the person already died and the complaint
themselves. REASON: same as the amendment in case filed is purely incidental. Otherwise, if the action
of an unknown defendant survives upon death, then the counsel should notify
the death of his/her client and the person to be
Death of Party; Duty of counsel substituted before the courts.

Death of a party always has an effect on the case even Q: H and W were husband and wife. They did not
if the death occurred before filing of the complaint, have any child. W then saw H having an affair with
during the proceeding or before rendering M a man. W then filed for legal separation on the
judgement. ground of homosexuality. After the presentation of
her evidence, W died. X, the heir of W, wants to
Action that survives death: (RED)
CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021
 substitute W in the said case. IF you were the judge, death of Sereno may not be availed by his co-
would you allow the substitution? Why or Why not? defendant as a ground to dismiss the complaint as
death is purely personal to the one who died. Note
A: The complaint filed by W is personal in nature that the compliant here is a recovery of a property
hence it does not survive upon death. Therefore the hence an action that survives death. (Atty. Sarsaba, v.
substitution should not be allowed. Fe Vda. De Te, G.R. no. 175910, July 30, 2009)
Page | 44
Q: What if w died after the decree of legal separation NOTE: If the action survives upon death, the need for
was issued and while the property relations are substitution of heirs is based on the right to due
being subject to liquidation, would your answer be process accruing to every party in any proceeding.
the same?
GR: Without notice or formal substitution of parties
A: X the heir and father of W can be substituted. In before the rendition of judgement, the proceedings
this case, X interest is no longer merely inchoate, and the judgement will be void
when W died this opens up succession. Hence, X
would inherit the properties of W and therefore XPN: notice or formal substitution of heirs is not
substitution should be allowed. necessary when the heirs themselves voluntarily
appeared, participated in the case and presented
Q: X and Y had an illicit relationship. They had a child evidence in defense of deceased defendant. (Vda. De
named Z, X supported and have a good relationship Salazar v. CA, G.R. no. 121510, November 23, 1995)
with X but refused to acknowledge him as his son. Y
then filed, for and in behalf of Z, a petition for Death of counsel not the party thereof, effect
recognition of illegitimate filiation. While the case
was pending W died. Should the case be dismissed It is the duty of the litigant to inform the court of the
or not? Why? death of his counsel therefore if he did not the receipt
of the service from the at the place or law office
A: Under Art. 175 of the family code if the action is designated by its counsel of record as his address, is
based on the secondary evidence (i.e. open and sufficient notice. (Ventanilla v. Tan, G.R. No. 180325,
continuous possession of the status of an illegitimate February 20, 2013)
child) then the action must be brought during the
lifetime of the alleged parent. Therefore, the case It is not the duty of the court to inquire whether the
should be dismissed. partners are still alive hence they cannot pass the
blame to the court the changes in the circumstances
Q: X and Y entered in to a contract of sale of a real of the parties and their counsel. (Mojar, et al. v. Agro
property. Payment was to be done in instalment. X Commercial Security Service Agency, Inc, G.R.
failed to pay the instalments. Y filed for an action of 187188, June 27, 2012)
reconveyance against X. Later, Y died. Can there be
a substitution of parties? Death or separation of a party who is a public
officer
A: There can be substitution of parties because the
action is for the recovery of a real property hence an When the person who died is a public officer and the
action that survives death. case is about the public officer whether he/she filed
the case of he /she is the defendant. The action may
In Sarsaba v. Fe vda De te, The Honorable Court has be continued by and maintained by or against his
not acquired jurisdiction over the person of Sereno successor in the public office if the following
since there was indeed no valid service of summons requisites are present:
insofar as Sereno is concerned. Sereno died before
1. The public officer is a party to an action in his
the summons, together with a copy of the complaint
official capacity;
and its annexes, could be served upon him. The said

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 - If it is not in an official capacity then sec 16 Transfer of interest
would apply not Sec 17
Transfer pendente lite
2. It is satisfactorily shown to the court by any party,
within 30 days after the successor takes office that It is a transfer of interest that happened or occurred
there is a substantial need for continuing or during the pendency of the case. A transferee stands
maintaining the action; Page | 45
in the shoes of the party which he intends to
substitute
- it is the decision of the successor

4. That the successor adopts or continues or Where the transfer was effected prior to the
threatens to adopt or continue the action of his commencement of the suit the transferee must
predecessor; necessarily be made a defendant or plaintiff or 3rd
complaint and implead the transferor for the
5. The party or officer affected has been given complete determination of the rights of the parties.
reasonable notice of the application thereof and
accorded an opportunity to be heard. If the transfer happened during the case the
substitution under Sec 19, Rule 3 is not mandatory the
In Miranda v. Carreon, Heirs of Mayor Nemencio transferee pendente lite is not an indispensable party
Galvez v. Court of Appeals, and Roque, et al. v. but a necessary party.
Delgado, et al., we held that where the petitioner (a
public officer) ceases to be mayor, the appeal and/or
action he initiated may be continued and maintained
Death Transfer
by his successor if there is substantial need to do so.
If the successor failed to pursue the appeal and/or Substitution must be As the law uses the word
action, the same should be dismissed. (Mayor made as part of due “may” it only reflects
Dagadag v. .Tongnawa, G.R. NOS. 161166-67. process discretion on whether or
February 03, 2005) not a party may be
substituted
Incompetency or incapacity
The court has no The court is given a
Who is an Incompetent Person discretion to deny the leeway to ascertain the
1. Person suffering from the penalty of civil substitution if the action propriety of substitution
interdiction survives death
2. hospitalized lepers
3. Prodigals The substitute (executor, A transferee pendente
4. Deaf and dumb who are unable to read and write administrator or legal lite is not an
5. those who are of unsound mind, even though they heirs) are indispensable indispensable party but a
have lucid intervals parties necessary party.
6. persons not being of unsound mind, but cannot, Death occurs either Transfer occurs during
without outside aid, take care of themselves and during the pendency of the pendency of the
manage their property, becoming thereby easy prey the action or after the action
for deceit and exploitation by reason of age, disease, judgement has already
weak mind, other similar causes. been rendered

If the incompetency or incapacity that happened or

occurred while the case is pending, the action shall
NOTE: that substitution
not be dismissed, it shall continue against him
will not apply if death
personally and not against his representative. Such
representative would only assist him.
CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021
 occurs before the NOTE: Both requisites must be present in order to be
institution of the action considered as an indigent party. Otherwise, absent of
one or both disqualify such person to being an
indigent litigant.
Action on contractual money claims
Only natural person may be considered an indigent
Page | 46 Requisites:
litigant
1. The action must be primarily for the recovery of
money, debt or interest thereon and not where the Sec. 21, Rule 3, RoC indicates that only a natural party
subject is primarily for some other relief and the litigant may be regarded as an indigent litigant. Hence
collection of an amount of money sought therein is juridical person cannot be considered as indigent
merely incidental thereto, such as by way of damages; litigant. (Re: Query of Mr. Roger C. Prioreschi re
exemption from legal and filing fees of the Good
2. The claim subject of the action arose from contract, Shepherd Foundation, Inc., A.M. No. 09-6-9-SC,
express or implied, entered into be the decedent in August 19, 2009)
his lifetime or the liability for which had been
assumed by or is imputable to him Absent of one or both requisites does not
automatically dismissed the application
Indigent parties
If the applicant for exemption meets the salary and
An indigent party can file a case without the required property requirements under Section 19 of Rule 141,
docket fee. He is also free from payment of other then the grant of the application is mandatory. On the
lawful fees and stenographic notes. All of these shall other hand, when the application does not satisfy one
be considered as a lien on any judgement rendered in or both requirements, then the application should not
the case favourable to the judgement to the indigent, be denied outright; instead, the court should apply
unless the court provides otherwise. (Sec. 21, Rule 3, the "indigency test" under Section 21 of Rule 3 and
RoC) use its sound discretion in determining the merits of
the prayer for exemption. (Algura vs. The Local
Requirements to be considered an indigent party: Government of the City of Naga, G.R. No. 150135, Oct.
30, 2006)
1. Income requirement – the family must not have a
combined income of more than twice the monthly
Notice to the solicitor general
wage.

● The family pertains to the nuclear family The rule is that only the Solicitor General can bring or
o Ex: if H does not have any work but defend actions on behalf of the Republic of the
W was the CEO of a large Philippines and that actions filed in the name of the
corporation. H, therefore, cannot Republic, or its agencies and instrumentalities, if not
sue as an indigent party. Because initiated by the Solicitor General, will be summarily
the wife is an earner. Even the dismissed.
children’s wage are taken into
account Example of actions that can be filed by the Solicitor
● NOTE: that the minimum wage differs from General for and in behalf of the Philippines.
every region
2. Property requirement – the fair market value (not 1. Quo warranto proceedings
the assessed value) must not be more than Php
300,000. 2. Criminal cases that need to be appealed

● Fair market value can be the zonal valuation ● Rule 65 petition involving the criminal aspect
of the BIR which is always higher than the of the case, if not initiated by the Sol. Gen
assessed value. the it should be dismissed

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 RULE: 4 VENUE OF ACTIONS 1. Actions covered by the
Rules on summary
Venue is "the place where the case is to be heard or procedure and small
tried." Under our Rules, the venue of an action claims cases.
generally depends on whether it is a real or personal 2. SC has the power to
action. (Kane vs. Roggenkamp, GR. 214326, July 6, order a change of venue Page | 47
2020) to prevent a miscarriage
of justice (1987
Venue in civil cases Venue in criminal cases
Philippine Constitution,
May be waived as it is Cannot be waived as it is Art. VIII, Sec. 5, Par. 4).
intended for the an essential element of
convenience of the jurisdiction
Venue is transitory
parties
Venue must be:
Venue is a matter of Venue is jurisdictional.
procedural law Thus, if the information a. Where the plaintiff or any of the principal plaintiff
was filed in a place where resides; or
the offense was not
committed, it may be b. Where the defendant or any of the principal
quashed for lack of defendant resides.
information. NOTE: that it is the plaintiff who will elect where the
action should be filed (Sec. 2, Rule 4, RoC).

If the defendant is a non-resident

Jurisdiction Venue
Venue is, at the election of the plaintiff,:
Authority of the court to Place where the case is to
a. Where the plaintiff or any of the principal plaintiff
hear and determine a be heard or tried
resides; or
case
b. Where the non-resident defendant may be found
Matter of substantive Matter of procedural law
(Sec. 3, Rule 4, RoC).
law

Cannot be waived and Can be waived and In case of nullity, annulment and legal separation
fixed by law subjected to the
agreement of the parties The venue is the place where the plaintiff or the
provided that it does not defendant resides at least six months prior to the
cause them filing of the complaint (A.M. 02-11-10, Residency
inconvenience requirement).

Court may dismissed an GR: Court may not Residence Domicile

action motu proprio for dismiss an action motu requires bodily presence requires bodily presence
lack of jurisdiciton proprio on the ground as an inhabitant in a in that place and also an
of improper venue. given place intention to make it one’s
domicile.

XPN: Requisites of Stipulations on Venue:

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 Parties may stipulate on the venue as along as the including the venue stipulation would be to stretch
agreement is the intention of the signatory beyond his or her
objective. This Court, then, cannot bind respondent
1. In writing;
to the other stipulations in the Sales Invoices.
2. Made before the filing of the action; and (Hygienic Packaging Corp vs Nutria-Asia, G.R. No.
201302, Jan. 23, 2019)
Page | 48
3. Exclusive as to the venue (Sec 4[b], Rule 4, RoC)
Dismissing on ground of Improper venue
The parties may agree on a specific venue which could
be in a place where neither of them resides (Universal Under the new rules, file an answer with affirmative
Robina Corporation v. Lim, G.R. 154338, October 5, defense which is improper venue
2007).
Under the old rules, file a motion to dismiss on the
Written Stipulations ground of improper venue

1. Restrictive or Mandatory – where venue stipulated

Various parcels of land situated in different provinces
upon is restrictive or mandatory, the complaint is to
be filed only in the stipulated venue Venue of real actions affecting properties found in
different provinces is determined by the singularity or
Examples of words with restrictive meanings:
plurality of the transactions involving said parcels of
a. Only land.

b. Solely a. One and the same transaction - venue is in the

court of any of the provinces wherein a parcel of land
c. Exclusively in the court is situated. (United Overseas Bank v. Rosemor Mining
& Dev’t., G.R. No. 159669, March 12, 2007)
d. In no other court save
b. Separate and distinct transactions – laid in the
e. Particularly
court of the province wherein each parcel of land is
f. Nowhere else but/except situated.

As regards restrictive stipulations on venue,

jurisprudence instructs that it must be shown that Personal action Real action
such stipulation is exclusive. In the absence of
qualifying or restrictive words, such as “exclusively,” Should be commenced May be commenced and
“waiving for this purpose any other venue,” “shall and tried in the province tried where the plaintiff
only” preceding the designation of venue, “to the where the property or or any of the principal
exclusion of the other courts,” or words of similar part thereof lies. plaintiffs resides, or
import, the stipulation should be deemed as merely where the defendants or
an agreement on an additional forum, not as limiting any of the principal
venue to the specified place. (Briones vs. CA, G.R. No. defendants resides, at
204444, January 14, 2015) the election of the
plaintiff.
Signature on a Sales Invoice with the phrase
"Received the above goods in good order and
condition." Clearly, the purpose of signing the Sales
Invoices is merely to acknowledge the receipt odf the
RULE 5: UNIFORM PROCEDURE IN TRIAL COURTS
goods. He or she did not affix his or her signature in
any other capacity except as the recipient of the
The procedure in the Municipal Trial Courts shall be
goods. To extend the effect of the signature by
the same as in the Regional Trial Courts, except (a)
CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021
where a particular provision expressly or impliedly 1. Complaint
applies only to either of said courts, or (b) in civil cases
2. Answer with compulsory counter-claim, cross-
governed by the Rule on Summary Procedure. (Sec
claim or
4[b], Rule 4, RoC)
3. Answer in relation to the counter or cross-claim
Summary procedure filed Page | 49
The 1991 Revised Rules of Summary Procedure is a
special rule that only applies to MTC/MTCC/MCTCs. It
Prohibited Pleadings
is mind-boggling how this rule could possibly apply to
proceedings in an RTC. Aside from that, this Court 1. Motion to dismiss the complaint or to quash the
limited the application of summary procedure to complaint or information
certain civil and criminal cases. A writ of Amparo is a
special proceeding. It is a remedy by which a party XPN: On the ground of lack of jurisdiction over the
seeks to establish a status, a right or particular fact. It subject matter. (Bongato v Malvar, G.R. No. 141614.
is not a civil nor a criminal action, hence, the August 14, 2002)
application of the Revised Rule on Summary
2. Motion for a bill of particulars;
Procedure is seriously misplaced. (De Lima v Gatdula,
G.R. No. 204528, February 19, 2013) 3. Motion for new trial, or for reconsideration of a
judgment, or for opening of trial;
Subject Matters covered by Summary Procedure:
XPN: An MR is allowed only against an interlocutory
1. Unlawful detainer order.
2. Forcible entry Note: The remedy is an ordinary appeal after the final
judgement.
3. Other civil cases, except probate proceedings not
exceeding P100,000 if it is filed outside Metro Manila 4. Petition for relief from judgment;
and those not exceeding P200,000 if it is filed within
Metro Manila. 5. Motion for extension of time to file pleadings,
affidavits or any other paper;

6. Memoranda;
Summary Procedure Ordinary Civil Action
7. Petition for certiorari, mandamus, or prohibition
Answer must be filed Answer must be filed against any interlocutory order issued by the court;
within 10 days (non- within either 15 days, 30
extendible) days (personal service), 8. Motion to declare the defendant in default;
60 days(publication) 9. Dilatory motions for postponement;

10. Reply;
May be extended only 11. Third party complaints;
once under the new rules
12. Interventions.
Reply is not allowed Reply may or may not be
filed depending on the Exception on prohibited pleadings:
presence of an
actionable document In the case of Go v. Azucena, respondent was literally
caught "between Scylla and Charybdis" in the
procedural void observed by the Court of Appeals and
Pleading allowed in Summary Procedure: the RTC. Under these extraordinary circumstances,

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 the Court is constrained to provide it with a remedy Note: Recovery of unliquidated damages, even if
consistent with the objective of speedy resolution of arising from a contract, cannot be brought under the
cases. rules on small claims.

Summary Small Claims

Procedure
Page | 50 This Court holds that situations wherein a summary
proceeding is suspended indefinitely, a petition for If no answer 1. The judge can Judge can still
certiorari alleging grave abuse of discretion may be was filed: motu proprio decide on the
allowed. Because of the extraordinary circumstances decide on the case within the
in this case, a petition for certiorari, in fact, gives spirit case; or day
and life to the Rules on Summary Procedure. A
contrary ruling would unduly delay the disposition of 2. Complainant
the case and negate the rationale of the said Rules. may file a
(Go v. CA, G.R. No. 128954, October 8, 1998) motion to
render
NOTE: The judge will determine whether the action or judgement
complaint is to be proceeded under the rules of
summary procedure, small claims, or ordinary civil Allowed to Appeal is
action. appeal to the prohibited.
RTC
Small Claims
Instead file a
Jurisdiction rule 65 petition

For a payment of money where the value of the claim

does not exceed P400,000 for MeTC and P300,000 for
REASON:
MTCC, MTC and MCTC, exclusive of interest and costs.
Judgement are
already final
Coverage
and executory
To be covered by the Revised Rules on Small Claims
cases, the claim or demand should be for money
NOTE: In summary procedures, the judge is limited
owed under any of the following:
only to the allegation of the complaint. The judge will
1. Contract of lease only check whether a cause of action exists. The relief
granted is based on the allegation of the complaint. A
2. Contract of loan higher relief cannot be given but it may be lower than
3. Contract of services what was prayed for, especially when it comes to
attorney’s fee. (Chinatrust v. Turner, G.R. No. 191458,
4. Contract of sale July 03, 2017)

5. Contract of mortgage RULE 6: KINDS OF PLEADINGS

6. Claim for liquidated damages arising from the
contract Pleadings are the written statements of the
respective claims and defenses of the parties
7. Claim for the enforcement of a Barangay amicable submitted to the court for appropriate judgment. (Sec
settlement or an arbitration award covered by this 1, Rule 6, RoC)
rule
The test of sufficiency of the facts alleged in a
complaint to constitute a cause of action is whether,

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

admitting the facts alleged, the court could render a A plaintiff may also be a defendant in case of a
valid judgment upon the same in accordance with the counterclaim. Therefore the law uses the word
prayer of the petition or complaint. defending party not defendant.

Actionable document (Sec. 7, Rule 8, RoC) Defenses

Page | 51
A reply is not mandatory unless the answer is based Defenses may either be negative or affirmative. (Sec.
on an actionable document and such party wants to 5, Rule 6, RoC)
contest the due execution and authenticity of the
actionable document. (Sec. 2, Rule 6, RoC) Negative defense

If the answer is not based on an actionable document A negative defense is the specific denial of the
then the remedy is file an amended complaint or material fact or facts alleged in the pleading of the
supplemental complaint. claimant essential to his or her cause or causes of
action.
Ultimate facts
Example of negative defense:
The basic requirement under the rules of procedure
is that a complaint must make a plain, concise, and 1. Specific denial – Defendant specifically denies the
direct statement of the ultimate facts on which the allegations contained in (what specific paragraph) of
plaintiff relies for his claim. the complaint. The truth of the matter being….
(reason)
Ultimate facts mean the important and substantial
facts which either directly form the basis of the 2. Lack of knowledge - Defendant specifically denies
plaintiff’s primary right and duty or directly make up the allegations contained in (what specific paragraph)
the wrongful acts or omissions of the defendant. They of the complaint. For lack of information sufficient to
refer to the principal, determinative, constitutive form a belief as to the truth or falsity thereof.
facts upon the existence of which the cause of action
rests. The term does not refer to details of probative 3. By way of Qualification - Defendant specifically
matter or particulars of evidence which establish the denies that part of the (what specific paragraph) of
material elements. (Victorina v. Brewmaster the complaint which states that…. but should be ………
International, G.R. No. 182779, August 23, 2010)
Affirmative Defense
Complaint
An affirmative defense is an allegation of a new
The complaint is the pleading alleging the plaintiff’s or matter which, while hypothetically admitting the
claiming party’s cause or causes of action. The names material allegations in the pleading of the claimant,
and residences of the plaintiff and defendant must be would nevertheless prevent or bar recovery by him or
stated in the complaint. (Sec. 3, Rule 6, RoC) her. The affirmative defenses include fraud, statute of
limitations, release, payment, illegality, statute of
Reason for putting name and address frauds, estoppel, former recovery, discharge in
1. for purposes of summons bankruptcy, and any other matter by way of
2. for determination of venue in case it is a personal confession and avoidance. Affirmative defenses may
action also include grounds for the dismissal of a complaint,
specifically, that the court has no jurisdiction over the
Answer subject matter, that there is another action pending
between the same parties for the same cause, or that
Defending party the action is barred by a prior judgment.

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 NOTE: RULE 16 or MOTION TO DISMISS has either permissive counterclaim because the obligation of Y
deleted or transposed. But the grounds for the filing to X and X to Y is entirely different from each other.
a motion to dismiss can be raised by way of
affirmative defense. Criteria to determine whether the counterclaim is
compulsory or permissive (Buncayao v. Fort Ilocandia
There are only 4 grounds that a motion to dismiss may Property, G.R. No. 170483, April 19, 2010)
Page | 52
be filed: (Sec 12[a], Rule 15, RoC) (a) Are issues of fact and law raised by the claim and
1. Lack of jurisdiction over the subject matter by the counterclaim largely the same?
2. Litis pendentia (b) Would res judicata bar a subsequent suit on
3. Res judicata defendant's claim, absent the compulsory rule?
4. Prescription (c) Will substantially the same evidence support or
refute plaintiff's claim as well as defendant's
All other grounds must be raised in an affirmative counterclaim?
defense. But these 4 grounds aforementioned above (d) Is there any logical relations between the claim
can also be raised in an affirmative defense. and the counterclaim?

Parts of an answer: A positive answer to all four questions would indicate

1. Admission that the counterclaim is compulsory
2. Denial
3. Defenses Compulsory Permissive Counterclaim
4. Counterclaim Counterclaim
5. Prayer
As to the filing of the answer
Counterclaim
Because it arose from the Because it has no
A counterclaim is any claim which a defending party same transaction, you connection to the subject
may have against an opposing party. (Sec. 6, Rule 6, must raise it controversy, you may or
RoC) immediately, otherwise may not raise it. You may
it is barred also file a separate
Two kinds of Counterclaim complaint as it does not
violate forum-shopping
1. Compulsory – it arises from the same transaction
As to filing fee
subject of the controversy.
Filing fee is not required Filing fee is required as it
Example: X filed a case against Y for collection of sum (it is suspended) is an initiatory pleading
of money. Y alleged that he paid the said obligation. Y
then, raise as a counterclaim, that he suffered As to certificate of non-forum shopping
sleepless night when the case was filed he prayed for
Not required to file Required to file as it is an
moral damages and exemplary damages to teach
initiatory pleading
others a lesson. The counterclaim raised by Y is
connected to the complaint filed by X.
A counterclaim is not compulsory if it exceeds the
2. Permissive – it arises entirely from a different jurisdictional threshold of the Court. The remedy is,
transaction you may raise the counterclaim and moved for the
dismissal of the complaint and make a reservation
Example: X filed a case against Y. Y then raise a that you are going to file the excess with the
counterclaim, stating that the case should be appropriate court.
dismissed as X also owes money from Y but much
more than what Y owes to X. Y’s counterclaim is a

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

In Calo v Ajax, defendant has a bigger credit than that If the reply is based on an actionable document then
of the plaintiff’s claim. The defendant will raise only the defendant may file a rejoinder if he wants to
the claim to have the case dismissed- but he cannot contest the due execution and authenticity of the
ask the court to grant an affirmative defense on the actionable document which was the foundation of
excess amount since that is already beyond the the reply.
jurisdiction of the Court. (Calo v. Ajax, G.R. No. L- Page | 53
22485, March 13, 1968) Third, (fourth, etc.)-party complaint.

Cross-claim Basis of a third party complaint: (CISO)

1. Contribution
In a cross-claim there must be at least 2 defendants
and that 2 defendants would technically be suing 2. Indeminification
each other.
3. Subrogation
Example: X and Y executed a surety agreement in
4. Other reliefs with respect to the opponent’s claim
favor of Z for a loan. Z then filed a complaint only
against Y.
Example: X and Y executed a surety agreement in
favor of Z for a loan. Z then filed a complaint only
Y cannot file a crossclaim as he is the only defendant,
against Y.
therefore he should file a motion to admit 3rd party
complaint so that he can claim from X his share in the
X filed a case against only Y for collection of sum of
obligation.
money on the basis of the surety agreement executed
by Y and Z in favor of X. Y may file a motion for leave
A counterclaim may be asserted against an original
to file 3rd party complaint
counter-claimant. A cross-claim may also be filed
against an original cross-claimant. (Sec. 9, Rule 6, RoC)
A leave of court means that permission should be
asked first so that when a party files a 3rd party
Reply
complaint, such party must file a motion to admit the
3rd party complaint, justifying the need to file a 3rd
A reply is a pleading, the office or function of which is
party complaint and must attached the proposed 3rd
to deny, or allege facts in denial or avoidance of new
party complaint to the said motion. Since he is asking
matters alleged in, or relating to, said actionable
permission from the Court, the third party complaint
document.
will not come to existence if the Court elects to reject
In the event of an actionable document attached to it. If it is granted, summons will be served on the third
the reply, the defendant may file a rejoinder if the party defendant because he is bringing in a new party
same is based solely on an actionable document. (Sec. into the case.
10, Rule 6, RoC)
NOTE: a 3rd party complaint is an initiatory pleading
Example: X was hit by a car. Obviously, the complaint hence the party who filed the 3rd party complaint
that will be filed by X would have no actionable must pay the filing fees and file a certificate of non-
document as there would be no attached document forum shopping.
in the complaint such as an agreement between X and
Q: X lives in Marikina while Y lives in Manila. X then
the driver that hit him. Therefore, no one will file a
filed a collection suit against Y in Marikina. Y then
reply as the complaint is not based on an actionable
filed a motion for leave to file a 3rd party complaint
document. Only the complaint and the answer would
against Z which was granted. However, Z lives in
be filed.
Zamboanga. Summons were served to Z. Z then filed
an answer with affirmative defense that venue was

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 improperly laid because neither he nor Y lives in
SECTION 1: CAPTION
Marikina. Is the contention of Z meritorious?

A: Z was wrong. The venue was properly laid. A 3rd

The caption sets forth the following (Paragraph 1 of
party complaint is an ancillary proceeding to the
Section 1, Rule 7, RoC):
collection suit which the venue was correctly laid. It is
Page | 54
therefore dependent on the venue of the original
1. The name of the court;
action. 2. The title of the action; and
3. The docket number if assigned.
An ancillary proceeding is a proceeding that is not the
primary dispute but which aids the judgement The title of the action indicates the names of the
rendered in or the outcome of the main action. It is parties. They shall all be named in the original
dependent upon the main action. complaint or petition; but in subsequent pleadings, it
shall be sufficient if the name of the first party on each
NOTE: A grant of 3rd party may be recalled if the third side be stated with an appropriate indication when
(fourth, etc.)-party defendant cannot be located there are other parties (Paragraph 2 & 3 of Section 1,
within thirty (30) calendar days from the grant of such Rule 7, RoC).
leave. Again, a 3rd party complaint is an ancillary
proceeding. It should not be the reason why the main SECTION 2: BODY
case should be delay.

In the case of Singapore airlines v. CA, the court

The body of the pleading sets forth the following:
explained that a 3rd party complaint is a procedural
device whereby a 3rd party, who is neither a party to 1. Its designation;
nor privy to the act or deed complained of by the 2. The allegations of the party’s claims or
plaintiff, may be brought in by leave of court. The defenses;
reason of bring the 3rd party is because of 3. The relief prayed for; and
contribution, indemnity, Subrogation, or any other 4. The date of the pleading.
relief with respect to the opponent’s claim. Clearly, a
3rd party complaint is actually independent or NOTE: It is the allegations found in the complaint not
separate to the plaintiff’s claim. (Singapore Airlines, the caption determines the nature of the case.
vs CA, G.R. No. 107356 March 31, 1995)
Cours cannot grant a relief not prayed for in the
pleadings or in excess of what is being sought by the
party. A general prayer of “other reliefs just and
RULE 7: PARTS AND CONTENTS OF A PLEADING equitable” enables the court to award reliefs
supported by the complaint or other pleadings even
if these reliefs are not specifically prayed for in the
Parts of a Pleading: complaint.

1. Caption; SECTION 3: SIGNATURE AND ADDRESS

2. Body;
a. Paragraphs;
b. Headings; Every pleading and other written submissions to the
c. Relief;
court must be signed by the party or counsel
d. Date;
representing him or her.
3. Signature and address;
4. Verification; and
5. Certification against forum shopping. The effects of the signature of the counsel in the
pleading are:

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 1. Certificate by him or her that he or she has Unless exceptional circumstances exist, a law firm
read the pleading and document; shall be held jointly and severally liable for a violation
2. That to the best of his or her knowledge, committed by its partner, associate, or employee.
information and belief, formed after an
inquiry reasonable under the circumstances: NOTE: It is the duty of the counsel to promptly inform
a. It is not being presented for any the court of a change of his own address.
improper purpose, such as to Page | 55
harass, cause unnecessary delay, or It is the duty of the counsel to verify the truthfulness
needlessly increase the cost of
of his client’s pleadings and other written submission.
litigation;
Otherwise, the counsel may be held personally liable.
b. The claims, defenses, and other
legal contentions are warranted by
existing law or jurisprudence, or by SECTION 4: VERIFICATION
a non-frivolous argument for
extending, modifying, or reversing
existing jurisprudence; Verification defined:
c. The factual contents have
evidentiary support or, if A verification is a statement under oath. It includes
specifically so identified, will likely both the actual swearing to the truth of the
have evidentiary support after statements by the subscriber and also the
availment of the modes of certification thereto by the notary or other officer
discovery under these rules; and authorized to administer the oath.
d. The denials of factual contentions
are warranted on the evidence or, if GR: Pleadings need not to be under oath or verified.
specifically so identified, are
reasonable based on belief or lack
XPN: When specifically required by law or rule.
of information.
Pleadings submitted under the Rules on Summary
If the court determines, on motion or motu proprio, Procedure must be verified.
and after notice and hearing, that this rule has been
How pleadings are verified:
violated. it may:
It is verified by an affidavit of an affiant duly
1. Impose an appropriate action; or
2. Refer such violations to the proper office for authorized to sign said verification. The affiant may
disciplinary action, on any attorney, law firm, either be:
or party that violated the rule, or is
responsible for the violation. 1. The counsel; or
2. The party-pleader
Sanctions include:
The authorization of the affiant to act on behalf of a
1. Non-monetary directive or sanction. party, whether in the form of a secretary’s certificate
2. An order to pay a penalty in court; or or a special power of attorney, should be attached to
3. If imposed on motion and warranted for the pleading, and shall allege the following
effective deference, an order directing attestations:
payment to the movant of part or all the
reasonable attorney’s fees and other 1. The allegations in the pleading are true and
expenses directly resulting from the correct based on his or her personal
violation, including attorney’s fees for the knowledge, or based on authentic
filing of the motion for sanction. documents;
2. The pleading is not filed to harass, cause
unnecessary delay, or needlessly increase
the cost of litigation; and
CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021
 3. The factual allegations therein have Forum shopping defined
evidentiary support or, if specifically so
identified, will likewise have evidentiary It is an act of a party in which he repeatedly avails
support after a reasonable opportunity for himself of several judicial remedies in different
discovery courts, simultaneously or successively, all
substantially founded on the same transaction and
Page | 56 NOTE: If it is a juridical entity that is supposed to
the same essential facts and circumstances, and all
verify, it shall execute a board resolution empowering raising substantially the same issues either pending in
a representative to execute the required verification. or already resolved adversely by some other court.
(Chua v. Metropolitan Bank & Trust Company, G.R.
Significance of the signature of the affiant
No. 182311, August 19, 2009)
It shall secure an assurance that the allegations in the
The essence of forum shopping is the filing of multiple
petition have been made in good faith, or are true and
suits involving the same parties for the same cause of
correct and not merely speculative.
action, either simultaneously or successively, for the
purpose of obtaining a favorable judgment.
Person signing the verification has no authority
Elements of forum shopping:
The effect if the person who signed the verification
has no authority to do so is dismissal of the complaint
1. Identity of parties, or at least such parties
since the court has no jurisdiction over the complaint
representing the same interests in both
and the plaintiff. actions;
2. Identity of rights asserted and reliefs prayed
Unsigned pleading for, the relief being founded on the same
facts; and
A pleading is treated as an unsigned pleading if it is 3. The identity of two preceding particulars,
required to be verified that contains a verification: such that any judgment rendered in the
other action will, regardless of which party is
1. Based on “information and belief”; or successful amount to res judicata in the
2. Upon “knowledge, information, and belief”; action under consideration (Buan v. Lopez,
or G.R. No. 75349, October 13, 1986).
3. Lacks a proper verification.
Ways of committing forum shopping
An unsigned pleading is deemed as not filed at all.
1. By filing multiple cases based on the same
An unsigned pleading produces no legal effect. cause of action and with the same prayer,
However, the court may, in its discretion, allow such the previous case not having been resolved
deficiency to be remedied if it shall appear that the yet (where the ground for dismissal is litis
same was due to mere inadvertence and not intended pendentia);
for delay. (Sameer Overseas Placement Agency v. 2. By filing multiple cases based on the same
Santos, G.R. No. 152579, August 4, 2009) cause of action and with the same prayer,
the previous case having been finally
Where there is an absence of verification in a resolved (where the ground for dismissal is
res judicata); and
pleading, the remedy is to file a motion to have such
3. By filing multiple cases based on the same
pleading be verified by the pleader. (Quimpo v. de la
cause of action but with different prayers
Victoria, G.R. No. L-31822, July 31, 1972) splitting of causes of action (where the
ground for dismissal is also either litis
SECTION 5: CERTIFICATION AGAINST FORUM pendentia or res judicata).
SHOPPING
Execution of certification against forum shopping

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GR: It must be the party-pleader, not the counsel, Example: When the petitioners are husband and wife,
who shall sign the certificate of non-forum shopping. and the subject property in the case belongs to the
conjugal property of the said petitioners, the
XPN: If, however, for reasonable or justifiable Certificate of Non-Forum Shopping signed by one of
reasons, the party-pleader is unable to sign, he must the spouses is deemed to constitute substantial
execute a Special Power of Attorney designating his compliance with the Rules. (Docena v. Hon. Lapesura, Page | 57
counsel of record to sign on his own behalf. G.R. No. 140153, March 28, 2001)
(Anderson v. Ho, G.R. No. 172590, July 7, 2013)
Reason for the exception: The interest of the
The authorization of the affiant to act on behalf of a petitioner-spouses is closely intertwined given that
party may be in the form of: they are husband and wife and that each of them is a
co-administrator of the property under the Family
1. A secretary’s certificate; or Code and an administrator of the property under the
2. A special power of attorney (Section 5, Rule Civil Code. Therefore, the spouse who signed the
7, RoC) certification can validly represent the interest of the
other spouse.
Undertakings of a party under the certification
against forum shopping:
Annulment of Real Estate Mortgage and Action for
Injunction invoking the nullity of Real Estate
1. That the party has not commenced any
Mortgage
action or any claim involving the same issues
in any court, tribunal or quasi-judicial agency
There is identity of cause of action and the relief
and, to the best of his or her knowledge, no
such other action or claim is pending; prayed for in the two actions which is the nullification
2. If there is such other pending action or claim, of the Real Estate Mortgage.
a complete statement of the present status;
and A labor case and a civil case for breach of contract
3. If he or she should thereafter learn that the
same or similar action or claim has been filed There is no identity of causes of action and relief
or is pending, he or she shall report that fact sought.
within 5 calendar days to the court wherein
his or her aforesaid complaint or initiatory Case of pending civil/criminal case and
pleading has been filed. administrative case

When there are two or more plaintiffs in a pleading Criminal and civil cases are altogether different from
administrative matters. The disposition in the civil
All of them must execute the certification of non- and/or criminal case will not inevitably govern the
forum shopping. (Loquias v. Office of the administrative case, and vice versa.
Ombudsman, G.R. No. 139396, August 15, 2000)
When the plaintiff is a juridical entity
XPN: Under reasonable or justifiable circumstances,
as when all the plaintiffs or petitioners share a The certification against forum shopping is executed
common interest and invoke a common cause of by a properly authorized person. It is required that a
action or defense, the signature of only one of them board resolution empowering such a person to
in the certification against forum shopping execute the certification or a secretary’s certificate
substantially complies with the Rule. (Heirs of must be appended to the certificate of non-forum
Dinglasan v. Ayala Corp., G.R. No. 204378, August 5, shopping.
2019)

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 However, the following officials or employees can Non-compliance with any of the undertakings or
sign the verification and certification without the submission of a false certification
need of a board resolution:
It shall constitute indirect contempt of court, without
1. The Chairperson of the Board of Directors; prejudice to the corresponding administrative and
2. The President of a Corporation; criminal actions.
Page | 58 3. The General Manager or Acting General
Manager; Effects of forum shopping:
4. Personnel Officer; and
5. An Employment Specialist in a labor case. 1. If the acts of the party or his or her counsel
(Cagayan Valley Drug Corporation v. CIR, constitute willful and deliberate forum
G.R. No. 151413, February 13, 2008) shopping, the same shall be ground for
summary dismissal with prejudice and shall
The rationale in justifying the authority of corporate constitute direct contempt, as well as a
officers or representatives of the corporation to sign cause for administrative sanctions.
the verification or certificate against forum shopping 2. If the forum is not considered willful and
is because they are in a position to verify the deliberate, the subsequent case shall be
truthfulness and correctness of the allegations in the dismissed without prejudice, on the ground
petition. of either litis pendentia or res judicata. (Chua
v. Metropolitan Bank and Trust Company,
Non-compliance with the rules on forum shopping G.R. No. 157867, December 15, 2009)

It shall not be curable by mere amendment of the No motu proprio dismissal

complaint or other initiatory pleading but shall be
There can be no motu proprio dismissal incase of
cause for the dismissal of the case without prejudice.
failure to comply with the certification against forum
When there are several petitioners, it is insufficient shopping since it requires notice and hearing (Section
that only one of them executes the certification, 5, Rule 7, RoC) and it is not one of the grounds for
absent a showing that he was authorized by the dismissal motu proprio (Section 1, Rule 9, RoC).
others. The certification requires personal knowledge
Are pleadings the only ones which can execute
and cannot be presumed that the signatory knew that
certificate of non-forum shopping?
his co-petitioners had the same actions filed or
pending. Hence, a certification that was signed
NO. Certificate of non-forum shopping is also
without proper authorization is defective and is a
required to be executed in initiatory pleadings.
valid cause for dismissal. (Fuentabella v. Castro, G.R.
No. 150865, June 30, 2006)
The certification against forum shopping is required
only in complaint or other initiatory pleading. The ex
Without the presence of the notary upon the signing
parte petition for the issuance of a writ of possession
of the Verification and Certification against Forum
is not an initiatory pleading. As an incident or
Shopping, there is no assurance that the petitioner
consequence of the original registration or cadastral
swore under oath that the allegations in the petition
proceedings, the motion or petition for the issuance
have been made in good faith or are true and correct
of a writ of possession, not being an initiatory
and not merely speculative. Thus, the absence of the
pleading, dispels the requirement of a forum-
notary when petitioner allegedly affixed her signature
shopping certification. (Metropolitan Bank & Trust
also negates a proper attestation that forum
Company v. Santos, G.R. No. 157867, December 15,
shopping has been committed by the filing of the
2009)
petition. Thus, the petition is, for all intents and
purposes, an unsigned pleading that does not deserve
Compulsory counterclaim do not need the execution
the cognizance of the Court. (De Lima v. Hon.
of certification of non-forum shopping. Meanwhile, a
Guerrero, G.R. No. 229781, October 10, 2017)
CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021
claim for non-payment of hospital bills is a permissive Every pleading shall contain the following:
counterclaim. Therefore, being a permissive
counterclaim, plaintiffs need to execute a 1. A methodical and logical form, a plain,
certification of non-forum shopping. (Sto. Tomas concise, and direct statement of the ultimate
University v. Surla, G.R. No. 129718, August 17, facts;
1998). 2. It shall include the evidence on which the
party pleading relies for his or her claim or Page | 59
defense, as the case may be.
SECTION 6: CONTENTS
Making an allegation in the pleading based on law

In addition to those mandated by Section 2, Rule 7, of If a cause of action or defense relied on is based on
the Rules of Court, every pleading shall state the law, the pertinent provisions thereof and their
following: applicability to him or her shall be clearly and
concisely stated (Section 1, Rule 8, RoC).
1. The names of witnesses who will be
presented to prove a party’s claim or Kinds of Facts - Ultimate facts
defense;
2. Summary of the witnesses’ intended The ultimate facts refer to the essential facts of the
testimonies, provided that the judicial
claim. A fact is essential if it cannot be stricken out
affidavits of said witnesses shall be attached
without leaving the statement of the cause of action
to the pleading and form an integral part
thereof. inadequate. (Ceroferr Realty Corporation vs. Court of
3. Documentary and object evidence in Appeals, 376 SCRA 144)
support of the allegations contained in the
pleading. The ultimate facts do not refer to the details of
probative matter or to the particulars of evidence by
GR: Only witnesses whose judicial affidavits are which the material elements are to be established.
attached to the pleading shall be presented by the They are the principal, determinate, constitutive
parties during trial. facts, upon the existence of which, the entire cause of
action rests. (Tantuico, Jr. v. Republic, 204 SCRA 428)
XPN: Meritorious reasons as basis for admission of
additional witnesses. Kinds of Facts - Evidentiary facts

Other additional requirements in the pleading: Those facts which are necessary for determination of
the ultimate facts; they are the premises upon which
1. Professional Tax Receipt No. and IBP Official conclusions of ultimate facts are based. (Womack v.
Receipt No.; Industrial Comm., 168 Colo. 364)
2. Mandatory Continuing Legal Education
Certificate of Compliance or Exemption; and Both kinds of facts must be alleged in the pleading. If
3. Roll Number of Attorneys. the evidentiary facts are yet to be discovered upon
4. the filing of the pleading, a statement must be made
that the evidentiary facts will be produced through
RULE 8: MANNER OF MAKING ALLEGATIONS IN the modes of discovery.
PLEADINGS

SECTION 2: CAUSES OF ACTION OR DEFENSES

SECTION 1: IN GENERAL

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 A party may set forth two or more statements of a supporting particulars as are peculiarly within the
claim or defense alternatively or hypothetically, pleader’s knowledge (Section 3, Rule 8, RoC).
either:
Natural persons
1. In one cause of action or defense; or
2. In separate causes of action or defenses. Those capacitated to sue or be sued when of legal
Page | 60
age.
SECTION 3: CONDITIONS PRECEDENT
Minors, and insane persons must be represented by
Conditions precedent are matters which must be their parents or a guardian ad litem (for minors), or
complied with before a cause of action arises. When guardian ad litem (for insane). Despite being
a claim is subject to a condition precedent, the incapacitated, the complaint must still be in their
compliance of the same must be alleged in the name.
pleading.
Domestic Corporations
Examples of Conditions Precedent
Domestic Corporations must be organized under the
1. Tender of payment before making a laws of the Philippines to have the capacity.
consignation;
2. Exhaustion of administrative remedies in Foreign Corporations
certain cases before resorting to judicial
action; A Foreign Corporation, in order to have the required
3. Resort to barangay conciliation proceedings capacity, must:
in certain cases;
4. Earnest efforts towards a compromise must 1. Organized under a foreign law and is licensed
be undertaken when the suit is between to do business in the Philippines; or
members of the same family, and if no 2. If not doing business in the Philippines, the
efforts were in fact made, the case must be Foreign Corporation must be suing under an
dismissed; isolated transaction.
5. Arbitration when the contract between the
parties provides for arbitration before Appointing a representative or distributor domiciled
recourse to judicial remedies. in the Philippines which transacts business in the
representative’s own name cannot be deemed not
SECTION 4: CAPACITY deemed as not “doing business” absence full control.
Design International is merely an independent
contractor. (Steelcase, Inc. v. Design International
Only natural or juridical persons, or entities
Selections, Inc., GR. No. 171995, April 18, 2012)
authorized by law may be parties in a civil action
(Section 1, Rule 3, RoC).
Lack of Capacity to Sue

Facts showing the capacity of a party to sue or be sued

The plaintiff does not have the necessary
or the authority of a party to sue or be sued in a
qualifications to sue. (Columbia Pictures, Inc. v. CA,
representative capacity or the legal existence of an
G.R. No. 110318, August 28, 1996).
organized association of persons that is made a party
must be averred. The remedy is to file an answer, raising lack of
capacity to sue as an affirmative defense.
A party desiring to raise an issue as to the legal
existence of any party or the capacity of any party to Lack of Personality to Sue
sue or be sued in a representative capacity, shall do
so by specific denial, which shall include such

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The plaintiff, being not a real party in interest, lacks In Pleading a Domestic or Foreign Judgment, Judicial
the personality to sue. (Columbia Pictures, Inc. v. CA, or Quasi-Judicial Tribunal, or a board or officer:
G.R. No. 110318, August 28, 1996)
1. It is sufficient to aver the judgment or
The remedy is to file an answer raising that the decision without setting forth the matter
complaint states no cause of action as an affirmative showing jurisdiction to render it;
2. An authenticated copy of the judgment or
Page | 61
defense.
decision shall be attached to the pleading.

NOTE: As a member of the Hague Convention, the

SECTION 5: FRAUD, MISTAKE, CONDITION OF THE requirement of legalization for foreign public
MIND documents is abolished. The authenticated copy
required under Rule 8, Section 6 need not to be
consularized. Foreign public documents need only to
In all averments of fraud or mistake, the
be apostilled or issued in accordance with the Hague
circumstances constituting fraud or mistake must be
Convention.
stated with particularity.

Malice, intent, knowledge, or other condition of mind SECTION 7: ACTION OR DEFENSE BASED ON
of a person may be averred generally (Section 5, Rule DOCUMENT
8, RoC).
An actionable document is a written document that is
The particulars for fraud or mistake necessarily used as a basis for the cause of action or for the
includes the specific acts of fraud committed against defense. It is a written instrument on which an action
the plaintiff. or defense is founded.

The general averments for malice, intent, knowledge, Whenever an action or defense is based on a written
or other conditions of the mind of a person is due to instrument or document, it is necessary to allege:
the difficulty in stating particulars.
1. The substance of such instrument or
Where specific allegations with particularity is document shall be set forth in the pleading;
required: and
2. The original or a copy thereof shall be
1. Capacity (Section 4, Rule 8, RoC; and attached to the pleading as an exhibit, which
2. Fraud or mistake (Section 5, Rule 8, RoC) shall be deemed to be a part of the pleading.

Where general allegations are permissible: SECTION 8: HOW TO CONTEST AN ACTIONABLE

DOCUMENT
1. Conditions precedent (Section 3, Rule 8, RoC);
2. Malice, intent, knowledge or other conditions
of the mind (Section 5, Rule 8, RoC); and Objection on allegations based on actionable
3. Judgment of a domestic or foreign court, document
judicial or quasi-judicial tribunal, or of a board
or officer. Provided, an authenticated copy of When an action or defense is founded upon a written
the judgment or decision shall be attached to instrument, or attached to the corresponding
the pleading (Section 6, Rule 8, RoC). pleading, the genuineness and due execution of the
instrument shall be deemed admitted unless:
SECTION 6: JUDGMENT
1. The adverse party specifically denies them
under oath;

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 2. Sets forth what he or she claims to be the 5. Fraud; (Bough and Bough v. Cantiveros,
fact. ibid.)
6. Statute of Limitation;
Statements such as “specifically deny” and “for being 7. Duress;
self-serving and pure conclusions” do not constitute 8. Imbecility;
denial. (Go Tong Electrical Supply v. BPI, G.R. No. 9. Mistake;
Page | 62 187487, June 29, 2015) 10. Minority;
11. Compromise; and
Genuineness and due execution of an actionable 12. Estoppel. (Hibberd v. Rohde and McMillian,
document not deemed admitted even if the pleading supra.)
is not under oath if:
These defenses are not consistent with the admission
of the genuineness and due execution of the
1. The adverse party does not appear to be a
party to the instrument; or instrument, and not, therefore, barred. (Hibberd v.
2. When compliance with an order for an Rohde and McMillian, supra.)
inspection of the original instrument is
refused.

Effect of Failure to Deny SECTION 9: OFFICIAL DOCUMENT OR ACT

When an adverse party fails to deny under oath the

In pleading an official document or official act, it is
genuineness and due execution of an actionable
sufficient to aver that the document was issued or the
document, the genuineness and due execution of the
act was done in compliance with law.
actionable document is deemed admitted as a
technical admission.
SECTION 10: SPECIFIC DENIAL
Defenses cut off when the genuineness and due
execution is admitted: Specific Denial by Absolute Denial

1. Forgery; Defendant must specify each material allegation of

2. Lack of authority to execute the document; fact the truth of which he or she does not admit and,
3. Party charged signed the document in some whenever practicable, shall set forth the substance of
other capacity; the matters upon which he or she relies to support his
4. That the document was never delivered; or or her denial.
5. The document was not in words and figures
as set out in the pleadings. Specific Denial by Partial Denial
Defenses that are implied from admission are waived.
Defendant must specify so much of it as is true and
(Hibberd v. Rohde and Mcmillian, G.R. No. 8418,
material and shall deny only the remainder.
December 9, 1915)
Specific Denial by Disavowal of Knowledge
Defenses not cut off when the genuineness and due
execution is admitted: Where a defendant is without knowledge or
information sufficient to form a belief as to the truth
1. Payment or non-payment;
of a material averment made to the complaint, he or
2. Want of consideration; (Bough and Bough v.
she shall so state, and this shall have the effect of a
Cantiveros, G.R. No. 13300, September 29,
1919) denial.
3. Illegality of consideration;
4. Usury; Form of denial must be availed of with sincerity and
good faith, not for the purpose of confusing the other

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party, nor for purposes of delay. (Warner Barnes vs. 10. Estoppel;
Reyes, G.R. No. L-9531, May 14, 1958) 11. Former recovery;
12. Discharge in bankruptcy;
A general denial does not become a specific denial by 13. Any other matter by way of confession and
the use of the words “specifically”. (Go Tong avoidance
Electrical Supply, Inc. vs BPI, G.R. 187487, June 29,
2015). Failure to raise the affirmative defense at the earliest Page | 63
opportunity shall constitute a waiver (Paragraph b,
Negative Pregnant Section 12, Rule 8, RoC).

A form of negative expression which carries with it an Resolve motu proprio

affirmation or at least an implication of some kind
favorable to the adverse party. It is an ambiguous The court shall motu proprio resolve the affirmative
expression that where only a qualification of the defenses within thirty (30) days from the filing of the
answer (Paragraph c, Section 12, Rule 8, RoC).
allegation is denied, and not the allegation itself.

As to the other affirmative defenses under Rule 6, the

SECTION 11: ALLEGATIONS NOT SPECIFICALLY
courts may:
DENIED DEEMED ADMITTED
1. Conduct a summary hearing within fifteen
Material averments in a pleading asserting a claim or (15) calendar days from the filing of the
claims other than those as to the amount of answer;
unliquidated damages shall be deemed admitted 2. Such affirmative defenses shall be resolved
when not specifically denied. by the court within thirty (30) calendar days
from the termination of the summary
hearing.
SECTION 12: AFFIRMATIVE DEFENSES
Denial of Affirmative Defenses:
Affirmative defenses are raised in the answer.
Affirmative defenses, if denied, shall not be the
Affirmative Defenses under Rule 8: subject of a motion for reconsideration or petition for
certiorari, prohibition, or mandamus, but may be
1. Lack of jurisdiction over the person of the among the matters to be raised on appeal after a
defendant; judgment on the merits.
2. Venue is improperly laid;
3. The plaintiff has no legal capacity to sue; SECTION 13: STRIKING OUT OF PLEADING OR
4. The pleading states no cause of action; and
MATTER CONTAINED THEREIN
5. A condition precedent for filing the claims
has not been complied with.
The court may order any pleading to be stricken out
Affirmative Defenses under Rule 6: or that any sham or false, redundant, immaterial,
impertinent, or scandalous matter be stricken out
1. Lack of jurisdiction over the subject matter; therefrom:
2. Litis pendentia;
3. Res judicata; 1. Upon motion made by a party before
4. Fraud; responding to a pleading or, if no responsive
5. Statute of limitations; pleading is permitted by these Rules;
6. Release; 2. Upon motion made by a party within 20
7. Payment; calendar days after the service of the
8. Illegality; pleading upon him or her; or
9. Statute of frauds; 3. Upon the court's own initiative at any time.
CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021
 3. Will substantially the same evidence support
or refute the plaintiff’s claim as well as the
defendant’s counterclaim?
RULE 9: EFFECT OF FAILURE TO PLEAD
4. Is there any logical relation between the
claim and the counterclaim?

Page | 64 A positive answer to all these questions would

SECTION 1: DEFENSES AND OBJECTIONS NOT
indicate that the counterclaim is compulsory.
PLEADED
NOTE: Under Section 10, Rule 11, when a pleader fails
Defenses and objections not pleaded either in the to set up a counterclaim or cross-claim through
motion to dismiss or in the answer are deemed oversight, inadvertence, or excusable neglect, or
waived. when justice requires, he may, by leave of court, set
up the counterclaim or cross-claim by amendment
Grounds for Motu Proprio Dismissal before judgment.

1. The court has no jurisdiction over the subject SECTION 3: ORDER OF DEFAULT AND JUDGMENT
matter;
BY DEFAULT
2. that there is another action pending
between the same parties for the same
cause; Declaration in Default
3. That the action is barred by a prior judgment;
or If the defending party fails to answer within the time
4. By statute of limitations allowed, the court shall declare him in default:

SECTION 2: COMPULSORY COUNTERCLAIM AND 1. Upon the motion of the claiming party;
CROSS-CLAIM NOT SET UP BARRED 2. With notice to the defending party; and
3. Proof of failure to answer within the time
allowed.
Compulsory Counterclaim
A default order is issued by the court, on plaintiff’s
Arises out or necessarily connected with the motion and at the start of the proceedings, for failure
transaction or occurrence constituting with the of the defendant to file his responsive pleading
subject matter and therefore it has a logical seasonably.
connection with the subject matter.
Declaring a Defendant in Default Motu Proprio
Permissive Counterclaim
A court cannot motu proprio declare a defendant in
A counterclaim is permissive if any of the elements of default. A motion in writing is required in order to
a compulsory counterclaim is absent. Its most declare the defendant in default.
common feature is the absence of a logical
connection with the subject matter. In environmental cases, the court in itself may declare
a defendant in default for failure to file his answer.
Test for Compulsory Counterclaim (Section 15, Rule II, Rules on Environmental Cases)

1. Are the issues of fact and law raised by the Rendition of Judgment by Default
claim and the counterclaim largely the
same? If the defending party is declared to be in default, the
2. Would res judicata bar a subsequent suit on court shall proceed to render judgment granting the
defendant’s claims, absent the compulsory
claimant such relief as his pleading may warrant,
counterclaim rule?
unless the court in its discretion requires the claimant
CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021
to submit evidence. Such reception of evidence may A defending party declared in default has the right to
be delegated to the clerk of court (Section 3, Rule 9, appeal. The grounds which may be raised are limited
RoC). to the following:

A judgment by default is a judgment rendered by the 1. Failure of the plaintiff to prove the material
court based on the presentation of the plaintiff’s allegations of the complaint;
Page | 65
evidence ex parte after the defendant has been 2. The decision is contrary to law; and
declared in default, and the award shall not exceed 3. The amount of judgment is excessive or
the amount or be different from the kind of prayer different in kind from that prayed for (Otero
that the plaintiff complaint as the facts and evidence v. Tan, G.R. No. 200134, August 15, 2012).
so warrant.
Remedy in case a party in default
NOTE: Other than failing to file an answer within the
A party declared in default may at any time after
time allowed, a party can be declared in default for
notice thereof and before judgment , file a motion
failure to comply with the modes of discovery.
under oath to set aside the order of default upon
proper showing that:
Requisites before a Declaration of Default:
1. His or her failure to answer was due to fraud,
1. The court must have validly acquired
accident, mistake, or excusable negligence;
jurisdiction over the person of the defending
and
party, either by service of summons or
2. That he or she has a meritorious defense.
voluntary appearance;
2. The defending party must have failed to file
In such case, the order of default may be set aside on
his answer within the time allowed therefor;
such terms and conditions as the judge may impose in
3. The claiming party must file a motion to
declare the defending party in default; the interest of justice.
4. The claiming party must prove that the
defending party has failed to answer within “Meritorious defense” means that the motion must
the period provided by the ROC (Sablas v. be accompanied by a statement of the evidence
Sablas, G.R. No. 144568, July 3, 2007); which he intends to present if the motion is granted
5. The defending party must be notified of the and which is such as to warrant a reasonable belief
motion to declare him in default (Sec. 3, Rule that the result of the case would probably be
9); otherwise if a new trial is granted (Kilosbayan v.
6. There must be a hearing set on the motion Janolo, G.R. No. 180543, July 27, 2010).
to declare the defending party in default
(Spouses de los Santos v. Carpio, G.R. No. Effect of Partial Default
153696, 2006)(1 Riano 364, 2014).
When a pleading asserting a claim states a common
Effect of an Order of Default
cause of action against several defending parties,
some of whom answer and the others fail to do so,
The party declared in default can no longer take part
the court shall:
in the trial. However, he is still entitled to notice of
subsequent proceedings.
1. Try the case against all upon the answers
thus filed; and
Declaration of default is not tantamount to an 2. Render judgment upon the evidence
admission of the truth or the validity of the plaintiff’s presented.
claims. It is merely a waiver of the right to be heard
and to present evidence in the defendant’s favor. “Meritorious defense” means that the motion must
be accompanied by a statement of the evidence
which he intends to present if the motion is granted

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 and which is such as to warrant a reasonable belief How will Amendment be made
that the result of the case would probably be
otherwise if a new trial is granted (Kilosbayan v. Pleadings may be amended in the following manner:
Janolo, G.R. No. 180543, July 27, 2010).
1. Adding or striking out an allegation or the
Extent of the relief that can be awarded name of any party;
Page | 66 2. Correcting a mistake in the name of a party;
In order to safeguard a defendant’s right to due 3. Correcting a mistake or inadequate
process against unforeseen and arbitrarily issued allegation or description in any other
judgments, a judgment rendered against a party in respect.
default shall neither exceed the amount or be
The words ‘Amended Complaint’ must be placed in
different in kind from that prayed for nor award
order to distinguish it from the original complaint.
unliquidated damages. (Gochangco v. CFI Negros
Identifying marks such as underline would
Occidental, G.R. No. L-49396, January 15, 1998).
immediately show which of the content was
amended.
Liquidated and Unliquidated Damages
The admission of an amended complaint vacates the
Liquidated damages are those which are already fixed
original complaint.
and proof or evidence to establish the same are not
required.
SECTION 2: AMENDMENTS AS A MATTER OF
Unliquidated damages are those which are still RIGHT
subject to evidence before it can properly be awarded
such taking of testimonies to determine mental A party may amend his pleading once as a matter of
anguish or besmirched reputation in cases of moral right at any time before a responsive pleading is
damages. served or, in the case of a reply, at any time within ten
(10) calendar days after it is served (Section 2, Rule
Cases where a Declaration or Order of Default 10, RoC).
cannot be made
Responsive pleadings are those which seek
1. Action for annulment; affirmative relief and/or set up defenses, like an
2. Action for declaration of nullity of marriage; answer.
3. Action for legal separation;
4. Cases under Small Claims; Note: A motion to dismiss is not a responsive pleading
5. Cases under Summary Procedure; and its filing does not preclude the exercise of the
6. Cases involving intra-corporate
plaintiff’s right to amend his complaint (Riano, p. 370,
controversies
2019.)

Remedy when Motion to Amend as a Matter of Right

Denied
RULE 10: AMENDED AND SUPPLEMENTAL
PLEADINGS
The proper remedy is to file a petition for mandamus
under Section 3, Rule 65, since it is ministerial duty on
the part of the court to allow amendment on the
SECTION 1: AMENDMENTS IN GENERAL pleading before the filing of a responsive pleading.

Test to Determine if an Amendment Introduces a

Amendment is an act of adding, changing, Different Cause of Action
substituting, or omitting something from a pleading
or instrument.
CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021
The amendment introduces a different cause of cause of action or defense, the amendments sought
action if under it, the defendant is required to answer to be made shall serve the higher interests of
for a liability or obligation which is completely substantial justice, and prevent delay and equally
different from that stated in the original complaint. promote the laudable objective of the rules which is
to secure a just, speedy and inexpensive disposition
When the amended complaint does not introduce of every action and proceeding. (Philippine Ports Page | 67
new issues, causes of action, or demands, the suit is Authority v. WG&A, G.R. No. 158401, January 28,
deemed to have commenced on the date the original 2008)
complaint was filed.
Grounds to Deny Leave of Court
The original complaint is deemed abandoned and
superseded by the amended complaint only if the If it appears to the court that the motion was made
amended complaint introduces a new or different with intent to delay or confer jurisdiction on the
cause of action or demand (Verzosa v. CA, G.R. No. court, or the pleading stated no cause of action from
119511-13, November 24, 1998). the beginning which could be amended, the leave of
court shall be refused (Section 3, Rule 10, RoC).
Original Complaint - When an Amended Complaint is
admitted or approved When Substantial Change or Alteration in the Cause
of Action or Defense Allowed
The original complaint is regarded as abandoned and
ceases to perform any further function as a pleading. Amendments with leave of court should be applied
The original complaint no longer forms part of the with liberality by reason of public policy.
record. If the petitioner had desired to utilize the
original complaint she should have offered it in Amendments sought to be made shall serve the
evidence. Having been amended, the original higher interests of substantial justice, prevent delay
complaint lost its character as a judicial admission, and equally promote the laudable objective of the
which would have required no proof, and became rules which is to secure a ‘just, speedy, and
merely an extrajudicial admission, the admissibility of inexpensive disposition of every action and
which, as evidence, required its formal offer (Torres proceeding.
v. CA, G.R. No. 197923, June 22, 2015).
SECTION 4: FORMAL AMENDMENTS
When a pleading is amended, the original pleading is
deemed abandoned. The original ceases to perform
Amendments for the defect in the designation of the
any further function as a pleading. The case stands for
parties and other clearly clerical or typographical
trial on the amended pleading only. On the basis of
errors constitute formal amendments.
the foregoing, the additional docket fee to be paid by
the petitioners should be based on their amended Formal amendments may be corrected by the court
complaint (Magaspi v. Ramolete, G.R. No. L-34840, at any stage of the action, either at its own initiative
July 20, 1982). or on motion - provided that no prejudice is caused to
the adverse party.
SECTION 3: AMENDMENTS BY LEAVE OF COURT
SECTION 5: NO AMENDMENT NECESSARY TO
Substantial amendments may be made only upon CONFORM TO OR AUTHORIZE PRESENTATION OF
leave of court (Section 3, Rule 10, RoC). EVIDENCE

The amendment may substantially alter the cause of

With express or implied consent of the parties, the
action or defense. This should only be true, however,
court acquires jurisdiction over the issues even if the
when despite a substantial change or alteration in the
same are not alleged in the original pleadings.
CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021
 Without any objection made by the adverse party, filed with leave of court, its admission is
jurisdiction over issues not alleged in the original discretionary upon the court.
pleadings is acquired by the courts, and no
amendment shall be necessary to cause them to Remedy of the Adverse Party
conform to the evidence.
The adverse party may plead within ten (10) calendar
Page | 68 days from notice of the order admitting the
The rule, however, does not apply when the case was
decided on a stipulation of facts in which case the supplemental pleading.
pleadings are not deemed amended to conform to
the evidence (MWSS v. CA, et al., G.R. No. 54526, A court may allow a party, upon motion, to serve a
Aug. 25, 1986). supplemental pleading after reasonable notice has
been given to the other party (Leobrera v. CA, G.R.
The trial court should not be precluded from No. 80001, February 27, 2989).
awarding an amount higher than that claimed in the
pleadings notwithstanding the absence of the Supplemental complaint should only supply
required amendment, provided that the evidence of deficiencies in aid of an original complaint. It should
such higher amount has been presented properly, only contain causes of action relevant and material to
with full opportunity on the part of the opposing the plaintiff’s right and which helps the plaintiff’s right
parties to support their respective contentions and to or defense. It cannot be used to try a new matter or a
refute each other’s evidence (Northern Cement Corp. new cause of action since it must be based on matters
v. IAC, et al., G.R. No. 68636, Feb. 29, 1988). arising subsequent to the original complaint
(Leobrera v. CA, G.R. No. 80001, February 27, 2989).

SECTION 6: SUPPLEMENTAL PLEADINGS

SECTION 7: FILING OF AMENDED PLEADINGS

When can Supplemental Pleading be filed

Requirements in the Filing of an Amended Pleading
Upon the motion of the party, the court may, upon (Section 7, Rule 10, RoC)
reasonable notice and upon such terms as are just,
permit him or her to serve a supplemental pleading When any pleading is amended and filed, it shall
setting forth transactions, occurrences, or events comply with the following requirements:
which have happened since the date of the pleading
1. A new copy of the entire pleading;
sought to be supplemented (Section 6, Rule 10, RoC).
2. Incorporating the amendments; and
3. It shall be indicated by appropriate marks,
Differences between Amended and Supplemental
shall be filed.
Pleadings
Appropriate marks include:
1. Amended pleadings refer to facts existing at
the time of the commencement of the 1. Underscoring;
action - Supplemental pleadings refer to 2. Enclosing in quotation marks;
facts arising after the filing of the original 3. Putting them in capital letters, as would
pleading. make them evident.
2. Amended pleadings result in the withdrawal
of the original pleading - Supplemental
pleadings does not result in the withdrawal SECTION 8: EFFECTS OF AMENDED PLEADING
of the original pleading.
3. Amended pleadings can be made as a matter An amendment of a pleading shall have the following
of right, as when no responsive pleading has effects:
yet been filed - Supplemental pleadings are
CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021
 1. It supersedes the pleading that it amends; If the plaintiff filed it not as a matter of right, the
2. Admissions in superseded pleadings may be period is within 15 calendar days from the notice of
offered in evidence against the pleader; and the order granting or admitting the same.
3. Claims or defenses alleged therein not
incorporated in the amended pleading shall The same rule shall apply to the answer to an
be deemed waived. amended counterclaim, amended crossclaim, Page | 69
amended third-party complaint (or fourth, etc. as the
Even with the admission of the amended pleading
case may be), and when it is an amended complaint-
amounts to the withdrawal of the original pleading,
in-intervention. (Section 3)
the latter is not expunged, but remains in the record
of the case. Reference can be readily made to the
Note: If no answer was filed in the amended
original pleading regarding the effect of the
complaint that was filed with leave of court and not
amendment.
as a matter of right, you will not be declared in default
RULE 11: RESPONSIVE PLEADINGS if no answer was filed on the amended complaint
because there was already an answer that was filed
When to file Responsive Pleadings?
on the original complaint.
Answer to a Complaint (when the service of summons
Answer to counterclaim or crossclaim - within 20
is personal or substituted) - within 30 calendar days
calendar days from service of the pleading responded
after service of summons, unless there is a different
to. (Section 4)
period fixed by court. (Section 1)
Note: If the party already has a compulsory
Notes:
counterclaim or a crossclaim at the time such party
• Same rule shall apply to third party complaints
files an answer, such compulsory counterclaim or
and fourth party complaints.
• Period to file an answer when the service of crossclaim shall be included in the answer. (Section 8)
summons is made by publication is 60 days after
notice (Sec. 15, 16, 17, Rule 14) If the party acquired a counterclaim or a crossclaim
after serving his or her pleading, the party, with
Answer of a foreign corporation defendant – permission of the court, may present such by
• When the summons is served on a resident agent supplemental pleading before the judgment. (Section
of the foreign juridical entity, who’s duty is 9)
merely to receive summons, the period to file an
answer is within 30 calendar days from the If the party fails to set up a counterclaim or a
receipt of the summons by the resident agent. crossclaim, such party may, with leave of court, set up
• If there is no resident agent, the summons will be a counterclaim or crossclaim by amendment before
served on a government entity who’s been, by the judgment, provided however, that there is a
law, designated to receive the same, and the showing and justification that such failure was due to
government entity shall give it to any of the
oversight, inadvertence, excusable neglect, or when
directors or officers of the foreign juridical entity.
justice so requires. (Section 10)
The period is within 60 calendar days from
receipt. (Section 2)
Answer to third-party complaint (or fourth, etc. as
Answer to an amended complaint - if the plaintiff the case may be) - within 30 calendar days after
filed it as a matter of right, the period is within 30 service of summons, unless there is a different period
calendar days after being served a copy of the fixed by court. (Section 5)
amended complaint.
Reply - if allowed under Section 10, Rule 6, within 15
calendar days from service of such pleading
responded to. (Section 6)

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 complaint is filed and pending before the court, refers
Note: You only file a reply if you want to deny the due only to the original period. The motion to dismiss was
execution and authenticity of a pleading attached to filed before the expiration of the period for filing
the answer. defendant’s answer as extended by the court, hence
there was no legal reason for declaring defendant in
Page | 70 Answer to supplemental complaint - within 20 default
calendar days from notice of the order admitting the Illustrations:
same, unless there is a different period fixed by court.
(Section 7) Q: How many days within which to file an answer?

In Delbros Hotel Corporation vs. IAC, the Court stated A: It depends. Under Rules on Summary Procedure,
that a supplemental pleading is not like an amended within 10 days. If it is a response under small claims,
pleading — substitute for the original one. It does not within 10 days also.
supersede the original, but assumes that the original
pleading is to stand, and the issues joined under the In ordinary civil actions, it depends on how the
original pleading remain as issues to be tried in the summons was served. If it is personal, the period
action. within which to file an answer is 30 calendar days
after service of summons, unless a different period is
Answer to a bill of particulars- file within 10 calendar fixed by court. However, if the summons was served
days from service thereof. via publication, the period within which to file an
answer will be 60 days after notice of any order
Answer to intervention- within 15 calendar days from granting the service through publication.
notice of the order admitting the same, unless a
different period is fixed by the court. Q: Are there any instances where a foreign
corporation is not served through a government
Extension to file an answer - A defendant may be entity?
granted an additional period of not more than 30
calendar days to file an answer provided that such is A: Yes. A foreign corporation that is duly-licensed to
for meritorious reasons. conduct business in the Philippines normally should
have a resident-agent. The job of a resident-agent is
No party can ask for an extension of time if the to receive summons. If the summons was served to
pleading to be submitted is not an answer. and received by the resident-agent, that foreign
corporation has a period of 15 calendar days within
A defendant is only allowed to file one motion for which to file an answer to the complaint. If there is no
extension to file an answer. You cannot file any such resident-agent and the summons was given to
motion for extension to file a reply or rejoinder. Only the government entity exercising supervision over
for an answer. (Section 11) such corporation, Section 2 of Rule 11 provides that
the defendant foreign private juridical entity shall
In the case of Sps. Barraza vs. Campos, the issue was have 60 calendar days after the receipt of such
whether the judge may order the defendant in default summons by the entity.
when such defendant filed a motion for extension of
time to answer. However, instead of filing an answer, Q: X filed a complaint. Z filed his answer 10 days
such defendant filed a motion to dismiss. The court after service of summons. X found a need to amend
stated that it must be remembered that motion to his complaint. What should X do next? What will
dismiss interrupts, not only original perion to plead, happen?
but also the extended period to plead. There is
nothing in the rules that provides that the A: X now needs to file a Motion to File Amended
interruption of the running of the period within which Complaint. If such motion is granted, defendant Z will
to file an answer when a motion to dismiss the be given a period of 15 calendar days from notice of
CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021
the order admitting the same to file an answer to the A: The same rules shall apply. It will be either within
amended complaint. 15, within 30, or within 60 calendar days as the case
may be.
As an answer was already filed previously, such filing
of the amended complaint is not a matter of right Q: An answer to a supplemental complaint must be
anymore. Paragraph 2, Section 3 of Rule 11 states that made within 20 calendar days from the notice of the Page | 71
where the filing is not a matter of right, the defendant order admitting the same, however, what will
shall answer the amended complaint within 15 happen if there is no answer filed to the
calendar days from notice of the order admitting the supplemental complaint?
same. The period shall be reckoned on the day of the
notice of the order that admitted such amended A: The same rule with unanswered amended
complaint, not from the service of summons. complaint. The original answer shall serve as the
Furthermore, there is no need for a new service of answer to the supplemental complaint. (Section 7)
summons because the court has already acquired
jurisdiction over the person of Z. Q: How many days within which to file an answer to
a permissive counterclaim?
Q: If Z, for whatever reason, did not file an answer to
the amended complaint, what is the effect? A: Section 4 of Rule 11 provides for the period within
which to file an “answer to counterclaim or
A: Z will not be declared in default, this is because the crossclaim”. Statutory Construction taught us that if
court already acquired jurisdiction over his person. the law does not distinguish, we should not
His original answer will serve as his answer to the distinguish. Therefore, the period is the same, 20
amended complaint. The net effect would be that calendar days, whether the counterclaim is
those matters introduced in the amended complaint permissive or compulsory.
will be deemed admitted because there is no denial.
--
Q: The last day within which to file an answer to the In David vs Gutierrez-Fruelda, it was stated that
complaint of Y happened to fall on June 14, a default orders are not viewed with favor, but this in
Sunday, W filed his answer the day after. Was the this case, clearly, petitioner failed to comply with the
answer seasonably filed? requirements of Section 3b, Rule 9 which is the
motion was not under oath, therefore there was no
A: Yes. If the last day falls on a Saturday, Sunday, or a allegation that plaintiff’s failure to file an answer or
holiday, the deadline will be the next working day. any responsive pleading was due to fraud, accident,
mistake, or excusable negligence. While petitioner
Q: W filed a motion for extension of time to file an merely stated that declarations of default are
answer, when will be the reckoning point of the frowned upon, when you file a motion to set aside an
extension? order of default, it must be done under oath, with any
of fraud, accident, mistake, or excusable negligence
A: The reckoning point will start from the actual as your ground, and you must submit a meritorious
deadline or last day of the period. It does not matter defense.
if it fell on a Saturday, Sunday, or a holiday. In this
case, the counting should start on the original RULE 12: BILL OF PARTICULARS
deadline which is June 14, a Sunday.
SECTION 1

Q: When do you file an answer to a 3rd-party Purpose

complaint?
Before responding to a pleading, a party may move
for a definite statement or for a bill of particulars of
CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021
 any matter, which is not averred with sufficient 6. Particulars of details of computation of bank
definiteness or particularity, to enable him or her account were allowed; technicalities are frowned
properly to prepare his or her responsive pleading. upon; or

Example: In fraud cases 7. Conclusions of law – deceit, machination, false

pretenses, misrepresentations and threats are
Page | 72
When you allege fraud, you must state it or allege it conclusions of law and mere allegations thereof
with particularity. When the complaint merely says without a statement of the facts to which such terms
the defendant, through fraudulent machinations, due have references are not sufficient (Herrera, 2007).
plaintiff into signing the deed of absolute sale. Your
remedy is not to file a Motion to Dismiss on the SECTION 2
ground of failure to state a cause of action. Your
Action of the court (DeGA)
remedy is to file a motion for bill of particulars.
1. Deny it outright
Example: the defendant fraudulently sold his
2. Grant it outright
property to the plaintiff. Mahirap manghula. You will
3. Allow the parties the opportunity to be heard.
not know how to respond, di mo alam ano ung
fraudulent na sinasabi.
SECTION 3
Period to file the motion
Compliance with the order
If the pleading is a reply, the motion must be filed
within ten (10) calendar days from service thereof. If the motion is granted, either in whole or in part:
Such motion shall point out the defects complained
of, the paragraphs wherein they are contained, and • The compliance therewith must be effected
the details desired. within ten (10) calendar days from notice of
the order, unless a different period is fixed
Note: You do not move to strike off immediately the by the court.
reply if there are particulars that are so wanting. You
file a bill of particulars. Manner of compliance

Instances when a bill of particulars is allowed: • File an amended pleading, specifying with
particularity the requested details
1. When the allegations are indefinite and uncertain • File an answer to the Motion for Bill of
Particulars and the answer shall form part of
that the nature cannot be understood therefrom;
the pleading against which a motion for
particular was filed.
2. When the allegations are so vague that they do not
appear therefrom in what capacity a party sues or is SECTION 4
issued;
Effect of non-compliance
3. When the allegations are uncertain as to time,
place, quantity, title, person, or any other matter If the order is not obeyed, or in case of insufficient
required to be pleaded with certainty; compliance therewith, the court may order:

4. When the allegations are faulty in duplication, • The striking out of the pleading or the
setting out two grounds for a single claim; portions thereof to which the order was
directed
5. When denials are so indefinite and uncertain that it • Make such other order as it deems just (For
cannot be understood what is denied and what is instance, you can file to have the case
admitted;
CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021
 dismissed precisely because you do not the moving party may file his or her responsive
know what the other party is talking about.) pleading within the period to which he was entitled as
of the time of the filing of the motion. Technically, you
SECTION 5
have one day left, but in no case shall it be less than
5 days. Hence, November 20.
Effect on the period to file a responsive pleading
If denied, you have until November 10 within which Page | 73
After service of the bill of particulars or of a more to file your answer to the complaint.
definite pleading, or after notice of denial of his or her
motion, the moving party may file his or her In other words, Motion for BOP stops the running for
responsive pleading within the period to which he or the period within which to file the answer. Upon the
she was entitled at the time of filing his or her motion, filing of the answer, the period will resume again
which shall not be less than five (5) calendar days in depending on when you receive the order denying
any event. the motion for BOP. After which, you will have
remaining period within which to file an answer, but
Example 1: if I file an answer against martin and in no case shall it be less than 5 days.
summons was served to him on June 1. Technically,
If granted, the period will commence when you
Martin has 30 days from June 1 within which to file an
receive the amended complaint or answer to the
answer. After reading the complaint, Martin find it
motion for BOP, and you have the remaining period,
confusing. Hence, on June 5, 4 days after the service
but in no case shall it be less than 5 days.
of summons, Martin filed a bill of particulars, and then
on July, it was denied. Note: Calendar days include holidays and weekends.
If the deadline falls on such days, the deadline shall
Q: Until when can he file an answer? be the next working day.
A: 30-4. He has 26 days from the receipt of court
order denying the motion for bill of particulars.
SECTION 6
Q: What if he filed the motion for bill of particulars
on the last day within which he can file an answer. Bill of particulars becomes part of the pleading for
which it is intended.
A: If it is denied, he is granted a period of not less than
5 days within which to file an answer to the i.e. In the manner of compliance to the order granting
complaint. the Motion for Bill of Particulars, when you file an
answer to the motion for BOP, your answer to the
Example 2:
motion for BOP will be deemed incorporated or made
• You received the complaint on August 1 part of the original complaint.
• You filed a Motion for Bill of Particulars (BOP)
on August 30 BAR QUESTION
• You received the order granting the Motion
for BOP on November 5 and the other party Q: Within the period for filing a responsive pleading,
supplemented it, filed an amended complaint the defendant filed a motion for bill of particulars
• You received it November 15. that he set for hearing on a certain date. However,
the defendant was surprised to find on the date set
for hearing that the trial court had already denied
Q: Until when can you file an answer? the motion on the day of its filing, stating that the
A: You have until November 20. allegations of the complaint were sufficiently made.

Rationale: After serving the BOP or a more definite

pleading or after notice of denial of his or her motion,

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 1. Did the judge gravely abuse his discretion in acting the complaint does not provide for the evidentiary
on the motion without waiting for the hearing set for basis of the allegations. Motion for BOP is merely to
the motion? determine the particularity of a given allegations.

2. If the judge grants the motion and orders the Agcanas vs. Mercado (1963)
plaintiff to file and serve the bill of particulars, can
Page | 74
the trial judge dismiss the case if the plaintiff does Both a motion to dismiss and a motion for a bill of
not comply with the order? (2008 Bar) particulars interrupt the time to file a responsive
pleading. In the case of a motion to dismiss, the
A: period starts running against as soon as the movant
receives a copy of the order of denial. In the case of a
1. NO. Sec. 2, Rule 12 authorizes the court to either motion for a bill of particulars, the suspended period
deny or grant said motion outright or allow the shall continue to run upon service on the movant of
parties an opportunity to be heard. The court is not the bill of particulars, if the motion is granted, or of
mandated to conduct a hearing. the notice of its denial, but in any event he shall have
not less than five days within which to file his
2. YES. Sec. 4, Rule 12 authorizes the court to order responsive pleading.
the striking out of the pleading affected, hence the
dismissal of the complaint. To the same end is the Note: When you file a Motion for BOP, it is incumbent
provision of Sec. 3, Rule 17 when the plaintiff fails to upon the court to rule on the motion for the BOP
comply for no justifiable cause with any order of the because the action of the court will determine when
court or with the Rules. you are bound to file an answer. The court cannot
simply brush it aside.
Salita vs. Magtolis (1994)
Q: I filed a motion to dismiss. Denied. What is the
A complaint only needs to state the “ultimate facts period of time within which to file an answer?
constituting the plaintiff’s cause or causes of action.”
Ultimate facts has been defined as “those facts which Old Rule 16: You have the remaining period within
the expected evidence will support.” As stated by which to file your answer, but in no case less than 5
private respondent, “[t]he term does not refer to the days.
details of probative matter or particulars of evidence
by which these material elements are to be Now: you only have the remaining period within
established.” In the new rule, kailangan may which to file your answer should your motion to
evidentiary facts. It refers to "the facts which the dismiss was denied, meaning, if you filed it on the last
evidence on the trial will prove, and not the evidence day, you only have 1 day to file your answer since the
which will be required to prove the existence of those 5-day period was removed in the amendment.
facts." And a motion for bill of particulars will not be
granted if the complaint, while not very definite, Santos vs Liwanag (1980)
nonetheless already states a sufficient cause of
action. A motion for bill of particulars may not call for The allowance of a motion for a more definite
matters which should form part of the proof of the statement or bill of particulars rests within the sound
complaint upon trial. Such information may be judicial discretion of the court and, as usual in matters
obtained by other means of a discretionary nature, the ruling of the trial court
in that regard will not be reversed unless there has
Note: The function of the Bill of Particulars is to ask been a palpable abuse of discretion or a clearly
the other party to particularize the allegations in the erroneous order.
complaint. The motion for BOP, its office is not to
obtain evidence from the other party. In the first Note: This is an example where the proper remedy is
place, motion for BOP is not the proper remedy when a Motion for BOP especially when fraud is not alleged
with particularity.
CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021
Since it is discretionary, you cannot impute grave Filing
abuse of discretion just because the Court denied
your motion. The act of submitting the pleading or other paper to
the court.
Guy v Guy (2012)
Service
Page | 75
Doubt as to the meaning of the pleading may be
resolved by seeking a bill of particulars. A bill of The act of providing a party with a copy of the
particulars may be ordered as to a defense of fraud or pleading or any other court submissions.
mistake if the circumstances constituting fraud or
mistake are not stated with the particularity required There must be at least 4 copies:
by the rule. However, this rule does not apply to intra-
corporate controversies, small claims, or rules on 1. Copy of the court
summary procedure. x x x It is essential, therefore, for 2. Copy of the plaintiff
3. Copy of the defendant
the complaint to show on its face what are claimed to
4. An extra copy
be the fraudulent corporate acts if the complainant
wishes to invoke the court’s special commercial One counsel for several parties – 1 copy only.
jurisdiction.
Several counsels for one party – entitled only to 1
Note: If you file a complaint and you did not allege a copy served to lead counsel if designated or any of
matter that is required to be alleged with them if no lead counsel.
particularity, the remedy by the other party is to file a
motion for BOP. In thsi case, no m for BOP was filed. If a party appears through a counsel, serve to the
However, the case was considered as a nuisance case counsel. If a defendant engaged several lawyers, it is
and case was thrwon out because precisely, there was best practice to have one designated lead counsel
nothing in the complaint that would show that his who is entitled to receive a copy of everything and for
signature was forged. His allegations that there was purposes of reckoning whatever documents you have
fraudulent machinations employed by the other party to submit, it will be reckoned from the receipt of the
was not even subtantiated by any specific allegations. lead counsel.

RULE 13: FILING AND SERVICE OF PLEADINGS, Q. A is one of the three counsels of X, and was
JUDGMENT AND OTHER PAPERS designated as the lead counsel. Counsel B received
the pleading on January 2, while counsel C received
SECTION 1: COVERAGE it on January 5, and lead counsel A received it on
January 6. What is the period of time within which
Associate the verb “file” in court and “service” or
“serve” to other party. The rule is to serve first to the to file an appeal?
other party before you file in court. The court will not
A. It would be reckoned from the date that A received
receive pleading, motions, and other court
the pleading even if he received it last, since he is the
submissions unless it is shown that you have first
lead counsel made in the court record, for purposes
served a copy thereof to the opposing counsel.
of counting the period to appeal, it would be
reckoned from A.
What should be filed?
Philippine Ports Authority v Sargasso Construction
Pleadings, motions, and other court submissions, as
well as their service, except those for which a Without a lead counsel being designated, Notice to
different mode of service is prescribed. anyone of the several counsels on record is equivalent
to notice to all and such notice starts the time,
SECTION 2: FILING AND SERVICE running for appeal, not standing that the other
CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021
 counsels on record has not received a copy of the
decision. Q: How many copies should be prepared when you
are going to submit an answer in court?
Garucho v CA
A: 4 copies (1-adverse party, 1 to the court, 1-lawyer
Section 2, Rule 13 provides that if a party has who filed the answer, 1-the client)
Page | 76 appeared by counsel, service upon him shall be made
upon his counsel unless served upon the party himself SECTION 3: MANNER OF FILING
is ordered by the trial court. The Supreme Court said, How do you file in court?
the counsel of record must inform the court of his
change of address, otherwise, the service in his last Personal: Literally going to court and handing the
address shall be deemed sufficient and complete and pleading over. The clerk of court shall endorse the
that would bind the said parties. It is the duty of a date and hour of filing.
party-litigant to be in contact with his counsel from
time to time in order to be informed of the progress Registered mail: Registry return card/ Registry receipt
of his case. with name of recipient, signature, and date of receipt
as proof that you mailed it to the opposing party and
Ex: Mr. Evangelista appeared for the case filed against to the court.
him, and he, through his counsel, is required to
submit an answer. But instead of serving the answer Date of mailing as shown by the post office stamp on
through the other party’s counsel, he directly served the envelope or registry receipt, shall be considered
it to the client (other party). In this case, it is as if he as the date of filing, payment, or deposit in court.
never filed anything in court, and the other party can
move to declare him in default. The date when you had it received by the post office,
UP v Dizon is the date of submission in court.

This is clear enough from Section 2, second paragraph Best proof of mailing: registry receipt number
of Rule 13 of ROC, which explicitly states that “If any
party has appeared by counsel, service upon him shall Accredited courier: Take note of the operative word
be made upon his counsel or one of them, unless “accredited”. The courier service must be accredited
service upon the party himself is ordered by the court. by the court.
x x x” As such, the period to appeal resumed only on
June 1, 2002, the date following the service on May In service through accredited courier, it is the date
31, 2002 upon the OLS in Diliman of the copy of the also when it was received by the courier,
decision of the RTC, not from the date when UP was
notified. Electronic mail or other electronic means: Always
with prior approval of the court and the court must
Bracero v. Arcelo
be electronically equipped. The court must first
approve this before you can avail of this mode
Rule 13, Section 2 states that “if any party has
because not all court are electronically equipped.
appeared by counsel, service upon him shall be made
upon his counsel or one of them, unless service upon
The date of electronic transmission shall be
the party himself is ordered by the court.” Notice sent
considered as the date of filing.
directly to client is not notice in law. Nevertheless,
this rule admits exception.
How to get the approval of the court?

Note: If the litigants are represented by a counsel,

By filing a Motion in Court seeking approval for the
they should not expect that all they need to know is to
pleadings and other submissions to be electronically
sit back and relax. The litigant shall coordinate to the
served.
lawyer.
Miranda v Miranda
CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021
 2. Registered mail
Under Section 3, Rule 13, pleadings may be filed in 3. Accredited courier
court either personally or by registered mail. In the 4. Electronic mail
first case, the date of filing is the date of receipt. In 5. Facsimile Transmission
the second case, the date of mailing is the date of 6. Other electronic means
receipt.
For purposes of electronic mail, facsimile Page | 77
It is established jurisprudence that the date of transmission or other electronic means, it has to be
delivery of pleadings to a private letter-forwarding with prior court approval and agreed upon by the
agency is not to be considered as the date of filing parties.
thereof in the court instead the date of actual receipt
Note: Ordinary mail and substituted service (Section
by the court is deemed the date of filing of that
pleading. If you file by courier, the courier has to be 7 and 8) are also included as a mode of serving a
accredited. pleading.

Republic v Caguioa Example:

Under the rules of procedure, service of the petition Q. On June 1, X received by ordinary mail the
judgment of the court, which was adverse to her. X
on a party, when that party is represented by a
counsel of record, is a patent nullity and is not binding did not file a notice of appeal on June 16. One June
upon a party wrongfully served. This rule, however, is 17, X went to court to personally receive the copy of
a procedural standard that may admit exceptions the judgment. On June 20, X filed notice of appeal.
when faced with compelling reasons of substantive The judge denied the notice of appeal on the ground
justice manifest in the petition and in the surrounding that X filed her notice of appeal beyond the
circumstance of the case. reglementary period of 15 days. Is the court correct?

A. NO. Because in the first place, service by ordinary

Garvida v Sales
mail of judgment is void because modes of service of
judgment is either personally, registered mail, or by
The Notice of Appeal was sent by facsimile, under the
electronic means, thus the first service through
rules of COMELEC that is not a proper mode of service
ordinary mail is improper. X filed her notice of appeal
and filing. In the Rules of Court, the only way you can
on time, because it should be reckoned not from June
serve and file is if it is allowed by the court. The
1, but from June 17, the day when she went to the
manner of filing and service must be in accordance
court and personally asked for a copy, the date when
with the rule.
she was properly served a copy of the decision.
SECTION 6: PERSONAL SERVICE
SECTION 4: PAPERS REQUIRED
TO BE FILED AND SERVED
What are the modes of personal service?
Every judgment, resolution, order, pleading
1. Personally delivering the copy to the party or the
subsequent to the complaint, written motion, notice,
party’s counsel, or authorized representative as
appearance, demand, offer of judgment or similar
mentioned in the pleading.
papers shall be filed with the court, and served upon 2. Leaving the copy in the counsel’s office with his
the parties affected. or her clerk or person-in-charge.
3. Leaving the copy, between 8:00 am to 6:00pm, at
SECTION 5: MODES OF SERVICE the party’s or counsel’s residence, if known, with
What are the modes of serving a pleading? a person of sufficient age and discretion residing
therein.
1. Personal service

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 Make sure that there is evidence showing that the The best evidence to show that there was failure by
said counsel received copy. Claim stamp marking personal service is an affidavit, for example executed
should likewise be on the copy of the court, because by a liaison officer, saying that he or she went to the
the court will not receive the pleading without office of the counsel, or residence of the party or the
evidence showing that it was first served on the counsel, but nobody was there to receive the
Page | 78 opposing counsel. pleading.

The best evidence to show that there was a failure by

SECTION 7: SERVICE BY MAIL registered mail is the marking of “Return to Sender.”

Service by registered mail And with the RTS and affidavit as proofs, you may go
Made by depositing a copy in the office in a sealed to court and file with the clerk of court a motion
saying that you have availed of the two modes of
envelope, plainly addressed to the party or his
counsel, at his office, if known, otherwise in his personal service and registered mail, but the services
residence, with postage full paid, with instruction to of the pleading were unsuccessful and hence you
the postmaster to return the mail to the sender ten resort to substituted service. The service of the
(10) calendar days if undelivered. pleading is complete at the time of such deliver.

Service by ordinary mail Barrameda v Castillo

If no registry service is available in the locality of Sec. 7, Rule 13 of the ROC provides that “Final orders
either the sender or the addressee, service may be or judgments shall be served either personally or by
done by ordinary mail. registered mail x x x” Further, Sec. 8 of the same Rule
provides that “Personal service is complete upon
Belen v Chavez actual delivery x x x Service by registered mail is
complete upon actual receipt by the addressee; but if
The subsequent service on petitioners’ purported he fails to claim his mail from the post office within
“last known address” by registered mail is also five (5) days from the date of notice of the
defective because it does not comply with the postmaster, service shall take effect at the expiration
requisites under Section 7 of Rule 13 on service by of such time”
registered mail. It contemplates service at the
present address of the party and not any other In service by registered mail, the general rule is that
address of the party. Therefore, service by registered service is complete upon actual receipt by the
mail presupposes that the present address of the addressee. The exception is that when the addressee
party is known and if the person who receives the does not claim his mail within five (5) days from the
same is not the addressee, he must be duly date of the first notice of the postmaster, then the
authorized by the former to receive the paper on service takes effect at the expiration of such time.
behalf of the party.
SECTION 8: SUBSTITUTED SERVICE PNB v CFI
Substituted service of pleadings, is not the same as
substituted service of summon. Section 8, Rule 13 of ROC, as amended, provides that
service by registered mail is complete upon actual
When do you do substituted service of pleadings? receipt by the addressee; but if he fails to claim his
Only when there is a failure to serve the copy: mail from the post office within five (5) days from the
1. By personal service and date of first notice of the postmaster, service shall
2. By registered mail. take effect at the expiration of such time. The fair and
just application of that exception depends upon the
There must be proof that these two modes failed. conclusive proof that the first notice was sent by the
postmaster to the addressee. The best evidence of
CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021
that fact would be the certification from the ELECTRONIC MAIL and FACSIMILE SUBJECT AND
postmaster. TITLE OF PLEADINGS AND OTHER DOCUMENTS

SECTION 9 Prescribed format:

1. Case number
BY ELECTRONIC MEANS 2. Case title and pleading Page | 79
3. Order or document title
1. Made by sending an email to the party’s or
counsel’s electronic mail address; or NOTE: The title of each electronically-filed or served
2. Made through other electronic means of pleading or other document, and each submission
transmission as the parties may agree on, or
served by facsimile shall contain the sufficient
upon direction of the court
information to enable the court to ascertain from the
title:
BY FACSIMILE
a. the party or parties filing or serving the paper
1. Made by sending a facsimile copy to the b. nature of the paper
party’s or counsel’s facsimile number c. the party or parties filing or serving the paper
d. the nature of the relief sought
NOTE: Mode of service by electronic means and
facsimile shall only be made if the party concerned SECTION 13
CONSENTS to such mode. SERVICE OF JUDGMENTS, FINAL ORDERS or
SECTION 10 RESOLUTIONS

Presumptive Service How served:

1. personally
Addressee is from the same judicial region of the 2. by registered mail
court where the case is pending
Upon ex parte motion of any party in the case, a
• There is presumptive notice of a court copy of the judgment, final order, or resolution may
setting if it appears on the records to have be delivered by an accredited courier at the expense
been mailed at least 20 calendar days prior of such party.
to the scheduled date of hearing
When to serve such judgments, final orders or
Addressee is from outside the judicial region of the
resolution by publication:
court where the case is pending
1. When a party summoned by publication failed to
• mailed at least 30 calendar days prior to the
appear in the action, judgments, final orders or
scheduled date of hearing
resolutions against him or her.
SECTION 11 2. It shall be at the expense of the prevailing party.

If a party wishes to change his or her e-mail address TO SUM UP: Service of judgments, final orders or
or facsimile number while the action is pending must resolutions shall be valid only upon:
1. Personal service
1. File within 5 calendar days, a notice of 2. registered mail
change of e-mail address or facsimile 3. publication
number with the court; and 4. accredited courier
2. Serve the notice on all other parties
Who shall be an accredited courier?
SECTION 12

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 A courier duly accredited by the Supreme Court. Best 1. upon actual receipt by the
to inquire upon the court who is an accredited addressee, or
courier. 2. after at least two (2)
attempts to deliver by the
Accredited
NOTE: Service by ORDINARY MAIL is not prescribed courier service, or
Courier
3. upon the expiration of five
Page | 80 under the rules thus, period of succeeding motions (5) calendar days after the
which may be filed after judgments shall not run.
first attempt to deliver,
whichever is earlier.
SECTION 14
There are pleadings and other documents which must 1. at the time of the electronic
be filed or served personally or by registered mail: transmission of the
document, or
1. Initiatory pleadings and initial responsive 2. when available, at the time
pleadings, such as an answer; that the electronic
2. Subpoenae, protection orders, and writs; notification of service of the
Electronic
3. Appendices and exhibits to motions, or document is sent.
Service
other documents that are not readily
NOTE: Electronic service is not
amenable to electronic scanning may, at the
effective or complete if the party
option of the party filing such, be filed and
serving the document learns that
served conventionally; and
it did not reach the addressee or
4. Sealed and confidential documents or
person to be served.
records.
upon receipt by the other party,
Facsimile
NOTE: HOWEVER, they may be filed or served as indicated in the facsimile
Transmission
through other means, upon express permission from transmission printout
the court.

SECTION 15 Principle of Constructive Service

COMPLETENESS OF SERVICE
In service by registered mail, the general rule is that
Mode of When service is deemed service is complete upon actual receipt by the
Service complete addressee. The exception is that when the addressee
does not claim his mail within five days from the date
Personal upon actual delivery of the first notice of the postmaster, then the service
Service takes effect at the expiration of such time.

GR: upon the expiration of ten As illustrated by Justice Cesar Bengzon, if the first
(10) calendar days after mailing notice is received by the addressee on December 1,
Ordinary Mail and he gets his mail on December 3, the service is
XPN: unless the court otherwise
complete on December 3, the date of the actual
provides
receipt (general rule).
1. upon actual receipt by the
addressee, or But if the addressee gets his mail only on December
2. after five (5) calendar days 15, service is deemed complete on December 6 or five
Registered days from December 1, the date of the first notice
from the date he or she
Mail (exception).
received the first notice of
the postmaster, whichever is
earlier. Conclusive Proof of Postmaster’s Notice is Required
for the Principle of Constructive Service to Apply

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Bearing in mind that the exception in service by judgment at that point (Quelnan vs. VHF Philippines,
registered mail refers to constructive service, it is G.R. No. 138500, September 16, 2005).
evident that the fair and just application of that
exception depends upon conclusive proof that a first SECTION 16
notice was sent by the postmaster to the addressee.
PROOF OF FILING
Page | 81
Therefore, to obviate injustice, it is incumbent upon a
party, who relies on constructive service or who Manner of
Proof of Filing
contends that his adversary was served with a copy of Filing
a final order or judgment upon the expiration of five If the pleading or any other court
days from the first notice of registered mail sent by submission is not in the record, but
the postmaster to prove that first notice was sent and is claimed to have been filed
delivered to the addressee. A certification from the Personal personally, the filing shall be
postmaster would be the best evidence of that fact Filing proven by the written or stamped
(Grafil vs. Feliciano L-27156, June 30, 1967, 20 SCRA acknowledgement of its filing by
616). The mailman's testimony may also be adduced the clerk of court on a copy of the
to prove that fact, as was done in Aldecoa vs. Hon. pleading or court submission.
Arellano and Siguenza, 113 Phil. 75, 78.
1. registry receipt and
The mere exhibition in court of the envelope 2. by the affidavit of the person
containing the unclaimed mail is not sufficient proof who mailed it, containing a full
that a first notice was sent. statement of the date and
place of deposit of the mail in
NOTE: The postmaster's certification as to the the post office in a sealed
Registered
sending of the first notice "should include the data envelope addressed to the
Mail
not only as to whether or not the corresponding court, with postage fully
notices were issued or sent but also as to how, when prepaid, and with instructions
and to whom the delivery thereof was made." to the postmaster to return the
(Hernandez vs. Navarro, G. R. No. L-28296, November mail to the sender after ten
(10) calendar days if not
24, 1972)
delivered
Presumption of Regularity of Performance of Duty
affidavit of service of the person
by the Postmaster
who brought the pleading or other
Accredited
As between the denial of the petitioners' counsel that document to the service provider,
Courier
he received the notice of the registered mail and the together with the courier’s official
Service
postmaster's certification that said notices were sent receipt and document tracking
to him, the postmaster's claim should prevail. The number
postmaster has the official duty to send notices of affidavit of electronic filing of the
registered mail and the presumption is that official
filing party accompanied by a paper
duty was regularly performed (Aportadera, Sr. vs.
Electronic copy of the pleading or other
Court of Appeals, G.R. No. 41358, March 16, 1988).
Mail document transmitted or a written
Importance of the Principle of Constructive Service or stamped acknowledgement of
its filing by the clerk of court
The principle of constructive service is important Other affidavit of electronic filing of the
because the period to appeal or to file the necessary Authorized filing party accompanied by a copy
pleading begins to run after five days from the first Electronic of the electronic acknowledgment
notice given by the postmaster. A party is deemed to Means of its filing by the court
have received and to have been notified of the
CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021
 its receipt by the sender, or in
lieu thereof, the unclaimed
SECTION 17
letter together with the certified
PROOF OF SERVICE or sworn copy of the notice
given by the postmaster to the
Page | 82 Mode of addressee.
Proof of Service
Service
Affidavit of service executed by
1. written admission of the the person who brought the
party served, or Accredited pleading or paper to the service
2. the official return of the Courier Service provider, together with the
server, or courier’s official receipt or
Personal
3. the affidavit of the party document tracking number
Service
serving, containing a
statement of the date, Electronic Mail, Affidavit of service executed by
place, and manner of Facsimile, or the person who sent the e-mail,
service Authorized facsimile, or other electronic
Electronic transmission, together with a
Affidavit of the person mailing
Means of printed proof of transmittal
stating the facts showing
Transmission
compliance with Section 7 of
this Rule.
COURT-ISSUED ORDERS AND OTHER DOCUMENTS
NOTE: Section 7. Service by mail.
— Service by registered mail The court may electronically serve orders and other
shall be made by depositing the documents to the parties which shall have the same
copy in the post office, in a effect and validity as provided in the rules. (Sec. 18,
sealed envelope, plainly Rules 13)
addressed to the party or to the A paper copy of the document electronically serve
Ordinary Mail party’s counsel at his or her shall be retained and attached to the record of the
office, if known, otherwise at his case. (Sec. 18, Rules 13)
or her residence, if known, with Note: Sec. 18 should be read in relation to Sec. 13,
postage fully pre-paid, and with Rule 13.
instructions to the postmaster Sec. 13 provides the rules for the service of judgments,
to return the mail to the sender final orders or resolution. Under the said provision,
after ten (10) calendar days if judgments, final order or resolution shall be served
undelivered. If no registry either personally or by registered mail. They may also
service is available in the locality be through an accredited private courier upon filing of
of either the sender or the an ex parte motion and approval of the court. They
addressee, service may be done may also be served by publication if summons was
by ordinary mail. served through publication.
NOTICE OF LIS PENDENS
1. Affidavit of the person
mailing stating the facts
“Pending suit” or “Pending litigation”
showing compliance with
Applicability
Section 7 of this Rule and
Registered Mail Actions affecting the title or the right of possession of
2. the registry receipt issued
by the mailing office real property (real action).
The plaintiff or defendant, when affirmative relief is
NOTE: The registry return card claimed in his answer, may record in the office of the
shall be filed immediately upon

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

registry of deeds of the province in which the 3. By the Register of Deeds upon verified
property is situated. (Par. 1, Sec. 19, Rule 13) petition of the party who caused the
Who may file registration. (Sec. 77, PD No. 1529)
1. Plaintiff – at the time of the filing of the
complaint; and
Note: Petition to cancel the notice should be done
2. Defendant – at the time of filing of answer
during the pendency of the case and not when it is Page | 83
(when affirmative defense is claimed in such
answer, or at any time afterwards). (Villanueva already final and executory.
v. CA, G.R. No. 117108, November 5, 1997)
Cases where notice is proper
Note: When the persons who filed the notice is not 1. Action to Recover Possession of Real Estate;
the original parties to the case, but are mere movants, 2. Action to Quiet Title;
they do not comply with the requirements under Sec. 3. Action for Partition; and
76, PD 1529, and thus the notice is not registrable. 4. Any other proceedings of any kind in Court
(Heirs of Lopez, Sr. v. Enriquez, G.R. No. 146262, directly affecting the title to the land or the
January 21, 2005) use or occupation or buildings thereon.

A notice of lis pendens is not and cannot be sought as

a principal action for relief. It is a mere incident and Cases where notice is not proper
does not affect the merits since it serves merely as an
1. Preliminary Attachments;
advise or warning to other persons. (AFP Mutual
2. Probate of Wills;
Benefit Association, Inc. v. CA, G.R. No. 104769, March 3. Levies on Execution;
3, 2000) 4. Administration of Estate of Deceased
Persons; and
Content of Notice
5. Proceedings the subject of which is recovery
of a money judgment. (Heirs of Lopez, Sr. v.
1. Name of the parties;
Enriquez, G.R. No. 146262, January 21, 2005)
2. Object of the action or defense; and
3. Description of the property. (Par. 1, Sec. 19,
Rule 13)
RULE 14- Summons

Constructive Notice Summons is a piece of paper. It is the writ by which

the defendant is notified of the action brought against
There is constructive notice to the purchaser or him [Licaros v. Licaros, G.R. No. 150656 (2003)]
encumbrancer of the property of the pendency of the
action only from the time of filing of such notice for It is a notice to the defendant that a particular person
record. (Par. 1, Sec. 19, Rule 13) named therein has commenced an action against him
in a particular court. [Riano, 2016]
Cancellation
PURPOSE OF SUMMONS
Notice of lis pendens may be cancelled only upon
order of the court after showing that: For actions in personam:
a. To acquire jurisdiction over the person of the
1. The notice is for the purpose of molesting defendant in a civil case
the adverse party; or b. To give notice to the defendant that an action
2. The notice is not necessary to protect the was filed against him.
rights of the party who caused it to be
recorded. (Par. 2, Sec. 19, Rule 13)
For actions in rem and quasi in rem:

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 a. Not to acquire jurisdiction over the defendant b. When authorized by the court upon ex parte
but mainly to comply or satisfy the constitutional motion, an authorization for the plaintiff to serve
requirement of due process summons to the defendant;
b. Jurisdiction over the defendant is not required c. A direction that the defendant answer within the
c. The court acquires jurisdiction over an action as time fixed by the ROC, and
long as it acquires jurisdiction over the res that is d. notice that unless the defendant so answers,
Page | 84 the subject matter of the action plaintiff will take judgment by default and may be
granted the relief applied for
BY WHOM ISSUED
By the clerk of Court (Sec.1, Rule 14) The following shall be attached to the original and
each copy of the summons
WHEN ISSUED a. A copy of the complaint, and
b. An order for appointment of guardian ad litem,
GR: The court shall, within five (5) calendar days from if any (Sec.2, Rule 14)
receipt of the initiatory pleading and proof of
payment of the requisite legal fees, direct the clerk of Q: What if the complaint was not attached to the
court issue the corresponding sum. (Sec. 1, Rule 14) summons, is the summons improperly served?

Therefore, the issuance of summons is not A: No. The defendant may still go to the court and get
discretionary on the part of the court or the clerk of a copy of the complaint. A defendant is still bound to
comply with the summons even if service was made
court, but is a mandatory requirement. (Riano, 2016)
without attaching a copy of the complaint.
BY WHOM SERVED
XPN: When complaint is on its face dismissible
under Section 1, Rule 9.
The summons may be served by the:
Q: Why is it 5 days? 1. Sheriff
2. Deputy of the sheriff.
A: It is because the court cannot dismiss the case 3. Other proper court officer.
motu proprio on the ground of lack of jurisdiction 4. Plaintiff, provided that:
over the subject matter, litis pendentia, res judicata, a. There must be failure of service of summons
or prescription of action. by the sheriff or his deputy
b. Plaintiff must be authorized by the court to
Q: When is the complaint dismissable on its face? serve summons. (Sec.3, Rule 14)
A: When it appears on the face of the complaint that: c. His authority to serve summons must be
stated in the summons itself [Sec.2(b), Rule
1. Court has no jurisdiction over the subject
14]
matter
2. Action is barred by Res judicata
3. Action is barred by Litis Pendentia A. If the summons are to be served WITHIN
4. Action is barred by Prescription (Sec.1, Rule THE TERRITORIAL JURISDICTION of the court where
9) the case is pending, the plaintiff must comply with the
abovementioned requirements.
CONTENTS
On the other hand, in cases where summons is to be
Summons shall be: served OUTSIDE THE JUDICIAL REGION of the court
a. Directed to the defendant where the case is pending, the plaintiff needs ONLY
b. Signed by the clerk of court under seal be authorized to cause the service of summons.
(Sec.3, Rule 14)
Summons shall contain:
a. Title (The name of the court, and the names of B. IF PLAINTIFF IS A JURIDICAL ENTITY, it shall:
the parties to the action);

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 1. Notify the court in writing and name its the summons is designated as an “original” or an
authorized representative therein; “alias” summons as long as it has adequately served
2. Attach a board resolution stating that such its purpose. What is essential is that the summons
representative is duly authorized (Sec.3, complies with the requirements under the Rules of
Rule 14) Court and it has been duly served on the defendant
together with the prevailing complaint”. [BPI v. Sps. Page | 85
C. IF PLAINTIFF MISREPRESENTS THAT THE Ireneo, G.R. No.169116 (2007); The Phil. American Life
DEFENDANT WAS SERVED SUMMONS:
And General Insurance Co. v. Breva, G.R No. 147937
(2004)]
1. The case shall be dismissed with prejudice
2. The proceedings nullified
3. The plaintiff shall be meted with appropriate MODES OF SERVICE
sanctions (Sec.3, Rule 14) 1. Service in person on defendant
D. IF SUMMONS IS RETURNED WITHOUT BEING 2. Substituted Service
SERVED ON ANY OR ALL DEFENDANTS: 3. Service by Publication
4. Extraterritorial Service
The court shall order the plaintiff to cause the
PERSONAL SERVICE/ SERVICE IN PERSON ON
service of summons by other means available
DEFENDANT
under the Rules. Failure to comply with the order
shall cause the dismissal of the initiatory pleading
How done:
without prejudice. (Sec.3, Rule 14)

1. by handing a copy thereof to the defendant in

VALIDITY OF SUMMONS
person and informing the defendant that he or she is
GR: Summons shall remain valid until duly served, being served, or
2. if he or she refuses to receive and sign for it, by
XPN: unless it is recalled by the court (Sec. 4, Rule 14) leaving the summons within the view and in the
presence of the defendant
ALIAS SUMMONS
Personal Service of Pleadings Personal
In case of loss or destruction of summons, the court (Sec.6, Rule 13) Service of
may, upon motion, issue an alias summons. (Sec. 4, Summons
Rule 14) (Sec. 5, Rule
14)
Q: Is there a difference between summons and alias Court submissions may be served:
summons? 1. By delivering personally a copy
A: None. They are the same. The only time an alias to the party or his counsel or to
summons is issued is when the original summons is their authorized
lost destroyed, cannot be found, or returned representative named in the Summons is
unserved. appropriate pleading/motion served to
2. the
Q: When summons are improperly served, can the 2. By leaving a copy in the
defendant
counsel’s office with his clerk
courts dismiss the case outright due to lack of in person.
or with a person having charge
jurisdiction over the person of the defendant?
thereof

A: Based on jurisprudence, the plaintiff will only be

asked to re-serve the summons. “A case should not be
3. If no person is found in his
dismissed simply because an original summons was office, or his office is not
wrongfully served. An alias summons can be actually known or he has no office,
served on said defendant. It is not pertinent whether
CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021
 then by leaving the copy to, one who customarily receives
between 8 a.m. and 6 p.m., at correspondences for the defendant;
the party’s or counsel’s
residence, if known, with a c. By leaving copies of the summons, if refused
person of sufficient age and entry upon making his or her authority and
discretion then residing purpose known, with any of the officers of the
Page | 86 therein homeowners’ association or condominium
corporation, or its chief security officer in charge
Q: Can the defendant be served summons in places of the community or the building where the
other than the address that was stated in the defendant may be found; and
summons and the complaint?
d. By sending an electronic mail to the defendant’s
A: Yes. The essence of personal service is the handing electronic mail address, if allowed by the court.
or tendering of a copy of the summons to the
defendant himself, wherever he may be found; that Requisites:
is, wherever he may be, provided he is in the When resorting to substituted service, the following
Philippines. [Sansio Philippines Inc. vs. Sps. Mogol, statutory requirements must be strictly, faithfully,
G.R. 177007 (2009)] and fully observed:
a. Indicate the impossibility of service of summons
Personal service of summons has nothing to do with within a reasonable time
b. Specify the efforts exerted to locate the defendant,
the location where summons is served. A defendant's
address is inconsequential. Rule 14, Section 6 of the and
1997 Rules of Civil Procedure is clear in what it c. State that the summons was served upon:
requires: personally handing the summons to the 1. a person of sufficient age and
discretion who is residing in the
defendant (albeit tender is sufficient should the
address, or
defendant refuse to receive and sign). What is
2. a person in charge of the office or
determinative of the validity of personal service is, regular place of business, of the
therefore, the person of the defendant, not the locus defendant
of service. [Sps. Manuel v. Ramon Ong, G.R. No. d. It is likewise required that the pertinent facts
205249 (2014)] proving these circumstances be stated in the
proof of service or in the officer’s return
SUBSTITUTED SERVICE OF SUMMONS
Failure to comply with this rule renders absolutely
When allowed: void the substituted service along with the
If, for justifiable causes, the defendant cannot be proceedings taken thereafter for lack of jurisdiction
served personally after at least three (3) attempts on over the person of the defendant. [Sandoval v.
two (2) different dates, service may be effected: HRET, G.R. No. 149380 (1988)]

How done: “Residence”.— The place where the person named in

Service may be effected: the summons is living at the time of when the service
a. By leaving copies of the summons at the is made, even though he may be temporarily out of
defendant's residence to a person at least the country at that time [Venturanza v. CA, G.R. No.
eighteen (18) years of age and of sufficient 77760 (1987)]
discretion residing therein;
“Person of sufficient discretion”. — "Discretion" is
b. By leaving copies of the summons at the defined as "the ability to make decisions which
defendant's office or regular place of business represent a responsible choice and for which an
with some competent person in charge thereof. understanding of what is lawful, right or wise may be
A competent person includes, but is not limited
presupposed".

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 Service shall be effected upon him or her by the
Thus, to be of sufficient discretion, such person must officer having the management of such jail or
know how to read and understand English to institution who is deemed as a special sheriff for said
comprehend the import of the summons, and fully purpose (Sec.8, Rule 14)
realize the need to deliver the summons and
complaint to the defendant at the earliest possible c. MINORS/ INCOMPETENT Page | 87
time for the person to take appropriate action. Thus, Service of summons shall be made upon him or her
the person must have the "relation of confidence" to personally and on his or her legal guardian if he or she
the defendant, ensuring that the latter would receive has one, or if none, upon his or her guardian ad litem
or at least be notified of the receipt of the summons whose appointment shall be applied for by the
[Prudential Bank v. Magdamit, G.R. No. 183795 plaintiff. (Sec.10, Rule 14)
(2014)]
d. SPOUSES
“Competent person”. — To be a "competent" person When spouses are sued jointly, service of summons
to receive the summons means that he should be should be made to each spouse individually. (Sec.11,
"duly qualified" and "having sufficient capacity, ability Rule 14)
or authority." The rule presupposes that a relation of
confidence exists between the person with whom the Q: Complaint for foreclosure of mortgage was filed
copy of the process is left and the defendant and, against the spouses Ernesto and Teresa Biaco. Only
therefore, assumes that such person will deliver the Ernesto received the summons. Due to default,
process to defendant or in some way give him notice Sheriff was ordered to sell the mortgaged lot at
thereof. [Sandoval v. HRET, G.R. No. 149380 (1988)] public auction in favor of PCRB. However, because
the amount of the property sold at public auction
A competent person includes, but is not limited to, was insufficient to cover the full amount of the
one who customarily receives correspondences for obligation, two notices of levy against properties
the defendant e.g. secretary. (Sec. 6, Rule 14 of the registered under the name of Teresa. Teresa sought
New Rules) the annulment of the RTC decision asserting that the
trial court failed to acquire jurisdiction because
“Person in charge”. — To be "in charge" means to summons were served on her through her husband
have "care and custody of, under control of, or without any explanation as to why personal
entrusted to the management or direction of." A service[to her] could not be made. Did the court
[Sandoval v. HRET, G.R. No. 149380 (1988)] acquire jurisdiction over the person of Teresa in the
deficiency judgment?
Must be the one managing the office or business of A: NO. The trial court went beyond its jurisdiction
defendant, such as the president or manager; and over the res and rendered a personal judgment
such individual must have sufficient knowledge to against the spouses Biaco. In this case, while the trial
understand the obligation of the defendant in the court acquired jurisdiction over the res, its jurisdiction
summons, its importance, and the prejudicial effects is limited to a rendition of judgment on the
arising from inaction on the summons [Prudential res[Foreclosure judgment].It cannot extend its
Bank v. Magdamit, G.R. No. 183795 (2014)] jurisdiction beyond the res and issue a judgment
enforcing petitioner’s personal liability [Deficiency
SUMMONS: HOW SERVED Judgment on Teresa’s property] In doing so without
[Link] NATURAL PERSONS first having acquired jurisdiction over the person of
petitioner, as it did, the trial court violated her
a. RESIDING IN THE PHILIPPINES constitutional right to due process, warranting the
Personal Service annulment of the judgment rendered in the case]
e. UNKNOWN DEFENDANTS OR WHEREABOUTS
b. PRISONERS ARE UNKNOWN (Sec.16, Rule 14)

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 • In any action where: g. RESIDENTS TEMPORARY OUTSIDE THE PH
1. the defendant is designated as an (Sec. 18, Rule 14)
unknown owner or • When any action is commenced against a
2. whenever his or her whereabouts are defendant who ordinarily resides within the
unknown and cannot be ascertained by Philippines, but who is temporarily out of it,
diligent inquiry service may, by leave of court, be also
Page | 88 Service may, by leave of court, be effected upon him effected out of the Philippines by:
by publication in a newspaper of general circulation 1. By personal service as under Sec. 6, Rule 14,
and in such places and for such time as the court may or
order. 2. As provided for in international conventions
to which the Philippines is a party
NOTE: Defendant must answer within a reasonable 3. By publication in a newspaper of general
circulation in such places and for such time
time which shall not be less than 60 calendar days to
as court may order, in which case, a copy of
be specified in the order granting the leave of court.
the summons and order of the court shall be
(Sec.16, Rule 14) sent by registered mail to the last known
address of the defendant, or
f. EXTRATERRITORIAL (Sec.17, Rule 14) 4. In any other manner the court may deem
sufficient (Sec.18, Rule 14)
When allowed:
a. When the defendant does not reside and is II. UPON DOMESTIC CORPORATIONS
not found in the Philippines, and
b. The action Service may be made on the
1. Affects the personal status of the plaintiff 1. President
or 2. Managing Partner
2. Relates to, or the subject of which is, 3. General Manager
property within the Philippines, in which 4. Corporate Secretary
the defendant has or claims a lien or 5. Treasurer, Or
interest, actual or contingent, or 6. In-House Counsel of the corporation
3. In which the relief demanded consists, wherever they may be found, or
wholly or in part, in excluding the defendant 7. In their absence or unavailability, on their
from any interest therein, or secretaries.
4. The property of the defendant has been
attached within the Philippines [Sec. 17, If such service cannot be made upon any of the
Rule 14] foregoing persons, it shall be made upon the person
who customarily receives the correspondence for the
Service may, by leave of court, be effected out of the
defendant at its principal office.
Philippines:
1. By personal service as under Sec. 6, Rule 14,
In case the domestic juridical entity is under
or
receivership or liquidation, service of summons shall
2. As provided for in international conventions
to which the Philippines is a party be made on the receiver or liquidator, as the case may
3. By publication in a newspaper of general be.
circulation in such places and for such time as
court may order, in which case, a copy of the Should there be a refusal on the part of the persons
summons and order of the court shall be sent above-mentioned to receive summons despite at
by registered mail to the last known address least three (3) attempts on two (2) different dates,
of the defendant, or service may be made electronically, if allowed by the
4. In any other manner the court may deem court, as provided under Section 6 of this Rule. (Sec
sufficient 12, Rule 14)

III. UPON FOREIGN CORPORATION

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021
 Service may be made: its executive head, or on such other officer or officers
as the law or the court may direct.
A. When the defendant is a foreign private
juridical entity which has transacted or is doing NOTE:
business in the Philippines, as defined by law 1. If defendant is Republic of PH – summons is
1. Upon the resident agent; or served upon Solicitor Geneneral
2. If there be no such agent, on the
Page | 89
2. If defendant is Province – summons is served
government official designated by law to upon governor
that effect, or 3. If defendant is city – summons is served upon
3. On any of its officers or agents, directors or mayor
trustees within the Philippines 4. If defendant is municipality – summons is
served upon mayor
NOTE: Where service of summons is made on the 5. If defendant is barangay – summons is served
government official designated by law to receive upon the mayor still. Barangay is a component
the same, the answer shall be filed within sixty of a city or municipality.
(60) calendar days after receipt of summons by
such entity. (Sec.2, Rule 11) V. UPON AN ENTITY WITHOUT JURIDICAL
PERSONALITY
[Link] the defendant is NOT registered in the When applicable:
Philippines or has no resident agent, Service may be 1. Persons are associated in an entity
effected, with leave of court, outside the Philippines without juridical personality, and
2. They are sued under the name by which
through the following means:
they are generally or commonly known
1. By personal service coursed through the
appropriate court in the foreign country with
Service may be effected upon all the defendants by
the assistance of the Department of Foreign
serving upon any one of them, or the person in charge
Affairs;
2. By publication once in a newspaper of general of the office or place of business maintained in such
circulation in the country where the defendant name. [Sec. 7, Rule 14]
may be found and by serving a copy of the
summons and the court order by registered SPECIAL APPEARANCE; DUTY OF THE COUNSEL
mail at the last known address of the
defendant; Where the summons is improperly served and a
NOTE: There is no service of summons solely lawyer makes a special appearance on behalf of the
by registered mail except as an additional defendant to, among others, question the validity of
requirement to service by publication. Where service of summons, the counsel shall be deputized
service is made by publication, a copy of the by the court to serve summons on his or her client
summons and order of the court shall be sent (Sec.13, Rule 14)
by registered mail to last known address of
defendant
SERVICE UPON PUBLIC CORPORATIONS
3. By facsimile;
4. By electronic means with the prescribed proof
of service; or Defendant Service
5. By such other means as the court, in its Public Corporations:
discretion, may direct. (Sec. 15, Rule 14)
• Republic of the • On the
IV. UPON PUBLIC CORPORATIONS Philippines Solicitor
— When the defendant is the Republic of the General
Philippines, service may be effected on the Solicitor
General; in case of a province, city or municipality, or • Province, city
like public corporations, service may be effected on or • Effected on its
municipality, executive
CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021
 or like public head, or on 1. Diligent efforts to serve the defendant in
corporations such officer or person must be resorted to.
officers as the 2. When the summons cannot be served in
law or the person on the defendant within a
court may reasonable period of time, then substituted
direct service of summons may be availed of.
Page | 90 3. If the defendants whereabouts are
SUMMONS BY PUBLICATION unknown and cannot be ascertained with
diligent inquiry, within 90 calendar days
GR: Summons by publication is not available as a from the commencement of the action,
summons by publication may now be
means of acquiring jurisdiction over the person of
availed of. (Borlongan v. Banco de Oro, G.R.
the defendant in an action in personam
No. 217617, April 5, 2017)
XPN: Defendant Action (in rem, Service of
in personam, or Summons
a. Where the identity or whereabouts of the
defendant are unknown quasi in rem)
b. When the defendant is a resident Service upon Any action With leave of
temporarily out of the Philippines
defendant court, by
NOTE: Both apply to any action which whose publication in a
necessarily includes an action in personam identity or newspaper of
whereabout general
RECOGNIZED MODES OF SERVICE: s are circulation
unknown
Resident Non-resident (Sec. 16,
In person on the Personal service of Rule 14)
defendant under Sec 5, summons in the state Defendant In rem or quasi All of which
Rule 14. In case where is essential to the not residing in rem, that will require prior
the defendant cannot acquisition of and cannot justify the leave of court:
be served within a jurisdiction over his be found in application of
reasonable time, person. This is the only the extraterritorial • By
substituted service will way of acquiring personal
Philippines service of
apply, but not summons jurisdiction over the service;
(Sec. 17, summons in
by publication. person if he does not • By
Rule 14) actions
Exceptions were want to voluntarily publicatio
involving a n in a
provided above. appear. nonresident: newspaper
of general
• Actions
circulation
XPN: when the that affect
in such
the
defendant is a foreign places and
personal
private juridical entity for such
status of
not registered or with time as
the
no resident agent in the court
plaintiff;
the Philippines. (Sec. may order,
• Actions
14, Rule 14) in which
which
case a
relate to, or
copy of
the subject
Hierarchy of rules in the service of summons: the
matter of
summons
which is
CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021
 property and order case a copy of
within the of the the summons
Philippines, court shall and order of
in which be sent by the court shall
the registered be sent by
defendant mail to the registered mail
claims a last known Page | 91
to the last
lien or address of
known address
interest, the
actual or defendant; of the
contingent; or defendant; or
• Actions • In any
• In any
which the manner
manner
relief the court
the court
demanded may deem
may deem
consists, sufficient.
sufficient.
wholly or in
part, in NOTE: If a
excluding resident is out
the
of the country
defendant
temporarily, he
from an
cannot be
interest in
the expectedly
property served within
located in the reasonable
the time. Hence,
Philippines; this constitutes
and the operative
• When the fact that
defendant’ triggers the
s property application of
has been substituted
attached in service or Sec.
the
6, Rule 14.
Philippines.

Residents Any action • By

temporarily personal SECTION 19 : LEAVE OF COURT
out of the service;
Philippines Section 19. Leave of Court – Any application to the
(Sec. 16, court under this Rule for leave to effect service in any
By publication
Rule 14) manner for which leave of court is necessary shall be
in a newspaper
made by motion in writing, supported by affidavit of
of general
the plaintiff or some person on his behalf, setting
circulation in
forth the grounds for the application.
such places
and for such Leave of Court
time as the
court may
order, in which

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 Any application to the court under this Rule for leave serve as the best evidence as to how summons was
to effect service in any manner for which leave of effected by the server.
court is necessary shall be made:
SECTION 21: PROOF OF SERVICE
1. By motion in writing; and
2. Supported by affidavit of the plaintiff or Section 21. Proof of Service – The proof of service of a
Page | 92 some person on his behalf, setting forth the summons shall be made in writing by the server and
grounds for the application. shall set forth the manner, place, and date of service;
shall specify any papers which have been served with
NOTE: Prior to the A.M. No. 19-10-20-SC (2019 the process and the name of the person who received
Proposed Amendments to the 1997 Rules of Civil the same; and shall be sworn to when made by a
Procedure) this section was found in Section 17, Rule person other than a sheriff or his or her deputy.
4.
If summons was served by electronic mail, a printout
SECTION 20: RETURN of said e-mail, with a copy of the summons as served,
and the affidavit of the person mailing, shall
Return constitute as proof of service.

Within 30 Calendar Days – The sheriff or process The proof of service of summons shall:
server, or person authorized by the court shall have
30 calendar days from issuance of summons by the 1. Made in writing by the server and shall set forth
clerk of court and receipt thereof to complete the the manner, place, and date of service
service 2. Shall specify:
a. Any papers which have been served with the
Within 5 Calendar Days from service of summons – process; and
The server (sheriff or process server, or person b. Name of the person who received the same; and
authorized by the court) shall file with the court and 3. Be sworn to when made by a person other than
serve a copy of the return to the plaintiff’s counsel a sheriff or his or her deputy
(personally/registered mail/electronic means
authorized by the Rules) The amendments provide that if the summons was
served by electronic mail, the proof of service will be
If substituted service was effected, the return shall the printout of the said e-mail along with the copy of
state the following: the summons served, and the affidavit of the person
mailing.
1. Impossibility of personal service within a
period of 3 calendar days from issue and SECTION 22: PROOF OF SERVICE BY PUBLICATION
receipt of summons
2. Date and time of the 3 attempts on atleast 2 Section 21. Proof of service by publication – If the
different dates to cause personal service and service has been made by publication, service may be
details of the inquiries made to locate the proved by the affidavit of the publisher, editor,
defendant business or advertising manager, to which affidavit a
3. Name of the person who received the copy of the publication shall be attached and by an
substituted summons in accordance with the affidavit showing the deposit of a copy of the
provisions of Section 6(a),(b), and (c) of who summons and order for publication in the post office,
may receive the summons postage prepaid, directed to the defendant by
registered mail to his or her last known address.
NOTE: In cases wherein a client forgets the details of
how summons was served to him or her, you should If the service has been made by publication, service
go to the court to get the Sheriff’s Return. A Sheriff’s may be proved:
Return will tell you how summons was effected. It will

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 1. By the affidavit of the publisher, editor, judicial confirmation of notarial rescission and
business or advertising manager, to which delivery of possession. Substituted summons was
affidavit a copy of the publication shall be issued and served by Sheriff Galing to Chandumal’s
attached; and mother since she was always out of the house. For
failure to file an answer, PDB filed an ex parte motion
NOTE: In the old Rules of Court, the “publisher” to declare Chandumal in default. Chandumal filed an Page | 93
replaced the words “printer, his foreman or principal Urgent Motion to Set Aside Order of Default and
clerk” Admit Attached Answer maintaining that she did not
receive summons.
2. By an affidavit showing the deposit of a copy
of the summons and order for publication in Held: The Supreme Court held that despite there
the post office, postage prepaid directed to being no valid substituted service of summons, the
the defendant by registered mail to his last
Court finds that Chandumal voluntarily submitted to
known address
the jurisdiction of the trial court through Voluntary
SECTION 23: VOLUNTARY APPEARANCE Appearance. When Chandumal filed an Urgent
Motion to Set Aside Order of Default and to Admit
Section 23. Voluntary Appearance – The defendant’s Attached Answer, she effectively submitted her
voluntary appearance in the action shall be person to the jurisdiction of the trial court as the filing
equivalent to service of summons. The inclusion in a of a pleading where one seeks an affirmative relief is
motion to dismiss of other grounds aside from lack of equivalent to service of summons and vests the trial
jurisdiction over the person of the defendant shall be court with jurisdiction over the defendant's person.
deemed a voluntary appearance. Thus, it was ruled that the filing of motions to admit
answer, for additional time to file answer, for
In the old Rules of Court, the inclusion in a motion to reconsideration of a default judgment, and to lift
dismiss of other grounds aside from lack of order of default with motion for reconsideration is
jurisdiction over the person of the defendant was considered voluntary submission to the trial court's
NOT deemed a voluntary appearance but in the jurisdiction.
amendments the word “not” was removed.
RULE 15: MOTIONS
Voluntary Appearance SECTION 1: MOTION DEFINED

A voluntary appearance cures the defective service of

summons wherein despite no service of summons or A motion is an application for something, like motion
a defective summons, the court will be able to acquire for postponement, motion for extension of time to
jurisdiction over the person of the defendant. file a pleading. A Motion is not a pleading, it is actually
a collateral matter which you seek an application for.
ILLUSTRATIVE CASE:
There is no need to furnish the adverse party of a
Facts: In Planters Development Bank v. Chandumal, notice of a hearing because the 2019 amendments
G.R. No. 195619, September 5, 2012, there was a deleted Sections 4 and 5 of Rule 15 of the 1997 Rules
contract to sell between BF Homes, Inc. and of Civil Procedure. Therefore, the statement “A
Chandumal of a parcel of land together with motion with no notice for hearing is a mere scrap of
improvements but sometime in 1993 BF Homes sold paper” is no longer relevant.
PDB all its rights, participants and interests over the
contract. When Chandumal began to default in her A copy of the motion must be served on the other
payments, PDB gave her a period from which to settle party - even if it is an ex-parte motion - then file it in
her installment arrearages otherwise her contract will court. Serve then file.
be deemed terminated. Since Chandumal continued
to fail to settle her obligation, PDB filed an action for SECTION 2: MOTION MUST BE IN WRITING
CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021
 4. Motion for the issuance of a writ of
GR: Motions must be in writing. execution
XPN: Motions made in open court or in the course of 5. Motion for the issuance of an alias writ of
a hearing or trial. execution
6. Motion for the issuance of a writ of
possession
Page | 94 A motion made in open court like for example “For 7. Motion for the issuance of an order directing
lack of sufficient time, Your Honor may we request for
the sheriff to execute the final certificate of
a continuance and be allowed to conduct the cross-
sale; and
examination at the next scheduled time.” This is 8. Other similar motions.
called a bench motion.
NOTE: “Alias” means that one has already been issued
The Judge, after giving the other party time to be but it was damaged or lost for some reason. Hence, it
heard on the matter, is required to immediately rule is non-litigious.
on a motion made in open court.
These motions shall not be set for hearing and shall
When the motion is based on facts not appearing on be resolved by the court within five (5) calendar days
record, the court may hear the matter on affidavits or from receipt thereof.
deposition but the court may direct the matter to be
heard wholly or partially on oral testimony or It will not prejudice the rights of the other party or it
depositions. (Ex: Motion for Support pendente lite) will inevitably be issued as a matter of right.

Evidence may be presented for a motion. An example SECTION 5: LITIGIOUS MOTIONS

would be a motion for the issuance of a preliminary
injunction. Litigious Motions are motions that, when acted
upon by the court, shall prejudice the rights of the
SECTION 3: CONTENTS other party. These motions cannot be acted upon
without giving the other party the opportunity to be
A motion shall (1) state the relief sought to be heard.
obtained and the grounds upon which it is based, and
(2) if required by these Rules or necessary to prove (a) Litigious motions include:
facts alleged therein, shall be accompanied by 1. Motion for bill of particulars;
supporting affidavits and other papers. 2. Motion to dismiss;
3. Motion for new trial;
There are numerous motions. A motion for summary 4. Motion for reconsideration;
judgement has to attach affidavits in support thereof. 5. Motion for execution pending appeal;
6. Motion to amend after a responsive pleading
SECTION 4: NON-LITIGIOUS MOTIONS has been filed;
7. Motion to cancel statutory lien
Non-litigious Motions are motions that may be acted 8. Motion for an order to break in or for a writ
of demolition;
upon by the court without prejudicing the rights of
9. Motion for intervention;
the parties. These motions need not be heard
10. Motion for judgment on the pleadings;
because these are non-adversarial. 11. Motion for summary judgment;
12. Demurrer to evidence;
These motions include: 13. Motion to declare defendant in default; and
14. Other similar motions.
1. Motion for the issuance of an alias
summons. (b) All motions shall be served by (1) personal service,
2. Motion for extension to file answer (2) accredited private courier, (3) registered mail, or
3. Motion for postponement; (4) electronic means (if allowed by the court or agreed
CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021
by the parties) so as to ensure their receipt by the SECTION 7: PROOF OF SERVICE NECESSARY
other party.

(c) The opposing party shall file his or her opposition No written motion shall be acted upon by the court
to a litigious motion within without proof of service thereof, pursuant to Section
five (5) calendar days from receipt thereof. No o 5(b) hereof. Page | 95
ther submissions shall be considered by the court in
the resolution of the motion. The opposing counsel must be given a copy of such
motion before it is submitted to the court.
The motion shall be resolved by the court within
fifteen (15) calendar days from its receipt of the REMEMBER: SERVE then FILE.
opposition thereto, or upon expiration of the period
to file such opposition. SECTION 8: MOTION DAY

After the movant has submitted the motion, the other Except for motions requiring immediate action,
party must be given a chance to be heard regarding where the court decides to conduct hearing on a
the matter because it will affect the other party's litigious motion, the same shall be set on a Friday.
rights. However, it will not be set for hearing. Rather,
Paragraph b, Section 5 now requires motions to be As a rule, the hearing of a motion shall be set on a
served by personal service, accredited private courier Friday. There, oral arguments will be made by both
or registered mail, or electronic means. parties with respect to their positions.

Example: I filed a motion to dismiss on the ground Before, under the 1997 Rules, it is the party that sets
that the court does not have jurisdiction over the the hearing for a motion. Now, it is the court that sets
subject matter. I will not set it for hearing. Before the hearing, and only if necessary.
submitting it to the court, I will give notice to the
opposing counsel and then file the motion in court. SECTION 9: OMNIBUS MOTION

The other party is given 5 days from receipt to file his Subject to the provisions of Section 1 of Rule 9, a
comment opposing the motion. I cannot reply to that motion attacking a pleading, order, judgment, or
comment. The court is tasked to resolve the motion proceeding shall include all objections then available,
from receipt of the comment or expiration of the and all objections not so included shall be deemed
period. waived.

SECTION 6: NOTICE OF HEARING ON LITIGIOUS No piecemeal objections are allowed or filing

MOTIONS; DISCRETIONARY objections one by one. The exception is lack of
jurisdiction over the subject matter because this can
be raised for the first time on appeal. All other
The court may, in the exercise of its discretion, and if motions must be put together in the same way as that
deemed necessary for its resolution, call a hearing on of an affirmative defense where everything must be
the motion. The notice of hearing shall be addressed stated in the Answer. Otherwise, it will be deemed
to all parties concerned, and shall specify the time waived.
and date of the hearing.
SECTION 10: MOTION FOR LEAVE
The court, in the exercise of its discretion, may order
for a clarificatory hearing. That’s the time when the A motion for leave to file a pleading or motion shall
parties will go to court. be accompanied by the pleading or motion sought to
be admitted.

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 and were denied, a motion for reconsideration
Example: A motion to admit amended complaint. cannot be filed against the denial on the affirmative
Rule 10 states that you can amend a complaint as a defense. Neither can motion for certiorari or
matter of right if you have not yet been served a copy prohibition or mandamus may be filed as provided in
of the answer or a motion for summary judgement. Rule 8 Section 12.

Page | 96 But if an answer to your original complaint was filed, However, when these are raised in a motion to
then you can only amend it with leave of court.
dismiss, there is no rule prohibiting the filing of a
motion for reconsideration on the denial of the
In filing the motion to admit the amended complaint,
motion to dismiss.
you must include the reasons thereof and a copy of
the proposed amended complaint. When an
ADDITIONAL GROUND: Lack of the certification
amended complaint is attached and granted more
against Forum shopping
than a month after. That amended motion is deemed
filed, especially if it alleges new matters, on the day it (b)Motion to hear affirmative defenses
was submitted to court.
Note: The court shall motu proprio resolve or conduct
However, it is only when the court approves of the summary hearing on affirmative defenses so no need
amended complaint, that the plaintiff will be required to file such motion (Paragraphs c and d, Section 12,
to submit an amended answer. Rule 8)

SECTION 11: FORM (c)Motion for reconsideration of the court’s action on

the affirmative defenses
The Rules applicable to pleadings shall apply to
written motions so far as concerns caption, Note: This is expressly prohibited under Section 12(e)
designation, signature, and other matters of form. of Rule 8.

A verification is required if you file a motion to set (d)Motion to suspend proceedings without a
aside an order of default. Not all motions are required temporary restraining order or injunction issued by a
to have verification. It is only when the Rules require higher court
verification that the motion shall be verified.
Note: Mere filing of a Rule 65 petition to question the
What about certificate of non-forum shopping? No denial of the MTD or MR does not suspend the
need because the motions are not initiatory proceedings. There must be a prayer to the court to
pleadings. issue a TRO or a WPI. It is only when the TRO and WPI
are issued will the proceedings be suspended.
SECTION 12: PROHIBITED MOTIONS
(e) Motion for extension of time to file pleadings,
The following motions shall not be allowed: affidavits or any other papers, except a motion for
extension to file an answer as provided by Section 11,
(a)Motion to dismiss except on the following Rule 11.
grounds:
1. That the court has no jurisdiction over the Note: You can file a motion for extension of time
subject matter of the claim;
ONLY ONCE to file an Answer.
2. Litis pendentia
3. Res judicata;
4. Statute of limitations (f) Motion for postponement intended for delay,
except if it is based on acts of God, force majeure or
The four grounds for motion to dismiss may be raised physical inability of the witness to appear and testify.
also by way of affirmative defense. If these are raised If the motion is granted based on such exceptions, the

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

moving party shall be warned that the presentation of “supplemental motion to dismiss” which is not only
its evidence must still be terminated on the dates improper but also dilatory.
previously agreed upon.
It was also stated that a motion for reconsideration, if
A motion for postponement, whether written or allowed, will stop the running of the period. If denied,
oral, shall, at all times, be accompanied by the the period will reckon upon the receipt of the order Page | 97
original official receipt from the office of the clerk of denying the MR. If the MR is not allowed, it will not
court evidencing payment of the postponement fee stop the running of the period.
under Section 21(b), Rule 141, to be submitted either
at the time of the filing of said motion or not later It is a basic rule that a motion for extension of time to
than the next hearing date. The clerk of court shall not file a pleading must be filed before the expiration of
accept the motion unless accompanied by the original the period sought to be extended. The court's
receipt. discretion to grant a motion for extension is
conditioned upon such motion's timeliness, the
A motion for cancellation or postponement carries a passing of which renders the court powerless to
fee that must be paid first. the court will not act on entertain or grant it. Since the motion for extension
the motion for postponement without showing first was filed after the lapse of the prescribed period,
that the fee has been paid. there was no more period to extend. (PNB v. Deang
Marketing Corp.)
Q: X filed a motion to dismiss on the ground of lack
of jurisdiction over the subject matter before the SECTION 13: DISMISSAL WITH PREJUDICE
RTC, which was denied. X filed a motion for
reconsideration which was also denied. Can X assail Subject to the right of appeal, an order granting a
the denial of the motion to dismiss via Rule 65 to the motion to dismiss or an affirmative defense that the
Court of Appeals? cause of action is barred by a prior judgment or by the
statute of limitations; that the claim or demand set
A: YES. There is nothing in the rules that would forth in the plaintiff’s pleading has been paid, waived,
prohibit you from filing a motion for reconsideration abandoned or otherwise extinguished; or that the
for the denial of a motion to dismiss on the ground of claim on which the action is founded is unenforceable
lack of jurisdiction over the subject matter. Hence, under the provisions of the statute of frauds, shall bar
you can assail the denial of the MD and the MR via the refiling of the same action or claim.
Rule 65 of the Rules.
If the Motion to Dismiss is grounded upon the lack of
Since Rule 65 is an original special civil action, it is not jurisdiction over the subject matter, just refile it with
an appeal. The pendency of the Rule 65 petition will the proper court. However, those mentioned in
not automatically halt the proceedings of the main Section 12 cannot be refiled, therefore the only
action. You cannot file a motion to suspend remedy is to file an appeal.
proceedings in the RTC in lieu of the pending Rule 65
proceedings in the CA. However, if the CA issues a RULE 17: DISMISSAL OF ACTIONS
Temporary Restraining Order or a Writ of Preliminary
injunction, then the proceedings with the RTC can be SECTION 1: DISMISSAL UPON NOTICE BY PLAINTIFF
suspended.
A complaint may be dismissed by the plaintiff by filing
In the case of Tung Ho v. Ting Guan, the court a notice of dismissal at any time before service of a)
reiterated that the rules only allow a motion to the Answer, or b) the Motion for summary
dismiss once. In this case, the defendant filed judgment.
successive motions to dismiss, under the guise of

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 Upon such notice being filed, the court shall issue an he will pay his debt within one week. A agreed and
order confirming the dismissal. (Sec. 1, Rule 17 of the then filed a Notice to Dismiss the complaint pursuant
Rules of Court) to Sec. 1, Rule 17 of the Rules of Court. However, B
failed to pay his debt.
Withdrawal of a case is not automatic
A then filed a second complaint against B. B again
Page | 98
An order by the court confirming the dismissal is asked A to dismiss the complaint with the promise
required before a case or complaint is deemed that he will already pay his debt. A gave B another
dismissed. (Sec. 1, Rule 17 of the Rules of Court) chance, but B again failed to pay his debt. This
prompted A to file a third complaint against B. Will
NOTE: If a person files a second complaint without the third complaint prosper?
such order of confirmation of dismissal of the first
complaint filed, he may be held guilty of litis A: NO. The third complaint will not prosper. In fact,
pendencia, and the second complaint filed may be the Court may already dismiss the second complaint
dismissed. filed by A, unless otherwise stated in the notice that
the dismissal is without prejudice, except that a
Dismissal by plaintiff as a matter of right notice operates as an adjudication upon the merits
when filed by a plaintiff who has once dismissed in a
GR: Dismissal is without prejudice competent court an action based on or including the
same claim. (Sec. 1, Rule 17 of the Rules of Court)
XPN:

1. Unless otherwise stated in the notice. If the second complaint was dismissed without
2. A notice operates as an adjudication upon prejudice, the same complaint can no longer be
the merits when filed by a plaintiff who has refiled. The second dismissal will operate as an
once dismissed in a competent court an adjudication on the merits if the third complaint filed
action based on or including the same claim. is based on the same action or if it includes the same
(Sec. 1, Rule 17 of the Rules of Court) claim.

Two-dismissal rule SECTION 2: DISMISSAL UPON MOTION OF

PLAINTIFF
It applies when the plaintiff has:
A complaint shall not be dismissed at the plaintiff's
1. Twice dismissed actions; instance save upon approval of the court and upon
2. Based on or including the same claim; and
such terms and conditions as the court deems proper.
3. In a court of competent jurisdiction. (Riano,
(Sec. 2, Rule 17 of the Rules of Court)
2014)

NOTE: The notice of dismissal operates as an Effect on counterclaim

adjudication upon the merits. (Sec. 1, Rule 17 of the
GR: The dismissal shall be without prejudice to the
Rules of Court)
right of the defendant to prosecute his or her
The two- dismissal rule shall not apply if one of the counterclaim in a separate action, unless within
fifteen (15) calendar days from notice of the motion
dismissal was procured or obtained by the defendant.
The rule shall only apply if the two dismissals were he or she manifests his or her preference to have his
made at the instance of the plaintiff. or her counterclaim resolved in the same action.

Q: A filed a complaint for the collection of sum of XPN: Unless otherwise specified in the order. (Sec.
money against B on the ground of B’s failure to pay 2, Rule 17 of the Rules of Court)
his debt before the RTC. Instead of filing an Answer, B
NOTE: After the lapse of the 15 calendar days, the
asked A not to proceed with the case, provided that
Court could no longer entertain any motions filed
CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021
thereafter. The decision dismissing the complaint is The complaint may be dismissed upon motion of the
final and executory and has already attained finality. defendant or upon the court's own motion, without
The Court no longer has jurisdiction over the prejudice to the right of the defendant to prosecute
complaint. his or her counterclaim in the same or in a separate
action, if for no justifiable cause, the plaintiff:
The rationale behind this rule is not difficult to
Page | 99
discern: the passing of the fifteen (15)-day period 1. fails to appear on the date of the
triggers the finality of the court's dismissal of the presentation of his or her evidence in chief
complaint and hence, bars the conduct of further on the complaint;
2. to prosecute his or her action for an
proceedings, i.e., the prosecution of respondent's
unreasonable length of time; or
counterclaim, in the same action. Thus, in order to
3. to comply with these Rules or any order of
obviate this finality, the defendant is required to file
the court. (Sec. 3, Rule 17 of the Rules of
the required manifestation within the aforesaid Court)
period; otherwise, the counterclaim may be
prosecuted only in a separate action. (Blay vs. Bana,
G.R. No. 232189, March 7, 2018) GR: The dismissal is with prejudice because such
dismissal has the effect of an adjudication upon the
Q: When will the dismissal become by way of motion merits.
if an Answer had already been served?
XPN: Unless otherwise declared by the court. (Sec. 3,
A: What marks the loss by a plaintiff of the right to Rule 17 of the Rules of Court)
cause dismissal of the action by mere notice is not the
filingof the defendant's answer with the Court (either Q: The Court issued an order requiring the plaintiff to
personally or by mail) but the service on the plaintiff implead indispensable parties. The plaintiff, however,
of said answer or of a motion for summary did not implead the indispensable parties. Can the
judgment. d other papers with the court," according complaint be dismissed on the ground of failure to
to Sec. 1, Rule 13 of the Rules of Court, means the obey the order of the court?
delivery thereof to the clerk of the court either
A: YES. Failure to implead indispensable parties does
personally or by registered mail. Service, on the other
not cause the dismissal of the complaint. It is the
hand, signifies delivery of the pleading or other paper
noncompliance of the court’s order that would cause
to the parties affected thereby through their counsel
the complaint's dismissal. (Domingo v. Scheer, G.R.
of record, unless delivery to the party himself is
No. 154745, January 29, 2004)
ordered by the court, by any of the modes set forth in
the Rules, i.e., by personal service, service by mail, or Q: Can a complaint be dismissed on the ground of the
substituted service. (Go vs. Cruz, G.R. No. L-58986, plaintiff’s failure to implead a necessary party
April 17, 1989) ordered by the court?

NOTE: If a counterclaim has been pleaded by a A: NO. Plaintiff’s failure to implead the necessary
defendant prior to the service upon him or her of the party ordered by the court cannot cause the dismissal
plaintiff's motion for dismissal, the dismissal shall be of the complaint. Such failure will only result in a
limited to the complaint. waiver under Sec. 9, Rule 3 of the Rules of Court.

A class suit shall not be dismissed or compromised NOTE: In Sec. 3, Rule 17 of the Rules of Court, the case
without the approval of the court. (Sec. 2, Rule 17 of is dismissed on account of the plaintiff’s fault. Thus,
the Rules of Court) this dismissal is attributable to the plaintiff himself.

SECTION 3: DISMISSAL DUE TO FAULT OF PLAINTIFF Effect of plaintiff’s failure to appear after he
presented his evidence

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 When a plaintiff fails to appear during the New Rules. Under the New Rules, it is the clerk of
presentation of the defendant’s evidence after he has court that is obliged to set the case for pre-trial.
finished presenting his evidence, it does not warrant
the dismissal of the case. The plaintiff merely waives When should it be set?
his right to cross-examine the witnesses.
The branch clerk of court shall issue a notice of pre-
Page | 100 The right of the co-owner to demand the partition of
trial within five (5) calendar days from the filing of
the thing owned in common under Article 494 of the the last responsive pleading.
Civil Code is an exception to Rule 17, Section 3 of the
Rules of Court to the effect that even if the order of The pre-trial shall be set not later than sixty (60)
dismissal for failure to prosecute is silent on whether calendar days from the filing of the last responsive
or not it is with prejudice, it shall be deemed without pleading.
prejudice. To construe that the Rule 17, Section 3
Last responsive pleading
should prevail over Article 494 of the Civil Code would
diminish the substantive rights of a co-owner through It shall be the last pleading filed by the parties
the promulgation of procedural rules. A substantive permitted by the Rules of Court.
law cannot be amended by a procedural rule.
(Quintos v. Nicolas, G.R. No. 210252, June 16, 2014) It may be an answer or a reply (if the answer was
based on an actionable document) or a rejoinder (if
the reply was based on an actionable document)
SECTION 4: DISMISSAL OF COUNTERCLAIM, CROSS-
SECTION 2: NATURE AND PURPOSE
CLAIM, OR THIRD-PARTY COMPLAINT
The pre- trial is mandatory and should be terminated
Sec. 4, Rule 17 of the Rules of Court shall apply to the
promptly. The court shall consider:
dismissal of any counterclaim, cross-claim, or third-
party complaint. a. The possibility of an amicable settlement or
of a submission to alternative modes of dispute
A voluntary dismissal by the claimant by notice as in resolution;
Sec. 1, Rule 17 of the Rules of Court, shall be made
before a responsive pleading or a motion for b. The simplification of the issues;
summary judgment is served or, if there is none,
before the introduction of evidence at the trial or c. The possibility of obtaining stipulations or
hearing. admissions of facts and of documents to avoid
unnecessary proof;
RULE 18: PRE-TRIAL
d. The limitation of the number and
identification of witnesses and the setting of trial
SECTION 1: WHEN CONDUCTED
dates;
After the last responsive pleading has been served and
filed, the branch clerk of court shall issue, within five e. The advisability of a preliminary reference of
(5) calendar days from filing, a notice of pre-trial issues to a commissioner
which shall be set not later than sixty (60) calendar
f. The propriety of rendering judgment on the
days from the filing of the last responsive pleading.
pleadings, or summary judgment, or of dismissing the
(Rule 18, Sec. 1) action should a valid ground therefor be found to exist

Difference from the Old Rule g. The requirement for the parties to:

Under the old rule, a pre-trial is set at the instance of

the plaintiff. However, this has been amended in the
CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021
 [Link] their respective evidence if not Failure of the plaintiff and his counsel to attend the
yet marked in the judicial affidavits of pre-trial would lead to the dismissal of the case. On
their witnesses; the other hand, failure of the defendant to appear
during the pre-trial would permit the plaintiff the ex
[Link] and make comparisons of the parte presentation of evidence. (Rule 18, Section 5)
adverse parties' evidence vis-a vis the
copies to be marked; Page | 101
In addition, the second paragraph states that failure
of a party to appear during pre-trial, without just
[Link] for the record stipulations
cause, shall result in a waiver of any objections to the
regarding the faithfulness of the
reproductions and the genuineness faithfulness of the reproductions marked, or their
and due execution of the adverse genuineness and due execution.
parties' evidence;
Failure of the judge to conduct pre-trial conference
[Link] evidence not available at the
pre-trial, but only in the following The failure of a judge to conduct a pre-trial
manner: conference is contrary to elementary rules of
procedure. When the law or procedure is elementary,
1. For testimonial evidence, by failure to observe it would constitute gross ignorance
giving the name or position and of the law and warrants a corresponding penalty
the nature of the testimony of the (Riano, 2016)
proposed witness;
Failure to bring the evidence required
2. For documentary evidence and
other object evidence, by giving a
Paragraph 3 provides that the failure of a party to
particular description of the
bring the evidence required would constitute as a
evidence.
waiver of the presentation of such evidence.
No reservation shall be allowed if not
Difference from the Old Rule
made in the manner described above.

The New Rules added that pre-trial should be

h. Such other matters as may aid in the prompt
disposition of the action. terminated promptly. It also adds more
considerations [Rule 18, Sections 2 (d) and (g) were
The failure without just cause of a party and counsel added] that the court should also recognize.
to appear during pre-trial, despite notice, shall result
in a waiver of any objections to the faithfulness of the CASES
reproductions marked, or their genuineness and due
execution. PARANAQUE KINGS ENTERPRISES VS SANTOS

The failure without just cause of a party and/or Motion to postpone pre-trial conference is not a
counsel to bring the evidence required shall be matter of right.
deemed a waiver of the presentation of such evidence.
At the outset, it should be emphasized that the trial
The branch clerk of court shall prepare the minutes of court has the discretion on whether to grant or deny
the pre-trial, which shall have the following format: a motion to postpone and/or reschedule the pre-trial
(See prescribed form) conference in accordance with the circumstances
obtaining in the case. This must be so as it is the trial
Mandatory nature of pre-trial; effects thereof court which is able to witness firsthand the events as
they unfold during the trial of a case. Postponements,
As stated in Rule 18, Section 2, pre-trial is mandatory. while permissible, must not be countenanced except

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 for clearly meritorious grounds and in light of the Under Paragraph 3 of the Section, failure to appear at
attendant circumstances. any of the above-mentioned settings would render
the effects mentioned in Section 5 of the same rule
SPOUSES PASCUAL VS FIRST CONSOLIDATED RURAL applicable.
BANK
SECTION 4: APPEARANCE OF PARTIES
Page | 102
Petitioners argue before the Supreme Court that the
motion for summary judgment filed before the pre- It shall be the duty of the parties and their counsel to
trial must first be resolved before proceeding to pre- appear at the pre-trial, court-annexed mediation, and
trial. judicial dispute resolution, if necessary. The non-
appearance of a party and counsel may be excused
The Supreme Court disagreed with their position only for acts of God, force majeure, or duly
ruling that under Section 2(g) [now 2(f)] the non- substantiated physical inability.
resolution of the motion filed before the pre-trial
does not prevent the holding of the pre-trial. A representative may appear on behalf of a party, but
must be fully authorized in writing to enter into an
SECTION 3: NOTICE OF PRE-TRIAL amicable settlement, to submit to alternative modes
of dispute resolution, and to enter into stipulations or
The notice of pre-trial shall include the dates admissions of facts and documents.
respectively set for:
Appearance of Parties is mandatory; Exceptions
(a) Pre-trial;
This section emphasizes the general rule that
(b) Court-Annexed Mediation; and mandatory appearance of the counsel and the parties
during the pre-trial, court-annexed mediation, and
(c) Judicial Dispute Resolution, if necessary. judicial dispute resolution (if necessary).

The notice of pre-trial shall be served on counsel, or on However, this rule is subject to exceptions. As given in
the party if he or she has no counsel. The counsel the same rule, the non-appearance of a party and
served with such notice is charged with the duty of counsel may be excused only in three instances: (AFP)
notifying the party represented by him or her.
1. Acts of God
Non-appearance at any of the foregoing settings shall
be deemed as non-appearance at the pre-trial and 2. Force Majeure
shall merit the same sanctions under Section 5 hereof.
3. Duly Substantiated Physical Inability
Notice of Pre-Trial: To whom served
Representatives, when allowed
The notice shall be served on the counsel of the party
who has the duty to notify his or her client of the A representative may appear on behalf of a party as
notice. However, if the party has no counsel, the long as such representative is authorized in writing to
notice shall be served to him or her. submit to alternative dispute resolution and to enter
into stipulations or admissions of facts and
Difference from the Old Rule documents.

The New Rules now require that the notice shall CASES
include the dates for the pre-trial, court-annexed
mediation, and judicial dispute resolution (if SPOUSES CORPUZ VS CITIBANK
necessary).

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

In this case, petitioner’s counsel admitted that he Effect of Failure to Appear by the Defendant and
failed to notify his clients of the scheduled pre-trial Counsel; Remedy of the Defendant
because he failed to note it in his calendar and
eventually forgot about it because of his “heavy The failure of the defendant and his or her counsel to
workload”. appear during the pre-trial shall permit the plaintiff to
present evidence ex parte and the court shall render
Page | 103
According to the Supreme Court, such excuse hardly a judgment based on the pieces of evidence offered
constitute exigencies or situations which would by the plaintiff.
warrant flexibility of the rules. As such, the exceptions
given in Rule 18, Section 4 may not considered. The defendant need not file a motion to declare
defendant in default. It must be noted that the
SECTION 5: EFFECT OF FAILURE TO APPEAR default discussed in this section is different from the
one discussed in Rule 9.
When duly notified, the failure of the plaintiff and
counsel to appear without valid cause when so The remedy of the defendant is to file a motion for
required, pursuant to the next preceding Section, shall reconsideration, and if the denial is with grave abuse
cause the dismissal of the action. The dismissal shall of discretion, he or she may file a petition for
be with prejudice, unless otherwise ordered by the certiorari under Rule 65.
court. A similar failure on the part of the defendant
and counsel shall be cause to allow the plaintiff to Default under Rule 9 vs Default under Rule 18
present his or her evidence ex- parte within ten (10)
calendar days from termination of the pre-trial, and
the court to render judgment on the basis of the RULE 9 RULE 18
evidence offered.
Motion to The plaintiff Not required
Effect of Failure to Appear by the Plaintiff and
declare must move to
Counsel; Remedy of the Plaintiff
defendant declare
The failure of the plaintiff and his or her counsel to in default defendant in
appear, without valid cause, will cause the dismissal default and
of the action. The dismissal may be upon motion of must present
the defendant or upon motion of the court. (Rule 17, proof that
Section 3) defendant
failed to file an
Such dismissal shall be with prejudice, unless answer within
otherwise stated by the court. Since, as a general rule, the
the dismissal due to failure to appear is with reglementary
prejudice, it shall operate as an adjudication to the period
merits and thus, it is final. The remedy of the party,
therefore, is to appeal the order of dismissal within
Ex parte Only if ordered Required
the period provided for by the rules. Such rule shall
presentati by the judge,
only apply if it was dismissed with prejudice.
on of otherwise, the
evidence judge shall
However, such dismissal shall not bar the defendant
render
from presenting his or her evidence to prove his
judgment based
counter-claim in the same action or from instituting a
on the reliefs
separate action against the plaintiff. (Rule 17, Section
3)

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 prayed for in does not result in the default of an absent party.
the pleading Under the 1997 Rules of Civil Procedure, a defendant
is only declared in default if he fails to file his Answer
within the reglementary period. On the other hand, if
Remedy Motion to set Motion for a defendant fails to attend the pre-trial conference,
aside order of reconsideration the plaintiff can present his evidence ex parte.
Page | 104 default and if tainted Sections 4 and 5, Rule 18 of the Rules of Court
with grave abuse provides this.
of discretion,
petition for SECTION 6: PRE-TRIAL BRIEF
certiorari
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) calendar days before
the date of the pre-trial, their respective pre- trial
SPOUSES CORPUZ VS AZUCENA briefs which shall contain, among others:

Rule 17, Section 3 and Rule 18, Section 5 must be read a. A concise statement of the case and the
in conjunction. reliefs prayed for;

Rule 17, Section 3 contemplates a dismissal due to the b. A summary of admitted facts and proposed
fault of plaintiff. In this case, the dismissal was due to stipulation of facts;
the failure to appear at the pre-trial. This situation is
also covered by Section 3, as extended by judicial c. The main factual and legal issues to be tried
interpretation, and is ordered, upon motion of or resolved;
defendant or motu proprio by the court.
d. The propriety of referral of factual issues to
BOOKLIGHT VS TIU commissioners;

e. The documents or other object evidence to

In this case, Tiu sued Booklight for unpaid rentals.
be marked, stating the purpose thereof;
Booklight (defendant) was declared to be “non-
suited” under the Rules of Court for its failure to f. The names of the witnesses, and the
attend the pre-trial conference and for its failure to summary of their respective testimonies; and
file a pre-trial brief by the trial court.
g. A brief statement of points of law and
The Court ruled that the trial court erred in declaring citation of authorities.
Booklight “non-suited” under the Rules of Court. The
failure of a party to appear at the pre-trial has adverse Failure to file the pre-trial brief shall have the same
consequences. Section 5, Rule 18 of the Rules of Court effect as failure to appear at the pre-trial.
provides that if the absent party is the plaintiff, then
he may be declared non-suited and his case Failure to file a pre-trial brief; Remedy
dismissed; if it is the defendant who fails to appear,
then the plaintiff may be allowed to present his Filing a pre-trial brief is mandatory and failure to file
evidence ex parte and the court to render judgment a pre-trial brief will result in the application of Section
on the basis thereof. 5 of Rule 18. As such, the failure on the part of the
plaintiff would cause the dismissal of the action and
SPOUSES SALVADOR VS SPOUSES RABAJA the failure of the defendant would permit the plaintiff
to present his or her evidence ex parte.
On the procedural aspect, the Court reiterates the
rule that the failure to attend the pre-trial conference
CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021
A party who failed to file a pre-trial brief may file a except if it is based on acts of God, force majeure or
motion for reconsideration, showing that his failure duly substantiated physical inability of the witness to
to file was due to fraud, accident, mistake, or appear and testify. The party who caused the
excusable negligence. postponement is warned that the presentation of its
evidence must still be terminated within the
CASES remaining dates previously agreed upon. Should the Page | 105
opposing party fail to appear without valid cause
SAGUID VS COURT OF APPEALS stated in the next preceding paragraph, the
presentation of the scheduled witness will proceed
The fact that the petitioner did not have a counsel is with the absent party being deemed to have waived
not a reason for failure to file a pre-trial brief. the right to interpose objection and conduct cross-
examination.
SECTION 7: PRE-TRIAL ORDER
The contents of the pre-trial order shall control the
Upon termination of the pre-trial, the court shall issue
subsequent proceedings, unless modified before trial
an order within ten (10) calendar days which shall
to prevent manifest injustice.
recite in detail the matters taken up. The order shall
include:
Pre-Trial Order
a. An enumeration of the admitted facts;
This is an order issued by the court upon termination
of the pre-trial. It shall be issued within ten (10)
b. The minutes of the pre-trial conference;
calendar days from the termination of the pre-trial.
c. The legal and factual issue/s to be tried;
The pre-trial order defines and limits the issues to be
d. The applicable law, rules, and jurisprudence; tried and its contents shall control the subsequent
course of action of the parties.
e. The evidence marked;
Issues in the Pre-Trial Order
f. The specific trial dates for continuous trial,
which shall be within the period provided by the As a rule, issues included in the pre-trial order were
Rules;(g) The case flowchart to be determined by the defined and limited only to the issues to be tried
court, which shall contain the different stages of the during the trial proper. However, this does not mean
proceedings up to the promulgation of the decision that those are the only issues that may be discussed
and the use of time frames for each stage in setting during trial. It also includes those that are implied
the trial dates;
from the ones written in the order.
g. A statement that the one-day examination of
It was, thus, held that a pre-trial order is not intended
witness rule and most important witness rule under
to be a detailed catalogue of each and every issue that
A.M. No. 03-1-09-SC (Guidelines for Pre-Trial) shall be
strictly followed; and is to be taken during the trial, for it is unavoidable that
there are issues that are impliedly included among
h. A statement that the court shall render those listed or that may be inferable from those listed
judgment on the pleadings or summary judgment, as by necessary implication which are as much integral
the case may [Link] direct testimony of witnesses for parts of the pre-trial order as those expressly listed.
the plaintiff shall be in the form of judicial affidavits. (Riano, 2016)
After the identification of such affidavits, cross-
examination shall proceed immediately. CASES

Postponement of presentation of the ALARCON VS COURT OF APPEALS

parties’􏰃witnesses at a scheduled date is prohibited,

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 In this case, the petitioner filed a complaint for the witnesses constitutes an implied assent on the part of
nullification of the sale between his father and the private respondents to depart from the issue
respondents claiming that the signature of his father contained in the pre-trial order.
was forged . It was admitted that during the pre-trial
conference that the signatures were forged and as LARA’S GIFT AND DECORS INC. VS PNB GENERAL
INSURERS
Page | 106 such, the petitioner moved for the execution of the
partial judgment.
The Judicial Affidavit Rule and the Guidelines on Pre-
The Court of Appeals reversed the decision of the trial Trial do not totally proscribe the submission of
court for the execution of the partial decision ruling additional evidence even after trial had already
that extrinsic fraud was attendant in this case because commenced. As long as there are valid grounds to
although respondent Juani was represented by his allow the submission of additional evidence.
counsel in trial, he did not understand the admissions
he made during the pre-trial proceedings. SECTION 8: COURT-ANNEXED MEDIATION

The Supreme Court held that respondent Juani After pre-trial and, after issues are joined, the court
cannot claim that he was denied his day in court since shall refer the parties for mandatory court-annexed
the basis of the partial decision was the admissions mediation.
made by his counsel. From the foregoing, the
The period for court-annexed mediation shall not
admissions were clearly made during the pre-trial
exceed thirty (30) calendar days without further
conference and, therefore, conclusive upon the
extension.
parties making it. Since the facts were already
admitted, there was no more reason to go to trial
Court-Annexed Mediation (CAM)
which means that the trial court was correct in
executing the partial decision.
It is a voluntary process conducted under the auspices
of the court by referring the parties to the Philippine
SON VS SON
Mediation Center (PMC) Unit for the settlement of
their dispute, assisted by a Mediator accredited by
In this case, petitioners filed a Motion for
the Supreme Court.
Reconsideration concerning their right to repurchase
however, such issue was not covered by the pre-trial
GR: Matters discussed during CAM are confidential in
order since under the order, the issue shall only be
nature.
limited to the validity of the deed of sale.
Rationale: If these matters are not confidential, then
While it is true that pre-trial is primarily intended to
the parties will not talk freely for the fear that
make certain that all issues necessary to the
whatever they say may be used as evidence against
disposition of a case are properly raised. Parties are
them.
expected to disclose at a pre-trial conference all
issues of law and fact which they intend to raise at the
XPN: Matters that form part of the public domain.
trial. The determination of issues at a pre-trial
conference bars the consideration of other questions SECTION 9: JUDICIAL DISPUTE RESOLUTION
on appeal. However, as previously intimated, the
rules are not applied with rigidity especially when it Only if the judge of the court to which the case was
will result in injustice. originally raffled is convinced that settlement is still
possible, the case may be referred to another court for
In this case, the failure of the private respondents to judicial dispute resolution. The judicial dispute
object when the petitioners were presenting resolution shall be conducted within a non-extendible
evidence to prove the right to repurchase and their period of fifteen (15) calendar days from notice of
participation by cross-examining petitioners’ failure of the court-annexed mediation.

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

If judicial dispute resolution fails, trial before the The order of the court to submit the case for judgment
original court shall proceed on the dates agreed pursuant to this Rule shall not be the subject to appeal
upon. or certiorari.

All proceedings during the court-annexed mediation Judgment After Pre-Trial

and the judicial dispute resolution shall be
Page | 107
confidential. The Court, on its own, may move to render a
judgment on the pleadings (if the answer fails to
Judicial Dispute Resolution tender an issue or admits the material allegations of
the adverse party’s pleadings) or to execute a
It is a process whereby the judge employs summary judgment (when there is no genuine issue
conciliation, mediation, or early neutral evaluation in as to any material fact).
order to settle a case at the pre-trial stage. In the
event this fails, then another judge shall proceed to The order of the court submitting the case for
hear and decide the case. judgment under this Rule cannot be the subject of an
appeal or certiorari because it is not yet a final
This is not anymore mandatory and may only be judgment. The remedy would be to proceed and let
resorted to if the judge is convinced that a settlement the judge render a judgment. Once you have the final
may still be reached. judgment, that’s the time you can appeal.

NOTE: Matters discussed in the Judicial Dispute

Resolution are considered confidential matters just
like in CAM so that the parties may talk freely and
voluntarily explore the possibility of settlement.

Any agreement during the CAM and the JDR shall be

reduced in writing and then submitted to the court for
approval. Once it is approved, it shall now constitute
judgment based on a compromised agreement. If a
party fails to follow said judgment, an execution
process may take place.

SECTION 10: JUDGMENT AFTER PRE-TRIAL

Should there be no more controverted facts, or no

more genuine issue as to any material fact, or an
absence of any issue, or should the answer fail to
tender an issue, the court shall, without prejudice to a
party moving for judgment on the pleadings under
Rule 34 or summary judgment under Rule 35, motu
proprio include in the pre-trial order that the case be
submitted for summary judgment or judgment on the
pleadings, without need of position papers or
memoranda. In such cases, judgment shall be
rendered within ninety (90) calendar days from
termination of the pre- trial.

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 PRE-TRIAL
BRIEF (PTB)

Page | 108
Filed Pre-Trial
Failure to File PTB
Brief

By Plaintiff: Ex Parte
Dismissed with Presentation of Pre-Trial
Prejudice (Unless Evidence by Conference
Otherwise Stated) Plaintiff

Failure to Appear No settlement Settlement

By Plaintiff -
By Defendant - Ex
Dismissed with Pre-Trial
Parte Presentation
Prejudice (unless Conference
of Evidence
otherwise stated)

Pre-Trial Order

COURT
RENDERS
DECISION Court-Annexed
Mediation

Judicial Dispute
Resolution (If
Needed)

Trial

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 RULE 19: INTERVENTION to the original suit have no power to waive or
otherwise annul the substantial rights of the
SECTION 1: WHO MAY INTERVENE
intervenor. When an intervening petition has been
filed, a plaintiff may not dismiss the action in any
Intervention
respect to the prejudice of the intervenor.
(Metropolitan Bank and Trust Company, Vs. The Page | 109
A remedy by which a third party, not originally
Presiding Judge, Regional Trial Court, Manila Branch
impleaded in the proceedings, becomes a litigant
39, Raycor Aircontrol System, Inc. And Court Of
therein to enable him to protect or preserve a right or
Appeals, G.R. No. 89909, September 21, 1990)
interest which may be affected by such proceedings.

How do you reconcile the ruling in Gustillo and

Note: This is done through motion.
Raycor?
In an intervention, the third party either joins the
Metropolitan Bank and
plaintiff or unite with the defendant or demand
Trust Company, Vs.
something adverse to both of them. (Mactan-Cebu
The Presiding Judge,
International Airport Authority v. Heirs of Miñoza,
Regional Trial Court,
G.R. No. 186045, February 2, 2011) Ordoñez v Gustillo
Manila Branch 39,
Raycor Aircontrol
Ancillary nature System, Inc. And Court
Of Appeals
An intervention is never an independent proceeding, There was motion to Where a complaint in
but ancillary and supplemental to an existing litigation dismiss based on a intervention was filed
and in subordination to the main proceeding. compromised before plaintiff's action
agreement submitted had been expressly
An intervention is merely an interlocutory proceeding by the plaintiff and the dismissed, the
dependent or subsidiary to the main action. If the defendants approved intervenor's complaint
main action ceased to exist, there is no pending by the court. There was was not subject to
notice to the dismissal on the ground
proceeding wherein the intervention may be based. A
intervenors but they that no action was
judgment approving a compromise agreement is final
did not interpose any pending, since dismissal
and immediately executory. The continuation of an opposition. It was only of plaintiffs action did
intervention in this case would serve no purpose at on after the lapse of not affect the rights of
all. (Ordoñez v Gustillo, G.R. No. 81835, December almost two (2) years the intervenor or affect
20, 1990) when they filed a the dismissal of
motion to set aside the intervenor's complaint.
An intervention cannot alter the nature of the action compromise An intervenor's
and the issues already joined. Bar 2011 agreement. The petition showing it to
decision already be entitled to
However, in the case of Metropolitan Bank and Trust attained finality. affirmative relief will
Company, Vs. The Presiding Judge, Regional Trial be preserved and
heard regardless of the
Court, Manila Branch 39, Raycor Aircontrol System,
disposition of the
Inc. And Court Of Appeals, the Supreme Court ruled
principal action.
that the dismissal of the complaint does not
necessarily mean that the intervention should
Jurisdiction over an intervention is governed by the
likewise be dismissed.
jurisdiction over the main action. An intervention
presupposes the pendency of a suit in a court of
After the intervenor has appeared in the action, the
competent jurisdiction. (Pulgar v. RTC of Mauban,
plaintiff has no absolute right to put the intervenor
Quezon Br. 64, G.R. No. 157583, September 10, 2014)
out of court by the dismissal of the action. The parties

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 As the rule now stands, the nature of the 2. Intervenor’s right or interest can be
counterclaim notwithstanding, the dismissal of the adequately pursued and protected in a
complaint does not ipso jure result in the dismissal of separate proceeding. (Sec. 1, Rule 19)
the counterclaim, and the latter may remain for
independent adjudication of the court, provided that Requisites for intervention

Page | 110 such counterclaim, states a sufficient cause of action 1. There must be a motion for leave to
and does not labor under any infirmity that may
warrant its outright dismissal. (Dio v. Subic Bay intervene filed before rendition of judgment
Marine Exploratorium, G.R. No. 189532, June 11, by the trial court;
2. The movant must show in his motion that he
2014)
has a:
a. Legal interest in the matter in
The dismissal of a complaint due to fault of the litigation; or
plaintiff is without prejudice to the right of the b. Legal interest in the success of
defendant to prosecute any pending counterclaims either of the parties in the action;
of whatever nature in the same or separate action. f c. Legal interest against both parties;
the dismissal of the complaint somehow eliminates d. Movant is so situated as to be
the cause of the counterclaim, then the counterclaim adversely affected by a distribution
cannot survive. (Padilla v. Globe Asiatique Realty or other disposition of property in
Holdings Corp., G.R. No. 207376, August 6, 2014) the custody of the court or of an
officer. (Sec. 1, Rule 19)
Not a matter of right
Legal Interest
Intervention is not a matter of right, but may be
permitted when the applicant shows facts which Actual, material, direct, and of an immediate
satisfy the requirements of the statute authorizing character. (Mactan-Cebu International Airport
intervention. Authority v. Heirs of Miñoza, G.R. No. 186045,
February 2, 2011; Magsaysay-Labrador v. CA, G.R.
Subject to Court’s discretion No. 58168, December 19, 1989)

GR: The allowance or disallowance of a motion for It must not be merely contingent or expectant, so that
intervention rests upon the sound discretion of the the intervenor will either gain or lose by the direct
court after consideration of the appropriate legal operation of the judgment.
circumstances.
If persons whose interests are not actual, material,
XPNs: direct, and of an immediate character, proceedings
1. Intervenor turns out to be an indispensable would become unnecessarily complicated, expensive,
party; and and interminable. (Mactan-Cebu International
2. In a class suit where any party in interest of Airport Authority v. Heirs of Miñoza, G.R. No.
the class has the right to intervene. (Sec. 12, 186045, February 2, 2011)
Rule 3)
Q: Ann and Bert are married. Bert had an extra-
Considerations to be taken marital affair with Maria. Bert and Maria got
married. Ann filed a petition for declaration of
The court in allowing or disallowing an intervention nullity of marriage. Maria filed a motion to
should take into consideration whether or not: intervene saying that her rights will be affected as
the second wife in terms of her marriage status and
1. Intervention will unduly delay or prejudice the properties concerned because some properties
the adjudication of the rights of the original were part of the conjugal property in the case filed
parties, and by Ann. Would you grant the motion to intervene?

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 Subrogation, or Other
A: NO. The subsequent marriage of Bert and Maria is reliefs. (Sec. 11, Rule 6)
void. Maria in fact has no right over the properties
included in the conjugal property. The alleged right SECTION 2: TIME TO INTERVENE
of Maria can be litigated in another proceeding to
allow her to participate. Time to intervene
Page | 111
A corporate stockholder cannot, merely on the basis GR: The motion to intervene may be filed at any time
of being a stockholder, have a legal right to intervene before rendition of judgment by the trial court.
in cases involving corporate assets. A shareholder is
not an owner of a corporate property, which is owned A copy of the pleading-in-intervention shall be
by the corporation as an entity with a attached to the motion and served on the original
separate and distinct personality of its own. parties.
(Magsaysay-Labrador v. CA, G.R. No. 58168,
December 19, 1989) Exceptions:

While a share of a stock represents a proportionate 1. With respect to indispensable parties,

interest of a shareholder in the property of a intervention may be allowed even on appeal
corporation, it does not vest upon him any legal right 2. In order to avoid injustice
or title to any of the property of the corporation. The 3. Protect interest which cannot otherwise
interests of the stockholders are merely indirect, be protected
contingent, remote, conjectural, consequential, and
collateral. Their interest is purely inchoate, or in a Exceptions on right to intervene despite timely
sheer expectancy of a right in the management of the application
corporation and to share in the profits and in the
properties and assets in dissolution, after payment of 1. Lack of legal interest on the matter
the corporate debts and obligations. (Magsaysay- 2. Unduly delays the principal suit
Labrador v. CA, ibid.) 3. Enlarges the issues
4. Expands the scope of remedies
Remedy for the denial of an intervention
Dismissal of original complaint
The order of the court in denying the motion for
intervention is not a decision on the merits of the case In other words, the cessation of the principal litigation
and does not constitute res judicata. – on jurisdictional grounds at that – means that Pulgar
had, as a matter of course, lost his right to intervene.
The remedy is to appeal. The proposed intervenor Where the right of the latter has ceased to exist, there
cannot appeal from the decision, but only from the is nothing to aid or fight for; hence, the right of
order denying the intervention. (Herrera 1, 1130) intervention ceases. (Pulgar vs. RTC, G.R 157583,
September 10, 2014)
COMPLAINT-IN- THIRD-PARTY
INTERVENTION COMPLAINT Intervention can no longer be allowed in a case
By whom filed already terminated by final judgment. (Yu vs.
Stranger to the action to Original party to the Miranda, G.R. 225752, March 27, 2019)
be made a party therein. case to join the third
person in the action. SECTION 3: PLEADINGS-IN-INTERVENTION
Purpose
May intervene for his Contribution, Pleadings-in-intervention
sole benefit and for his Indemnification,
own interest.

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 COMPLAINT-IN- ANSWER-IN- Failure to interpose a timely objection when the
INTERVENTION INTERVENTION motion for leave to intervene was filed bars belatedly
NATURE questioning the validity of the same on appeal.
Intervenor unites with Intervenor unites with (Metropolitan Bank and Trust Company, Vs. The
plaintiff defendant Presiding Judge, Regional Trial Court, Manila Branch
PURPOSE 39, Raycor Aircontrol System, Inc. And Court Of
Page | 112 Assert claim against Resist claim against Appeals, G.R. No. 89909, September 21, 1990)
either or all of the either or all of the
original parties original parties
Procedure for intervention

The allowance or disallowance of a motion for

1. The motion and pleading shall be served
intervention rests on the sound discretion of the upon the original parties
court after consideration of the appropriate 2. The intervenor shall file a motion for
circumstances. It is not an absolute right. The intervention attaching thereto his pleading-
statutory rules or conditions for the right of in-intervention. The pleading to be filed
intervention must be shown. The procedure to secure depends upon the purpose of the
the right to intervene is to a great extent fixed by the intervention
statute or rule, and intervention can, as a rule, be 3. Answer to complaint-in-intervention shall be
secured only in accordance with the terms of the filed within 15 calendar days from notice of
applicable provision. (MCIAA vs. Heirs of Estanislao the order admitting the same, unless a
Minoza, G.R. 186045, February 2, 2011) different period is fixed by the courts.

Complaint-in-intervention against both

RULE 20: CALENDAR OF CASES
If the intervenor does not ally himself with either SECTION 1: CALENDAR OF CASES
party
The Clerk of Court shall keep a calendar of cases for:
It is an initiatory pleading, subject to Payment of
Docket Fees and Certification against Forum- 1. Pre-Trial
Shopping. 2. Trial
3. Those whose trials were adjourned or
Prohibitions on Interventions in Summary Procedure postponed; and
and Small Claims Cases 4. Those with motions set for hearing

Under the Revised Rules on Summary Procedure and Preference is given to the following cases: (HEST)
Revised Rules on Small Claims, interventions are NOT
allowed in such proceedings. 1. Habeas Corpus
2. Election
3. Special Civil Actions
SECTION 4: ANSWER TO COMPLAINT-IN-
4. Those so required by law
INTERVENTION
SECTION 2: ASSIGNMENT OF CASES
Answer to complaint-in-intervention
Assignment of Cases
The answer to the complaint-in-intervention shall be
filed within 15 calendar days from notice of the order The assignment of cases to the different branches of
admitting the same, unless a different period is fixed the court shall be done:
by the court.
1. Exclusively by raffle;
2. In open session; and

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 3. With adequate notice given to interested It is a process directed to a person requiring
parties him to bring with him any books, documents,
or other things under his control. (Sec. 1,
Note: In cases where there is a prayer for a Rule 21)
TRO/WPI, the parties should be notified of the
raffling of the case. 2. Subpoena ad testificandum Page | 113
A violation or disregard of the Court's circular on It is a process directed to a person requiring
how the raffle of cases should be conducted is not to him to attend and to testify at the hearing or
be countenanced. A party has the right to be heard trial of an action or at any investigation
by an impartial and unbiased tribunal. When the conducted by competent authority or for the
respondent judge conducted the raffle of the three taking of his deposition. (Sec. 1, Rule 21)
criminal cases in question, apparently in violation of
the Court's Circular No. 7, he did not only arouse the When requesting party may avail himself of the
suspicion that he had some ulterior motive for doing issuance of a subpoena ad testificandum or duces
so, but he violated the cardinal rule that all judicial tecum
processes must be done above board. (Ang Kek Chen
v. Bello, G.R. Nos. L-76344-46, June 30, 1988) If the government employee or official, or the
requested witness, who is neither the (a) witness of
RULE 21: SUBPOENA the adverse party nor a (b) hostile witness:
SUBPOENA
1. Unjustifiably declines to execute a judicial
affidavit; or
Subpoena is a Latin term which literally means “under
2. Refuses without just cause to make the
the pain of penalty.” It is a process directed to a
relevant books, documents, or other things
person requiring him to attend and to testify at the under his control available for copying,
hearing or the trial of an action, or at any investigation authentication and eventual production in
conducted under the laws of the Philippines, or for court.
taking of his deposition. (Sec. 1, Rule 21)
Note: The rules governing the issuance of a subpoena
SUBPOENA v. SUMMONS to the witness in this case shall be the same as when
taking his deposition except that the taking of a
SUBPOENA SUMMONS judicial affidavit shall be understood to be ex parte.
An order to appear and Writ notifying of action (Sec. 5, A.M. No. 12-8-8-SC)
to testify at the hearing brought against the
or for taking deposition. defendant. SERVICE OF SUBPOENA
May be served to a non- Served on the defendant.
party. Issuance of subpoena
Needs tender of Does not need tender of
kilometrage, attendance kilometrage and other fees. The following may issue a subpoena:
fee and reasonable cost 1. The court before whom the witness is
of production fee. required to attend;
2. The court of the place where the deposition
is to be taken;
Two kinds of subpoena: 3. The officer or body authorized by law to do
so in connection with investigations
conducted by said officer or body; or
1. Subpoena duces tecum;
4. Any Justice of the SC or of the CA in any case
or investigation pending within the
Philippines. (Sec. 2, Rule 21)

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 to the lower court “all sales invoices, sales books and
Subpoena to a prisoner ledgers.” Petitioner filed a motion praying that the
subpoena be quashed on the ground that it is both
The judge or officer shall examine and study carefully unreasonable and oppressive as the books and
such applications to determine whether the same is documents are numerous and voluminous, there is
Page | 114 made for a valid purpose. no good cause shown for the issuance, and that the
documents and books are not relevant to the case
GR: No prisoner sentenced to death, reclusion pending. Is the subpoena duces tecum proper?
perpetua or life imprisonment and is confined in
prison shall be brought outside the said penal A: YES. In order to entitle a party to the issuance of a
institution for appearance or attendance in any court. "subpoena duces tecum," it must appear by clear and
unequivocal proof, that the book or document sought
XPN: When authorized by the Supreme Court. (Sec. 2. to be produced contains evidence relevant and
Rule 21) material to the issue before the court, and that the
precise book, paper or document containing such
Remedy: If not authorised because of risk of flight, evidence has been so designated or described that it
the hearing could be conducted in the penal may be identified. In a suit for unfair competition, it is
institution where the prisoner is located. only through the issuance of the questioned
"subpoena duces tecum" that the complaining party
Contents of subpoena (NaDiDe) is afforded his full rights of redress. To determine the
amount of damages allowable after the final
1. Name of the court and the title of the action determination of the unfair labor case would not only
or investigation, render nugatory the rights of complainant under Sec.
2. Shall be directed to the person whose 23 of R.A. 166, but would be a repetitious process
attendance is required, and causing only unnecessary delay. (Universal Rubber
3. In the case of a subpoena duces tecum, it Products, Inc. v. Hon. Court of Appeals, G.R. No. L-
shall also contain a reasonable description of 30266, June 29, 1984)
the books, documents or things demanded
which must appear to the court prima facie
Rule on subpoena for depositions
relevant. (Sec. 3, Rule 21)
Proof of service of notice to take a deposition, as
Requisites for issuance of Subpoena Duces Tecum provided in Sections 15 and 25, Rule 23, shall
● Test of Relevancy: The books, documents or constitute sufficient authorization for the issuance of
other requests must appear to be prima subpoenas for the persons named in said notice by
facie relevant the clerk of the court of the place in which the
● Test of Definiteness: Such books must be deposition is to be taken. The clerk shall not,
reasonably described to be readily however, issue a subpoena duces tecum to any such
identified. person without an order of the court. (Sec. 5, Rule 21)

NOTE: A general inquisitorial examination of all the An express order of the court is necessary for the
books, papers, and documents of an adversary, issuance by the clerk of court of a subpoena duces
conducted with a view to ascertain whether tecum to a witness for the taking of his deposition,
something of value may not shop up will not be because the officer before whom the deposition is
enforced. (Roco v. Contreras, supra) taken has no authority to Rule on objections,
including a motion to quash.
Q: A case for unfair competition with damages was
filed against petitioner Universal Rubber Products. However, such is not necessary for the issuance of a
The judge, acting favourably on the request of subpoena duces tecum to a witness for the hearing or
respondents, issued a subpoena duces tecum trial before the court. (1 FERIA, supra at 583)
directing the treasurer of Universal to bring with him

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Service of subpoena No. 981-CFI, July 29, 1977; see ROC, Rule
119, Sec. 14 & Rule 115, Sec. 1 par.(g))
1. It shall be made in the same manner as personal
or substituted service of summons. (Sec. 6, Rule 2. When the permission of the court in which
21) the detention prisoner’s case is pending was
2. The original shall be exhibited and a copy thereof not obtained. (Sec. 10, Rule 21)
delivered to the person on whom it is served; Page | 115
3. Tendering to him the fees for one day’s Q: A warrant of arrest was issued against
attendance and the kilometrage allowed by the complainant Dr. Gil, the former health officer of
Rules; Claveria, Masbate for his failure to appear as
government medico-legal witness in a pending
XPN: When a subpoena is issued by or on behalf murder case before Judge Quintain. Dr. Gil’s excuse
of the Republic of the Philippines or an officer or for his non-appearance was the fact that he was not
agency thereof, the tender need not be made. reimbursed for all his travel expenses. But he was
still arrested and confined in the headquarters of the
If the subpoena is duces tecum, the reasonable Philippine Constabulary. Is Dr. Gil required to appear
cost of producing the books, documents or things in court?
demanded shall also be tendered.
A: YES. While sympathizing with the complainant for
Rationale for service of summons the latter's experiences of having spent his own funds
for trips made as a witness in criminal cases, there
The service must be made so as to allow the witness was no way out of the predicament except to obey
a reasonable time for preparation and travel to the
the subpoena. As to the allegation that the judge’s
place of attendance. conduct in chambers when complainant was
explaining his inability to appear was unbecoming a
COMPELLING ATTENDANCE OF WITNESSES; judge, the judge has no reason to be discourteous, as
CONTEMPT he was not in fact so, to the complainant. And after
considering the complainant's explanation, the
Effect of failure to comply with subpoena respondent judge issued an order in chambers
accepting the explanation as satisfactory and
GR: The court or judge which issued the subpoena ordering at the same time the immediate release of
may issue a warrant for the arrest of the witness and the complainant. The issuance of the said order is
make him pay the cost of such warrant and seizure, if inconsistent with the claim of the complainant that
the court should determine that his disobedience was his explanation made in chambers was ignored by the
wilful and without just cause. The refusal to obey a respondent judge. (Genorga v. Quitain, A.M. No.
subpoena without adequate cause shall be deemed 981-CFI, July 29, 1977)
contempt of the court issuing it. (Secs. 8 and 9, Rule
21) QUASHING OF SUBPOENA

XPNs: Grounds for quashal of subpoena

1. Viatory rights of a Witness – where the Subpoena duces tecum:

witness resides more than 100 kms. from his
residence to the place where he is to testify
Upon motion promptly made, in any event, or before
by the ordinary course of travel, generally,
by overland transportation; or the time specified therein:

Note: This refers only to civil and not to 1. If it is unreasonable and oppressive;
criminal cases. (Genorga v. Quitain, A.M. 2. The relevancy of the books, documents or
things does not appear;

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 3. If the person in whose behalf the subpoena XPN: When allowed by the court for good cause
is issued fails to advance the reasonable cost shown and to prevent a failure of justice. (id.)
of the production thereof (Sec. 4, Rule 21); or
4. That the witness fees and kilometrage Q: A criminal case was filed in the CFI of Zamboanga
allowed by the Rules were not tendered City against Felix Wee Sit for double homicide and
when the subpoena was served. serious physical injuries through reckless
Page | 116
imprudence. During trial, it was stated that a certain
Note: The grounds are not exclusive.
Ernesto, a permanent resident of Montalban Rizal is
a material and important witness in the case, as he
Subpoena ad testificandum:
happened to be an eye-witness during the traffic
incident wherein a private jeep was driven recklessly
1. That the witness is not bound thereby; or
by Felix Wee in the public highway of Zamboanga
2. That the witness fees and kilometrage
City. Subpoena was served on Ernesto but he did not
allowed by the Rules were not tendered
when the subpoena was served. (Sec. 4, Rule appear. The City Fiscal formally moved for an order
21) of arrest or in the alternative to cite him for
3. That the witness invokes his viatory right. contempt for wilful failure to appear at the trial,
(Sec. 10, Rule 21) which the respondent Judge denied. Whether the
judge’s denial is proper?
Illustration: If the court is in Batangas, and
the witness lives in Cebu, which is more than A: NO. Under the circumstances, in view of the
100 kms away. Even if the court issues a serious handicap to which the prosecution would thus
subpoena, the witness, who lives 100kms be subjected in proving its case, the order of
away from the court in which he is supposed respondent judge denying the motion for an order of
to testify is not bound to follow the arrest or a citation for contempt in the alternative,
subpoena. He cannot be cited in contempt based on a clear misapprehension of the Rules of
for failing to appear. Court, could be viewed as amounting to grave abuse
of discretion. It would follow then that the
The remedy is deposition. The party respondent Judge should decide said motion without
requesting the witness will be the one who taking into consideration Section 9 of Rule 23.
will go to the place of the supposed witness.
The party may either file a deposition or It is loath to clip what undoubtedly is the inherent
written interrogatories. power of the Court to compel the attendance of
persons to testify in a case pending therein. Section 9
Note: This viatory right is applicable only in of Rule 23 is thus interpreted to apply solely to civil
civil cases. (People of the Philippines v. Hon. cases. A recognition of such power in a court of first
Gregorio Montejo, G.R. No. L-24154, October instance conducting the trial of an accused may be
31, 1967) gleaned from principle that justifies it when satisfied
"by proof or oath, that there is reason to believe that
Note: The grounds are not exclusive. a material witness for the prosecution will not appear
and testify when required," to order that he "give bail
Subpoena ad testificandum on Adverse Party in sum as it may deem proper for such appearance.
Upon refusal to give bail, the court must commit him
Before an adverse party witness may be called to give to prison until he complies or is legally discharged.
testimony in open court, written interrogatories must (People of the Philippines v. Hon. Gregorio Montejo,
first be served. Otherwise, the adverse party witness G.R. No. L-24154, October 31, 1967)
may not be compelled to give such testimony, or to
give deposition pending appeal. (Sec. 6, Rule 25, RoC) RULE 22: COMPUTATION OF TIME
COMPUTATION OF TIME

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 for felonies therein. (Yapdiangco v. Buencamino,
In computing, any period of time prescribed or G.R. No. L-28841, June 24, 1983)
allowed by these Rules, or by order of the court or by
any applicable statute, the day of the act or the event How 15-day extension should be reckoned
from which the designated period of time begins to
run is to be excluded and the date of the performance It should be tacked on to the original period and
Page | 117
included. commence immediately after the expiration of such
period.
If the last day falls on a Saturday, or a Sunday, or a
legal holiday, in the place where the court sits, the Petitioner still had until December 28, 1998, a
time shall not run until the next working day. (Sec. 1, Monday and the next business day to move for a 15-
Rule 22) day extension considering that December 26, 1998,
the last day for petitioner to file her petition for
Non-working days (Saturdays, Sundays, and legal review fell on a Saturday. The motion for extension
holidays) are excluded from the counting of the filed on December 28, 1998 was thus filed on time
period only when the last day of the period falls on since it was filed before the expiration of the time
such days. Rule 22 does not provide for any other sought to be extended. (Labad v. The University of
circumstance in which non-working days would affect Southwestern PHL, G.R. No. 139665, August 9, 2001)
the counting of a prescribed period. (Sps. Leynes v.
CA, G.R. No. 154462, January 19, 2011) Any extension of time to file the required pleading
should be counted from the expiration of the period
Applicability of Article 13 of the Civil Code regardless of the fact that the said due date is a
Saturday, Sunday, or legal holiday. (A.M. No. 00-2-14-
When the law speaks of years, months, days or nights, SC; Luz v. National Amnesty Commission, G.R. No.
it shall be understood that: 159708, September 24, 2004)

1. Years – three hundred sixty-five days; Illustration: During holy week, there is no work on
2. Days – twenty-four hours; and Thursday, Friday, Saturday, and Sunday. If the
3. Nights – from sunset to sunrise deadline falls on a Holy Thursday, the deadline is
4. Months – if designated by names, they shall actually on Monday, the first working day.
be computed by the number of days which
they respectively have. However, for purposes of asking for an extension of
time the rule is different. If the deadline is a Saturday,
In computing a period, the first day shall be excluded and a party sought an extension and the same is
and the last day included. granted, the due date ceases to be the last day, and
hence, the provision no longer applies. Any extension
This rule applies only when the period of time is therefore to file the required pleading should
prescribed by the Rules, by order of the court or by therefore be counted or reckoned from the expiration
any applicable statute. (Art. 13, NCC) of the period regardless of the fact that said due date
is a Saturday, Sunday or legal holiday. (Reinier Pacific
Exceptions (CSP) International Shipping, INC. and Neptune Ship
Management Svcs., PTE., v. Captain Guevarra, G.R.
1. To those provided in the Contract (Art. 1159, No. 157020, June 19, 2013)
NCC);
2. A Specific date set for a court hearing or
If the petitioner asked for a 10-day period to file an
foreclosure sale (Rural Bank v. CA, G.R. No. L-
Answer and the same was granted, it should be
32116, April 21, 1981); or
3. Prescriptive (not Reglementary) periods reckoned from Saturday, the original deadline, and
specifically provided by the Revised Penal Code not on Monday, the day petitioner is supposed to
submit an Answer.

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 the 15-day appeal period. It ruled that petitioners,
Pretermission of Holidays in civil and criminal cases having filed their MR on the last day of the 15-day
reglementary period to appeal, had only one (1) day
In construing statute of limitations, the first day is left to file the notice of appeal upon receipt of the
excluded and the last day is included, unless the last notice of denial of their MR. Petitioners, however,
Page | 118 day dies non (a day on which no courts can be held), argue that they were entitled under the Rules to a
in which case the act may be done on the succeeding fresh period of 15 days from receipt of the final order
business days. or the order dismissing their MR. Petitioners here
filed their notice of appeal on July 27, 1998 or five
In criminal cases, such a situation cannot lengthen the days from the receipt of the order denying their MR.
period fixed by law to prosecute such offenders. The Whether petitioners filed their notice of appeal in
waiver or loss of right to prosecute is automatic and time?
by operation of law. Where the last day to file an
information falls on a Sunday or legal holiday, the A: YES. Petitioners here filed their notice of appeal
period cannot be extended up to the next working five days from receipt of the order denying their
day since the prescription has already set in. (1 motion for reconsideration on July 22, 1998. Hence,
Regalado, supra at 341) the notice of appeal was well within the fresh appeal
period of 15 days, as already discussed. Thus,
Effect of interruption petitioners seasonably filed their notice of appeal
within the fresh period of 15 days, counted from July
Should an act be done which effectively interrupts the 22, 1998 (the date of receipt of notice denying their
running of the period, the allowable period after such motion for reconsideration).
interruption shall start to run on the day after the
notice of the cessation of the cause thereof. To recapitulate, a party litigant may either file his
notice of appeal within 15 days from receipt of the
The day of the act that caused the interruption shall Regional Trial Court's decision or file it within 15 days
be excluded in the computation of the period. from receipt of the order (the final order) denying his
motion for new trial or motion for reconsideration.
The event referred to would include force majeure, Obviously, the new 15-day period may be availed of
fortuitous events or calamities. (Sec. 2, Rule 22) only if either motion is filed; otherwise, the decision
becomes final and executory after the lapse of the
Fresh appeal period original appeal period provided in Rule 41, Section 3.
(Neypes [Link] v. CA, G.R. No. 141524, en banc,
To standardize the appeal periods provided in the September 14, 2005)
Rules and to afford litigants fair opportunity to appeal
their cases, the Court deems it practical to allow a RULE 23: DEPOSITIONS PENDING ACTIONS
fresh period of 15 days within which to file the notice
SECTION 1
of appeal in the Regional Trial Court, counted from
Depositions pending action, when may be taken
receipt of the order dismissing a motion for a new trial
or motion for reconsideration. (Neypes [Link] v. CA,
Rules 23 to 28 provide for the different modes of
G.R. No. 141524, en banc, September 14, 2005)
discovery that may be resorted to by a party to an
Q: Under Rule 41, Section 3, petitioners had 15 days action:
from notice of judgment or final order to appeal the
decision of the trial court. On the 15th day of the a. Depositions pending action (Rule 23);
original appeal period (March 18, 1998), petitioners b. Depositions before action or pending appeal
did not file a notice of appeal but instead opted to (Rule 24);
file a motion for reconsideration. According to the c. Interrogatories to parties (Rule 25);
trial court, the MR only interrupted the running of d. Admission by adverse party (Rule 26);

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 e. Production or inspection of documents or
things (Rule 27); and 2 Kinds of Deposition
f. Physical and mental examination of persons 1. When the case is pending
(Rule 28). 2. To perpetuate the testimony of a person

Rule 29 – legal sanctions for the refusal of the party Two modes of deposition taking: Page | 119
to comply with such modes of discovery lawfully 1. Deposition upon oral examination; or
resorted to by the adverse party. 2. Deposition upon written interrogatories.
(Republic v. Sandiganbayan)
Cast of Characters (Minimum of 5 participants)
● Plaintiff- who may be the requesting party in Interrogatory or interrogatories under Rule 25, or
the deposition; who should be at the request for admissions under Rule 26 may be
deposition taking availed of, and precisely, the ROC explicitly
● Adverse party- who may be allowed to make provides it is not necessary to avail of these
cross modes of discovery only after an answer has
● Deponent been filed. Through the modes of discovery you
● Administering/Deposing officer- who will can discover the evidence.
swear in
● Stenographer- be the one to transcribe Rule 18/8 pleadings. Under the rules you must
Note: Judge is not included state the ultimate facts and evidentiary facts.
Certify that whatever you allege can be backed
When taken: Upon ex parte motion of a party. it is a up by evidence, and discoverable.
non-litigated motion.
The attendance of witnesses may be compelled
If granted, the applicant/lawyer will have to look for a by subpoena as provided in Sec. 8, Rule 21. This
deposing officer (Notary public), and look for a place is to compel the deponent to appear in the
for the deposition, also he must look for a person who deposition taking. When the deponent lives very
will transcribe. Then he will file a request, a notice of far (100km away), you can apply in the court
deposition stating the place, the time, and the hour, where the deponent lives, so that the court can
the name of the deposing officer, and the name of the compel the deponent to appear in the deposition
deponent. Everyone must go there. taking.

In the case of Kho v. IAC, the rules of discovery are The clerk of court cannot issue a subpoena unless
intended to enable a party to obtain knowledge of with the express approval of the court it is based
material facts within the knowledge of the adverse in.
parties or third parties through depositions, written
interrogatories, and even admissions. SECTION 2 - 3
Scope of Examination and Cross-Examination
In other words, through mode of discovery, you can
inspect relevant documents, states, or even enter into 1. Look for a person who is a notary public to
lands. You can determine the physical and/or mental administer, and ask the notary public to look
condition of a party when the same is in controversy. for a person who will transcribe.
2. Other party must be informed because he
Whose deposition may be taken: Testimony of any has the right to be present during the
person, whether a party or not at the instance of any deposition.
party. 3. Go to where the deposition will take place.

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 2. Those which are relevant to the subject of
What questions may be asked? Any and all relevant pending action made by the pleadings or
questions. likely to arise under the pleadings; and
3. Under such limitations as the court may
What do you mean by “Relevant” ? It intends to prove order under Secs. 16 and 18 of Rule 23.
Page | 120 the fact and issue. a. The court under Rule 23 can issue
protection orders, or you can only
Do you have the unbridled authority to ask any ask through oral examination, not
questions under the Sun? No. through written interrogatories.
You cannot ask trading secrets.
You cannot just oppose the deposition taking place These are the limitations.
because you feel like it is a fishing expedition. That is
not a valid ground for the deposition not to take SECTION 3: EXAMINATION AND CROSS
place. The deponent may be examined on all matters EXAMINATION
that are not privileged. Which means if it is covered
and protected by the mantle of privileged Q: All of the parties are in the hotel, complainant,
communication, you cannot ask questions. lawyer, defendant, lawyer, and the deponent who
may or may not be a party or an ordinary witness,
The deponent may be examined on all matters: not the deposing officer and the stenographer. I will ask
privileged as if I was in court, “Miss deponent please tell us
where you were in the afternoon of February 20,
Examples of Privileged Communication: 2020”, and then she answered. The defendant
1. Between husband and wife; objected: “Objection! Leading
2. Between attorney and client; question”/“Objection! She is incompetent”. Can the
3. Between medical practitioner and patient; deposing officer say “Objection overruled”/
4. Between minister or priest and penitent; and “Objection sustained”?
5. Communications made to a public officer in
official confidence during his term or A: No. The most that the Deposing Officer can say is
afterwards. (Sec. 24, Rule 130, Rules of “Noted.” The court will be the one who will rule on
Court); the objection.

Other Privileged Communications: The deponent may be examined or cross-examined

a. Voters may not be following the procedures for witnesses in a trial. He
compelled to disclose for whom has the same rights as a witness and may be
they voted; impeached like a court witness. On cross
b. Secrecy of Bank deposits; examination, the cross examiner can now assail the
c. Editors may not be integrity of the deponent as a person, and the gist of
compelled to disclose the source of his testimony.
published news; The officer before whom the deposition is taken
d. Trade secrets; and does not have the power to rule upon objections to
e. Information contained in the questions. He should merely have such
tax census returns. objections noted in the deposition (in relation to
Sec. 17).
What can be asked? GR: The deposition taken cannot be made in
1. Those that are not privileged. lieu of the direct testimony in court.

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Q: A took the deposition of C, as an ordinary witness. Witness, Any party Any purpose if the
Must C still take the witness stand? Why or why not? whether a deponent-witness is
party or not not available under
A: Yes, C must still take the witness stand. As a general the following
rule the deponent must still take the witness stand to circumstances:
verify and certify his or her deposition. However, it is ● Witness is Page | 121
subject to exceptions provided for in Sec. 4 Rule 23. dead
● Witness
SECTION 4 resides
Depositions pending action, when may be taken more than
100kms
Different Kinds of Witnesses: from the
1. Ordinary Witness, who may or may not be a place of
party to the case trial or
2. Adverse Party Witness hearing
3. Hostile Witness ● Witness is
4. Expert Witness out of the
5. Child Witness Philippines,
unless is
Use of Depositions appears
that his
Deponent Used by Purpose absence
Person who is Any party Contradicting or was
not a party impeaching the procured
testimony of a by the
deponent as party
witness. offering the
A party or of Adverse Any purpose: Any deposition
anyone who at party admission contained ● Witness is
the time of in the deposition is unable to
taking the evidence per se and attend or
deposition was may be used against testify
an officer, the deponent because of
director, or without need to age,
managing present the sickness,
agent of a deponent as witness infirmity, or
public or in court. It becomes imprisonm
private a judicial admission ent
corporation, without the need of ● The party
partnership, or further proof. offering th
association e
which is a deposition
party. has been
unable to
procure the
attendance

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 of the require him to introduce the entirety, and any party
witness by may introduce any other parts. (Sec. 4, Rule 23)
subpoena
● upon As a general rule the deponent must still take the
application witness stand to verify and certify his or her
Page | 122 and notice, deposition. However, it is subject to exceptions
that such provided for in Sec. 4 Rule 23.
exceptional
circumstan SECTION 5
ces exist as Depositions pending action, when may be taken
to
make it de Substitution of parties does not affect the right to use
sirable, in depositions previously taken.
the interes
t of justice When an action has been dismissed and another
and with action involving the same subject is afterward
due regard brought between the same parties or their
to the representatives or successors in interest, all
importance depositions lawfully taken and duly filed in the former
of action may be used in the latter as if originally taken
presenting therefor.
the
testimony Note: The deposition in the former case or
of proceeding may be given in evidence against the
witnesses adverse party who has the opportunity to cross-
orally in examine the deponent and will not be considered as
open court, hearsay. (Sec. 47, Rules 47, Rules of Court)
to allow the
deposition SECTION 6
to be used Depositions pending action, when may be taken

Subject to the provisions of Sec. 29 of Rule 23,

Where depositions may be used: objection may be made at the trial or hearing to
1. at the trial receiving in evidence any deposition or part thereof
2. at the hearing of a motion for any reason which would require exclusion of
3. at the hearing of an interlocutory evidence if the witness were then present and
proceeding. testifying. Basically, you can still have it excluded.

Deposition may be used against a party who was: SECTION 7-8

1. Present at the time of its taking; Effect of Using Depositions
2. Represented at the time of its taking;
3. Notified of its taking. Q: Mr. Agustin applied for deposition taking, he
wants the deposition of Shara be taken. The fact that
If only part of a deposition is offered in evidence by a he was the one who moved for the deposition to be
party, (When is it offered? When it comes to formal taken, does it make Shara his witness?
or documentary evidence) the adverse party may

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A: No. Until and unless he calls Shara to take the
witness stand, or until and unless he reduces the Persons before whom depositions may be taken in
direct testimony of Shara in judicial affidavit form, the foreign countries:
deponent is not a witness of Mr. Agustin.
1. Secretary of an embassy or legation, consul
Q: What is the effect of using the deposition? general, consul, vice-consul general, or Page | 123
A: The introduction of the deposition under Sec. 8 consular agent of the Republic of the
binds the party introducing it, since he makes the Philippines;
deponent his witness. Note: When you do it in the
embassy it is as if you’re doing it in the
GR: While the taking of the deposition of a person Philippines.
does not make such person a witness of the party 2. Such person or officer as may be appointed
taking his deposition (Sec. 7), the introduction of the by commission or under letters rogatory; or
deposition binds the party who introduces it since he 3. Any person authorized to administer oaths,
thereby makes the deponent his witness. if the parties so stipulate in writing (Sec. 14).

XPN: No Deposition Shall be Taken Before a Person Who

1. If it is introduced to impeach or contradict is (Sec. 13)
the witness; or
2. If it is the deposition of the opposing party. 1. A relative within the sixth (6th) degree of
affinity or consanguinity;
SECTION 9 2. An employee or counsel of any of the
Rebutting Deposition parties;
3. A relative within the same degree, or
Q: Can you file to rebut the deposition employee of such counsel; or
A: Yes. Sec. 9 says “at the trial or hearing, any party 4. Financially interested in the action.
may rebut any relevant evidence obtained in a
deposition, whether introduced by him or her or by NOTE: Section 13 is waivable, so it should be raised
the other party. immediately; if not raised it is deemed waived.

At the trial or hearing, any party may rebut any SECTION 12

relevant evidence contained in a deposition whether Commission or Letters Rogatory
introduced by him or her or by any other party.
Q: What is the difference between commission and
SECTIONS 10 - 14 letters rogatory?
Persons before Whom Depositions May be Taken A:
Commission: An instrument issued by a court of
Within the Philippines (Sec. 10) justice, or other competent tribunal, to authorize a
Persons before whom depositions may be taken person to take depositions or do any other act by
within the Philippines: authority of such court or tribunal (Dasmariñas
1. Judge; Garments, Inc. v. Reyes, G.R. 108229, Aug. 24, 1993).
2. Notary Public; or It is directed to a person, and that person will conduct
3. Any person authorized to administer oaths, it under the authority of the court.
if the parties so stipulate in writing (Sec. 14).
Letters Rogator: An instrument sent in the name and
In Foreign Countries (Sec. 11) by the authority of a judge or court to another court,

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 requesting the latter to cause to be examined, upon Notice to Take Deposition
interrogatories filed in a case pending before the Please be informed that pursuant to Rule 23, the
former, a witness who is within the jurisdiction of the deposition of Mr. X shall take place on the (DATE), at
judge or court to whom such letters are addressed the (TIME), in (PLACE/Venue).
(Dasmariñas Garments, Inc. v. Reyes, G.R. 108229,
Page | 124 Aug. 24, 1993). The judge will be the one to question. Q: What happens after you have set the notice of
deposition, but you were the one who did not go to
Distinction: A commission is addressed to officers the deposition? Can the party who went there file a
designated either by name or descriptive title. motion in court and ask for reimbursement of the
costs incurred during the interval?
Letters rogatory are addressed to some appropriate
judicial authority in the foreign state. It may be A: Rule 29. The other party can ask for
applied for and issued only after a commission has reimbursement of the costs incurred during the
returned unexecuted (Dasmariñas Garments, Inc. v. travel.
Reyes, G.R. 108229, Aug. 24, 1993).
Sections 16
SECTION 13
Disqualification by interest After service of the notice, the court upon motion
(you have to apply for this protection order)by any
Q: How do you compute the degrees? party or by the person to be examined and for good
A: Assent to the common ancestor. cause shown, issue an order for the protection of the
Note: Sec. 13 is waivable, so it must be raised at the parties and the deponent.
earliest opportunity, if not raised, it is waived.
Q: What may be these orders of protection?
SECTION 14 A: The court may order that the deposition be taken
Stipulations regarding taking of depositions only at a designated place other than the one stated
in the notice (state the reason why); or that instead
Parties may agree as to what place, date and time. of being orally conducted, the deposition may be
taken only on written interrogatories; It may even
SECTIONS 15-19 issue any other order to protect the parties and their
Depositions Pending Actions witnesses from annoyance, embarrassment, or
oppression; or can issue a protection order to bar any
A party desiring to take the deposition of any person questions relating to the disclosure of secret
upon oral examination shall give to every party to the formulas; or an order saying not to include those that
action a reasonable notice in writing (Ex. File ex parte are covered by privileged communication.
application, granted. Then file a notice to take
deposition). Such notice is required to contain the Protection orders can be granted, upon motion
following: seasonably made before the deposition takes place
1. The time and place for taking deposition and by any party or by the person to be examined
2. The name and address of each person to be 1. That the deposition shall not be taken.
examined, if known; if not known, there a. May be raised on the ground that it
must be a general description sufficient to is only made to annoy or embarrass
identify him or particular class or group to the party, or that the matters asked
which he belongs. are irrelevant to the case.

Example pleading:

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 1. That the deposition may be taken only at It is the duty of the officer before whom the
some designated place other than that deposition is to be taken, personally or by someone
stated in the notice. acting under his or her own discretion and in his or
2. That the deposition may be taken only on her presence to put the witness under oath.
written interrogatories, instead of oral Note: That is the importance or reason why you have
examination. a lawyer/notary public to administer the oath. Page | 125
Somebody has to administer the oath, so that
In this case, the counsel will reduce in writing the whatever will be asked or questioned, if you lie, you
questions, serve it to the deponent. It will be read by can be sued for perjury. And somebody has to record
the deposing officer, and the answer will also be in the testimony of the witness.
writing. The other party can also submit cross written
interrogatories. GR: The testimony shall be taken
stenographically
a. Questions are indicated in writing and sent XPN: Unless the parties agree otherwise. But
to the person subject of the deposition who it has to be reduced in writing.
will answer in writing. The other party has a All objections made at the time of the examination to
period of 10 days to object or send cross- the qualifications of the officer taking the deposition,
interrogatories. (Section 25, Rule 23) or to the manner of taking it, or to the evidence
NOTE: Oral deposition is better because the presented, or to the conduct of any party, and any
person subjected to it has less time to think. other objection to the proceedings (ex. leading
questions, irrelevant questions, immaterial), shall be
1. That certain matters shall not be noted by the officer upon the deposition.
inquired into;
2. That the scope of the examination Objections shall be noted by the officer upon the
shall be held with no one present deposition. Evidence objected shall be taken and
except the parties to the action and recorded. But the deposing officer cannot rule on the
their officers or counsel; objections. At the end of the day, it is the court who
3. That after being sealed the will rule on the objections.
deposition shall be opened only by
order of the court; Evidence objected to shall be taken and noted
4. That secret processes, subject to the objections. In lieu of
developments, or research need participating in the oral examination, parties served
not be disclosed; or with notice of taking a deposition may transmit
5. That the parties shall written interrogatories to the officers, who shall
simultaneously file specified propound them to the witness and record the
documents or information enclosed answers verbatim.
in sealed envelopes to be opened as If someone objects, the deposing officer cannot say
directed by the court. The court “sustained” because hindi siya judge. The deposing
may make any other order which officer will just take note of the deposition and say
justice requires to protect the party “noted”. At the end of the day, it is the court who will
or witness from annoyance, rule on the deposition.
embarrassment, or oppression.
In Sec. 17, reference was made to written
SECTION 17 interrogatories. In lieu of oral examination the parties
Record of examination; oath; objections. served with notice of taking a deposition may
transmit written interrogatories to the officers who

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 should propound them to the witness and record the 3. Promptly file it with the court in which the
answers verbatim. action is pending; (sec. 21) or
4. Send it by registered mail to the clerk thereof
SECTION 18 for filing (Rule 23, Sec. 22, RoC).
Motion to terminate or limit examination.
Page | 126 Q: Can you give a copy to the other party?
A party or the deponent can ask the court to A: Yes. Upon payment of reasonable charges
terminate the deposition if there is bad faith or in according to Sec. 20
such a manner as to unreasonably annoy, embarrass,
or oppress the deponent or party. SECTION 21

SECTION 19 The officer taking the deposition must give prompt

notice of its filing to all the parties (Rule 23, Sec. 21,
When the testimony is fully transcribed, the RoC)
deposition shall be submitted to the witness for
examination and read to or by him, unless such SECTION 22
examination is waived by the witness and the
parties. The witness may desire some changes in Upon payment of reasonable charges therefore, the
form and substance, in which case such changes shall officer shall furnish a copy of the deposition to any
be entered upon the deposition by the officer with a party or to the deponent (Rule 23, Sec. 22, RoC).
statement of the reasons of the witness making such Duties of the Officer; Summary
changes.
The officer must:
The deposition shall be signed by the witness. 1. Certify the deposition (Rule 23, Sec. 20,
However such signing may be waived by the parties RoC);
by stipulation or, the deposition cannot be signed 2. Seal the deposition (Rule 23, Sec. 20, RoC);
because the witness is ill, cannot be found or he 3. File it with the court or send it by
refuses to sign. registered mail (Rule 23, Sec. 20, RoC);
4. Give prompt notice of the deposition’s
If the deposition is not signed by the witness, the filing (Rule 23, Sec. 21, RoC); and
officer shall sign it and state on the record 5. Furnish a copy of the deposition (Rule 23,
the attendant facts, together with the reason given Sec. 22, RoC).
for the non-signing of the deposition.
SECTION 23
SECTION 20
If the party giving the notice of the taking of a
The officer shall: deposition fails to attend and proceed, but the other
1. Certify on the deposition that party attends in person or by counsel pursuant to the
a. The witness was duly sworn to by notice, the court may order the party giving the notice
him or her; (sec. 20) and to pay such other party:
b. The deposition is a true record of 1. Amount of the reasonable expenses incurred
the testimony given by the witness. in so attending; and
2. Securely seal the deposition in an envelope 2. Reasonable attorney's fees (Rule 23, Sec. 23,
indorsed with the title of the action and RoC).
marked "Deposition of (name of witness);"
(sec. 20) and SECTION 24

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 Failure of party giving notice to serve subpoena.
Delivery to Officer
To compel the attendance of the deponent, you can A copy of the notice and copies of all interrogatories
file an application or a request for admission in the served shall be delivered by the party taking the
court where the person is supposed to be deposed for deposition to the officer designated in the notice
an issuance of a subpoena. (Rule 23, Sec. 26, RoC). Page | 127

SECTION 25 Duty of Officer upon Receipt

Deposition upon written interrogatories; service of The officer shall proceed promptly, in the manner
notice and of interrogatories provided by Sections 17, 19 and 20:
1. To take the testimony of the witness in
Written Interrogatories response to the interrogatories; and
You have to serve a set of interrogatories. A party 2. To prepare, certify, and file or mail the
desiring to take the deposition of any person upon deposition, attaching thereto the copy of the
written interrogatories shall serve them upon every notice and the interrogatories received by
other party with a notice stating: him (Rule 23, Sec. 26, RoC).
1. The name and address of the person who
is to answer them; and SECTION 27
2. The name or descriptive title and address Notice of filing and furnishing copies
of the officer before whom the deposition is
to be taken (Rule 23, Sec. 25, Par. 1, RoC). When a deposition upon interrogatories is filed, the
officer taking it shall promptly give notice to all the
Note: It will be the deposing officer who will read the parties and may furnish copies to them or to the
question. Meanwhile, the deponent already knows deponent upon payment of reasonable charges (Rule
the question and his/her answer. 23, Sec. 27, RoC).

Cross-Interrogatories SECTION 28
Within ten (10) calendar days thereafter, a party so Orders for the protection of parties and deponents
served may serve cross-interrogatories upon the
party proposing to take the deposition (Rule 23, Sec. Motion and Order
25, Par. 2, RoC). After the service of the interrogatories and prior to
the taking of the testimony of the deponent, the court
Re-direct Interrogatories in which the action is pending, on motion promptly
Within five (5) calendar days thereafter the latter may made by a party or a deponent, and for good cause
serve redirect interrogatories upon a party who has shown, may make any order specified in Sections 15,
served cross-interrogatories (Rule 23, Sec. 25, Par. 2, 16 and 18 of this Rule which is appropriate and just or
RoC). an order that the deposition:
1. Shall not be taken before the officer
Re-cross-Interrogatories designated in the notice; or
Within three (3) calendar days after being served with 2. Shall not be taken except upon oral
redirect interrogatories, a party may serve recross examination (Rule 23, Sec. 28, RoC).
interrogatories upon the party proposing to take the
deposition (Rule 23, Sec. 25, Par. 2, RoC). SECTION 28
Effect of errors and irregularities in depositions
SECTION 26
Officers to take responses and prepare record

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 The number 1 rule is to object as to the errors and Objections to the form of written interrogatories
irregularities of the deposition, as to the competency submitted under Sections 25 and 26 of this Rule are
and relevance of the evidence, as to oral waived unless served in writing upon the party
examinations, and other to particular matters, as to propounding them within the time allowed for
the form of written interrogatories, and as to the serving succeeding cross or other interrogatories and
Page | 128 manner of preparation. within three (3) calendar days after service of the last
interrogatories authorized (Rule 23, Sec. 29, Par. e,
Q: Who will rule on the objection? RoC).
A: It will be the court .
AS TO MANNER OF PREPARATION
AS TO NOTICE Errors and irregularities in the manner in which the
All errors and irregularities in the notice for taking a testimony is transcribed or the deposition is
deposition are waived unless written objection is prepared, signed, certified, sealed, indorsed,
promptly served upon the party giving the notice transmitted, filed, or otherwise dealt with by the
(Rule 23, Sec. 29, Par. a, RoC). officer under Sections 17, 19, 20 and 26 of this Rules
are waived unless a motion to suppress the
AS TO DISQUALIFICATION OF OFFICER deposition or some part thereof is made with
Objection to taking a deposition because of reasonable promptness after such defect is, or with
disqualification of the officer before whom it is to be due diligence might have been, ascertained (Rule 23,
taken is waived unless made before the taking of the Sec. 29, Par. f, RoC).
deposition begins or as soon thereafter as the
disqualification becomes known or could be Cases
discovered with reasonable diligence (Rule 23, Sec.
29, Par. b, RoC). The rules on discovery (Rules 24, 25, 26, 27, 28 and
29) are intended to enable a party to obtain
AS TO COMPETENCY OR RELEVANCY OF EVIDENCE knowledge of material facts within the knowledge of
Objections to the competency of a witness or the the adverse party or of third parties through
competency, relevancy, or materiality of testimony depositions to obtain knowledge of material facts or
are not waived by failure to make them before or admissions from the adverse party through written
during the taking of the deposition, unless the ground interrogatories; to obtain admissions from the
of the objection is one which might have been adverse party regarding the genuineness of relevant
obviated or removed if presented at that time (Rule documents or relevant matters of fact through
23, Sec. 29, Par. c, RoC). requests for admission; to inspect relevant
documents or objects and lands or other property in
AS TO ORAL EXAMINATION AND OTHER the possession or control of the adverse party; and to
PARTICULARS determine the physical or mental condition of a party
Errors and irregularities occurring at the oral when such is in controversy. (Koh v. IAC, 144 SCRA
examination in the manner of taking the deposition, 259 (1986)
in the form of the questions or answers, in the oath
or affirmation, or in the conduct of the parties and Depositions (whether by oral examination or written
errors of any kind which might be obviated, removed, interrogatories) under Rule 24, interrogatories to
or cured if promptly prosecuted, are waived unless parties under Rule 25, and requests for admissions
reasonable objection thereto is made at the taking of under Rule 26, may be availed of without leave of
the deposition (Rule 23, Sec. 29, Par. d, RoC). court, and generally, without court intervention. The
Rules of Court explicitly provide that leave of court is
AS TO FORM OF WRITTEN INTERROGATORIES not necessary to avail of said modes of discovery after

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an answer to the complaint has been served. It is only when the witness' testimony is crucial to the
when an answer has not yet been filed (but after prosecution's case. Vda. de Manguerra v. Risos, G.R.
jurisdiction has been obtained over the defendant or No. 152643, August 28, 2008
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 RULE 24: DEPOSITIONS BEFORE ACTION OR Page | 129
yet joined and the disputed facts are not clear. In PENDING APPEAL
addition to that, leave of court is also required as DEPOSITION BEFORE ACTION
regards discovery by production or inspection of
documents or things in accordance with Rule 27, or 2 Kinds of Deposition:
physical and mental examination of persons under 1. Deposition in pene ese
Rule 28, which may be granted upon due application 2. Deposition in perpetuam rei memoria
and a showing of due cause. Republic v.
Sandiganbayan, 204 SCRA 212 (1991) Section 24 is a deposition before an action is filed, or
a deposition while it is pending appeal.
The right of a party to take depositions as means of
discovery is not exactly absolute is implicit in the Who and how to take a deposition before action
provisions of the Rules of Court cited by appellants under Rule 24
themselves, sections 16 and 18 of Rule 24, which are A person who desires to perpetuate his or her own
precisely designed to protect parties and their testimony or that of another person regarding any
witnesses, whenever in the opinion of the trial court, matter that may be cognizable in an court of the
the move to take their depositions under the guise of Philippines, may file a verified petition in the court of
discovery is actually intended to only annoy, the place of the residence of any expected adverse
embarrass or oppress them. In such instances, these party. (Sec.1, Rule 24)
provisions expressly authorize the court to either
prevent the taking of a deposition or stop one that is Q: There are 4 siblings. The property was entrusted
already being taken. Caguiat v. Torres, 30 SCRA 106 to the 4th siblings. It was given to the spouse of the
(1969) 4th sibling for her to borrow money from the bank
for its renovation. But the agreement was, it is to be
If the plaintiff fails or refuses to answer the placed in trust so the property is still owned by the
interrogatories, it may be a good basis for the Mom of the 4 siblings (or all of them), but the
dismissal of his complaint for non-suit unless he can mother died. When the 3 siblings were trying to get
justify such failure or refusal. It should be noted that the property from the 4th sibling, the 4th sibling
it is discretionary on the court to order the dismissal refused to return it and contended that it was their
of the action. Santiago Land Dev’t Corp. v. CA, G.R. property (he and his wife) given to them by their
No. 103922, July 9, 1996 mom. However, there is one person who was
present during their meetings, and when the
The examination of a witness for the prosecution agreement was made, their Aunt (the sister of their
under Section 15 of the Revised Rules of Criminal Mom). The sisters were hedging whether to file
Procedure may be done only "before the court where against their brother, but time was of the essence,
the case is pending." If the deposition is made because their aunt is already 85 years old and sickly.
elsewhere, the accused may not be able to attend, as What is their remedy?
when he is under detention. More importantly, this A: They should perpetuate the testimony of their
requirement ensures that the judge would be able to Aunt. File it where the prospective defendant lives.
observe the witness' deportment to enable him to The RTC has the jurisdiction because it is an action
properly assess his credibility. This is especially true which is incapable of pecuniary estimation.

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 The petitioner shall serve a notice upon each person
Q: Can you perpetuate testimony in criminal cases? named in the petition as an expected adverse party,
A: No. Only in Civil Cases. together with a copy of the petition, stating that the
petitioner will apply to the court, at a time and place
Jurisdiction named therein, for the order described in the petition
Page | 130 The Regional Trial Court has jurisdiction to entertain (Sec. 3, Rule 24)
petition for perpetuation of testimonies because it is
incapable of pecuniary estimation NOTE: At least 20 calendar days before the date of the
hearing, the court shall cause notice thereof to be
Venue served on the parties and prospective deponents in
The place of the residence of the expected adverse the manner provided for service of summons. (Sec. 3,
party Rule 24)

Contents of the Petition: Summary of Procedure

Title: “ In Re: Perpetuation of the Testimony of X,
Pedro Cruz, petitioner v. y, defendant. 1. File petition; (Sec. 2)
2. Petitioner shall serve notice to all person
The petition shall be entitled in the name of the named in the petition; (Sec. 3)
petitioner and shall show: 3. If the court is satisfied, it shall issue order
1. The petitioner expects to be a party to an granting the petition; (Sec 4); and
action in a court of the Philippines but is 4. Depositions may then be taken in
presently unable to bring it or cause it to be accordance with Rule 23 (Sec. 4)
brought;
2. The subject matter of the expected action SECTION 4
and her or her interest therein;
3. The facts which he or she desires to establish Court Order
by the proposed testimony and his or her If the court is satisfied that the perpetuation of the
reasons for desiring to perpetuate it; testimony may prevent a failure or delay of justice, it
4. The names or a description of the person he shall:
or she expects will be adverse parties and 1. Make an order designating or describing
their addresses so far known; and the persons whose deposition may be taken; and
5. The names and addresses of the persons to 2. Specifying the subject matter of the
be examined and the substance of the examination;
testimony which he or she expects to elicit 3. Specifying whether the depositions shall
from each, and shall ask for an order be taken upon oral examination or written
authorizing the petitioner to take the interrogatories (Rule 24, Sec. 4, RoC).
depositions of the persons to be examined
named in the petition for the purpose of The depositions may then be taken in accordance
perpetuating their testimony. (Sec. 2, Rule with Rule 23 before the hearing.
24)
SECTION 5
SECTION 3 Reference to Court

Notices required before taking a deposition before For the purpose of applying Rule 23 to depositions for
action perpetuating testimony, each reference therein to
the court in which the action is pending is deemed to

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refer to the court in which the petition for such 1. The names and addresses of the persons to
deposition was filed (Rule 24, Sec. 5, RoC). be examined;
2. The substance of the testimony which her or
SECTION 6 she expects to elicit from each; and
Use of Deposition 3. The reason for perpetuating the testimony.
(Sec. 7, Rule 24) Page | 131
Q: How will you use the deposition taken under 24?
A: Use it in accordance with Rule 23, Sec. 4c. It may Use of deposition pending appeal
be used in action involving the same subject matter. Depositions are taken pending appeal with the view
If a deposition to perpetuate testimony is taken under to their being used in the event of further
Rule 24, or if, although not so taken, it would be proceedings before the court of origin or appellate
admissible in evidence, it may be used in any action court. (Sec. 7, Rule 24)
involving the same subject matter subsequently
brought in accordance with the provisions of Sections If the court finds that the perpetuation of the
4 and 5 of Rule 23 (Rule 24, Sec. 6, RoC). testimony is proper to avoid a failure or delay of
justice, it may make an order allowing the depositions
Example. If the subject matter of the action is about to be taken, and thereupon the depositions may be
the reconveyance of land, it may be used to taken and used in the same manner and under the
reconveyance of land, not with estate settlement. It same conditions as are prescribed in Rule 23. (Sec. 7,
has to be in the same subject matter, subsequently Rule 24)
brought in accordance with the provisions of sec. 4,
and sec. 5 of Rule 23. NOTE: The deposition taken under Rule 24 is
admissible in evidence in an action subsequently
So if the deponent, subject of Rule 24, who is 85 years brought involving the same subject matter. (Sec. 6,
old, died. You can use the perpetuated testimony in Rule 24)
the deposition, oral examination, or written
interrogatories as evidence as the direct examination Use of deposition pending appeal: Subject to
of the witness. The evidence will not be lost. Sections 4 and 5 of Rule 23
Deposition pending appeal is subject to Sections 4
DEPOSITION PENDING APPEAL and 5 of Rule 23. If the witness is still alive and there
is a pending case, the witness may be called because
How to take a deposition pending appeal deposition shall not be taken in lieu of direct
testimony.
Q: The case is already pending appeal, can the court
of appeals take additional evidence? Q: Can you refuse the deposition by saying “I cannot
A: Yes. Because the CA can receive evidence whether because it is very far, it's outside the PH”?
in its appellate jurisdiction or original jurisdiction. (so A: Security Bank Corp. vs Del Alacazar
as the RTC in its appellate jurisdiction when its coming
from the MTC) Petitioner’s argument that since respondent filed her
suit in the Philippines, she and her witnesses should
The party who desires to perpetuate the testimony appear before the trial court for direct and cross
may make a motion in the said court for leave to take examination is not correct. It is apparent that the
the depositions, upon the same notice and service deposition of any person may be taken wherever he
thereof, as if the action was pending thereon. The may be, in the Philippines or abroad. It is to be noted
motion shall state: (NARS) too that the order to take deposition is interlocutory
in character and may not be questioned by certiorari.

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 Indeed, petitioner is not deprived of its right to cross- and the deposing officer will have to ask the
examine the deponents nor of presenting question and then the deponent will have to
countervailing testimony. answer. The written interrogatories in 25 will
have to be delivered to the parties
Rosete vs. Lim themselves directly, and the parties will have
Page | 132 to answer it. There is no deposing officer in
Only an accused in a criminal case can refuse to take Rule 25.
the witness stand. The right to refuse to take the
stand does not generally apply to parties in This mode of discovery is availed of by any party to
administrative cases or proceedings. The parties the action for the purpose of eliciting material and
thereto can only refuse to answer if incriminating relevant facts from the other party.
questions are propounded. This Court applied the
exception – a party who is not an accused in a criminal The purpose of written interrogatories is to assist the
case is allowed not to take the witness stand – in parties in clarifying the issues and ascertaining the
administrative cases/proceedings that partook of the facts involved in a case.
nature of criminal proceeding or analogous to a
criminal proceeding. It is likewise the opinion of the The mode of discovery is availed of by filing and
Court that said exception applies to parties in civil serving upon the adverse party written
actions which are criminal in nature. As long as the interrogatories to be answered by the party served. If
suit is criminal in nature, the party thereto can decline the party is a juridical entity—a public or private
to take the witness stand. corporation or a partnership or association—the
written interrogatories served shall be answered by
The Court treats a party in a civil case as an ordinary any of its officers competent to testify on its behalf.
witness, who can invoke the right against self-
incrimination only when the incriminating question is NOTE: Interrogatories to parties may be availed of
propounded. Thus, for a party in a civil case to without leave of court, and generally, without court
possess the right to refuse to take the witness stand, intervention. The Rules of Court explicitly provide
the civil case must also partake in the nature of a that leave of court is not necessary to avail of the
criminal proceeding. modes of discovery (provided in Rules 23 to 25) after
an answer to the complaint has been served. It is only
RULE 25: INTERROGATORIES TO PARTIES when an answer has not yet been filed, but after
SECTION 1. jurisdiction has been obtained over the defendant or
SERVICE OF INTERROGATORIES property subject of the action, that prior leave of
court is needed to avail of such mode. The reason
Q: What is the difference between Rule 23, Sec. 5 being that at that time the issues were not yet joined
(Written Interrogatories) and Rule 25 and the disputed facts are not clear. (Republic v
(Interrogatories to parties)? Sandiganbayan G.R. 90478 (1971))

A: Distinguished from written interrogatories in a

1. 1. The title. If the subject of the deposition
interrogatories is the adverse party, then the If the subject of the interrogatories is the adverse
mode of discovery to be availed of is Rule 25. party, the mode of discovery to be availed of is Rule
If the written interrogatories are directed to 25. If it is not an adverse party, and just an ordinary
a third party then it is Rule 23. witness, the party must avail of interrogatories in a
2. 2. The written interrogatories under Rule 23 deposition provided in Sec. 25 of Rule 23.
are to be delivered to the deposing officer,

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Written interrogatories are delivered to the officer 10 calendar days after service thereof, with notice as
designated in the notice (Sec. 26, Rule 23, ROC). in case of a motion.
Interrogatories to parties are served directly upon the
adverse party. Effect: The filing of the objections shall have the effect
of deferring the filing and service of the answer to the
SECTION 2. interrogatories until the objections are resolved, Page | 133
ANSWER TO INTERROGATORIES which shall be at as early a time as is practicable. You
have to wait for the court to rule on it.
The interrogatories shall be answered fully in writing
and shall be signed and sworn to by the person SECTION 4.
making them. NUMBER OF INTERROGATORIES

It will be answered in writing under oath, but it will be No party may, without leave of court, serve more
done under the time provided for the rules which is than one set of interrogatories to be answered by the
15 calendar days, and go to any deposing officer and same party.
make the oath there.
Example: Atty. Cruz sent a written interrogatories to
The party upon whom the interrogatories have been defendant Dominic, composed of 30 questions. If
served shall file and serve a copy of the answers on Atty. Cruz wants to send additional questions, he
the party submitting the interrogatories within 15 should do it with leave of court. Otherwise it will be
calendar days after service thereof. This period may, tantamount to annoying or embarrassing the
upon motion and for good cause shown, be extended deponent.
or shortened by the court.
SECTION 5.
The answer must be filed in court. Thus, they SCOPE AND USE OF INTERROGATORIES
constitute judicial admissions.
Interrogatories may relate to any matters that can be
If the adverse party answers it, you can use it against inquired into under Section2 of Rule 23, (as long as it
the admitter. No need to present any evidence is relevant, and not subject to limitations) and the
anymore because it is already a judicial admission. answers may be used for the same purposes provided
in Section 4 of the same Rule.
SECTION 3.
OBJECTIONS TO INTERROGATORIES The field of inquiry that may be covered by
Example: Shara v. Dominic. Shara’s lawyer Atty. Cruz depositions or interrogatories is as broad as when the
sent a written interrogatories to defendant Dominic. interested party is called as a witness to testify orally
Dominic referred it to his Lawyer, Atty. Matutina. at trial. The inquiry extends to all facts which are
Atty. Matutina advised Dominic not to answer it relevant (whether ultimate or evidentiary) excepting
because he will submit his objections. Before you can only those matters which are privileged. The objective
answer, the court will have to rule on the objections. is as much to give every party the fullest possible
No objections, but I will submit counter questions, information of all the relevant facts before the trial as
cross examination questions, counter interrogatories. to obtain evidence for use upon said trial.
All of which will be answered by the deponent.
SECTION 6.
The party against whom it is directed may make EFFECT OF FAILURE TO SERVE WRITTEN
objections to the interrogatories. If he or she does so, INTERROGATORIES
said objections shall be presented to the court within

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 When you want to call the adverse party, and make 2. Admit the truth of any material and relevant
the adverse party your own witness matter of fact set forth in the request
GR: Serve written interrogatories first.
When may request be made
A party not served with written interrogatories may A party may file and serve the written request at any
Page | 134 not be compelled by the adverse party to give time after issues have been joined.
testimony in open court, or to give a deposition
pending appeal. If it is already denied in the answer, (ex.
defendant specifically denies allegations contained in
Without written interrogatories served, the former paragraph 2), do not ask anymore, “do you admit..”.
(other party, the one who called the party to be his Do not anymore serve a request for written
adverse witness) cannot be an adverse witness unless interrogatories. You cannot ask repetitive questions.
allowed by the court for good cause shown and to
prevent a failure of justice. RULE 26, SECTION 2

Example. Q: In pre-trial, you put the adverse party of IMPLIED ADMISSION

your opposing counsel, but you did not serve written Each of the matters of which an admission is
interrogatories, can you ask the court to issue a requested shall be deemed admitted unless the party
subpoena against him? to whom the request is directed files and serves upon
the party requesting the admission a sworn
A: The court may issue. BUT the other party will object statement either:
and move for the quashal of the subpoena ad
testificandum, because you did not serve him written 1. Denying specifically the matters of
interrogatories. This is only for the adverse party. Not which an admission is requested.
for ordinary witnesses. 2. Setting forth the reasons why he cannot
either admit or deny those matters
RULE 26: ADMISSION BY ADVERSE PARTY (Section 2, Rule 26).
RULE 26, SECTION 1
When filed:
Request for Admission The sworn statement shall be filed and served within
The purpose of this mode of discovery is to allow one a period designated in the request but which shall not
party to request the adverse party in writing to admit be less than 15 calendar days from the service of such
certain material and relevant matters which most request, or within such further time as the court may
likely will not be disputed during the trial. (Riano, allow.
2016)
NOTE: When a matter is effectively denied in a
To avoid unnecessary inconvenience to the parties in pleading, there is NO need to ask it again.
going through the rigors of proof, before the trial, a
party may request the other to: Deferment of compliance: The deferment may be
affected by the filing with the court the objections to
the request for admission. Compliance shall be
1. Admit the genuineness of any material and deferred until such objections are resolved by the
relevant document described in and court (Po v CA, G.R. No. L-34341, August 22, 1988).
exhibited with the request; or
Note: Summary judgment may be granted if the facts
which stand admitted by reason of a party’s failure to

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deny statements contained in a request for admission within the personal knowledge of the latter, shall not
show that no material issue of facts exists (Allied be permitted to present evidence on such facts.
Agri-Business Co. v CA, G.R. No. 118438, December 4,
1988). XPN: Unless otherwise allowed by the court (1) for
good cause shown and (2) to prevent a failure of
RULE 26, SECTION 3 justice. Page | 135

EFFECT OF ADMISSION NOTE: Sec. 6 of Rule 25 is a similar provision on

1. For the purpose of the pending action only. unjustified failure of a party to avail of written
2. It shall not constitute an admission by him interrogatories. In Sec. 6 of Rule 25 and Sec. 5 of Rule
or her for any other purpose. 26, the court shall determine on a case to case basis
3. It may not be used against him or her for whether or not the non-availment of the two modes
any other proceeding (Section 3, Rule 26). of discovery was justified or the negative sanctions
will unjustly prejudice the erring party.
RULE 26, SECTION 4
RULE 27: PRODUCTION OR INSPECTION OF
WITHDRAWAL DOCUMENTS OR THINGS
Admissions made under this mode of discovery, RULE 27, SECTION 1
whether express or implied, are not final and
irrevocable. The court may allow the party making an MOTION FOR PRODUCTION OR INSPECTION; ORDER
admission to withdraw or amend the admission upon
such terms as may be just (RIANO, 2016). Upon motion of any party showing good cause
therefor, the court in which an action is pending may
How to effect withdrawal: The admitting party order any party to:
should file a “motion to be relieved of the effects of
his admission” (RIANO, 2016). (Also need to justify.) (a) produce and permit the inspection and copying or
photographing, by or on behalf of the moving party,
Note: Where the plaintiff failed to answer a request of any designated documents, papers, books,
for admission filed under this Rule, based on its accounts, letters, photographs, objects or tangible
allegations in its original complaint, the legal effects things, not privileged, which constitute or contain
of its implied admission of the facts stated in the evidence material to any matter involved in the action
request cannot be set aside by its subsequent filing of and which are in his or her possession, custody or
an amended complaint. It should have filed a motion control; or
to be relieved of the consequence of said implied
admission (Bay View Hotel v Ker & Co, G.R. No. 28237, (b) permit entry upon designated land or other
August 1, 1982). property in his or her possession or control for the
purpose of inspecting, measuring, surveying, or
RULE 26, SECTION 5 photographing the property or any designated
relevant object or operation thereon.
EFFECT OF FAILURE TO FILE AND SERVE REQUEST
FOR ADMISSION The order shall specify the time, place and manner of
making the inspection and taking copies and
GR: A party who fails to file and serve a request for photographs, and may prescribe such terms and
admission on the adverse party of material and conditions as are just.
relevant facts at issue which are, or ought to be,
Purpose of Rule 27

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 Although the grant of a motion for production of
Section 1, Rule 27 provides the mechanics for the document is admittedly discretionary on the part of
production of documents and the inspection of things the trial court judge, nevertheless, it cannot be
during the pendency of a case. It also deals with the arbitrarily or unreasonably denied because to do so
inspection of sources of evidence other than would bar access to relevant evidence that may be
Page | 136 documents, such as land or other property in the used by a party-litigant and hence, impair his
possession or control of the other party. fundamental right to due process.

This remedial measure is based on ancient principles The test to be applied by the trial judge in determining
of equity. The purpose of the statute is to enable a the relevancy of documents and the sufficiency of
party-litigant to discover material information which, their description is one of reasonableness and
by reason of an opponent's control, would otherwise practicability. (Eagle Ridge Development Corp. v.
be unavailable for judicial scrutiny, and to provide a Cameron Granville 3 Asset Management, G.R. No.
convenient and summary method of obtaining 204700, November 24, 2014)
material and competent documentary evidence in the
custody or under the control of an adversary When the Motion may be Availed
(Solidbank v. Gateway Electronics Corp., G.R. No.
164805, April 30, 2008). Rule 27, Section 1 does not provide when the motion
may be used. Hence, the allowance of a motion for
Requisites production of documents rests on the sound
discretion of the court where the case is pending, with
The requisites in order that a party may compel the due regard to the rights of the parties and the
other party to produce or allow the inspection of demands of equity and justice.
documents or things, viz:
1. The party must file a motion for the In Eagleridge Development Corporation v. Cameron
production or inspection of documents or Granville 3 Asset Management, Inc., the SC held that
things, showing good cause therefor; a motion for production of documents may be availed
2. Notice of the motion must be served to all of even beyond the pre-trial stage, upon showing of
other parties of the case; good cause as required under Rule 27. (Commissioner
3. The motion must designate the documents, of Internal Revenue vs. San Miguel Corporation, GR.
papers, books, accounts, letters, No. 205045, Jan. 25, 2017)
photographs, objects or tangible things
which the party wishes to be produced and Production/Inspection of Documents/Things vs.
inspected; Subpoena duces tecum
4. Such documents, etc., are not privileged;
5. Such documents, etc., constitute or contain Production/Inspection
Subpoena duces tecum
evidence material to any matter involved in of Documents/Things
the action, and As to nature/purpose
6. Such documents, etc., are in the possession, A mode of discovery. A means of compelling
custody or control of the other party production of evidence.
(Solidbank v. Gateway Electronics Corp., G.R. To whom directed
No. 164805, April 30, 2008). Limited to all parties May be directed to any
(ROC, Rule 27, Sec.1). person, whether a party
Test to Determine the Relevancy of Documents and or not ( ROC, Rule 21, Sec.
Sufficiency of their Description 1).

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 As to necessity of motion and notice to the adverse 3. An action to recover damages for personal
party injury where the issue is the extent of the
The order for May be issued ex parte. injuries of the plaintiff
production, etc. is 4. Collection case when mental capacity is
issued upon motion questioned when a person signed the
with notice to the negotiable instrument. Page | 137
adverse.
As to scope PROCEDURE
The scope is broader as Since land is incapable of
it may involve entry manual delivery, it cannot A motion for the examination is filed in the court
upon designated land be subject to a subpoena where the action is pending:
or other property for duces tecum. 1. Showing good cause for the examination,
the purpose of 2. With notice to the party to be examined, and
inspecting, measuring, to all other parties, and
surveying or 3. Specifying the time, place, manner,
photographing the conditions, scope, and person conducting
property (ROC, Rule 27, the examination [Sec. 2, Rule 28]
Sec. 1).
REPORT OF FINDINGS
NOTE: The production of documents affords more
opportunity for discovery than a subpoena duces The party examined may request delivery of a copy of
tecum as, in the latter, the documents are brought to the detailed written report, with the findings of the
the court for the first time on the date of the examining physician. Upon such request and delivery,
scheduled trial wherein such documents are required the party causing the examination is entitled upon
to be produced. request to receive a like report of any examination,
previously or thereafter made, of the same mental or
RULE 28 – PHYSICAL AND MENTAL EXAMINATION physical condition.
OF PERSONS
If such report is not delivered:
1. Due to refusal of the party examined, the
Applicable in an action in which the mental or physical
court may make an order requiring delivery
condition of a party is in controversy [Sec. 1, Rule 28]
on such terms as are just;
(NOT THE ORDINARY PARTY)
2. Due to failure or refusal of the physician, the
court may exclude his testimony when
Q: When is this mode applicable?
offered at trial. [Sec. 3, Rule 28]
A: It only applies to an action in which the mental or
physical condition of a party is in controversy.
WAIVER OF PRIVILEGE

Q: Give examples of these actions.

By requesting and obtaining a report of the
A:
examination so ordered or by taking the deposition of
1. An action for annulment of a contract where
the examiner, the party examined waives any
the ground relied upon is insanity or
privilege he may have in that action or any other
dementia
involving the same controversy, regarding the
2. A petition for guardianship of a person
testimony of every other person who has examined
alleged to be insane
or may thereafter examine him in respect of the same
mental or physical examination [Sec. 4, Rule 28].

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 Since the results of the examination are intended to deponent to answer the question or
be made public, the same are not covered by interrogatory.
physician-patient privilege under Sec. 24 (b), Rule 130
[1 Regalado 376, 2010 Ed.] If the court finds the refusal to answer was without
substantial justification (application is granted). The
Page | 138 Q: What is the effect if the physician refuses or fails court may require:
to make a report? 1. The refusing party or deponent;
A: The court may exclude his testimony. (Sec 3, Rule 2. The counsel advising the refusal; or
28) 3. Both of them

Q: What is the effect if the party examines requests To pay the proponent:
and obtains a report on the results of the 1. The amount of the reasonable expenses
examination? incurred in obtaining the order; and
1. He has to furnish the other party a copy of 2. Attorney’s fees.
the report of any previous or subsequent
examination of the same physical and If the court finds the filing of the application was
mental condition. (Sec. 3, Rule 28) without substantial justification (application is
2. He waives any privilege he may have in that denied). The court may require:
action or any other involving the same 1. The proponent;
controversy regarding the testimony of 2. The counsel advising the filing of the
every other person who has examined or application; or
may thereafter examine him. (Sec. 4, Rule 3. Both of them
28).
To pay the refusing party or deponent:
RULE 29: REFUSAL TO COMPLY WITH MODES OF 1. The amount of reasonable expenses
DISCOVERY incurred in opposing the application; and
RULE 29, SECTION 1 2. Attorney’s fees.

Modes of discovery are encouraged. There are RULE 29, SECTION 2

sanctions if you do not comply. Sanctions are in Rule
29. CONTEMPT OF COURT
REFUSAL TO ANSWER
A party or other witness refuses to be sworn or
Modes of Discovery affected: refuses to answer any question after being directed
1. Deposition upon oral examination (Rule 24); to do so by the court of the place in which the
2. Deposition upon written interrogatories deposition is being taken.
(Rule 24); and
3. Interrogatories to parties (Rule 25) ● Remedy: The refusal may be considered a
contempt of that court. Separate proceeding
A party or other deponent refuses to answer any citing the person in indirect contempt.
question upon oral examination or any interrogatory
submitted under Rules 23 or 25. RULE 29, SECTION 3
● Remedy: The proponent may apply for an
order to compel an answer. If granted, the OTHER CONSEQUENCES
court shall require the refusing party or
Modes of Discovery affected:

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 1. Deposition upon oral examination (Rule 24); 3. An order:
2. Deposition upon written interrogatories a. Striking out pleadings or parts
(Rule 24); thereof;
3. Interrogatories to parties (Rule 25); b. Staying further proceedings until
4. Production or inspection of documents and the order is obeyed;
things (Rule 27); and c. Dismissing the action or proceeding Page | 139
5. Physical and mental examination of persons or any part thereof; or
(Rule 28) d. Rendering a Judgement by default
against the disobedient party; and
Any party or an officer or managing agent of a party 4. In lieu of any of the foregoing orders or in
refuses to obey: addition thereto, an order directing the
1. An order made under Section 1 of this Rule arrest of any party or agent of a party for
requiring him to answer designated disobeying any of such orders except an
questions; order to submit to a physical or mental
2. An order under Rule 27 to produce any examination.
document or other thing for inspection,
copying or photographing or to permit it to Rule 29 imposes serious sanctions on the party who
be done, or to permit entry upon land or refuses to comply with or respond to the modes of
other property; or discovery. But then, there are concomitant limitations
3. An order made under Rule 28 requiring him to discovery, even when permitted to be undertaken
to submit to a physical or mental without leave of court and without judicial
examination. intervention. As indicated by the Rules, limitations
inevitably arise when it can be shown that the
Remedy: The court may make such orders in regard examination is being conducted in bad faith or in such
to the refusal as are just and among others the a manner as to annoy, embarrass, or oppress the
following: person subject to the inquiry. Also, further limitations
come into existence when the inquiry touches upon
1. An order that the matters regarding which the irrelevant or encroaches upon the recognized
the questions were asked, or the character domains of privilege. In fine, the liberty of a party to
or description of the thing or land, or the make discovery is well-nigh unrestricted if the
contents of the paper, or the physical or matters inquired into are otherwise relevant and not
mental condition of the party, or any other privileged, and the inquiry is made in good faith and
designated facts shall be take to be within the bounds of law (Fortune Corp v. CA, G.R.
established for the purposes of the action in No. 108119, January 19,1994).
accordance with the claim of the party
obtaining the order; SECTION 4
2. An order: Expenses on Refusal to Admit
a. Refusing to allow the disobedient
party to support or oppose General Rule
designated claims or defenses, or If a party refuses to admit the genuineness of any
b. Prohibiting him from: document or the truth of any matter of fact and
c. Introducing in evidence designated serves a sworn denial thereof, and if the other party
documents or things or items of later on proves the genuineness of the document or
testimony, or the truth of such matter of fact, the court, upon
d. Introducing evidence of physical or proper application, may order the former to pay the
mental condition;

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 reasonable expenses in making such proof, including The provision affords the adverse party, as well as the
attorney’s fees (Riano, p. 501). deponent, sufficient protection against abuses that
may be committed by a party in the exercise of his
Exception unlimited right to discovery. For this reason, courts
If the court finds that there were good reasons for the are given ample powers to forbid discovery, which is
Page | 140 denial or that admissions sought were of no intended not as an aid to litigation, but merely to
substantial importance, no order shall be issued. annoy, embarrass or oppress either the deponent or
the adverse party, or both. (De Lopez v. Maceren,
NOTE: This Rule is in relation to Rule 26 (Admission by G.R. No. L-7424, August 31, 1954)
Adverse Party).
It is true that availment of the modes of discovery
SECTION 5 would be untrammeled and efficacious, Rule 29
Failure of a Party to Attend or Serve Answers imposes serious sanctions on the party who refuses
to comply with or respond to the modes of discovery.
Consequences But then, there are concomitant limitations to
In case of failure of a party to attend depositions or to discovery, even when permitted to be undertaken
serve answers to interrogatories, the court may: without leave of court and without judicial
1. Strike out all or any part of the pleading of intervention. As indicated by the Rules, limitations
that party; inevitably arise when it can be shown that the
2. Dismiss the action or proceeding or any part examination is being conducted in bad faith or in such
thereof; a manner as to annoy, embarrass, or oppress the
3. Enter a judgment by default against that person subject to the inquiry. Also, further limitations
party, and, in its discretion come into existence when the inquiry touches upon
4. Order him to pay reasonable expenses the irrelevant or encroaches upon the recognized
incurred by the other, including attorney’s domains of privilege. In fine, the liberty of a party to
fees. make discovery is well-nigh unrestricted if the
matters inquired into are otherwise relevant and not
NOTE: The consequences under Section 5 of Rule 29 privileged, and the inquiry is made in good faith and
will apply if a party refuses to answer the whole set within the bounds of law. (Fortune Corp v. CA, G.R.
of written interrogatories, and not just a particular No. 108119, January 19,1994)
question. Where the party, upon whom the written
interrogatories is served, refuses to answer a RULE 30 Sections 1-9
particular question in the set of written Trial
interrogatories and despite an order compelling him
to answer the particular question, still refuses to obey Trial is the judicial examination and determination of
the order, Section 3(c) of Rule 29 will apply (Riano, p. the issues between the parties to the action. It is the
501, citing Zepeda v. China Banking Corporation, 504 judicial process of investigating and determining the
SCRA 126, 134). legal controversies between or among the parties.
SECTION 6 During the trial, the parties present their respective
Expenses Against the Republic of the Philippines evidence of their claims and defenses. Such claims
and defenses shall constitute the bases for the
Expenses and attorney’s fees are not to be imposed judgment of the court.
upon the Republic of the Philippines under this Rule.
When Trial is Necessary
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GR: A trial is necessary when there are issues to be 3. Presentation of evidence on the 3rd-party
tried as result of the specific denials of the material claim, counterclaim or cross-claim (4th-, as
allegations in the complaint the case may be) - upon the determination
by the court.
EXP: A civil case may be adjudicated upon without the Provided that the total of which shall not
need for a trial in any of the following cases: exceed 90 calendar days. Page | 141
1. Where the pleadings of the parties tender no 4. Rebuttal evidence - if necessary, the court
issues at all, a judgment on the pleadings shall set the presentation of the parties’
may be directed by the court. respective rebuttal evidence which shall be
2. Where from the pleadings ,affidavits, completed within a period of 30 calendar
depositions and other papers, there is days.
actually no genuine issue, the court may
render a summary judgment. The trial dates may be shortened depending on the
3. Where the parties have entered into a number of witnesses to be presented. Provided that
compromise or an amicable settlement the presentation of evidence of all parties shall be
either during the pre-trial or while the trial is terminated within a period of 10 months or 300
in progress. calendar days.
4. Where the complaint has been dismissed
with prejudice, or when the dismissal has the If there are no 3rd-party (4th- as the case may be)
effect of an adjudication on the merits. claim, counterclaim, or cross-claim, the presentation
5. Where the case falls under the operation of of evidence shall be terminated within a period of 6
the Rules on Summary Procedure. months or 180 calendar days. (Sec. 1, Rule 30)
6. Where the parties agree, in writing, upon the
facts involved in the litigation, and submit Illustration:
the case for judgment on the facts agreed X is the plaintiff. Y is the defendant. The pre-trial
upon, without the introduction of evidence. conference terminated. The initial presentation of
evidence by X shall be set not later than 30 calendar
Schedule of Trial days after the termination of the pre-trial conference.
X then shall be given a period within 90 calendar days
The schedule of trial dates shall be continuous, and to present its evidence. Then the court has to rule
within the following periods: upon the formal offer of evidence by X. After that, Y,
1. Initial presentation of plaintiff’s evidence - as the defendant, shall be given a period of 90 days
not later than 30 calendar days after the within which to present his defense.
termination of the pre-trial conference.
The court shall allow the plaintiff to present The rebuttal is not a matter of right. The court must
its evidence within a period of 3 months or determine whether there will be a rebuttal and
90 calendar days. surrebuttal, that will be decided in the course of the
If necessary, the date of the judicial dispute trial. If necessary, the court will set the case for
resolution shall also be included. rebuttal.
2. Initial presentation of defendant’s evidence
- not later than 30 calendar days after the NOTE: Even before the commencement of the trial
court’s ruling on plaintiff’s formal offer of proper, the hearing dates have already been
evidence. predetermined.
The court shall allow the defendant to
present its evidence within a period of 3 The court shall decide and serve copies of its decision
months or 90 calendar days. to the parties within 90 calendar days from the

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 submission of the case for resolution, with or without d. That the character of his or her
memoranda. (Sec. 1, Rule 30) illness is such as to render his or her non-
attendance excusable. (Sec. 4, Rule 30)
Q: What is a Memorandum? e. Pay the postponement fee.
A: It is a written document where you outline all your
Page | 142 submissions, including, among others, citation of When you postpone a hearing on the ground that the
authorities, evidence presented, and arguments. It party is sick, or his counsel, you have to present a duly
will be submitted to aid in the speedy disposition of notarized medical certificate.
cases and to enable the courts to have better control GR: Motion for postponement must be in writing.
of the progress of cases.
SECTION 4
Adjournment and Postponement Hearing days and calendar call.

Generally, the court may adjourn a trial from day to Trial must be held from Monday to Thursday at
day and to any stated time, as the expeditious and exactly 8:30 am to 2:00 pm. (Administrative Circular
convenient transaction of business may require. No. 3-99)

XPN: However, the court has no power to adjourn a Motions shall be always heard on a Friday. (Sec. 8,
trial for a period longer than one month for each Rule 15)
adjournment, nor more than three months in all, (XPN
to the XPN) except when authorized in writing by the All courts shall ensure the posting of their court
court administrator, Supreme Court. calendars outside their courtrooms at least 1 day
before the scheduled hearings. (OCA Circular No. 250-
The party who caused the postponement is warned 2015)
that the presentation of its evidence must still be
terminated on the remaining dates previously agreed The scheduled hearings are usually pinned on the
upon. (Sec. 2, Rule 30) bulletin boards outside courts.

Such parties will not be given additional days just Order of Trial
because of his postponement. It is still incumbent
upon the party to finish within the time allotted to Subject to the provisions of Section 2 of Rule 31, and
him. unless the court for special reasons otherwise directs,
the trial shall be limited to the issues stated in the pre-
Requisite for postponement on the ground of illness trial order and shall proceed as follows:
Trial may be suspended on the ground of illness of
either party or counsel by complying with the (a) The plaintiff shall adduce evidence in
following: support of his or her complaint;
a. A motion for postponement must (b) The defendant shall then adduce evidence in
be filed. support of his or her defense, counterclaim,
b. It must be supported by an affidavit. cross-claim and third-party complaint;
Medical Certificate duly authorized. (c) The third-party defendant, if any, shall
c. The affidavit shows that the adduce evidence of his or her defense,
presence of the party or counsel at the trial counterclaim, cross-claim and fourth-party
is indispensable. complaint;

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 (d) The fourth-party, and so forth, if any, shall accordance with Sections 34 to 40 of Rule 132. (Sec.
adduce evidence of the material facts pleaded 6, Rule 30)
by them;
(e) The parties against whom any counterclaim GR: Only those that were admitted in evidence will be
or cross-claim has been pleaded, shall adduce considered by the court.
evidence in support of their defense, in the Page | 143
order to be prescribed by the court; SECTION 7
(f) The parties may then respectively adduce Agreed Statements of Facts
rebutting evidence only, unless the court, for
good reasons and in the furtherance of justice, Agreed statement of facts
permits them to adduce evidence upon their The parties to an action may agree, in writing, upon
original case; and the facts involved in the litigation, and then submit
(g) Upon admission of the evidence, the case the case for judgment on the facts agreed upon,
shall be deemed submitted for decision, unless without the introduction of evidence.
the court directs the parties to argue or to
submit their respective memoranda or any If the parties agree only on some facts in issue, the
further pleadings. (Sec. 5, Rule 30) trial shall be held as to the disputed facts in such order
as the court shall prescribe. (Sec. 7, Rule 30)
*(f) During your rebuttal evidence, the
general rule is you cannot submit evidence This exhibits the value of stipulation. When the
which should have been presented in your parties request that there is stipulation on a fact, it
chief evidence. The exception is, the court, means that they agreed that that fact exists and is
for good reasons, for the furtherance of true. Because of that agreement, the parties will no
justice, may allow it. longer need to submit any evidence to prove that fact
stipulated on.
NOTE: Pre-trial order is very important because it
limits or sets the issues to be tackled. Thus, issues not In a situation where all the facts were already
included therein will not be considered and will not stipulated on, there will be no controversy anymore
be triable issues. Therefore, any evidence that is as to the facts. The case can be submitted already for
being presented to an issue which was not stated in the court to decide.
the pre-trial order can be objected to.
Q: What is the remedy of a losing party when there
However, even if the issue is not included in the pre- was an RTC judgment based on stipulated facts?
trial order but the parties expressly or impliedly tried
the issue, there is no need to file a motion to admit A: Appeal by certiorari under Rule 45 because the
the amended pleadings in order to conform to the issue here is legal and not factual (facts are agreed). It
evidence presented because the parties precisely involves a pure question of law which means that if
agreed to try the issue which was not included in the the RTC was acting in its original jurisdiction, it should
pleadings. (Sec. 5, Rule 10) be elevated to the Supreme Court via Rule 45.

SECTION 6 SECTION 8
Oral Offer of Exhibits Suspension of Actions

Oral offer of Exhibits Q: Can the Trial be suspended pursuant to Sec. 8?

The offer of evidence, the comment or objection A: Yes.
thereto, and the court ruling, shall be made orally in

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 Suspension of actions
Suspension of actions shall be governed by the No provision of law or principle of public policy
provisions on the Civil Code and other laws. (Sec. 8, prohibits a court from authorizing its clerk of court to
Rule 30) receive the evidence of a party litigant. After all, the
reception of evidence by the clerk of court constitutes
Page | 144 For example, under the Civil Code, if both parties but a ministerial task — the taking down of the
manifest that they are likely to settle the case testimony of the witnesses and the marking of the
amicably, the Court may suspend it to give the parties pieces of documentary evidence, if any, adduced by
enough time to reconcile. the party present. This task of receiving evidence
SECTION 9 precludes, on the part of the clerk of court, the
Judge to receive; Delegation to clerk of court exercise of judicial discretion usually called for when
the other party who is present objects to questions
Reception of Evidence propounded and to the admission of the
The judge of the court where the case is pending shall documentary evidence proffered. Laluan v. Malpaya,
personally receive the evidence to be adduced by the 65 SCRA 494 (1975)
parties.
Rule 129, Sec. 2. Judicial admissions.— Admissions
Reception of the evidence may, nevertheless, be made by the parties in the pleadings, or in the course
delegated to the clerk of court, who is a member of of the trial or other proceedings do not require proof
the bar, in the following cases: and cannot be contradicted unless previously shown
1. In default hearings; to have been made through a palpable mistake. Yu v.
2. In ex parte hearings; Mapayo 44 SCRA 163
3. In any case by written agreement of the
parties. (Sec. 9, Rule 30) His counsel presented both testimonial and
documentary evidence which were all admitted and
No delegation of reception of evidence if the case is, considered by the lower court. However, he did not
petition for declaration of nullity of marriage, testify on his own behalf, although there was nothing
annulment, or legal separation. You have to present it that prevented him from doing so had he desired or
before the judge, even if the respondent does not chosen to testify. His not having testified on his own
appear. This is so, because technically you still have behalf before the lower court, in spite of all the
an opponent which is the statement. opportunities given to him, amounted to a waiver of
that right. But, certainly, the protective mantle of due
The general rule is you present the evidence before a process of law has been fully accorded to, and fully
judge of the court where the case is pending. The enjoyed by, him. Lee v. Ramillo, 161 SCRA 589 (1988)
exception is in cases of default, ex parte hearings, any
agreement by the parties, the evidence may be That judgment is valid and enforceable because it was
received by the clerk of court provided that he is a rendered by a court of competent jurisdiction and it
lawyer. was not impaired by extrinsic fraud nor by lack of due
process. The trial court acquired jurisdiction over the
But the clerk of court acting as a person who receives person of the judgment debtors. They acquiesced in
evidence does not have the power to rule on the validity of the judgment when they made partial
objections, his only duty is to note the objections. It is payments to satisfy it. Continental Bank vs. Tiangco,
only the presiding judge of the court where the case 94 SCRA 715 (1979)
is pending who will rule on the objections.
RULE 31: CONSOLIDATION OR SEVERANCE
RELATED CASES

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 CONSOLIDATION of consolidation does not merge the suits into a single
action, or cause the parties to one action to be parties
When actions involving a common question of law or to the other. (Producers Bank v. Excelsa, 2012)
fact are pending before the court, it may order a joint
hearing or trial of any or all the matters in issue in the WHY DO WE CONSOLIDATE CASES?
actions; it may order all the actions consolidated, and
Page | 145
it may make such orders concerning proceedings Consolidation is a procedural device granted to the
therein as may tend to avoid unnecessary costs or court as an aid in deciding how cases in its docket are
delay. (Sec. 1, Rule 31). to be tried so that the business of the court may be
dispatched expeditiously and with economy while
Consolidation of cases may take place in any of the providing justice to the parties. (Producers Bank v.
following ways: Excelsa Industries, 2012)

1. Quasi-consolidation; REASONS FOR CONSOLIDATING

2. Actual consolidation; and
3. Consolidation for trial;
1. Cases involve same questions of fact or law
2. To minimize appellant’s expense in pursuing
QUASI-CONSOLIDATION appeal considering that they are of the same
reliefs
Where all except one of several actions are stayed 3. Cases involve same parties and basically same
until one is tried, in which case the judgment in the issues to avoid conflicting decisions.
one trial is conclusive as to the others. This is not 4. To avoid multiplicity of suits
actually consolidation but is referred to as such.
(Producers Bank v. Excelsa, 2012) NOTE: So as to avoid the possibility of having
conflicting decisions premised on the same factual
Ex: If there are 5 proceedings, 4 are stopped and only antecedent circumstances and for purposes of
one is tried. In which case, the judgement rendered orderly proceedings, cases can be consolidated.
therein would be conclusive as to the others.
Q: If cases are consolidated, in which court would
ACTUAL CONSOLIDATION the case be docketed?

Where several actions are combined into one, lose A: Normally, it would be consolidated in the court
their separate identity, and become a single action in where the lowest docketed case is.
which a single judgment is rendered. This is illustrated
by a situation where several actions are pending Ex: Cases to be consolidated are Civil Cases No. 0001,
between the same parties stating claims which might 0002, and 0003. It would be consolidated in Civil Case
have been set out originally in one complaint. No. 0001. However, there would be no more
(Producers Bank v. Excelsa, 2012) consolidation if one of the cases is already at the
presentation of evidence while the others are not.
Ex: If there are 5 cases, all will be combined in Civil
Case No. 0001. The separate and distinctive features JOINT TRIAL
of Civil Cases No. 0002, 0003, 0004, and 0005 will be
lost. Jurisprudence has laid down the requisites for
consolidation of trial. As held in Caños v. Peralta, joint
CONSOLIDATION FOR TRIAL trial is permissible “where the [actions] arise from the
same act, event or transaction, involve the same or
Where several actions are ordered to be tried like issues, and depend largely or substantially on the
together but each retains its separate character and same evidence, provided that the court has
requires the entry of a separate judgment. This type jurisdiction over the cases to be consolidated and that

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 a joint trial will not give one party an undue the issues involved are not complicated or are
advantage or prejudice the substantial rights of any of basically the same.
the parties.”
GR: No separate trial because in so doing, separated
Joint trial is proper where the offenses charged are party will not be able to participate.
Page | 146 similar, related, or connected, or are of the same or
similar character xxx (Neri v. Sandiganbayan, 2013). XPN: Case-to-case basis. Exceptions to the general
rule are permitted only when there are extraordinary
Q: Can an ordinary civil case be consolidated with a grounds for conducting separate trials on different
proceeding which is summary in nature? issues raised in the same case, or when separate trials
of the issues will avoid prejudice, or when separate
A: No, it cannot. Because they have different rules. trials of the issues will further convenience, or when
separate trials of the issues will promote justice, or
Ex: An unlawful detainer case and collection suit for when separate trials of the issues will give a fair trial
P10M cannot be consolidated. First, there will be a to all parties. (Metropolitan Bank v. Sandoval, 2013)
problem with the jurisdiction because the MTC would
have jurisdiction over the unlawful detainer case RULE 32: TRIAL BY COMMISSIONER
while the collection suit for P10M should be in the REFERENCE BY CONSENT
RTC. Second, the rules of procedure would be
different. The order any or all of the issues in a case to be
referred to a commissioner to be agreed upon by the
SEPARATE TRIALS parties or to be appointed by the court. As used in
these Rules, the word "commissioner" includes a
The court, in furtherance of convenience or to avoid referee, an auditor and an examiner. (Sec. 1, Rule 32)
prejudice, may order a separate trial of any claim,
cross-claim, counterclaim, or third-party complaint, NOTE: Trial by commissioners is not mandatory; not
or of any separate issue or of any number of claims, a matter of right. Parties would be required to submit
cross-claims, counterclaims, third-party complaints or names of the commissioners and they would both
issues. (Sec. 2, Rule 31). agree as to it.

Generally speaking, a lawsuit should not be tried REFERENCE ORDERED ON MOTION

piecemeal, or at least such a trial should be
undertaken only with great caution and sparingly. When the parties do not consent, the court may,
There should be one full and comprehensive trial upon the application of either or of its own motion,
covering all disputed matters, and parties cannot, as direct a reference to a commissioner in the following
of right, have a trial divided. It is the policy of the law cases:
to limit the number of trials as far as possible, and
a. When the trial of an issue of fact requires the
separate trials are granted only in exceptional cases.
examination of a long account on either side, in
Even under a statute permitting trials of separate
which case the commissioner may be directed to
issues, neither party has an absolute right to have a hear and report upon the whole issue or any
separate trial of an issue involved. The trial of all specific question involved therein;
issues together is especially appropriate in an action b. When the taking of an account is necessary for
at law wherein the issues are not complicated. the information of the court before judgment, or
(Metropolitan Bank v. Sandoval, 2013) for carrying a judgment or order into effect.
c. When a question of fact, other than upon the
NOTE: In a separate trial, the one separated from the pleadings, arises upon motion or otherwise, in
main case will not be able to participate therein. any stage of a case, or for carrying a judgment or
Hence, a request for separate trial must be denied if order into effect. (Sec. 2, Rule 32)

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GR: Trial by commissioner not mandatory. NOTE: A commissioner, upon being appointed must
take an oath wherein his powers are stated. In other
XPN: In expropriation cases where what would be words, he is an officer of the court.
decided is the issue of just compensation; or in cases
of partition where the parties do not agree to PROCEEDINGS BEFORE COMMISSIONER
amicably partition the co-owned properties. In these
cases, commissioners must be appointed. Upon receipt of the order of reference and unless Page | 147
otherwise provided therein, the commissioner shall
NOTE: The consent of a party who has been declared forthwith set a time and place for the first meeting of
in default is not necessary for the designation of the the parties or their counsel to be held within ten (10)
clerk of court as commissioner. Such party is not calendar days after the date of the order of reference
entitled to participate in the proceeding, his only right and shall notify the parties or their counsel. (Sec. 5,
thereto is to be notified of the proceedings and Rule 32)
receive copies of the pleadings thus filed. (Wassmer
FAILURE OF PARTIES TO APPEAR BEFORE
v. Velez, 1964)
COMMISSIONER
ORDER OF REFERENCE; POWERS OF THE
COMMISSIONER. If a party fails to appear at the time and place
appointed, the commissioner may proceed ex parte
When a reference is made, the clerk shall forthwith or, in his or her discretion, adjourn the proceedings to
furnish the commissioner with a copy of the order of a future day, giving notice to the absent party or his
reference. The order may specify or limit the powers or her counsel of the adjournment. (Sec. 6, Rule 32)
of the commissioner, and may direct him or her to
REFUSAL OF WITNESS
report only upon particular issues, or to do or perform
particular acts, or to receive and report evidence only
The refusal of a witness to obey a subpoena issued by
and may fix the date for beginning and closing the
the commissioner or to give evidence before him or
hearings and for the filing of his or her report. Subject
her, shall be deemed a contempt of the court which
to other specifications and limitations stated in the
appointed the commissioner. (Sec. 7, Rule 32)
order, the commissioner has and shall exercise the
power to regulate the proceedings in every hearing
NOTE: Indirect contempt only because a separate
before him or her and to do all acts and take all
case must be filed to this effect.
measures necessary or proper for the efficient
performance of his or her duties under the order. He COMMISSIONER SHALL AVOID DELAYS
or she may issue subpoenas and subpoenas duces
tecum, swear witnesses, and unless otherwise It is the duty of the commissioner to proceed with all
provided in the order of reference, he or she may rule reasonable diligence. Either party, on notice to the
upon the admissibility of evidence. The trial or parties and commissioner, may apply to the court for
hearing before him or her shall proceed in all respects an order requiring the commissioner to expedite the
as it would if held before the court. (Sec. 3, Rule 32) proceedings and to make his or her report. (Sec. 8,
Rule 32)
NOTE: Unlike the clerk of court who can only be
appointed to receive evidence ex parte, REPORT OF COMMISSIONER
commissioners have the power to rule on
admissibility of evidence. Upon the completion of the trial or hearing or
proceeding before the commissioner, he or she shall
OATH OF COMMISSIONER file with the court his report in writing upon the
matters submitted to him or her by the order of
Before entering upon his or her duties the reference. When his powers are not specified or
commissioner shall be sworn to a faithful and honest limited, he or she shall set forth his or her findings of
performance thereof. (Sec. 4, Rule 32) fact and conclusions of law in his report. He or she

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 shall attach thereto all exhibits, affidavits, NOTE: The remedy for an adverse decision in this case
depositions, papers and the transcript, if any, of the is Rule 45; can no longer raise question of fact, the
testimonial evidence presented before him or her. issue is purely legal. Because facts are already agreed,
(Sec. 9, Rule 32) the question now is whether or not the law was
correctly applied to the given set of facts. The decision
NOTICE TO PARTIES OF THE FILING OF REPORT must be appealed to the Supreme Court, if rendered
Page | 148
by the RTC in its original jurisdiction, under Rule 45.
Upon the filing of the report, the parties shall be
notified by the clerk, and they shall be allowed ten COMPENSATION OF COMMISSIONER
(10) calendar days within which to signify grounds of
objections to the findings of the report, if they so The court shall allow the commissioner such
desire. Objections to the report based upon grounds reasonable compensation as the circumstances of the
which were available to the parties during the case warrant, to be taxed as costs against the
proceedings before the commissioner, other than defeated party, or apportioned, as justice requires.
objections to the findings and conclusions therein, set (Sec. 13, Rule 32)
forth, shall not be considered by the court unless they
were made before the commissioner. (Sec. 10, Rule RULE 33: DEMURRER TO EVIDENCE
32)
WHEN TO FILE DEMURRER TO EVIDENCE
HEARING UPON REPORT
After the plaintiff has completed the presentation of
Upon the expiration of the period of ten (10) calendar his evidence, the defendant may move for dismissal
days referred to in the preceding section, the report on the ground that upon the facts and the law, the
shall be set for hearing, after which the court shall plaintiff has shown no right to relief.
issue an order adopting, modifying, or rejecting the
report in whole or in part, or recommitting it with NATURE OF DEMURRER TO EVIDENCE
instructions, or requiring the parties to present
further evidence before the commissioner or the A demurrer to evidence is a motion to dismiss on the
court. (Sec. 11, Rule 32) ground of insufficiency or evidence and is presented
after the plaintiff rests his case. It is an objection by
NOTE: Commissioner’s end-product is a report which one of the parties in an action, to the effect that the
would be submitted to the court. The court will then evidence which his adversary produced is insufficient
give parties the time to make comments upon such in point of law, whether true or not, to make out the
report to be submitted to it. case or sustain the issue. The evidence contemplated
by the rule on demurrer is that which pertains to the
Actions of the court merits of the case (Gonzales v. Bugaay).

Upon submission of the parties of their comments to Demurrer to Evidence vs. Failure of the Complaint
the court, it may: to State a Cause of Action

1. Reject or recommit the report to the FAILURE TO STATE A

commissioner; DEMURRER TO EVIDENCE
CAUSE OF ACTION
2. Adopt the same; or
3. Partially adopt and partially recommit it. Plaintiff goes to trial and If the complaint fails to
presents his testimonial, state a cause of action,
STIPULATIONS AS TO FINDING
documentary, and object you will file an answer
evidence. If based on the and raise it as an
When the parties stipulate that a commissioner's
presented evidence, affirmative defense.
findings of fact shall be final, only questions of law
plaintiff was not able to (Sec.12, Rule 8, ROC)
shall thereafter be considered. (Sec. 12, Rule 32)
prove his cause of action,

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 the defendant will file a 1. The case shall be dismissed
demurrer to evidence
2. Upon appeal, the appellate court reversing
It is based on the order granting the demurrer should not remand
It can be determined after
preliminary objections the case to the trial court. Instead, it should render
the plaintiff has rested his
which can be ventilated judgment based on the evidence submitted by the
case and based on the Page | 149
out before the plaintiff (Radiowealth Finance Corporation v. Del
evidence admitted by the
beginning of the trial Rosario).
court, the plaintiff failed to
(Manila Banking v.
prove his complaint
University of Baguio). WAIVER OF RIGHT TO PRESENT EVIDENCE

If the demurrer is granted but on appeal the order of

GROUND dismissal is reversed, the defendant is deemed to
have waived his right to present evidence (Sec. 1, Rule
The only ground for demurrer to evidence is upon 33).
showing that upon the facts and the law, the plaintiff
DIFFERENCE BETWEEN DEMURRER TO EVIDENCE IN
has shown no right to relief.
CIVIL AND CRIMINAL CASES
PURPOSE
CRIMINAL
CIVIL CASES
It is an aid or instrument for the expeditious CASES
termination of an action similar to a motion to dismiss
As to Necessity of May be filed
which the court or tribunal may grant or deny
Leave of Court with or without
leave of court.
SEC. 2: ACTION ON DEMURRER TO EVIDENCE Defendant However, leave
need not of court is
A demurrer to evidence shall be subject to the ask for necessary so
provisions of Rule 15 (it is in the form of a litigated leave of that the accused
motion) court. could present
his evidence if
The order denying the demurrer to evidence shall not the demurrer is
be subject of an appeal or petition for certiorari, denied
prohibition, or mandamus before judgment.
As to Effect of If the court If the court finds
Q: Will you file a notice of hearing together with Granting the finds the
that motion? Demurrer plaintiff’s prosecution’s
evidence evidence
A: NO. The court may schedule it for clarificatory
insufficient, insufficient, it
hearing because it is a litigated motion.
it will grant will grant the
EFFECT OF DENIAL the demurrer by
demurrer rendering
1. The defendant shall have the right to by judgment
present his evidence dismissing acquitting the
the accused
2. An order denying a demurrer to evidence is complaint
not appealable because it is interlocutory.
As to effect of If court if court denies
EFFECT OF GRANT denial denies the the demurrer:
demurrer,

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 defendant a. General denial of the material allegation of
will present a. With leave – the complaint;
his accused may
evidence present his
evidence b. The answer admits material allegations
of the adverse party’s pleadings (Sec.1,
Page | 150 Rule 34).

Without leave – NOTE: You have a complaint and an answer. In the

accused can no answer, the defendant admitted all the material
longer present allegations of the complaint. So there is no issue.
his evidence and Because of the absence of a triable or genuine issue
submits the case which was not generated just by the mere reading of
for decision the basic pleadings, then the remedy is judgment on
based on the the pleadings.
prosecution’s
evidence INSTANCES WHEN JUDGMENT ON THE PLEADINGS IS
NOT APPLICABLE
CESAR NEPOMUCENO vs. COMELEC

Since a denial of demurrer of evidence is 1. Actions for declaration of nullity of marriage,

interlocutory, the judge does not have the obligation annulment of marriage or for legal
to comply with the constitutional requirement of separation;
2. Unliquidated damages;
stating the facts and law on which the decision is
3. Insufficiency of fact – amendment is the
based. If it was a grant, a final judgment, the judge
remedy.
must take the law and facts on which the judgment is
based. Note: When it appears, however, that not all the
material allegations of the complaint were admitted
RULE 34: JUDGMENT ON THE PLEADINGS in the answer, because some of them were either
denied or disputed, and the defendant has set up
NATURE OF JUDGMENT ON THE PLEADINGS certain special defenses which, if proven, would have
the effect of nullifying plaintiff’s main cause of action,
It is a judgment rendered by the court if the answer judgment on the pleadings cannot be rendered
fails to tender an issue, or otherwise admits the (Philippine National Bank vs. Aznar).
material allegations of the adverse party’s pleading,
or there are negative pregnant. EFFECT WHEN THE PLAINTIFF MOVES FOR
JUDGMENT ON THE PLEADINGS AND THE
The judgment is based exclusively upon the DEFENDANT INTERPOSES NO OBJECTION
allegations appearing in the pleadings of the parties
and the annexes thereto, if any, without The latter is deemed to have admitted the truth of the
consideration of any evidence aliunde allegations of the complaint, so that there is no longer
any necessity for the plaintiff to submit evidence of
NOTE: There is no issue at all because everything has his claims (Phil. Advertising Counselors, Inc. v.
been admitted. There is, therefore, no triable issue. Revilla).

GROUNDS FOR JUDGMENT ON THE PLEADINGS RULE 34 IN CONNECTION WITH SEC. 10 OF RULE 18

1. The answer fails to tender an issue because of: Sec. 10 Judgment after pre-trial. – Should there be no
more controverted facts, or no more genuine issue as

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to any material fact, or an absence of any issue, or obligation had not matured and that the promissory
should the answer fail to tender an issue, the court note and surety agreement were contracts of
shall, without prejudice to a party moving for adhesion. However, although the answer apparently
judgment on the pleadings under Rule 34 or summary raised issues, both the RTC and CA found that the
judgment under Rule 35, motu propio include in the issue are not factual ones requiring trial, nor were
pre-trial order that the case be submitted for they genuine issues. Page | 151
summary judgment or judgment on the pleadings,
without need of position papers or memoranda. In MUNICIPALITY of TAWI vs. ANTONIO BETITO
such cases, judgment should be rendered within
ninety (90) calendar days from termination of the pre- Judgment on the pleadings is improper when the
trial. answer to the complaint tenders several issues.

The order of the court to submit the case for In the instant case, respondent and petitioners set-up
judgment pursuant to this Rule shall not be the multiple levels of claims and defenses,
subject to appeal or certiorari. respectively, with some failing to tender an issue
while others requiring the presentation of evidence
NOTE: If you are still in the pre-trial stage the court on for resolution.
the basis of whatever is there can on its own or upon
motion of the party render judgment on the In this case, the allegations and admissions in the
pleadings. pleading were sufficient to rule that the Mayor was
duly authorized to enter the contract of legal services.
NOTE: The order of the court in Sec. 10 Rule 18 cannot However, the legal services contemplated are limited
be subject of appeal nor can it be subject to Rule 65 to such services which reasonably contributed to
petition because it is not a final order. Tiwi’s rightful share.

After pre-trial, can the court still render judgment TAN vs. DE LA VEGA
based on the pleadings?
When a motion for judgment on the pleadings is filed,
YES. Sec. 2 of Rule 34 states that the court may motu the essential question is whether there are issues
propio or on motion render judgment on the generated by the pleadings. In a proper case for
pleadings if it is apparent that the answer fails to judgment on the pleadings, there is no ostensible
tender an issue, or otherwise admits the material issue at all because of the failure of the defending
allegations of the adverse party’s pleadings. party’s answer to raise an issue.
Otherwise, the motion shall be subject to the
provisions of Rule 15 of these Rules. In the case, the trial court erred in rendering
judgment on the pleadings because the pleadings
CASE DOCTRINES filed by the parties generated ostensible issues that
necessitate the presentation of evidence.
WOOD TECHNOLOGY CORPORATION vs. EQUITABLE
BANKING CORPORATION TEOFILO ADOLFO vs. FE ADOLFO

The judgment rendered by the RTC was not a In rendering summary judgment, the trial court relied
judgment on the pleadings, but a summary judgment on respondent’s failure to reply to petitioner’s
because petitioner’s answer apparently tendered request for admission, her admission to Civil Case No.
issues. MAN-2683, as well as its May 15, 2002 Decision
declaring that the property is a conjugal asset.
While it admitted that WTC obtained the loan, that However, the trial court disregarded the fact that
Cordova and Young signed the promissory note and its decision was then the subject of a pending appeal
that they bound themselves as sureties for the loan, on CA-G.R. CV No. 78971. It should have known that
it also alleged special affirmative defenses that the until the appeal is resolved by the appellate court, it

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 would be premature to render judgment on Only a three-day notice to A ten-day notice to
petitioner’s motion for judgment on the pleadings. the adverse party is the adverse party is
Thus, the trial court should have denied it or held it in required prior to the date required. The
abeyance – it should have considered the pending of hearing in a motion for adverse party in turn
appeal. judgment on the pleadings may serve opposing
Page | 152 based on the regular rules affidavits,
RULE 35: SUMMARY JUDGMENTS on motions. depositions or
admissions at least
SUMMARY JUDGMENT three days before
the hearing.
Parties to an action have the right "to a plenary trial As to judgment
of the case" to ensure that they were given a right to a. May be an On the merits
fully present evidence on their respective claims. interlocutory order,
There are instances, however, when trial may be in case of partial
dispensed with. Under Rule 35, a trial court may summary judgment
dispense with trial and proceed to decide a case if b. On the merits
from the pleadings, affidavits, depositions, and other
papers on file, there is no genuine issue as to any
material fact. In such a case, the judgment issued is
Genuine Issue vs. Sham/Fictitious Issue
called a summary judgment (Oliver vs. Castillo, G.R.
No. 196251, July 9, 2014).
A genuine issue means an issue of fact which calls for
the presentation of evidence. It exists if the answer or
Judgment on the Pleadings vs. Summary Judgment
responsive pleading filed specifically denies the
material allegations of fact set forth in the complaint
JUDGMENT ON THE SUMMARY
or pleading. However, if the issue "could be resolved
PLEADINGS JUDGMENT
judiciously by plain resort" to the pleadings, affidavits,
As to issues
depositions, and other papers on file, the issue of fact
Judgment on the pleadings In a summary
raised is sham, and the trial court may resolve the
is proper when the answer judgment, the
action through summary judgment (Oliver vs. Castillo,
filed fails to tender any answer filed tenders
G.R. No. 196251, July 9, 2014).
issue, or otherwise admits issues as specific
the material allegations in denials and
the complaint. affirmative defenses
YABUT CASE DOCTRINE
are pleaded, but the
A mere allegation of ignorance of the facts alleged in
issues raised are
the complaint, is insufficient to raise an issue; the
sham, fictitious, or
defendant must aver positively or state how it is that
otherwise not
he is ignorant of the facts so alleged.
genuine.
As to who may file
RULE 35, SECTION 1
Filed by a claiming party May be filed by
like a plaintiff or a either the claiming or
SUMMARY JUDGMENT FOR CLAIMANT
counterclaimant. the defending party.
As to basis of judgment A party seeking to recover upon a claim,
Based on the pleadings Based on the counterclaim, or cross-claim or to obtain a
alone. pleadings, affidavits, declaratory relief may, at any time after the pleading
depositions and in answer thereto has been served, move with
admissions. supporting affidavits, depositions or admissions for a
As to notice required

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summary judgment in his or her favor upon all or any (Estrada v. Consolacion, G.R. No. L-40948, June 29,
part thereof. 1976)

SUMMARY JUDGMENT FOR DEFENDING PARTY ADVERSE PARTY

Includes a defendant in a counterclaim, cross-claim or Within 5 calendar days, file a comment and serve Page | 153
a declaratory relief. (Sec. 2, Rule 35) supporting affidavits, depositions; and admissions.

Note: The only time that the court may render a COURT
summary judgment before an answer is filed is with Conduct a hearing if it deems it necessary or render
regard to liquidated damages. In all other instances, judgment based on the pleadings, supporting
the defendant needs to file an answer so that issues affidavits, depositions and admissions filed when,
may be joined and that the court may determine if the except as to the amount of damages, there is no
issues are substantial or genuine. genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of
When the moving party is the defendant, his law. (Sec. 3, Rule 35; Trade and Investment Corp. v.
pleadings, depositions, or affidavits must show that Philippine Veterans Bank, G.R. No. 233850, July 1,
his defense or denial are sufficient to defeat the 2019)
claimant’s claim. (Estrada v. Consolacion, G.R. No. L-
40948, June 29, 1976) “GENUINE ISSUE ON ANY MATERIAL FACTS”

If the petitioner opposes and filed his opposition An issue of material fact exists if the answer or
paper, this must establish a genuine issue of facts to responsive pleading filed specifically denies the
defeat the motion. When there is no opposition, the material allegations of fact set forth in the complaint
court cannot be said to have acted in grave abuse of or pleading. (Olivarez Realty v. Castillo, G.R. No.
discretion in declaring that no genuine issue was 196251, July 9, 2014)
submitted. (Estrada v. Consolacion, ibid.)
If the issue of fact requires the presentation of
MOTION AND PROCEEDINGS THEREON evidence, it is a genuine issue of fact. However, if it
could be resolved judiciously by plain resort to the
MOVING PARTY pleadings, affidavits or depositions, the issue of fact
raised is sham, and the trial court may resolve the
action through summary judgment. (Olivarez Realty v.
1. The moving party shall file a motion containing Castillo, ibid.)
the following:
a. Supporting affidavits; In a collection suit where the obligation and non-
b. Depositions; fulfillment are admitted by the debtor, with the rate
c. Admissions; and of interest and amount of damages being the only
d. Specific law relied upon. (Sec. 3, Rule 35) remaining issue, there is no genuine issue and a
summary judgment may be rendered. (Trade and
Note: For summary judgment to proceed, the movant
Investment Corp. v. Philippine Veterans Bank, G.R. No.
has the burden of demonstrating clearly the absence
233850, July 1, 2019)
of genuine issues of facts, or that the issue posed is
patently insubstantial as to constitute a genuine
Note: Any action of the court on a motion for
issue. (Globe Asiatique Realty v. Union Bank G.R. No.
summary judgment shall not be subject of an appeal
229339, July 19, 2019)
or petition for certiorari, prohibition or mandamus.
(Sec. 3, Rule 35)
The affidavits submitted by the moving party shall be
by persons having personal knowledge of the facts.
CASE NOT FULLY ADJUDICATED ON MOTION

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 Summary judgment is a device for weeding out sham
PARTIAL SUMMARY JUDGMENT claims or defenses at an early stage of the litigation,
thereby avoiding the expense and loss of time
if judgment is not rendered upon the whole case or involved in a trial. (TIDCOR vs. PVB, G.R. 233850, July
for all the reliefs sought and a trial is necessary, the 1, 2019)
Page | 154 court may ascertain what material facts exist without
substantial controversy, and such facts ascertained RULE 35, SECTION 6
shall be deemed established, and the trial shall be
conducted on the controverted facts. (Sec. 4, Rule 35) AFFIDAVITS IN BAD FAITH OR SOLELY FOR THE
PURPOSE OF DELAY
A partial summary judgment is an interlocutory order
and not a final order. Thus, no appeal may be filed. Sanctions:
The remedy of the party is to go to trial and wait for
the judgment of the court in the case. 1. The court shall forthwith order the offending
party or counsel to pay to the other party:
An order granting a motion for summary judgment [Link] of the reasonable expenses which the filing
which fully determines the rights and obligations of of the affidavits caused him or her to incur,
the parties and leaves no other issue unresolved, [Link]'s fees,
except the amount of damages, is a final judgment. 2. It may, after hearing further adjudge the
(Trade and Investment Corp. v. Philippine Veterans offending party or counsel guilty of contempt.
Bank, G.R. No. 233850, July 1, 2019)
The real test, therefore, of a motion for summary
judgment is whether the pleadings, affidavits and
Note: When the case is still in the Pre-Trial stage, the
exhibits in support of the motion are sufficient to
court, on its own or upon motion of a party, render
overcome the opposing papers and to justify a finding
judgment on the pleadings or summary judgment.
as a matter of law that there is no defense to the
action or that the claim is clearly meritorious. (Grand
When the case is already in the trial stage, the court
Farms, Inc. and Philippine Shares Corporation vs. CA,
can still, on its own or upon motion of a party render
G.R. 91779, February 7, 1991)
a judgment on the pleadings, but it cannot render a
summary judgment on its own. The court can only
A summary judgment is permitted only if there is no
render summary judgment upon motion of a party.
genuine issue as to any material fact and a moving
party is entitled to a judgment as a matter of law. A
RULE 35, SECTION 5
genuine issue means an issue of fact which calls for
the presentation of evidence, as distinguished from
FORM OF AFFIDAVITS AND SUPPORTING PAPERS
an issue which is fictitious or contrived, an issue that
does not constitute a genuine issue for trial. The court
Requisites:
can determine this on the basis of the pleadings,
admissions, documents, affidavits, and/or counter-
1. Shall be made on personal knowledge;
affidavits submitted by the parties to the court.
2. Shall set forth such facts as would be
admissible in evidence; Where the facts pleaded by the parties are disputed
3. Shall show affirmatively that the affiant is or contested, proceedings for a summary judgment
competent to testify to the matters stated cannot take the place of a trial. (Globe Asiatique
therein. Realty Holdings vs. Union Bank, G.R, 229339, July 29,
4. Certified true copies of all papers or parts 2019)
thereof referred to in the affidavit shall be
attached thereto or served therewith. After hearing, the motion for summary judgment shall
be granted if, on the basis of all the papers and proofs
submitted, the cause of action or defense shall be

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established sufficiently to warrant the court as a must also provide direct access to the facts
matter of law in directing judgment in favor of any and the law being adopted, which must be
party. (Estrada vs. Consolacion, G.R. L-40948, June 29, contained in a statement attached to the
1976) decision and made an indispensable part of
the decision.

Reason: Because it is expected that this requirement Page | 155

RULE 36: JUDGEMENTS, FINAL ORDERS and ENTRY
will relieve the suspicion that no study was made of
THEREOF
the decision of the lower court and that its decision
was merely affirmed without a proper examination of
Note: This Rule involving judgements, final orders and
the facts and the law on which it is based.
entry of judgements only apply to final judgements
and NOT to interlocutory orders.
2. The decision being adopted should comply with
FINAL JUDGEMENTS v. INTERLOCUTORY ORDER
Article VIII, Section 14 of the Constitution as well
as Rule 36, Section 1 of the RoC as no amount of
INTERLOCUTORY incorporation or adoption will rectify its
FINAL JUDGEMENTS
ORDER violation.
There is nothing else There is something left
left for the court to do to be done by the courts NOTE: This kind of decision may be resorted to only in
It is one that finally It does not dispose of cases where the facts are in the main accepted by
disposes of a case. the case completely both parties and easily determinable by the judge and
It is an adjudication on no doctrinal complications involved will require an
the merits which extended discussion of the laws involved.
It leaves something
declares categorically
more to be done on the
the rights and Illustrative Case: Lacurom vs. Judge Tienzo (AM No.
merit.
obligations of the party RTJ-07-2075, October 9, 2007)
(Neypes v. CA)
e.g. an order DENYING a This involves a collection case in the MTC. MTC
e.g. An order Motion to Dismiss. This rendered judgment. The judgement was appealed to
GRANTING a Motion to is RTC. RTC rendered a judgment basically saying that it
Dismiss. This is because because there is still is adopting the judgment of the MTC.
there is nothing left something left to be
to be done. done This RTC judgment was challenged as
The case is dismissed. by the court, such as, unconstitutional for not stating the facts and law on
conducting trial. which it was based

NOTE: Interlocutory orders are not decisions or RULING: The decision does not measure up to the
judgements within the constitutional definition. They constitutional command that the decision rendered
only determine incidental matters that do not touch by the court should distinctly state the facts and the
on the merits of the case or put an end to the law on which it is based. While it is true there is one
proceedings. case, Fransisco v. Permschool, where a memorandum
MEMORANDUM DECISION decision was just appended. This memorandum
It is a decision of the appellate court which adopts the decision merely incorporated the decision of the
findings and the conclusion of the trial court. MTC. In other words, by way of reference, “finding
the MTC decision correct and AFFIRMED”
REQUISITES FOR A VALID MEMORANDUM
DECISION: The memorandum decision, to be valid, cannot
1. Such decision must not simply incorporate incorporate the findings of fact and the conclusions
the findings of facts and conclusion of law, it

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 of law of the lower court only by remote reference, v. Food Fest Land, Inc. GR No. 183628, February 9,
which is to say that the challenged decision is not 200)
easily and immediately available to the person
reading the memorandum decision. For the SECTION 1: RENDITION OF JUDGEMENTS and FINAL
incorporation by reference to be allowed, it must ORDERS

Page | 156 provide for direct access to the facts and the law RENDITION OF JUDGEMENT
being adopted, which must be contained in a
statement attached to the said decision
It is the filing of the decision, judgement or order with
the clerk of court. It is NOT the date of the writing of
Therefore, the memorandum decision authorized
the decision or judgement nor the signing or even the
should actually embody the findings of fact and
promulgation thereof.
conclusions of law of the lower court in an annex
attached to and made an indispensable part of the
NOTE: No judgement or order whether final or
RTC decision. In other words, the MTC decision must
interlocutory has juridical existence until and unless it
be attached.
is set down in writing, signed and delivered by the
Judge of the Clerk of Court, for filing, release to the
But if (1) the MTC Decision is incorporated in the RTC
parties and implementation. (Echaus v. CA, GR No. L-
Decision; or if the (2) the copy of the MTC Decision is
57343, July 23, 1990)
attached in the RTC Decision, that becomes a valid
memorandum decision.
REQUISITES OF A VALID JUDGEMENT:
CONTENTS OF A JUDGEMENT:
1. The Court or Tribunal must be clothed with
the authority to hear and determine the
1. Statement of the case matter before it.
2. Statement of facts 2. The court must have Jurisdiction over the
3. Issues or assignment of errors parties and subject matter.
4. Court Ruling in which each issue is, as a rule, 3. The parties must have been given the
separately considered and resolved, and opportunity to adduce evidence in their
5. Dispositive portion or fallo (This part is very behalf.
important as it will the part that is subject to 4. The evidence must have been considered by
execution.) the tribunal in deciding the case.
5. The judgement must be in writing,
Note: The ponente may include an introduction and personally and directly prepared by the
prologue as well as an epilogue, especially in cases in judge.
which controversial or novel issues are involved. 6. The judgement must state clearly the facts
(Velarde v. Social Justice Society, GR No. 159357, and the law upon which it is based, signed by
April 28, 2004) the judge and filed with the clerk of court.

CONFLICT IN DISPOSITIVE PORTION AND BODY OF SUBSTANTIVE BASIS:

DECISION
These formal requisites are consistent with the
General Rule: Where there is conflict between the constitutional mandate that no decision shall be
dispositive portion (fallo) and the body of the rendered by any court without expressing therein
decision, the fallo controls. This rule rests on the clearly and distinctly the facts and the law on which it
theory that the fallow is the final order. is based. (Art. VIII, Section 14 of the 1987
Constitution)
XPN: When the conclusion from the body of the
decision is clear as to show that there was a mistake CONSEQUENCE OF NON-COMPLIANCE:
in the fallow, the body of the decision will prevail. (So

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A decision that does not conform to the form and from a casual perusal thereof whether there is a
substance required by the Constitution and the law is prima facie justification for the dismissal.
void and deemed legally inexistent.
ORIGINAL JUDGE TRANSFERRED TO ANOTHER
DISMISSAL DUE TO FAULT OF PLAINTIFF BRANCH
Page | 157
A dismissal order must still comply with the formal When the presiding judge of the branch to which a
requisites laid down in this Section if the court orders case has been raffled or assigned is transferred to
the dismissal of the case pursuant to Section 3, Rule another station, he leaves behind all the cases he
17 without stating if the dismissal is with or without tried with the branch to which they belong. The judge
prejudice. who takes over his branch inherits all these cases and
assumes full responsibility for them. He may decide
An unqualified order of dismissal rendered pursuant them as they are his cases. (People v. Ocfemia, GR
to such rule is deemed to be a dismissal with No. 185383, September 25, 2013)
prejudice. As a prejudicial dismissal, it is also deemed
to be a judgement on the merits so that the complaint Exception: Any of the parties may move that his case
could no longer be re-filed on the principle of res be decided by the judge who substantially heard the
judicata. Hence, it is imperative that the dismissal evidence and before whom the case was submitted
order conform to Section 1, Rule 36 of the RoC on the for decision. This only applies if the judge who
writing of valid judgements and final orders. substantially heard the case or to whom the case was
submitted for a decision is transferred to a coordinate
Illustrative Case: Barrazona vs. RTC court and NOT when the judge is promoted to a
position in a court of higher rank (i.e: from RTC
Even if the denial of the MTD is an interlocutory order, Presiding Judge to Justice of the CA)
the SC in this case holds that the perfunctory dismissal
of a Motion to Dismiss for lack of merit should not be Note: The aforementioned exception will not apply if
the norm. Such cavalier dispositions can often pose the said judge has died, retired or for any reason has
difficulty and misunderstanding on the part of the left the service or has become disabled, disqualified,
aggrieved party especially when that party would or incapacitated to decide the case.
want to elevate the said order pursuant to Rule 65.
How can it be said that the judge committed grave KINDS OF JUDGEMENTS:
abuse of discretion in issuing the interlocutory order
if there is no explanation that would support the 1. Judgement upon compromise or consent
order of the court denying the MTD? It is rendered by the court on the basis of a
compromise agreement entered into between
This requirement proscribes the common practice of the parties.
perfunctorily dismissing a motion to dismiss for "lack
of merit." Such cavalier dispositions can often pose Where the parties enter into a compromise and
difficulty and misunderstanding on the part of the submit the compromise agreement to the court
aggrieved party in taking recourse therefrom and and ask the court to render judgment based on
likewise on the higher court called upon to resolve the the compromise. The judgement includes the
same, usually on certiorari. While an order denying a compromise itself. As long as the compromise
motion to dismiss is interlocutory and non- agreement is not contrary to law, public morals,
appeallable, however, if the denial is without or in among others, the judge will approve it.
excess of jurisdiction, certiorari and prohibition are
proper remedies from such order of denial. Compromise: contract whereby the parties, by
making reciprocal concessions, avoid a litigation
A trial court should state in its order the reasons for or put an end to one already commenced. It is an
the dismissal of the complaint so that when the order
is appealed, the appellate court can readily determine

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 agreement between two or more persons, who, mutual or reciprocal validity of the claim
for preventing or putting an end to a lawsuit. concession. against him.

NOTE: When such agreement is submitted to the 4. Judgement upon the merits
court for approval, the court cannot impose a Amounts to a legal declaration of the respective
judgement different from the terms of said rights and duties of the parties based upon
Page | 158
agreement. disclosed facts

2. Judgement by Consent NOTE: There can be a judgement on the merits

The provisions and terms of which were agreed even without trial. A ruling based on a motion to
upon by the parties, entered into the record, with dismiss, without any trial or formal presentation
the consent of the court. It must be an of evidence, can still be a judgement on the
unqualified agreement by the parties to be merits.
bound on the judgment.
5. Clarificatory judgement
3. Judgement upon confession One rendered to clarify an ambiguous judgement
It is an affirmative and voluntary act on the part or one difficult to comply with. Hence, if the
of the defendant where the court exercises judgement is difficult to execute due to
supervision in its entry ambiguity, the remedy is to file a motion for
clarificatory judgement and not to assail the
2 kinds: judgement as void.
a. Judgement by cognovit actionem – the
defendants after service, instead of entering a NOTE: This only applies when what is involved is
plea, admitted that the plaintiff’s cause of a clerical error and not a correction of an
action (COA) was just and rightful erroneous judgement.
b. Judgement by confession relicta verificationem
– after pleading and before the trial, the 6. Judgement nunc pro tunc (now for then)
defendant confessed the plaintiff’s COA and It is rendered to enter a judgment that was
withdrew or abandoned his plea or other
already rendered but not yet entered. It’s
allegations, whereupon, judgement was
function is to merely record the act of a court at
entered against him without proceeding to trial.
a former time. There was already a prior
JUDGEMENT UPON COMPROMISE v. JUDGEMENT judgement but was not included or declared by
BY CONFESSION the court. In here, no changes in subatance or any
material aspect can me made.
JUDGEMENT UPON JUDGEMENT BY
7. Judgement sin perjuicio (without prejudice)
COMPROMISE CONFESSION
This is a VOID judgement: a judgement without
The previous and terms An affirmative and
statement of facts in support of its conclusion to
settled and agreed upon voluntary act of the
be later supplemented by a final judgement.
by the parties to the defendant himself. The
Since it does not state the facts, and the law upon
action and which are court exercises a
which it is based, it is a void judgement.
entered in the record certain amount of
with the consent of the supervision over the
NOTE: Sin perjuicio judgement is NOT a final
court. entry of judgement.
judgement, hence, the appellant must wait until
It is one rendered by
The parties bargain and a final judgement before perfecting his appeal.
the court when a party
agree on the terms and Judgement by default (RoC, Rule 9, Section 3)
expressly agrees to the
conditions of their
other party’s claim or
agreement. There is a 8. Judgement on the pleadings (RoC, Rule 34)
acknowledges the

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9. Summary judgement (RoC, Rule 35) renders the
amended
10. Several judgements (RoC, Rule 36, Section 4) -
One rendered by a court against one or more Illustrative Case:
defendants and not against all of them leaving Sara Lee Philippines v. Macatlang (GR No. 180147,
the action to proceed against the others. January 14, 2015)
Page | 159
11. Separate judgement (RoC, Rule 36, Section 5)-
The corporation enters into a compromise agreement
One rendered by a court disposing of a
particular claim, among several others, with some of its employees which it designates as a
presented in a case after determination of the confession of judgment. The corporation reasoned
issues material to such claim and all that a resort to Judgment by Confession is an
counterclaims arising out of transaction or acceptable alternative mode of arriving at a
occurrence, which is the subject matter of said compromise agreement because of the impossibility
claim. of obtaining a consent to a compromise. A judgment
was rendered but said judgement was void.
12. Special judgement (RoC, Rule 39, Section 11)
In this case, a compromise agreement is valid so long
13. Judgement for specific acts (RoC, Rule 39, as the consideration is reasonable and the employees
Section 10) signed the same voluntarily with the full
understanding of what he has entered into.
14. Judgement on demurrer to evidence (RoC, Rule
33)
Here, it appears that the lead complainant did not
15. Conditional judgementOne wherein the inform the other employees. Therefore, a review of
effectivity of which depends upon the the subject Compromise Agreement shows a gross
occurrence or non-occurrence of an disparity between the amount offered by the
event. NOTE: Judgement of this kind which are Corporation compared the amount the judgment
conditioned upon contingency are held to be awarded. The employee won the case however, he
null and void. still compromised with a lower award.

16. Final and executory judgement So the Supreme Court set aside the said Compromise
Agreement even if it is immediately executory
17. Amended judgement; and
because the said Compromise Agreement is contrary
to law, public morals, etc.
18. Supplemental judgement
COLLATERAL ATTACK; NOT PERMITTED
AMENDED OR CLARIFIED JUDGEMMENT v.
SUPPLEMENTAL DECISION GR: Judgments CANNOT be collaterally attacked

XPN: The only way judgment can be attacked

AMENDED /
SUPPLEMENTAL DECISION collaterally is when:
CLARIFIED
It is an entirely new
decision and It does not supersede the
1. the court which rendered the judgment is
supersedes the original decision
without jurisdiction; (lack of jurisdiction) or
original judgement
2. there is irregularity in the entry
Serves to bolster or add to
The court makes a
the original judgement SECTION 2: ENTRY OF JUDGEMENTS AND FINAL
thorough study of
(Solidbank Corporation v. ORDERS
the original
Court of Appeals, GR No.
judgement and
166581, December 7, 2015)

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 WHEN JUDGEMENT BECOMES FINAL AND NOTE: When the court states that “judgement has
EXECUTORY attained finality,” it means that the judgement is final
Judgement becomes final and executory if no appeal and executory.
or motion for new trial or reconsideration is filed
within the time provided under the RoC. Example: Louis filed a suit against Evie. Louis received
the judgment on June 1. While Evie received the
Page | 160
EFFECTS OF FINALITY OF JUDGEMENT: judgment on June 5. Louis has until June 16 to file
1. THE PREVAILING PARTY IS ENTITLED to Notice of Appeal, MR or MNT. If Louis fails to file the
execution as a matter of right same on June 16, by June 17, the judgment will be
2. Immutability of judgement; and final and executory as to Louis.
3. Res judicata
Q. A filed a case against MC for collection of 5
Meanwhile, as to Evie, she received it June 5, so she
million. MC came to A and asked the latter to not
has until June 20 to file Notice of Appeal, MR and
file a case against her and promised to pay. A
MNT.
believed MC so A filed a Notice to Dismiss the
case. However, MC still did not pay. Is there
something to execute from the case? Even if the judgment has been final and executory as
to Louis by June 17, technically the said judgment is
not final and executory as between (a) Louis and Evie
A. Nothing because the case was already and (b) with the court. This is because Evie can still
dismissed. What should have been done in the first file a Notice of Appeal, MR and MNT up until June
place is a written Compromise Agreement entered 20. If Evie failed to file the same until June 20, by June
into by A and MC and A should have had it approved 21 the judgment becomes final and executory as
by the court so when MC reneged in her promise, A between Louis and Evie and against the court. By June
can now ask the court for a writ of execution to 21, the court cannot anymore amend the said
implement the said agreement. judgment as it has attained finality, becoming final
and executory.
NOTE: It would be best for the Compromise
Agreement to be submitted to the Court asking the Whoever won between Louis and Evie now can go to
latter to render judgment on the same. the court and ask for the issuance of a writ of
execution as a matter of right.
FINAL JUDGEMENTS v. FINAL AND EXECUTORY
JUDGEMENTS “The date of finality of the judgment or final order is
the date of its entry”
FINAL AND EXECUTORY
FINAL JUDGEMENT
JUDGEMENT ENTRY OF JUDGMENT is not the mechanical act of
A judgment attains entering the judgment in the book of entry but rather,
finality if neither of the it is a date determined by operation of law when the
parties filed a notice judgment becomes final and executory.
This is judgment on the
of appeal within the
merits. There is nothing
period of time and after Before the 1997 amendment, it means the
left to be done by th
the lapse of the period mechanical act of entering the finality of judgment in
e
of appeal, then the said the book of entry. So in the previous versions of the
courts.
judgment will have Rules, the date of entry is different from the date of
become final and finality.
executory
A final judgement is not The amendment of the old RoC is important in Rule
Execution becomes a
necessarily a final and 38 –Petition for Relief from Judgment. The
matter of right.
executory judgement. reglementary period to file a petition for Relief from
Judgment is 60 days from the time you learn of the

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judgment but not more than 6 months from entry of 1. For the purposes of execution. The judgement
judgment. can now be executed as a matter of right
2. The court can no longer amend the judgment
Example: Louis filed a case against Evie. Louis and Evie because the court already loses jurisdiction to
received the judgment both on June 1. They did not change it.
file an appeal, nor an MR or MNT until June 16. So on GENERAL RULE AND EXCEPTIONS IN EXECUTION OF
JUDGEMENT BY THE ORIGINAL COURT Page | 161
June 17, the decision became final and executory.
Here, for purposes of Rule 38, the date of entry of GR: The power to amend a judgement is inherent in
judgment shall be deemed to be on June 17 when the the court before judgement becomes final and
judgment became final and executory. Hence Louis or executory. After the judgement has become final and
Evie can file a petition for relief from judgment 60 executory, it becomes immutable and unalterable,
that is, it can no longer be modified.
days from the time they learn of the judgment but not
more than 6 months from the entry of judgment, June Exceptions: (Ce-N-V-U)
17, or not beyond December 17. 1. The correction of Clerical errors
2. Nunc pro tunc entries which cause no
prejudice to any party.
NOTE: Entry of judgement or final order also assumes
3. Void judgements
importance in reckoning the 5-year period for 4. Whenever circumstances transpire after the
execution of motion under Rule 39, Section 6 of the finality of the decision rendering its
RoC. execution Unjust and inequitable
(supervening event)
Illustrative Cases: Illustrative Cases:
Sumbilla v. Matrix Finance Corp (GR No. 197582, June
Club Filipino Inc., v. Bautista (GR No. 168406, January 29, 2015)
14, 2015) Substantial justice refers to the fact it punishment
imposed was very unfair. The maximum penalty
The entry of judgment is by operation of law. It will imposable under BP 22 should be 13,000 (the amount
issue as a matter of course. Even assuming that the SC double the value of the check which is 6,500) , but
will reverse its decision upon the 2nd Motion for here the imposed fine was P80,000. 11 times more
Reconsideraion, it only means that the Entry of than the correct penalty. Therefore, the Court herein
Judgment first issued may be lifted should the second relaxed the applicability of the Doctrine of the
Motion for Reconsideration be granted. After the Immutability of Judgments.
lapse of the period of appeal or 15 days after the Delfino v. Anasao (GR No. 197486, September 10,
receipt of the order of the denial of an MR in which 2014)
there is no more remaining mode of appeal or 2nd This case falls under the 4th exception. This case
MR available, such ENTRY OF JUDGMENT happens by involves a sale of two parcels of land under CARP to
operation of law. SM Holdings. The DAR Secretary found it equitable to
include the portion of Delfino’s retention area which
The supplemental motion for reconsideration is means that Delfino is only entitled to the balance.
technically a second MR which is generally not Delfino should have sold the parcel of land which is
allowed, and if allowed, it is subject to the condition outside the retention area. Otherwise, it would be an
that it does not toll the finality of the decision being indirect way of getting more than what is due.
assailed. The filing of the Supplemental Motion for DOCTRINE OF IMMUTABILITY OF JUDGEMENTS OR
Reconsideration did not prevent this court’s CONCLUSIVENESS OF JUDGEMENTS
Resolution dated July 13, 2009 from becoming final
and executory. A judgement that has attained finality can no longer
IMPORTANCE OF KNOWING THAT JUDGEMENT HAS be disturbed. It is settled that upon the finality of the
ATTAINED FINALITY judgement, the issuance of which is a ministerial duty
of the court.

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 NOTE: The doctrine applies whether the modification SEPARATE JUDGEMENTS
is attempted to be made by the court rendering it or This refers to several claims for relief in action. It is
by the highest court of the land. one rendered by a court disposing of a particular
claim, among several others, presented in a case after
ENTRY OF JUDGEMENT IN APPELLATE COURTS AND determination of the issues material to such claim
Page | 162 CASES GOVERNED BY SMALL CLAIMS AND and all counterclaims arising out of the transaction or
SUMMARY PROCEDURE occurrence, which is the subject matter of said
claim. The action shall proceed as the remaining
Entry of judgement rendered by appellate courts is claims.
governed by Rule 51, Section 10 and espouses the
same concept as Section 2 of this Rule. SEVERAL JUDGEMENTS v. SEPARATE JUDGEMENTS

Section 2 of this Rule shall apply suppletory to cases SEPARATE

SEVERAL JUDGEMENTS
governed by Section 23 of the Rule of Procedure for JUDGEMENTS
Small Claims Cases as amended and cases governed Proper where the liability
by Summary Procedure. of each party is clearly
SECTION 3: JUDGEMENT FOR OR AGAINST ONE OR separable and distinct
MORE OF SEVERAL PARTIES from his co-parties such
Proper when more
Example: There are five (5) plaintiffs who filed a case that the claims against
than one claim for
for damages. A was not proven to be in the bus when each of them could have
relief is presented in
it crashed. So with respect to A, the complaint can be been the subject of a
an action and a
dismissed. As to B,C,D,E, judgment can be entered separate suit, and the
determination as to
granting the complaint of B,C,D,E. Even though all five judgment for or against
the issues material to
of them are plaintiffs, the pieces of evidence that they one of them will not
the claim has been
will present are not the same. All these plaintiffs will necessarily affect the
made. The action shall
have to present evidence with respect to their other.
proceed as to the
respective claims.
remaining claims.
NOTE: A several
SECTION 4: SEVERAL JUDGEMENTS judgements is not proper
in actions against
SEVERAL JUDGEMENTS solidary debtors.

This refers to an action against several defendants. SEPARATE JUDGEMENT, EXAMPLE

Example: Louis and Evie got married. Evie filed a
Several judgements are proper where the liability of Petition for Declaration of Nullity on the ground of
each party is clearly separable and distinct from psychological incapacity. Aside from this, Evie wants
his co-parties such that the claims against each of the ACP dissolved pursuant to Art. 146 of the Family
them could have been the subject of separate suits, Code. Evie also wants primary custody over all the
and the judgement for or against one of them will not children. So there are 3 issues in this case, in wit:
necessarily affect the other. 1. Validity of the Marriage
2. Property
NOTE: Debtors under a joint obligation have distinct 3. Custody of Children
and separable interests. In a joint obligation, the 4. Child Support
credit or debts is divided into as many equal shares as
there are creditors and debtors, the credits or debts Louis filed an answer and they were referred for
being distinct from one another. (Civil Code, Article mediation if there are issues that can be settled
1208). amicably such as the Property, Custody of Children
SECTION 5: SEPARATE JUDGEMENTS and Child Support. So if Louis and Evie have agreed on
the Property, Support and Custody and came up with

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the compromise agreement, this compromise Summons may be served on anyone of them or to the
agreement can be submitted to the court for its person in charge of the place of business (RoC, Rule
approval in a partial judgment. Such approval of the 14, Section 8)
court is a separate judgment. So you now have a How the judgement is rendered against them
separate judgment as to the Property, Custody and The judgement shall set out their individual proper
Child Support. You then proceed to the remaining names, if known. (RoC, Rule 36, Section 6) Page | 163
issue, that is, the validity of the marriage. So after
submitting your evidence, the court will render REMEDIES AGAINST JUDGEMENTS OR FINAL
another judgment on that issue alone. ORDERS
A. Before finality of judgement or order (R-A-
The judgment shall terminate the action with respect N)
to the Property, Support and Custody. The remaining
claim in the above example is the validity of the 1. Motion for Reconsideration (RoC, Rule
marriage. 37)
2. Appeal (RoC, Rules 40-45 & 48-56b)
3. New Trial (RoC, Rule 37)
“In case a separate judgment is rendered, the court by
order may stay its enforcement until the rendition of
a subsequent judgment or judgments and may
B. After the finality of the judgement or final
prescribe such conditions as may be necessary to
order: (R-A-C-C)
secure the benefit thereof to the party in whose favor
the judgment is rendered.”
1. Relief from judgement or final order
Following the abovementioned example, the agreed 2. Annulment of judgement
compromise on the property is a Complete 3. Petition for Certiorari
Separation of Properties and this agreement has 4. Collateral attack on judgement if the
been compromised by the court. However, the challenged judgement is void upon its
petition for Declaration of Nullity of Marriage was face or if the nullity thereof is apparent
denied. What happens now to the property by virtue of its own recitals.
relationship? It will still be Complete Separation of Dismissal of judgements
Property. You will not go back to ACP since you have A dismissal order which reads: “For failure of the
agreed that notwithstanding the judgment on the plaintiff to prosecute, the case is hereby dismissed,”
validity of the marriage, the court has already the same is an adjudication of the merits and thus
approved your compromise agreement. This is akin to should have stated the facts which it is based
a joint petition to have the ACP dissolved and adopt a pursuant to Section 1 of Rule 36 of the RoC. Failure
Complete Separation of Property Regime. Thus, even to comply therewith renders the order null and void.
if the Petition for Declaration of Nullity of Marriage
is denied, it will not affect the earlier [separate] RULE 37: NEW TRIAL OR RECONSIDERATION
judgment. RULE 37, SECTION 1

SECTION 6: JUDGEMENT AGAINST ENTITY WITHOUT

JURIDICAL PERSONALITY MOTION FOR A NEW TRIAL
This involves actions filed against one or more
persons without juridical personality. A new trial is a remedy that seeks to temper the
HOW THE ACTION IS FILED severity of a judgment or prevent a failure of justice.
They may be sued under the name by which they are The grant of a new trial is generally addressed to the
generally or commonly known. (RoC, Rule 3, Section sound discretion of the court which cannot be
15) interfered with unless clear abuse is shown. (Riano, p.
HOW THE SUMMONS IS SERVED 563, 2019 ed.)

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 PROHIBITED ALLOWED accident, mistake or excusable negligence. No similar
requirement is imposed for a motion for new trial or
If the case falls In environmental cases if motion for reconsideration under subdivision (c) of
under the 1991 the same is a highly the same section.
Revised Rule on meritorious case or to
Summary prevent a manifest NEWLY-DISCOVERED EVIDENCE; REQUISITES
Page | 164
Procedure. miscarriage of justice.
Before a new trial may be granted on the ground of
If the case falls newly-discovered evidence, It must be shown that:
under the Rule of
Procedure in Small 1. The evidence was discovered after trial;
2. Such evidence could not have been
Claims.
discovered and produced at trial even with
the exercise of reasonable diligence;
3. It is material, not merely cumulative,
WHEN TO FILE? corroborative, or impeaching; and
4. The evidence is of such weight that it would
A motion for new trial is filed within the period for probably change the judgment, if admitted.
taking an appeal (Sec. 1, Rule 37).
CASE OF TAJEDA V. PEOPLE
CASE OF ABE INDUSTRIES
The most important requisite in a newly discovered
If one party has already perfected his appeal, the evidence is that the evidence could not have been
clause “upon the expiration of the last day to appeal discovered and produced at the trial even with
by any party” obviously no longer applies to him, but reasonable diligence; hence, the term "newly
only to the other party whose period to appeal has discovered."
not yet expired.

GROUNDS FOR A MOTION FOR NEW TRIAL RULE 37, SECTION 2

The aggrieved party may move the trial court to set

aside the judgment or final order and grant a new trial
on one or more of the following causes materially FORM OF A MOTION FOR NEW TRIAL
affecting the substantial rights of said party:
The motion shall be made in writing stating the
1. Fraud, accident, mistake or excusable ground or grounds therefor, a written notice of which
negligence which ordinary prudence could shall be served by the movant on the adverse party
not have guarded against and by reason of (Par. 1, Sec. 2, Rule 37).
which such aggrieved party has probably
been impaired in his rights; or CASE OF PCIB V. ORTIZ

2. Newly discovered evidence, which he could As a rule, notices, pleadings, motions and papers
not, with reasonable diligence, have should be served on a party’s counsel of record, at the
discovered and produced at the trial, and latter’s given address.
which if presented would probably alter the
result (Sec. 1, Rule 37). If there is a change in address-notify the court. It is
incumbent upon the parties where the motion will be
CASE OF MENDOZA V. BAUTISTA sent.
An affidavit of merit is required in a motion for new CONTENTS OF MOTION FOR NEW TRIAL
trial pursuant to Section 2 of Rule 37 if the motion for
new trial is based on any of the causes mentioned in
subdivision (a) of Section I of Rule 37, to wit, fraud,

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A motion for the cause mentioned in paragraph (a) of Action upon Motion for New Trial or
Sec. 1 shall be supported by affidavits of merits which Reconsideration
may be rebutted by affidavits.
The trial court may:
A motion for the cause mentioned in paragraph (b)
shall be supported by affidavits of the witnesses by 1. Set aside the judgment or final order and Page | 165
whom such evidence is expected to be given, or by grant a new trial, upon such terms as may be
duly authenticated documents which are proposed to just;
be introduced in evidence (Par. 2, Sec. 2, Rule 37). 2. Deny the motion; or
3. Amend such judgment or final order
CONTENTS OF MOTION FOR RECONSIDERATION accordingly, if it finds that excessive
damages have been awarded or if the
A motion for reconsideration shall point out a judgment or final order is contrary to the
specifically the findings or conclusions of the evidence or law (Sec. 3, Rule 37).
judgment or final order which are not supported by
the evidence or which are contrary to law making RULE 37, SECTION 4
express reference to the testimonial or documentary
evidence or to the provisions of law alleged to be
contrary to such findings or conclusions (Par. 3, Sec.
RESOLUTION OF MOTION
2, Rule 37).

PRO FORMA MOTION A motion for new trial or reconsideration shall be

resolved within thirty (30) days from the time it is
Non-compliance with requirements under Sec. 2 submitted for resolution (Sec. 4, Rule 37).
would reduce the motion to a mere pro forma
DENIAL OF THE MOTION; “FRESH PERIOD” RULE
motion, which shall not toll the reglementary period
of appeal (Par. 4, Sec. 2, Rule 37). If the motion for new trial is denied, the movant has
a “fresh period” of 15 days from the receipt or notice
CASE OF REPUBLIC V. ASUNCION
of the order denying or dismissing the motion for new
The fact that the Solicitor General reiterated matters trial within which to file a notice of appeal for the
or arguments that are already passed upon by the same reasons and grounds as the “Fresh Period” Rule
court does not make the motion for reconsideration governing a denial of a motion for reconsideration
pro forma. (Neypes v. Court of Appeals).

Bottomline – what is controlling is the content and RULE 37, SECTION 5

not the caption.
The “Single Motion” rule
CASE OF LLANTERO
No party shall be allowed a second motion for
Petitioner’s Motion, although seasonably presented reconsideration of a judgment or final order. (Sec. 5,
from the foregoing standpoint, bore an erroneous Rule 37)
docket number. For this reason, it could not be
attached to the expediente of the correct case. To all As a general rule, a party shall not be allowed to file a
intents and purposes, the Motion was legally second motion for reconsideration of a judgment or
inexistent. final order. A second motion is prohibited and can
only be allowed on extraordinary persuasive reasons
RULE 37, SECTION 3 and only after an express leave shall have first been
obtained. (Riano, p. 561, 2019 ed.)

Note: Filing of a second motion for reconsideration is

a violation of the omnibus motion rule.

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 SECOND MOTION FOR NEW TRIAL
PARTIAL NEW TRIAL OR RECONSIDERATION
A motion for new trial shall include all grounds then
available. Those not so included shall be deemed If the court finds that a motion affects the issues of
waived. However, when a ground for a new trial was the case as to only a part, or less than all of the
not existing or available when the first motion was matters in controversy, or only one, or less than all, of
Page | 166
made, a second motion for new trial may be filed the parties to it, the court may grant a new trial or
within the period allowed but excluding the time grant reconsideration as to such issues if severable
during which the first motion had been pending. (Sec. without interfering with the judgment or final order
5, Rule 37) upon the rest. (Sec. 7, Rule 37)

Note: A party may file a second motion for new trial

if:
RULE 37, SECTION 8
1. The ground is newly discovered evidence
that was not available despite diligent search
when the first motion for new trial was filed; Effect of order for partial new trial
and
When there is an order for a partial new trial, i.e., less
2. This newly discovered evidence will probably than all of the issues are ordered retried, the court
alter the decision of the court. may either enter a judgment or final order as to the
rest, or stay the enforcement of such judgment or
RULE 37, SECTION 6
final order until after the new trial. (Sec. 8, Rule 37)
EFFECT OF GRANTING OF MOTION FOR NEW TRIAL
RULE 37, SECTION 9
If the court grants the motion for new trial, the
original judgment or final order shall be vacated, and
An order denying a motion for new trial or
the action shall stand for trial de novo. The recorded
reconsideration is not appealed, the remedy being
evidence taken upon the former trial shall be used at
an appeal from the judgment or final order. (Sec. 8,
the new trial without retaking the same if the
Rule 37)
evidence is material and competent. (Sec. 6, Rule 37)
ORDER OF DENIAL, NOT APPEALABLE
Q: A filed a motion for new trial which was grounded
on newly discovered evidence. Will the evidence The “Fresh Period” Rule does not refer to the period
already adduced remain? within which to appeal from the order denying the
motion for reconsideration, but to the period within
A: Yes. The evidence was already admitted. A will just
which to appeal from the judgment itself because an
present additional evidence.
order denying a motion for reconsideration is not
Q: In a motion for new trial, can the court recall to the appealable. (Riano, pp. 560-561, 2019 ed.)
witness stand other witnesses who were already
REMEDY WHEN MOTION IS DENIED
presented?
An order denying a motion for new trial is no longer
A: Yes. If motion for new trial is granted there will be
assailable by certiorari under Rule 65 because of the
new hearing and presentation of evidence.
amendment to Rule 41 by A.M. No. 07-7-12-SC.
Note: If MR is granted, no new hearing is required.
The remedy available, therefore, would be that
The nature of the grounds for MR does not require
prescribed under Sec. 9 of Rule 37, i.e., to appeal from
the presentation of additional evidence.
the judgment or final order. (Riano, p. 567, 2019 ed.)
RULE 37, SECTION 7

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 RULE 38: PETITION FOR RELIEF FROM JUDGMENT Note: Extrinsic fraud also justifies motion for new
trial, a motion to set aside an order of default and an
action for annulment of judgment.
RULE 38 SECTIONS 1-7
PARTIES WHO CAN AVAIL
Petition for relief from judgment is a remedy provided
by law to any person against whom decision or order Petition for relief from judgment is available only to Page | 167
is entered through fraud, accident, mistake, or parties in the proceeding where the assailed
excusable negligence. This remedy is equitable in judgment is rendered.
character, allowed only in exceptional cases where A person, who was never a party to the case or even
there is no other available or adequate remedy summoned to appear therein, cannot avail of a
provided by law or by the rules. petition for relief from judgment.

Relief from judgment under Rule 38 is a legal remedy WHEN TO FILE

whereby a party seeks to set aside a judgment
rendered against him by a court whenever he was It shall be filed within 60 days after the petitioner
learns of the judgment, final order or proceeding and
unjustly deprived of a hearing or was prevented from
not more than 6 months after the judgment or final
taking an appeal, in either case, because of fraud,
order was entered.
accident, mistake or excusable neglect. (Quelman v
VHF) Both periods are not extendible and never
interrupted.
Note: When a party has another remedy available to
him, either Motion for Reconsideration or Motion for Remember: A petition for relief from judgment is not
New Trial or appeal from adverse decision, and he has an available remedy in the Court of Appeals and
not prevented by fraud, accident, mistake, or Supreme Court.
excusable negligence from filing such motion or
A petition for relief from judgment in forcible entry
appeal, he cannot avail himself of a petition for relief.
and unlawful detainer cases is a prohibited pleading.
If you are still in the period of appeal, file MR or MNT!
The reason for this is to achieve an expeditious and
GROUNDS FOR A PETITION FOR RELIEF inexpensive determination of the cases subject of
summary procedure. (Afdal v Carlos)
A. When a judgment or final order is entered,
or any other proceeding is thereafter taken FORM OF THE PETITION
against the petitioner in any court through The petition must:
fraud, accident, mistake, excusable
negligence or;
1. It must be verified
B. When the petitioner has been prevented
2. Accompanied with affidavits
from taking an appeal by fraud, accident,
3. Such affidavits show FAME
mistake, excusable negligence
4. Facts constituting petitioner’s good and
substantial cause of action or defense.
EXTRINSIC FRAUD

The fraud that is a ground for the filing of a petition In order for a petition for relief filed under Rule 38 to
for relief is “extrinsic fraud”. It is defined as fraud be entertained by the court, the petitioner must
which the prevailing party caused to prevent the satisfactorily show that he has faithfully and strictly
losing party from being heard on his action or complied with the provisions of said Rule 38. (Arcilla
defense. Such fraud concerns not the judgment itself v Arcilla)
but the manner in which it was obtained.

Q: Will the filing of petition for relief from judgment

hinder the court from issuing a writ of execution?

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 A: No. Remeber that a petition for relief is a remedy Execution shall issue as a matter of right, on motion,
available after the judgment or final order has upon a judgment or order that disposes of the action
become final and executory. Hence, the judgment or proceeding upon the expiration of the period to
could be subject of a writ of execution. The petitioner appeal therefrom if no appeal has been duly
may avail preliminary injunction to preserve the rights perfected.
Page | 168 of the parties upon the filing of a bond in favor of the
adverse party. EXECUTION AS A MATTER OF RIGHT

CASE DOCTRINES The only way you can execute a judgment by way of
a matter of right is if the judgment is already final
Demetriou v CA AND executory.

In the leading case of Palanca v. Republic, it was held EXAMPLE: Nathan and Monico are parties to a case.
that the use of a forged instrument constituted only Nathan received the judgment on June 1 while
intrinsic fraud for while perhaps it prevented a fair Monico received it on June 5. Nathan has a period of
and just determination of a case, the use of such 15 days (or until June 16) to avail of post- judgment
instrument or testimony did not prevent the adverse remedies. By June 17 and assuming that no action has
party from presenting his case fully and fairly. In the been done by Nathan, the judgment becomes final as
case at bar, petitioners were not really kept out of the to him. On the other hand, Monico received it on June
proceedings because of the fraudulent acts of the 5 so he has until June 20 to avail of his post- judgment
private respondent. remedies. Assuming that Monico did not avail of his
post- judgment remedies within the 15- day period,
Purcon v MRM Philippines
the judgment has become final to both parties and
the Court by June 21.
The relief afforded by Rule 38 will not be granted to a
party who seeks to be relieved from the effects of the
If both parties did not file any post- judgment remedy,
judgment when the loss of the remedy of law was due
and the period lapsed, then the judgment has
to his own negligence, or mistaken mode of
attained finality and as a general rule, no court can
procedure for that matter; otherwise the petition for
change its decision because the decision has become
relief will be tantamount to reviving the right of
immutable- final and executory. Since the judgment
appeal which has already been lost, either because of
has become final and executory, the writ of execution
inexcusable negligence or due to a mistake of will be issued as a matter of right.
procedure by counsel. In exceptional cases, when the
mistake of counsel is so palpable that it amounts to SECOND AND THIRD PARAGRAPH OF SECTION 1
gross negligence, this Court affords a party a second
opportunity to vindicate his right. But this Q: Shara received her decision on June 1. Chanelle
opportunity is unavailing in the instant case, received his on June 5. Shara won and she did not
especially since petitioner has squandered the avail of any post- judgment remedies. Chanelle filed a
various opportunities available to him at the different notice of appeal. The RTC approved Chanelle’s appeal
stages of this case. and because of that, the Clerk of Court will sort out-
compile the documents of the case and bring it over
to the CA. Once the documents are in custody of the
RULE 39: CA, it is the CA who has jurisdiction over the case.
EXECUTION, SATISFACTION AND EFFECT OF Here, the CA ruled in favor of Shara. According to
JUDGMENTS Hyde, he will no longer bring the case to the SC. When
can Shara file for the issuance of a writ of execution?
SECTION 1. EXECUTION UPON JUDGMENTS OR Where can she file for such motion?
FINAL ORDERS.

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A: Shara can only file it with the RTC (2nd paragraph NOTE: A writ of execution cannot vary because a writ
of Section 1) if she attaches to the motion for of execution that varies the judgment is patent nullity.
execution:

1.) The judgment on appeal- a certified true SECTION 2. DISCRETIONARY EXECUTION.

copy of the judgment of the CA.
Page | 169
2.) Entry of that judgment. Generally, when the judgment has already attained
finality, it cannot be amended except its clerical
Shara has to go to the CA, get a copy of the judgment errors or ambiguity.
and the entry of judgment that was entered by the
Clerk of Court of the division of the CA, and she should Q: Is a motion for issuance of a writ of execution a
attach it with the motion for execution that she will litigious or a non- litigious motion? (Refer to Rule 15)
file in Court.
A: It is a litigious motion. Hence, there will be no
Purpose of attaching the copy of judgment and the hearing for such motion. However, even if it is a non-
entry of judgment: Since the records of the case are litigious motion, and the execution has already been
no longer with the RTC, copy of judgment and the executed, you can still file your position when it
entry of judgment will serve as basis for the RTC in comes to discretionary execution under Section 2.
providing a judgment on the motion for execution.
EXECUTION OF A JUDGMENT OR A FINAL ORDER
OR PENDING APPEAL

A: Shara can file the motion for execution on the EXAMPLE: Darren won and Monico lost. Darren
appellate (third paragraph of Section 1) court. Shara received the judgment on June 1 so her last day to
can file the motion for execution in the CA so the avail of a post- judgment remedy is on June 16.
court can approve the motion BUT will direct the Monico received the judgment on June 5 so he has
lower court to issue the writ of execution. until June 20 to avail of his remedies. Robi filed a
notice of appeal on June 7. Here, even if Monico filed
NOTE: If there is a Notice of Appeal and the RTC is an appeal, Darren can do anything within her
acting as a court of original jurisdiction, the case will reglementary period. Meaning, her notice of appeal
fall automatically under the CA and its assigned errors will not bar Monico from seeking post- judgment
should be both questions of fact and law. If the RTC is reliefs.
acting as a court of original jurisdiction, after being
elevated to the CA and the only issue is in regard with Monico filed an appeal on June 7. Here, the court still
legal issues, the case should fall under the SC under has jurisdiction over the case because even if he has
Rule 45 and not with the CA. already taken an appeal, Darren has a period until
June 16 to do what whatever she wants with the
WRIT OF EXECUTION judgment and because the records are still with the
court and has not been elevated yet to the CA, Darren
A writ of execution is a document issued by the court can file a motion for execution pending appeal.
to an officer (sheriff) authorizing the officer to
execute the judgment of the court. What will be If it is a motion for execution pending appeal, it is
executed is the dispositive portion- or the incumbent upon the movant to file it:
“WHEREFORE” part of a case.
1. When the court still has jurisdiction
If there is a discrepancy between the body and the
dispositive portion, the dispositive portion shall 2. The records are still in possession of the court
prevail and be executed.

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 3. It is incumbent upon the movant to show good executory or even if no appeal was made, can file for
cause on why the court should grant a discretionary a motion for execution- and such motion will
execution. subsequently be executed. In other words, the appeal
of the case will not stay its execution.
Q: What is an example of good cause?
GR: When a party elevates by appeal (RTC- CA) the
Page | 170
A: Recovery of perishable items can be considered a decision, he cannot execute such because the
good cause since there is an immediate necessity to decision is not yet final and executory. The appeal
act on the case to prevent the items from spoilage. An stays the execution and the only way he can execute
appeal in this instance would be impractical. it is through discretionary execution.

EXECUTION OF SEVERAL, SEPARATE OR PARTIAL XPNS: IRAS

JUDGMENTS
If it is a case of IRAS, even if a party appeals the
A several, separate or partial judgment may be decision to the CA, the winning party can move for the
executed under the same terms and conditions as execution pending appeal and such motion will be
execution of a judgment or a final order pending granted. In this case, there is no need to prove good
appeal. cause since Section 4 of Rule 39 provides for
judgments not stayed by appeal.
NOTE: Execution pending appeal under Section 2 or
discretionary execution does not apply when the If the judgment obligor does not want the decision to
judgment you want to execute is a CA judgment. be executed, he shall post a bond or he may go to the
Execution pending appeal applies only in the appellate court and ask the appellate court to make
judgment of the trial court and not against the CA an order suspending its execution- restoring the IRAS.
decision. (Heirs of Late Justice Reyes v. CA) The staying of the execution shall be made upon the
SECTION 3. STAY OF DISCRETIONARY EXECUTION. posting of the bond. The judgment obligor will have
to post a bond to serve as a proper security for the
protection of the rights of the adverse party.
Q: Shara won and Dominic lost. Loki filed a notice of
appeal. Shara filed for execution pending appeal IRAS- IMMEDIATELY EXECUTORY EVEN IF IT IS
which was granted. What is the remedy of Dominic? PENDING APPEAL

A: Dominic can post a supersedeas (to supersede) EXAMPLE: Chanelle sued Nathan for support to their
bond. The condition of such bond is the performance illegitimate child- Danica. Danica won as a minor-
of the judgment or order allowed to be executed in represented by her mother Chanelle. Since this is a
case the bond shall finally be sustained in whole or in case of support, it shall be immediately executory
part. Kung matalo talaga, you can go after this bond. even if it is pending appeal because if not, chances are
Danica won’t be needing the support by the time the
NOTE: The bond thus given may be proceeded against decision has become final and executory.
on motion with notice to the surety. SECTION 5. EFFECT OF REVERSAL OF EXECUTED
JUDGMENT.
*Section 3 only applies to Section 2 or Discretionary
Execution.
SECTION 4. JUDGMENTS NOT STAYED BY APPEAL. Section 5 applies in a case wherein the judgment
involved IRAS and such judgment was executed even
INJUNCTION, RECEIVERSHIP, ACCOUNTING, if it was pending appeal. However on appeal, the
SUPPORT (IRAS) judgment on IRAS was reversed.

A winning judgment on injunction, receivership,

accounting and support, even if not yet final and

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EXAMPLE: Shara won against Dominc so Jess filed an Such petition for revival of judgment should be filed
execution pending appeal where the court has still within 5 years after the lapse of the time and before
jurisdiction and the records are still with it. it is barred by the statute of limitations (10 years.)
Meanwhile, Dominic filed for an appeal. The
execution pending appeal was granted because Shara A revival of judgment does not require a re- litigation
was able to show good cause. The properties now of of the case. The judgment obligee only needs prove
Page | 171
Dominic were executed and were sold to public that he has a final and executory judgment and that
auction. The proceeds were given to Shara. However, judgment was not executed during that 5- year period
the CA reversed the decision and ruled in favor of by way of motion.
Dean. When the reversal now becomes final and
executory, the trial court, upon motion of Dominic NOTE: The 5 and 10 year period is computed from the
can issue a motion for restitution. Shara can be date of the entry of judgment.
compelled to return whatever amount he got from
Dominic. The RTC has jurisdiction for the revival of judgment
because it is an action incapable of pecuniary
NOTE: The execution by way of motion is for a period estimation.
of 5 years and another 5 years by another
independent action.
SECTION 7. EXECUTION IN CASE OF DEATH OF A
PARTY.
SECTION 6. EXECUTION BY MOTION OR BY
INDEPENDENT ACTION.
When somebody dies, there is always an effect to the
case. (Refer to Rule 3)
A final and executory judgment or order may be
executed on motion within 5 years from the date of Q: If the plaintiff filed a case against the defendant
its entry. and either of them subsequently died. Does that
mean that the case will be dismissed?
Date of entry- the date when the decision became
final and executory. It is not the date when the A: NO. The case will only be dismissed if the case is
judgment was entered in the book of entries. purely personal in nature such as a petition for legal
separation.
During the 5 year period, the judgment obligee has to
file the motion within that 5- year period and he has Under Section 20 of Rule 3, if the action is about a
to execute the judgment within that 5- year period. money claim- expressed or implied, the death will not
cause the dismissal of the case but it will proceed until
Q: What if the judgment obligor is not capable of entry of judgment. You cannot execute it. Once there
paying the judgment? is entry of judgment, the case shall be brought to the
appropriate probate court or intestate- estate court.
A: Still, the judgment- obligee has a judgment that he There is no need to re- litigate the case since there is
won. But even if he filed the motion for execution already a final judgment.
within the 5- year period, he cannot execute it after
the 5- year period because the court has no longer SUBSTITUTION OF PARTIES
jurisdiction to execute and implement the writ of
execution. In case of the death of a party, execution may be
enforced in the following manner:
Q: What is the judgment obligee’s remedy?
1.) In case of the death of the judgment obligee and
A: He can file a separate case- another independent assuming the action survives death, and a writ of
action called PETITION FOR REVIVAL OF JUDGMENT. execution has been issued, it can be enforced against

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 the judgment obligee upon the application of his title, or unlawful detainer, the execution is governed
executor or administrator, or successor in interest. by Section 10 of Rule 39.

2.) In case of the death of the judgment obligor, the All others not covered by Section 9 and Section 10 will
judgment may be executed against his executor or be governed by Section 11- execution of final
administrator or successor in interest, if the judgment judgments.
Page | 172
is for the recovery of real or personal property, or the
enforcement of a lien thereon. Here, there is no need NOTE: Under Section 8, it is clear that the writ of
to bring the case to the intestate- estate court. execution must specifically state the amount of
interest costs, damages, rents, or profits due as of the
IF THE JUDGMENT OBLIGOR DIES AFTER THE LEVY date of the issuance of the writ, aside from the
HAS BEEN MADE, EXECUTION SALE CAN PROCEED. principal obligation under the judgment. However,
the one going to compute such will be the judgment
Q: Nathan filed a case against Dwightfor 10M pesos. obligor.
During the trial and judgment, Blake was still alive.
Nathan filed a motion for execution of judgment The writ of execution cannot modify or change the
which was granted. The sheriff went to Dwight and all dispositive portion. It has to be consistent, otherwise,
his properties were levied upon. Subsequently, the writ of execution is void.
Dwight died. Will the execution of judgment proceed?

SECTION 9. EXECUTION FOR JUDGMENTS FOR

MONEY, HOW ENFORCED.
A: YES. Because the properties were already levied-
apportioned.
IMMEDIATE PAYMENT ON DEMAND AND
Q: Using the same example, however this time, the SATISFACTION BY LEVY
properties were not levied before the death of
Dwight. Can Nathan proceed with placing Dwight’s EXAMPLE: There is an execution of a money
properties on levy? judgment- a collection for a sum of money worth 10
million pesos. A writ of execution was given to Alpha.
A: NO. Adam’s remedy is to move the case to the The sheriff will proceed to Alpha’s residence and
estate- intestate court. inform him of the execution. If Alpha pays the 10M,
the sheriff shall deposit such money to the clerk of
court. The clerk of court will now turn over the money
SECTION 8. ISSUANCE, FORM AND CONTENTS OF A to the judgment obligee. The excess if any, will be
WRIT OF EXECUTION. returned back to the judgment obligor.

Q: What if Alpha is not capable of paying the 10M

Q: Monico filed a motion for the issuance of a writ of pesos?
execution. The court now issues an order granting the
issuance of the writ of execution. Is the order granting A: The Sheriff should just execute on Alpha’s personal
the writ of execution the writ itself? property that are not exempt from execution. Here,
Alpha may identify which among his personal
A: NO. It will be the writ of execution addressed to properties he intend to reserve from
the sheriff- directing him to execute the judgment. execution. However, if the remaining properties are
still insufficient to cover the liability, all of Alpha’s
Execution will depend on the judgment. personal property will be subject to execution.

If the judgment is about a specific act such as The sheriff now will take the personal properties to
conveyance, delivery of deed or specific acts vesting the Court.

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The Court will conduct a public auction. However,
until the public auction has not been executed, Alpha
may replace the properties subject for auction or he RECONVEYANCE
may pay the amount required in order to get back his
personal properties. EXAMPLE: Alan sold a property to Lito. Alan received
the payment- money but does not want to execute
Page | 173
If the entire personal properties are still insufficient, the deed of absolute sale for the transaction to
the sheriff will resort to Alpha’s real properties. But materialize. Assuming that the case is for
again, the sheriff shall ask the judgment obligor. reconveyance of property, Alan, upon receipt of
Alpha may identify which real property he intends to judgment, should execute the deed of reconveyance
reserve from execution. The judgment obligor has the or the deed of absolute sale.
right to choose which among his properties may be
subject of execution. If there is continuous refusal on the part of Alan to
comply, Lito can go to the court and ask the court to
Once there is a notice of levy annotated to the execute it.
properties, such properties will now be the subject of
auction. UNLAWFUL DETAINER

GARNISHMENT OF DEBTS AND CREDITS EXAMPLE: Niki is a lessee in an unlawful detainer case.
Joji, the sheriff is now tasked to evict Niki.
GARNISHMENT LEVY
The sheriff shall demand of the person against whom
A court order directing Levy is directed upon a the judgment for the delivery or restitution of real
that money be seized to real property and then property is rendered and all persons claiming rights
satisfy a debt owed by a you segregate the under him to peaceably vacate the property within
debtor to a plaintiff property from the mass three (3) working days, and restore possession
creditor. of properties owned by thereof to the judgment obligee.
the judgment obligor.
Q: What if after 3 days, Joji came back and Niki still
The purpose of refused to vacate the property?
segregating is that
those which are subject A: The officer shall evict the person with the
to levy will now be sold assistance- if necessary, by the appropriate peace
in public auction. officers and employing such means as reasonably
and necessary to retake the possession and place the
EXAMPLE: Joey has a debt to Bea. Joey may be issued judgment obligee in possession of the property.
a writ of garnishment. The amount that he is
supposed to give Bea will now be given to the court. MOSLEM V. SORIANO

That is the very concept of garnishment when the The remedy is not to file a petition to cite the lessee
judgment obligee is garnishing the deposits of the in direct contempt because the writ of execution is
judgment obligor. Normally, writ of garnishments are directed or addressed to the sheriff. The remedy is to
served in banks. The banks are supposed to report it coordinate with each other and make sure that the
to the court and deliver the amount to the court Sheriff will be able to get the assistance of
within the period of 5 days. appropriate peace officers and employ such means as
may be reasonably necessary to retake possession.

SECTION 10. EXECUTION OF JUDGMENTS FOR REMOVAL OF IMPROVEMENTS ON PROPERTY

SPECIFIC ACT. SUBJECT OF EXECUTION

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 Q: Peter, knowing that the property belongs to John, illegitimate child when he is already judicially
constructed a bahay kubo. John sued Peter and he required to do so, the court can hold him in
won the case. John now wants to construct a mansion contempt.
over his property. Can he order the demolition of
Peter’s bahay kubo? NOTE: Section 11 applies only to cases not covered by
Section 9 and Section 10.
Page | 174
A: NO. The judgment obligor, if he wants to demolish SECTION 12. EFFECT OF LEVY ON EXECUTION AS TO
the improvement introduced by the judgment- THIRD PERSONS.
obligee, must file a motion in court to allow the sheriff
to destroy the improvements introduced by the The levy on execution shall create a lien in favor of the
judgment obligee. There must be an order of judgment obligee over the right, title, and interest of
demolition, which means that there must be a motion the judgment obligor in such property at the time of
filed and it must be granted- that is the only time the the levy, subject to liens and encumbrances then
sheriff can demolish such property. existing.

DELIVERY OF PERSONAL PROPERTY EXAMPLE: There is a judgment. Although the

judgment has not attained finality, the court allowed
Q: In an unlawful detainer case, the judgment discretionary execution. The sheriff is required to
rendered requires Barney to be evicted and for him to serve the writ of execution on a judgment obligor to
pay 1 million pesos by way of arrears. How will the compel such to pay X amount of money. However, if
money judgment be executed? the judgment obligor does not have the money and
personal properties to comply, the sheriff now will
A: Execute the judgment as provided for in Section 9 look into the judgment obligor’s real properties.
of Rule 39- money, personal property, and real
property. Assuming that there is a real property in Baguio. The
writ of execution will be brought to the Register of
This is an unlawful detainer case where the recovery Deeds of Baguio and the notice of levy will be
of possession is executed pursuant to Section 10 and annotated to the title of that property. Once
the money judgment is executed in compliance with annotated, the notice of requirement and publication
Section 9. shall be complied first before the property can be
auctioned off.

SECTION 11. EXECUTION OF SPECIAL JUDGMENTS. During the auction sale, if Olympia bought the
property, the rights that Olympia will acquire are the
rights that the judgment obligor has on that property
When a judgment requires the performance of any as of the time of the levy.
act other than those mentioned in the two preceding
sections, a certified copy of the judgment shall be If at the time of the levy X was an owner, but later on
attached to the writ of execution and shall be served after the annotation, and after the sale of the
by the officer upon the party against whom the same property by the judgment obligor, X is still the owner
is rendered, or upon any other person required of the property pursuant to Section 12. The levy on
thereby, or by law, to obey the same, and such party the execution shall create a lien on the judgment
or person may be punished for contempt if he obligee over the right, title, and interest of the
disobeys such judgment. judgment obligor in such property at the time of the
levy, subject to liens and encumbrances then existing.
EXAMPLE: In a petition for recognition of illegitimate
filiation, Tom is the father of Jerry. Despite judgment SUBJECT TO EXISTING RIGHTS AND ENCUMBRANCES
in favor of Jerry, Tom consistently fails to provide for
support. In this case, if Jerry fails to recognize the

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If after levy but before annotation of the levy, the should not vary the dispositive part. The writ of
property was mortgaged by the judgment obligee and execution, if it varies the dispositive part, will be null
the real estate mortgage was already annotated, X’s and void.
has an inferior lien because the real estate mortgage
was annotated first.
ARROYO V. CA
Page | 175
NOTE: Your right cannot be more than what the
judgment obligor has. The courts may modify a final and executory decision
SECTION 13. PROPERTY EXEMPT FROM when circumstances transpired render the judgment
EXECUTION. unjust and unequitable. It is true that in this case, the
court’s judgment has become final and executory.
The doctrine of immutability of judgments, however,
For properties levied upon to be exempt from admits of certain exceptions.
execution, it should be raised immediately because it
cannot be undone if the property has already been 1. correction of clerical errors
sold. It must be raised at the earliest opportunity and
the earliest opportunity is when the property has 2. nunc pro tuc judgments- because it does not
already been levied upon or taken away from prejudice any rights. It’s just part of the decision just
execution. because it needs to be stated.
SECTION 14. RETURN OF WRIT OF EXECUTION.
3. void judgment

The writ of execution shall be returnable to the court 4. when circumstances transpire after judgment
issuing it immediately after the judgment has been rendering the decision unjust and unequitable
satisfied in part or in full. If the judgment cannot be
satisfied in full within 30 days after his receipt of the The exception will apply in order to best serve the
writ, the officer shall report to the court and state the interest of justice.
reason therefor. Such writ shall continue in effect
In this case, Arroyo invoked the last exception,
during the period within which the judgment may be
whenever the circumstances transpired after the
enforced by motion. The officer shall make a report to
finality of the judgment- rendering the execution
the court every 30 days on the proceedings taken
unjust. Arroyo related the supervening event of the
thereon until the judgment is satisfied in full, or its
OP’s decision which found Brito liable for dishonesty
effectivity expires. The returns or periodic reports
because he falsified his college degree- which
shall set forth the whole of the proceedings taken,
changes the situation of the parties in such a manner
and shall be filed with the court and copies thereof
that it would render the execution of the quo warrant
promptly furnished the parties.
judgment unjust and equitable.

ABRIGO V. FLORES
CASE DOCTRINES
Once a judgment becomes immutable and
unalterable by virtue of its finality, its execution
CHIQUITA BRANDS, INC. V. OMELIO
should follow. A supervening event to be sufficient to
Courts can neither amend nor modify the terms and stay or stop the execution, must alter or modify the
conditions of a compromise agreement which the situation of the parties under the decision as to
parties have validly entered into. A writ of execution render the decision inequitable, impossible or unfair.
that varies the respective obligation of the parties The supervening event cannot just rest on an
under a judicially approved compromise agreement is unapproved or uncertain facts.
void. No judge can change [Link] writ of execution

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 When the decision has attained finality, you cannot Always remember that a nunc pru tunct judgment
change it. No court has the power to modify it and the cannot correct a judicial error nor supply non action
only way you can modify it is you fall on under the 4 of the court. If the judgment sought is not a nunc pru
exceptions. But even If you fall on the last one, the tunct then the general rule will apply.
supervening events must be proven. It cannot be
TOPACIO V. BANCO FILIPINO SAVINGS
Page | 176 based on speculation.
Rule 39 applies to civil actions but not to special civil
actions.

This case talks about a writ of possession issued in

VASQUEZ V. CA relation to a judicial proceeding under Act 3135.

When a final judgment becomes executory, thereby When a petition for extrajudicial foreclosure of real
becomes immutable and unalterable, there is another estate mortgage is filed, that’s not an action in court.
exception wherein despite of the immutability of the The party who filed the petition simply invokes the
judgment, the court allowed to modify. In this case, administrative power of the court for such party to
because the petitioner claims the second action that extrajudicially foreclose a real estate mortgage. This
her motion for clarificatory judgment is for the is the reason why Rule 39 according in this case, does
purpose of attaining a nunc pro tunc judgment. not apply to special proceedings such as extrajudicial
foreclosure proceedings under Act 3135.
NUNC PRO TUNC JUDGMENT
As a rule, judgments are sufficiently served when they
It is precisely to record some act of the court, done in are delivered personally or through registered mail.
a former time which was not then carried into the Under Rule 13, judgments can be served personally or
record. The power of the court to make such entries by registered mail only. In the present case, the order
is merely to place around the record evidence of of dismissal cannot be deemed final and executory in
judicial action which has actually already taken place. view of the absence of valid service whether
It will make the records speak of the truth but will not personally or via registered mail on respondent’s
make it speak what it did not speak but ought to have counsel. Notice that petitioners do not dispute that
spoken. the records failed to show that the private
respondent was even furnished a copy of the said
EXAMPLE: The judgment did not mention that the order. So even if the other party was not even
deed of absolute sale was admitted as evidence but furnished of the same order, such cannot attain
actually, it was already admitted as evidence by virtue finality.
of an order. The court can amend this precisely to
indicate that such document was admitted in Section 6, Rule 39 finds application only to civil
evidence. actions and not to special proceedings. This is because
a party in a civil action must immediately enforce
The object of nunc pro tunct is not ordering a new judgment that must secure his right against the
judgment and ascertainment and determination of adverse party and his failure to act for a reasonable
new rights but is one placing in proper form on record time as provided in the rules makes the decision
the judgment that has previously been entered. unenforceable.

In this case, the judgment is not a case of nunc pru Judgment will not attain finality if the other party was
tunct. The petitioner did not allege that the Court of not served a copy of the decision whether it is
Appeals actually took judicial action and such action personal or by registered mail. The judgment will
was not included in the CA decision. attain finality if against both parties, no appeal was
filed and the period lapsed.

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DY V. CA CAMINO V. ATTY PASAGUI

GR: You can only execute as a matter of right, This is a unique situation as this case was filed with SC
judgments which have attained finality. And a since it has original jurisdiction to decide disbarment
judgment has attained finality only if both the parties cases. However, the SC does not have the power to
have been served with their respective copies of the issue a writ of execution because it does not have a
Page | 177
judgment and the period to appeal of both parties sheriff.
have lapsed, WITHOUT AN APPEAL HAVING FILED or
if an appeal has been filed the decision on appeal will Here, the lawyer was disbarred and was ordered to
have to be served both to the parties and the period pay and return the amount of money he used. The
to further appeal have lapsed or no further action Complainant filed a motion for execution before the
have been taken by the parties. Then you can now say SC.
the judgment has been final and executor and can be
subject of execution. As a response to the motion for execution filed, the
SC now designated the RTC of Tacloban to issue the
There are however judgments that even not final and writ of execution for the sheriff of Tacloban to
executory it is immediately executory (injunction execute the decision of the SC.
accounting, receivership, support).
VALENCIA V. HEIRS OF AMANTE
Judgments in forcible entry and unlawful detainer
cases The execution of a judgment may not necessarily be a
supervening event that renders an appeal without
MTC judgments, even if it is pending appeal it is value and of no practical value.
immediately executor. And the only way to stop the
immediate execution of an unlawful detainer or A case or issue is considered moot and academic only
forcible entry case is if you file aside from your notice when it ceases to present a justiciable controversy by
of appeal, a supersedeas bond, that condition of virtue of supervening events, so that an adjudication
which is to pay all the monetary judgments or awards of the case or a declaration on the issue would be of
stated in the judgment. And for you to continue to no practical value or use.
regularly pay your monthly deposit while the case is
pending. However, it must be stressed that the Rules of Court
precisely covers the situation wherein an already
If the RTC affirms the decision of the MTC granting the executed judgment may still be reversed or remedied
petition for unlawful detainer or forcible entry and upon appeal. In other words, acc no ording to the
the judgment obligee appeals it further to the CA, the Rules of Court, the execution of a judgment may not
further appeal to the CA will not withstand the necessarily be a supervening event that renders an
decision of the MTC is immediately executor. It will appeal without value and of no practical value.
not be held in abeyance or suspended pending the
further appeal. Rule 39, Section 5 of the Rules of Court states that
where the executed judgment is reversed totally or
TUBALLA HEIRS V. CABRERA partially, or annulled, on appeal or otherwise, the trial
court may, on motion, issue such orders of restitution
A decision that has acquired finality becomes or reparation of damages as equity and justice may
immutable and unalterable- a final judgment may not warrant under the circumstances.
be modified by any respect not even by the Supreme
Court. One of the exceptions is the correction of NPC V. HEIRS OF RABIE
clerical errors. In this case, the SC merely corrected
the error in the decision of the RTC because it only Discretionary execution does not apply in eminent
related to the lot number. domain cases because if you want to possess the
property subject of eminent domain, all you have to

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 do is to pay your preliminary deposit and you will be residual
entitled to a writ of possession even if the case is prerogative.
pending.
MIRANDA V. MIRANDA
VENTANILLA ENTERPRISES CORPORATION V. TAN
ACTION FOR REVIVAL OF JUDGMENT
Page | 178
There is no extraordinary circumstance in the case
that would merit a recall of the entry of judgment to You can file a motion for execution as a matter of right
reopen a case. The reason given by petitioner, that its within the period of 5 years reckoned from the date
former counsel had died before the CA Decision was of finality. Finality equals entry of judgment and from
promulgated, hence, it was not properly notified of entry, you can file as a matter of right a motion for,
the judgment, is too tenuous to be given serious you can now ask as matter of right the writ of
consideration. In Mojar, et al. v. Agro Commercial execution
Security Service Agency, Inc., the Court explained that
it is the party’s duty to inform the court of its Within the 5 year period you can file a motion for
counsel’s demise and failure to apprise the court of execution, after the 5 year period you can only file a
such fact shall be considered negligence on the part right of action, which will allow you to file a petition
of said party. for revival of judgment.

KATON V. PALANCA Q: What court has jurisdiction when you file a petition
for revival of judgment?
RESIDUAL RESIDUAL JURISDICTION
PREROGATIVE A: The court who rendered judgment or the court in
the residence of the complainant or defendant or any
Refers to the Section 9, Rule 41. court which may be designated by the law which
power of the court governs the pending actions.
to act motu proprio The court even during the
or upon motion to time of the period of appeal Venue is not the same as jurisdiction.
dismiss the but prior to the transmittal
complaint on the of the records to the So if the case was filed in RTC, you file your action for
grounds of: (Rule 9, appellate court shall have revival of judgment with the RTC. This is the ruling in
Section 1) the power to issue orders of Miranda vs Miranda.
protection and preservation
1. Lack of of the rights of the parties 10 years is reckoned from entry of judgment. The first
jurisdiction over which do not involve the 5 years you file it by way of motion, the next 5 years
the subject matter. matter litigated upon and reckoned from the first entry of judgment should be
can issue/ approve filed by way of independent action. Now it is
2. Litis pendentia compromises, can even jurisdictional, which means you should comply with
approve execution pending the period. You file that outside the period then the
3. Res judicata appeal. court has no jurisdiction.

4. Prescription Execution pending appeal is Q: Where is the venue? Is it necessarily the same
but a manifestation of the venue where the case was filed?
Prescription, on its court’s residual jurisdiction.
own can cause the A: INFANTE V. ARAN BUILDERS
dismissal of the
complaint and that In this case, the first case that was filed was to compel
is what you call the defendant to execute a document or a deed of
sale over a parcel of land located in Ayala Alabang.
Even if the property was in Muntinlupa the case filed

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in Makati. This case of a specific performance, ENRIQUEZ V. CA
plaintiff wanted defendant to issue a deed of
absolute. Judgment was rendered ordering the SEC 6, RULE 39
defendant to issue the writ. It wasn‘t executed by way
of motion. After the 5 year period plaintiff had no The action to revive a judgment only requires proof
choice but to file the petition by way of action and it that the judgment is final and executory and proof
Page | 179
was a petition for the revival of judgment. that the said final and executory judgment has not
been executed by way of motion within the said
Q: When would you file it now considering that period.
Makati is now a city and Muntinlupa is likewise a city
with both respective charters? Q: If one of the parties in the original action died, can
you still file for petition for the revival of judgment?
A: According to the case, it should be filed in
Muntinlupa. A: YES.

For purposes of venue, first make a determination The death of the parties does not bar the filing of the
whether the judgment involved is real or personal petition for revival of judgment. It does not become
action. ineffective because there are successors in interest.
Especially this one involves an action which survives
If it is a real action, file it in the place where the death.
property or part of it lies and if personal you file it in
the place where the plaintiff or the defendant resides CORDERO V. GO
at the election of the principal plaintiff. So jurisdiction
and venue will be different for the purpose of filing a The court loses jurisdiction when the period to appeal
– petition for revival of judgment. for other parties expire however prior to transmittal
of records to the appellate court, as long as the trial
PEREZ V. MANOTOK REALTY court is in possession of the records, the court has
residual jurisdiction.
Where the delays were caused by the petitioner for
her advantage, as well as outside of respondent’s Refer to Rule 41, Section 9- Residual Jurisdiction.
control, this court holds that the five-year period
allowed for the enforcement of the judgment by Section 9. Perfection of appeal; effect thereof. — A
motion was deemed to have been effectively party's appeal by notice of appeal is deemed
interrupted or suspended. perfected as to him upon the filing of the notice of
appeal in due time.
CITY OF MANILA V. CA
A party's appeal by record on appeal is deemed
FINAL JUDGMENT FINAL AND perfected as to him with respect to the subject matter
EXECUTORY thereof upon the approval of the record on appeal
JUDGMENT filed in due time.

Means that the court has No more appeal. In appeals by notice of appeal, the court loses
resolved the matter on the jurisdiction over the case upon the perfection of the
merits but it can still be Writ of execution appeals filed in due time and the expiration of the
furthered appealed. will be issued as a time to appeal of the other parties.
matter of right.
It can be subject to In appeals by record on appeal, the court loses
execution but merely jurisdiction only over the subject matter thereof upon
discretionary. the approval of the records on appeal filed in due time
and the expiration of the appeal of the other parties.

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 In either case, prior to the transmittal of the original motion for execution which was granted by the trial
record or the record on appeal, the court may issue court on April 17, 1969. However, on April 28, 1969,
orders for the protection and preservation of the private respondents filed a motion to recall and/or
rights of the parties which do not involve any matter quash the writ of execution alleging as ground
litigated by the appeal, approve compromises, permit therefor that they have a pending petition with the
Page | 180 appeals of indigent litigants, order execution pending Court of Appeals questioning the validity of service of
appeal in accordance with Section 2 of Rule 39, and the decision on counsel of record and consequently
allow withdrawal of the appeal. the correctness of the entry of judgment. Acting on
the aforesaid motion, the trial court recalled that writ
PIEDAD V. BOBILES of execution previously issued and held in abeyance
the enforcement thereof pending resolution of
The Court allows for the execution of final judgment private respondents' petition. Since then and up to
even if prescription has already set in, if the delay was the termination of the dilatory schemes and
caused by the judgment obligor for his advantage. maneuvers resorted to by the private respondents all
the way up to this Court without avail, petitioner
VILLAREAL, JR. V. MWSS could not have sought the execution of the judgment
in question. It is settled that — “In computing the
This case involves execution done after the 5 year time limited for suing out an execution, although
period. and yet the SC said that even if the motion for there is authority to the contrary, the general rule is
execution of the judgment was filed after the 5 year that there should not be included the time when
period still the writ of execution issued is still valid. execution is stayed, either by agreement of the
parties for a definite time, by injunction, by the taking
GR: The motions and petitions for writ of execution
of an appeal or writ of error as to operate as
should be filed within the 5 year period. It should be
supersedeas, by the death of a party, or otherwise.
acted by the court within the 5 year period and
Any interruption or delay occasioned by the debtor
implemented within the 5 year period. If for reasons
will extend the time within which the writ may be
attributable solely to the losing party the said motion
issued without scire facias.”
having not been filed you deduct the period of delay
that was caused by the losing party to the 5 year FIESTAN V. CA
period even if the motion for execution was filed after
the 5 year period the writ of execution issued will still Extrajudicial foreclosure- Act 3135
be valid.
Judicial foreclosure- Rule 68 of the Rules of Court
REPUBLIC V. CA
In this case the property was sold in public auction,
Under Section 6 of Rule 39 of the Revised Rules of without the sheriff levying on the property hat is the
Court, a judgment may be executed on motion within reason why the plaintiff claims that the auction is
five (5) years from the date of its entry or from the void, because according to the plaintiff, before you
date it became final and executory and, thereafter, can sell it in a public auction you have to levy it first.
and before it is barred by the statute of limitations, it
may be enforced by an independent civil action. The The plaintiff is wrong because Act 3135 sales applies
prescriptive period for the enforcement of a on extrajudicial foreclosure, not the Rules of Court.
judgment by ordinary action is 10 years computed
from the time the judgment became final. In the NOTICE OF LEVY IS NOT A PREREQUISITE FOR
instant case, it is settled that the judgment sought to EXTRAJUDICIAL SALES.
be executed became final and executory on August
27, 1968. On November 20, 1968, the record of the PCIB V. CA
case was remanded to the trial court. On April 15,
1969, petitioner Republic of the Philippines filed a

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Writ of garnishment does not violate the bank secrecy case. All that is necessary for the trial court to lawfully
law simply because this is part of the execution land bind the person of the garnishee or any person who
process. The purpose is not to determine whether has in his possession credits belonging to the
there is an account in that bank belonging to the judgment debtor is service upon him of the writ of
judgment debtor but rather making sure the garnishment.
judgment debt be satisfied. Page | 181
YAU V. SILVERIO
NUDO V. CAGUIA
5 years from the entry of judgment- life of a writ of
Complaint for partition is a real action. execution.

The defendant husband died while the case was GR: A judgment may only be implemented within 5
pending and notwithstanding the debt, there was no years from entry of judgment and the reason for this
order of substitution of parties. The widow continued is that the court will not rule in favour of the judgment
participating and in fact, filed an appeal. The oblige who sleeps on his right.
judgment became final and executor. The widow died
when the judgment became final and executory. However, if the judgment has not been executed by
way of motion and the reason for the non-execution
Q: Can a writ of execution in this case be executed is attributable solely to the delaying tactics of the
against the heirs when the widow died after the judgment obligor, that period of time which
judgment has attained finality? constitute the delay should not be taken against the
judgment oblige. It should be deducted and therefore
A: YES. Sec. 7, Rule 39. the judgment can be executed even by way of motion.

Q: A filed a complaint against B for collection of sum CAMPIT V. GRIPA

of money. Judgment was rendered. When B opened
the judgment, she suffered a heart attack and died A matter adjudged with finality by a competent court
while reading it. No appeal was made. Can A file a having jurisdiction over the parties and the subject
motion for execution? matter already constitutes res judicata in another
action involving the same cause of action, parties and
A: NO. A should file the judgment as a claim in the subject matter. The doctrine of res judicata provides
probate court. The court can no longer issue a writ of that final judgment on the merits rendered by a court
execution. Only the probate court has jurisdiction in of competent jurisdiction, is involving the same claim,
the estate. It will not be litigated because it is a final demand, or cause of action. Thus, the validity of
judgment. petitioner’s title, having been settled with finality in
Civil Case No. 15357, could no longer reviewed in the
Q: B read it, filed a motion for execution and a notice present case.
of levy was subsequently made to the property. When
B saw the notice, she suffered a heart attack and died. QUICHO V. REYES
Can public auction ensue?
Under Section 2 of Rule 39, the sheriff shall demand
A: YES. The property has already been carved out so from the judgment obligor the immediate payment in
the public auction can proceed. cash, certified bank check or any other mode of
payment acceptable to the judgment obligee. If the
PERLA COMPANIA V. RAMOLETE judgment obligor cannot pay these methods
immediately or at once, he can exercise his option to
In order that the trial court may validly acquire choose which of his property can be levied upon. If he
jurisdiction to bind the person of the garnishee, it is does not exercise this option immediately or when he
not necessary that summons be served upon him. The is absent or cannot be located, he waives such right,
garnishee need not be impleaded as a party to the

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 and the sheriff can now first levy his personal
properties, if any, and then the real properties if the But shall belong to the Judgment Obligor until the
personal properties are insufficient to answer for the expiration of his period of redemption.
judgment.
RULE 39, SECTION 33
SIA V. ARCENAS
Page | 182
Judgment obligor shall have the entire period of one
It is well- settled that orders pertaining to execution year from the date of registration of the sale to
must substantially conform to the dispositive portion redeem the property.
of the decision sought to be executed. As such, it may
not vaary, or go beyond, the terms of the judgment it EFFECT IF NO REDEMPTION IS MADE
seeks to enforce. Where the execution is not in
harmony with the judgment which gives it life and
exceeds it, it has no validity. 1. If no redemption is made within one (1) year
from the date of the registration of the
RULE 39, SECTION 31 certificate of sale, the purchaser is entitled to a
conveyance and possession of the property;
MANNER OF USING PREMISES PENDING 2. Or if so redeemed whenever sixty (60) days have
REDEMPTION; WASTE RESTRAINED elapsed and no other redemption has been
made, and notice thereof given, the last
The court may restrain the commission of waste on redemptioner is entitled to the conveyance and
possession of the property
the property by injunction (Rule 58) on the
application of:
The purchaser’s rights retroact to the date of levy

Upon the expiration of the right of redemption, the

1. Judgment obligee; or
purchaser or redemptioner shall be substituted to
2. Highest bidder
and acquire all the rights, title, interest and claim of
THE FOLLOWING ACTS ARE NOT CONSIDERED the judgment obligor to the property as of the time of
WASTE the levy
Documents which the Sheriff executes in case of Real
property:
1. To continue to use it in the same manner in
which it was previously used;
2. To use it in the ordinary course of husbandry; 1. Certificate of Sale
or 2. Deed of Conveyance
3. To make the necessary repairs to buildings • It is executed if after one year there
while he occupies the property is no redemption made
• It operates to transfer to the
RULE 39, SECTION 32 purchaser whatever rights the
judgment debtor had in the
Purchaser or Redemptioner shall not be entitled to property
the following when the property is in the possession
RULE 39, SECTION 34
of a tenant:

The purchaser may recover the purchase price when:

1. Rents;
2. Earnings;
3. Income; or 1. He (or his successors in interest) fails to
4. Value of the use and occupation recover the possession of the property;

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 2. He is evicted due to REMEDY WHEN THE JUDGMENT IS UNSATISFIED
• Irregularities in the proceedings
concerning the sale; The judgment obligee is entitled to an order from the
• Judgment has been reversed or set court which rendered the judgment, requiring the
aside; judgment obligor to appear and be examined
• Property sold was exempt from concerning his property and income before the court Page | 183
execution; or or a commissioner appointed by the court.
• Third person has vindicated his
claim to the property
Limitation: The judgment obligor cannot be required
The purchaser may file a motion in the same action,
to appear before a court or commissioner outside the
or in a separate action to recover from the judgment
province or city in which such obligor resides or is
obligee the price paid, or file a motion for the revival
found.
of judgment.
RULE 39, SECTION 37
DIFFERENCE BETWEEN REVIVAL OF JUDGMENT IN
SECTION 6 AND IN SECTION 34, RULE 39
REMEDY WHEN THE JUDGMENT IS UNSATISFIED

SECTION 6 SECTION 34
A person, corporation, or other juridical entity,
An independent civil It is commenced by filing a
indebted to the judgment debtor may be required to
action commenced motion before the court
appear before the court or a commissioner appointed
by filing a complaint which rendered the
by it, at a time and place within the province or city
for revival of judgment sought to be
where such debtor resides or is found, and be
judgment revived
examined concerning the same.
The judgment
creditor, his
NOTE: The service of the order shall bind all credits
assignee, or his The highest bidder may
due to the judgment obligor and all money and
successors-in- avail of this remedy
property of the judgment obligor in their possession
interest may avail of
this remedy RULE 39, SECTION 38
The purpose is for the
The purpose is to
highest bidder to recover ENFORCEMENT OF ATTENDANCE AND CONDUCT OF
revive a dormant
from the judgment debtor EXAMINATION
judgment for it to be
because he was not able
again executed by
to acquire the property he A party or other person may be compelled, by an
mere motion
purchased order or subpoena to attend before the court or
commissioner to testify as provided in Secs. 36 and 37
RULE 39, SECTION 35
NOTE: Failure to obey may be punished for:
RIGHT TO CONTRIBUTION OR REIMBURSEMENT contempt.

RULE 39, SECTION 39

1. He may compel contribution from the others if
more than his due portion of the judgment is OBLIGOR MAY PAY EXECUTION AGAINST OBLIGEE
satisfied
2. If the Surety pays the amount of judgment or
After a writ of execution against property has been
any part thereof, he may compel repayment
from the principal issued, a person indebted to the judgment obligor
may:
RULE 39, SECTION 36

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 1. Pay to the sheriff holding the writ of 1. If it appears that the judgment obligor has an
execution the amount of his debt or so much interest in real estate in the place in which
thereof as may be necessary to satisfy the proceedings are had, as mortgagor or
judgment; mortgagee or otherwise, and his interest therein
2. The manner of payment as prescribed in can be ascertained without controversy the
Section 9 herein be followed. receiver may be ordered to sell and convey such
Page | 184 real estate or the interest of the obligor therein;
The sheriff’s receipt shall be sufficient discharge for 2. The proceedings thereon shall be approved by
the amount so paid or directed to be credited by the the court before the execution of the deed.
judgment obligee on the execution.
Example: A, the judgment debtor has no property,
RULE 39, SECTION 40 however, when asked by the court, A has a property
belonging to X mortgaged in his favor. In this case, the
ORDER FOR APPLICATION OF PROPERTY AND mortgage is A’s property right which the court can
INCOME TO SATISFACTION OF JUDGMENT order its sale to satisfy the judgment against A.

RULE 39, SECTION 43

1. If the court finds property of the judgment
debtor or money due him, NOT exempt from PROCEEDINGS WHEN INDEBTEDNESS DENIED OR
execution, either in his own hands or that of any ANOTHER PERSON CLAIMS THE PROPERTY
person, the court may order the property
applied to the satisfaction of the judgment; The judgment creditor NEEDS to ask the court to
2. If the court finds the earnings of the judgment institute an action against the debtor of judgment
obligor for his personal services are more than debtor, who denies to give the debt.
necessary for the support of his family, the court
may order that he pay the judgment in fixed Q: Why do the judgment creditor needs to ask the
monthly installments. Note: failure to pay such
court to allow him to institute an action against the
installments without good excuse, may be
debtor of the judgment debtor, who denies to give
punished by indirect contempt
the debt?
RULE 39, SECTION 41
APPOINTMENT OF RECEIVER A: No privity between the judgment creditor and the
debtor of the judgment debtor. If there is no court
Purpose of receiver: to make sure that the property authority, the judgment creditor has no cause of
of the judgment debtor will not be put to waste. action which would result to the dismissal of the
complaint. The purpose is to determine whether
Example: Judgment creditor levied the property of there is debt that exists in favor of the judgment
judgment debtor. The latter, knowing that the debtor and his debtor. Note: Docket fees should be
property was levied made it as a “bahay aliwan” or shouldered by the judgment creditor. BUT if he wins,
property was used for indecent activities. he can recover such through prayer.

In this case judgment creditor could ask the court to Q: What if even upon determination that a debt
appoint a receiver to enjoin the judgment creditor exists, the judgment debtor’s debtor refuses to hand
from using the property to waste. the property?

RULE 39, SECTION 42 A: He could be cited in indirect contempt.

SALE OF ASCERTAINABLE INTEREST OF JUDGMENT NOTE: When exercising the remedies under Rules 36
OBLIGOR IN REAL ESTATE to 43 (Remedies of judgment creditor in aid of
execution) It needs to be done within the 5 year

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period. Why? Because the judgment may only be WHAT IF THE JUDGMENT WAS SATISFIED OTHER
executed by way of motion within 5 years from the THAN BY EXECUTION?
date of entry.
Whenever a judgment is satisfied in fact, or
RULE 39, SECTION 44 otherwise than upon an execution, on
demand of the judgment obligor, the judgment Page | 185
SATISFACTION OF JUDGMENT obligee or his counsel must execute and
acknowledge, or indorse, an admission of the
Satisfaction of judgment means compliance with satisfaction as provided in the last preceding
the fulfillment of the mandate of the decision. section.

WHO MAY COMPEL SATISFACTION OF WHAT IF THE JUDGMENT OBLIGEE REFUSES TO

JUDGMENT? EXECUTE AN ADMISSION OF THE SATISFACTION?

1. Judgment creditor – by means of execution After notice and upon motion, the court may order:
2. Judgment debtor – by means of voluntary
payment 1. Either the judgment obligee or his counsel
to do so, or
EFFECT OF SATISFACTION OF JUDGMENT 2. The entry of satisfaction to be made
without such admission.
When the judgment debtor satisfies the judgment,
he/she is estopped from questioning the validity of RULE 39, SECTION 46
the judgment. In effect, by satisfying the judgment,
whether partially or fully, he/she has already WHEN PRINCIPAL BOUND BY JUDGMENT AGAINST
recognized the propriety of the judgment and SURETY
therefore he/she can no longer appeal the said
judgment. When a judgment is rendered against a party who
stands as surety for another, the latter is also bound
WHEN CAN THE COURT ENTER SATISFACTION OF from the time that he has notice of the action or
JUDGMENT? proceeding, and an opportunity at the surety's
request to join in the defense.
Satisfaction of a judgment shall be entered by the
clerk of court in the court docket, and in the RULE 39, SECTION 47
execution book:
EFFECT OF JUDGMENTS OR FINAL ORDERS
1. upon the return of a writ of execution showing
the full satisfaction of the judgment, or The effect of a judgment or final order rendered by
2. upon the filing of an admission to the a court or of the Philippines, having jurisdiction to
satisfaction of the judgment executed and pronounce the judgment or final order, may be as
acknowledged in the same manner as a follows:
conveyance of real property by the judgment
obligee or by his counsel unless a a. In case of a judgment or final order
revocation of his authority is filed, or against a specific thing, or in respect
3. upon the endorsement of such admission by to the probate of a will, or the
the judgment obligee or his counsel on the administration of the estate of a
face of the record of the judgment. deceased person, or in respect to
the personal, political, or legal
RULE 39, SECTION 45 condition or status of a particular
person or his relationship to
another, the judgment or final

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 order is conclusive upon the title to permitted to litigate the same issue more than once.
the thing, the will or administration, Hence, when a right or fact has been judicially tried
or the condition, status or and established by a court of competent jurisdiction,
relationship of the person; or an opportunity for such trial has been given, the
however, the probate of a will or judgment of the court - - so long as it remains
granting of letters of administratio unreversed - - is conclusive upon the parties and
Page | 186 n shall only be prima
those in privity with them in law or estate.
facie evidence of the death of the
testator or intestate;
b. In other cases, the judgment or final TWO CONCEPTS OF RES JUDICATA
order is, with respect to the matter
directly adjudged or as to any other The principle of res judicata embraces two concepts,
matter that could have been raised namely:
in relation thereto, conclusive
between the parties and their I. Bar by Prior Judgment (Rule 39, Section
successors in interest by title 47[b]) - The judgment or final order is a bar
subsequent to the to the prosecution of a subsequent action
commencement of the action or based on the same claim or cause of action.
special proceeding, litigating for the
same thing and under the same title Requisites of Res Judicata in the concept of “bar
and in the same capacity; and by prior judgment”:
c. In any other litigation between the
same parties or their successors in (1) The former judgment or order must be final.
interest, that only is deemed to
have been adjudged in a former
Res judicata cannot be availed of in an
judgment or final order which
interlocutory order even if this order is not
appears upon its face to have been
so adjudged, or which was actually appealed.
and necessarily included therein or
necessary thereto. (2) The judgment or order must be on the merits.

THE DOCTRINE OF RES JUDICATA A judgment is “on the merits” when it

amounts to a legal declaration of the
Res judicata literally means a matter adjudged; a respective rights and duties of the parties,
thing judicially acted upon or decided; a thing or based upon the disclosed facts. “Merits”
matter settled by judgment. Res judicata lays the rule has been as a matter of substance in law, as
that an existing final judgment or decree rendered on distinguished from a matter of form refers
the merits, and without fraud or collusion, by a court to the real or substantial grounds of action
of competent jurisdiction, upon any matter within its or defense, as contrasted with some
jurisdiction, is conclusive of the rights of the parties or technical or collateral matter raised in the
their privies, in all other actions or suits in the same course of the suit. There could be a
or any other judicial tribunal of concurrent judgment on the merits even if there is no
jurisdiction on the points and matters in issue in the trial.
first suit. (Oropeza Marketing Corporation vs. Allied
Banking Corporation, G.R. No. 129788, December 3, What appears to be essential to a judgment
2002) on the merits is that it be a reasoned
decision, which clearly states the facts and
The rationale for the rule is that “public policy the law on which it is based.
requires that controversies must be settled with
finality at a given point in time.” Res judicata is
founded on the principle that parties ought not to be

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 (3) The decision must have been rendered by a converse is not true, for different causes
court having jurisdiction over the subject matter of action may exist regarding the same
and the parties. subject matter, in which case, the
applicable aspect of res judicata is
If the court did not acquire jurisdiction over "conclusiveness of judgment." In other
the subject matter and the parties, the words, the conclusiveness of judgment Page | 187
judgment is void and cannot be invoked as shall be only with regard to the questions
res judicata. directly and actually put in issue and
decided in the first case.
(4) There must be, between the first and the
second action, identity of parties, of subject
matter and of causes of action c. Identity of Cause of Action

a. Identity of Parties There is identity of causes of action when

the two actions are based on the same
There is identity of parties when: delict or wrong committed by the
defendant even if the remedies are
i. the parties on both cases are similar different.
ii. the actions are between those in privity with
them (e.g. between their successors in interest) The test to determine the identity of
iii. there is substantial identity even if there are causes of action is to consider whether
additional parties. the same evidence would sustain both
causes of action.
The application of the doctrine of res
judicata does not require absolute
identity of parties but merely substantial II. Conclusiveness of Judgment (Rule 39, Section
identity of parties. There is substantial 47 [c]) - The judgment or final order precludes
identity of parties when there is the re-litigation of particular issues or facts on
community of interest or privity of a different demand or cause of action.
interest between a party in the first and a
party in the second case even if the first Requisites of Res Judicata by conclusiveness of
case did not implead the latter. judgment:

The rule is that a party may not evade the (1) The judgment sought to bar the new action
application of res judicata by simply must be final.
including additional parties in subsequent (2) The decision must have been rendered by a
litigation or by excluding parties in the court having jurisdiction over the subject matter
latter case certain parties in the previous and the parties.
suit. (3) The disposition of the case must be a
judgment on the merits.
b. Identity of Subject Matter (e.g. the (4) There must be, between the first and the
actions involve the same contract or second action, identity of parties and of subject
land) matter.

With respect to identity of subject matter, NOTE: There is no identity of causes of action in
this is included in identity of causes of res judicata by conclusiveness of judgment.
action. When there is identity of the cause
or causes of action, there is necessarily Res Judicata by Bar by Former Judgment vs. Res
identity of subject matter. But the Judicata by Conclusiveness of Judgment

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 a. In case of a judgment or final order
BAR BY FORMER CONCLUSIVENESS OF upon a specific thing - the judgment or
JUDGMENT JUDGMENT final order is conclusive upon the title
There is identity There is identity of: to the thing; and
b. In case of a judgment or final order
of: 1. Parties
against a person - the judgment or
Page | 188 1. Parties 2. Subject
final order is presumptive
2. Subject Matter/Issues
evidence of a right as between the
matter
parties and their successors in interest
3. Causes of
by a subsequent title.
action
The first The first judgment is
FOREIGN JUDGMENT IN AN ACTION IN REM VS.
judgment conclusive only as to
FOREIGN JUDGMENT IN AN ACTION IN PERSONAM
constitutes an matters directly adjudged
absolute bar to all and actually litigated in
Section 48 of Rule 39 provides that there is an evident
matters directly the first action. The
distinction between a foreign judgment in an action in
adjudged and second action can be
rem (paragraph a) and one in personam (paragraph.
those that might prosecuted.
b). For an action in rem, the foreign judgment is
have been
deemed conclusive upon the title to the thing, while
adjudged.
in an action in personam, the foreign judgment is
It has the effect of It has the effect of
presumptive, and not conclusive, of a right as
preclusion of preclusion only of issues.
between the parties and their successors in interest
claims.
by a subsequent title.

Application of Res Judicata to Quasi-Judicial AN ACTION MUST BE FILED IN ORDER TO ENFORCE A

Proceedings FOREIGN JUDGMENT

It has been held that the rule of res judicata which

The judgment of foreign tribunal cannot be enforced
forbids the reopening of a matter once judicially
by execution in the Philippines. Such judgment only
determined by competent authority applies as well to
creates a right of action and its non-satisfaction, a
the judicial and quasi-judicial acts of public, executive
cause of action, and it is necessary that a suit be
or administrative officers and boards acting within
brought upon said foreign judgment in our local
their jurisdiction as to the judgments of courts having
courts (BPI Securities Corp. vs. Guevarra, G. R. No.
general judicial powers.
167052, March 11, 2015)

NO RES JUDICATA IN CRIMINAL PROCEEDINGS

It is necessary for an action to be filed in order to
enforce a foreign judgment, even if such judgment
Res judicata is a doctrine of civil law and, thus, has no
has conclusive effect as in the case of in rem actions,
bearing on criminal proceedings.
if only for the purpose of allowing the losing party an
opportunity to challenge the foreign judgment, and in
RULE 39, SECTION 48 order for the court to properly determine its efficacy.

EFFECT OF FOREIGN JUDGMENTS OR FINAL

NOTE: The suit upon the foreign judgment is
ORDERS
considered as one incapable of pecuniary estimation
and therefore it must be filed in the RTC.
The effect of a judgment or final order of a
tribunal of a foreign country, having jurisdiction to
PETITION FOR RECOGNITION OF FOREIGN
render the judgment or final order is as follows: JUDGMENT

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A petition for recognition of foreign judgment is a divorce as a fact and demonstrate its conformity to
special proceeding, which "seeks to establish a status, the foreign law allowing it. Presentation solely of the
a right or a particular fact," and not a civil action divorce decree is insufficient.
which is "for the enforcement or protection of a right,
or the prevention or redress of a wrong." (Fujiki vs. Under Sections 24 and 25 of Rule 132, a writing or
Marinay, G.R. No. 196049, June 26, 2013) document may be proven as a public or official record Page | 189
of a foreign country by either (1) an official
Presumption of Validity of a Foreign Judgment publication or (2) a copy thereof attested by the
officer having legal custody of the document. If the
A foreign judgment is presumed to be valid and record is not kept in the Philippines, such copy must
binding in the country from which it comes, until the be (a) accompanied by a certificate issued by the
contrary is shown. It is also proper to presume the proper diplomatic or consular officer in the Philippine
regularity of the proceedings and the giving of due foreign service stationed in the foreign country in
notice therein. The party attacking a foreign judgment which the record is kept and (b) authenticated by the
has the burden of overcoming the presumption of its seal of his office (Garcia vs. Recio, G.R. No. 138322,
validity (Northwest Orient Airlines vs. CA, G.R. No. October 2, 2001).
112573, February 9, 1995).
REQUISITE FOR A FOREIGN JUDGMENT TO BE GIVEN
ACTIONABLE ISSUES THE EFFECT OF RES JUDICATA

A foreign judgment or final order may be repelled As a general rule, divorce decrees obtained by
by evidence of a: foreigners in other countries are recognizable in our
1. want of jurisdiction, jurisdiction, but the legal effects thereof – such as on
2. want of notice to the party, custody, care and support of the children – must still
3. collusion, be determined by our courts. Before our courts can
4. fraud, or give the effect of res judicata to a foreign judgment,
5. clear mistake of law or fact. it must be shown that the parties opposed to the
judgment had been given ample opportunity to do so
The actionable issues are generally restricted to a on grounds allowed under Rule 39, Section 48 of the
review of jurisdiction of the foreign court, the service Rules of Court (Roehr vs. Rodriguez, G. R. No. 142820,
of personal notice, collusion, fraud, or mistake of fact June 20, 2003).
or law. The limitations on review is in consonance
with a strong and pervasive policy in all legal systems
to limit repetitive litigation on claims and RULES 40-45: APPEAL
issues. Otherwise known as the policy of preclusion, it
seeks to protect party expectations resulting from
It is the elevation by an aggrieved party of any
previous litigation, to safeguard against the
decision, order or award of a lower body to a higher
harassment of defendants, to insure that the task of
body, by means of a document which includes the
courts not be increased by never-ending litigation of
assignment of errors, memorandum of arguments in
the same disputes. If every judgment of a foreign support thereof, and the reliefs prayed for.
court were reviewable on the merits, the plaintiff (Technogas Philippines Manufacturing Corporation v.
would be forced back on his/her original cause of
Clave, 08635-SP, May 31, 1979)
action, rendering immaterial the previously
concluded litigation.
APPEAL V. RULE 65
RECOGNITION OF A FOREIGN DIVORCE DECREE
Appeal is a continuation of the proceedings or the
Before a foreign divorce decree can be recognized by judgment below.
our courts, the party pleading it must prove the

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 GR: The first appeal is a matter of right.
Rule 65 is an original special civil action, which Appeals from decisions of the MTC (Rule 40)
means that it is a case separate from the one below. or RTC (Rule 41) rendered in the exercise of
The two cases – Rule 65 and the case with the lower original jurisdiction should be granted as a
court – runs parallel with each other. matter of a right if filed within the
reglementary period.
Page | 190
APPEAL AS A STATUTORY PRIVILEGE
Exception: In civil cases, first appeal is not a
It is not a constitutional or a natural right. (Canton v. matter of right if filed with the SC. Review of
City of Cebu, G.R. No. 152898, February 12, 2007) decisions by the SC is not a matter of right
but of sound judicial discretion, and will only
be granted only where there are special and
The right to appeal is not part of due process but a important reasons thereof. (Rule 45, Sec. 6)
mere statutory privilege that has to be exercised only
in the manner and in accordance with the provisions
of law. (Stolt-Nielsen v. NLRC, G.R. No. 147623, 2. In criminal cases
December 13, 2005) When the RTC imposes death penalty, the
CA shall automatically review the judgment.
MANDATORY AND JURISDICTIONAL (Rule 122, Sec. 3, par. d) If the CA finds that
death penalty should be imposed, the CA
Perfection of an appeal in the manner and within the shall not render judgment but certify and
period permitted by law is mandatory and elevate the case to the Supreme Court for
jurisdictional. The requirements for perfecting an review. (Rule 124, Sec. 13, par. a)
appeal must, as a rule, be strictly followed. Such
requirements are considered indispensable
interdictions against needless delays and are NOTE: Only final judgments or orders can be appealed
necessary for the orderly discharge of the judicial as distinguished from interlocutory judgments or
business. Failure to perfect the appeal renders the orders which are not appealable. (Rule 41, Sec.1)
judgment of the court final and executory. Just as a
losing party has the privilege to file an appeal within BASIC GUIDELINES REGARDING APPEAL
the prescribed period, so does the winner also have
the correlative right to enjoy the finality of the
decision. (McBurnie v. Ganzon, G.R. No. 178034 & 1. GR: No trial de novo (starting from the
178117, September 18, 2009) beginning) shall be made. The appellate
courts must decide the case on the basis of
the records.
THREE MODES OF APPEAL: XPNs:
a. When the proceedings were not
duly recorded as when there was
absence of a qualified stenographer
1. Ordinary Appeal (Rule 40 and 41)
[Sec. 22(d), BP 129; Rule 21(d),
a. Notice of appeal
Interim Rules];
b. Record on appeal
b. Instances when the CA may act as a
2. Petition for Review (Rule 42)
trial court.
3. Appeal by Certiorari (Rule 45)
2. No new parties;
3. No change of theory (Naval v. CA, G.R. No.
APPEAL IS A MATTER OF RIGHT 167412, February 22, 2006)
4. No new matters (Ondap v. Aubga, G.R. No. L-
1. In civil cases 24392, February 28, 1979);

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 5. The amendment of pleadings is allowed to 7. It is necessary to determine whether or not
conform to the evidence submitted before there is sufficient justification for the award
the trial court (Dayao v. Shel, G.R. N. L- of damages (Sps. Romulo v. Sps. Layug, G.R.
32475, April 30, 1980); No. 151217, September 8, 2006); and
6. The liability of solidarity defendant who did 8. It is necessary in arriving at a just decision of
not appeal is not affected by appeal of the case. (Dumo v. Espinas, G.R. No. 141962,
solidarity debtor (Mun. of Orion v. Concha, January 25, 2006) Page | 191
G.R. No. 26671, September 17, 1927);
7. Appeal by guarantor does not inure to the BASIS OF THE COURT’S POWER TO RULE ON ISSUES
principal (Luzon Metal v. Manila NOT RAISED ON APPEAL
Underwriter, G.R. No. L-27863, August 29,
1969); The court is imbued with sufficient authority and
8. In ejectment cases, the RTC cannot award to discretion to review matters, not otherwise assigned
the appellant on his counterclaim more
as errors on appeal, as it finds that the consideration
than the amount of damages beyond the
is necessary in arriving at a complete and just
jurisdiction of the MTC (Agustin v. Bataclan,
135 SCRA 342); resolution of the case or to serve the interest of
9. The appellate court cannot dismiss the justice or to avoid dispensing piecemeal justice.
appealed case for failure to prosecute (Asian Terminals, Inc. v. NLRC, 541 SCRA 105)
because the case must be decided on the
basis of the record. (Rule 21, Interim Rules)

Note: Appeal is a speedy remedy, as an adverse party

can file its appeal from a final decision or order
immediately after receiving it. A party, who is alleging
that an appeal will not promptly relieve it of the
injurious effects of the judgment, should establish
facts to show how the appeal is not speedy or
adequate. (V.C Ponce Company Inc. v. Municipality of
Paranaque, G.R. No. 178431, November 12, 2012)

ISSUES TO BE RAISED ON APPEAL

GR: The appellate court shall consider no error unless

stated in the assignment of errors. (Sec. 8, Rule 51)

XPNs: The court may consider an error not raised on

appeal if:
1. It affects the jurisdiction over the subject
matter;
2. It affects the validity of the judgment
appealed from;
3. It affects the proceedings;
4. It is closely related to or dependent on an
assigned error and properly argued in the
brief;
5. It is a plain and clerical error;
6. It deals with the lack of jurisdiction of the
trial court (Dy v. NLRC, G.R. No.L-68544,
October 27, 1986)

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 OUTLINE OF MODES OF APPEAL
Docket and
Court being other lawful
Issue that
Mode of reviewed fees and P500
Rule may be
Appeal 🡪 Appellate deposit for costs
raised
Court shall be paid to
Page | 192 R40 Notice of MTC -Questions the clerk of
appeal/ Record 🡪 of law; or court of the CA.
Appeal on appeal filed RTC -Questions (Rule 42, Sec. 1)
from with the court of fact; or Rule 43 Verified Petition Quasi-judicial -Questions
MTC to of origin (MTC). -Both for Review filed agency of law;
RTC Appeals with the CA with exercising -Questions
Copies of the (Rule 41, from a Certificate of quasi-judicial of fact; or
notice of appeal Sec. 6) Quasi- Non-Forum functions -Both
and record shall Judicial Shopping. enumerated
be served upon Agencies therein, except (Rule 43,
the appellee. to CA Copies shall be judgments or Sec. 3)
served on the final orders
Docket fees RTC and the issued under Note:
shall be paid to appellee. the Labor Code, Unlike in
the clerk of CSC, the other
court of the Docket and Ombudsman modes of
MTC. (Rule 40, other lawful (administrative/ appeal, an
Sec 5) fees and P500 disciplinary appeal
R41 Notice of RTC (exercising -Questions deposit for costs cases) under the
appeal/ Record original of fact; or shall be paid to 🡪 Rule shall
Appeal on appeal filed jurisdiction) 🡪 -Questions the clerk of CA not stay
from RTC with the court CA of law and court of the CA. the award,
of origin (RTC). fact. (Rule 43, Sec. 5) judgment,
final order
Copies of the (Rule 41, or
notice of appeal Sec. 6 and resolution
and record shall Rule 44 unless the
be served upon Sec. 14 (e) CA directs
the appellee. otherwise.
Note: (Rule 43,
Docket fees Otherwise, Sec. 12)
shall be paid to if the Rule 45 Verified Petition RTC (exercising -Questions
the clerk of appeal for Review on original of law
court of the would Appeal Certiorari filed jurisdiction) 🡪 only.
RTC. (Rule 41, raise only by with the SC with CA,
Sec. 4) questions Certiorari a Certificate of Sandiganbayan, (Rule 45,
of law, it to SC Non-Forum Court of Tax Sec. 1)
should be Shopping. Appeals (en
directly banc) Except if
filed with Copies shall be 􏰃 the
the SC. served on the SC petition
R42 Verified Petition MTC -Questions lower court for review
for Review filed 🡪 of law; or concerned and on
Petition with the CA, RTC (exercising -Questions on the certiorari
for with a appellate of fact; or appellee. is from a
Review Certificate of jurisdiction) 🡪 -Both judgment
from RTC Non-Forum CA Docket and rendered
to CA Shopping. (Rule 42, other lawful in
Sec. 2) fees and P500 petitions
Copies shall be deposit for costs for writ of
served on the shall be paid to amparo,
RTC and the the clerk of habeas
appellee. court of the SC. data, or
(Rule 45, Sec. 3) kalikasan.

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 within 15 days lawful fees and the
Notice of appeal
from notice of deposit for costs
(in criminal
cases) where the award, before the expiration
the penalty judgment, final of the original 15 day
imposed is order or period, the SC may
death, reclusion
resolution, or for justifiable Page | 193
perpetua or life
imprisonment. from the date reasons grant an
(Rule 45, Sec. 9) of its extension of 30 days
publication or only within which to
the denial of file the petition.
OUTLINE OF REGLEMENTARY PERIODS WITHIN WHICH TO FILE
APPEALS AND THE EXTENSIONS ALLOWED the petitioner’s
MR or MNT.
Governing Period to Appeal Extension Allowed
Rule
Rule 40 Notice of appeal – Period to file notice of
and 41 within 15 days appeal is non-extendible.
from notice of
judgment or of the Reason: It is very simple to
denial of the prepare a notice of
appellant’s MR or appeal.
MNT.
Period to file a record on
When a record on appeal may be extended
appeal is required provided the motion for
– extension thereof is filed
within 30 days within the original 30 day
from notice of period.
judgment or of the
denial of the Reason: Preparation of
appellant’s MR or the record on appeal may
MNT. take time for it may
require compilation of
Habeas Corpus – voluminous records.
Notice of appeal is
filed within 48
hours from notice
of judgment or
denial or MR or
MNT.
Rule 42 Petition for review May be extended for 15
– days upon proper motion
within 15 days and the payment of the
from notice of the full amount of the
decision sought to docket and other lawful
be reviewed or of fees and deposit for costs
denial of before the expiration of
petitioner’s MR or the original 15 day period.
MNT.
No further extension shall
be granted, except for the
most compelling reasons
and in no case to exceed
15 days.
Rule 45 Petition for On motion duly filed
review on and served, with full
certiorari – payment of the
docket and other

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 Note: Neypes Doctrine is not applicable to the appeal of the judgment itself. It is only when such
administrative appeals, in as much as appeal from interlocutory order was rendered without or in excess
HLURB Board of Commissioners to the Office of the of jurisdiction or with grave abuse of discretion that
President. (San Lorenzo Builders, Inc. v. Baying, G.R. certiorari under Rule 65 may be resorted to. The
No. 194702, April 20, 2015) Order of the RTC ordering her to vacate the premises
is not a final determination of the case or of the issue
Page | 194
ORDINARY APPEAL of distribution of the shares of the heirs in the estate
or their rights therein. Such Order is interlocutory
It is an appeal by notice of appeal from a judgment and, therefore, not subject to an appeal. She
or final order of a lower court on questions of fact employed the wrong mode of appeal by filing a Notice
and law. (Rule 41, Sec. 2, par. (a) & Rule 44, Sec. 15, of Appeal with the RTC. Hence, for employing the
ROC) improper mode of appeal, the case should have been
dismissed. (Silverio, Jr. v. CA and Nelia Silverio-Dee,
Note: A question that was never raised in the court G.R. No. 178933, September 16, 2009)
below cannot be allowed to be raised for the first time
on appeal, without offending the basic rules of fair ORDINARY APPEAL V. PETITION FOR REVIEW
play, justice and due process. (Villanueva v. Spouses
Salvador, G.R. No. 139436, January 25, 2005) ORDINARY APPEAL PETITION FOR REVIEW
NOTE: The party appealing is called the appellant, Rules 40 and 41 Rule 42
and the adverse party is the appellee. AS TO TRANSFER OF RECORDS
All the records are No records are elevated
SUBJECT MATTER OF AN APPEAL elevated from the unless the court decrees
court of origin. it.
It is a final order or a final [Link] order AS TO WHERE FILED
means there is nothing left to be done by the court. Notice of appeal or Filed with the CA.
Unlike an interlocutory order, it means there is record on appeal is
something else to be done by the court. filed with the court of
origin.
Example: If there is a Motion to Dismiss (MTD), and AS TO APPLICABILITY
it is granted, the order is a final order. If MTD is The case was decided The case was decided by
denied, an answer must be filed, which means that it by the MTC/RTC the RTC pursuant to its
is an interlocutory order because there is something pursuant to its original appellate jurisdiction.
else left to be done by the court. jurisdiction.
AS TO COURT ACTION
Matter of right – Discretionary –
Q: An intestate proceeding for the settlement of
estate was filed by Silverio Sr. The RTC issued an Since it is a first appeal, Review of a decision
Omnibus Order ordering Nelia Dee to vacate the
the court has no through a petition for
premises of the property in Forbes Park, Makati City. discretion to deny the review is discretionary.
Nelia, instead of filing a Notice of Appeal and Record notice of appeal or The Court of Appeals
on Appeal, filed a motion for reconsideration of the record of appeal if it is may require the
Order. She appealed the order denying the motion filed within the respondent to file a
for reconsideration. Is the appeal proper? Reglementary period comment on the
and complies with the petition, not a motion to
A: NO. The appeal taken by Nelia is misplaced as no requirements set forth dismiss, within 10 days
appeal may be taken from the order denying the
in Rule 41, Sec. 5 and 6. from notice, or dismiss
motion for reconsideration. It is only after a judgment
In other words, an the petition if it finds the
has been rendered in the case that the ground for the appeal under these same to be patently
appeal of the interlocutory order may be included in

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 rules is a matter of without merit, Felomina Macadangdang v. Gaviola, G.R. No. 156809,
right. prosecuted manifestly March 4, 2009) Thus, when a complaint for unlawful
for delay, or that the detainer is appealed to the RTC a judgment affirming
The notice of appeal questions raised therein or setting aside the judgment of the MTC may be the
does not require the are too insubstantial to subject of a motion for reconsideration because the
approval of the court. require consideration. said motion is no longer a prohibited pleading before Page | 195
The function of the the RTC which follows the rule on ordinary civil
notice of appeal is procedure for appeals taken to it.
merely to notify the
trial court that the
appellant was availing WHEN TO APPEAL
of the right to appeal,
and not to seek the
court’s permission Section 2 of Rule 40 provides the following:
that he be allowed to 1. Within 15 days after notice of judgment or final
pose an appeal. order (non-extendible);
(Crisologo v. Daray, 2. Where a record on appeal is required, within 30
A.M. No. RTJ-07-2036, days from notice of judgment or final order by
August 20, 2008) filing a notice of appeal and a record on appeal
(extendible, provided the motion for extension is
filed within the Reglementary period of 30
days.(CIR v. CA, G.R. No. 110003, February 9,
WHERE TO APPEAL 2001)

Section 1 of Rule 40 provides that an appeal may be Note: The period of appeal shall be interrupted by a
taken to the RTC exercising jurisdiction over the area timely motion for new trial or reconsideration. (Rule
to which the MTC pertains. 40, Sec. 2)

SUBSTANTIVE BASIS: FRESH PERIOD RULE OR NEYPES RULE

Regional Trial Courts shall exercise appellate
jurisdiction over all cases decided by the following:
1. Metropolitan Trial Courts, Under the “Fresh Period Rule,” a party litigant may
2. Municipal Trial Courts, and either file his notice of appeal within 15 days from
3. Municipal Circuit Trial Courts in their
receipt of the RTC’s decision or file it within 15 days
respective territorial jurisdictions.
from receipt of the order denying his motion for new
trial or motion for reconsideration. (Neypes v. CA, G.R.
Such cases shall be decided on the basis of the entire
No. 141524, September 14, 2005) This is intended to
record of the proceedings had in the court of origin
make the appeal period uniform.
such memoranda and/or briefs as may be submitted
by the parties or required by the RTCs. The decision
of the RTCs in such cases shall be appealable by
Obviously, the new 15-day period may be availed of
petition for review to the Court of Appeals which
only if either motion (MR or MNT) is filed; otherwise,
may give it due course only when the petition shows
the decision becomes final and executory after the
prima facie that the lower court has committed an
lapse of the original appeal period.
error of fact or law that will warrant a reversal or
modification of the decision or judgment sought to
be reviewed. (BP Blg. 129, Sec. 22)
REASON AND BASIS OF THE FRESH PERIOD RULE
Note: The Rules on Summary Procedure no longer
Pursuant to its sole prerogative to amend procedural
applies when the case is on appeal. (Estate of

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 rules, the SC deems it necessary to change the afore-
stated rule in order to standardize the appeal The period of appeal may be extended under the
periods provided in the Rules of Court, to be counted sound discretion of the court. However, the mere
from receipt of the order denying the motion for filing of the motion for extension of time to perfect
new trial or motion for reconsideration (whether full the appeal does not suspend the running of the
Page | 196 or partial or any final order or resolution) and to reglementary period.
afford litigants fair opportunity to appeal their cases.
(Neypes v. CA, G.R. No. 141524, September 14, 2005) 1. If the extension of the period to appeal is
granted – the notice thereof is served after
the expiration of the period to appeal and
THE FRESH PERIOD SHALL APPLY TO: the extension must be computed from the
1. Rule 40 – Appeal from Municipal Trial Courts to date of notice;
Regional Trial Courts; 2. If no action is taken on the motion for
2. Rule 41 – Appeal from Regional Trial Courts; extension or if it is denied after the lapse of
3. Rule 42 – Petition for Review from the Regional the period to appeal – the right to appeal is
Trial Courts to the Court of Appeals; lost.
4. Rule 43 – Appeal from the Court of Tax Appeals
and Quasi-Judicial Agencies to the Court of HOW TO APPEAL
Appeals; and Section 3 of Rule 41 provides for the procedure to
5. Rule 45 – Appeal by Certiorari to the Supreme appeal.
Court.
A. By Notice of Appeal:
1. File a notice of appeal with the trial court
Note: No motion for extension of time to file a motion that rendered the judgment or final order
for new trial or reconsideration shall be allowed. But appealed from;
if the appeal requires the filing of a record on appeal, 2. The notice of appeal must indicate
a motion for extension to submit record on appeal is 1. Name of parties;
allowed. The motion for extension must be filed 2. Judgment or final order appealed
from;
within the 30 day period within which the record on
3. Material date showing timeliness of
appeal should be filed. (CIR v. CA, G.R. No. 11003,
appeal (Material Date Rule);
February 9, 2001) 3. A copy served on the adverse party; and

RETROACTIVE APPLICATION OF THE FRESH PERIOD NOTE: There is a need to tell the adverse
RULE party of such appeal for him to be informed
that judgment has not yet attained finality.
The fresh period rule may be applied retroactively to
cases where the period for appeal had lapsed prior 4. Payment in full of docket fees and other
to September 14, 2005 when Neypes was lawful fees.
promulgated. Procedural laws may be given
retroactive effect to actions pending and determined NOTE: Payment shall be in the court of
at the time of their passage, there being no vested origin. Within the period for taking an
rights in the rules of procedure. (Fil-Estate appeal, the appellant shall pay to the clerk of
Properties, Inc. v. Homena-Valencia, G.R. No. court which rendered the judgment or final
173942, June 25, 2008) order appealed from the full amount of the
appellate court docket and other lawful fees.

EXTENDING THE PERIOD OF APPEAL B. By Record on Appeal: (MEP-FD)

A record on appeal is required in the following cases:

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

1. In special proceedings and in other cases of permission that he be allowed to pose an appeal.
Multiple or separate appeals (ROC, Rule 40, Sec. (Crisologo v. Daroy, AM No. RTJ-07-2036, August 30,
3); 2006) It does not require the approval of the court.
2. In an order of Expropriation in eminent domain
proceedings (ROC, Rule 69, Sec. 2); The adverse party may only be apprised initially of the
3. In a judgment for recovery of property of pendency of an appeal by the notice of appeal. To Page | 197
Partition with accounting;
deprive him of such notice is tantamount to depriving
4. In a Foreclosure of mortgage (Roman Catholic
him of his right to be informed that the judgment in
Archbishop of Manila v. CA, G.R. No. 111324, July
5, 1996); and his favor is being challenged. This requirement should
5. In a judgment for or against one or more of be complied with so that he may be afforded the
several Defendants, leaving the action to opportunity to register his opposition to the notice of
proceed against the others (ROC, Rule 36, Sec. 4) appeal if he so desires. And service of the notice of
appeal upon him may not be dispensed with on the
RATIONALE FOR ALLOWING MULTIPLE APPEALS basis of the appellant's whims and caprices. (Casolita
v. CA, G.R. No. 115703, July 8, 1997)
It enables the rest of the case to proceed in the even
that a separate and distinct issue is resolved by the APPEAL BY RECORD ON APPEAL
court and held to be final. (Roman Catholic
Archbishop of Manila v. CA, G.R. No. 111324, July 5, Where a record on appeal is required, the appellant
1996; Rovira v. Heirs of Jose C. Deleste, G.R. No. shall file a notice of appeal and a record on appeal
160925, March 26, 2010) within 30 days after notice of the judgment or final
order denying his MR or MNT. (Sec. 2, Rule 40)
If multiple appeals, it means that while you are
appealing the final order or the subject matter, the NOTICE OF APPEAL V. RECORD ON APPEAL
entire records will not be brought up. The records will
retain with the lower court. But because there is an NOTICE OF APPEAL RECORD ON APPEAL
appeal, there is a need to reproduce the records, Normally, appeal is Required only in Special
which is why one is given a period of 30 days to file made by filing a Proceedings and other
and prepare the record on appeal. notice of appeal with cases of multiple or
the court which separate appeals.
Example: Eminent domain case. When a government rendered the
files an eminent domain case, the first part of the judgment or final However, even in cases
proceeding is a determination of the existence of just order appealed from where multiple appeals
cause, with an order of expropriation. It is a final and serving a copy are allowed, if all the
order as to the existence of just cause. But, it can be thereof upon the issues have already been
appealed in a second case for another issue. The adverse party. dispensed with by the trial
appeal of the 1st order – the order of expropriation, is court, filing a record on
without prejudice to the continuation of the finding appeal is no longer
of the court on the second issue. Hence, if it is necessary. (Marinduque
multiple appeals, one needs to make record on Mining and Industrial
appeals because the original case will remain with the Corporation v. CA, 567
original court. The Record on Appeal will be used by SCRA 483)
the appellate court. But, the Record on Appeal would Deemed perfected Deemed perfected as to
have to be approved by the court. as to him upon the him upon the approval of
filing of the notice of record on appeal. (Riano,
FUNCTION OF NOTICE OF APPEAL appeal. 2014)
Period of appeal is 15 Period of appeal is 30 days.
To notify the trial court that the appellant is availing days.
of the right to appeal, and not to seek the court’s

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 The court loses The court loses jurisdiction summary judgment was rendered. The MTC decision
jurisdiction over the only over the subject was appealed to the RTC, which was affirmed by
case upon: matter thereof upon Judge de la Rama in a memorandum decision.
Permskul faults the CA for sustaining the
(a) perfection of the (a) approval of the records memorandum decision of the RTC, which violates
appeal filed in due on appeal filed in due time Art. VIII, Sec. 14 of the Constitution. Is the
Page | 198
time and and incorporation by reference of the RTC’s
(b) expiration of the (b) expiration of the time memorandum to the decision of the MTC a valid act
time of the appeal of to appeal of the other that effectively elevated the case to the CA.
the other parties. parties.
A: YES. The distinctive features of the memorandum
PERFECTION OF APPEAL; EFFECT THEREOF decision are first, it is rendered by an appellate court,
and second, it incorporates by reference the findings
Perfection of an appeal as a jurisdictional of fact or the conclusions of law contained in the
requirement decision, order or ruling under review. The idea is to
avoid having to repeat in the body of the latter
GR: Perfection of appeal within the reglementary decision the findings or conclusions of the lower court
period is jurisdictional. since they are being approved or adopted anyway.
XPN: When there has been FAME, resort to Petition
for relief from judgment under Rule 38. (Habaluyas For the incorporation by reference to be allowed, it
v. Japson, G.R. No. 70895, May 30, 1986) must provide for direct access to the facts and the
law being adopted, which must be contained in a
Note: After an appeal to the RTC has been perfected, statement attached to the said
the MTC loses its jurisdiction over the case and any decision. Memorandum decision may be resorted
motion for the execution of the judgment should be to only in cases where the facts are in the main
filed with the RTC. accepted by both parties or easily determinable by
the judge and there are no doctrinal complications
EFFECT OF PERFECTED APPEAL involved that will require an extended discussion of
the laws involved. The memorandum decision may
Judgment is not vacated by appeal, but is merely be employed in simple litigations only. There was
stayed and may be affirmed, modified or reversed or substantial compliance with Section 40 of BP Blg.
findings of facts or conclusions of law may be 129 because of the direct availability and actual
adopted by reference. review of the decision of Judge Balita incorporated
by reference in the memorandum decision of Judge
de la Rama. (Francisco v. Permskul and CA, G.R. No.
The following are immediately executory: 81006, May 12, 1989)
1. Decisions of the RTC in civil cases governed
by the Rules of Summary Procedure; APPELLATE COURT DOCKET AND
2. Decisions in forcible entry and unlawful OTHER LAWFUL FEES
detainer cases; and
3. Decisions of quasi-judicial bodies appealed Within the period for taking an appeal, the appellant
to the CA under Rule 43, unless the CA shall pay to the clerk of court which rendered the
directs otherwise. judgment or final order appealed from the full
amount of the appellate court docket and other
Q: Permskul, who is the lessee of Francisco, vacated
lawful fees.
the property he had been leasing and requested for
the refund of his deposit. But Francsico rejected this
Payment of appellate court docket fees is
request because the lessee still owed him other
jurisdictional. Failure to do so is a ground for
charges. Permskyl sued in MTC of Makati, and a
dismissal of appeal. (Rule 50, Sec. 1, par. c)

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 Note: The memorandum is the counterpart
MANDATORY AND JURISDICTIONAL REQUIREMENT of the appellant’s brief in Rule 44.

Payment of the full amount of docket fees within the SUBMISSION OF APPELLANT’S MEMORANDUM
prescribed period is both mandatory and
jurisdictional. It is a condition sine qua non for the The requirement for the submission of appellant’s Page | 199
appeal to be perfected and only then can a court memorandum is a mandatory and compulsory rule.
acquire jurisdiction over the case. The requirement of Non-compliance therewith authorizes the dismissal
an appeal fee is not a mere technicality of law or of the appeal. (Mejillano v. Lucillo, G.R. No. 154717,
procedure and should not be undermined except for June 19, 2009)
the most persuasive of reasons.
The judgment being appealed is presumed to be
Non-observance would be tantamount to no appeal correct. Appellant’s memorandum is a vital part of
being filed thereby rendering the challenged decision, appeal because it points out the errors of the
resolution or order final and executory. (Julian v. DBP, judgement.
G.R. No. 174193, December 7, 2011)
Within 15 days from receipt of the appellant’s
However, failure to pay the appellate court docket fee memorandum, the appellee may file his
within the prescribed period warrants only memorandum. Upon the filing of the memorandum
discretionary as opposed to automatic dismissal of of the appellee, or the expiration of the period to do
the appeal and that the court shall exercise its power so, the case shall be considered submitted for
to dismiss in accordance with the tenets of justice and decision.
fair play and with great deal of circumspection
considering all attendant circumstances. (Julian v. DUTY –BOUND TO SUBMIT MEMORANDUM ON
DBP, G.R. No. 174193, December 7, 2011) APPEAL

DUTY OF THE CLERK OF COURT Rule 40, Section 7 (b) provides that, "it shall be the
duty of the appellant to submit a memorandum" and
Within 15 days from the perfection of the appeal, the failure to do so "shall be a ground for dismissal of the
clerk of court or the branch clerk of court of the lower appeal." Thus, under the express mandate of said
court shall transmit the original record or the record Rule, the appellant is duty-bound to submit his
on appeal, together with the transcripts and exhibits, memorandum on appeal. Such submission is not a
to the proper RTC. A copy of his letter of transmittal matter of discretion on his part. His failure to comply
of the records shall be furnished to the parties. with this mandate or to perform said duty will compel
the RTC to dismiss his appeal. (Enriquez v. CA, G.R.
PROCEDURE IN THE REGIONAL TRIAL COURT No. 140473, January 28, 2003)

1. Upon receipt of the complete record or In appeals from inferior courts to the RTC, the
record on appeal, the clerk of court of the appellant's brief is mandatory for the assignment of
RTC shall notify the parties of such fact; errors is vital to the decision of the appeal on the
2. Within 15 days from such notice, it shall be merits.
the duty of the appellant to submit a
memorandum which shall briefly discuss the GR: This is because on appeal only errors specifically
errors imputed to which shall briefly discuss
assigned and properly argued in the brief or
the errors imputed to the lower court, a copy
memorandum will be considered,
of which shall be furnished the adverse
party. XPN: Those affecting jurisdiction over the subject
matter as well as plain and clerical errors.

Otherwise stated, an appellate court has no power

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 to resolve an unassigned error, which does not affect If ground of dismissal is lack of jurisdiction
the court's jurisdiction over the subject matter, save over the subject matter and the RTC has
for a plain or clerical error.” (Enriquez v. CA, G.R. No. jurisdiction, it shall try the case on the
140473, January 28, 2003) merits as if the case was originally filed
therein; or
Page | 200 Basis of the Decision
NOTE: The RTC shall try the case on the
The RTC shall decide the case on the basis of the merits, without prejudice to admission of
entire record of proceedings had in the court of origin amended pleadings and additional evidence.
and such memoranda as are filed.
2. Reverse
Note: If the appellee does not file a memorandum, In which case, it shall remand the case for
the case shall be submitted for decision, but it does further proceedings.
not follow that he will lose the case.
Note: A dismissal on the ground of lack of
APPEAL FROM MTC TO RTC jurisdiction is a dismissal without prejudice.
(Rule 16, Sec. 5) A dismissal without
Appeal decision of MTC by filing notice of appeal prejudice is not appealable under Rule 41,
and pay docket fees within 15 days from receipt Sec. 1(h). Nevertheless, this section makes
of judgment. the MTC’s dismissal of the case on the
Copies of the notice, and record on appeal when ground of lack of jurisdiction appealable to
required, shall be served on the adverse party, the RTC. Since Rule 40, Sec. 9 provides that
The MTC clerk transmits record to the RTC within the provisions of Rule 41 shall apply to Rule
fifteen (15) days from perfection of appeal. 40 only if they are not inconsistent with the
The parties are given notice that the records have latter rule; Rule 40, Sec. 8 (Appeal from
been received by the RTC. orders dismissing case without trial) should
1. Within fifteen (15) days from notice of appeal - prevail over Rule 41, Sec. 1 (subject of
Appellant submits memorandum to the RTC. appeal).

2. Within 15 days from receipt of appellant’s In other words, this section (Sec. 8, Rule 40)
memorandum – operates as an exception to the rule that
Appellee files his memorandum. dismissals without prejudice are not
appealable.
Upon the filing of the appellee’s memorandum, or
the expiration of the period to do so, the case
shall be considered submitted for decision.
B. If the case was tried on the merits by the lower
court without jurisdiction over the subject matter:
If uncontested, the judgment is entered in the
book of entries.
The RTC shall not dismiss the case if it has original
Any party may appeal by filing a petition for
jurisdiction, but shall decide the case, and shall admit
review with the CA.
amended pleadings or additional evidence.

APPEAL FROM ORDERS DISMISSING CASE WITHOUT

Purpose: To avoid double payment of docket fees.
TRIAL; LACK OF JURISDICTION

A. If the lower court dismissed the case without

NOTE: No other procedural law principle is indeed
trial on the merits, the RTC may:
more settled than that once a judgment becomes
final, it is no longer subject to change, revision,
1. Affirm
amendment or reversal, except only for correction of

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

clerical errors, or the making of nunc pro tunc entries operates as an NOTE: No
which cause no prejudice to any party, or where the absolute bar substantial
judgment itself is void. The underlying reason for the against a distinction
rule is two-fold: (1) to avoid delay in the subsequent between an
administration of justice and thus make orderly the action for the appeal and a
discharge of judicial business, and (2) to put judicial same cause. A Petition for
substantial Certiorari Page | 201
controversies to an end, at the risk of occasional
identity is when it comes
errors, inasmuch as controversies cannot be allowed
necessary to to the
to drag on indefinitely and the rights and obligations warrant the application of
of every litigant must not hang in suspense for an application of the doctrine of
indefinite period of time. (Navarro v. MBTC, G.R. No. the rule. the law of the
165697, August 4, 2009) (Navarro v. case.
MBTC, G.R.
LAW OF THE CASE No. 165697,
August 4,
As a general rule, where the evidence on a second/ 2009)
succeeding appeal is substantially the same as that
on the first or preceding appeal, all matters or issues
adjudicated on prior appeal are the law of the case The doctrine is founded on the policy of ending
on all subsequent appeals and will not be anymore litigation. The doctrine is necessary to enable the
re-adjudicated. appellate court to perform its duties satisfactorily and
efficiently, which would be impossible if a question
In other words, decision on a prior appeal of the once considered and decided by it were to be litigated
same case is held to be the law of the case, whether anew in the same case upon any and every
that decision be right or wrong. Once a decision subsequent appeal. (BDO v. Transipek, G.R. No.
attains finality, it becomes the law of the case, 181235, July 22, 2009)
whether or not said decision is erroneous. Having
been rendered by a court of competent jurisdiction APPLICABILITY OF RULE 41
acting within its authority, the judgment may no
longer be altered even at the risk of legal infirmities The other provisions of Rule 41 shall apply to appeals
and errors it may contain. (BDO v. Transipek, G.R. provided for herein insofar as they are not
No. 181235, July 22, 2009) inconsistent with or may serve to supplement the
provision of this Rule. By virtue of this provision, the
LAW OF THE CASE V. RES JUDICATA inferior courts also exercise residual jurisdiction in
the same manner provided under Sec. 9 (5) of Rule
RES JUDICATA LAW OF THE 41.
CASE
As to the There are two In Law of the CONFLICT IN THE PROVISIONS OF RULE 40 AND 41
number of (2) cases filed Case, there is a
cases filed in separate matter
courts. It elevated on If the provisions of Rule 40 and Rule 41 are in conflict,
obtains where appeal from and the decision being appealed is rendered by a
a court of the same case, lower court, Rule 40 shall prevail because it
competent and the higher specifically provides for the rules on appeal from MTC
jurisdiction has court has to RTC.
rendered a already ruled
final judgment on the same
or order on the RULE 41: APPEAL FROM THE REGIONAL TRIAL
merits of the COURTS
case, which

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 Q: What makes this rule different from Rule 4 The aggrieved party may file an appropriate special
civil action as provided in Rule 65.
This rule applies when the RTC is acting in its
appellate jurisdiction. The remedy against a judgment for declaration for
SECTION 1 presumptive death filed pursuant to Article 41 of the
Subject of Appeal Family Code is Rule 65, not appeal, because said
Page | 202 judgment is immediately final and executory
Appealable Cases (Republic v. Granada, G.R. No. 187512, June 13,
1. Judgments or final orders that completely 2012).
disposes of the case; or SECTION 2
2. A particular matter therein when declared Modes of Appeal
by the Rules to be appealable.
Three Modes of Appeal
Non-Appealable Cases (WE-PAID)
1. Without Prejudice – Order dismissing There are three modes of appeal from the decision of
without prejudice; the Regional Trial Court:
2. Execution
3. Pending – Judgment or final orders for or 1. Ordinary Appeal;
against one or more of several parties or in a 2. Petition for Review; and
separate claim while the main case is 3. Appeal by Certiorari
pending;
4. Appeal – Orders disallowing or dismissing an Ordinary Appeal (Appeal by Writ of Error)
appeal;
5. Interlocutory order; and Where judgment was rendered by the court in the
6. Denials - denial of petition for relief, motion exercise of its original jurisdiction. It is taken to the
to set aside judgment by consent, Court of Appeals on questions of fact and law.
confession, and compromise on the ground
of fraud, mistake, duress or any ground NOTE: Covered by Rule 41.
vitiating consent.
Petition for Review
Where the order is interlocutory, the movant has to
wait for the judgment and the appeal from the Where judgment was rendered by the court in the
judgment, in the course of which appeal he can assign exercise of its appellate jurisdiction. It is brought to
as error the said interlocutory order. The the Court of Appeals on questions of fact, questions
interlocutory order cannot be appealed from of law, or mixed questions of fact and law.
separately from the judgment. (Mapua v. Suburban
Theaters, Inc., G.R. No. L-797, July 24, 1948) NOTE: Covered by Rule 42.

The general rule is that where the interlocutory order Appeal by Certiorari (Petition for Review on
was rendered without or in excess of jurisdiction or Certiorari)
with grave abuse of discretion, the remedy is
certiorari, prohibition or mandamus depending on This mode is brought to the Supreme Court from the
the facts of the case. decision of the Regional Trial Court in the exercise of
its original jurisdiction and only on questions of law.
Under Rule 41, Section 1(h), no appeal may be taken
from an order dismissing an action without prejudice. Certiorari is a remedy designed for the correction of
It may be subject of a special civil action for certiorari errors of jurisdiction, not errors of judgment.
under Rule 65. (Makati Insurance v. Reyes, G.R. No. Consequently, an error of judgment that the court
167403, August 06, 2008) may commit in the exercise of its jurisdiction is not
correctable through the original civil action of
Remedy for Non-Appealable Cases certiorari (Madrigal Transport v. Lapanday Holding,
G.R. No. 156067, August 11, 2004).

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NOTE: Covered by Rule 45. Within 30 Court may time to file
days for grant an petition
Questions of Fact v. Question of Law cases with additional
record on 15 days
There is question of law when the doubt or difference appeal from
arises as to what the law is on a certain state of facts. payment
There is question of fact when the doubt or Page | 203
difference arises as to the truth or the falsehood of The special civil action for certiorari and appeal are
alleged facts (Sesbreño v. Court of Appeals, 240 SCRA two different remedies that are mutually exclusive;
606). they are not alternative or successive. Where appeal
is available, certiorari will not prosper, even if the
Comparison of Modes of Appeal ground therefore is grave abuse of discretion. Basic is
ORDINARY PETITION APPEAL BY the rule that certiorari is not a substitute for the
APPEAL FOR CERTIORARI lapsed remedy of appeal (Madrigal Transport v.
(Rule 41) REVIEW (Rule 45) Lapanday Holding, G.R. No. 156067, August 11, 2004).
(Rule 42)
Case is Case DIFFERENCE BETWEEN DOCTRINE OF CONCLUSIVE
Case is
decided by appealed FINALITY AND DOCTRINE OF GREAT RESPECT AND
decided by
the MTC, from RTC to FINALITY
the RTC in
appealed to SC or CA to
When its original
the RTC; SC; raises DOCTRINE OF DOCTRINE OF GREAT
jurisdiction
petition for only a CONCLUSIVE FINALITY RESPECT AND FINALITY
; appealed
review with question of Applies to factual
to CA Applies to factual
the CA law findings of
findings of
1. File a administrative
1. File a administrative agencies
notice of 1. File a agencies in the exercise
verified in the exercise of their
appeal or a verified of their quasi-judicial
petition quasi-judicial function.
record petition for function.
for
appeal review with
review No evidentiary Must be supported by
with the the SC;
with requirement substantial evidence
court of
the CA;
origin; 2. Pay fees; Based on the doctrine
How
3. Submit that administrative
2. Pay fees
2. Pay fees proof of agencies possess
with CA; Based on comity
with MTC; service of specialized knowledge
3. Furnish
copy to the and expertise in their
the RTC and
3. Give lower court respective fields
adverse
copy to and adverse Not used in the
party with a Established standard
adverse party. Philippine legal system
copy.
party.
Factual findings made by quasi-judicial and
Within 15
Within 15 Within 15 administrative bodies when supported by substantial
days from
days of days from evidence are accorded great respect and even finality
notice of the
notice of notice from by the appellate courts. (Cosmos Bottling Corporation
T decision to
judgment notice of v. Pablo Nagrama, Jr., G.R. No. 164403, March 04,
i be reviewed
or from the decision 2008)
me or from the
the denial to be
l denial of the
of the MR reviewed or SECTION 3
i MR or MNT
or MNT for from the Period of Ordinary Appeal
ness
notice of denial of the
Court may When to Appeal
appeal MR or MNT
grant
extension of The appeal shall be taken within:

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 As reflected in the the decision in Neypes, the "fresh
period rule" shall apply to Rule 40 (appeals from the
1. 15 Days from notice of the judgment or final Municipal Trial Courts to the Regional Trial Courts);
order appealed from; Rule 41 (appeals from the Regional Trial Courts to the
2. 30 Days from notice of the judgment or final Court of Appeals or Supreme Court); Rule 42 (appeals
order, where a record of appeal is required; from the Regional Trial Courts to the Court of
Page | 204 3. 48 Hours from notice of the judgment or Appeals); Rule 43 (appeals from quasi-judicial
final order appealed from in habeas corpus agencies to the Court of Appeals); and Rule 45
cases. (appeals by certiorari to the Supreme Court).
(Panolino v. Tajala, G.R. No. 183616, June 29, 2010)
NOTE: Record on appeal is needed for special SECTION 4
proceedings such as probate, partition and Appellate Court Docket and Other Lawful Fees
expropriation proceedings.
Within the period for taking an appeal, the appellant
The notice of appeal must be directed on the original shall pay to the clerk of the court which rendered the
order not the resolution denying the motion for judgment or final order appealed from, the full
reconsideration of the final order (Oro v. Diaz, 361 amount of the appellate court docket and other
SCRA 108). lawful fees.

Interruption of Period to Appeal Proof of payment of said fees shall be transmitted to

the appellate court together with the original record
The period to appeal shall be interrupted by a timely on appeal.
motion for new trial or reconsideration. No motion
for extension of time to file a motion for new trial or Failure to Pay
reconsideration shall be allowed.
Failure to pay docket fee is a ground for dismissal of
In order to interrupt, the motion for reconsideration appeal. This rule cannot be suspended by the mere
or motion for new trial must be with the requisite invocation of “the interest of substantial justice.”
proof of service to the other party filing the motion in Procedural Rules may be relaxed only in exceptionally
due time. meritorious circumstances (Lazaro v. Court of
Appeals, G.R. No. 137761, April 6, 2000).
NOTE: It is not required to file a motion for SECTION 5
reconsideration or new trial before one can file a Notice of Appeal
notice for appeal. However, under A.M. No. 02-11-10-
SC, in petitions for judgment of nullity of marriage, Notice of appeal must specify the following matters:
annulment of marriage, or legal separation, it is a pre-
requisite to file a motion for reconsideration before 1. Parties to the appeal;
one can appeal. 2. Judgment or final order or part thereof
appealed from;
Since second and third motion for reconsiderations 3. The court to which the appeal is being taken;
are prohibited, the running of the period to file a and
notice of appeal has not been tolled (Obando v. Court 4. Material dates showing the timeliness of the
of Appeals, 366 SCRA 673). appeal (Material Data Rule).
SECTION 6
Fresh Period Rule (Neypes Ruling) Record on Appeal; Form and Contents

A fresh period of 15 days within which to file the The record on appeal should include:
notice of appeal in the Regional Trial Court, counted
from receipt of the order denying the motion for new 1. Full names of all the parties to the
trial, motion for reconsideration (whether full or proceedings stated in the caption of the
partial) or any final order or resolution (Neypes v. record (do not implead court or judge);
Court of Appeals, G.R. No. 141524, September 14, 2. The judgment or final order from which the
2005). appeal is taken;

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 3. In chronological order, copies of only such Perfection of appeal; effect thereof
pleadings, petitions, motions, and all
interlocutory orders as are related to the When will an appeal be deemed perfected?
appealed judgment for the proper
understanding of issues of law or fact An appeal is deemed perfected in the following
involved in the appeal; instances:
4. Such data as will show that the appeal was Page | 205
perfected on time (Material Data Rule);
1. A party’s appeal by notice of appeal is
5. Reference; and
deemed perfected as to him upon the filing
6. Subject index, of record on appeal exceeds
of the notice of appeal in due time.
20 pages.
2. A party’s appeal by record on appeal is
deemed perfected as to him with respect to
SECTION 7
the subject matter thereof upon the
Approval of record on appeal
approval of the record on appeal filed in due
time. (Tan, p. 1281, 2017 ed.)
If the appeal is through a record on appeal:
WHEN DOES THE COURT LOSE ITS JURISDICTION
1. File a record on appeal
NOTICE OF APPEAL RECORD ON APPEAL
2. If no objection is filed by the appellee within
The court loses its
five days from receipt of a copy thereof, the The court loses its
jurisdiction only over the
trial court may: jurisdiction over the
subject matter thereof
a. Approve it as presented; or case upon the
upon the approval of the
b. Upon its own motion or at the instance of perfection of appeals
records on appeal filed
the appellee, direct its amendment by the inclusion of filed in due time and
in due time and the
any omitted matters which are deemed essential to the expiration of the
expiration of the time to
the determination of the issue of law or fact involved time to appeal of the
appeal of the other
in the appeal other parties.
parties.
If the trial court orders the amendment
NOTE: The appeal is perfected as to the court upon
If the trial court orders the amendment of the record, the perfection of appeals filed in due time and the
the appellant must redraft the record within the time expiration of the time to appeal of the other parties.
fixed by the order or if there is no time specified, Petitioner PNB's appeal is deemed perfected "as to it"
within 10 days from receipt thereof. when it timely led its first notice of appeal, following
Section 9, Rule 41. Its appeal having been perfected,
The amendment shall include such additional matters petitioner did not need to file a second notice of
as the court may have directed the appellant to appeal even if the trial court granted, as it did, the
incorporate in their proper chronological sequence. other party's motion for reconsideration and
modified the decision to increase the monetary
The appellant shall submit the redrafted record for award. (PNB v. Sps Cordova, G.R. No. 169314, May 14,
approval with notice to the appellee. (Sec. 7, Rule 41) 2008)
Where appeal is available to the aggrieved party, the
SECTION 8 action for certiorari will not be entertained. Remedies
Joint record on appeal of appeal and certiorari are mutually exclusive, not
alternative or successive. Hence, certiorari is not and
Joint record on appeal cannot be a substitute for an appeal. (Madrigal
Transport v. Lapanday Holding, G.R. No. 156067,
August 11, 2004).
Where both parties are appellants, they may file a
joint record on appeal within 30 days from notice of
Residual Jurisdiction
the judgment or final order, or that fixed by the court.
"Residual jurisdiction" of the trial court is available at
(Sec. 8, Rule 41)
a stage in which the court is normally deemed to have
SECTION 9
lost jurisdiction over the case or the subject matter

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 involved in the appeal. This stage is reached upon the 4. To transmit the records to the appellate
perfection of the appeals by the parties or upon the court; and
approval of the records on appeal, but prior to the 5. If the efforts to complete the records fail, he
transmittal of the original records or the records on shall indicate in his letter of transmittal the
appeal. (DBP v. Carpio, G.R. No. 195450, February 01, exhibits or transcripts not included in the
2017) records being transmitted to the appellate
Page | 206 court, the reasons for their non-transmittal,
Q: What is the residual power of the Regional Trial and the steps taken or that could be taken to
Court? have them available.
The clerk of court shall furnish the parties with copies
A: Prior to the transmittal of the original record or the of his letter of transmittal of the records to the
record on appeal, the court may: appellate court. (Sec. 10, Rule 41)

1. Issue orders for the protection and SECTION 11

preservation of the rights of the parties Transcript
which do not involve any matter litigated by
the appeal;
2. Approve compromises; Q: What is the rule on the transcript of stenographic
3. Permit appeals of indigent litigants; notes?
4. Order execution pending appeal in
accordance with 2 of Rule 39; and A: Upon the perfection of the appeal, the clerk shall
5. Allow withdrawal of the appeal. (Sec. 9, Rule immediately direct the stenographers concerned to:
41)
Before the trial court can be said to have residual 1. Attach to the record of the case five (5)
jurisdiction over a case, a trial on the merits must copies of the transcripts of the testimonial
have been conducted; the court rendered judgment; evidence referred to in the record on appeal;
and the aggrieved party appealed therefrom. (DBP v. 2. The stenographers concerned shall
Carpio, G.R. No. 195450, February 01, 2017) transcribe such testimonial evidence and
shall prepare and affix to their transcripts an
SECTION 10 index containing the names of the witnesses
Duty of clerk of court of the lower court upon and the pages wherein their testimonies are
perfection of appeal found, and a list of the exhibits and the pages
Q: What are the duties of a clerk of court of the lower wherein each of them appears to have been
court upon perfection of appeal? offered and admitted or rejected by the trial
court; and
3. The transcripts shall be transmitted to the
A: Within thirty (30) days after perfection of all the
clerk of the trial court who shall thereupon
appeals in accordance with the preceding section, it
arrange the same in the order in which the
shall be the duty of the clerk of court of the lower
witnesses testified at the trial, and shall
court:
cause the pages to be numbered
consecutively. (Sec. 10, Rule 41)
1. To verify the correctness of the original
record or the record on appeal, as the case
SECTION 12
may be aid to make certification of its
Transmittal
correctness;
2. To verify the completeness of the records Q: What are the documents to be transmitted to the
that will be, transmitted to the appellate appellate court?
court;
3. If found to be incomplete, to take such A: The clerk of the trial court shall:
measures as may be required to complete
the records, availing of the authority that he 1. Transmit to the appellate court the original
or the court may exercise for this purpose; record or the approved record on appeal

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 within thirty (30) days from the perfection of distinct procedure which cannot be loosely
the appeal; interchanged with one another. A notice of appeal is
2. Together with the proof of payment of the filed with the RTC that rendered the assailed
appellate court docket and other lawful decision, judgment or final order, while a petition for
fees; review is filed with the CA.
3. A certified true copy of the minutes of the
proceedings; Page | 207
4. The order of approval; SECTION 1: HOW APPEAL TAKEN; TIME FOR FILING
5. The certificate of correctness;
6. The original documentary evidence referred When to file Petition for Review?
to therein; and
7. The original and three (3) copies of the When the RTC acts on its appellate jurisdiction and
transcripts. the party wishes to appeal on errors of fact, or law, or
both fact and law. The appeal shall be made within 15
Copies of the transcripts and certified true copies of days from notice of the decision sought to be
the documentary evidence shall remain in the lower reviewed or of the denial of petitioner’s motion for
court for the examination of the parties. (Sec. 12, Rule new trial or reconsideration filed in due time after
41) judgement.
SECTION 13
Dismissal of appeal How to file Petition for review?
Q: When will the trial court dismiss the appeal?
1. File a verified petition
2. Pay proper docket fees and other lawful fees
A: Prior to the transmittal of the original record or the 3. Depositing the amount of P500 for costs.
record on appeal to the appellate court, the trial court 4. Must be filed within 15 days from receipt of
may motu propio or on motion dismiss the appeal: the final order or decision
5. Copy of the decision must be served to the
1. For having been taken out of time; or RTC and adverse party
2. Non-payment of the docket and other lawful
fees within the reglementary period. (Tan, p. Note: Upon proper motion and payment of docket
1286, 2017 ed.) fees and other lawful fees, the CA may grant an
The power of the trial court to disallow or disapprove extension of time to file the petition. Provided, such
a notice of appeal that has been filed out of time is motion and payment must be made within the
expressly recognized by the Rules of Court. The reglementary period.
approval of the notice becomes a ministerial duty of
the court only when the appeal is filed on time. However, no further extension shall be granted
Otherwise, the court has the discretion to refuse or except for the most compelling reason and in no case
disallow it in accordance with the Rules. (Oro v. Diaz, to exceed 15 days. (Sec. 1, Rule 42)
G.R. No. 140974, July 11, 2001)
No distinction between the periods to appeal in a
RULE 42: PETITION FOR REVIEW FROM THE civil case and in a criminal case: The Neypes ruling
REGIONAL TRIAL COURTS TO THE COURT OF applies to criminal cases. B.P. Blg. 129, as amended,
APPEALS the substantive law on which the Rules of Court is
based, makes no distinction between the periods to
PETITION FOR REVIEW
appeal in a civil case and in criminal case (Yu v..
Hon. Rosa Samson-Tatad, G.R. No. 170979,
Rule 42 applies to an appeal from the judgment or
February 9, 2011).
final order of the RTC to the CA in cases decided by
the former in the exercise of its appellate
jurisdiction.
SECTION 2: FORM AND CONTENTS
A petition for review may not be treated as a notice
REQUIREMENTS AS TO FORM
of appeal. These modes of appeal clearly remain

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 1. State the full name of the parties to the case.
Lower courts and judges should not be Note: CA may dismiss the petition if it finds the same
impleaded. to be patently without merit, prosecuted merely for
2. State material dates. (to show the timeliness delay or that the questions raised are too
of appeal) unsubstantial to require consideration.
3. State matters involved, and the issues/errors
Page | 208 allegedly committed by the RTC. Non-compliance of the petitioner with any of the
4. State the arguments. following requirements shall be sufficient ground for
5. Attach certified true copies of the assailed the dismissal:
orders.
6. Attach relevant pleadings. 1. Payment of the proper docket and other
7. Verification and Certification for non-forum lawful fees,
shopping. (Sec. 2, Rule 42) 2. Deposit of costs,
⮚ Certificate of Non-Forum Shopping is 3. Proof of service of the petition, and
required even if a petition for review is not 4. Contents of and the documents which
an initiatory pleading (Anderson v. Ho, G.R. should accompany the petition
No. 172590, January 7, 2013).

Q: Why is there no need to implead lower courts and SECTION 4: ACTION ON THE PETITION
judges?
A: In petition for review, you do not implead the After the filing of the petition for review, the CA will
lower court judge because it is not about grave abuse then read the petition to see whether it is complete
of discretion. in substance and in form.
Q: Why is there a need to attach relevant pleadings?
A: It is necessary because in petition for review, the If all requirements have been complied with
records are not brought to the CA. It stays with the
RTC. CA may issue an Order for the respondent to file his
Comment on the petition. The comment should be
CA correctly dismissed the petition because the filed within a period of 10 days from the notice of the
complaint, answer and the parties’ position order.
papers which they filed before the MTC and the
RTC were not attached (Canton v. City of Cebu, CA may dismiss the petition if it finds the same to
G.R. No. 152898, February 12, 2007). be:

The filing of a reply and a rejoinder are not a 1. Patently without merit; or
matter of right. One should wait for the order of 2. Prosecuted manifestly for delay; or
the court allowing the submission of said 3. The questions raised therein
pleadings. are too insubstantial to require
consideration.
SECTION 3: EFFECT OF FAILURE TO COMPLY WITH
THE REQUIREMENTS
SECTION 5: CONTENTS OF COMMENT
Effect of failure to comply with the requirements
Comments; Contents of
The failure of the petitioner to comply with any of the
requirements regarding payment of the proper After the filing of the petition for review, the CA will
docket and other lawful fees, the deposit of costs, then read the petition to see whether it is complete
proof of service of the petition, and the contents of in substance and in form. If all requirements have
and the documents which should accompany the been complied with, it may issue an Order for the
petition shall be sufficient ground for the dismissal respondent to file his Comment on the petition. The
thereof. (Sec. 3, Rule 42) comment should be filed within a period of 10 days
from the notice of the order. (Sec. 4, Rule 42)

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The comment of the respondent shall be filed in:
SECTION 7: ELEVATION OF RECORD
1. 7 legible copies,
2. accompanied by certified true copies of such The records in the RTC need not be elevated to the
material portions of the record referred to CA. It is only discretionary on the part of the CA to
therein together with other supporting order the elevation of records to it from the RTC. This Page | 209
papers; is because until the petition is given due course, the
3. and shall: trial court may still issue a writ of execution pending
a. state whether or not he accepts the appeal and some cases such as ejectment and those
statement of matters involved in of Summary Procedure are immediately executory.
the petition;
b. point out such insufficiencies or The CA may order the clerk of court of the RTC to
inaccuracies as he believes exist in elevate the original record of the case including the
the petitioner's statement of oral and documentary evidence within 15 days from
matters involved but without notice (Sec. 7, Rule 42).
repetition; and
c. state the reasons why the petition
should not be given due course. A SECTION 8: PERFECTION OF AN APPEAL; EFFECT
copy thereof shall be served on the THEREOF
petitioner. (Sec. 5, Rule 42)
Perfected Appeal:
SECTION 6: DUE COURSE
An appeal is perfected as to the petitioner upon the
Petition for review is not a matter of right timely filing of a petition for review and the payment
of the corresponding docket and other lawful fees.
It is discretionary upon the CA. It may only be given
due course if it shows on its face that the lower court Effect of perfected appeal under Rule 42
has committed an error on fact, or law, or on both fact
and law, that will warrant a reversal or modification Upon perfection of appeal, the RTC loses its
of judgment sought to be reviewed or dismiss the jurisdiction over the case and it expires the time of the
petition if it finds that it is patently without merit; other parties to appeal
prosecuted manifestly for delay; the questions raised
therein are too insubstantial to require consideration. THE APPEAL STAYS THE EXECUTION (MEANING IT
(Sec. 4, Rule 42) WILL NOT BE EXECUTORY YET) EXCEPT:

If upon the filing of the comment or such other 1. CA, or the law provides otherwise; or
pleadings as the court may allow or require, or after
the expiration of the period for the filing thereof 2. For cases in Summary Procedure,
without such comment or pleading having been which are immediately executory.
submitted, the Court of Appeals finds prima facie that
the lower court has committed an error of fact or law
As long as the judgment is still pending appeal, even
that will warrant a reversal or modification of the
if such is final, it is not yet executory.
appealed decision, it may accordingly give due course
to the petition. (Sec. 6, Rule 42)
DOCTRINE OF RESIDUAL JURISDICTION
Q: What is the effect of not filing a comment?
The doctrine of residual jurisdiction also applies to
A: The respondent will not be declared in default
rule 42. RTC loses jurisdiction over the case upon
because this is no longer a trial before the trial court.
perfection of the appeals filed in due time and the
The CA will resolve the case on the basis of the
expiration of the time to appeal of the other
petition if it finds merit on giving due course to such.
[Link] RTC has residual powers because the
However, the CA might hold the respondent liable for
contempt for not obeying the order of the CA.

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 records are still with them as provided by Rule 42, it party who seeks to appeal must comply with the law's
need not be elevated to the CA. requirements; otherwise, he forfeits his privilege.
Rules of procedure may be relaxed only to relieve a
Before the CA gives due course to the petition for litigant of an injustice which is not commensurate
review, the RTC may issue orders: with the degree of his thoughtlessness in not
complying with the prescribed procedure.
Page | 210 a. for the protection and preservation
of the rights of the parties which does not In this case, the CA Correctly dismissed the petition
involve any matter litigated by the appeal because the complaint, answer and parties’ position
papers which they filed before the MTC and the RTC
b. to approve compromises were not attached.

c. to permit appeals of the indigent Yu vs. Tatad

litigants In Neypes, the Court modified the rule in civil cases on
the counting of the 15-day period within which to
d. to order execution pending appeal appeal. The Court categorically set a fresh period of
in accordance with Section 2, Rule 39 15 days from a denial of a motion for reconsideration
within which to appeal. Henceforth, this "fresh period
e. to allow withdrawal of appeal (Sec. rule" shall also apply to Rule 40 governing appeals
8, Rule 42) from the Municipal Trial Courts to the Regional Trial
Courts; Rule 42 on petitions for review from the
The records in the RTC need not be elevated to the Regional Trial Courts to the Court of Appeals; Rule 43
CA. It is only discretionary on the part of the CA to on appeals from quasi-judicial agencies to the Court
order the elevation of records to it from the RTC. This of Appeals and Rule 45 governing appeals by
is achieved by issuing an order to the clerk of court of certiorari to the Supreme Court. The new rule aims to
the RTC to elevate the original record of the case regiment or make the appeal period uniform, to be
including the oral and documentary evidence within counted from receipt of the order denying the motion
15 days from notice. (Sec. 7, Rule 42) for new trial, motion for reconsideration (whether full
or partial) or any final order or resolution.

SECTION 9: SUBMISSION FOR DECISION

RULE 43 – APPEALS FROM THE QUASI-JUDICIAL
In the event that the petition is given due course: AGENCIES TO THE COURT OF APPEALS

[Link] case may be set for oral argument; or

SECTION 1: SCOPE
2. The parties may be required to
submit memoranda within 15 days from notice; Quasi-judicial agency

3. The Case shall be deemed submitted for decision It is an organ of the government other than a court
upon filing of the last pleading or memorandum. and other than a legislature, which affects the rights
of private parties either through adjudication or
rulemaking.
RELEVANT CASES
Agencies enumerated under rule 43
Canton vs. City of Cebu 1. Civil Service Commission;
2. Central Board of Assessment Appeals;
Rules of procedure must be used to facilitate, not to 3. Securities and Exchange Commission;
frustrate, justice. However, petitioners and their 4. Office of the President;
counsel should bear in mind that the right to appeal 5. Land Registration Authority;
is not a natural right. The right to appeal is a statutory 6. Social Security Commission;
privilege, and it may be exercised only in the manner 7. Civil Aeronautics Board;
and in accordance with the provisions of the law. A 8. Bureau of Patents, Trademarks and Technology

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

Transfer; Exchange Commission
9. National Electrification Administration;
10. Energy Regulatory Board; All decisions and final orders in cases falling under the
11. National Telecommunications Commission; Interim Rules of Corporate Rehabilitation and the
12. Department of Agrarian Reform under RA 6657; Interim Rules of Procedures Governing Intra-
13. Government Service Insurance System; Corporate Controversies under Republic Act No. 8799
14. Employee Compensation Commission; shall be appealable to the Court of Appeals through a Page | 211
15. Agricultural Inventions Board; petition for review under Rule 43 of the Rules of
16. Insurance Commission; Court.
17. Philippine Atomic Energy Commission;
18. Board of Investments;
19. Construction Industry Arbitration Commission; SECTION 2: CASES NOT COVERED
and
20. Voluntary Arbitrators authorized by law Exception to Rule 43

Note: Court of Tax Appeals (CTA) should be omitted This Rule shall not apply to judgments or final orders
from the title of Rule 43 because appeals from the issued under the Labor Code of the Philippines.
CTA shall be taken to the Supreme Court (via Rule 45),
pursuant to Republic Act No. 1125. Judgements and final orders or resolutions of the
NLRC are brought to the Court of Appeals via Rule 65,
* CTA levels with the CA in terms of hierarchy. then up to the SC via Rule 45 (pursuant to St. Martin’s
Funeral Homes v. NLRC, G.R. No. 130866, September
An appeal from a decision or resolution of the CTA in 16, 1998).
Division on an MNT or MR shall be taken to the CTA
En Banc by petition for review as provided in Rule 43 Judgments and final orders or resolutions of the
of the Rules of Court. Employees Compensation Commission should be
brought to the CA through a petition for review under
A party adversely affected by a decision or ruling of this Rule (Regalado, 2008).
the CTA en banc may appeal therefrom by filing with
the SC a verified petition for review on certiorari
within 15 days from receipt of a copy of the decision SECTION 3: WHERE TO APPEAL
or resolution, as provided in Rule 45 of the Rules of
Court. If such party has filed a MR or for new trial, the Where to appeal from judgments and final orders of
period herein fixed shall run from the party’s receipt quasi- judicial bodies
of a copy of the resolution denying the motion for
reconsideration or for new trial. Appeals from judgment and final orders of quasi-
judicial bodies/agencies enumerated in Rule 43 are
Other quasi-judicial bodies not covered by Rule 43 now required to be brought to the CA under the
requirements and conditions set forth in Rule 43,
whether the appeal involves questions of law, of
● NLRC – Decisions of the NLRC are brought to fact, or mixed questions of fact and law.
the CA via Rule 65, then up to the SC via Rule
45. (pursuant to the St. Martin’s Funeral This is another instance when the Court of Appeals
case) can review solely questions of law. The other instance
● Office of the City Prosecutor and/or the DOJ when the Court of Appeals can review solely
– OCP is not a quasi-judicial agency since it questions of law is in Rule 42 (Petition for Review
does not decide on the rights and obligations from the RTC).
of the parties. Decisions of the OCP should
be appealed to the DOJ via petition for In an appeal via certiorari, only questions of law may
review and not to the CA. be reviewed. A question of law arises when there is
doubt or difference as to what the law is on a certain
A.M. No. 04-9-07 SC Re Mode of Appeal in Cases state of facts (Zaragoza v. Noblez, G.R. No. 144560,
Formerly Cognizable by the Securities and May 13, 2004).

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 which the decision appealed from would become final
In view of absence of any of the recognized and executory as if no appeal has been filed. (St. Louis
exceptions that would warrant a review of the Univ. vs. Cobarrubias)
findings of facts of the appellate court, the issue
raised by petitioner as regards the date of the filing of SECTION 5: HOW APPEAL TAKEN
the petition for review will not be considered by the
Page | 212 SC, the resolution thereon by the CA being final (Ibid). How appeal shall be taken

The question on whether petitioner can retire under Appeal shall be taken by filing a verified petition for
RA 660 or RA 8291 is undoubtedly a question of law review in seven (7) legible copies with the Court of
because it centers on what law to apply in his case Appeals, with proof of service of a copy thereof on
considering that he was previously retired from the the adverse party and on the court or agency a quo.
government under a particular statute and that he The original copy of the petition intended for the
was re-employed by the government. These facts are Court of Appeals shall be indicated as such by the
admitted and there is no need for an examination of petitioner.
the probative value of the evidence presented
(Santos v. Committee on Claims Settlement, G.R. No. Upon the filing of the petition, the petitioner shall
158071, Spril 2, 2009). pay to the clerk of court of the Court of Appeals the
docketing and other lawful fees and deposit the sum
of P500.00 for costs.
SECTION 4: PERIOD OF APPEAL
Exemption from payment
Period of appeal
Exemption from payment of docketing and other
The appeal shall be taken within fifteen (15) days lawful fees and the deposit for costs may be granted
from notice of the award, judgment, final order or by the Court of Appeals upon a verified motion setting
resolution, or from the date of its last publication, if forth valid grounds therefor.
publication is required by law for its effectivity, or of
the denial of petitioner's motion for new trial or If the Court of Appeals denies the motion, the
reconsideration duly filed in accordance with the petitioner shall pay the docketing and other lawful
governing law of the court or agency a quo. (Notice fees and deposit for costs within fifteen (15) days
the applicability of the Neypes Ruling) from notice of the denial.

When extension is allowed NOTE: Payment of full docket fees within the
prescribed period is not only mandatory, but also
Only one (1) motion for reconsideration shall be jurisdictional. It is an essential requirement, without
allowed. which the decision appealed from would become final
and executory as if no appeal has been filed (St. Louis
University v. Cobarrubias, G.R. No. 187104, August 3,
● Upon proper motion AND 2010).
● Payment of the full amount of the docket fee
before the expiration of the reglementary
period SECTION 6: : CONTENTS OF THE PETITION

The Court of Appeals may grant an additional period Contents of the petition
of fifteen (15) days only within which to file the
petition for review. No further extension shall be The petition for review shall:
granted except for the most compelling reason and in
no case to exceed fifteen (15) days. (a) state the full names of the parties to the case,
without impleading the court or agencies either as
Note: Payment of full docket fees within the petitioners or respondents;
prescribed period is not only mandatory, but also
jurisdictional. It is an essential requirement, without

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

(b) contain a concise statement of the facts and issues The failure of the petitioner to comply with any of the
involved and the grounds relied upon for the review; foregoing requirements regarding the payment of the
docket and other lawful fees, the deposit for costs,
(c) be accompanied by a clearly legible duplicate proof of service of the petition, and the contents of
original or a certified true copy of the award, and the documents which should accompany the
judgment, final order or resolution appealed from, petition shall be sufficient ground for the dismissal
together with certified true copies of such material thereof. Page | 213
portions of the record referred to therein and other
supporting papers; and SECTION 8: ACTION ON THE PETITION

(d) contain a sworn certification against forum Action by the CA

shopping as provided in the last paragraph of section
2, Rule 42. ● No summons will be served because this is
already an appeal
Material Data Rule: ● CA may require respondent to file a motion
The petition shall state the specific material dates to dismiss, within 10 days from receipt of
showing that it was filed within the period fixed order
herein. ● It is the receipt of the order that the CA
acquires jurisdiction over the person of the
NOTE: The copies of the pleadings need not be respondent.
certified true copies. The only document that needs
to be certified is the decision and the Order denying SECTION 9: CONTENTS OF COMMENT
the MR. Rule 42 should not be stricter than Rule 45
and Rule 65 (Gonzales v. Civil Service Commission, Contents of Comment
G.R. No. 139131, September 27, 2002).
The comment shall be filed within ten (10) days from
The terms “Certified True Copy” and “Duplicate notice in seven (7) legible copies and accompanied by
Original” as found in paragraph 6(c) of Revised clearly legible certified true copies of such material
Administrative Circular No. 1-95 were clarifioed in portions of the record referred to therein together
Administrative Circular No. 3-96 which further with other supporting papers.
provided that: the "duplicate original copy" shall be
understood to be that copy of the decision, judgment, The comment shall:
resolution or order which is intended for and
furnished to a party in the case or proceeding in the (a) point out insufficiencies or inaccuracies in
court or adjudicative body which rendered and issued petitioner's statement of facts and issues;
the same. The "certified true copy" thereof shall be and
such other copy furnished to a party at his instance or (b) state the reasons why the petition should
in his behalf, duly authenticated by the authorized be denied or dismissed.
officers or representatives of the issuing entity as
hereinbefore specified. The rationale behind the need A copy thereof shall be served on the petitioner, and
for the submission of the CTC is the fact that the proof of such service shall be filed with the Court of
records of the case will no longer be transmitted to Appeals.
the appellate court (Jaro v. CA, G.R. No. 127536,
February 19, 2002). SECTION 10: CONTENTS OF COMMENT

If upon the filing of the comment or such other

SECTION 7: EFFECT OF FAILURE TO COMPLY WITH pleadings or documents as may be required or
REQUIREMENTS allowed by the Court of Appeals or upon the
expiration of the period for the filing thereof, and on
Effect of failure to comply with Section 6 the records the Court of Appeals finds prima facie
requirements that the court or agency concerned has committed
errors of fact or law that would warrant reversal or
modification of the award, judgment, final order or

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 resolution sought to be reviewed, it may give due
course to the petition; otherwise, it shall dismiss the National Water Resources Board vs. A.L. Ang
same. The findings of fact of the court or agency Network, Inc.
concerned, when supported by substantial evidence,
shall be binding on the Court of Appeals. Petitioner is not in the list of the quasi-judicial
agencies specifically mentioned in Rule 43.
Page | 214 SECTION 11: TRANSMITTAL OF RECORD
SC: The list of quasi-judicial agencies enumerated in
Transmittal of records Rule 43 is not meant to be exclusive. The employment
of the word “among” clearly instructs so.
Within fifteen (15) days from notice that the petition
has been given due course, the Court of Appeals may Santos vs. Go
require the court or agency concerned to transmit the
original or a legible certified true copy of the entire The decision of the DOJ cannot be appealed to the CA
record of the proceeding under review. The record to via Rule 43 because the DOJ is not a quasi-judicial
be transmitted may be abridged by agreement of all body.
parties to the proceeding. The Court of Appeals may
require or permit subsequent correction of or Gonzales vs. Civil Service Commission
addition to the record.
The copies of the pleadings need not be Certified True
Note: The rationale behind the need for the Copies. The only document that needs to be certified
submission of the CTC is the fact that the records of is the decision and the Order denying the MR. Rule 42
the case will no longer be transmitted to the appellate should not be stricter than Rule 45 and Rule 65.
court.
Jaro vs. Court of Appeals
SECTION 12: EFFECT OF APPEAL
The terms “Certified True Copy” and “Duplicate
Effect of Appeal Original” as found in paragraph 6(c) of Revised
Administrative Circular No. 1-95 were clarified in
The appeal shall not stay the award, judgment, final Administrative Circular No. 3-96 which further
order or resolution sought to be reviewed. provided that:

XPN: CA direct otherwise upon such terms as it may [1] The "duplicate original copy" shall be understood
deem just. to be that copy of the decision, judgment, resolution
or order which is intended for and furnished to a party
Note: Petitioner must therefore move for the in the case or proceeding in the court or adjudicative
issuance of for TRO / Writ of Preliminary Injunction by body which rendered and issued the same. The
the CA. "certified true copy" thereof shall be such other copy
furnished to a party at his instance or in his behalf,
duly authenticated by the authorized officers or
SECTION 13: SUBMISSION FOR DECISION representatives of the issuing entity as hereinbefore
specified.
Submission for decision
Note: The rationale behind the need for the
If the petition is given due course, the Court of submission of the CTC is the fact that the records of
Appeals may set the case for oral argument or require the case will no longer be transmitted to the appellate
the parties to submit memoranda within a period of court.
fifteen (15) days from notice. The case shall be
deemed submitted for decision upon the filing of the Zaragoza vs. Noblez
last pleading or memorandum required by these
Rules or by the court of Appeals. In an appeal via certiorari, only questions of law may
be reviewed. A question of law arises when there is
CASES

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doubt or difference as to what the law is on a certain SECTION 1. Unless otherwise governed by special
state of facts. laws, an appeal to the Office of the President shall be
taken within thirty (30) days from receipt by the
In view of absence of any of the recognized aggrieved party of the decision/resolution/order
exceptions that would warrant a review of the complained of or appealed from…
findings of facts of the appellate court, the issue
raised by petitioner as regards the date of the filing of The above provision was interpreted to mean that “a Page | 215
the petition for review will not be considered by the decision or order issued by a department or agency
SC, the resolution thereon by the CA being final. need not be appealed to the Office of the President
when there is a special law that provides for a
St. Martin Funeral Homes vs. NLRC different mode of appeal.

NLRC decision is subject to Rule 65. In this case, a special law, RA 7394, likewise expressly
provided for immediate judicial relief from decisions
Santos vs. Committee on claims settlement of the DTI Secretary by filing a petition for certiorari
with the “proper court”. Hence, private respondent
The question on whether petitioner can retire under should have elevated the case directly to the CA
RA 660 or RA 8291 is undoubtedly a question of law through a petition for certiorari. In filing a petition for
because it centers on what law to apply in his case certiorari before the CA raising the issue of OP’s lack
considering that he was previously retired from the of jurisdiction, complainant Moran, Jr., thus availed of
government under a particular statute and that he the proper remedy.
was re-employed by the government. These facts are
admitted and there is no need for an examination of Note:
the probative value of the evidence presented. proper court – rule 43 will apply because you have a
quasi-judicial agency, therefore you will appeal via
Office of the Ombudsman vs. Valencerina Rule 43.

An appeal of an OMB decision in an administrative Viva Shipping Lines, Inc. vs. Keppel Philippines
case is not stayed pending appeal to the CA. Mining, Inc.

Based on Sec. 7, Rule III of the Rules of Procedure of Rule 43 of the Rules of Court prescribes the procedure
the Office of the Ombudsman, As amended by to assail the final orders and decisions in corporate
Administrative Order No. 17 dated September 15, rehabilitation cases fled under the Interim Rules of
2003, it is clear that the OMB’s June 8, 2005 Order Procedure on Corporate Rehabilitation. Liberality in
imposing the penalty of removal on Valencerina was the application of the rules is not an end in itself. It
immediately executory, notwithstanding the must be pleaded with factual basis and must be
pendency of his appeal. allowed for equitable ends. There must be no
indication that the violation of the rule is due to the
Moran, Jr. vs. Office of the President negligence or design. Liberality is an extreme
exception, justifiable only when equity exists.
Case decided by CAO, appealed to the DTI. DTI
dismissed. Decision of the DTI was appealed to the
OP. OP reversed the decision. RULE 44: ORDINARY APPEALED CASES

Complainant filed a petition for certiorari with the CA

PROCEDURE IN THE COURT OF APPEALS
alleging lack of jurisdiction of the OP for ruling cases
of Consumers Law. CA dismissed the petition on the
These are additional rules governing ordinary appeals
ground of wrong mode of appeal. MR denied as well.
from judgments or final orders of the RTC rendered in
the exercise of appellate jurisdiction.
SC: The procedure for appeals to the OP is governed
by Administrative Order No. 18, Series of 1987.
SECTION 1: TITLE OF CASES
Section 1 thereof provides:

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 In all cases appealed to the Court of Appeals under exhibits transmitted by the lower court, as well as the
Rule 41, the title of the case shall remain as it was in proof of payment of the docket and other lawful fees,
the court of origin, but the party appealing the case the clerk of court of the Court of Appeals shall docket
shall be further referred to as the appellant and the the case and notify the parties thereof. Within 10 days
adverse party as the appellee. from receipt of said notice, the appellant, in appeals
by record on appeal, shall file with the clerk of court
Page | 216 The evident purpose is to avoid confusion in the 7 clearly legible copies of the approved record on
identity of the case on appeal in relation to that which appeal, together with the proof of service of 2 copies
was tried and decided by the trial court since the thereof upon the appellee.
party initiating the appeal may not be the principal
defendant named in the court Any unauthorized alteration, omission, or addition in
the approved record on appeal is a ground for
SECTION 2: COUNSEL AND GUARDIANS dismissal of the appeal

Upon motion of the appellee or on the court’s own

The counsel and guardians ad litem of the parties in
motion, any unauthorized alteration, omission, or
the court of origin shall be respectively considered as
addition in the approved record on appeal is a ground
their counsel and guardians ad litem in the Court of
for dismissal as provided for in Section 3 of Rule 44
Appeals. When others appear or are appointed,
and Section 1(d) of Rule 50.
notice thereof shall be served immediately on the
adverse party and filed with the court.
Counsels and Guardians Ad Litem SECTION 5: COMPLETION OF RECORD
Those who were considered as counsels and
guardians ad litem shall still remain to be as such
unless others appear or are appointed. In such cases Where the record of the docketed case is incomplete,
notice shall be served immediately and filed with the the clerk of court of the Court of Appeals shall so
court inform said court and recommend to it measures
necessary to complete the record. It shall be the duty
of said court to take appropriate action towards the
SECTION 3: ORDER OF TRANSMITTAL OF RECORD completion of the record within the shortest possible
If the original record or the record on appeal is not time.
transmitted to the Court of Appeals within thirty (30)
days after the perfection of the appeal, either party
may file a motion with the trial court, with notice to SECTION 6: DISPENSING WITH COMPLETE
the other, for the transmittal of such record or record RECORD
on appeal.

Transmittal of Record and its Importance

Based on the previous rules governing appeal, the Where the completion of the record could not be
original record or the record on appeal should be accomplished within a sufficient period allotted for
transmitted to the appellate court. This rule gives said purpose due to insuperable or extremely difficult
either party the right to move for its transmittal causes, the court, on its own motion or on motion of
within 30 days after the perfection of appeal. any of the parties, may declare that the record and its
accompanying transcripts and exhibits so far available
The receipt of the appellate court of the records is are sufficient to decide the issues raised in the appeal,
important since the period to file an appellant’s brief and shall issue an order explaining the reasons for
shall be reckoned from such receipt such declaration.

SECTION 4: DOCKETING OF CASE

Upon receiving the original record or the record on SECTION 7: APPELLANT’S BRIEF
appeal and the accompanying documents and

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It shall be the duty of the appellant to file with the
court, within forty-five (45) days from receipt of the SECTION 8: APPELLEE’S BRIEF
notice of the clerk that all the evidence, oral and Within forty-five (45) days from receipt of the
documentary, are attached to the record, seven (7) appellant’s brief, the appellee shall file with the court
copies of his legibly typewritten, mimeographed or seven (7) copies of his legibly typewritten,
printed brief, with proof of service of two (2) copies mimeographed or printed brief, within proof of
thereof upon the appellee. service of two (2) copies thereof upon the appellant. Page | 217

The appellant has the duty to file with the court his or Note: Failure to file an appellee’s brief will not affect
her appellant’s brief as required by Section 7 of Rule the appeal (Regalado, 2008).
44. It must be filed 45 days from receipt of the notice
by the clerk that the records have been
transmitted,with proof of service to the appellee. SECTION 9: APPELLANT’S REPLY BRIEF

Note: In civil cases, 45 days to file appellant’s brieF; in The appellant, within 20 days from receipt of the
criminal cases, 30 days to file an appellant’s brief appellee’s brief, may file a reply brief answering
(Vina v. CA, G.R. No. 132936, February 17, 2003). points from the brief filed by the appellee.

GR: Failure to file an appellant’s brief, though not However, the reply brief is not mandatory and is only
jurisdictional, results in the abandonment of the optional on the part of the appellant.
appeal and may be a cause for the dismissal of the
appeal (Sibayan vs Costales, G.R. No. 191492, July 4,
2016). SECTION 10: TIME FOR FILING MEMORANDA
IN SPECIAL CASES
XPN: The period may be relaxed under the following
instances: In certiorari, prohibition, mandamus, quo warranto
1. The case involves life, liberty, honor, or and habeas corpus cases (unlike in normal cases), the
property; parties shall file, in lieu of briefs, their respective
2. Counsel’s negligence without memoranda within a non-extendible period of thirty
any participatory negligence on the part (30) days from receipt of the notice issued by the clerk
of the client caused the delay; that all the evidence, oral and documentary, is
3. There are compelling circumstances’ already attached to the record.
4. There is merit in the case;
5. The cause is not entirely attributable to The failure of the appellant to file his memorandum
the fault or negligence of the party within the period therefor may be a ground
favored by the suspension of the Rules; for dismissal of the appeal.
6. There is lack of any showing that the
review sought is merely frivolous and Differences between a Brief and Memorandum
dilatory; and
7. The other party will not be unjustly Brief Memorandum
prejudiced (Cruz v. CA, G.R. No. 156894, AS TO SCOPE
December 2, 2005) Ordinary Appeals Certiorari, Prohibition,
Mandamus, Quo
Motion to Dismiss Appeal will suspend the running Warranto, and Habeas
of the 45 day period Corpus cases
AS TO THE TIME OF FILING
If there is a motion to dismiss appeal filed, the 45 day Within 45 days Within 30 days
period to file an appellant’s brief is suspended as the AS TO THE CONTENTS
same would be unnecessary once the motion is
granted (Alonzo v. Rosario, G.R. No. L-12309, April
30, 1959).

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 Contents specified by Shorter, briefer, only one 2. An assignment of errors intended to be
the Rules issue involved. No subject urged, which errors shall be separately,
index or assignment of distinctly and concisely stated without
errors just facts and law repetition and numbered consecutively;
applicable.
3. Under the heading "Statement of the
Page | 218 Case," a clear and concise statement of
SECTION 11: SEVERAL APPELLANTS OR the nature of the action, a summary of
APPELLEES OR SEVERAL COUNSEL FOR EACH the proceedings, the appealed rulings
PARTY and orders of the court, the nature of the
judgment and any other matters
Where there are several appellants or appellees, each necessary to an understanding of the
counsel representing one or more but not all of them nature of the controversy with page
shall be served with only one copy of the briefs. references to the record;

When several counsels represent one appellant or 4. Under the heading "Statement of Facts,"
appellee, copies of the brief may be served upon any a clear and concise statement in a
of them. narrative form of the facts admitted by
both parties and of those in controversy,
together with the substance of the proof
SECTION 12: EXTENSION OF TIME FOR FILING relating thereto in sufficient detail to
BRIEFS make it clearly intelligible, with page
references to the record;
Extension of time for the filing of briefs will not be
allowed, except for good and sufficient cause, and 5. A clear and concise statement of the
only if the motion for extension is filed before the issues of fact or law to be submitted, to
expiration of the time sought to be extended. the court for its judgment;

GR: A motion requesting for an extension of time to 6. Under the heading "Argument," the
file the briefs is generally not allowed. appellant's arguments on each
assignment of error with page references
XPN: For a movant be allowed to extend the time for to the record. The authorities relied upon
filing his or her brief, he must first show good and shall be cited by the page of the report at
sufficient cause before the court and it is also which the case begins and the page of the
required that the motion for extension must be filed report on which the citation is found;
before the expiration of the time to file the brief.
7. Under the heading "Relief," a
specification of the order or judgment
which the appellant seeks; and
SECTION 13: APPELLANT’S REPLY BRIEF
8. In cases not brought up by record on
The appellant's brief shall contain, in the order appeal, the appellant's brief shall
herein indicated, the following: contain, as an appendix, a copy of the
judgment or final order appealed from.
1. A subject index of the matter in the brief
with a digest of the arguments and page Note: It is a must to comply with the requirements of
references, and a table of cases the contents of the appellant’s brief.
alphabetically arranged, textbooks and
statutes cited with references to the It is important that the appellant’s brief should
pages where they are cited; contain all which are enumerated in Section 13 of this
Rule. The right to appeal is a statutory right and may
be exercised only in the manner and in accordance
with the provisions of law.

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 committed by the trial court for which he/she seeks
As such, an appealing party must strictly comply with to obtain a reversal of the judgment, while the
the requisites laid down in the Rules of Court. statement of issues puts forth the questions of fact or
Deviations from the Rules cannot be tolerated. The law to be resolved by the appellate court (Ibid).
rationale for this strict attitude is not difficult to
appreciate as the Rules are designed to facilitate the Further, the Court of Appeals found that the
orderly disposition of appealed cases. Their Statement of Facts was not supported by page Page | 219
observance cannot be left to the whims and caprices references to the record. It was held that: “If a
of appellants. statement of fact is unaccompanied by a page
reference to the record, it may be presumed to be
Appeal dismissed as appellant’s brief did not contain without support in the record and may be stricken or
statement of facts and assigned errors (Bucad v. CA, disregarded altogether.” (Ibid)
G.R. No. 93783, December 11, 1992).
The assignment of errors and page references to the
The right to appeal is neither a natural right nor a part record in the statement of facts are important in an
of due process; it is merely a statutory privilege, and Appellant's Brief as the absence thereof is a basis for
may be exercised only in the manner and in the dismissal of an appeal under Section 1 (f), Rule 50,
accordance with the provisions of law. Thus, an of the 1997 Rules of Civil Procedure (Ibid).
appealing party must strictly comply with the
requisites laid down in the Rules of Court (Mendoza v.
UCPB, G.R. No. 165575, February 2, 2011). Assignment of errors

In this case, the Appellants' Brief of petitioners did not GR: Only errors specifically assigned and properly
have a subject index. The index is intended to argued in the brief will be considered, except errors
facilitate the review of appeals by providing ready affecting jurisdiction over the subject-matter, as well
reference, functioning much like a table of contents as plain and clerical errors (Regalado, 2008).
(Ibid).
XPNs: These errors may be considered on appeal,
Unlike in other jurisdictions, there is no limit on the even if not specifically assigned and argued in the
length of appeal briefs or appeal memoranda filed brief:
before appellate courts. The danger of this is the very
real possibility that the reviewing tribunal will be 1. Grounds not assigned as errors but
swamped with voluminous documents. This occurs affecting the jurisdiction over the
even though the rules consistently urge the parties to subject-matter;
be "brief" or "concise" in the drafting of pleadings,
briefs, and other papers to be filed in court. The 2. Matters not assigned as errors on appeal
subject index makes readily available at one's but are evidently plain or clerical errors
fingertips the subject of the contents of the brief so within the contemplation of law;
that the need to thumb through the brief page after
page to locate a party's arguments, or a particular 3. Matters not assigned as errors on appeal
citation, or whatever else needs to be found and but consideration of which is necessary in
considered, is obviated (Ibid). arriving at a just decision and complete
resolution of the case or to serve the
Moreover, the Appellants' Brief had no assignment of interests of justice or to avoid dispensing
errors, but petitioners insist that it is embodied in the piecemeal justice;
"Issues" of the brief. The requirement under Sec. 13,
Rule 44 of the 1997 Rules of Civil Procedure for an 4. Matters not specifically assigned as
"assignment of errors" in paragraph (b) thereof is errors on appeal but raised in the trial
different from a "statement of the issues of fact or court and are matters of record having
law" in paragraph (e) thereof (Ibid). some bearing on the issue submitted
which the parties failed to raise or which
An assignment of errors is an enumeration by the the lower court ignored;
appellant of the errors alleged to have been

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 5. Matters not assigned as errors on appeal Penaflorida, G.R. No. L-11583, July 19, 1957) but he
but closely related to an error assigned; can make a counter-assignment of errors in order to
and sustain the judgment (La Campaha Food Products,
Inc. v. PCIB, et al., G.R. L-16405, June 30, 1986).
6. Matters not assigned as errors on appeal
but upon which the determination of a An appellee, in his brief, can also argue on issues
Page | 220 question properly assigned is dependent raised at the trial to sustain the judgment in his favor
(Catholic Bishop of Balanga v. CA, et al., on other grounds, even if the same were not included
G.R. No. 112519, November 14, 1996). in the decision of the court a quo nor raised in
appellant’s assignment of errors of arguments.
Note: Substantial compliance is not enough Hence, the appellate court can affirm a judgment on
grounds ignored or erroneously decided by the lower
The requirements required by law must be strictly court (Carillo v. De Paz, G.R. No. L-22061, October 28,
followed as the right to appeal is a mere statutory 1966).
privilege.
The appellee, however, cannot assign such errors to
have the judgment modified for, to do so, he must
SECTION 14: CONTENTS OF APPELLEE’S BRIEF have appealed (Aparri v. CA, et al., G.R. No. L-15947,
April 30, 1965).
The appellee’s brief shall contain, in the order herein
indicated, the following:
SECTION 15: QUESTIONS THAT MAY BE
1. A subject index of the matter in the brief RAISED ON APPEAL
with a digest of the arguments and page
references, and a table of cases Whether or not the appellant has filed a motion for
alphabetically arranged, textbooks and new trial court below, he may include in his
statutes cited with references to the assignment of errors any question of law or fact that
pages where they are cited; has been raised in the court below and which is within
the issues framed by the parties.
2. Under the heading "Statement of Facts,"
the appellee shall state that he accepts GR: Parties cannot change their theory on appeal
the statement of facts in the appellant's and is bound by those issues raised and discussed
brief, or under the heading "Counter- during the proceedings in the lower court.
Statement of Facts," he shall point out
such insufficiencies or inaccuracies as he There is no dispute that the issue of timeliness of
believes exist in the appellant's respondents' Motion to Dismiss petitioners'
statement of facts with references to the Amended Complaint was not raised by petitioners
pages of the record in support thereof, before the RTC. Neither was this issue raised in their
but without repetition of matters in the Comment to respondents' petition for certiorari filed
appellant's statement of facts; and with the CA. It was only in their Motion for
Reconsideration of the CA Decision that this matter
3. Under the heading "Argument," the was raised. It is well established that issues raised for
appellee shall set forth his arguments in the first time on appeal and not raised in the
the case on each assignment of error with proceedings in the lower court are barred by
page references to the record. The estoppel. Points of law, theories, issues, and
authorities relied on shall be cited by the arguments not brought to the attention of the trial
page of the report at which the case court ought not to be considered by a reviewing
begins and the page of the report on court, as these cannot be raised for the first time on
which the citation is found. appeal. Basic considerations of due process impel the
adoption of this rule (Mercado v. Spouses Espina, G.R.
An appellee who has not also appealed cannot make No. 173987, February 25, 2013).
assignments of errors in his brief (Gorospe v.

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Moreover, respondent's filing of their Motion to does not affect or inure to the benefit of those who
Dismiss Amended Complaint may not be considered did not join or were made parties to the appeal.
as a circumvention of the rules of procedure. Under
Section 8, Rule 10 of the Rules of Court, an amended In cases where there are two or more defendants in
complaint supersedes an original one. As a the case and only one appealed the judgment
consequence, the original complaint is deemed imposed upon them, the reversal of such judgment
withdrawn and no longer considered part of the would only be binding upon the party who instituted Page | 221
record. In the present case, the Amended Complaint the appeal. As to the other defendants who did not
is, thus, treated as an entirely new complaint. As such, appeal, the expiration of the period to appeal would
respondents had every right to move for the dismissal make the judgment final and executory as to them.
of the said Amended Complaint. Were it not for the
filing of the said Motion, respondents would not have XPNs:
been able to file a petition for certiorari before the CA 1. Where both parties have commonality of
which, in turn, rendered the presently assailed interests
judgment in their favor (Ibid). 2. Where the rights and liabilities of both
parties are so interwoven and
CA was correct in dismissing the case as the factual dependent on each other as to be
and legal issues were not presented before the trial inseparable, in which case, the
court (Del Rosario v. Bonga, G.R. No. 136308, January modification of the appealed judgment
23, 2001). in favor of appellant operates as a
modification to the
XPNs: Parties can change their theory on appeal respondent/defendant who did not
when: appeal.

1. The evidence is already a part of the In case the liabilities of defendants being solidary, the
records or in other words, when the new above exception applies.
theory is already based on the evidence
submitted that ruling otherwise would Circumstances indicative of a commonality in the
result to blatant injustice. interests of the parties:

When the evidence is part of the records, one can a. Their rights and liabilities
change theory as there will be no need to introduce originate from only one source
additional evidence (Lianga Lumber Co. v. Lianga or title;
Timber Co., G.R. No. L-38685, March 31, 1977). b. Homogeneous evidence
establishes the existence of their
Theory changed since new theory was supported by rights and liabilities; and
evidence on record. The litigants cannot raise an issue c. Whatever judgment is rendered
for the first time on appeal, as this would contravene in the case or appeal, their rights
the basic rules of fair play and justice, EXCEPT when and liabilities will be affected,
substantial justice plainly requires, exempting a even if to varying extents
particular case from the operation of technicalities (Maricalum Mining Corp. v.
should not be subject to cavil (Sy v. CA, G.R. No. Remington Industrial, G.R. No.
127263, April 12, 2000). 15833, February 11, 2008).

2. Lack of jurisdiction over the subject In both of these cases, the reversal for one party shall
matter may be raised even on appeal operate as a reversal to all.

Reversal of Judgment on Appeal is binding only on Remedies of defendants who did not appeal when
the parties who appealed the judgment has already been executed
If for example, only one defendant appealed the
GR: The reversal of a judgement on appeal is generally judgment and such judgment has already been
binding only on the parties in the appealed case and executed as to the other defendants but the appellate
court reversed the decision of the lower court, the

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 other defendants who did not appeal and to whom
the judgment has been executed may file a motion
for restitution or reparation of damages under
Section 5, Rule 39.

Page | 222

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RULE 45: APPEAL BY CERTIORARI TO THE SUPREME Court or other courts whenever authorized by law,
COURT may file with the Supreme Court a verified
petition for review on certiorari. The petition shall
raise only questions of law which must be distinctly
Procedure for Appeal by Certiorari to the Supreme set forth.
Court
NOTE: The above rule was amended by A.M. 07-7- Page | 223
RTC/Sandiganbayan/CTA en banc/CA renders 12 SC to include the Court of Tax Appeals (CTA) in
a decision the list of courts from which an appeal may be
taken directly to the SC. The previous mode of
appeal from a CTA decision is to the Court of
Appeals through Rule 43. This is no longer the case
since the CTA is of the same rank as the CA
Any party files a verified petition for review on according to R.A. 9282.
certiorari within 15 days from notice of final
judgment or order of lower court or notice of NOTE: If the RTC rendered the judgment on its
denial of motion for reconsideration or new trial.
appellate jurisdiction, in the instances provided for
in Articles 42 and 43, the appeal shall be taken to
the CA even if only questions of law are raised by
the petitioner.

Appellant serves copies of petition on adverse NOTE: The petition for review on certiorari may
parties and to the lower court, and the include an application for a writ of preliminary
corresponding docket fees. injunction or other provisional remedies. The
petitioner may also seek the same provisional
remedies by verified motion filed in the same action
or proceeding at any time during its pendency (Sec. 1,
Rule 45, as amended by A.M. No. 07-7-12-SC effective
SC may dismiss the December 27, 2007).
petition or require the
appellee to comment. Only Questions of Law May be Raised in a Petition
for Review

The determination of a factual issue is generally

outside the province of the Supreme Court to
If given due course, parties may submit
memoranda. determine in a petition for review. Moreover, the
findings of facts of the trial court, as affirmed on
appeal by the CA, are conclusive on the SC. An
exception is when the Court of Appeals failed to take
into account certain relevant facts which, if properly
SC may affirm, reverse, or considered, would justify a different conclusion.
modify judgment of the
lower court. XPNs to the GR above:

1. When the finding is grounded entirely on

SECTION 1
speculations, surmise, or conjecture;
FILING OF PETITION WITH SUPREME COURT
2. When interference made is manifestly
absurd, mistaken, or impossible;
Filing of Petition with Supreme Court
3. When judgment is premised on a
misrepresentation of facts;
A party desiring to appeal by certiorari from a
4. When there is grave abuse of discretion in
judgment or final order or resolution of the Court of
the appreciation of facts;
Appeals, the Sandiganbayan, the Regional Trial
5. When the findings of fact are conflicting;

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 6. When the findings of fact are conclusions G.R. No. 177116, February 27, 2013; Leoncio v. De
without citation of specific evidence on Vera, G.R. No. 176842, February 18, 2008; Bernaldez
which they are based; V. Francia, G.R. No. 143929, February 28, 2003)
7. The findings of facts of the CA is premised
on the supposed evidence and is TEST: Whether the appellate court can determine
contradicted by the evidence on record; the issue raised without reviewing or evaluating the
Page | 224 8. When the CA in making its findings went
evidence. In which case, it is a question of law;
beyond the issues of the case and the
otherwise it is a question of fact. (Heirs of Villanueva
same is contrary to both the admissions
of appellants and appellees; v. Heirs of Mendoza, G.R. No. 209132, June 5, 2017).
9. When the findings of fact of the CA are at
variance with those of the trial court, the If the resolution does not require an evaluation of
SC has to review the evidence in order to proof but on a consideration of the applicable
arrive at the correct findings based on the provision of law, then it involves a question of law
record; (Republic v. CA, G.R. No. 119393, April 26, 2000).
10. When certain material facts and
circumstances have been overlooked by Petition for Review on Certiorari under Rule 45 vs.
the trial court which, if taken into Certiorari under Rule 65
account, would alter the result of the case
in that they would entitle the accused to
NOT alternative, but are MUTUALLY EXCLUSIVE.
acquittal; and
Rule 65 cannot be used as substitute for a lost
11. When the facts set forth in the petition as
appeal (Conejos v. CA, G.R. No. 149473, August 9,
well as in the petitioner’s main and reply
briefs are not disputed by the 2002).
respondents (Asian Terminals, Inc. v.
Simon Enterprises, Inc., G.R. No. 177116, PETITION FOR REVIEW SPECIAL CIVIL ACTION
February 27, 2013). ON CERTIORAIRI FOR CERTIORARI
RULE 45 RULE 65Rule 65
Differences between Questions of Law and
Questions of Fact Nature
A mode of appeal which A special civil action
QUESTIONS OF LAW QUESTIONS OF FACT seeks to review final that is an original
AS TO CERTAINTY OF FACTS INVOLVED judgments and orders action (Rule 65)
Material allegations of (Sec. 2, Rule 41). directed against an
fact are not Doubt or difference as A continuation of the interlocutory order or
controverted by either to the truth or appellate process over matters where no
party; thus, there is falsehood of facts, or the original case. appeal may be taken
certainty as to facts. as to probative value of from (Sec. 1, Rule 41).
The doubt lies on whet the evidence Not part of the
law is to be applied on presented. appellate process, it is
an independent action.
certain facts.
AS TO NECESSITY OF EVALUATING EVIDENCE
The appellate court can The determination of the
determine the issue issue involves evaluation Purpose
raised without or review of evidence. For the correction of For the correction of
errors of law – a errors of jurisdiction
reviewing or evaluating
mistake of judgment
the evidence.
Issues Raised
(Asian Terminals, Inc. v. Simon Enterprises, Inc.,
Raises questions of law Raises questions of
jurisdiction

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Period of Filing
Filed within 15 days Filed not later than 60 When a Petition for Certiorari under Rule 65 may be
from notice of days from notice of treated as a Petition for Review under Rule 45:
judgment, final order or judgment, order or
resolution appealed resolution sought to be A petition for certiorari may be treated as a petition
for review under Rule 45 in accordance with the
from. assailed, or from notice
liberal spirit pervading the Rules of Court and in the Page | 225
of denial of an MR or
interest of substantial justice, especially:
MNT.
Subject Matter 1. If the petition was filed within the
Only judgments or final An interlocutory order reglementary period for filing a petition for
orders and those that of the lower court prior review;
the Rules of Court so to an appeal from the 2. Errors of judgment are averred; and
declared judgment; or where 3. There is sufficient reason to justify the
there is no appeal or relaxation of the rules.
any plain, speedy or
adequate remedy. The nature of an action is determined by the
allegations of the complaint or petition and the
Effect to judgment appealed/judgment subject of
character of the relief sought. The Court explained: It
the petition
cannot be claimed that this petition is being used as a
Stays the judgment Does not stay the substitute for appeal after that remedy has been lost
sought to be appealed judgment or order through the fault of petitioner. Moreover, stripped of
subject of the petition, allegations of 'grave abuse of discretion,' the petition
unless enjoined or actually avers errors of judgment rather than of
restrained. jurisdiction, which are the subject of a petition for
Need for a Motion for Reconsideration review (Oaminal v. Castillo, 413 SCRA 189).
Does not require a prior Requires, as a general
motion for rule, a prior motion for
reconsideration reconsideration (Bases SECTION 2
TIME FOR FILING;; EXTENSION
Conversion and
Development Authority
Time for Filing
v. Uy, 506 SCRA 524).
Parties 1. Fifteen (15) days from notice of the judgment or
The parties are the The tribunal, board, or final order or resolution appealed from; or
original parties with the officer exercising 2. From the denial of the petitioner’s motion for
appealing party as the judicial or quasi-judicial new trial or reconsideration filed in due time
petitioner and the functions is impleaded after notice of judgment.
adverse party as the as respondent (Sec. 5
respondent, without Rule 65). Note: Neypes ruling (Fresh Period Rule) is applicable.
impleading the lower
Q: Can the period be extended?
court or its judge (Sec.
4(a), Rule 45).
A: Yes. Thirty (30) days, provided the petition was
Where Filed filed:
Filed with the SC (Sec. Filed with the RTC (Sec.
1, Rule 45). 21, BP 129); 1. For justifiable reasons;
With the CA (Sec. 9, BP 2. On motion duly filed and served;
129); or 3. Full payment of the docket fees;
With the SC (Sec. 5(1) 4. Payment of other lawful fees;
Article VIII, 1987 5. Deposit of costs; and
Constitution). 6. Filed before the expiration of the
reglementary period.

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 The Court has allowed the consideration of other
Note: Filing of the motion for extension must be done grounds not raised as errors specifically in the
within the period to file the petition itself, and it must following instances:
be accompanied with the payment of the required
fees. 1. Ground not assigned as errors, but affecting
jurisdiction over the subject matter;
Page | 226 SECTION 3 2. Matters not assigned as errors on appeal but
DOCKET AND OTHER LAWFUL FEES; PROOF OF are evidently plain or clerical errors within
SERVICE the contemplation of law;
3. Matters not assigned as errors on appeal,
Petitioner shall pay the following fees at the time of but consideration of which is necessary in
the filing of the petition: arriving at a just decision and complete
resolution to serve the interest of justice or
1. Docket fees; to avoid dispensing piecemeal justice;
2. Other lawful fees to the clerk of the Supreme 4. Matters not specifically assigned as errors on
Court; appeal, but raised in the trial court and are
3. Deposit costs amounting to P500. matters of record having some bearing on
the issue submitted which the parties failed
Proof of service of a copy thereof on the lower court to raise or which the lower court ignored;
concerned and on the adverse party shall be 5. Matters not assigned as errors on appeal,
submitted together with the petition. but closely related to an error assigned; and
6. Matters not assigned as errors on appeal,
Note: Period of time will not be tolled is the lower but upon which the determination if a
court concerned and the adverse party are not served question properly assigned is dependent.
with the copy of the petition. (Heirs of Yabao v. Paz Lentejas Van Der Kolk,
G.R. No. 207266, June 25, 2014)
SECTION 4
CONTENTS OF PETITION SECTION 5
DISMISSAL OR DENIAL OF PETITION
1. Full name of the appealing party as the
petitioner and the adverse party as respondent, 1. Failure to pay the required docket fee, other
without impleading the lower courts or judges; lawful fees, and deposit of costs;
2. Indicate the material dates 2. Failure to provide a proof of service of the
a. When notice of the subject petition on the lower court concerned and on
judgment or final order or resolution was the adverse party;
received; 3. Failure to comply with the required contents of
b. When motion for new trial or and the documents which should accompany
reconsideration, if any, was filed; and the petition. (Sec. 5, Rule 45)
c. Notice of denial was received
2. Concise statement of the matters involved, and Motu Proprio dismissal by the Supreme Court
the reasons or arguments relied on.
3. Clearly legible duplicate original , or a certified When the appeal is without merit, or is prosecuted
copy of the judgment or final order or resolution manifestly for delay, or that the questions raised are
certified by the clerk of the court a quo, and the to unsubstantial to require consideration.
requisite number of plain copies, and such
material portions of the record as would support A party cannot raise for the first time on appeal issues
the petition; and or theories which he could have raised timely before
4. Certificate of Non-Forum Shopping. the trial court.

The petition shall be filed in eighteen (18) legible XPNs:

copies, with the original copy intended for the court
being indicated as such. 1. New issue raised does not require the
presentation of new evidence; (Lianga

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 Lumber Co. v. Lianga Timber Co., G.R. No. Elevation of records
169314, March 14, 2008)
2. New issue raised is necessarily included in the If the petition is given due course, the Supreme Court
issues already presented. (Filipina Sy v. CA, may require the elevation of the
G.R. No. 127263, April 12, 2000)
a. Complete record of the case or
SECTION 6 b. Specified parts thereof Page | 227
REVIEW DISCRETIONARY
within 15 days from notice.
A review is not a matter of right, but of sound
discretion. SECTION 9
RULE APPLICABLE TO BOTH CIVIL AND CRIMINAL
Review is granted only when there are special and CASES
important reasons.
Applicability of Rule 45
The following measures must be taken into
consideration in exercising discretion: The mode of appeal under Rule 45 shall be applicable
to both civil and criminal cases.

a. Court a quo has decided a question of XPN: Criminal cases where the penalty imposed is:
substance, not determined by the Supreme 1. Death
Court, or has decided it in a way probably not 2. Reclusion perpetua
in accord with law or with the applicable 3. Life imprisonment
decisions of the Supreme Court; or

b. Court a quo has departed from the accepted RELEVANT CASES

and usual course of judicial proceedings, or
sanctioned such departure by a lower court, Republic v. CA
as to call for an exercise of the power of
supervision. Grave abuse of discretion is not an allowable ground
under Rule 45.
In case of penalty of death or reclusion perpetua, an
appeal is a matter of right leaving the reviewing Immaculate Conception Academy v. Camilon
court without any discretion. (Riano, 2016)
It is axiomatic that a party who does not appeal or file
SECTION 7 a petition for certiorari is not entitled to any
PLEADINGS AND DOCUMENTS THAT MAY BE affirmative relief. An appellee who is not an appellant
REQUIRED; SANCTIONS may assign errors in his brief where his purpose is to
maintain the judgment but ha cannot seek
To determine whether the petition should be modification or reversal of the judgment or claim
dismissed, denied, or given due course, the Supreme affirmative relief unless he has also appealed. Thus,
Court may require or allow the filing of such for failure of respondent to assail the validity of her
pleadings, briefs, memoranda or documents as it may dismissal, such ruling is no longer an issue.
deem necessary within such periods.
RULE 46: ORIGINAL CASES
The Supreme Court may also impose the
corresponding sanctions in case of non-filing or This rule applies to all cases originally filed with the
unauthorized filing of such pleadings and documents Court of Appeals. The CA is not only an appellate
or non-compliance with the conditions. court, but is also a court of original jurisdiction.

SECTION 8 Q: What are the original cases filed with the CA?
DUE COURSE; ELEVATION OF RECORDS
A:

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 1. Certiorari NOTE: Failure to comply with the foregoing
2. Mandamus requirements shall be sufficient ground for the
3. Prohibition dismissal of the petition.
4. Quo Warranto (Sec. 2, Rule 46)
SECTION 4: JURISDICTION OVER PERSON OF
SECTION 1: TITLE OF CASES RESPONDENT, HOW ACQUIRED
Page | 228
Q: How can the court acquire jurisdiction over the
person of the petitioner or respondent?
Party instituting the action: Petitioner
A: Not through summons. But:
Opposing party: Respondent
1. Jurisdiction over petitioner - by filing of the
SECTION 2: WHAT ACTIONS APPLICABLE petition
2. Jurisdiction over respondent - by service to
Certiorari, Mandamus, Prohibition (Rule 65), and Quo him of its order or resolution indicating its
Warranto (Rule 66). initial action on the petition or by his
voluntary submission. (e.g. order to
SECTION 3: CONTENTS AND FILING OF PETITION:
comment)
EFFECT OF NON-COMPLIANCE WITH
REQUIREMENTS NOTE: before you file an action for certiorari,
prohibition and mandamus, copies of it must
Contents
be served to the opposing party and to the
1. Full names and actual addresses of all tribunal/court/agency.
petitioners and respondents;
The respondent will not answer yet, but
2. Concise statement of the matters involved;
should wait for the CA to issue an order of
3. Factual background of the case;
comment.
4. Grounds relied upon for the relief prayed for;
5. In actions filed under Rule 65, indicate the Why? Because the CA can just dismiss the
material dates showing: petition on technical grounds.
a. Receipt of notice of judgment/final
order; SECTION 5: ACTION BY COURT
b. Filing of motion for new trial or
reconsideration, if any; and TWO ACTIONS:
c. Notice of denial thereof.
1. Dismiss the petition outright with specific
Requirements reasons for such dismissal
2. Require the respondent to file a comment on
1. Filed in seven (7) legible copies, with proof of the same within 10 days from notice.
service on the respondent;
2. Accompanied by clearly legible duplicate Only pleadings required by the court shall be allowed.
original or certified true copy of the All other pleadings and papers may be filed only with
judgment or final order or resolution; leave of court.
3. Certificate of non-forum shopping;
4. Payment of docket and other lawful fees; SECTION 6: DETERMINATION OF FACTUAL ISSUES
and
5. Deposit of the amount of P500.00. Q: When factual issues are raised, what are the
options of the Court of Appeals?
The CA cannot acquire jurisdiction over the subject
matter unless the docket fees are paid (Mendoza v. A: as provided under this section, the CA may:
CA, G.R. No. 148505, February 20, 2007).
1. Conduct hearings thereon; or

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 2. Delegate the reception of the evidence n Q: Does Rule 47 apply to actions to annul levy and
such issues to any of its members or to an sale at public auction, or actions to annul a writ of
appropriate court, agency or office execution?

For the resolution of the factual issues, delegation is A: No. The proper remedy in these cases is Rule 65.
allowed. Also, the CA, in the exercise of its original (Mejia-Espinoza v. Cariño, G.R. No. 193397, January
and appellate jurisdiction, can hear and receive 25, 2017) Page | 229
evidence.
Failure to file MNT, MR, or Relief from Judgment
The CA acting in its original jurisdiction even in attributable to the petitioner
mandamus may receive evidence.
Rule 47 can no longer be filed. It is not a substitute for
SECTION 7: EFFECT ON FAILURE TO FILE COMMENT MNT, appeal, or petition for relief.
Disobedient Party Three remedies to set aside a final and executory
judgment
A respondent who does not file a comment. In this
instance, the court may decide on the merits without 1. Petition for relief from judgment under Rule
prejudice to any disciplinary action.
38;
2. Direct action to annul judgment on the
If you do not file a comment, there is no declaration
ground of extrinsic fraud (Rule 47); and
of default. The court will just decide on the basis of
3. A direct action for certiorari or collateral
what was filed before it.
attack to annul a judgment that is void upon
RULE 47: ANNULMENT OF JUDGMENTS OF FINAL its face or void by virtue of its own recitals.
(Arcelona v. CA, G.R. No. 102900, October 2,
ORDERS AND RESOLUTIONS
1997)

SECTION 1: COVERAGE Requisites

Annulment by the CA of: 1. Petitioner can no longer resort to the

ordinary remedies of new trial, appeal,
1. Judgments; petition for relief, or other appropriate
2. Final orders; and remedies through no fault of the petitioner;
3. Resolutions of the Regional Trial Courts 2. The ground for the remedy is limited to
either extrinsic fraud or lack of jurisdiction;
For which the ordinary remedies of new trial, appeal,
3. The action must be filed: (a) in case of
petition for relief or other appropriate remedies are
extrinsic fraud, four years from the discovery
no longer available through no fault of the petitioner.
of the extrinsic fraud, or (b) if based on lack
of jurisdiction, it must be brought before it is
NOTE: Although an action for annulment of judgment
barred by laches or estoppel; and
can be originally filed with the CA, it is not covered by
4. Petition should be verified and should allege
Rule 46.
with particularity the facts and law relied
RTC’s Jurisdiction over Annulment of Judgment upon, and those supporting the petitioner’s
good and substantial cause of action or
If what is to be annulled is an MTC judgment, the RTC defense. (Encarnacion v. Johnson, G.R. No.
has jurisdiction. 192285, July 11, 2018)

Q: Does the RTC have jurisdiction to annul a DARAB Q: Can a person not a party to the judgment sue for
decision? its annulment?

A: No. Under the law, the RTC and the DARAB are co- A: Yes. A person not a party to the judgment may sue
equal. (Springfield Development Corp. v. Hon. for its annulment provided he can prove that the
Presiding Judge, G.R. No. 142928, February 6, 2007)

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 same was obtained through fraud or collusion and 1. Verified petition alleging therein:
that he would be adversely affected thereby. a. With particularity the facts and the
law relied upon for annulment, and
It may also be availed of even if the judgment to be b. Petitioner’s good and substantial
annulled had already been fully executed or cause of action or defense;
implemented. (Islamic Da’Wah Council of the 2. Seven (7) legible copies together with
Page | 230 Philippines v. CA, et. al., G.R. No. 80892, Sept. 29, sufficient copies corresponding to the
1989) number of respondents;
3. Certified true copy of the judgment or final
SECTION 2: GROUNDS FOR ANNULMENT order or resolution shall be attached to the
original copy of the petition;
Three grounds 4. Affidavits of witnesses or documents
supporting cause of action or defense; and
1. Extrinsic/Collateral Fraud 5. Certificate of non-forum shopping
2. Lack of Jurisdiction
3. Denial of Due Process SECTION 5: ACTION BY THE COURT & SECTION 6:
PROCEDURE
EXTRINSIC/COLLATERAL FRAUD
INITIAL STAGES:
Any fraudulent act of the prevailing party in the
litigation which is committed outside of the trial of 1. Preliminary evaluation of the merit;
the case, whereby the defeated party has been 2. Service of summons similar to ordinary civil
prevented from exhibiting fully his side of the case, by actions.
fraud or deception practiced on him by his opponent.
(Sibal v. Buquel, G.R. No. 197825, January 11, 2016) Q: What will be the action of the court once you file
a petition for annulment of judgment?
LACK OF JURISDICTION
A: Preliminary evaluation of the merit. The court may
Petitioner need not allege in the petition that the dismiss the petition if it has no merit, stating the
ordinary remedy of new trial or reconsideration of the specific reasons for such dismissal. This is a final
final order or judgment or appeal therefrom are no judgment.
longer available through no fault of his/her own.
However, if the CA finds prima facie merit, the
A judgment or final order by the RTC without petition will be given due course and the procedure in
jurisdiction is null and void and may be assailed any ordinary civil action will be observed.
time either collaterally or in a direct action. (Ancheta
v. Ancheta, G.R. No. 145370, March 4, 2004) The reception of evidence may be referred to a
member of the court or judge of the RTC, provided
DENIAL OF DUE PROCESS that, in cases of extrinsic fraud, the judge is not
involved in the said fraud.
An additional ground recognized by jurisprudence,
particularly in the case of Intestate Estate of the Late The CA will still render the decision despite such
Nimfa Sian v. PNB (G.R. No. 168882, January 31, referral.
2007).
NOTE: if the judgment sought to be annulled is about
SECTION 3: PERIOD FOR FILING ACTION to be or in the course of execution, the petitioner may
apply for the issuance of a temporary restraining
1. If based on extrinsic fraud: 4 years from order and/or a Writ of Preliminary Injunction.
discovery.
2. If based on lack of jurisdiction: before it is SECTION 7: EFFECT OF JUDGMENT
barred by laches or estoppel.
THREE DIFFERENT SCENARIOS WHEN GRANTED:
SECTION 4: FILING AND CONTENTS OF PETITION
1. No jurisdiction - refile in the proper court;

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 2. No indispensable party - refile, provided The judgment of annulment may include the award of
that the court has jurisdiction over the damages, attorney's fees and other relief.
subject matter and is the correct venue;
3. Extrinsic fraud - as if a Motion for New Trial If the questioned judgment or final order or
was timely filed. Additional evidence may be resolution had already been executed the court may
presented in support of the petitioner’s issue such orders of restitution or other relief as
cause of action or defense. justice and equity may warrant under the Page | 231
circumstances.
NOTE: if the judge is involved in the extrinsic
fraud, it should be refiled in another court. NOTE: if restitution can no longer be effected, the
relief may be in the form of compensation.
SECTION 8: SUSPENSION OF PRESCRIPTIVE PERIOD
SECTION 10: ANNULMENT OF JUDGMENTS OR
The prescriptive period for the refiling of the FINAL ORDERS OF MUNICIPAL TRIAL COURTS
aforesaid original action shall be deemed suspended
from the filing of such original action until the finality Where to file
of the judgment of annulment. However, the
prescriptive period shall not be suspended where the In the Regional Trial Court. It shall be treated as an
extrinsic-fraud is attributable to the plaintiff in the ordinary civil action and sections 2-4 and 7-9 shall
original action. apply.

NOTE: this section is for the benefit of the respondent RULE 48: PRELIMINARY CONFERENCE
in a petition for annulment of judgment.
Rules 48-56 pertain to the CA’s rules of procedure.
Q: What is the prescriptive period?
A Preliminary Conference is essentially the same as
A: 10 years - as prescriptive period for a breach of the pre-trial conference in the lower court.
written contract.
It can be availed of in the exercise of the CA’s original
ILLUSTRATIVE SITUATION: Dwight secured a or appellate jurisdiction, as the CA is a trier of facts.
judgment against Nathan for breach of contract which
was committed in 2009. However, the trial court Q: Is Preliminary Conference a matter of right?
never acquired jurisdiction over the person of
Nathan. Thus, Nathan filed a petition for annulment A: No. It is the CA who will call for a preliminary
of judgment in 2017. The earlier judgment in favor of conference. At most, the parties can only file a motion
Dwight was later annulled in 2020. Despite 2020 for the conduct of a preliminary conference.
being 11 years after 2009, and beyond the 10-year
prescriptive period, Dwight can still re-file the case RULE 49: ORAL ARGUMENT
until 2022 as the prescriptive period was suspended
in 2017 pursuant to Section 8 of Rule 47.
When allowed
Q: In the same situation, what if the ground was
1. At the court’s own instance
extrinsic fraud, and Dwight was found to have
2. Motion of the party
deliberately caused the said fraud?
NOTE: Unless authorized by the court, only
A: Dwight’s right to refile the original action has
one counsel may argue for the party (Section
prescribed. If the fraud was committed by the
2, Rule 49)
plaintiff, there will be no suspension of the running of
the period. In this case, Dwight caused the extrinsic The court may hear the parties in oral argument on
fraud. Therefore, he loses the benefit of Section 8 of (1) the merits of a case, or (2) on any material incident
Rule 47, and can no longer refile the case having gone in connection therewith.
beyond the 10-year prescriptive period.

SECTION 9: RELIEF AVAILABLE

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 The oral argument shall be limited to such matters as (h) Failure of the appellant to appear at the
the court may specify in its order or resolution. preliminary conference under Rule 48 or to comply
(Section 1, Rule 49) with orders, circulars, or directives of the court
without justifiable cause; and
The court shall direct the duration allowed for each
party, the sequence of argumentation, and all other (i) The fact that the order or judgment appealed from
Page | 232 related matters. (Section 2, Rule 49) is not appealable.

No hearing or oral argument for motions NOTE: These grounds are directory, not mandatory. It
is not ministerial on the part of the court to dismiss
Motions shall not be set for hearing and, unless the the appeal.
court otherwise directs, no hearing or oral argument
shall be allowed in support thereof. The adverse party The enumeration is not exclusive.
may file objections to the motion within five (5) days
from service, upon the expiration of which such Other grounds for dismissal of appeal:
motion shall be deemed submitted for resolution.
(Section 3, Rule 49) 1. By agreement of the parties
2. When the appeal has been rendered moot
RULE 50: DISMISSAL OF APPEAL and academic

SECTION 2: DISMISSAL OF IMPROPER APPEAL TO

SECTION 1: GROUNDS FOR DISMISSAL OF APPEAL
THE COURT OF APPEALS
(a) Failure of the record on appeal to show on its face
Improper appeals
that the appeal was taken within the period fixed by
these Rules; 1. An appeal under Rule 41 taken from the RTC
to the CA raising only pure questions of law;
(b) Failure to file the notice of appeal or the record on
and
appeal within the period prescribed by these Rules;
NOTE: Under Rule 41, when there are only
(c) Failure of the appellant to pay the docket and
pure questions of law, it should be appealed
other lawful fees as provided in section 5, Rule 40 and
directly to the SC.
section 4 of Rule 41; (Bar Matter No. 803, 17 February
1998) 2. An appeal by notice of appeal instead of by
petition for review from the appellate
(d) Unauthorized alterations, omissions or additions
judgment of a RTC.
in the approved record on appeal as provided in
section 4 of Rule 44; When an appeal is dismissed, it will no longer be
remanded. Dismissal is thus fatal, and a wrong mode
(e) Failure of the appellant to serve and file the
of appeal would mean that the decision becomes final
required number of copies of his brief or
and executory.
memorandum within the time provided by these
Rules; SECTION 3: WITHDRAWAL OF APPEAL
(f) Absence of specific assignment of errors in the 1. As a matter of right - before the filing of the
appellant's brief, or of page references to the record appellee’s brief
as required in section 13, paragraphs (a), (c), (d) and 2. Discretionary - after filing of appellee’s brief
(f) of Rule 44;
RTC’s power to dismiss outright - limited
(g) Failure of the appellant to take the necessary steps
for the correction or completion of the record within There are only two instances:
the time limited by the court in its order;
1. Failure to file the notice of appeal within the
reglementary period; and

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 2. Failure to pay the docket fees. (Philippine SECTION 3. QUORUM AND VOTING IN THE
Bank v. CA, G.R. No. 218901, February 15, COURT
2017)
What constitute a quorum in a division?

RULE 51: JUDGMENT ON APPEAL The participation of all three Justices of a division shall
be necessary at the deliberation and the unanimous
Page | 233
vote of the three Justices shall be required for the
pronouncement of a judgment or final resolution.
SECTION 1: WHEN THE CASE SUBMITTED FOR
JUDGMENT

A. In ordinary appeals: In case there is no unanimous votes:

1. Where no hearing on the merits of the main case 1. The clerk shall enter the votes of the dissenting
is held, upon the filing of the last pleading, brief, or Justices in the record;
memorandum required by the Rules or by the court
itself, or the expiration of the period for its filing. 2. The Chairman of the division shall refer the case
to the Presiding Justice, who shall designate two
2. Where such a hearing is held, upon its Justices chosen by raffle to sit temporarily with
termination or upon the filing of the last pleading them, forming a special division of five Justices.
or memorandum as may be required or permitted
to be filed by the court, or the expiration of the 3. The participation of all the five members of the
period for its filing. special division shall be necessary for the
deliberation required in Section 2 of this Rule, and
B. In original actions and petitions for review: the concurrence of a majority of such division shall
be required for the pronouncement of a judgment
1. Where no comment is filed, upon the expiration or final resolution.
of the period to comment.
SECTION 4: DISPOSITION OF A CASE
2. Where no hearing is held, upon the filing of the
last pleading required or permitted to be filed by The Court of Appeals, in the exercise of its
the court, or the expiration of the period for its jurisdiction, may affirm, reverse, or modify the
filing. judgment or final order appealed from.

3. Where a hearing on the merits of the main case

is held, upon its termination or upon the filing of
the last pleading or memorandum as may be The Court of Appeals may also direct a new trial or
required or permitted to be filed by the court, or further proceedings.
the expiration of the period for its filing.
In this case, the case may be:

a. Remanded to the trial court; or

SECTION 2: BY WHOM RENDERED
b. The Court of Appeals can receive evidence
Who shall render the judgment? and perform all acts necessary to resolve the
factual issues.
The judgment shall be rendered by the members of
the court who participated in the deliberation on the This may be exercised in cases falling within the
merits of the case before its assignment to a member court’s original jurisdiction, and/or falling within the
for the writing of the decision. court’s appellate jurisdiction wherein a motion for
new trial is based only on the ground of a newly
discovered evidence.

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 4. Execution of the judgment of affirmance may be
had accordingly, and costs may be adjudged in such
SECTION 5: FORM OF DECISION cases as the court shall deem proper.

The form of a decision on appeal shall: SECTION 8: QUESTIONS THAT MAY BE DECIDED
ON APPEAL
Page | 234 Clearly and distinctly state the findings of fact and the
conclusions of law on which it is based which:
What are the questions or matters that can be
decided on appeal?
a. May be contained in the decision or final
No error which does not affect the jurisdiction over
resolution itself; or
the subject matter or the validity of the judgment
appealed from or the proceedings therein shall be
b. Adopted from those set forth in the
considered unless:
decision, order, or resolution appealed from.
1. Stated in the assignment of errors; or
2. Closely related to or dependent on an assigned
error and properly argued in the brief, save as the
SECTION 6: HARMLESS ERROR court may pass upon plain errors and clerical
errors. (Philippine Hawk Corporation vs. Vivian
What is the effect of harmless error committed by Tan Lee, G.R. No. 166869, 16 February 2010).
the trial court?
SECTION 9: PROMULGATION AND NOTICE OF
No error in either the admission or the exclusion of JUDGMENT
evidence, and no error or defect in any ruling or order What is the rule in case of promulgation of
or in anything done or omitted by the trial court or by judgment?
any of the parties is ground for granting a new trial After the judgment or final resolution and dissenting
or for setting aside, modifying or otherwise or separate opinions, if any, are assigned by the
disturbing a judgment or order, unless refusal to take Justices taking part they shall be delivered for filing to
such action appears to the court inconsistent with the clerk who shall indicate thereon the date of
substantial justice. promulgation and cause true copies thereof to be
served upon the parties or their counsel.
The court at every stage of the proceeding must A decision must not only be signed by the Justices
disregard any error or defect which does not affect who took part in the deliberation, but must also be
the substantial rights of the parties. promulgated to be considered a Decision. A true
Decision of the Court is the decision signed by the
Justices and duly promulgated. (Limkiachong v.
COMELEC, G.R. No. 178831-32, 30 July 2009)
SECTION 7: JUDGMENT WHERE THERE ARE
SEVERAL PARTIES SECTION 10: ENTRY OF JUDGMENT AND FINAL
RESOLUTION
How will the judgment be made when there are
several parties? When can entry of judgment be done?
If no appeal or motion for new trial or reconsideration
In all actions or proceedings, an appealed judgment is filed within the time provided in these Rules.
may be: Entry of judgment:
The date when the judgment or final resolution
1. Affirmed as to some of the appellants; becomes executory shall be deemed as the date of its
entry.
2. Reversed as to others;
Contents:
The record shall contain the dispositive part of the
3. The case shall thereafter be proceeded with, so
judgment or final resolution, and shall be signed by
far as necessary, as if separate actions had been
the clerk; with a certificate that such judgment or final
begun and prosecuted; and
resolution has become final and executory.

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Necessity of Entry of Judgment for the issuance of a The period does not apply to the Supreme Court
writ of execution. pursuant to Section 2(b) of Rule 56.
Section 1, Rule 39 of the Rules of Court requires that
the motion filed with the court of origin must be Stay of Execution – Effect:
accompanied by certified true copies of the judgment The pendency of a motion for reconsideration filed on
or judgments or final order or orders sought to be time and by the proper party shall stay the execution
enforced and the entry of such judgment or final of the judgment or final resolution sought to be Page | 235
order. reconsidered unless the court, for good reasons, shall
Where the judgment or final order is ordered to be otherwise direct. (Sec. 4, Rule 52, RoC)
immediately executory, an entry of judgment is no
longer necessary. (Natalia Realty vs. CA and Antonio Denial of Motion for Reconsideration:
Martinez et. al, G.R. No. 126462, 12 November 2002) Apply the Neypes Rule granting a fresh period within
which to file a petition for review under Rule 45.
SECTION 11: EXECUTION OF JUDGMENT
RULE 53: MOTION FOR NEW TRIAL
Where to file a motion for execution?
Except where the judgment or final order or
resolution, or a portion thereof, is ordered to be Period for Filing:
immediately executory, the motion for its execution A motion for new trial may be filed at any time after
may only be filed in the proper court after its entry. the perfection of the appeal from the decision of the
lower court, and before the Court of Appeals loses
In original actions in the Court of Appeals, the writ of jurisdiction over the case. (Sec. 1, Rule 53, RoC)
execution must be accompanied by a certified true The Court of Appeals loses jurisdiction when the
copy of the entry of judgment or final resolution, and period to file a Motion for New Trial had already
addressed to any appropriate officer for its lapsed, or upon appeal to the Supreme Court, who
enforcement. took cognizance.

What is the rule on execution pending appeal? The motion shall be accompanied by affidavits
The resolution granting the motion shall be: showing the facts constituting the grounds and the
1. Transmitted to the lower court from which the newly discovered evidence.
case originated, together with a certified true copy Filing - Ground
of the judgment or final order to be executed; and A motion for new trial may be filed on the ground of
2. A directive for such court of origin to issue the newly discovered evidence which could not have
proper writ for its enforcement. been discovered prior to the trial in the court below
by the exercise of due diligence and which is of such
a character as would probably change the result.
RULE 52: MOTION FOR RECONSIDERATION The ground of newly discovered evidence may be
used by a party for the filing of a Motion for New Trial
Period for Filing: with:
A party may file a motion for reconsideration of a a. The trial court under Rule 37; and
judgment or final resolution within 15 days from b. The Court of Appeals under Rule 53.
notice thereof, with proof of service on the adverse
party. (Sec. 1, Rule 52, RoC) Newly Discovered Evidence – Requirements:
1. The evidence was discovered after trial;
Second Motion for Reconsideration: 2. The evidence could not have been discovered
No second motion for reconsideration by the same and produced at the trial even with the exercise of
party shall be entertained. (Sec. 2, Rule 52, RoC) reasonable diligence;
3. The evidence is material, not merely cumulative,
Resolution of the Motion: corroborative, or impeaching; and
In the Court of Appeals, a motion for reconsideration 4. The evidence would probably change the
shall be resolved within 90 days from the date when judgment if admitted.
the court declares it submitted for resolution. (Sec. 3,
Rule 52, RoC) Hearing and Order:

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 The Court of Appeals shall: Quorum in Sessions of a Division:
1. Consider new evidence together with that Three members shall constitute a quorum for the
adduced at the trial below, and may grant or refuse sessions of a division.
a new trial;
2. May make such order, with notice to both Votes necessary to pass a resolution of the court en
parties, as to the taking of further testimony, either banc:
Page | 236 orally in court or by depositions; or The affirmative votes of the majority of the members
3. Render such other judgment as ought to be present shall be necessary to pass a resolution.
rendered upon such terms as it may deem just.
(Sec. 2, Rule 53, RoC) Votes necessary for the pronouncement of a
Resolution of Motion: judgment or a final resolution in Sessions of a
In the Court of Appeals, the motion for new trial Division:
shall be resolved within 909 days from the date The affirmative votes of three members of a division
when the court declares it submitted for resolution. shall be necessary for the pronouncement of a
(Sec. 3, Rule 53) judgment or final resolution.

Procedure in New Trial: RULE 55: PUBLICATION OF JUDGMENTS AND

Unless the court otherwise directs, the procedure
FINAL RESOLUTIONS
in the new trial shall be the same as that granted by
a Regional Trial Court. (Sec. 4, Rule 53, RoC)
The Court of Appeals shall have the power to try SECTION 1: PUBLICATION
cases and conduct hearings, receive evidence, and
perform any and all acts necessary to resolve The publications of judgments and final resolutions
factual issues raised in cases falling within its of the court shall be:
original and appellate jurisdiction, including the a. In the Official Gazette and in the Reports
power to grant and conduct new trial or further officially authorized by the court;
proceedings. b. In the language in which they have been
originally written; and
RULE 54: MOTION FOR RECONSIDERATION c. Together with the syllabi prepared by the
reported in consultation with the writers.
Memoranda of all other judgments and final
SECTION 1: DISTRIBUTION OF CASES AMONG resolutions not so published shall be made by the
DIVISIONS reporter and published in the Official Gazette and the
authorized reports.
The Court of Appeals, sitting en banc, shall make
proper orders or rules to govern: SECTION 2: PREPARATION OF OPINIONS FOR
1. The allotment of cases among the different PUBLICATION
divisions; The reporter shall prepare and publish with each
2. The constitution of such division; reported judgment and final resolution:
3. The regular rotation of Justices among them; a. A concise synopsis of the facts necessary
4. The filing of vacancies occurring therein; and for a clear understanding of the case;
5. Other matters relating to the business of the b. The names of the counsel;
court. c. The material and controverted points
involved;
Such rules shall continue in force until repealed or d. The authorities cited therein; and
altered by it or by the Supreme Court. e. A syllabus which shall be confined to
points of law.
SECTION 2: QUORUM OF THE COURT
Quorum in Sessions en banc: SECTION 3: GENERAL MAKE-UP OF VOLUMES
A majority of the actual members of the court shall
constitute a quorum.

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 1. The published decisions and final resolutions of NOTE: Even if the RTC, CA, and SC have concurrent
the Supreme Court shall be called “Philippine jurisdiction over these cases. Please do not forget the
Reports.” doctrine of Hierarchy of Courts rule.

2. The published decisions and final resolutions of SECTION 2: RULES APPLICABLE

the Court of Appeals shall be called “Court of
Appeals Reports.” Some CA Rules are applicable to the SC: Page | 237
The Volumes shall: 1. Rule 46 Original Actions in the CA
2. Rule 48 Preliminary Conference
a. Contain a table of cases reported, and the 3. Rule 49 Hearings on Oral Arguments
cases cited in the opinions; 4. Rule 51 Judgment
b. A complete alphabetical index of the 5. Rule 52 Motion for Reconsideration
subject matters of the volume; SECTION 3: MODE OF APPEAL

c. Consist of not less than seven hundred Mode of Appeal

(700) pages;
An appeal with the SC may be taken only via Petition
d. Printed upon good paper, well bound; and for Review on Certiorari except in criminal cases
e. Numbered consecutively in the order of where the penalty imposed is death, reclusion
the volumes published. perpetua or life imprisonment.

PROCEDURE IN THE SUPREME COURT The appeal should be governed by and disposed of in
accordance with the applicable provisions of the
RULE 56: ORIGINAL / APPEALED CASES Constitution.

SECTION 4: PROCEDURE
Two (2) Important rules to remember:

1. Rules on e-filing (A.M. No. 10-3-7-SC) Grounds for Dismissal of Appeal

- When you file a pleading before the SC, it
must be accompanied by a disc of a flash The appeal before the SC may be dismissed motu
drive containing the soft copy of your proprio or on a motion by the respondent for the
pleading. following grounds:

1. Failure to take an appeal within the reglementary

2. Rules for efficient use of paper (A.M. No. 11-9-4-SC) period
- Single space, 14 2. Lack of merit
3. Failure to pay the requisite docket fees and other
SECTION 1: ORIGINAL CASES COGNIZABLE lawful fees
4. Failure to comply with the requirements of proof of
Original cases cognizable service and the documents
1. Petitions for Certiorari 5. Failure to comply with any circular, directive or
2. Petitions for Prohibition order of the Supreme Court without justifiable cause
3. Petition for Mandamus 5. Error on the choice of the mode of appeal
4. Petition for Quo-Warranto 6. The fact that the case is not appealable to the
5. Petition for Habeas Corpus Supreme Court.
6. Disciplinary proceeding against members of the
judiciary and attorneys, and NOTE: Wrong mode of appeal - dismissed
7. Cases affecting ambassadors, other public
ministers and consuls may be filed originally in the Q: Can you file or demand that the case be heard by
Supreme Court. the SC en banc?

A: NO, you cannot demand it as a matter of right.

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 The following were considered as en banc cases: Preliminary Attachment and Preliminary Injunction
may be availed of at any stage but before the entry of
1. Cases where it involves the constitutionality or final judgment.
validity of any treaty, international or executive
agreement, law, executive order, or Presidential Receivership may be availed of even at the execution
Decree, proclamation, order, instruction, process. (Sec 40, Rule 39)
Page | 238 ordinance, or regulation in question;
2. Criminal cases especially when the appealed Replevin must be availed before the defendant files
decision involves death; his answer.
3. Cases raising novel questions of law;
4. Cases involving ambassadors, other public Support Pendente Lite may be sought at any stage,
ministers and consuls; even first time on appeal.
5. Cases involving the CSC, COMELEC and COA;
6. Cases where the penalty is one of dismissal of a RULE 57: PRELIMINARY ATTACHMENT
judge, officer of the judiciary, disbarment of a
lawyer;
Attachment is defined as a provisional remedy by
7. Cases where a doctrine or principle will now have
which the property of an adverse party is taken into
to be modified or reversed;
legal custody, either at the commencement of an
8. Cases assigned in a division in which the opinion
action or at any time thereafter, as a security for the
of at least three (3) members thereof merit the
satisfaction of any judgment that may be recovered
attention of the court en banc; and
by the plaintiff or any proper party.
9. All other cases of the court en banc by vote of
majority may be deemed of sufficient importance SECTION 1: GROUNDS UPON WHICH ATTACHMENT
to merit its attention.(Firestone Ceramic vs. CA, MAY ISSUE
G.R. No. 127022, June 28, 2000)
When Preliminary Attachment may be applied

PROVISIONAL REMEDIES An order and writ of preliminary attachment may be

applied for (a) at the commencement of the action or
GENERAL PRINCIPLES
(b) at any time before entry of judgment
The provisional remedies are:
Filing of preliminary attachment may be done upon
1. Preliminary Attachment (Rule 57)
filing of the complaint the application is integrated or
2. Preliminary Injunction (Rule 58)
incorporated thereto; or may be filed separately.
3. Receivership (Rule 59)
4. Replevin (Rule 60)
Who may avail
5. Support Pendente Lite (Rule 61)
The plaintiff or any proper party may have the
Nature of Provisional Remedies
property of the adverse party attached. Therefore,
even the defendant can ask for a preliminary
Provisional Remedies are temporary measures made
attachment, especially so if he files a permissive
available during the pendency of the action by a
counter-claim, upon the property of the adverse party
litigant to protect his interests and rights for the
attached as a security for the satisfaction of the debt.
purpose of the ultimate effects of a final judgment.
Q: If there is a real estate mortgage constituted in
NOTE: Inferior courts can grant all provisional
favor of the plaintiff, can the plaintiff still ask for writ
remedies except Support pendente lite which only
of preliminary attachment?
the RTC acting as a family court can grant it thus MTC
cannot grant support pendent lite.
A: if the property mortgaged is sufficient to cover the
debt – no more because there is a security for the
When can Provisional Remedies be availed
satisfaction of the debt.

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You only file writ of preliminary attachment if you only issue the writ of preliminary attachment if the
think you have the ground and that you do not want court has jurisdiction over the main action.
the decision to be a mere paper victory.
Provisional Remedy
Grounds for the issuance of a writ of preliminary
attachment If the judgement has attained finality do not ask for
writ of preliminary attachment but rather ask for a Page | 239
1. Recovery of a specified amount of money or writ of execution.
damages against a party who is about to depart from
the Philippines with the intent to defraud his A writ of preliminary attachment is a provisional
creditors. remedy issued by the court where an action is
pending. A writ of preliminary attachment allows the
2. Action for money or property embezzled or levy of a property or the garnishment of a sum of
fraudulently misapplied or converted to his own use money that will stand as security for the satisfaction
by an officer in the course of his employment or for a of the judgment that the court may render in favor of
willful violation of duty. the attaching party. (Tsuneishi Heavy Industries vs.
MIS Maritime Corp., G.R. No. 193572, Apr. 4, 2018).
NOTE: this is malversation, preliminary attachment
may likewise be granted in criminal proceedings but Not a matter of right
the basis is not under the rules of court but based in
criminal procedure. Preliminary attachment is not a matter of right. It is
discretionary, there is nothing in rule 57 that indicates
3. Recovery of property unjustly or fraudulently that it is a ministerial duty if the court to issue a writ
taken, detained or converted, when the property, or of preliminary attachment. The grant of the remedy is
any part thereof, has been concealed, removed, or based on the discretion of the court which can only be
disposed of to prevent its being found or taken by exercised if you comply with all the requirements
applicant or authorized person. stated in the Rule.

4. Action against a party who has been guilty of fraud Purpose of preliminary attachment
in contracting the debt or incurring the obligation
upon which the action is brought, or in the 1. To seize the property of the debtor in advance of
performance thereof a final judgement and hold it for the purpose of
satisfying the eventual final judgement.
NOTE: Fraud should be committed upon contracting
the obligation sued upon (Foundation Specialist, Inc. It is to assure that in case you win it is not a mere
v. Betonval Ready Concrete) paper victory, as you can execute the judgement
with regards to the attached property.
5. Action against a party who has removed or
disposed of his property, or is about to do so, with 2. To enable the court to acquire jurisdiction over
intent to defraud his creditors. the action by the actual or constructive seizure of
the property.
6. Action against a party who does not reside and is
not found in the Philippines, or on whom summons In case of extra-territorial summons, sometimes
may be served by publication. you cannot locate the whereabouts of the
defendant, maybe he was hiding to defraud his
NOTE: Insolvency is not a ground for the application creditors, but the subject is located here in the
and issuance of writ of preliminary attachment. Philippines. What you will do is to ask for a writ
of preliminary attachment so that the court may
Ancillary nature acquire jurisdiction over the res and the court
may proceed.
Attachment is mere ancillary proceeding. It cannot be
an independent action, which means the court can It is to transform an action in personam to an
action quasi in rem – so that the court may

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 acquire jurisdiction over those cases which Aside from the affidavit executed, the party applying
personal summons or substituted summons for an order of preliminary attachment must post a
cannot be effected. bond in the amount fixed by the court and executed
to the adverse party. This is called an attachment
NOTE: Writ of preliminary attachment may be issued bond.
ex parte
Page | 240 Content of the affidavit
In Davao Light, the SC said that when you say at the
commencement of the action, the court can act on it 1. Sufficient cause of action exists;
even if it had not attained jurisdiction over the person 2. The case is one of those mentioned in Sec. 1 of
of the defendant. It can entertain your application for Rule 57;
the issuance of the writ of preliminary attachment 3. That there is no other sufficient security for the
claim sought to be enforced by the action; and
Notice and hearing 4. That the amount due to the applicant, or the
value of the property the possession of which he
There is nothing in the Rules of Court which makes is entitled to recover, is as much as the sum for
notice and hearing indispensable and mandatory for which the order is granted above all legal
the issuance of a writ of attachment. It is simply the counterclaims.
duty of the court to ensure that the writ is issued on
concrete and specific grounds and not on general SECTION 4: CONDITION OF APPLICANT’S BOND
averments. (Uy v. CA, 215 SCRA 859)
Purpose of the applicant’s bond
What are the properties that can be attached?
The bond must be executed in favor of the adverse
1. Those properties that are not exempt from party and the condition of the bond is that, by the
execution (Sec, 13 Rule 39) party applying for an order of attachment, of all costs
2. Properties that are not owned by the defendant which the adverse party may be adjudged as entitled
(owned by a stranger – Sec. 16, Rule 39) to and all damages which he may sustain by reason
of the attachment, if it shall be finally adjudged that
SECTION 2: ISSUANCE AND CONTENTS OF ORDER the party applying for attachment was not entitled
thereto.
Why is ex parte allowed?
How much is the bond?
Generally, the application for the writ of preliminary
attachment is done incognito. It will be determined by the court

So for example, a debtor was intending to depart with How to claim?

intent to defraud and then he knew of the application,
as a consequence he will then thoroughly hide his Raise it by way of counter-claim the damages
property. So common sense will tell us that the sustained by reason of the attachment. It is needed to
application should be done incognito so that the be raised because the party claiming for damages
debtor would not have time to hide his properties. needs to prove that he indeed sustained damages and
also the surety must be notified also to be given the
SECTION 3: AFFIDAVIT AND BOND REQUIRED opportunity to be heard. It is also important that the
judgement contains such findings.
Requisites for the issuance of an order of Preliminary
Attachment Three (3) Stages in the grant of Preliminary
Attachment
An order of attachment shall be granted only upon
the filing of affidavit and bond. These must be duly 1. The court issues the order granting the
filed with the court before the order of the application.
attachment is issued. 2. The writ of attachment issues pursuant to the
order granting the writ.

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3. The writ is implemented. the property in the Philippines of the party against
whom the writ is issued, not exempt from execution,
NOTE: For stage 1 and 2 the court need not acquire as may be sufficient to satisfy the applicant’s demand.
jurisdiction over the person of the defendant
however in stage 3 the court needs to acquire XPN: The adverse party makes a deposit with the
jurisdiction over the person of the defendant. court from which the writ is issued, or gives a counter-
bong executed to the applicant, in an amount equal Page | 241
SECTION 5: MANNER OF ATTACHING PROPERTY to the bond fixed by the court in the order of the
attachment or to the value of the property to be
No levy on attachment pursuant to the writ of attached, exclusive of costs.
preliminary attachment shall be enforced unless it is
preceded or contemporaneously accompanied, by SECTION 7: ATTACHMENT OF REAL AND PERSONAL
the service of summons, together with a copy of the PROPERTY
complaint, the application for attachment, the
applicant’s affidavit and bond and the order and writ Attachment of real and personal property is almost
of attachment, on the defendant within the the same as enforcing a judgment
Philippines
How to attach
In Manila v. CA, The writ of preliminary attachment
was served and the property was attached. 1. Real property
Thereafter, there was a belated issuance of an alias
service of summons, which happened months after. By filing with the registry of deeds:

The SC then stated that the writ of preliminary a. A copy of the order;
attachment needs to be dissolved because the court b. A description of the property attached; and
was not able to acquire jurisdiction over the person of c. A notice that it is attached, or that such real
the defendant at the time the writ of preliminary property and any interest therein held by or
attachment was implemented. It will not be given standing in the name of such other person are
retroactive effect. attached.

GR: The sheriff is not allowed to make a levy on 2. personal property capable of manual delivery
attachment if such levy is not preceded or
contemporaneously accompanied by the required By the sheriff taking and safely keeping it in his
documents. custody, after issuing the corresponding receipt.
Notice that the sheriff would not give it to the parties,
XPN: The rule on prior or contemporaneous service of it will be in custodia legis.
summons shall not apply in the following:
3. Stocks, shares or interest in stocks or shares of
1. The summons could not be served personally any corporation or company
despite diligent efforts.
2. The summons could not be served by substituted By leaving with the president or managing agent
service despite diligent efforts. thereof:
3. The defendant is a resident of the Philippines
temporarily absent therefrom. a. A copy of the writ; and
4. The defendant is a non-resident of the b. A notice stating that the stock or interest of
Philippines. the party against whom the attachment is
5. The action is one in rem or quasi in rem. issued is attached in pursuance of such writ.

Manner of attaching property 4. Debts and credits, bank deposits, financial

interests, royalties, commission and other
GR: The sheriff enforcing the writ shall, without delay personal property not capable of manual
and with all reasonable diligence. attach, to await delivery
judgment and execution of an action, only so much of

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 By leaving with the person owing debts or having in 1. By filing a motion to discharge the attachment
his possession and control, such credits or other and making a deposit or counter-bond
personal property, or with his agent:
2. By filing a motion to set aside or discharge the
a. A copy of the writ; and attachment on the grounds:
b. A notice that the debts owed by him to the a. The attachment is improperly and irregularly
Page | 242 party against whom the attachment is issued issued or enforced.
and the credits and other personal property NOTE: in this ground there must be a hearing
in his possession, or under his control, b. The bond is insufficient
belonging to said party, are attached in c. The attachment is excessive (discharged
pursuance of such writ. shall be limited to the excess)
d. The property is exempt from execution and
SECTION 8: EFFECT OF ATTACHMENT OF DEBTS, such is also exempt from preliminary
CREDITS, AND ALL OTHER SIMILAR PERSONAL attachment.
PROPERTY
Purpose of discharge
Basically the effect is that the property now would be
in custodia legis. It is already segregated so in the The purpose of discharge is to remove or lift the writ
event that the attaching creditor wins, those of preliminary attachment so that the property will be
properties can now be sold in public auction and the freed. So if you want to free the property from the
proceeds of which can be now be applied to the attachment all you have to do is to host a counter-
judgement debt bond.
SECTION 11: WHEN ATTACHED PROPERTY MAY BE
The party, whose property is sought to be attached,
SOLD AFTER LEVY ON ATTACHMENT AND BEFORE
may prevent the enforcement of the writ by
ENTRY OF JUDGMENT
depositing to the court from which the request was
issued a counter-bond executed in favor of the
Sale of Property covered by a Writ of Preliminary
applicant.
Attachment before Entry of Judgement
How much is the counter-bond
GR: Property may not be sold. A writ of preliminary
attachment is a provisional remedy and its issuance
It is the amount equal to the amount fixed by the
does not have the effect of final judgement over the
court in the order of attachment or the value of the
property attached.
property that was attached exclusive of cost.
XPN: An attached property may be sold after levy on
A party whose property is sought to be attached may
attachment and before entry of judgement whenever
prevent the enforcement of the writ of attachment
it shall be made to appear to the court in which the
by:
action is pending, upon hearing with notice to both
parties, that:
1. By depositing with the court from which the writ
was issued;
a. The attached property is perishable or;
2. By giving a counterbond executed to the
b. The interests of all the parties to the action
applicant, in an amount equal to the bond fixed
will be subserved by the sale of the attached
by the court in the order of attachment or to the
property.
value of the property to be attached, exclusive of
SECTION 12: DISCHARGE OF ATTACHMENT UPON costs; and
GIVING COUNTERBOND 3. By raising the defense that the property is
exempt from execution.
How do you discharged an attachment
Effect if Judgment was rendered in favor of the party
A writ of attachment already enforced may be against whom the attachment was issued
discharged in the following ways:

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1. The order of attachment will be discharged and This section is the same as Sec. 16, Rule 39, if the
all the proceeds of the sale and money collected property of a stranger was attached his remedy is to
and received by the sheriff under the order of file an affidavit showing proof of ownership; or the
attachment shall be delivered to the party sheriff may require the attaching creditor to post a
against whom the attachment was issued (Sec. bond and you have a period of 120 days to go after
19, Rule 57) the bond.
2. The whole sum deposited must be refunded or Page | 243
deposited to him or his assignee if the party NOTE: Nothing contained herein the Rules will
against whom attachment had been issued has prevent a third-party from vindicating his claim or
deposited money instead of giving counter-bond. right in an independent action.
(Sec. 18, Rule 57)
SECTION 15: SATISFACTION OF JUDGEMENT OUT OF
Duty of the surety or sureties on counter-bond when PROPERTY ATTACHED
the judgement becomes executor
If the execution remains unsatisfied, recovery may be
When the judgement has become executory, the had on the counter-bond upon demand and notice
surety or sureties on any counter-bond given to and hearing to the surety. (Sec. 17, Rule 57)
secure the payment of the judgement shall become
charged on such counter-bond and bound to pay the When the property attached is not sufficient to
judgement obligee upon demand the amount due satisfy the judgement
under the judgement, which amount may be
recovered from such surety or sureties after notice Any balance shall remain due and the sheriff must
and hearing in the same action. proceed to collect such balance as upon ordinary
execution.
The attaching creditor need not file a separate case. SECTION 16: BALANCE DUE COLLECTED UPON AN
All he needs to do is file a motion and there should be EXECUTION; EXCESS DELIVERED TO JUDGMENT
a summary hearing to give the surety or sureties an OBLIGOR
opportunity to be heard pursuant to Section 17, Rule
57. When there is excess after applying the proceeds
thereof
Counter-bond
Whenever judgement has been paid off, the sheriff,
It is a replacement for the property that was attached. upon reasonable demand, must return to the
It is filed by the defendant, whose property was judgement obligor the attached property remaining
attached so that the property that was attached will in his hands, and any proceeds of the sale of the
be released from the attachment. The condition of property attached not applied to the judgement.
the counter-bond will serve as entailment in case the
attaching creditor wins. SECTION 17: RECOVERY UPON THE COUNTER-BOND

Applicant’s bond vs. Counter-bond When the judgment has become final and executory,
the surety or sureties on any counter-bond that was
Applicant’s Bond Counter-bond given pursuant to the Rules shall be charged on such
counter-bond and bound to pay the judgment oblige
Responds for damages Responds for the
upon demand the amount due under the judgment
resulting from the payment of the which amount may be recovered from the surety
attachment judgement recovered by after notice and summary hearing in the same action.
the attaching creditor
regardless of the So all you have to do is to file a motion and notify the
wordings of the bond surety. The surety must be informed as part of due
process.

SECTION 14: PROCEEDINGS WHERE PROPERTY SECTION 18: DISPOSITION OF MONEY DEPOSITED
CLAIMED BY THIRD PERSON

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 When the party against whom attachment had been
issued deposited money instead of giving counter- Due notice to the adverse party and its surety
bond. It shall be applied under the direction of the setting forth the facts supporting the applicant’s
court to the satisfaction of any judgment rendered in right to damages and the amount thereof under
favor of the attaching party and after satisfying the the bond is indispensable. The surety should be
judgement, the balance shall be refunded to the given an opportunity to be heard as to the reality
Page | 244 depositor and his assignee. or reasonableness of the damages resulting from
the wrongful issuance of the writ, in the absence
SECTION 20: WRONGFUL ATTACHMENT of due notice to the surety, no judgement may be
entered and executed against it.
This section is a recurring provision – it is applicable
to writ of preliminary injunction, receivership and Application for damages
even replevin.
The claim for damages sustained for improper,
Consequences when attaching creditor fails to irregular or excessive attachment can be filed:
sustain his action and judgement was rendered
against the attaching creditor 1. Before the trial;
2. Before appeal is perfected; or
The one whose property was attached can claim for 3. Before the judgement becomes executory.
account of improper, irregular or excessive
attachment. Damages may be rendered only upon prior hearing
and shall be included in the judgment of the main
Requisites under Sec. 20 in order to claim for case.
damages against the bond
Appellate Decision in favour of party against whom
1. The application for damages must be filed in the attachment was issued
same case where the bond was issued;
The person whose property was attached must claim
NOTE: the attaching debtor cannot file a separate damages sustained during the pendency of the appeal
case. His remedy is within the same case and to before the appellate court.
go after the applicant bond. The purpose of
requiring the application for damages to be filed There should be notice to the attaching party and
in the same proceeding is to avoid the multiplicity surety before judgment of the appellate court
of suit and forum shopping. (Excellent Quality becomes final and executor. The surety is given notice
Apparel vs. Visayan Surety, G.R. No. 212025, July in order to afford it opportunity to be heard on the
1, 2015) matter, it may be heard by the trial court

2. Such application must be filed before entry of Contingent lien

judgement; and
The chief purpose of the remedy of attachment is to
Why should it be before the entry of judgment? secure a contingent lien on defendant’s property until
Because it should be included in the judgment. If plaintiff can, by appropriate proceedings, obtain a
you file it after the entry of judgment, that judgement. Under no circumstances, therefore, can
judgment has already attained finality and by the garnished funds or attached properties, under the
reason of doctrine of immutability – it can no custody of the sheriff or the clerk of court, be released
longer be changed by the court. to the attaching party before the promulgation of
judgement.
3. After hearing with notice to the attaching party
and his surety. NOTE: Nothing in Section 20 shall prevent the
aggrieved party from recovering in the same action
NOTE: If what was posted was a cash bond, notify the damages awarded to him from any property of
the attaching creditor only. If what was posted the attaching oblige not exempt from execution
was a surety bond, notify the surety as well.

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should the bond or deposit given by the attaching of preliminary attachment. It is not supposed to
obligee be insufficient or fail to satisfy the award. answer for all the damages suffered.

Auxiliary remedy Therefore, for one to be able to ask for damages

sustained during the pendency of an appeal, one
Attachment is an auxiliary remedy and cannot have should ask for damages during the pendency of the
an independent existence apart from the main suit or trial. The reason is that it is the trial court which issued Page | 245
claim instituted by the plaintiff against the the writ of preliminary attachment, and the theory is
defendants. Being merely ancillary to a principal that one is damaged by the improper issuance of the
proceeding, the attachment must fail if the suit itself writ of preliminary attachment.
cannot be maintained as the purpose of the writ can
no longer be justified. Action for Claims for Damages

The consequence is that where the main action is GR: Claims for damages cannot be made subject of an
appealed, the attachment which may have been independent action.
issued as an incident of that action, is also considered
appealed and so also removed from the jurisdiction of XPN:
the court a quo. The attachment itself cannot be the
subject of a separate case independent of the 1. Where the principal case was dismissed for lack
principal action because the attachment was only an of jurisdiction by the trial court without giving an
incident of such action. (Sps. Olib and Roberta R. Olib opportunity to the party whose property was
v. Hon. Edelwina C. Pastoral, G.R. No. 81120, August attached to apply for and prove his claim for
20, 1990) damages

Application for Damages – to go after the Q: P filed a case against D. P applied for the issuance
attachment bond of a writ of preliminary attachment and was granted.
The property then was attached. D files a motion
1. Even if judgement was rendered against the stating that the court does not have jurisdiction over
attaching creditor but he proves that he acted in the subject matter. Thereafter, the court then
good faith procuring the writ of preliminary dismissed the complaint of P. Was D given an
attachment, the adverse party cannot recover on opportunity to go after the damages he may have
the attachment bond, except, on actual suffered?
damages.
A: No. D cannot also claim the applicant’s bond given
2. Application for damages must be made by: the fact that the court had not acquired jurisdiction
a. Counterclaim in the answer; or over the subject matter. D’s remedy is to file a
b. By motion in the same action separate case.

3. The application for damages must be filed 2. Where the damages by reason of the attachment
before: was sustained by a third person who was not a
a. The trial court; party to the action wherein such writ was issued
b. Before the appeal from the
judgement therein is perfected; NOTE: The second exception is similar to the
c. Before such judgement becomes provision of terceria under Sec. 16, Rule 39. Nothing
executory. herein should prevent a third party from vindicating
his rights in a separate independent action.
4. The application should include all damages
sustained by reason of the attachment during the In the case of BDO v Borlongan, according to the SC,
pendency of the case. the spouse can file an independent action for the
annulment of the attachment of their conjugal
NOTE: The bond is only answerable for the damages property. For all intents and purposes he was
sustained by reason of the implementation of the writ considered a stranger – because the spouse was not
a party thereto and that the benefit did not accrue to

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 the benefit of the family. (BDO v. Brolongan, Jr., G.R. Example: you have a property and adjacent to your
No. 217617, April 05, 2017) property is a vacant lot. In the vacant lot, they were
building a new house and thus they dug deeper and
RULE 58: PRELIMINARY INJUNCTION deeper. Eventually, it affected the foundation of your
SECTION 1: PRELIMINARY INJUNCTION; DEFINED house. Therefore, the only way to stop this is to file a
preliminary injunction in order for your building to
Page | 246 Preliminary injunction not be compromised.

A judicial writ, process or proceeding whereby a party Characteristics

is ordered to do something or is ordered to refrain
from doing a particular act. 1. It is a proceeding in personam.
2. Preliminary Injunction can be the provisional
Injunction remedy or injunction can be the main action.

It contemplates acts being committed or about to be What court has jurisdiction over injunction
committed. Injunction will lie against acts already
committed if such acts are continuing in nature and 1. If the main action is injunction it is the RTC who
were in derogation of the plaintiff's right at the very has jurisdiction over it and not the SC, as
outset. prohibition and injunction are not the same. It is
the RTC as injunction is incapable of pecuniary
Primary purpose of preliminary injunction estimation.
2. If it is a provisional remedy: In all courts – from
To preserve the status quo by restraining the action. Municipal Trial Court to Supreme Court
Status quo – the last actual, peaceable and
uncontested status which precedes a controversy. It Venue: Where the plaintiff or principal plaintiffs
is the situation existing at the time of the filing of the resides, or where the defendant or principal
case. (Preysler Jr. v. Court of Appeals, G.R. No. 158141, defendants resides, at the election of the plaintiff.
July 11, 2006)
When granted
It is to be resorted to only when there is a pressing
necessity to avoid injurious consequences which At any stage of the action, proceeding prior to the
cannot be remedied under any standard of judgment or final order.
compensation. The application of the writ rests upon
an alleged existence of an emergency or of a special Preliminary Injunction v. Final Injunction
reason for such an order before the case can be
PRELIMINARY FINAL INJUNCTION
regularly heard, and the essential conditions for
INJUNCTION
granting such temporary injunctive relief are that the
complaint alleges facts which appear to be sufficient An order granted at any Issued in the judgment in
to constitute a cause of action for injunction and that the case permanently
on the entire showing from both sides, it appears, in stage of the action prior restraining the
view of all the circumstances, that the injunction is to the judgment or final
defendant or making the
reasonably necessary to protect the legal rights of order therein. (Rule 58,
preliminary injunction
plaintiff pending the litigation. (Sps. Estares v. Court Sec. 1, RoC)
of Appeals, G.R. No.144755, June 8, 2005) permanent. (Rule 58,
Sec. 9, RoC)
Irreparable injury
NOTE: the grant of writ of preliminary injunction can
It is not susceptible to mathematical computation.
be challenged by a petition for certiorari (Rule 65) if
Otherwise, the adverse party may just pay you
the court acted in grave abuse of discretion
damages.
amounting to lack or excess of jurisdiction as the
grant is not a final order. However, if what was
granted was to perpetual enjoin hence it is a final

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judgment subject to appeal. In both cases, the grant Secondly, P’s right is clear and unmistakable as he
of injunction is immediately executory even if it was should be given a notice first. Third, it is urgent and
appealed. paramount for the writ to prevent serious damage, it
is paramount and necessary for P to have the
Where to appeal electricity restored. Lastly, it should not create a new
relation between the parties which was arbitrarily
1. If the RTC is acting on its original jurisdiction and interrupted by the defendant. Page | 247
the appeal is based on fact, or law, or both then
file a notice of appeal to the CA So you go to court, file an injunction and ask for the
2. If If the RTC is acting on its original jurisdiction issuance of a writ of preliminary mandatory
and the facts are established and only the appeal injunction, to compel meralco to restore the
is based on law then file a petition for certiorari electricity connection.
before the SC
SECTION 2: WHO MAY GRANT PRELIMINARY
Types of Preliminary injunction INJUNCTION

PRELIMINARY PRELIMINARY Who may grant Preliminary injunction

PROHIBITORY MANDATORY
INJUNCTION INJUNCTION 1. Court where the action is pending (MTC or RTC)
2. Court of Appeals
To prevent a person from To require a person to 3. Supreme Court
doing a particular act perform a particular act
NOTE: even inferior courts can grant the issuance of
The act has not yet been The act has already been WPI as an example Section 15, Rule 70.
performed performed and this act
has violated the rights of Prohibitory Injunction v. Prohibition
another
PROHIBITORY PROHIBITION
Status quo is preserved Status quo is restored INJUNCTION

It can be a provisional Special Civil Action, Rule

Requisites for the grant of mandatory preliminary remedy (Rule 58) or the 65
injunction main case

1. The invasion of the right is material and Directed against a Directed against a court,
substantial; specific party as this a tribunal or persons
2. The right of the complainant is clear and personal action exercising judicial, quasi-
unmistakable; judicial and ministerial
3. It is urgent and paramount necessity for the writ functions
to prevent previous damage; and
4. It should not create a new relation between the It does not involve the the court against whom
parties which was arbitrarily interrupted by the jurisdiction of the court the writ is sought acted
defendant. without or in excess of
jurisdiction
Example of preliminary mandatory injunction
May be the main action Always the main action.
P did not pay his meralco bills and thus his electricity itself or just a provisional
was cut off. However, meralco did not send any remedy
notice of disconnection to P.

Obviously, there is an invasion of the right of P that is Jurisdictional rules

substantial because P should have received a notice
of disconnection before his electricity was cut off.

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 1. The Supreme Court can issue a writ of SECTION 3: GROUNDS FOR ISSUANCE OF
preliminary injunction in its original or appellate PRELIMINARY INJUNCTION
jurisdiction.
Grounds for Issuance of Preliminary Injunction
2. Original action for injunction beyond the
jurisdiction of the Supreme Court. Notice when there are grounds for the issuance of
Page | 248 writ of preliminary injunction. The commission
3. The Court of Appeals can issue the writ of continuance or non-performance of the act or acts
preliminary injunction in its original or appellate complained of during the litigation would probably
jurisdiction. work injustice to the applicant; and that injustice is
incapable of pecuniary estimation
4. Jurisdiction of the Regional Trial Court to restrain
acts by writ of preliminary injunction is limited to How to apply for WPI
territorial jurisdiction.
Similar to writ of preliminary attachment (WPA), the
5. No writ of preliminary injunction against unfair application may be a separate motion or it can be
labor practices or where the issue involved is incorporated in the initiatory pleading.
interwoven with unfair labor practices. The same
rule applies in proceedings under the Labor Code Unlike WPA, in injunction you have to notify the other
with exceptions. party of the raffling of the case otherwise it will be
violated of due process.
6. No writ of preliminary injunction against SSS, the
SECTION 4: VERIFIED APPLICATION AND BOND FOR
Patent Office, and the COMELEC as the remedy
PRELIMINARY INJUNCTION OR TEMPORARY
lies with the Court of Appeals or the Supreme
RESTRAINING ORDER
Court.
Verified application and bond for Preliminary
7. Writ of preliminary injunction cannot be used to
Injunction or Temporary Restraining Order
restrain a court of concurrent or coordinate
jurisdiction, provided the relief sought in one
A preliminary injunction or temporary restraining
which could be granted by the court which
order may be granted only when:
rendered the judgment. No restraint if initiated
by a third-party stranger to the case who is
1. Verified facts entitling the applicant to the relief
vindicating/asserting his rights.
demanded; and
8. Under BP 129, provided the main action is within
2. Unless exempted by the court, bond executed to
its jurisdiction, the inferior court can grant writ of
the party or person enjoined in an amount to be
preliminary injunction. Hence, the inferior court
fixed by the court.
can issue writ of preliminary injunction in either
forcible entry or unlawful detainer case.
3. When an application for a writ of preliminary
injunction or a temporary restraining order is
9. No injunction in any case involving or growing out
included in a complaint or any initiatory pleading,
of the approval, disapproval, revocation,
the case, if filed in a multiple-sala court, shall be
suspension of or any action by the proper
raffled only after notice to and in the presence of
administrative official or body involving
the adverse party or the person to be enjoined.
concessions, licenses, permits, patents, or public
grants in connection with the disposition,
a. In any event, such notice upon the
exploitation, utilization, exploration and/or
adverse party in the Philippines shall
development of natural resources. (P.D. 605)
be preceded, or
contemporaneously accompanied
10. Except for the Supreme Court, no court can issue
by:
injunctions against government infrastructure
i. service of summons
projects. (R.A. 8975)

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 ii. copy of the complaint or Status quo order can be issued motu propio on
initiatory pleading; and equitable grounds. It is more in the nature of a cease
iii. the applicant's affidavit and desist order. It does not require posting of a
and bond bond.

b. The requirement of prior or SECTION 5: PRELIMINARY INJUNCTION NOT

contemporaneous service of GRANTED WITHOUT NOTICE; EXCEPTION Page | 249
summons shall not apply where:
i. the summons could not be Preliminary Injunction not granted without Notice;
served personally or by Exception
substituted service despite
diligent efforts; or The writ of preliminary injunction cannot be issued
ii. the adverse party is a without a hearing. Upon filing of the complaint, the
resident of the Philippines other party is notified of the raffle. Such parties are
temporarily absent invited to appear during the raffle. No notice is
therefrom or is a non- tantamount to denial of due process.
resident thereof
Courts should avoid issuing a writ of preliminary
Action on TRO injunction which disposes of the main case without
trial.
The application for a temporary restraining order
shall thereafter be acted upon only after all parties GR: No preliminary injunction can be granted ex
are heard in a summary hearing which shall be parte.
conducted within twenty-four (24) hours after the
sheriff's return of service and/or the records are XPN: 72-hour temporary restraining order.
received by the branch selected by raffle and to which
72-hour temporary restraining order
the records shall be transmitted immediately
As a general rule, writ of preliminary injunction can
Temporary restraining order
only be issued after hearing. Because of the urgency
One which may issue upon the filing of an application and it will take some time before the court can initiate
for an injunction forbidding the defendant to do the a hearing, the court may issue a 72-hour TRO.
threatened act until the hearing on the application for
Who can issue a 72-hour TRO
a writ of preliminary injunction can be had.
1. Executive judge, if it is a multiple sala court; or
Purpose of TRO: to maintain status quo until the
2. Presiding judge of a single-sala court.
hearing for writ of preliminary injunction can be had
Within 72-hours, the judge before whom the case is
NOTE: The grant or denial of a TRO does not
pending shall conduct a summary hearing to
automatically mean the grant or denial of a writ of
preliminary injunction. Because the issuance of a TRO determine whether the temporary restraining order
shall be extended until the application for preliminary
may only be based on summary hearing. Whereas,
injunction can be heard. In other words, to determine
the writ of preliminary injunction will be based on
whether the 72-hour TRO can be expanded to 20
presentation of evidence.
days.
A bond is also required for the issuance of a TRO,
NOTE: The 72 hours shall be part of the 20-day TRO.
unless exempted by the court.
It is not 72 hours in addition to 20 days.
Status quo order
Within the period of 20 days, a hearing will be
It is not a TRO. It is merely intended to maintain the conducted to determine whether the TRO can be
last, actual, peaceable and uncontested state of made into a full-blown writ of preliminary injunction.
things that preceded the controversy.

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 When writ of preliminary injunction is granted 1. It is of such constant and frequent recurrence
that no fair reasonable redress can be had
If the plaintiff has proven his entitlement for therefor; or
preliminary injunction, there shall be no period 2. There is no standard by which their amount may
anymore. Once the writ of preliminary injunction is be measured with reasonable certainty. In other
granted, the act sought to be enjoined shall be words, not capable of pecuniary estimation or
Page | 250 enjoined while the case is pending. mathematical computation.

When writ of preliminary injunction is denied SECTION 6: GROUNDS FOR OBJECTION TO, OR FOR
MOTION OF DISSOLUTION OF, INJUNCTION OR
If the application for preliminary injunction is denied RESTRAINING ORDER
or not resolved within the said period, the temporary
restraining order is deemed automatically vacated. Grounds for objection to, or for Motion of
The effectivity of a temporary restraining order is not Dissolution of, Injunction or Restraining Order
extendible without need of any judicial declaration to
the effect, and no court shall have authority to extend 1. The complaint is insufficient
or renew the same on the same ground for which it 2. Defendant is permitted to post a counter-bond,
was issued. it appearing that he would sustain great damage
while the plaintiff can be amply compensated;
If issued by the Court of Appeals and
3. On other ground, as when bond posted by
The TRO shall be effective for 60 days from service on applicant is insufficient or defective
the party or person sought to be enjoined.
NOTE: the filing of a counter-bond does not ipso facto
If issued by the Supreme Court mean that the writ would be dissolved as the court
should still make a comparative analysis of who
The TRO shall be effective until further orders. between the two will suffer greater injury

If issued by the trial court, the CA, the Issuance vs dissolution

Sandiganbayan or the Court of Tax appeals that
issued a writ of preliminary injunction Q: WPI was issued. The propriety of the WPI was
challenged and the SC said that the issuance of the
NOTE: A restraining order issued ex parte must writ is valid. The court did not commit grave abuse of
comply with Section 4 of Rule 58 – service of discretion amounting to lack of jurisdiction. When it
summons and accompanying documents. Because was remanded to the trial court, the trial court
there should be a hearing to determine whether the dissolved the writ because the other party posted a
72-hour TRO can be extended to 20 days. counter bond. So the other party (the one who won
in the SC) said that according to the SC, his writ was
Non-extendibility of TRO issued validly so you cannot dissolve it. Is the
petitioner here correct?
The efficacy of a temporary restraining order is non-
extendible and courts have no discretion to extend A: No, because dissolution is different from issuance.
the same considering the mandatory tenor of the Section 3, Rule 58 will govern the issuance of the writ
Rule. However, there is no reason to prevent a court and the dissolution of the writ is governed by Section
from extending the 20-day period when the parties 6, Rule 58. Even if the writ was validly issued, it can be
themselves ask for such extension or for the dissolved pursuant to Section 6. (Sps. Yap v.
maintenance of the status quo. (Federation of Land International Exchange Bank, G.R. No. 175145, March
Reform Farmers of the Phils. v. CA, 246 SCRA 175) 28, 2008)

SECTION 7: SERVICE OF COPIES OF BONDS; EFFECT

Irreparable injury
OF DISAPPROVAL OF THE SAME
An injury is irreparable if:
Applicant’s bond

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The amount addressed to the sound discretion of the Effect of final injunction
court. It is conditioned to address all damages which
may be sustained by reason of the injunction or the To perpetually restrain the party enjoined from the
TRO if the court finally decided that the applicant was commission or continuance of the act/s confirming
not entitled thereto. the preliminary mandatory injunction.

Party filing a bond shall serve a copy of such bond on RULE 59: RECEIVERSHIP Page | 251
the other party, who may except to the sufficiency of SECTION 1: APPOINTMENT OF RECEIVERSHIP
the bond or of the surety
Nature of Receivership
The injunction shall be dissolved if:
It is a provisional remedy wherein the court appoints
1. Applicant’s bond is insufficient or if the surety fail a representative to preserve, administer, dispose of
to justify; and and prevent the loss or dissipation of real or personal
2. A bond sufficient in amount with sufficient property during the pendency of an action. It can be
sureties approved after justification is not filed availed of even after the judgment has become final
and executory as it may be applied for to aid
NOTE: A bond is required unless exempted by the execution or carry judgment into effect.
court. An order merely stating that the petition was
sufficient in form and substance without even stating NOTE: Receivership, like injunction, may also be a
the facts which would support the granting of the principal action as the one referred to in Sec. 41 of
injunction is a clear violation of the rule. (Dela Paz v. Rule 39. Rule 59 is a receivership that is ancillary to a
Adiong, A.M. Nos. RTJ- 04-1857, Nov. 23, 2004) main action.

The injunction shall be granted or restored if: Receiver

1. The bond of the adverse party is found to be A receiver is a representative of the court appointed
insufficient in amount; or for the purpose of preserving and conserving the
2. The surety fail to justify a bond sufficient in property in litigation and preventing its possible
amount with sufficient sureties approved after destruction or dissipation, if it were left in the
justification is not filed possession of any of the parties.
SECTION 8: JUDGMENT TO INCLUDE DAMAGES
The receiver is a court officer; he is not supposed to
AGAINST PARTY AND SURETIES
be the representative of any of the parties but of all
of them to the end that their interests may be equally
At the trial, the amount of damages to be awarded to
protected with the least possible inconvenience and
either party shall be claimed, ascertained and
expense. It is inherent in the office of receiver not
awarded.
only that he should act at all times impartially and
with the diligence and prudence of a good father of a
In other words, you have to plead it, prove it and that
family but should also not incur any obligation or
the judge should adjudge it under the same
expenditure without leave of the court. If he incurs
procedure in Sec. 20, Rule 57.
obligation without leave of court, the receiver will be
SECTION 9: WHEN FINAL INJUNCTION GRANTED personally liable. (Normandy v. Duque, 29 SCRA 385)

Final injunction is a final judgment against which the GR: neither party should be appointed as receiver as
proper remedy is appeal. the receiver should always be impartial and
indifferent.
If at the trial, it appears that the applicant is entitled
to have the act/s complained of permanently XPN: when one party was appointed and the other
enjoined then the court now will issue a permanent party did not object. (Alcantara v. Abbas, G.R. No. L-
injunction and that is a final order 14890, September 30, 1963)

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 Purpose of a Receiver
2. Where the action is merely to obtain a money
To protect and preserve the rights of the parties judgment on unpaid credits and not to enforce a
during the pendency of the main action. Receivership lien upon specific property or funds in the
is aimed at the preservation of, and at making more possession of the defendant. (Bonaplata v.
secure existing rights, it cannot be used as a Ambler et al., 2 Phil 392)
Page | 252 destruction of those rights.
3. In actions involving possession of or title to real
When can a receiver be appointed property, the appointment of receiver may be
made only if there is clear necessity to protect
1. Applicant has an interest in the property or fund the applicant from grave or irremediable
which is the subject of the action or proceeding, damages.
and that such property or fund is in danger of
being lost, removed, or materially injured unless SECTION 2: BOND ON APPOINTMENT OF RECEIVER
a receiver be appointed to administer and
preserve it; Three (3) bonds in receivership

2. In foreclosure of mortgage, that the property is in 1. Applicant’s bond

danger of being wasted or dissipated or 2. Receiver’ bond
materially injured, and that its value is probably 3. Adverse party bond
insufficient to discharge the mortgage debt, or
that the parties have so stipulated in the contract Applicant’s bond
of mortgage
Before issuing the order appointing a receiver the
3. After judgment, to preserve the property during court shall require the applicant to file a bond
the pendency of an appeal, or to dispose it executed to the party against whom the application is
according to the judgment, or in aid of execution presented. The amount is dependent upon the court
when execution has remained unsatisfied;
Purpose of the bond
4. In other cases, where the appointment of a
receiver is the most convenient and feasible Payment for all damages a party may sustain by
means of preserving, administering or disposing reason of the appointment of such receiver.
the property
SECTION 3: DENIAL OF APPLICATION OR DISCHARGE
OF RECEIVER
NOTE: you can only do an appointment of a receiver
if you can show to the court that the property is in
The application may be denied, granted, or discharge
imminent danger of loss or injury (Vivares v. Reyes,
G.R. No. 155408, February 13, 2008) Denial of application or discharge of Receiver
When to file Receivership 1. When the adverse party files a bond executed to
the applicant, in an amount to be fixed by the
1. At any stage of the proceedings;
court (counter-bond); or
2. Even after the finality of judgment.
2. If it is shown that his appointment was obtained
without sufficient cause.
Instances when receivership will not lie
SECTION 4: OATH AND BOND OF RECEIVER
1. On a property in custodia legis.
Oath and Bond of Receiver
However, a receiver can be appointed where a
property in custody of an administrator or Before entering upon his duties, the receiver shall be
executor is in danger of imminent loss or injury. sworn to perform them faithfully, and shall file a bond
(Dolor v. Sindian, G.R. No. L- 27631, April 30,
1971)

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Purpose of Receiver’s bond SECTION 7: LIABILITY FOR REFUSAL OR NEGLECT TO
DELIVER PROPERTY TO RECEIVER
To answer all damages sustained committed by
reason of his malfeasance or failure to discharge his Liability For Refusal Or Neglect To Deliver Property
duties faithfully. To Receiver

SECTION 5: SERVICE OF COPIES OF BONDS; EFFECT 1. Contempt of court Page | 253

OF DISAPPROVAL 2. Damages that may have sustained by the party
entitled thereto
Denial of receivership 3. Liable for value of the property or money refused
or neglected to be surrendered
1. if the bond posted by the applicant is insufficient;
or SECTION 8: TERMINATION
2. the bond of the applicant is not filed; or
3. if the bond by the adverse party is found to be Whenever the court, motu proprio or on motion of
insufficient; or either party, shall determine that the necessity or a
4. the bond of the adverse party was not filed; or receiver no longer exist justified by the facts and
5. if the bond of the receiver is insufficient circumstances of the case, may dissolve the
receivership upon due proceedings
SECTION 6: GENERAL POWERS OF THE RECEIVER
SECTION 9: JUDGMENT TO INCLUDE RECOVERY
General Powers Of The Receiver AGAINST SURETIES

The receiver shall be subject to the control of the Judgment To Include Recovery Against Sureties
court in which the action is pending.
NOTE: It shall be granted under the same procedure
NOTE: a receiver is subject to the control of the court in Section 20 of Rule 57:
hence all his acts must be with leave of court.
1. Damages must be filed before the trial or before
The receiver shall have the power to bring and appeal is perfected or before judgment becomes
defend, in such capacity: executor
2. With DUE NOTICE to the attaching party AND his
1. Actions in his own name surety or sureties
2. To take and keep possession of the property in 3. Damages may be awarded only after proper
controversy hearing and shall be included in the judgment in
3. To receive rents the main case.
4. To collect debts due to himself as receiver or to
fund property, estate or person of which he is the Damages Due To Receiver’s Malfeasance
receiver
5. To compound for or compromise The same shall be recovered from the bond filed by
6. To make transfers the receiver. Recovery in this case can only be done in
7. To pay outstanding debts a separate case. Mere motion in the case where
8. To divide the money and other property that receivership was granted will not suffice.
shall remain among the parties legally entitled to
receive the same RULE 60: REPLEVIN
9. To do such acts as the court may authorize.
Replevin is a provisional remedy seeking for the
NOTE: 1. Funds in the hands of a receiver may be possession of a personal property prior to the
invested only by the order of the court. determination of the main action for replevin.

2. NO action may be filed by or against a receiver Replevin may also be a main action with the ultimate
without leave of court which appointed him. goal of recovering personal property capable of
manual delivery wrongfully detained by a person. In

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 this sense, it is a suit in itself. (BA Finance Corp. v. CA, Q: P sued D for a collection of sum of money. The
G.R. No. 102998, July 5, 1996). property of D was subject to a notice of levy pursuant
to a writ of preliminary attachment. Can D file an
Nature of an action for Replevin action for replevin to recover the property?

Replevin is both a form of principal remedy and of a A: NO. The car has been justly detained by reason of
Page | 254 provisional relief. It may refer either to the action a court order.
itself, i.e., to regain the possession of personal
property being wrongfully detained from the plaintiff Replevin v. Preliminary Attachment
by another, or to the provisional remedy that would
allow the plaintiff to retain the thing during the REPLEVIN PRELIMINARY
pendency of the action and hold it pendente lite. ATTACHMENT

PURPOSE
Replevin is a mixed action, being partly in rem and
partly in personam. The purpose is to recover The purpose is to have
personal property the property put in the
An action for replevin bars the deficiency suit because
capable of manual custody of the court to
the deficiency could well be raised in the replevin
case. (Central Visayas vs. Adlawan, G.R. No. 212674, delivery from the secure the satisfaction of
March 25, 2019). defendant the judgment that may
be rendered in favor of
SECTION 1: APPLICATION the plaintiff

Who may avail OWNERSHIP OR RIGHT OF POSSESSION

1. Plaintiff – where the complaint prays for recovery The property either The property does not
of possession of personal property. belongs to the plaintiff or belong to the plaintiff but
2. Defendant – where a counterclaim was set out in one over which the to the defendant.
the answer for recovery of personal property. plaintiff has a right of
possession.
When to file
WHEN AVAILABLE
Before filing of the answer or at the commencement
of the action. Can be sought only when May be resorted to even
if property is in
defendant is in actual or
This is the only provisional remedy that a party can possession of a third
file before the answer. Otherwise, after the answer constructive possession person
you cannot ask for the issuance of the writ of replevin. of the property

NOTE: writ of replevin is limited to the recovery of Without showing that Need to show that the
personal property capable of manual delivery. the property is being property is being
concealed or disposed of removed, concealed or
Q: Is it necessary that the applicant is also the owner to the prejudice of the disposed of
of the property? plaintiff
A: NO. When you talk about replevin it is not the issue EXTENT
of ownership but rather the issue of possession. The
question of ownership may be resolved in the Property capable of Real, personal or even
replevin but only limited for the purpose of manual delivery incorporeal property
determining who between the two parties is entitled
to the possession. BOND

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 Double the value of the Equal to that fixed by the 1. That the applicant is the owner of the property
property as stated in the court claimed, particularly describing it, or is entitled to
affidavit the possession thereof;
2. That the property is wrongfully detained by the
adverse party, alleging the cause of detention
Requisites before the writ of replevin can be granted thereof according to the best of his knowledge,
by the court information, and belief; Page | 255
3. That the property has not been distrained or
1. Applicant is owner of the property claimed or at taken for a tax assessment or a fine pursuant to
the very least is entitled to possession; law, or seized under a writ of execution or
2. Property is wrongfully detained by the adverse preliminary attachment, or otherwise placed
party; under custodia legis, or if so seized, that it is
3. Property is not distrained or taken for tax exempt from such seizure or custody; and
assessment or fine pursuant to law, or seized (if 4. The actual market value of the property
seized, that the property is exempt);
4. Principal purpose of the action is to recover NOTE: the actual market value must be stated in the
possession of personal property. affidavit because the applicant’s bond will depend
upon the value of the property which is double the
Rule 60 of the Rules of Court allows a plaintiff to apply value of the property.
for a writ of replevin if it can be shown that he is "the
owner of the property claimed or is entitled to the Applicant’s bond or replevin bond
possession thereof." The plaintiff need not be the
owner so long as he is able to specify his right to the 1. Executed to the adverse party
possession of the property and his legal basis 2. Double the value of the property as stated in the
therefore. (Servicewide v. CA, GR No. 103301, affidavit
December 8, 1995) 3. Conditions of the Bond:
a. The return to of property to adverse
Where there is still a probability that the seizure will party if such return be adjudged;
be followed by the filing of a criminal action, as in the and
case at bar where the case for carnapping was b. The payment to adverse party of
"dismissed provisionally, without prejudice to its such sum as he may recover from
reopening once the issue of ownership is resolved in the applicant in the action
favor of complainant," or the criminal information has
actually been commenced, or filed, and actually NOTE: In attachment, the bond is in such amount as
prosecuted, and there are conflicting claims over the may be fixed by the court, not exceeding the
property seized, the proper remedy is to question the applicant’s claim or equal to the value of the property
validity of the search warrant in the same court which to be attached; in injunction, the amount of the bond
issued it and not in any other branch of the said court must also be fixed by the court; while in receivership,
(Chua v. CA, GR No. 79021, May 17, 1993). a bond is now always required of the applicant and
shall be in the sum fixed by the court in its discretion.
SECTION 2: AFFIDAVIT AND BOND However, in replevin it will be dependent on the
alleged value of the property.
How to file an application for the issuance of writ of
replevin Under Section 2, Rule 60 the bond it filed is to ensure
"the return of the property to the defendant if the
It can be either be: return thereof be adjudged, and for the payment to
the defendant of such sum as he may recover from
1. incorporate in the compliant; or the plaintiff in the action." The bond itself ensures the
2. in a separate application payment of such sum may in the cause be recovered
against the plaintiff and the cost of the action.
Contents of the affidavit
(Stronghold Insurance vs. CA, GR No. 89020, May 05,
1992)
The affidavit shall state:

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 A surety bond remains effective until the action or shall be responsible for its delivery to the party
proceeding is finally decided, resolved, or terminated, entitled thereto upon receiving his fees and
regardless of whether the applicant fails to renew the necessary expenses for taking and keeping the
bond. The applicant will be liable to the surety for any same
payment the surety makes on the bond, but only up
to the amount of this bond. (Enriquez vs. Mercantile Q: The sheriff took hold of the truck of P upon
Page | 256 Insurance, GR No. 210950, August 15, 2018) application of D. Is the sheriff bound to deliver it
immediately to P?
SECTION 3: ORDER
A: NO. The sheriff must hold it for 5 days.
Procedure
If the property or any part thereof be concealed in a
1. An application is filed at the commencement of building or enclosure, the sheriff must demand its
the action or at any time before answer of delivery.
defendant;
2. Application must contain an affidavit; If the property is not delivered, the sheriff must cause
3. Applicant must file a bond; the building or enclosure to be broken open and take
4. Approval of the bond by the court; the property into his possession.
5. Court shall then issue an order and the writ of
replevin: NOTE: Unlike a preliminary attachment and
a. It must describe the personal preliminary injunction, the rule on prior or
property alleged to be wrongfully contemporaneous service of summons is not
detained provided for in replevin. However, the rule requires
b. Requiring the sheriff to take such that upon such order, the sheriff must serve a copy on
property into his custody the adverse party together with the required
documents.
NOTE: The writ of replevin may be served anywhere
in the Philippines even if it is issued by the MTC Where replevin writ was improperly implemented
(Fernandez vs. International, GR No.131283, October
07, 1999). Unlike in the other provisional remedies The proper remedy to an improperly implemented
such as injunction it is only limited to the territorial writ of replevin is to file a motion to quash (Siy v.
jurisdiction of the RTC which issued the same. Tomlin, GR No. 205998, April 24, 2017).
SECTION 4: DUTY OF THE SHERIFF
But failure of a party to file a motion to quash does
Duty of the Sheriff not prevent a party from assailing the improper
service via a petition for certiorari. The trial court is
1. When the court approves the application, the deemed to have acted without or in excess of its
court shall issue an order and the corresponding jurisdiction if improperly served. It must restore the
writ of replevin describing the property alleged to parties to their former positions by returning the
be wrongfully detained. This order shall require seized property and by discharging the replevin bond
the sheriff to take the property into his custody. (Rivera v. Vargas, G.R. No. 165895, June 05, 2009).

SECTION 5: RETURN OF PROPERTY

2. Upon the receipt of the court order, the sheriff
must: At any time before the delivery of the property to the
a. Serve a copy of the order on the applicant, the adverse party may require the return
adverse party together with a copy thereof. The adverse party may object to the
of the application, affidavit, and sufficiency of the bond or of the sureties thereon. This
bond is to be done by filing with the court where the action
b. Take custody of the property is pending a redelivery bond executed to the
applicant.
3. After the sheriff has taken custody of the
property, he must keep it in a secure place. He

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NOTE:. Within the 5-day period after the sheriff has SECTION 7: PROCEEDINGS WHERE PROPERTY
taken the property, the adverse party may object to CLAIMED BY THIRD PERSON
the sufficiency of the applicant’s bond or surety; or
may file a redelivery bond, if he does not object to the This provision is the same as Section 16, Rule 39.
sufficiency of the bond.
If the property taken is claimed by any person other
Redelivery Bond than the party against whom the writ of replevin had Page | 257
been issued or his agent, and
Amount: double the value of the property as stated in
the affidavit of the applicant 1. Such person makes an affidavit of his title
thereto, or right to the possession thereof,
The adverse party is entitled to the return of the stating the grounds therefor, and serves such
property taken under writ of replevin, if: affidavit upon the sheriff while the latter has
possession of the property and a copy thereof
1. He seasonably posts a redelivery bond upon the applicant
2. The applicant’s bond is found to be insufficient or 2. The sheriff shall not be bound to keep the
defective and is not replaced with a proper bond property under replevin or deliver it to the
3. The property is not delivered to the plaintiff for applicant
any reason 3. Unless the applicant or his agent, on demand of
said sheriff, shall file a bond approved by the
For the adverse party to effect the return of his court to indemnify the third-party claimant in a
property under the custody of the sheriff, the sum not less than the value of the property under
following must be met: replevin as provided in Sec. 2, Rule 60.
4. In case of disagreement as to such value, the
1. He should post a redelivery bond in an amount court shall determine the same.
double the value of the property; 5. No claim for damages for the taking or keeping of
2. The bond is executed to the applicant; the property may be enforced against the bond
3. He should serve a copy of the bond to the unless the action therefor is filed within 120 days
applicant; from the date of the filing of the bond
4. He must perform the above acts before the
delivery of the property to the applicant. This NOTE: the property of a stranger cannot be used to
means within 5 days from the taking of the satisfy the debt of another person even more so to
property by the sheriff; deliver it to another person.
5. The bond is sufficient.
SECTION 8: RETURN OF PAPERS
SECTION 6: DISPOSITION OF PROPERTY BY SHERIFF
The sheriff must file the order, with his proceedings
The 5 day period is a window for the adverse party to endorsed thereon, with the court within 10 days after
recover the property. taking the property mentioned therein.

SECTION 9: JUDGMENT
If within the 5 day period the adverse party
The judgment in a replevin suit is in the alternative,
1. does not object to the sufficiency of the bond, or
i.e. to deliver the property to the party entitled to the
of the surety or sureties thereon; or
same or to pay its value in case delivery cannot be
2. so objects and the court affirms its approval of
made. If the property is no longer in the condition in
the applicant’s bond or approves a new bond; or
which it should be, the party entitled to its delivery
3. requires the return of the property but his bond
may refuse to accept the property. He may then ask
is objected to and found insufficient and he does
for the alternative remedy which is the payment of its
not forthwith file an approved bond
value even if he had previously sought its delivery
during the pendency of the case.
The sheriff then shall deliver the seized property to
the applicant upon complying with all the
NOTE: that replevin is a possessory action.
requirements

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 SECTION 10: JUDGMENT TO INCLUDE RECOVERY 1. Grounds for the claim; and
AGAINST SURETIES 2. Financial conditions of both parties;
3. Accompanied by
The amount, if any, to be awarded to any party upon 1. Affidavits;
any bond filed in accordance with the provisions of 2. Depositions; or
this Rule, shall be claimed, ascertained, and granted 3. Other authentic documents in support
Page | 258 under the same procedure as prescribed in Section 20 thereof.
of Rule 57.
NOTE: This is the only provisional remedy that does
Again, it must be pleaded, then proved and must be not require a bond.
included in the judgement.
The rule on support pendente lite has been modified
How to plead? May be raised as a compulsory by A.M. No. 02-11-10-SC. The court will take into
counter-claim or file a separate claim for damages. account that support is dependent upon the needs of
the recipient and the ability of the giver.
RULE 61: SUPPORT ‘PENDENTE LITE’

Because of its provisional nature, a court does not

SUPPORT PENDENTE LITE need to delve fully into the merits of the case before
it can settle an application for this relief. All that a
It is an amount of support provisionally fixed by the court is tasked to do is determine the kind and
court in favor of the person or persons entitled amount of evidence which may suffice to enable it to
thereto during the pendency of an action for support. justly resolve the application. It is enough that the
Here, the main action is usually for support and facts be established by affidavits or other
support pendente lite is the provisional remedy documentary evidence appearing in the record (Lim-
(Riano, p. 157). Lua v. Lua, G.R. No. 175279-80, June 05, 2013).
SECTION 2: COMMENT
REGIONAL TRIAL COURT JURISDICTION
The adverse party shall have 5 days to comment from
This provisional remedy can only be issued by the the receipt of the application, unless a different
RTC. period is fixed by the court.

Q: In Baito v. Sarmiento, it was contended that the The comment shall be

RTC had no jurisdiction because the amount 1. Verified; and
demanded as support was only P720.00 (G.R. L- 2. Accompanied by
13105, August 25, 1960). Is this correct? 1. Affidavits;
2. Depositions; or
A: In present time, regardless of the value/amount, 3. Other authentic documents in
the RTC acting as a family court has the jurisdiction to support thereof.
hear and decided cases on support.
SECTION 1: APPLICATION SECTION 3: HEARING

WHEN TO APPLY FOR SUPPORT PENDENTE LITE: After the comment is filed or after the expiration for
1. At the commencement of the action, or the period for its filing, the application shall be set for
2. At any time before judgment or final order. hearing not more than 3 days thereafter.

The facts in issue shall be proved in the same manner

REQUISITES FOR THE APPLICATION as is provided for evidence on motions.
SECTION 4: ORDER
1. Verified application filed by any party;
2. Stating

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 When the person ordered to give support pendente
COURT ACTION PROCESS lite refuses or fails to do so, any third person who
1. Fix the amount of furnished that support to the applicant may, after due
APPLICATION money to be notice and hearing in the same case, obtain a writ of
GRANTED provisionally paid; or execution to enforce his right of reimbursement
2. Such other forms of against the person ordered to provide such support. Page | 259
support as should be
provided.
ENFORCEMENT OF ORDER

Failure to comply with an order granting support

APPLICATION If the application is denied, the pendente lite may warrant the following sanctions:
DENIED principal case shall be tried
and decided as early as
possible. 1. The issuance by the Court, motu proprio or
upon motion, of an order of execution
NOTE: Taking into account the necessities of the against the adverse party
applicant and the resources or means of the adverse 2. Possible liability for contempt. This is an
party, and the terms of payment or mode for exception to the rule that the defendant may
providing the support. not be cited for contempt if he fails to
comply with judgments for money
3. Third person who furnished support may
INTERLOCUTORY IN NATURE
obtain writ of execution to enforce his right
of reimbursement
General Rule: Support pendente lite is interlocutory
in nature. It is, therefore, not subject to appeal. Note: While an order for support pendente lite is
merely interlocutory and not a final order, the order
Exception: A final judgment on support is subject to
is subject to the issuances of an order of execution
appeal.
when the person ordered to give support refuses or
fails to do so.
NOTE: It is immediately executory and cannot be
stayed by an appeal (Gan v. Reyes, G.R. No. 145527).
The support granted under this Rule is provisional in
nature and the actual amount and terms of its
Upon receipt of a verified petition for declaration of
payment shall be determined in the final judgment. If
absolute nullity of void marriage or for annulment of
the judgment is in favor of the defendant, the support
voidable marriage, or for legal separation, and at any
pendente lite is discontinued (Saavedra v. Ybahez
time during the proceeding, the court, motu proprio
Estrada, 56 Phil. 33)
or upon verified application of any of the parties,
guardian or designated custodian, may temporarily
Failure to comply with an order granting support
grant support pendente lite prior to the rendition of
pendente lite may give rise to criminal liability:
judgment or final order (Lim-Lua v. Lua, G.R. No.
175279-80, June 05, 2013). The person ordered to provide support pendente lite
RULE 61: SECTION 5 who fails to provide financial support or deliberately
provides insufficient financial support may be
Section 5. Enforcement of order – If the adverse party
prosecuted for economic abuse under R.A. No. 9262
fails to comply with an order granting support
RULE 61, SECTION 6
pendente lite, the court shall, motu proprio or upon
motion, issue an order of execution against him Section 6. Support in criminal cases – In criminal
without prejudice to his liability for contempt 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

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 instituted prior to its filing, the accused may be the offspring of the accused as a consequence of the
ordered to provide support pendente lite to the child rape or seduction (Bar 1999, 2001)
born to the offended party allegedly because of the
crime. The application therefor may be filed
successively by the offended party, her parents, RULE 61, SECTION 7
Page | 260 grandparents or guardian and the State in the
corresponding criminal case during its pendency, in
accordance with the procedure established under this Section 7. Restitution – When the judgment or final
Rule. 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
SUPPORT IN CRIMINAL CASES 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 criminal cases, the accused may be ordered to in a separate action from the person legally obliged to
provide support pendente lite to the child born to the give the support. Should the recipient fail to
offended party allegedly because of the crime. The reimburse said amounts, the person who provided
remedy may be availed of where the civil liability the same may likewise seek reimbursement thereof
includes support for the offspring born to the in a separate action from the person legally obliged to
offended party as a consequence of the crime give such support.
provided the civil aspect thereof has not been waived, RESTITUTION
reserved or instituted prior to its filing. The REMEDIES OF PERSON WHO WAS ERRONEOUSLY
application for support pendente lite may be made COMPELLED TO GIVE SUPPORT
during the pendency of the criminal case.
1. The person can apply for an order for such
• Previous finding of guilt is not required (Bar reimbursement by the recipient on motion in the
1999) trial court in the same case, unless such
restitution is already included in the judgment
When the judgment finds that the person giving rendered in the action; or
support is not liable therefor, the court shall order the 2. Failing therein, he can file a separate action for
recipient to make a restitution of what has been reimbursement against the person legally
received with legal interest from the date of actual obliged to give such support
payment (Riano, 2019)
Should the recipient reimburse the amount received
WHO MAY FILE APPLICATION by him as support through either of the remedies
provided, he shall also have the right to file a separate
1. Offended party action for reimbursement against the person legally
2. Her Parents obliged to give him such support
3. Grandparents or Guardian
4. State
JURISPRUDENCE
NOTE: Such right granted to the persons above is in
line with the provisions of Art. 344 of the Revised Special order for execution was issued pursuant to
Penal Code and Sec. 5, Rule 110 of the Rules of Court section 2 of Rule 39, because the court had been
which authorize them to file the basic criminal made aware that the minors were in urgent need of
complaint and, therefore, should include such support, the court furthermore believing that
auxiliary remedies as may be permitted therefor paternity and filiation had been established by
(Regalado, p. 768) irrefutable evidence and that any appeal that the
petitioner might interpose would only be in line with
Such application may be granted in rape cases for his previous maneuvers for delay. As despite this

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special order the petitioner made no deposit in court
for the support of the minors, he was, at their Moreover, private respondent's obligation to give
instance, cited for contempt, and the court having monthly support in the amount fixed by the RTC in the
found after hearing that though possessed of assailed orders may be enforced by the court itself, as
adequate means he really had made no deposit, an what transpired in the early stage of the proceedings
order was handed down under date of December 17 when the court cited the private respondent in Page | 261
declaring him guilty of indirect contempt (Torres v. contempt of court and ordered him arrested for his
Teodoro, G.R. Nos. L-10093, April 30, 1957) refusal/failure to comply with the order granting
support pendente lite. A few years later, private
Dismissing the petition, the Supreme Court held that respondent filed a motion to reduce support while
petitioner's willingness to pay the amount of support petitioner filed her own motion to increase the same,
pendente lite in the manner indicated in his and in addition sought spousal support and support in
manifestation, and the approval thereof by the arrears. This fact underscores the provisional
respondent judge have rendered the petition moot character of the order granting support pendente lite.
and academic; and that the amount of support Petitioner's theory that the assailed orders have
pendente lite is not final in character but the factual ceased to be provisional due to the arrearages
issue as to the ability of the obligor to pay the support incurred by private respondent is therefore untenable
previously fixed should be resolved by the lower court (Calderon v. Roxas, G.R. No. 185595, January 9,
on the basis of evidence to be presented at the proper 2013)
hearing (San Juan v. Valenzuela, G.R. No. L-59906,
October 23, 1982) RULE 62: INTERPLEADER

On petition for certiorari, the Supreme Court held

Whenever conflicting claims upon the same subject
that the trial court had no jurisdiction to issue an
matter are or may be made against a person who
order for execution pending appeal and, therefore,
claims no interest whatsoever in the subject matter,
the order is null and void (Vasco v. Court of Appeals,
or an interest which in whole or in part is not disputer
G.R. No. L-46763, February 28, 1978)
by the claimants, he may bring an action against the
conlifting claimants to compel them to interplead and
Plaintiff instituted an original action for certiorari to
litigate their several claims among
annul said order of October 3, 1964, and secure a
themselves. (Section 1, Rule 62)
decree of alimony pendente lite. It is true that plaintiff
could have sought a review by appeal of Judge Bello's
NOTE: An interpleader requires a case with a
order of October 3, 1964, but since the same is
minimum of two defendants wherein the plaintiff has
interlocutory, plaintiff would have had to wait, for its
no cause of action.
review by appeal, until the rendition of judgment on
the merits, which may not be forthcoming until
REQUISITES FOR AN INTERPLEADER
months or years later. Meanwhile, plaintiff and her
1. There must be two or more claimants with
children needed alimony, to live somehow. Hence, an adverse or conflicting interests upon a subject
appeal would not have been a speedy and adequate matter.
remedy (Vinluan v. Justices of the Court, G.R. No. L- 2. The conflicting claims involve the same subject
25029, August 28, 1968) matter.
3. The conflicting claims are made against the same
It is true that the adultery of the wife is a defense in person.
an action for support. However, the alleged adultery 4. The plaintiff has no claim upon the subject
of the wife must be established by competent matter of the adverse claims or if ge has an
evidence. The mere allegation that the wife has interest at all, such interest is not disputed by the
committed adultery will not bar her from the right to claimants.
receive support pendente lite (Reyes v. Ines-Luciano,
G.R. No. L-48219, February 28, 1979)

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 Mere existence of conflicting claims between or 1. Order for them to interpleader
among several persons is no sufficient to sustain an 2. Complaint
interpleader action where such claims do not refer to 3. Summon
the same subject matter.
DIFFERENCE BETWEEN INTERPLEADER AND
Page | 262 Also, the conflicting over the same subject matter will INTERVENTION
not sustain an action in interpleader if such claims are
merely claims against each other but not claims Intervention under Rule 19 is an original and main
against the plaintiff in interpleader. The rule requires Ancillary action where the plaintiff has no interest
that the conflicting claims be made against a person whatsoever in the subject of the suit
who claims no interest whatever in the subject
matter. Intervention is proper if:
1. A person who has a legal interest in the matter in
JURISDICTION litigation; or
If the subject matter of the action is personal 2. In the success of either of the parties; or
property, valued at not more than P300,000, the MTC 3. An interest against both; or
has jurisdiction where the case is filed outside the 4. Is so situated as to be adversely affected by a
Metro Manila. Where the case is filed in Metro distribution or other disposition of property in
the custody of the court or of an officer thereof
Manila, the MTC has jurisdiction if the personal
(Sec. 1, Rule 19)
property is valued at not more than P400,000.
In an Interpleader, the defendants are being sued
If the subject matter is real property with an assessed
precisely to interplead.
value of not more than P20,000, The MTC has
jurisdiction where the case is filed outside Metro
The defendants are already the original parties in the
Manila. Where the case is filed in Metro Manila, the
action.
MTC has jurisdiction if the assessed value if the real
property does not exceed P50,000.
An interpleader is proper if:
1. There are conflicting claims.
Q: Shara, a creditor, went to Dominic, a lessee, to 2. Upon the same subject matter made against the
inform him that his lessor, Dwight, has an outstanding person, who has no interest at all.
obligation from her amounting to 100k. Shara insisted
that pursuant to a MOA all receivables from the rent Effect of filing of a motion to dismiss
shall be paid to her. Dwight told Dominic that rentals
should still be paid to him because MOA is invalid. The period to file an answer is interrupted by filing of
a motion to dismiss. If the motion is denied, the
Can Dominic choose not to pay because of the movant may file his answer within the remaining
existing conflicting claims? period to answer, but which shall not be less that 5
days in any event. This period shall be counted from
A: NO. Because, Dwight can file an unlawful detainer the notice of denial of motion.
case against Dominic. The remedy is an interpleader
case to force Shara and Dwight to litigate between
themselves who is entitled to receive the rentals.
CASE DOCTRINES

NOTE:: you have to consign the rentals in court. OCAMPO V TIRONA

Hence, what should be filed is an interpleader with
consignation. The action of interpleader is a remedy whereby a
person who has property whether personal or real, in
DOCUMENTS SERVED AFTER FILING AN his possession, or an obligation to render wholly or
INTERPLEADER CASE partially, without claiming any right in both, or claims

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an interest which in whole or in part is not disputed An action for the reformation of an instrument, to
by the conflicting claimants, comes to court and asks quiet title to real property or remove clouds
that the persons who claim the said property or who therefrom, or to consolidate ownership under Article
consider themselves entitled to demand compliance 1607 of the Civil Code, may be brought under this
with the obligation, be required to litigate among Rule. (Sec. 1, para. 2, Rule 63)
themselves, in order to determine finally who is Page | 263
entitled to one or the other thing.

WACK WACK GOLF & COUNTRY CLUB V WON

WHO MAY FILE PETITION
“It has been held that a stakeholder's action of
interpleader is too late when filed after judgment has a. Any person interested under a deed, will,
been rendered against him in favor of one of the contract or other written instrument; or
contending claimants, especially where he had notice
of the conflicting claims prior to the rendition of the
judgment and neglected the opportunity to implead
the adverse claimants in the suit where judgment was b. Those whose rights are affected by a statute,
executive order or regulation, ordinance, or any
entered. This must be so, because once judgment is
other governmental regulation
obtained against him by one claimant, he becomes
liable to the latter.” CONDITION

MAGLENTE V PADILLA Before breach or violation. In a petition for

declaratory relief, plaintiff has no cause of action
A writ of possession complements the writ of
because there must be no breach.
execution only when the right of possession or
ownership has been validly determined in a case
directly relating to either. The interpleader case
obviously did not delve in that issue. The rule is that NOTE: The concept of cause of action in ordinary civil
the enforcement of a judgment may not vary or alter action does not apply to declaratory relief because it
the tenor of the judgment but must strictly conform presupposes no breach or violation of the
to it. It should be in harmony with the judgment that instruments involved.
gives it life and not exceed it.
SUBJECT MATTER OF DECLARATORY RELIEF

1. Deed
2. Will
RULE 63: DECLARATORY RELIEF AND SIMILAR
3. Contract
REMEDIES
4. Other written instrument
PETITION FOR DECLARATORY RELIEF 5. Statute
6. Executive Order
Any person interested under a deed, will, contract or 7. Regulation
other written instrument, or whose rights are 8. Ordinance
affected by a statute, executive order or regulation,
ordinance, or any other governmental regulation NOTE: Oral agreements cannot be the subject matter
may, before breach or violation thereof bring an of a petition for declaratory relief, it has to be an
action in the appropriate Regional Trial Court to instrument in writing.
determine any question of construction or validity
arising, and for a declaration of his rights or duties, Petition for declaratory relief is not available in
thereunder. (Sec. 1, para. 1, Rule 63) unilateral actions like declaration of citizenship and
court decisions, the remedy in the latter is to move
SIMILAR REMEDIES for clarification or appeal.

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 Court decisions cannot be the proper subjects of a 5. The issue must be ripe for judicial determination.
petition for declaratory relief, decisions of quasi- (Administrative remedies should have been
judicial agencies cannot be subjects of a petition for exhausted.)
declaratory relief for the simple reason that if a party 6. Adequate relief is not available through other
is not agreeable to a decision either on questions of means or other forms of action or proceeding.
(Ferrer v. Roco, 2010)
Page | 264 law or of fact, it may avail of the various remedies
provided by the Rules of Court. (Monetary Board v.
NOTE: There is ripening of seeds when there is a
Philippine Veterans Bank, 2015)
threatened litigation in the immediate future, which
litigation is imminent and inevitable unless prevented
RELIEF
by the declaratory relief.
The relief sought by the petition is the declaration of
Under the doctrine of primary administrative
petitioner’s rights and duties based on the said
jurisdiction, courts cannot or will not determine a
documents.
controversy where the issues for resolution demand
GR: Judgement in a petition for declaratory relief the exercise of sound administrative discretion
does not essentially entail any executional process as requiring the special knowledge, experience, and
the only relief to be properly granted therein is the services of the administrative tribunal to determine
declaration of the rights and duties of the parties technical and intricate matters of fact. In other words,
under the instrument. if a case is such that its determination requires the
expertise, specialized training and knowledge of an
Rule 39 does not apply because there is nothing to administrative body, relief must first be obtained in
execute. an administrative proceeding before resort to the
courts is had even if the matter may well be within
XPN: One of the exceptions is where the court
their proper jurisdiction. (Ferrer v. Roco, 2010)
allowed the execution process to be applied to
forestall multiplicity of suits. If the judgement was not PARTIES
executed and only declaratory relief was granted, the
plaintiff may again file an action of the same nature All persons who have or claim any interest which
which would entail a long and arduous process. would be affected by the declaration shall be made
(Department of Budget and Management v. Manila’s parties; and no declaration shall, except as otherwise
Finest Retirees Assoc. Inc., 2007) provided in these Rules, prejudice the rights of
persons not parties to the action. (Sec. 2, Rule 63).

WHERE FILED NOTE: Non-joinder of parties is not a jurisdictional

defect.
The action shall be filed in the RTC and the purpose
shall be to determine any question of construction or A third-party complaint cannot be entertained in an
validity arising, and for a declaration of his rights or action for declaratory relief since no material relief is
duties, thereunder. sought. A third-party complaint may be filed only for
contribution, indemnity, subrogation or any other
REQUISITES FOR DECLARATORY RELIEF relief, in respect of his opponent's claim.

1. Subject matter must be one of those mentioned. A counterclaim may however be set up. There is
2. The terms of said documents and validity thereof nothing in the nature of a special civil action for
are doubtful and require judicial construction. declaratory relief that proscribes the filing of a
3. There must have been no breach of the counterclaim based on the same transaction, deed or
documents in question. contract subject of the complaint. A special civil
4. There must be an actual justiciable controversy
action is after all not essentially different from an
or the "ripening seeds" of one between persons
ordinary civil action. (Department of Budget and
whose interests are adverse.

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Management v. Manila’s Finest Retirees Assoc. Inc., order or regulation, ordinance, or any other
2007) governmental regulation should take place, the
action may thereupon be converted into an ordinary
NOTICE ON SOLICITOR GENERAL action, and the parties shall be allowed to file such
pleadings as may be necessary or proper. (Sec. 6, Rule
In any action which involves the validity of a statute, 63)
executive order or regulation, or any other Page | 265
governmental regulation, the Solicitor General shall NOTE: Remember, a plaintiff in a petition for
be notified by the party assailing the same and shall declaratory relief has no cause of action. Therefore, if
be entitled to be heard upon such question. (Sec. 3, a breach takes place before the final termination of
Rule 63) the case, the action will not be dismissed but it will be
converted into an ordinary action and the parties
NOTE: Constitutionality of a statute may be raised in should be allowed to file pleadings as may be
the RTC. (Republic v. Drilon, 2013) necessary or proper.
LOCAL GOVERNMENT ORDINANCES
However, if there is already a breach prior to the filing
of a petition for declaratory relief, the case would be
In any action involving the validity of a local
dismissed and not converted into an ordinary civil
government ordinance, the corresponding
action.
prosecutor or attorney of the local governmental unit
involved shall be similarly notified and entitled to be PAYMENT OF DOCKET FEES
heard. If such ordinance is alleged to be
unconstitutional, the Solicitor General shall also be If the petition for declaratory relief is converted into
notified and entitled to be heard. (Sec. 4, Rule 63) an ordinary civil action, the court will order the
petitioner to pay the requisite filing fees.
NOTE: If ordinance was declared by the RTC as
unconstitutional, it shall go up to the Supreme Court RULE 65: CERTIORARI, PROHIBITION AND
via Petition for Review under Rule 45 because only MANDAMUS
questions of law are involved and not factual issues.
RULE 65, SECTION 1
COURT ACTION DISCRETIONARY
PETITION FOR CERTIORARI
Except in actions falling under the second paragraph
of section 1 of this Rule, the court, motu proprio or A Writ of Certiorari is a writ emanating from a
upon motion, may refuse to exercise the power to superior court directed against an inferior court,
declare rights and to construe instruments in any case tribunal, board or officer exercising judicial or
where a decision would not terminate the uncertainty quasi-judicial functions whereby the record of a
or controversy which gave rise to the action, or in any particular case is ordered to be elevated for review
case where the declaration or construction is not and correction in matters of law. It is intended for
necessary and proper under the circumstances. (Sec. the correction of errors of jurisdiction only or grave
5, Rule 63) abuse of discretion amounting to lack or excess of
jurisdiction. Its principal office is only to keep the
NOTE: Sec. 5 does not apply to similar remedies; court inferior court within the parameters of its
has no choice but to resolve the case falling under the jurisdiction or to prevent it from committing such a
second paragraph of Sec. 1, Rule 63. grave abuse of discretion amounting to lack or
excess of jurisdiction (Tagle vs. Equitable PCI Bank,
CONVERSION INTO ORDINARY ACTION G.R. No. 172299, April 22, 2008).

If before the final termination of the case, a breach or EFFECT TO THE PRINCIPAL ACTION OR
violation of an instrument or a statute, executive REGLEMENTARY PERIOD

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 An original action for certiorari is an independent 1. Considering the final nature of a small claims
action and does not interrupt the principal action case decision under Section 23 of the Rule of
nor the running of the reglementary period. To Procedure for Small Claims Cases, the remedy
arrest the course of the principal action during the of appeal is not allowed, and the prevailing
party may, thus, immediately move for its
Page | 266 pendency of the certiorari proceedings, TRO or WPI execution. Nevertheless, the proscription on
must likewise be prayed for.
appeals in small claims cases, similar to other
proceedings where appeal is not an available
WHERE FILED
remedy, does not preclude the aggrieved party
from filing a petition for certiorari under Rule
The SC, CA and the RTC have concurrent jurisdiction 65 of the Rules of Court (A.L. Ang Network, Inc.
in actions for certiorari, prohibition and mandamus, vs. Mondejar, G.R. No. 200804, January 22,
hence the need for certification against forum 2014).
shopping. But notwithstanding the fact that the SC, 2. Judgment on a Petition for Declaration of
CA and RTC have concurrent jurisdiction in actions Presumptive Death is immediately final and
for Certiorari, Prohibition or Mandamus (CPM), the executory and, hence, not subject to ordinary
petitioner is still required to observe the hierarchy appeal (Republic of the Philippines vs. Granada,
of courts. G.R. No. 187512, June 13, 2012).

The petitioner can only file directly to the SC if his Requisites for a Petition for Certiorari to Prosper
or her petition involves issues that are of
“transcendental importance”. [Link] writ is directed against a tribunal, a board
or any officer exercising judicial or quasi-
judicial functions;

Functions of Respondent Tribunal, Board or

CANNOT BE ISSUED AGAINST A
Officer
TRIBUNAL/AGENCY/COURT OF THE SAME RANK
1. Judicial Function – it consists of the power to
A writ of certiorari or prohibition cannot be issued by
determine what the law is and what the legal
the RTC against an administrative agency exercising rights of the parties are and then undertake
quasi-judicial functions since the latter is of the same to determine these questions and adjudicate
rank as the RTC (remember that a writ of Certiorari is upon the rights of the parties.
a writ emanating from a superior court). This is based 2. Quasi-judicial Function – it applies to the
on the doctrine of non-interference (Doctrine of action or discretion of public administrative
Judicial Stability). officers or bodies, which are required to
investigate facts or ascertain the existence of
SUBJECT MATTER facts, hold hearings, and draw conclusions
from them as basis for their official action
GR: Normally, the subject matters of CPM are and to exercise discretion of a judicial
nature.
interlocutory orders, not final orders/judgment
because when you talk about final
Relevant Cases
judgments/orders, the proper remedy would be
appeal.
1. In the case of Spouses Dacudao vs. Sec. of
Justice, G.R. No. 186056, January 8, 2013,
XPN: Decisions that are immediately final and the petitioner failed to show that the
executory may be the subject matter of CPM Secretary of Justice was an officer exercising
judicial or quasi-judicial functions. Instead,
Example of Decisions that are Immediately Final the Secretary of Justice would appear to be
and Executory not exercising any judicial or quasi-judicial

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 functions because his questioned issuances determine a cause or causes, considered
were ostensibly intended to ensure his either in general or with reference to a
subordinates’ efficiency and economy in the particular matter. It means lack of power to
conduct of the preliminary investigation of exercise authority.
all the cases involving the Legacy Group. The 2. "Excess of jurisdiction" occurs when the
function involved was purely executive or court transcends its power or acts without
administrative. any statutory authority; or results when an Page | 267
2. In the case of Yusay vs. CA, G.R. No. 156684, act, though within the general power of a
April 6, 2011, the SC held that certiorari did tribunal, board or officer (to do) is not
not lie against the Sangguniang Panglungsod authorized, and invalid with respect to the
which was not a part of the Judiciary settling particular proceeding, because the
an actual controversy involving legally conditions which alone authorize the
demandable and enforceable rights when it exercise of the general power in respect of it
adopted Resolution No. 552, but a legislative are wanting.
and policy-making body declaring its 3. "Grave abuse of discretion" implies that
sentiment or opinion. power is exercised in an arbitrary or despotic
manner by reason of passion, prejudice, or
CERTIORARI UNDER THE CONSTITUTION personal hostility; and such exercise is so
patent or so gross as to amount to an
With respect to the Supreme Court, however, the evasion of a positive duty or to a virtual
remedies of certiorari and prohibition are refusal either to perform the duty enjoined
necessarily broader in scope and reach, and the or to act at all in contemplation of law. The
abuse of discretion must be grave for the
writ of certiorari or prohibition may be issued to
writ of certiorari to issue.
correct errors of jurisdiction committed not only
by a tribunal, corporation, board or officer
Error of Jurisdiction vs. Error of Judgment
exercising judicial, quasi-judicial or ministerial
functions but also to set right, undo and restrain
Certiorari does not correct errors of judgment
any act of grave abuse of discretion amounting to
but only errors of jurisdiction.
lack or excess of jurisdiction by any branch or
instrumentality of the Government, even if the
ERROR OF ERROR OF
latter does not exercise judicial, quasi-judicial or
JURISDICTION JUDGMENT
ministerial functions. This application is expressly
authorized by the text of the second paragraph As to Scope and An error of An error of
of Section 1 of Art. VIII of the 1987 Constitution. Definition jurisdiction is one judgment is
Thus, petitions for certiorari and prohibition are where the act one which the
appropriate remedies to raise constitutional complained of was court may
issues and to review and/or prohibit or nullify the issued by the commit in
acts of legislative and executive officials (Araullo court without or the exercise of
vs. Aquino III, G.R. No. 209287, July 1, 2014). in excess of its
jurisdiction. It jurisdiction. As
II. Such tribunal, board or officer has acted occurs when the long as the
without or in excess of jurisdiction, or with court exercises a court acts
grave abuse of discretion amounting to lack or jurisdiction not within its
excess of jurisdiction; and conferred upon it jurisdiction,
by law, or when any alleged
Jurisdictional Errors the court or errors
tribunal although committed in
1. “Without jurisdiction” means that the court with jurisdiction, the exercise of
acted with absolute lack of authority or want acts in excess of its its discretion
of legal power, right or authority to hear and jurisdiction or will amount to

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 with grave abuse nothing more a. When appeal does not constitute a
of discretion than mere speedy and adequate remedy;
amounting to lack errors of b. When orders were issued either in
of jurisdiction. judgment. excess of or without jurisdiction;
c. For certain special considerations
Errors of
as public policy or public welfare;
Page | 268 judgment
d. When the order is a patent nullity;
include errors
e. When decision in the certiorari case
of procedure will avoid future litigation; and
or mistakes in f. When, in criminal actions, the court
the court‘s rejects rebuttal evidence for the
findings. prosecution as in case of acquittal, there
could be no remedy.
NOTE:
Questions of Certiorari is Not a Substitute for a Lost
facts cannot Appeal
be raised in an
action for GR: When the remedy by appeal had already
certiorari. been lost due to petitioner’s own neglect or
As to remedy Correctible only Correctible error in the choice of remedies, certiorari
by the by appeal cannot lie.
extraordinary writ
of certiorari XPNs:
a. Appeal is lost without the appellant’s
III. There is no appeal or any plain, speedy and negligence;
adequate remedy in the ordinary course of b. When public welfare and the advancement
of public policy dictates;
law.
c. When the writs issued are null and void; and
d. When the questioned order amounts to an
Certiorari is a remedy of last resort. It is not
oppressive exercise of judicial authority.
available if the party still has another speedy and
adequate remedy available.
2. Motion for Reconsideration

A remedy is considered "plain, speedy and GR: Since a motion for reconsideration is
adequate" if it will promptly relieve the generally regarded as a plain, speedy, and
petitioner from the injurious effects of the adequate remedy, the failure to first take
judgment and the acts of the lower court or recourse to is usually regarded as fatal
agency. omission.

Examples of “plain, speedy and adequate” XPNs: However, there are exceptions,
remedies among these are:
a. Where the order is a patent nullity as where
1. Appeal the court a quo had no jurisdiction;
b. Where the questions raised in the certiorari
Appeal and Certiorari are Mutually Exclusive proceeding have been duly raised and passed upon by
the lower court;
GR: Where the proper remedy is appeal, the c. Where there is an urgent necessity for the
action for certiorari will not be entertained. resolution of the question and any further delay
would prejudice the interests of the government;
XPNs: d. Where under the circumstances, a motion
for reconsideration would be useless, as where the

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court indicated that it will deny the Motion for jurisdiction, or with grave abuse of discretion, there
Reconsideration; being no appeal or other plain, speedy and
e. Where the petitioner was deprived of due adequate remedy in the ordinary course of law
process and there is extreme urgency of relief; (Spouses Yusay vs. CA, G.R. No. 156684, April 6,
f. Where, in a criminal case, relief from an 2011).
order of arrest is urgent and the granting of such relief
by the trial court is improbable; Page | 269
REQUISITES OF PROHIBITION
g. Where the proceedings in the lower court
are a nullity for lack of due process;
h. Where the proceeding was ex parte or in [Link] is a tribunal, corporation, board or
which the petitioner had no opportunity to object; person exercising judicial, quasi-judicial or
and ministerial functions;
i. Where the issue raised is one purely of law
or where public interest is involved. II. Respondent acted, is acting or is about to act
without or in excess of jurisdiction, or acted
OTHER FORMAL REQUISITES with grave abuse of discretion amounting to
lack or excess of jurisdiction; and
1. The petition for certiorari must be verified.
For grave abuse of discretion to be a ground for
2. It shall contain a prayer for the annulment or
modification of the proceedings and grant of prohibition, the petitioner must first
such incidental reliefs as law and justice may demonstrate that the tribunal, corporation,
require. board, officer, or person, whether exercising
3. The petition shall be accompanied by: judicial, quasi-judicial or ministerial functions,
a. a certified true copy of the judgment, has exercised its or his power in an arbitrary or
order or resolution subject thereof, despotic manner, by reason of passion or
b. copies of all pleadings and documents personal hostility, which must be so patent and
relevant and pertinent thereto, and gross as would amount to an evasion, or to a
c. a sworn certification of non-forum virtual refusal to perform the duty enjoined or
shopping as provided in the to act in contemplation of law. On the other
paragraph of Section 3, Rule 46. hand, the term excess of jurisdiction signifies
that the court, board, or officer has jurisdiction
RULE 65, SECTION 2
over a case but has transcended such
jurisdiction or acted without any authority
PETITION FOR PROHIBITION
(Spouses Yusay vs. CA, G.R. No. 156684, April 6,
2011).
A Writ of Prohibition is a writ issued by a superior
court and directed against an inferior court, tribunal,
III. There must be no appeal or other plain,
corporation, board, officer or other person, whether
speedy and adequate remedy.
exercising judicial, quasi-judicial or ministerial
functions, commanding it to desist from further In order that prohibition will lie against an
proceedings, for the purpose of preventing the latter executive officer, the petitioner must first
from usurping jurisdiction with which it is not legally exhaust administrative remedies as prohibition
vested. is available only when there are no other plain,
speedy and adequate remedies in the course of
FUNCTION OF PROHIBITION law.

The function of prohibition is to prevent the OTHER FORMAL REQUISITES

unlawful and oppressive exercise of legal authority
and to provide for a fair and orderly administration 1. Verified petition by the petitioner not by the
of justice. The writ of prohibition is directed against lawyer:
proceedings that are done without or in excess of a. To contain alleged facts with certainty; and

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 b. Prayer that judgment be rendered COMELEC’s failure to comply with requirements on
commanding the respondent from further the conduct of such special election.
proceedings or grant such incidental reliefs as law and b) Writ of prohibition will lie to prevent the unlawful
justice requires. creation of a new province by those in the
2. Accompanied by a certified true copy of the corridors of power who could avoid judicial
judgment, order or resolution subject thereof and intervention and review by merely speedily and
Page | 270 documents relevant and pertinent thereto or stealthily completing the commission of such
duplicate original; and illegality.
3. Sworn certification against forum shopping
as provided in Rule 46, Section 3. PROHIBITION VS. INJUNCTION

PROHIBITION DOES NOT LIE AGAINST PROHIBITION INJUNCTION

EXPROPRIATION As to Prohibition
is an 1. Main
definition extraordinary
wr action for
There can be no prohibition against a procedure it commanding a injunction
whereby the immediate possession of the land under tribunal, seeks to
expropriation proceedings may be taken, provided corporation, board enjoin the
always that due provision is made to secure the or person, defendant
prompt adjudication and payment of just whether exercising from the
compensation to the owner. This bar against judicial, quasi- commissio
judicial or n or
prohibition comes from the nature of the power of
ministerial continuanc
eminent domain as necessitating the taking of private
functions, to desist e of a
land intended for public use, and the interest of the specific
from further
affected landowner is thus made subordinate to the proceedings when act, or to
power of the State. Once the State decides to exercise said proceedings compel a
its power of eminent domain, the power of judicial are without or in particular
review becomes limited in scope, and the courts will excess of its act in
be left to determine the appropriate amount of just jurisdiction, or violation of
compensation to be paid to the affected landowners. with abuse of its the rights
Only when the landowners are not given their just discretion, there of the
compensation for the taking of their property or being no appeal or applicant.
when there has been no agreement on the amount of any other plain, 2. Preliminar
speedy and y
just compensation may the remedy of prohibition
adequate remedy injunction
become available.
in the ordinary is a
course of law provisional
ACTS FAIT ACCOMPLI (ACCOMPLISHED FACTS) remedy to
preserve
GR: Prohibition is a preventive remedy. As such, it will the status
not lie for acts already accomplished. quo and
prevent
XPNs: future
1. Courts will decide a question otherwise moot if it wrongs in
is capable of repetition yet evading review, such order to
as: preserve
a. The question of constitutionality of the and
President’s appointment of Department Secretaries protect
in an acting capacity while Congress is in session. certain
b. The question of validity of a special election interests or
to fill in a vacancy in the Senate in relation to rights
during the

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 pendency over the territorial territorial area
of an area where where
action. respondent respondent
As to A special civil It is an ordinary resides. resides.
nature action under Rule civil action. It
65. It is always the may be the
main action. main action MANDAMUS Page | 271
itself or just a
provisional REQUISITES
remedy. a. Respondent unlawfully
As to To prevent an For the 1._Neglects the performance of an act which the
purpose encroachment, defendant law specifically enjoins as a duty resulting from
excess, usurpation either to refrain an office, trust, or station, or
or assumption of from an act or 2._Excludes another from the use and enjoyment
jurisdiction; to perform not of a right or office to which such other is entitled,
necessarily a and
legal and b. There is no other plain, speedy and adequate
ministerial duty remedy in the ordinary course of law
As to May be directed Directed [Sec. 3, Rule 65]
whom against entities against a party
directed exercising judicial NOTES ON MANDAMUS:
or quasi-judicial,
a. There must be a well-defined, clear legal right or
or ministerial
duty. The duty must be enjoined by law; hence, a
functions
contractual duty cannot be enforced by mandamus.
As to Extends to Does not
scope discretionary and necessarily b. Respondent must be exercising ministerial duty.
ministerial extend to However, mandamus “will lie to compel discharge of
functions ministerial, the discretionary duty itself but not to control the
discretionary or discretion to be exercised. In other words, a
legal functions mandamus can issue to require action, but not
As to It is based on the It does not specific action.”
grounds ground that the involve the c. There is no other plain, speedy, and adequate
court against jurisdiction of remedy in the ordinary course of law [Sec. 3, Rule
whom the writ is the court. 65].
sought had acted,
is acting, or is WHEN PETITION FOR MANDAMUS IS PROPER
about to act A writ of mandamus will not issue to control the
without or in exercise of official discretion or judgment, or to alter
excess of or review the action taken in the proper exercise of
jurisdiction.
the discretion of judgment, for the writ cannot be
As to Commands May be either
used as a writ of error or other mode of direct review.
Judgment respondent to to compel the
[Lamb v. Phipps, G.R. No. L-7806 (1912)]
rendered desist from defendant to
proceeding in the do an act or to However, in extreme situations generally in criminal
action restrain him cases, mandamus lies to compel the performance of
from doing the fiscal of discretionary functions where his
such an act. actuations are tantamount to a willful refusal to
As to May be brought in May be brought perform a required duty [1 Regalado 804, 2010 Ed.]
Court the SC, CA, in the RTC
which has Sandiganbayan, or which has GROUNDS:
jurisdictio in the RTC which jurisdiction When any tribunal, corporation, board, officer or
n has jurisdiction over the person unlawfully

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 a. NEGLECTS the performance of an act which matter of right. However, for it to be issued, it is
the law specifically enjoins as a duty resulting from an essential that petitioner should have a clear legal right
office, trust, or station, or to the thing demanded and it must be the imperative
duty of the respondent to perform the act required,
Mandamus will not lie to compel the performance of
b. EXCLUDES another from the use and an illegal act.
Page | 272 enjoyment of a right or office to which such
other is entitled [Sec. 3, Rule 65] DISCRETIONARY ACTS NOT COMPELLABLE BY
Mandamus is the proper remedy when the
MANDAMUS
respondent unlawfully excludes the petitioner from a
Mandamus does not lie to compel the performance of
public office, position or franchise to which the latter
a discretionary duty. It will not issue to control or
is entitled without usurping, intruding into or
review the exercise of discretion of a public officer
unlawfully holding the office. However, if the
where the law imposes upon said officer the right and
respondent claims any right to the office and usurps,
duty to exercise his judgment in reference to any
intrudes into or unlawfully holds it against the
matter in which he is required to act.
petitioner, quo warranto is the proper remedy [Sec.
Reconstitution is not a ministerial act. It involves the
1, Rule 66]
exercise of discretion in the evaluation of the
evidence presented before it. How to rule on the
MINISTERIAL ACT OR DUTY
admission of the evidence cannot be compelled by
mandamus.
Q: What is the nature of a writ of mandamus? What
It is not proper when the act against which it is
do you mean by a ministerial act or duty?
directed is one addressed to the discretion of the
A: It is a writ that commands the performance of a
tribunal or officer. It will not lie to order the court to
purely ministerial duty imposed by law. A duty is
decide in a particular manner and for or against a
ministerial when it demands no special judgment,
litigant.
discretion and is a simple and definite duty imposed
It is not available to direct the exercise of a judgment
by law.
or discretion in a particular way.
Mandamus will not be available to compel the
performance of a discretionary act.
Q: Are contractual obligations compellable by
It is an appropriate remedy to compel the payment of
mandamus?
the benefits to which an EE is entitled under the law
A: No, it cannot be availed of as a remedy to enforce
such as holiday pay.
the performance of contractual obligations. No rule of
It is not proper against a school or an official with a
law is better settled than that mandamus does not lie
duty that involves the exercise of discretion like on
to enforce the performance of contractual
matters of admission of students.
obligations. It is not intended to aid a plaintiff in the
It will not also lie to compel an academic institution to
enforcement of a mere contract right, or to take the
allow the graduation of a student who has failed to
place of other remedies provided by law for the
comply with the academic rules of the school.
adjudication of disputed claims.
DOCTRINE OF EXHAUSTION OF ADMINISTRATIVE
RELIEFS:
REMEDIES
a. Court may issue orders expediting the
Prior resort to the exhaustion of administrative proceedings, and it may also grant a temporary
remedies however is not required where the restraining order or a writ of preliminary injunction
questions raised are purely legal or when the for the preservation of the rights of the parties [Sec.
respondent is estopped from invoking the rule of 7, Rule 65]
exhaustion of administrative remedies.
Mandamus will not lie to compel a prosecutor to file b. Incidental reliefs as law and justice may
an information. require [Secs. 1-2, Rule 65]
It will lie to compel execution of a judgment because
the execution of a final and executory judgment is a

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c. Other reliefs prayed to which the petitioner Chief Justice of the SC. It stated that she had no right
is entitled [Sec. 8, Rule 65] to be a Chief Justice because she did not submit SALNs
required (her SALNs were incomplete) therefore she
should not have been appointed.
PRAYERS:
1. That the judgment be rendered commanding the It does not apply to quo warranto cases against Page | 273
respondent, immediately or at some other time to be persons who usurp an office in a private corporation.
specified by the court, to do the act required to be The Interim Rules of Procedure Governing Intra-
done to protect the rights of the petitioner; and Corporate Controversies under R.A. No. 8799 would
be the applicable rule. (Callega v. Panday, G.R. No.
[Link] pay the damages sustained by the petitioner by 168696, February 28, 2006)
reason of the wrongful acts of the respondent [Sec. 3,
Rule 65] A PUBLIC OFFICER WHO DOES OR SUFFERS AN ACT
WHICH, BY PROVISION OF LAW, CONSTITUTES A
RULE 66: QUO WARRANTO GROUND FOR THE FORFEITURE OF HIS OFFICE

Literally means “by want authority”, is a prerogative Quo warranto is the remedy to try disputes with
proceeding or writ issued by the court to determine respect to the title to a public office. Where, however,
the right to the use or exercise of an office, position there is no dispute as to who has the title to the public
or franchise and to oust the person holding or office but the adverse party, without lawful ground,
exercising such office, position or franchise if his right prevents the rightful occupant from assuming the
is unfounded or if he had forfeited his right to enjoy office, mandamus is the remedy to oust the usurper.
the privilege. Where the action is filed by a private (Lota v. CA, G.R. No. L-14803, June 30, 1961)
person, he must prove that he is entitled to the
controverted position; otherwise respondent has the Quo warranto and Election contest; Distinguished
right to undisturbed possession of the office. (Velasco
v. Belmonte, G.R. No. 211140, January 12, 2016) QUO ELECTION
WARRANTO CONTEST
RULE 66, SECTION 1 As to nature The basis is It challenges
and basis that the the right of a
occupant is person to hold
ACTION BY GOVERNMENT AGAINST INDIVIDUALS
disqualified office on the
from holding ground of
Against whom may the action be brought: (UFA) the office by irregularities in
a. A person who Usurps, intrudes into, or reason of the conduct of
unlawfully holds or exercises a public office, position ineligibility or the elections
or franchise; disloyalty. for said office.
b. A public officer who does or suffers an act (Falcotelo v.
which, by provision of law, constitutes a ground for Gali, G.R. No.
the Forfeiture of his office; or L-24190,
c. An Association which acts as a corporation January 8,
within the Philippines without being legally 1968)
incorporated or without lawful authority so to act. As to If the If the
procedure proceeding proceeding
A PERSON WHO USURPS, INTRUDES INTO, OR succeeds, the succeeds, the
UNLAWFULLY HOLDS OR EXERCISES A PUBLIC respondent successful
OFFICE, POSITION OR FRANCHISE will be ousted protestant will
but the assume the
This was the basis for the quo warranto petition that petitioner will office if he had
was filed by the Solicitor General against the former obtained a

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 not assume plurality of the are just and valid reasons. Upon receipt of a case
the office. valid votes. certified to him, the Solicitor General may start the
prosecution of the case by filing the appropriate
action in court or he may choose not to file the case
at all. The Solicitor General is given permissible
QUO WARRANTO ACTIONS IN ELECTIVE VIS-A-VIS latitude within his legal authority in actions for quo
Page | 274
APPOINTIVE OFFICES warranto, circumscribed only by the national interest
ELECTIVE APPOINTIVE and the government policy on the matter at hand.
OFFICES OFFICES (Republic v. Sereno, G.R. No. 237428, May 11, 2018)
As to the issue The issue is the The issue is the
eligibility of validity of the RULE 66, SECTION 2
the appointment.
respondent. WHEN SOLICITOR GENERAL OR PUBLIC PROSECUTOR
As to court The occupant The court will
MUST COMMENCE AN ACTION
action who was oust the
involved declared person illegally
ineligible or appointed and MANDATORY QUO WARRANTO PROCEEDING
disloyal will be will order the
unseated but seating of the Brought by the Solicitor General or a public
the petitioner person who prosecutor, when:
will not be was legally a. Directed by the President of the Philippines;
declared the appointed and b. Upon complaint or otherwise he has good
rightful entitled to the reason to believe that the cases for quo warranto can
occupant of office. (Nuval be established by proof.
the office. v. Guray, 52
Phil. 653; Upon complaint or otherwise he has good reason to
Gaerlan v. believe that the cases for quo warranto can be
Catubig, G.R. established by proof
No. L-23964,
June 1, 1966) This was the reason why the Solicitor General filed a
quo warranto petition against former Chief Justice
Sereno.
An association which acts as a corporation within the
Philippines without being legally incorporated or Using this as basis, the Solicitor General can file a
without lawful authority so to act petition for quo warranto on his own, without being
directed by the President of the Philippines.
This was the basis for the quo warranto petition
against ABS-CBN. When a company acts in violation RULE 66, SECTION 3
of a franchise, this is the basis for the petition for quo
warranto. WHEN SOLICITOR GENERAL OR PUBLIC PROSECUTOR
MAY COMMENCE ACTION WITH PERMISSION OF
Refers to an association which exercises corporate COURT
functions or powers although it has not been legally
incorporated. In the case of a legally incorporated DISCRETIONARY QUO WARRANTO PROCEEDING
entity, the quo warranto action is now governed by
the Corporation Code. Brought by the Solicitor General or a public
prosecutor at the request or upon the relation of
NOTE: The Solicitor General, in the exercising of another person, provided there must be:
sound discretion, may suspend or tum down the a. Leave of court; and
institution of an action for quo warranto where there b. Indemnity bond.

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INDEMNITY BOND The Solicitor General or the public prosecutor may
commence a quo warranto action:
The officer bringing it may first require an indemnity a. When directed by the President;
for the expenses and costs of the action in an amount b. When he has good reason to believe that he
approved by and to be deposited in the court by the can establish a case under the grounds in Secs. 1 and
2; and
Page | 275
person at whose request and upon whose relation the
same is brought. c. At the request and upon the relation of
another person (ex. relations) but, in this case, leave
of court must first be obtained, and may also require
RULE 66, SECTION 5
an indemnity bond from the relator.

WHEN AN INDIVIDUAL MAY COMMENCE SUCH AN

A Relator is a person at whose request and upon
ACTION
whose relation the Solicitor General or public
A person claims to be entitled to the public office
prosecutor brings an action for quo warranto
allegedly usurped by another in which case, he can
with the permission of the court under Secs. 3
bring the action in his own name. The person
and 4.
instituting quo warranto proceeding in his own
behalf, under Sec. 5, does not have to secure the
A private relator does not need to allege and
intervention of the Solicitor General or the fiscal, nor
show that he is entitled to the office in dispute.
does he have to obtain prior leave of court. However,
However, if he can show that he is entitled to the
petitioner must aver and be able to show that he is
public office allegedly usurped by another, he
entitled to office. By analogy with the provision of
can bring an action in his own name.
Sec. 5, it has been held that a public utility may bring
a quo warranto action against another public utility
XPN: When a person claims to be entitled to the
which has usurped the rights of the former granted
public office allegedly usurped by another in which
under a franchise. (Cui v. Cui, G.R. No. 39773, April
case, he can bring the action in his own name. He
9,1934)
need not secure the permission of the Solicitor
General or the Fiscal. The petitioner does not even
In quo warranto, the petitioner who files the action in
need to obtain prior leave of court. The petitioner is
his name must prove that he is entitled to the subject
allowed to file it in his name. The petition however
public office. In other words, the private person suing
must allege and show that he is entitled to the office
must show a clear right to the contested position.
in dispute (unlike in Secs. 2 & 3). If the petitioner
Otherwise, the person who holds the same has a right
failed to show that he is entitled to the office, then
to undisturbed possession and the action for quo
the petition must be dismissed.
warranto may be dismissed. (Arquero v. CA, G.R. No.
168053, September 21, 2011)
Action filed by an Individual and an Action filed by
the Solicitor General, or Public Prosecutor;
RULE 66, TYING UP SECTION 2, 3 & 5
Distinguished

WHO MAY COMMENCE?

ACTION BY A PRIVATE ACTION BY THE
INDIVIDUAL SOLICITOR GENERAL
The Government through Solicitor General or public
OR PUBLIC
prosecutor may commence an action for quo
PROSECUTOR
warranto. It may also be commenced by an individual
It is necessary for the Not necessary that
claiming to be entitled to a public office or position
petitioner to prove his there be a person
usurped or unlawfully held or exercised by another.
right to the office in claiming to be entitled
dispute. Otherwise, the to the office alleged to
GR: Quo warranto is commenced by the Government
court shall not pass on have been usurped,
as the proper party plaintiff.

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 the right of the thus the duty of the 3. Allegation that respondent is unlawfully in
defendant in the office. court is to pass upon the possession thereof.
(Topacio v. Ong, G.R. right of the defendant
No. 179895, December only. (Riano) WHO MAY BE MADE RESPONDENTS?
18, 2008)
All persons who claim to be entitled to the public
Page | 276
If a plaintiff’s right to file the complaint is not office, position, or franchise (the usurper).
proven, it becomes unnecessary for the Court to pass RULE 66, SECTION 7
upon the right of the defendant who has a perfect
right to the undisturbed possession of his office. VENUE
However, if the complaint is brought by the Solicitor
General or public prosecutor, the Court may pass The quo warranto petition can be brought only in the:
upon the defendant’s right to office. a. Supreme Court;
b. Court of Appeals; or
RULE 66, SECTION 4 c. Regional Trial Court exercising jurisdiction
over the territorial area where respondents reside.
WHEN HEARING HAD ON APPLICATION FOR
If the Solicitor General commences the action, it may
PERMISSION TO COMMENCE ACTION
be brought in the:
a. Regional Trial Court in the City of Manila;
Upon application for permission to commence such
b. Court of Appeals; or
action in accordance with the next preceding section c. Supreme Court.
(Section 3 – When Solicitor General or public
prosecutor may commence action with permission of QUO WARRANTO IN SANDIGANBAYAN
the court), the Court shall direct that notice be given
to respondent so that he may be heard in opposition. P.D. 1606, as amended by R.A. 8249, Sec. 4 provides
that a quo warranto petition may be brought in the
If permission is granted: Sandiganbayan with regard to cases arising from E.O.
a. Court shall issue an order to that effect, Nos. 1, 2, 3, 14, and 14-A.
served to the parties, and
b. Petition shall be filed within the period
QUO WARRANTO UNDER THE OMNIBUS ELECTION
ordered by the court.
CODE
RULE 66, SECTION 6
The Omnibus Election Code provides that a petition
for quo warranto may be brought either in the:
PARTIES AND CONTENTS OF PETITION AGAINST
a. Commission on Elections;
USURPATION
b. Regional Trial Court; or
c. Municipal Trial Court.
CONTENTS OF THE PETITION: (ANA)
1. Averment of his right to Sec. 253 of the Omnibus Election Code provides that:
office/position/franchise;
1. Any voter contesting the election of any
Member of the Batasang Pambansa,
Note: Without such averment or evidence of regional, provincial, or city officer on the
such right, the action may be dismissed at ground of ineligibility or of disloyalty to the
any stage. (Feliciano v. Villasin, G.R. No. Republic of the Philippines shall file a sworn
174929, June 27, 2008) petition for quo warranto with the
Commission [on Elections] within ten days
2. Name of the person who claims to be after the proclamation of the results of the
entitled thereto, if any; election.

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2. Any voter contesting the election of any that candidate person
municipal or barangay officer on the ground of occupying the entitled to
ineligibility or of disloyalty to the Republic of the second place occupy the
Philippines shall file a sworn petition for quo warranto as elected, office.
with the Regional Trial Court or Metropolitan or even if he were
Municipal Trial Court, respectively, within ten days eligible.
after the proclamation of the results of the election. Page | 277

QUO QUO RULE 66, SECTION 8

WARRANTO WARRANTO
IN THE IN AN PERIOD FOR PLEADINGS AND PROCEEDINGS MAY BE
OMNIBUS APPOINTIVE REDUCED; ACTION GIVEN PRECEDENCE
ELECTION OFFICE
CODE
The court may reduce the period provided by these
(ELECTIVE
Rules for filing pleadings and for all other proceedings
OFFICE)
As to Election Law Provisions of in the action in order to secure the most expeditious
governing law the Rule of determination of the matters involved therein
Court consistent with the rights of the parties. Such action
As to the issue Eligibility or Legality or may be given precedence over any other civil matter
ineligibility of illegality of the pending in the court.
the person occupancy of
elected or his the office by RULE 66, SECTION 9
loyalty or virtue of an
disloyalty to appointment JUDGMENT WHERE USURPATION FOUND
the Republic
As to Petition is filed Petition is filed When the respondent is found guilty of usurping into,
procedure within 10 days within one (1)
intruding into, or unlawfully holding or exercising a
after the year from the
public office, position or franchise, judgment shall
proclamation time the cause
include the following:
of the results of ouster, or
of the election. the right of the
petitioner to
hold the office a. The respondent shall be ousted and
or position excluded from the office;
arose. b. The petitioner or relator, as the case may be,
As to venue Petition is Petition is shall recover his costs; and
brought in the brought in the c. Such further judgment determining the
COMELEC, SC, CA, or RTC. respective rights in and to the public office, position
RTC, or MTC, or franchise of all the parties to the action as justice
as the case requires.
may be.
As to the Petitioner may Petitioner is RULE 66, SECTION 10
petitioner be any voter if the person
he is not claiming to be RIGHTS OF PERSONS ADJUDGED ENTITLED TO
entitled to the entitled to the PUBLIC OFFICE; DELIVERY OF BOOKS AND PAPERS
office. office.
As to the When the first The court The person adjudged to be entitled to the public
determination person elected determines office may exercise the following rights after taking
of the court is ineligible, who is legally his oath of office and executing the required bond:
the court appointed and
cannot declare declare the

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 a. Take upon himself the execution of the
office; and SECTION 1 – ACTION BY THE GOVERNMENT AGAINST
b. Immediately thereafter demand of the INDIVIDUALS
repsondent all the books and papers in the
respondent's custody or control To differentiate from impeachment, quo warranto
appertaining to the office to which the involves a judicial determination of the eligibility or
Page | 278 judgment relates.
validity of the election or appointment of a public
official based on predetermined rules while
RESPONDENT REFUSES OR NEGLECTS TO DELIVER;
impeachment is a political process to vindicate the
DAMAGES
violation of the public’s trust. In quo warranto
proceedings referring to offices filled by
If the respondent refuses or neglects to deliver any
appointment, what is determined is the legality of the
book or paper pursuant to such demand, he may be
appointment. The title to a public office may not be
punished for contempt as having disobeyed a lawful
contested collaterally but only directly, by quo
order of the court.
warranto proceedings. usurpation of a public office is
treated as a public wrong and carries with it public
The person adjudged entitled to the office may also
interest, and as such, it shall be commenced by a
bring action against the respondent to recover the
verified petition brought in the name of the Republic
damages sustained by such person by reason of the
of the Philippines through the Solicitor General or a
usurpation.
public prosecutor. The SolGen is given permissible
latitude within his legal authority in actions for quo
RULE 66, SECTION 11
warranto, circumscribed only by the national interest
and the government policy on the matter at hand.
PERIOD FOR FILING
(Republic v. Sereno, G.R. No. 237428, June 19, 2018)
An action for quo warranto by reason of ouster from
Quo warranto and impeachment may proceed
a public office shall be filed within one (1) year after
independently of each other as these remedies are
the cause of such ouster, or the right of the petitioner
distinct as to (1) jurisdiction (2) grounds, (3)
to hold such office or position, arose.
applicable rules pertaining to initiation, filing and
dismissal, and (4) limitations. Forum shopping is the
PERIOD TO CLAIM DAMAGES
act of a litigant who repetitively availed of several
judicial remedies in different courts, simultaneously
If the petitioner is adjudged to be entitled to the
or successively, all substantially founded on the same
office, he may sue for damages against the alleged
transactions and the same essential facts and
usurper within one (1) year from the entry of
circumstances, and all raising substantially the same
judgment establishing his right to the office in
issues, either pending in or already resolved adversely
question.
by some other court, to increase his chances of
obtaining a favorable decision if not in one court, then
RULE 66, SECTION 12
in another. The test for determining forum shopping
is whether in the two (or more) cases pending, there
JUDGMENT FOR COSTS
is identity of parties, rights or causes of action, and
reliefs sought. The crux of the controversy in this quo
In each action brought in accordance with the
warranto proceedings is the determination of
provisions of Rule 66, the court may:
whether or not Sereno legally holds the Chief Justice
a. Render judgment for costs against either the
position to be considered as an impeachable officer in
petitioner, the relator, or the respondent, or the
person or persons claiming to be a corporation; or the first place. On the other hand, impeachment is for
b. Apportion the costs, as justice requires. respondent’s prosecution for certain impeachable
offenses. Simply put, while Sereno’s title to hold a
RULE 66, JURISPRUDENCE public office is the issue in quo warranto proceedings,

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impeachment necessarily presupposes that Sereno It is the highest and most exact idea of property
legally holds the public office and thus, is an remaining in the government that may be acquired
impeachable officer, the only issue being whether or for some public purpose through a method in the
not she committed impeachable offenses to warrant nature of a compulsory sale to the State.
her removal from office. (Republic v. Sereno, G.R. No.
237428, June 19, 2018) REQUISITES OF EXPROPRIATION Page | 279
Impeachment is not an exclusive remedy by which an a. The property taken must be private
invalidly appointed or invalidly elected impeachable property.
official may be removed from office. The language of b. There must be genuine necessity to take the
Section 2, Article XI of the Constitution does not private property.
c. The taking must be for public use.
foreclose a quo warranto action against impeachable
d. There must be payment of just
officers: “Section 2. The President, the Vice-President,
compensation.
the Members of the Supreme Court, the Members of
e. There must be due process of law.
the Constitutional Commissions, and the
Ombudsman may be removed from office on WHERE SHOULD EXPROPRIATION BE FILED?
impeachment for, and conviction of, culpable The Regional Trial Court has the jurisdiction over
violation of the Constitution, treason, bribery, graft expropriation cases. The MTC does not have
and corruption, other high crimes, or betrayal of jurisdiction because an expropriation proceeding is
public trust.” The provision uses the permissive term incapable of pecuniary estimation.
“may” which denote discretion and cannot be It is the filing of the expropriation complaint which
construed as having a mandatory effect, indicative of binds the property and not the notice to expropriate.
a mere possibility, an opportunity, or an option. In
American jurisprudence, it has been held that “the The commencement of the complaint for
express provision for removal by impeachment ought expropriation is necessary only when the owner of
not to be taken as a tacit prohibition of removal by the property does not agree to sell the property, or
other methods when there are other adequate otherwise does not agree to the price offered.
reasons to account for this express provision.”
(Republic v. Sereno, G.R. No. 237428, June 19, 2018) Q: Can the owner of the property subject to
expropriation case sell such property?
However, logic, common sense, reason, practicality A: Yes. This is because the owner still owns the
and even principles of plain arithmetic bear out the property. The owner may still dispose such. However,
conclusion that an unqualified public official should such property will be subject to the results of the
be removed from the position immediately if indeed expropriation proceeding because when the plaintiff
Constitutional and legal requirements were not met files an expropriation case, a notice of lis pendens will
or breached. (Republic v. Sereno, G.R. No. 237428, be attached to the title of the property.
June 19, 2018) Q: Where should the case be filed if the property
sought to be expropriated is located in multiple
RULE 67: EXPROPRIATION provinces?
A: It may be filed before any of the provinces in
POWER OF EMINENT DOMAIN accordance with the rules on venue. However, the
It is the power of the State to acquire private property defendant in each province may require a separate
for public use upon payment of just compensation. It action to be commenced against them in their
is not limited to real properties, personal property can respective provinces to avoid inconvenience.
be subjected.
CONTENTS OF THE COMPLAINT
EXPROPRIATION The verified complaint shall:

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 • State with certainty the right and purpose of Then, the plaintiff has the right to take possession of
the expropriation the property subject of the expropriation
• Describe the real or personal property proceedings. The court now will have to issue a writ
sought to be expropriated of possession. It is the ministerial duty of the court to
• Join as defendants all persons who owns, issue such writ.
claims to own, or occupies, any part or After such deposit, the plaintiff is not allowed to just
Page | 280 interest thereof showing, as far as directly occupy and take possession of the property.
practicable, the separate interest of each
The court shall first order the sheriff or other proper
defendant.
officer.
However, if the title to any property sought to be
expropriated appears to be in the name of the Q: What is the remedy if the court did not issue a
Republic of the Philippines, or if the title is obscure or writ of possession even if there was already a proper
preliminary deposit made?
doubtful that the plaintiff cannot with accuracy or
A: The plaintiff may file a motion for reconsideration.
certainty certify who are the real owners, there must
be an averment stating such circumstance in the If the motion for reconsideration is denied, then a
complaint. (Sec. 1, Rule 67) mandamus case.

Q: What if the owner is unknown? CONCEPT OF PRELIMINARY DEPOSIT

A: The summons will be served through publication in It is supposed to be an advance money in the event
the expropriation proceeds. It will form part of the
accordance with Rule 14.
just compensation in case of a favorable judgment.
ENTRY OF PLAINTIFF UPON DEPOSITING VALUE However, if the case results to an unfavorable
judgment, it will stand as an indemnity for damages.
For a real property:
There must be a preliminary deposit equivalent to the The preliminary deposit is only required if the plaintiff
assessed value of the property for the purposes of wants to take possession of the property subject of
taxation given to an authorized government the expropriation proceedings while such is pending
depositary bank subject to the orders of the court: in the trial court. Hence, if the plaintiff does not want
to possess such, he should not be compelled to make
a. Upon the filing of the complaint or at any such deposit.
time thereafter; AND
b. After due notice to the defendant STAGES OF EXPROPRIATION
A. First Stage - the determination of the authority of
For a personal property: The value shall be the plaintiff to expropriate. The determination
provisionally ascertained and the amount to be for the public use requirement and necessity
deposited shall be promptly fixed by the court. happens in this stage.
After such deposit is made the court shall order the With or without objection, the court will decide if
sheriff or other proper officer to forthwith place the there is indeed a right and need to expropriate.
plaintiff in possession of the property involved and The first stage will end in the issuance of an Order of
promptly submit a report thereof to the court with Expropriation or dismissal. This order of expropriation
service of copies to the parties. (Sec. 2, Rule 67) is a final judgment. Therefore it can be subject to
appeal.
Note: Such deposit shall be in money, unless
in lieu thereof the court authorizes the A final order sustaining the right to expropriate the
deposit of a certificate of deposit of a property may be appealed by any party aggrieved
government bank of the Republic of the thereby. Such appeal, however, shall not prevent the
Philippines payable on demand to the court from determining the just compensation to be
authorized government depositary. paid. (Sec. 4, Rule 67)

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EFFECT OF FAILING TO FILE AN ANSWER OR TO The court may issue an order of expropriation:
APPEAR
No default order shall be issued. Failure to file an a. If the objections to and the defenses against
answer does not produce all the disastrous the right of the plaintiff to expropriate the property
consequences of default in ordinary civil actions. are overruled,
At the trial of the issue of just compensation whether
or Page | 281
or not a defendant has previously appeared or
answered, he may present evidence as to the amount b. When no party appears to defend.
of the compensation to be paid for his property, and
he may share in the distribution of the award. (Sec. 3, The plaintiff has a lawful right to take the property
Rule 67) sought to be expropriated, for the public use or
B. Second Stage - for the determination of just purpose described in the complaint, upon the
compensation through the court-appointed payment of just compensation to be determined as of
commissioners to be paid to the defendant. the date of the taking of the property or the filing of
The order fixing the just compensation on the basis of the complaint, whichever came first. (Sec. 4, Rule 67)
the evidence before, and findings of, the Such order of expropriation is final. Therefore, it can
commissioners would be a final judgment. It would be subject of appeal but it will not stop the
finally dispose of the second stage of the suit, and proceedings for the determination of just
leave nothing more to be done regarding the issue. compensation.

DEFENSES AND OBJECTIONS The plaintiff shall not be permitted to dismiss or

If a defendant has any objection or defense to the discontinue the proceeding except on such terms as
taking of his property, he shall serve his answer. The the court deems just and equitable.
answer shall specifically designate or identify the The order forecloses any further objections to the
property in which he claims to have an interest, state right to expropriate and to the public purpose of the
the nature and extent of the interest claimed, and expropriation, leaving the matter of just
adduce all his objections and defenses to the taking compensation as the only remaining substantial issue.
of his property.
No counterclaim, cross-claim or third-party complaint Multiple appeals are permitted in expropriation. An
shall be alleged or allowed in the answer or any appeal may be taken from the order authorizing the
subsequent pleading. expropriation and thereafter, another appeal on the
If there are no objections, he must file and serve a judgment on the just compensation. Thus, the
notice of appearance and manifestation to that reglementary period to appeal shall be 30 days and a
effect. And thereafter, shall be entitled to notice of all record on appeal shall be required for each of the
proceedings. permissible appeals.

WAIVER OF DEFENSES AND OBJECTIONS ASCERTAINMENT OF JUST COMPENSATION

A defendant waives all defenses and objections not so Upon the rendition of the order of expropriation, the
alleged but the court, in the interest of justice, may court shall appoint not more than 3 competent and
permit amendments to the answer to be made not disinterested persons as commissioners.
later than 10 days from the filing thereof.
However, at the trial of the issue of just compensation The duties of these commissioners are to ascertain
whether or not a defendant has previously appeared and report to the court the just compensation for the
or answered, he may present evidence as to the property sought to be taken. The order of
amount of the compensation to be paid for his appointment shall designate the time and place of the
property, and he may share in the distribution of the first session of the hearing to be held by the
award. (Sec. 3, Rule 67) commissioners and specify the time within which
their report shall be submitted to the court.
ORDER OF EXPROPRIATION

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 Copies of the order shall be served on the parties.
Objections to the appointment of any of the OATH
commissioners shall be filed with the court within 10 Before entering upon the performance of their duties,
days from service, and shall be resolved within 30 the commissioners shall take and subscribe an oath
days after all the commissioners shall have received that they will faithfully perform their duties as
Page | 282 copies of the objections. (Sec. 5, Rule 67) commissioners, which oath shall be filed in court with
the other proceedings in the case.
WHAT IS JUST COMPENSATION? Introduction of evidence
Just compensation is the full and fair equivalent of the Evidence may be introduced by either party before
property taken from its owner by the expropriator. the commissioners who are authorized to administer
Just compensation means not only the correct oaths on hearings before them.
determination of the amount to be paid but also the
payment of the land within a reasonable time from its DUTIES OF COMMISSIONERS
taking. (Landbank vs Obias, 2012) The commissioners shall, unless the parties consent
to the contrary, after due notice to the parties, to
The measure is not the taker’s gain but the owner’s attend, view and examine the property sought to be
loss. The compensation, to be just, must be fair not expropriated and its surroundings, and may measure
only to the owner but also to the taker. Even as the same, after which either party may, by himself or
undervaluation would deprive the owner of his counsel, argue the case.
property without due process, so too would its
overvaluation unduly favor him to the prejudice of The commissioners shall assess the consequential
the public. (NAPOCOR vs. De la Cruz, 2007) damages to the property not taken and deduct from
such consequential damages the consequential
To determine just compensation, the trial court benefits to be derived by the owner from the public
should first ascertain the market value of the use or purpose of the property taken, the operation
property, to which should be added the of its franchise by the corporation or the carrying on
consequential damages after deducting therefrom of the business of the corporation or person taking
the consequential benefits which may arise from the the property. In no case shall the consequential
expropriation. If the consequential benefits exceed benefits assessed exceed the consequential damages
the consequential damages, these items should be assessed, or the owner be deprived of the actual
disregarded altogether as the basic value of the value of his property so taken.
property should be paid in every case.
Market value is the sum of money which a person REPORT BY COMMISSIONERS
desirous but not compelled to buy, and an owner The court may:
willing but not compelled to sell, would agree on as a
price to be given and received therefore. (BPI vs CA, a. Order the commissioners to report when any
2004) particular portion of the real estate shall
Among the factors to be considered in arriving at the have been passed upon by them, and
b. Render judgment upon such partial report,
fair market value of the property are:
c. Direct the commissioners to proceed with
a. The cost of acquisition; their work as to subsequent portions of the
b. The current value of like properties; property sought to be expropriated, and may
c. Its actual or potential uses; and from time to time so deal with such
d. In the particular case of lands, their size, property.
shape, location, and the tax declarations
The commissioners shall make a full and accurate
thereon
report to the court of all their proceedings, and such
PROCEEDINGS BY COMMISSIONERS proceedings shall not be effectual until the court shall
The commissioners to be appointed must be have accepted their report and rendered judgment in
competent and disinterested. accordance with their recommendations.

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Such report shall be filed within 60 days from the date If real property, upon payment of just compensation;
the commissioners were notified of their and registration of property in the proper registry of
appointment, which time may be extended in the deeds. (Sec. 13, Rule 67)
discretion of the court.
Upon the filing of such report, the clerk of the court Q: What if the court determines that the plaintiff has
shall serve copies thereof on all interested parties, no right to expropriate? Page | 283
with notice that they are allowed 10 days within A: Judgment shall be rendered ordering the Regional
which to file objections to the findings of the report, Trial Court to forthwith enforce the restoration to the
if they so desire. (Sec. 7, Rule 67) defendant of the possession of the property, and to
determine the damages which the defendant
Q: Who shall pay the fees of the three sustained and may recover by reason of the
commissioners? possession taken by the plaintiff.
A: The fees of the commissioners shall be taxed as a
part of the costs of the proceedings. (Sec. 12, Rule 67) Q: What is the effect if the defendant refuses to
accept the payment of just compensation?
UNCERTAIN OWNERSHIP A: If the defendant and his counsel absent themselves
If the ownership of the property taken is uncertain, or from the court, or decline to receive the amount
there are conflicting claims to any part thereof, the tendered, the same shall be ordered to be deposited
court may order any sum or sums awarded as in court and such deposit shall have the same effect
compensation for the property to be paid to the court as actual payment thereof to the defendant or the
for the benefit of the person adjudged in the same person ultimately adjudged entitled thereto. (Sec. 10,
proceeding to be entitled thereto. But the judgment Rule 67)
shall require the payment of the sum or sums
awarded to either the defendant or the court before Q: What if the plaintiff refuses to pay the just
the plaintiff can enter upon the property, or retain it compensation?
for the public use or purpose if entry has already been A: Non-payment of just compensation does not
made. (Sec. 9, Rule 67) entitle the private landowner to recover possession of
the expropriated lots. However, in cases where the
RIGHTS OF PLAINTIFF AFTER JUDGMENT AND government failed to pay just compensation within 5
PAYMENT years from the finality of judgment in the
After payment of just compensation, as determined expropriation proceedings, the owners concerned
in the judgment, the plaintiff shall have the right to: shall have the right to recover possession of their
property. (Yujuico vs. Atienza, 2005)
a. Enter upon the property expropriated and to
appropriate the same for the public use or COSTS
purpose defined in the judgment; or All costs, except those of rival claimants litigating their
b. To retain possession already previously claims, shall be paid by the plaintiff, unless an appeal
made in accordance with Sec. 2 (Sec. 10, Rule
is taken by the owner of the property and the
67)
judgment is affirmed, in which event the costs of the
The right of the plaintiff to enter upon the property of appeal shall be paid by the owner. (Sec. 12, Rule 67)
the defendant and appropriate the same for public
use or purpose shall not be delayed by an appeal from GUARDIANS
the judgment. (Sec. 11, Rule 67) The guardian or guardian ad litem of a minor or of a
person judicially declared to be incompetent may,
WHEN TITLE TO PROPERTY VESTS? with the approval of the court first had, do and
If personal property, upon payment of just perform on behalf of his ward any act, matter, or
compensation (Sec. 10, Rule 67) thing respecting the expropriation for public use or
purpose of property belonging to such minor or
person judicially declared to be incompetent, which

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 such minor or person judicially declared to be classification), despite evidence clearly showing
incompetent could do in such proceedings if he were erroneous classification, it is only then that it can go
of age or competent. (Sec. 14, Rule 67) to the court to ask for intervention.

City of Ilolilo v Besana

EFFECT OF ENTRY OF JUDGMENT
Page | 284 The judgment entered in expropriation proceedings Just compensation is to be ascertained as of the time
shall state definitely, by an adequate description, the of the taking, which usually coincides with the
particular property or interest therein expropriated, commencement of the expropriation proceedings.
and the nature of the public use or purpose for which Where the institution of the action precedes entry
it is expropriated. When real estate is expropriated, a into the property, the just compensation is to be
certified copy of such judgment shall be recorded in ascertained as of the time of the filing of the
the registry of deeds of the place in which the complaint. When the taking of the property sought to
property is situated, and its effect shall be to vest in be expropriated coincides with the commencement
the plaintiff the title to the real estate so described of the expropriation proceedings or takes place
for such public use or purpose. (Sec. 13, Rule 67) subsequent to the filing of the complaint for eminent
domain, the just compensation should be determined
CASE DOCTRINES as of the date of the filing of the complaint.

City of Manila v Arellano Law Colleges Apo Fruits Corporation v Land Bank of the Philippines

Apart from the requirement that compensation for

The Court is inclined to believe that Act No. 267
expropriated land must be fair and reasonable,
empowers cities to expropriate as well as to purchase
compensation, to be "just," must also be made
lands for homesites. The word "expropriating," taken
without delay. Without prompt payment,
singly or with the text, is susceptible of only one
compensation cannot be considered "just" if the
meaning. But this power to expropriate is necessarily
property is immediately taken as the property owner
subject to the limitations and conditions noted in the
suffers the immediate deprivation of both his land
decisions above cited. The National Government may
and its fruits or income.
not confer upon its instrumentalities authority which
it itself may not exercise. A stream cannot run higher Republic v Heirs of Borbon
than its source.
The expropriator who has taken possession of the
Republic v Phil-Ville Dev’t and Housing Corp. property subject of expropriation is obliged to pay
reasonable compensation to the landowner for the
A final order sustaining the right to expropriate the period of such possession although the proceedings
property may be appealed by any party aggrieved had been discontinued on the ground that the public
thereby. Such appeal, however, shall not prevent the purpose for the expropriation had meanwhile ceased.
court from determining the just compensation to be
paid. NPC v Heirs of Rabie

Republic v Far East Enterprises, Inc. The funds cannot be garnished and its properties,
being government properties, cannot be levied via a
By reason of the special knowledge and expertise of writ of execution pursuant to a final judgment, then
administrative agencies over matters falling under the trial court likewise cannot grant discretionary
their jurisdiction, they are in a better position to pass execution pending appeal, as it would run afoul of the
judgment thereon; thus their findings of fact in that established jurisprudence that government
regard are generally accorded great respect, if not properties are exempt from execution.
finality, by the courts. If after going to the local
government unit or government agencies that made
the classification of the lands and the implementing
Land Bank of the Philippines v Heirs of Tañada
agency fails to obtain the redress they seek (proper

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 Rules of Court. The remedy is to file a motion to
implead the indispensable party. However, if despite
It is settled in jurisprudence that, in order to
the order by the court to amend the complaint, the
determine just compensation, the trial a court acting
plaintiff failed to do as such, the action will be
as a Special Agrarian Court must take into dismissed pursuant to Rule 17, Section 3 for failure to
consideration the factors prescribed by Section 17 of
comply with an order of the court.
Republic Act No. 6657 and is obliged to apply the Page | 285
formula crafted by the DAR. If the co-owner is not impleaded throughout the
action and the court has rendered a decision over it,
RULE 69: PARTITION the judgment is void.

RULE 18, SECTION 1: COMPLAINT IN ACTION FOR

PARTITION OF REAL ESTATE
WHEN PARTITION CAN BE MADE
A person having the right to compel the partition of
real estate may do so as provided in this Rule, setting Any of the co-owner of the undivided property may
forth in his complaint the nature and extent of his title demand partition. It can be made anytime and the
and an adequate description of the real estate of right to demand partition is imprescriptible.
which partition is demanded and joining as
defendants all other persons interested in the Exceptions:
property.
1) Acquisitive Prescription - If a co-owner
PARTITION; DEFINITION asserts adverse title to the property in which
case the period of prescription runs from
Partition is the separation, division, and assignment such time of assertion of the adverse title.
of a thing held in common among those to whom it 2) Family home – When the property is not
may belong. subject to a physical division and to do so
would render the thin unserviceable for the
KINDS OF PARTITION use it is intended

Partition may either be: NATURE OF PARTITION

1) Judicial - Rule 69 Partition and accounting under Rule 69 is in the

2) Extrajudicial - Rule 69, Section 12 nature of an action quasi in rem. Such an action is
essentially for the purpose of affecting the
CONTENTS OF A COMPLAINT FOR PARTITION defendant’s interest in a specific property and not to
render judgment against him.
1) Nature and Extent of his Title
2) Join as defendants all other persons STAGES OF AN ACTION FOR PARTITION
interested in the property;
3) Adequate Description of the Real Estate of 1. FIRST STAGE - The court determines whether co-
which Partition is Demanded ownership exists and if partition is proper. Partition
presupposes the existence of a co-ownership over
PARTIES TO THE COMPLAINT; NON-INCLUSION OF A
the property. Before the court can order the partition
CO-OWNER
of a property, it must first inquire into the existence
of co-ownership.
All co-owners are indispensable parties.
2. SECOND STAGE - When the parties fail to agree
The non-inclusion of a co-owner before judgment has
upon the partition, the court will appoint not more
been rendered is not a ground for the dismissal of the
action, as provided for in Rule 3, Section 11 of the

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 than three commissioners to assist the court in The parties may make the partition among
making the partition themselves, by proper instruments of conveyance.
Provided that: (CAR)
Just like in Expropriation or Eminent Domain, this is
another instance wherein commissioners are 1) The court Confirmed the partition;
appointed. All parties Agreed thereto; and
Page | 286
Such partition, together with the order of the court
MULTIPLE APPEALS confirming the same, shall be Recorded in the
Registry of Deeds where the property is situated
The judgment declaring the existence of a co-
ownership may be appealed. This is one of the Mode of Appeal: Record on Appeal. The rationale is
instances in which the Rules allow Multiple Appeals. to enable the rest of the case to proceed in the event
As such, the record on appeal is required to be that a separate and distinct issue is resolved by the
submitted. The period to appeal is 30 days. court and held to be final.

JURISDICTION A judgment directing an accounting is appealable

regardless of whether the accounting is the principal
Either the MTC or RTC has jurisdiction over actions relief sought or a mere incident and becomes final
involving partition depending on the and executory within the reglementary period.

RULE 69, SECTION 3: COMMISSIONERS TO MAKE

PARTITION WHEN PARTIES FAIL TO AGREE
RULE 69, SECTION 2: ORDER FOR PARTITION AND If the parties are unable to agree upon the partition,
PARTITION BY AGREEMENT THEREUNDER the court shall appoint not more than three (3)
If after the trial the court finds that the plaintiff has competent and disinterested persons as
the right thereto, it shall order the partition of the real commissioners to make the partition, commanding
estate among all the parties in interest. Thereupon them to set off to the plaintiff and to each party in
the parties may, if they are able to agree, make the interest such part and proportion of the property as
partition among themselves by proper instruments of the court shall direct.
conveyance, and the court shall confirm the partition
so agreed upon by all the parties, and such partition, WHEN PARTIES FAIL TO AGREE
together with the order of the court confirming the
Rule 69, Section 3 happens when after the court has
same, shall be recorded in the registry of deeds of the
ordered the partition of the properties, the parties
place in which the property is situated.
failed to agree upon the partition. In such case, the
A final order decreeing partition and accounting may court shall appoint not more than three competent
be appealed by any party aggrieved thereby. and disinterested persons as commissioners to make
the partition.
WHEN PARTIES AGREE ON THE PARTITION
SECTION 2 AND SECTION 3 DISTINGUISHED
Rule 69, Section 2 happens when after the court has
ordered the partition of the properties among all the Section 2 of Rule 69 occurs when the parties agreed
parties, the parties agreed to make the partition to make the partition among themselves.
among themselves in a proper instrument of
conveyance (Deed of Partition) On the other hand, Section 3 takes place when the
parties failed to agree to make the partition and in
AFTER THE ORDER OF PARTITION such case, the Court shall appoint not more than
three commissioners to assist the Court and the
parties in making the partition.

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 RULE 69, SECTION 4: OATH AND DUTIES OF asks that the property be sold instead of being so
COMMISSIONERS assigned, in which case the court shall order the
commissioners to sell the real estate at public sale
Before making such partition; the commissioners
under such conditions and within such time as the
shall take and subscribe an oath that they will court may determine.
faithfully perform their duties as commissioners,
which oath shall be filed in court with the other Page | 287
ASSIGNMENT OR SALE OF REAL PROPERTY
proceedings in the case. In making the partition, the
commissioners shall view and examine the real This occurs when partition cannot be effected
estate, after due notice to the parties to attend at without causing prejudice to the interests of the
such view and examination, and shall hear the parties parties. In such case, the commissioners will assign
as to their preference in the portion of the property the property to one of the parties provided that he
to be set apart to them and the comparative value pays an amount which the commissioners deemed
thereof, and shall set apart the same to the parties in equitable and the other interested parties do not ask
lots or parcels as will be most advantageous and the court that the property be sold instead.
equitable, having due regard to the improvements,
situation and quality of the different parts thereof. However, if one of the parties asked for the property
to be sold instead. The commissioners shall order
OATH OF COMMISSIONERS the property to be sold at a public sale.

Before the commissioners make the partition, they REQUISITES OF ASSIGNMENT: (PAPA)
must first take and subscribe an oath promising that
they shall faithfully perform their duties as 1) Assignment is made to one on the Parties not to
commissioners. Such oath shall be filed in court. third persons;
2) Amount to be paid is based on the amounts
DUTIES OF COMMISSIONERS which the commissioners deem equitable;
3) Payment to the other parties; and
1. View and Examine the real estate after due 4) Other interested parties do not Ask the court
notice to the parties to attend such view and that the property be sold instead.
examination
The public sale of the property is mandatory if one of
2. Hear the parties as to their preference in the the parties interested asks that the property be sold
portion of the property to be set apart to them instead of being assigned to one of the parties.
and the comparative value thereof
RULE 69, SECTION 6: REPORT OF COMMISSIONERS;
3. Set apart the same to the parties in lots or PROCEEDINGS NOT BINDING UNTIL CONFIRMED
parcels as will be most advantageous and
equitable, having due regard tot the The commissioners shall make a full and accurate
improvements, situation, and quality of report to the court of all their proceedings as to the
different parts thereof. partition, or the assignment of real estate to one of
the parties, or the sale of the same. Upon the filing of
RULE 69, SECTION 5: ASSIGNMENT OR SALE OF
such report, the clerk of court shall serve copies
REAL ESTATE BY COMMISSIONERS
thereof on all the interested parties with notice that
they are allowed ten (10) days within which to file
When it is made to appear to the commissioners that
objections to the findings of the report, if they so
the real state, or a portion thereof, cannot be divided
desire. No proceeding had before or conducted by the
without prejudice to the interests of the parties, the
commissioners and rendered judgment thereon.
court may order it assigned to one of the parties
willing to take the same, provided he pays to the
REPORT OF COMMISSIONERS
other parties such amount as the commissioners
deem equitable, unless one of the interested parties

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 The report of the commissioners must be approved 4. Partially accept or partially reject the report.
by the court and rendered judgment thereon before
it becomes binding upon all the parties concerned. RULE 69, SECTION 8: ACCOUNTING FOR RENT AND
PROFITS IN ACTION FOR PARTITION
In other words, the report of the commissioners
cannot be used as a basis by the parties to In an action for partition in accordance with this
Page | 288 Rule, a party shall recover from another his just
immediately effect the partition, to take over the
property after the assignment, or to sell it through a share of rents and profits received by such other
public sale. party from the real estate in question, and the
judgment shall include an allowance for such rents
10 DAY PERIOD and profits.

The parties are given 10 days within which to file RECOVERY OF RENTS AND PROFITS
their objections and comments to the findings of the
report. A party shall recover from another his just share of
rents and profits received by such other party from
RULE 69, SECTION 7: ACTION OF THE COURT UPON the real estate in question.
COMMISSIONERS REPORT
RULE 69, SECTION 9: POWER OF GUARDIAN IN
Upon the expiration of the period of ten (10) days SUCH PROCEEDINGS
referred to in the preceding section or even before
the expiration of such period but after the interested The guardian or guardian ad litem of a minor or
parties have filed their objections to the report or person judicially declared to be incompetent may,
their statement of agreement therewith the court with the approval of the court first had, do and
may, upon hearing, accept the report and render perform on behalf of his ward any act, matter, or
judgment in accordance therewith, or, for cause thing respecting the partition of real estate, which the
shown recommit the same to the commissioners for minor or person judicially declared to be incompetent
further report of facts; or set aside the report and could do in partition proceedings if he were of age or
appoint new commissioners; or accept the report in competent.
part and reject it in part; and may make such order
and render such judgment as shall effectuate a fair POWER OF GUARDIAN
and just partition of the real estate, or of its value, if
Before a guardian could act in behalf of his ward, the
assigned or sold as above provided, between the
guardian must first be approved by the court. After
several owners thereof
such approval, his or her actions shall be deemed to
ACTION OF THE COURT be the acts of his ward with regard to the partition of
the property.
After the lapse of the 10 day period or even before
RULE 69, SECTION 10: COSTS AND EXPENSES TO BE
the expiration of the period but after the interested
TAXED AND COLLECTED
parties have filed their objections to the report ot
their statement of agreement, the Court may:
The court shall equitably tax and apportion between
or among the parties the costs and expenses which
1. Accept the report and render judgment in
accrue in the action, including the compensation of
accordance therewith;
the commissioners, having regard to the interests of
the parties, and execution may issue therefor as in
2. Recommit the same to commissioners for further
other cases.
report of facts

COSTS AND EXPENSES

3. Set aside the report and appoint new
commissioners; or

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The costs and expenses that accrued in the action, IF ACTUAL PARTITION IF MADE
including the compensation of the commissioners,
shall be equitably charged among the parties. CONTENTS OF THE JUDGMENT:

RULE 69, SECTION 11: THE JUDGMENT AND ITS The judgment shall state definitely, by metes and
EFFECT; COPY TO BE RECORDED IN REGISTRY OF bounds and adequate description, the particular
DEEDS
Page | 289
portion of the estate assigned to each party.

If actual partition of property is made, the judgment EFFECT OF THE JUDGMENT:

shall state definitely, by metes and bounds and
adequate description, the particular portion of the It vests in each party to the action the portion of the
real estate assigned to each party, and the effect of estate assigned to him.
the judgment shall be to vest in each party to the
action in severalty the portion of the real estate If the property is assigned to one of the parties
assigned to him. If the whole property is assigned to upon payment to the other parties the sum ordered
one of the parties upon his paying to the others the by the Court
sum or sums ordered by the court, the judgment shall
state the fact of such payment and of the assignment CONTENTS OF THE JUDGMENT:
of the real estate to the party making the payment,
and the effect of the judgment shall be to vest in the The judgment shall state the fact of such payment
party making the payment the whole of the real and the assignment of the real estate tot the party
estate free from any interest on the part of the other making the payment
parties to the action. If the property is sold and the
EFFECT OF THE JUDGMENT
sale confirmed by the court, the judgment shall state
the name of the purchaser or purchasers and a
It vests in the party making the payment the whole
definite description of the parcels of real estate sold
of the real estate free from any interests or claims by
to each purchaser, and the effect of the judgment
the other parties with regard to their portion
shall be to vest the real estate in the purchaser or
purchasers making the payment or payments, free
If the property was sold and the sale was confirmed
from the claims of any of the parties to the action. A
by the court
certified copy of the judgment shall in either case be
recorded in the registry of deeds of the place in which CONTENTS OF THE JUDGMENT:
the real estate is situated, and the expenses of such
recording shall be taxed as part of the costs of the The judgment shall state the name of the purchaser
action. or purchasers and a definite description of the
parcels of real estate sold to each purchases.
JUDGMENT IN PARTITION
COPY OF THE JUDGMENT TO BE RECORDED IN THE
There are three possible outcomes of the report REGISTRY OF DEEDS
made by the commissioners that the court would
approve, It may: A certified copy of the judgment shall in either case
be recorded in the registry of deeds of the place in
1. Recommend making an actual partition which the real estate is situation, and the expenses of
such recording shall be taxed as part of the costs of
2. Assigned to one of the parties the property subject
the action.
to the partition upon payment to the other parties the
sum ordered by the Court. RULE 69, SECTION 12: NEITHER PARAMOUNT
RIGHTS NOR AMICABLE PARTITION AFFECTED BY
3. Sell the property in a public sale THIS RULE

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 Nothing in this Rule contained shall be construed so property involved. In case the defendants assert in
as to prejudice, defeat, or destroy the right or title of their Answer, exclusive title in themselves adversely
any person claiming the real estate involved by title to the plaintiff, the court should not dismiss the
under any other person, or by title paramount to the plaintiff’s action for partition but resolve the question
title of the parties among whom the partition may of whether the plaintiff is a co-owner or not. If the
Page | 290 have been made, nor so as to restrict or prevent court finds that the plaintiff is not the co-owner, the
persons holding real estate jointly or in common from Court should dismiss the action for partition.
making an amicable partition thereof by agreement However, if upon the other hand, the court after trial
and suitable instruments of conveyance without should find the existence of co-ownership among the
recourse to an action. parties, the court may and should order the partition
of the property in the same action. Judgment for one
EXTRAJUDICIAL PARTITION or the other party being on the merits may be
appealed and it is unnecessary to require the plaintiff
Partition may either be done judicially or to file another action, separate and independent from
extrajudicially. Section 12 of Rule 69 recognizes the the action for partition originally instituted.
right of the co-owners to partition the property
themselves even without court intervention. FABRICA VS COURT OF APPEALS

RULE 69, SECTION 13: PARTITION OF PERSONAL Contrary to the ruling of the Court of Appeals, the
PROPERTY decision of the trial court in favor of the plaintiffs
rejecting the defendants’ claim of ow exclusive
The provisions of this Rule shall apply to partitions of ownership of the properties by oral partition is a final
estates composed of personal property, or of both judgment on the merits from which the party
real and personal property, in so far as the same may adversely affected can make an appeal.
be applicable.
AUSTRIA VS JALANDONI
APPLICABILITY OF RULE 69 IN PARTITION OF
PERSONAL PROPERTY There are two stages in every action for partition. The
first phase is the determination of whether a co-
Section 13 of Rule 69 states that the provisions of ownership in fact exists and a partition is proper. The
Rule 69 shall also apply to partition of estates second phase commences when it appears that the
composed of personal property, or of both real and parties are unable to agree upon the partition
personal property, directed by the court. In that event, partition shall be
done for the parties by the court with the assistance
CASE DOCTRINES
of not more than three commissioners.
ROQUE VS INTERMEDIATE APPELLATE COURT
RULE 68: FORECLOSURE OF REAL ESTATE
MORTGAGE
An action for partition present two simultaneous
issues. First, whether the plaintiff is indeed a co-
SECTION 1
owner of the property sought to be partitioned.
Second, assuming that the plaintiff successfully COMPLAINT IN ACTION FOR FORECLOSURE
hurdles the first issue, there is the secondary issue of
how the property is to be divided between the In an action for the foreclosure of a mortgage or other
plaintiff and defendant, in other words, what portion encumbrance upon real estate, the complaint shall
should go to each co-owners. set forth the date and due execution of the mortgage;
its assignments, if any; the names and residences of
Should the trial court find that the defendants do not the mortgagor and the mortgagee; a description of
dispute the status of the plaintiff as co-owner, the the mortgaged property; a statement of the date of
court can proceed to the actual partitioning of the the note or other documentary evidence of the

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obligation secured by the mortgage, the amount encumbrancer, the first mortgagee or the senior one
claimed to be unpaid thereon; and the names and need not be joined. Kung sino ang unang tumatak,
residences of all persons having or claiming an siya yung may right. A property is taken subject to the
interest in the property subordinate in right to that of first lien. So what is now required by law is to implead
the holder of the mortgage, all of whom shall be made the junior mortgagee.
defendants in the action. Page | 291
Q: What happens if there is a failure to implead the
THERE SHOULD BE A FINDING THAT NO PAYMENT junior encumbrancers?
WAS ACTUALLY MADE
A: There will remain an unforeclosed right of
EXAMPLE: Shara issued a promissory note in favor of redemption which can be enforced against the first
Nathan. Shara filed a case against Nathanfor being in mortgagee or the purchaser at the foreclosure sale as
default. If Shara elects to sue for collection only, he he is a redemptioner defined under Rule 39, Section
cannot institute a judicial foreclosure of mortgage 27 which incidentally has a suppletory effect to Rule
because if he does, he will be guilty of litis pendentia 68.
for having the same subject matter (promissory note)
in both cases. RIGHT OF REDEMPTION VS. EQUITY OF
REDEMPTION
The cause of action in a foreclosure suit is generally
the non- payment of mortgage loan. Before the court Q: Nathan borrowed money from Kyra and he
can order the foreclosure, there should be a finding executed a real estate mortgage in favor of her. He
that no payment was actually made. This also applies only borrowed 500K while his property’s worth is
in a collection suit and is the reason why a party elects 10M. With the permission of Nathan, Kyra then
to sue. borrowed 2M from Darren. Subsequently, Kyra
borrowed money from Danica. However, Kyra failed
EXAMPLE: Danica filed a complaint for judicial to pay Darren. Darren instituted a judicial foreclosure
foreclosure of mortgage. Since Danica chose to mortgage complaint against Kyra. Who will he
foreclose the mortgage, she cannot further institute a implead?
separate action for election suit.
A: Darren will implead Danica. No need to implead
NOTE: Foreclosure may be done judicially or Kyra because she is a senior mortgagee whereas
extrajudicially. Extrajudicial foreclosure is proper only Danica is considered a junior mortgagee.
when it is provided in the contract and such
foreclosure will be governed by Act 3135. Q: What if Darren failed to implead Danica?

JUDICIAL FORECLOSURE A: Danica is not an indispensable party. If Darren is

successful in his complaint of foreclosing the property
Q: Who must be joined in a foreclosure suit? and if Darren subsequently bought such property,
Danica becomes a redemptioner under Rule 39. She
A: 1. The person obligated to pay the mortgage debt can redeem the property within a period of 1 year.

2. The person who owns, occupies, or controls the However, if Darren filed a case and he was able to
mortgage premises or any part thereof. implead Danica and subsequently won in such case,
Danica has an equity of redemption. She does not
3. The transferee or grantee of the property have a right of redemption under Rule 39.

4. The second mortgagee or junior encumbrancer, If the junior encumbrancer is not impleaded, there
or any person claiming a right or interest in the remains an unforeclosed right of redemption which
property subordinate to the mortgage sought to be he can enforce against the first mortgagee or the
foreclosed- but if the action is brought by the junior purchaser at the foreclosure sale as he will be

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 considered a redemptioner pursuant to Rule 39 of These 3 stages culminate to a final judgment. Each
Section 27 which has a suppletory effect to Rule 68. judgment or final order can be subject to an appeal
and the period of appeal is 30 days. A record on
Q: If the junior encumbrancer was impleaded, what appeal shall be submitted.
will happen?
Page | 292
A: If the junior encumbrancer impleaded as a
defendant, and the foreclosure suit prospers, he is
entitled to be paid off from the residue after the first
mortgagee has been satisfied.

Therefore, a first mortgagee is not a necessary party

in the foreclosure sale of a second mortgage because
he may be joined or intervene when the mortgage
debt is already due. JUDGMENT OF FORECLOSURE

SECTION 2 Section 2 basically tells the other party to pay an

amount due to the plaintiff upon mortgage, debt, or
JUDGMENT ON FORECLOSURE FOR PAYMENT OR
obligation.
SALE

If upon the trial in such action the court shall find the The court will order the judgment debt be paid to the
facts set forth in the complaint to be true, it shall judgment obligee within a period of not less than 90
ascertain the amount due to the plaintiff upon the days and not nore than 120 days from entry of
mortgage debt or obligation, including interest and judgment. In case of default in the payment of that
other charges as approved by the court, and costs, judgment debt, then a motion to foreclose the
and shall render judgment for the sum so found due property may be filed and an order will be issued by
and order that the same be paid to the court or to the the court. The property now will be sold to a public
judgment obligee within a period of not less than auction to satisfy the judgment debt.
ninety (90) days nor more than one hundred twenty
NOTE: Judgment debt may include the amount to be
(120) days from the entry of judgment, and that in
paid under a promissory note and the judgment for
default of such payment the property shall be sold at
the sum so found due.
public auction to satisfy the judgment.
Q: What happens if the judgment debt was not paid?
PROCEDURE
A: The judgment obligee can file a motion to
In view of the procedural stages and the adjudicative
foreclose the property. If granted by the court, the
actions required to be taken by trial, this special civil
property will be foreclosed.
action of judicial foreclosure of mortgage has several
stages. Each stage culminating in a final order.

1.) Section 2- The first stage is Judgment of

Foreclosure.

2.) Section 3- Order confirming the foreclosure sale

with respect to the validity of the sale.

3.) Section 6- Deficiency judgment as to the

correctness of the award.
KINDS OF FORECLOSURE

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1. Extrajudicial judgment debtor will have a period of 1 year to
redeem his property.
2. Judicial under Rule 39
EXECUTION UNDER RULE 68
3. Foreclosure of mortgage under Rule 68
Under Rule 68, before foreclosure, there should be a
EXTRAJUDICIAL FORECLOSURE Page | 293
judgment first that there is indeed a debt.

In extrajudicial foreclosure, the mortgagor has the The judgment debtor shall pay that debt within a
right to redeem the property within 1 year from the period of not less than 90 days but not more than 120
registration of the deed of sale in the registry of days. If the debt is paid, then the judgment creditor
deeds. will no longer foreclose the property.

Technically, a party does not go to court and file a If after such period (period is called equity of
case even if the title is “In Re: Petition for Extrajudicial redemption), and the judgment debtor did not pay
Foreclosure of the Property Pursuant to Act 3135.” the debt, the judgment creditor will now file a motion
asking the court to allow the foreclosure of the
Extrajudicial foreclosure is more of an administrative property.
case. The party foreclosing shall initially go to the
sheriff’s office. Once foreclosed, the sheriff will issue In this case, there is no redemption after foreclosure.
a certificate of sale and that certificate of sale will be The judgment debtor cannot redeem his property
recorded in the title. The owner of the property has a anymore.
period of 1 year to redeem the property pursuant to
Act 3135. The following day after foreclosure, the judgment
creditor will immediately file a motion to confirm the
EXECUTION UNDER RULE 39 sale- Section 3.

EXAMPLE: Peggy won a case against Waffle for 5M. GR: There is no right of redemption in a judicial
She then filed a motion for execution. The court foreclosure under Rule 68. The judgment debtor has
granted it and it issued the writ of execution. Since it an equity of redemption but not a right of
is a money judgment, the sheriff will now ask Waffle redemption.
to pay. If he does not have money, the sheriff will
execute on the personal properties first, and if it still XPN: Cases of mortgages with banking institutions.
insufficient to satisfy the judgment, he will start The General Banking Act provides that the judgment
levying on the real properties of Waffle and once debtor has a period of 1 year from the registration of
there is a levy, he will now schedule the auction sale. the certificate of sale within which to redeem the
property.
NOTE: There should be notices. Depending on the
value of the property, publication may be necessary. EQUITY OF REDEMPTION

In the auction sale under Rule 39, the sheriff will issue The period which the defendant can exercise at
a certificate of sale. The certificate of sale will be anytime after service of the judgment of foreclosure.
annotated at the back of the title. Counting from the It is the judgment referred under Section 2 and within
date of the annotation, the mortgagor, the judgment that period provided in Section 2 which is not less
debtor- if he is the mortgagor, or his successor in than 90 days but not more than 120 days.
interest or a redemptioner has a period of 1 year to
redeem the property. If there are several Based on jurisprudence, as long as the property sold
redemptioners and the first redemptioner redeems, has not been confirmed pursuant to Section 6, the
the second redemptioner only has a period of 60 days judgment debtor may pay the judgment debt then the
within which to redeem the property. In all cases, the

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 property will not be foreclosed or if so foreclosed will **red dot- title of the property will now be
not1 be confirmed. transferred to the purchaser

SECTION 3 Before confirmation, a motion to confirm sale must

be filed. From the judgment of foreclosure and until
SALE OF MORTGAGED PROPERTY; EFFECT
before confirmation, the judgment debtor may simply
Page | 294
When the defendant, after being directed to do so as pay his debt. This is the equity of redemption.
provided in the next preceding section, fails to pay the
amount of the judgment within the period specified Once the sale has been confirmed, the title of the
therein, the court, upon motion, shall order the property will be transferred to the purchaser.
property to be sold in the manner and under the Generally, after confirmation, there is no more right
provisions of Rule 39 and other regulations governing of redemption except if the mortgagees are banking
sales of real estate under execution. Such sale shall institutions.
not affect the rights of persons holding prior
encumbrances upon the property or a part thereof, NOTE: Public auction should always be registered at
and when confirmed by an order of the court, also the back of the title.
upon motion, it shall operate to divest the rights in
the property of all the parties to the action and to vest The equity of redemption is mandatory in character.
their rights in the purchaser, subject to such rights of It is a substantive right and it cannot be omitted in
redemption as may be allowed by law. judicial foreclosures. The period is suspended by an
appeal and is not revived until said judgment is
Upon the finality of the order of confirmation or upon affirmed by the appellate court and the case is
the expiration of the period of redemption when returned to the trial court.
allowed by law, the purchaser at the auction sale or
last redemptioner, if any, shall be entitled to the
possession of the property unless a third party is
actually holding the same adversely to the judgment
obligor. The said purchaser or last redemptioner may
secure a writ of possession, upon motion, from the
court which ordered the foreclosure.

CONFIRMATION VESTS TITLE ON THE PURCHASER

In equity of redemption, once the confirmation of sale All of these 3 judgments (Sections 2, 3, and 6) can be
has been made by the court, title now vests on the subject to appeal. The period to appeal is 30 days and
purchaser. it is required to file a record on appeal approved by
the Court. The record on appeal is important since the
records will not be elevated due to the proceedings
taking place.

EQUITY OF REDEMPTION VS. RIGHT OF

REDEMPTION

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 by law, the purchaser in the auction sale or last
redemptioner if any, shall be entitled to the
possession of the property unless a third party is
actually holding the same adversely to the judgment
debtor.
Page | 295
**If the auction sale is in accordance with Rule 39, the
auction sale will be simply marked at the back of the
certificate of sale. The purchaser has to wait a period
of 1 year since the owner of that property, his
successors in interest, and his junior encumbrancers
have the right to redeem the property. It is a right of
redemption.
If the judgment debtor, fails to exercise his equity of
30- DAY PERIOD BEFORE ORDER BECOMES FINAL
redemption. The judgment creditor, will now file a
AND EXECUTORY
motion in court- asking the court that the property be
sold by way of public auction in the manner provided Q: There is a foreclosure sale dated June 1. Shara filed
under Rule 39 and other regulations governing sales a motion to confirm on June 5. It was confirmed by
of real estate under execution.
the court on June 10. Is Shara the owner of the
property as of June 10?
NOTE: Publication requirements should be observed.
The applicable publication requirement shall state the
A: NO. Shara should wait for 30 days because the
time, date, and place where auction will be held. The order of confirmation is a final judgment which will
property to be sold is only limited to that needed to become final and executory only after 30 days.
pay off the judgment debt. Such sale shall not affect
the rights of persons holding prior encumbrances or
senior encumbrances upon the property or apart
thereof.

Once the property has been sold, the purchaser shall

immediately file a motion to confirm the order to
divest the rights in the property of all parties to the
action and to vest the rights in the purchaser subject
to such right of redemption as may be allowed by
law.

EXAMPLE: Dwight’s property was being sold in a

The circles are all final orders. They will become final
public auction. Nathan bought the property. Nathan
and executory after the lapse of 30 days because each
shall immediately file a motion to confirm sale in
order can be appealed within a 30- day period.
order to prevent the exercise of equity of redemption.
Furthermore, once the sale is confirmed, all the rights
After the 30- day period, the purchaser can now go
of Dwight over that property will be deemed divested
back to the court and ask the court to issue a writ of
and it will now vests upon Nathan.
possession. If there is no person occupying the
property adverse to the judgment debtor- mortgagor,
NOTE: If it is a judicial foreclosure proceeding, there
the writ of possession will be issued as a matter of
is still a right of redemption even after confirmation if
right.
the mortgagee is a banking institution. Therefore,
upon finality of the order of confirmation, or upon the
WRIT OF POSSESSION
expiration of the period of redemption when allowed

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 Upon the finality of the order of confirmation or upon An order confirming the foreclosure sale made by the
the expiration of the period of redemption allowed by sheriff is the mark of the second stage, and therefore
law, the purchaser at the auction sale or the last is appealable.
redemptioner, if any, shall be entitled to the
possession of the property unless a third party is CONSEQUENCES OF AN ORDER CONFIRMING THE
SALE
Page | 296 actually holding the same adversely to the judgment
creditor- which means the writ of possession will not
issue as a matter of course. 1.) The equity of redemption is cut off.

If somebody is occupying the property adverse to the 2.) The title is now vested upon the purchaser and it
interest of the judgment obligor, the said purchaser retroacts to the date of the actual sale. Whatever
or last redemptioner may secure a writ of possession rights the judgment debtor has as of the time the
upon motion from the court which ordered the property was sold will now be transferred to the
foreclosure. So as a general rule, the purchaser is purchaser.
entitled to the possession of the property upon the
finality of the order confirming the sale. 3.) There will be no further right of redemption except
on judicial foreclosures of mortgages by the banks.
NOTE: File a writ of possession only after 30 days or
when the order has become final and executory. NOTE: The execution process under judicial
foreclosure is not an execution of judgment within
The purchaser in a foreclosure sale is entitled to a writ the purview of Section 6 of Rule 39. This writ of
of possession and that upon an ex parte motion of the possession is merely in lieu of the duty of the court in
purchaser, it is the ministerial duty of the court to the litigation which the court can take even after the
issue the writ of possession- if nobody is occupying lapse of 5 years.
the property adverse to the interest of the judgment
debtor. Therefore, it is very clear that the purchaser
need not file a separate action for possession to SECTION 4
acquire possession of the property after the
redemption period has expired. DISPOSITION OF PROCEEDS OF SALE

The amount realized from the foreclosure sale of the

However, where the parties in possession claim
mortgaged property shall, after deducting the costs of
ownership thereof, and there may be possibility of
the sale, be paid to the person foreclosing the
said claim, the issue of ownership must be ventilated
mortgage, and when there shall be any balance or
in a proper case in the merits.
residue, after paying off the mortgage debt due, the
same shall be paid to junior encumbrances in the
order of their priority, to be ascertained by the court,
MOTION CONFIRMING THE SALE- SECTION 3 or if there be no such encumbrancers or there be a
balance or residue after payment to them, then to the
This is a litigated motion. It is now discretionary on mortgagor or his duly authorized agent, or to the
the court to set it for hearing. Since it is a litigated person entitled to it.
motion, the order confirming the sale therefore
cannot be issued ex parte. The lack of notice vitiates PROCEEDS OF THE SALE
confirmation of sale. So if the court does not issue or
The amount realized for the foreclosure sale of the
set it for hearing and just orders the confirmation
mortgage property shall, after deducting the cause of
thereof, it may be tantamount to grave abuse of
sale, be paid to the creditor.
discretion.
When there is a balance or residue after paying off
the mortgage debt, the same shall be paid to the

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junior encumbrances in the order of their priority to the original contract, which time shall be stated in the
be ascertained by the court. judgment.

If there are no such encumbrances and then there is DEFICIENCY OF JUDGMENT

a balance, then it should be given to the mortgagor or
his duly authorized agent or the person entitled to it.
Page | 297
SECTION 5

HOW SALE TO PROCEED IN CASE THE DEBT IS NOT

ALL DUE

If the debt for which the mortgage or encumbrance

was held is not all due as provided in the judgment, as
soon as a sufficient portion of the property has been
sold to pay the total amount and the costs due, the
sale shall terminate; and afterwards, as often as more
becomes due for principal or interest and other valid
charges, the court may, on motion, order more to be EXAMPLE: Dominic sued Monico for judicial
sold. But if the property cannot be sold in portions foreclosure of mortgage. To prevent foreclosure,
without prejudice to the parties, the whole shall be Monico must pay for a period not less than 90 days
ordered to be sold in the first instance, and the entire but not more than 120 days- subject to extension as
debt and costs shall be paid, if the proceeds of the long as the sale is not yet confirmed. This is the equity
sale be sufficient therefor, there being a rebate of of redemption.
interest where such rebate is proper.
Monico did not pay so another motion to foreclose
IN CASE THE DEBT IS NOT ALL DUE the property pursuant to Section 3 was filed. It was
granted. The properties were sold for 10M but the
As soon as the sufficient portion of the property has debt is worth 25M.
been sold to pay the total amount that is due and the
cost thereon, the sale shall terminate. A motion pursuant to Section 6 shall be filed. At this
point, there is no more right of redemption since
NOTE: The interest of the judgment debtor shall also Monico is not a banking institution.
be protected.
If there is still a deficiency upon the confirmation of
SECTION 6 the sale, Dwight shall file a motion for deficiency of
judgment. An order granting the judgment will be
DEFICIENCY JUDGMENT
issued. A motion for execution shall subsequently be
If upon the sale of any real property as provided in the filed and it shall be executed pursuant to Rule 39.
next preceding section there be a balance due to the
plaintiff after applying the proceeds of the sale, the Q: After issuance of a writ of execution, new
court, upon motion, shall render judgment against properties will be levied and be sold. Can the
the defendant for any such balance for which, by the judgment debtor redeem such properties?
record of the case, he may be personally liable to the
plaintiff, upon which execution may issue A: YES. He has a right of redemption over the property
immediately if the balance is all due at the time of the executed pursuant to the motion for deficiency
rendition of the judgment; otherwise, the plaintiff judgment.
shall be entitled to execution at such time as the
Deficiency judgment shall be rendered upon motion
balance remaining becomes due under the terms of
and it will only happen when the foreclosure did not
reduce sufficient proceeds to satisfy the judgment

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 debt. The deficiency judgment is immediately judgment so if a separate action will be filed, Dwight
executory. There is no need to wait for 30 days. will be guilty of res judicata.

Q: Shara borrowed money from Nathan. However, The deficiency judgment is not appealable, it is
Koji was asking a collateral so Shara went to Dwight immediately executory if the balance is all due. If a
and she asked him if she can use his property as a third person executed merely a mortgage and did not
Page | 298
collateral. Dwight agreed so Shara mortgaged his personally assume the personal liability of the debt,
property. Hence, Dwight is a third- party mortgagor. the third party liability is only up to the extent of the
mortgage. There can be no sufficient judgment
Shara failed to pay the debt so Nathan filed a case for against the third party.
judicial foreclosure of mortgage and he sued both
Shara and Dwight. EXTRAJUDICIAL FORECLOSURE- NOT RES JUDICATA

The equity of redemption was not exercised so the In extrajudicial foreclosures under Act 3135, there is
property was now foreclosed. The debt is 25M but the no deficiency judgment because the extrajudicial
property of Dwight was only 10M- leaving a deficiency foreclosure is not a judicial procedure. However, the
of 15M. mortgagee can recover by action any deficiency in the
mortgage account which was not realized in the
Nathan then filed a motion for deficiency judgment. foreclosure sale. This will not violate the res judicata
It was granted. The court issued a writ of execution. rule because the petition for extrajudicial foreclosure
The property of Dwight was executed upon, levied is not an action in court.
upon, and was about to be sold in public auction.

Q: Was the levy proper or not?

SECTION 7
A: NO. The levy was not proper because Dwight was REGISTRATION
not the one who has a debt. The liability of the third
party mortgagee is limited only up to the extent of his A certified copy of the final order of the court
mortgaged property. Therefore as far as Dwight is confirming the sale shall be registered in the registry
concerned, there will be no deficiency judgment. of deeds. If no right of redemption exists, the
certificate of title in the name of the mortgagor shall
Q: What is Dwight’s remedy? be cancelled, and a new one issued in the name of the
purchaser.
A: Dwight’s remedy is to file a third party affidavit,
together with proof that he is the owner of such Where a right of redemption exists, the certificate of
property and then file a bond in the court under title in the name of the mortgagor shall not be
Section 16 of Rule 39 because he is a third party cancelled, but the certificate of sale and the order
claimant. (Terceria) confirming the sale shall be registered and a brief
memorandum thereof made by the register of deeds
Ask the court to issue a writ of execution against upon the certificate of title. In the event the property
Marina only. Do not institute a separate collection is redeemed, the deed of redemption shall be
case. registered with the registry of deeds, and a brief
memorandum thereof shall be made by the registrar
Now, if the judgment debtor/creditor wants to of deeds on said certificate of title.
continue it then the judgment creditor will have to
post a bond. If the property is not redeemed, the final deed of sale
executed by the sheriff in favor of the purchaser at
NOTE: Deficiency judgment shall be rendered by way the foreclosure sale shall be registered with the
of motion. Do not file a separate action as a remedy. registry of deeds; whereupon the certificate of title in
Remember that there is already a deficiency

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the name of the mortgagor shall be cancelled and a Extrajudicial foreclosure is not an action in court.
new one issued in the name of the purchaser. Extrajudicial foreclosure under CA 3135 are not suits
filed in accordance with Section 3A of Rule 1 of the
SECTION 8 Rules of Court. They are commenced not by a
complaint, but actually an application. It is an
COMPLAINT IN ACTION FOR FORECLOSURE
application filed before the executive judge who Page | 299
The provisions of Sections 31, 32 and 34 of Rule 39 receives the application neither in a capacity in either
shall be applicable to the judicial foreclosure of real a judicial capacity or on behalf of the court.
estate mortgages under this Rule insofar as the
former are not inconsistent with or may serve to When an application for the extrajudicial foreclosure
supplement the provisions of the latter. of property is filed, it will not be governed by the
Rules of Court or Special Civil Actions. It will be
SUPPLETORY EFFECT OF RULE 39 governed by the provisions of Act 3135 and the
proceedings for extrajudicial foreclosure of
Provisions of Rule 39 that may have suppletory mortgages are not adversarial in nature. Actually the
effects: executive judge merely performs an administrative
function to ensure that all the requirements for the
1.) Sections 31 or manner of using the premises extrajudicial foreclosure of a mortgage are satisfied
pending redemption before the clerk of court as ex officio sheriff goes
ahead with the public auction of the mortgage
2.) Section 32 or the rent earnings and income of property.
property pending the redemption
Necessarily, the orders of the executive judge issued
3.) Section 33 pursuant to Act 3135, whether they are to allow or
disallow the extrajudicial foreclosure are not issued in
the exercise of a judicial function but only issued in
the exercise of its administrative function.

NOTE: If you file an application for the extrajudicial

CASE DOCTRINES:
foreclosure of a mortgaged property, you don’t need
a certificate of non- forum shopping because it is not
INGLES V. JUDGE ESTRADA
an action.
There is a clear cut difference between issuances
ALBA V. CA
made in a civil action and orders rendered in a
proceeding for extrajudicial foreclosure of mortgage.
The right of redemption, in relation to a mortgage, is
If it is a civil action, it is a suit filed in court involving
understood in a sense of prerogative to re-acquire a
either the enforcement or protection of a right or
mortgaged property after the registration of the
prevention of redress or wrong. It is commenced by
foreclosure sale. This exists only in cases of
filing an original complaint before the appropriate
extrajudicial foreclosures of mortgage.
court and their proceedings are governed by the
provisions of the Rules of Court on ordinary civil If it is an extrajudicial foreclosure of mortgage, there
actions or special civil actions. is a right of redemption. However, no right of
redemption exists in judicial foreclosure under Rule
Therefore, civil actions are adversarial in nature. It
68 except where the mortgagee is a bank or a banking
pre-supposes the existence of disputes defined by the
institution.
parties submitted for the court to decide. Issuances,
most especially judgments, final orders, or
In extrajudicial foreclosures, it will be foreclosed on
resolutions are therefore issued in the exercise of the
the date provided for in the contract. Act 3135 grants
court’s judicial function.

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 the mortgagor the right of redemption within 1 year the remedy sought. If it is primarily for the recovery
from the sherrif’s certificate of foreclosure sale. On of sum of money, the claim is considered capable of
the other hand, where the foreclosure is effected the pecuniary estimation and whether the jurisdiction
judicially under Rule 68, no equivalent right of is in the municipal trial court would depend on the
redemption exists. The law declares a judicial amount of the claim.
Page | 300 foreclosure sale when confirmed by an order of the
court shall operate to divest all the rights of the The SC ruled that the jurisdiction of a foreclosure is
parties to the action and vest the rights in a purchaser dependent on the assessed value of the property so
subject to the right of redemption as may be provided the SC dismissed the petition for it was not issued
by law such as banking institutions. with grave abuse of discretion.

ROLDAN V. BARRIOS TIGLAO V. BOTONES

A judicial foreclosure was instituted before the RTC. An ex parte motion was filed to confirm the sale. Such
The court dismissed it because of lack of jurisdiction. act is void. Even the order granting the said
According to the trial court, the assessed value of the confirmation sale is void. A hearing is an essential part
property mortgage is less than its jurisdictional of those proceedings because it gives the interested
amount. party an opportunity to lay before the court why the
sale should not be confirmed. Remember that once it
Plaintiff argued that judicial foreclosure is an action is confirmed, it divests the owner of whatever rights
incapable of the pecuniary estimation so it should be he has on the property. It should be a litigated motion
with the RTC. and not an ex parte motion. In fact, prior to the
confirmation sale, the judgment debtor can still pay
The RTC dismissed the foreclosure cases finding that the judgment debt. Even after the lapse of the equity
being a real action, and having an assessed value of of redemption period.
P30,380, it should have been filed with the MTC.
GSIS V. CFI OF ILOILO, BRANCH III
The SC ruled that foreclosure is but a necessary
consequence of non-payment of the mortgage GSIS is not a bank. Therefore, when a complaint for
indebtedness in a real estate mortgage that when the
principal obligation is not paid when due, the judicial foreclosure was filed, and the property was
mortgagee has a right to foreclose the mortgage and foreclosed and bought by GSIS, GSIS can immediately
to have the property ceased and sold with the view of file a motion to confirm because only banking
applying the proceeds to the payment of obligation. institutions are required by law to extend the
Therefore, the foreclosure suit is a real action, so far redemption period even if foreclosure was done
as it is against a property and seeks the judicial judicially.
recognition of a property debt and an order for the
sale of the res. CRUZ V. IAC

As a foreclosure sale is a personal action, it is the Even if equity of redemption is mandatory, it can be
assessed value of property which determines the waived. In this case, it was waived through a
court’s jurisdiction. Considering that the assessed compromise agreement. The parties agreed that the
value of the mortgaged property, the RTC correctly property may immediately be foreclosed without the
found that the action falls within the jurisdiction of other party exercising equity of redemption.
the first level court.
SPOUSES KHO V. CA
In determining whether an action is incapable of
pecuniary estimation, the court adapted the criteria Once the foreclosure sale is confirmed, the writ of
first ascertaining the nature of the principal action or possession should issue as a matter of right. However,
it is not an absolute rule. The exception is when a

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third party alleges an adverse right to the property in o'clock in the morning and not later than two o'clock
which case the purchaser should file an ordinary in the afternoon. The place of the sale may be agreed
action. upon by the parties. In the absence of such
agreement, the sale of the property or personal
ROXAS V. CA property not capable of manual delivery shall be held
in the office of the clerk of court of the Regional Trial Page | 301
The foreclosure proceedings were null and void Court or the Municipal Trial Court which issued the
because of the failure to comply with the notice writ of or which was designated by the appellate
requirement under Section 5 of RA 720, as amended court. In the case of personal property capable of
by RA 5939, which provides that notices of manual delivery, the sale shall be held in the place
foreclosure should be posted in at least three of the where the property is located. (Rule 39, Sec 15)
most conspicuous public places in the municipality.
If there is noncompliance with the rule, you can
Q: What is the notice requirement under the Rules? question the notice requirement. It is not enough that
there is notice, you have to comply with the days
A: when it is supposed to be posted and the publication
requirement if what is sold is real property with an
(a) In case of perishable property, by posting written assessed value exceeding P50,000.
notice of the time and place of the sale in three (3)
public places, preferably in conspicuous areas of the Even slight deviations therefrom are not allowed.
municipal or city hall, post office and public market in
the municipality or city where the sale is to take place, MONZON V. SPOUSES RELOVA
for such time as may be reasonable, considering the
character and condition of the property; Q: How do you dispose of the proceeds of the sale?

(b) In case of other personal property, by posting a A: Under Sec 4 of Rule 68, ―The amount realized
similar notice in the three (3) public places from the foreclosure sale of the mortgaged property
abovementioned for not less than five (5) days; shall, after deducting the costs of the sale, be paid to
the person foreclosing the mortgage, and when there
(c) In case of real property, by posting for twenty (20) shall be any balance or residue, after paying off the
days in the three (3) public places abovementioned a mortgage debt due, the same shall be paid to junior
similar notice particularly describing the property and encumbrancers in the order of their priority, to be
stating where the property is to be sold, and if the ascertained by the court, or if there be no such
assessed value of the property exceeds fifty thousand encumbrancers or there be a balance or residue after
(P50,000.00) pesos, by publishing a copy of the notice payment to them, then to the mortgagor or his duly
once a week for two (2) consecutive weeks in one authorized agent, or to the person entitled to it.
newspaper selected by raffle, whether in English,
Filipino, or any major regional language published, Q: How come senior encumbrancers will not partake
edited and circulated or, in the absence thereof, in the proceeds of the sale?
having general circulation in the province or city;
A: Because his right is always protected. His lien is
(d) In all cases, written notice of the sale shall be given carried over. When the junior encumbrancer or
to the judgment obligor, at least three (3) days before second mortgagee accepted the mortgage, he
the sale, except as provided in paragraph (a) hereof accepts the mortgage subject to the right of the
where notice shall be given the same manner as senior encumbrancer.
personal service of pleadings and other papers as
provided by Section 6 of Rule 13. Q: What are the different kinds of sale?

The notice shall specify the place, date and exact time A: Ordinary execution sale governed by Rule 39,
of the sale which should not be earlier than nine judicial foreclosure sale governed by Rule 68, and

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 extrajudicial foreclosure sale governed by Act 3135 foreclosure under Act 3135, and judicial foreclosure
amended by Act 4118. under Rule 68. In all these instances, the writ of
possession will apply if the ownership had already
Q: Under Act 3135, do junior encumbrancers have been consolidated. It will issue as a matter of course,
the right to receive the balance of the purchase price meaning ministerial if the person who is occupying
if the mortgage has already been paid? the premises is the mortgagor himself or any person
Page | 302
who derives his right to occupy the premises from the
A: NO. They only have the right to redeem the mortgagor. It will not issue at all if the person who is
property. occupying the premises is claiming that the property
is his and that person is not the mortgagor.
Under Sec 6 of Act 3135, ―In all cases in which an
extrajudicial sale is made under the special power Q: What is the remedy of the person whose
hereinbefore referred to, the debtor, his successors in ownership is consolidated?
interest or any judicial creditor or judgment creditor
of said debtor, or any person having a lien on the A: He has to file a separate action to determine who
property subsequent to the mortgage or deed of trust is entitled to the possession of the property because
under which the property is sold, may redeem the the third party claiming ownership of the property is
same at any time within the term of one year from not a party to the proceedings.
and after the date of the sale.
CABLING V. LUMAPAS
DE VERA V. AGLORO
Under Section 33, Rule 39 (now Sec. 3, Rule 68) of the
There was a motion for the issuance of a writ of Rules of Court, which is made applicable to
possession but before the judge could issue the writ extrajudicial foreclosures of real estate mortgages,
of possession, there was a complaint filed by the the possession of the property shall be given to the
mortgagor to annul the foreclosure proceedings. purchaser or last redemptioner unless a third party is
actually holding the property in a capacity adverse to
Will the annulment of the judicial foreclosure the judgment obligor. Thus, the court’s obligation to
proceedings preclude the court from issuing the writ issue an ex parte writ of possession in favor of the
of possession? purchaser in an extrajudicial foreclosure sale ceases
to be ministerial when there is a third party in
NO because the issuance of the writ of possession is possession of the property claiming a right adverse to
ministerial and a matter of right. that of the judgment debtor/mortgagor. The
exception provided contemplates a situation in which
SPOUSES ARQUIZA V. CA a third party holds the property by adverse title or
right.
Q: Is a certification of non-forum shopping required
in a petition for the extra judicial foreclosure of real GOPIA V. METROPOLITAN BANK AND TRUST
estate mortgage?
The RTC correctly issued the writ of possession. It
A: No. It is not required simply because a petition for is well-established that the issuance of a writ of
extrajudicial foreclosure is not a case filed in court. A possession to a purchaser in a public auction is a
certificate of non-forum shopping applies only to ministerial function of the court, which cannot be
initiatory pleadings in a court case. This is not a court enjoined or restrained, even by the filing of a civil case
case but an invocation of the administrative side of for the declaration of nullity of the foreclosure and
the court. In fact you do not file it in the judge, but consequent auction sale.
with the office of the clerk of court.

The writ of possession will issue in the following

cases: foreclosure under Rule 39, extrajudicial

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Q: In the hearing for the issuance of a writ of the extrajudicial or judicial foreclosure pertain to
possession, can the court deny the sale because the those which:
required notices were not observed?
1.) are calculated to deter or mislead bidders
A: NO. As to the issuance of the writ of possession,
the court has no right to inquire as to the validity or 2.) to depreciate the value of the property or
Page | 303
conduct of the foreclosure sale. As far as the court is
concerned, it is valid. It cannot review the auction sale 3.) to prevent it from bringing a fair price.
records even if the other party raises it by way of
position in the hearing for the issuance of the writ of RULE 70: FORCIBLE ENTRY AND UNLAWFUL
possession. DETAINER
RULE 70, SECTION 1
Q: What is the remedy of the person who really
believes that the foreclosure proceedings were
conducted with irregularity? EJECTMENT PROCEEDINGS (ACCION INTERDICTAL)

A: Then he has to file another case, a complaint to Unlawful detainer and forcible entry suits are
annul foreclosure proceedings. designed to summarily restore physical possession of
a piece of land or building to one who has been
OKABE V. SATURNINO illegally or forcibly deprived thereof, without
prejudice to the settlement of the parties' opposing
Section 33, Rule 39 of the Rules of Court should be claims of juridical possession in appropriate
applied to cases involving extrajudicially foreclosed proceedings. These actions are intended to avoid
properties that were bought by a purchaser and later disruption of public order by those who would take
sold to third-party-purchasers after the lapse of the the law in their hands purportedly to enforce their
redemption period. If the purchaser is a third party claimed right of possession.
who acquired the property after the redemption
period, a hearing must be conducted to determine At the heart of every ejectment suit is the issue of
whether possession over the subject property is still who is entitled to physical possession of the lot or
with the mortgagor or is already in the possession of possession de facto (Dela Cruz vs. CA, G.R. No.
a third party holding the same adversely to the 139442, December 6, 2006).
defaulting debtor or mortgagor. If the property is in TWO KINDS OF EJECTMENT PROCEEDINGS
the possession of the mortgagor, a writ of possession
could thus be issued. Otherwise, the remedy of a writ FORCIBLE ENTRY UNLAWFUL
of possession is no longer available to such purchaser, DETAINER
but he can wrest possession over the property As to one is deprived of one illegally
through an ordinary action of ejectment. issue physical possession withholds
of real property by possession after the
BPI V. SPOUSES CASTRO means of force, expiration or
intimidation, termination of his
In a real estate mortgage that was subject of the strategy, threats, or right to hold
foreclosure, the notice of the sheriff‘s sale made stealth. possession under
any contract,
reference to Laguna properties. However, in the
express or implied.
notice, what was described was the Quezon City
properties. What was foreclosed was the QC
properties. As to
nature An action for An action for
Was the extra judicial foreclosure void? The SC said ejectment (forcible ejectment (forcible
that the mistakes and omissions that would invalidate entry or unlawful entry or unlawful

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 detainer) is a real detainer) is a real very date of illegal meanwhile in the
action because it action because it entry. premises.
involves the issue of involves the issue of b. In case of
possession of real possession of real forcible entry by XPNs: When the
property (Sec. 1, property (Sec. 1, stealth, the one- subsequent
Rule 4, Rules of Rule 4, Rules of year period is demands were
Page | 304 Court). It is also Court). It is also counted from the merely in the
however, an action however, an action demand to vacate nature of
in personam in personam upon learning of reminders of the
because the action is because the action such entry. original demand
directed against a is directed against a in which case the
particular person particular person The one-year period
who is sought to be who is sought to be owners/possessor is counted from
held liable held liable s of the land the first demand
(Domagas v. Jensen, (Domagas v. cannot be (Republic of the
448 SCRA 663). Jensen, 448 SCRA expected to Philippines vs.
663). enforce their right Sunvar Realty
to its possession Development
As to person a. a lessor, against the illegal Corporation, G.R.
who deprived of the vendor, vendee, occupant and sue No. 194880, June
may possession of any or other person the latter before 20, 2012).
institut land or building by against whom the learning of the
e action force, possession of any clandestine
intimidation, land or building is intrusion. And to
threat, strategy, unlawfully deprive the lawful
or stealth withheld after possessor of the
the expiration or benefit of the
termination of th summary action
e right to hold under Rule 70
possession simply because
b. the stealthy
c. the legal intruder managed
representatives to conceal the
or assigns of any trespass for more
such lessor, than a year would
vendor, vendee, be to reward
or other person clandestine
usurpation even if
As to a. Where GR: The one-year it is unlawful (Dela
period the grounds period is counted Cruz vs. Hermano,
to alleged in the from the date of G.R. No. 160914,
institut complaint for the last demand March 25, 2015).
e the forcible entry are to pay/comply
action force, and vacate, the
intimidation, reason being that
threat, or the lessor has the
strategy, the right to waive his JURISDICTION
commencement right of action
of the 1-year based on The MTC has exclusive original jurisdiction over
period should be previous forcible entry and unlawful detainer cases regardless
counted from the demands and let of the assessed value of the property involved (Sec.
the lessee remain 33[2], B.P. 129, as amended; Sec. 3, RA. 7691).

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 Even if there is no formal contract between the
MANDATORY ALLEGATIONS parties, there can still be an unlawful detainer
because implied contracts are covered by
The rule is that the allegations in the complaint ejectment proceedings. Possession by
determine both the nature of the action and the tolerance creates an implied promise to vacate
jurisdiction of the court. The cause of action in a the premises upon the demand of the owner Page | 305
complaint is not what the designation of the (Peran v. CFI of Sorsogon, G.R. No. 57259,
complaint states, but what the allegations in the body October 13, 1983).
of the complaint define and describe.

1. Forcible Entry ii. eventually, such possession became illegal upon

notice by plaintiff to defendant of the termination
i. The plaintiff must allege his prior physical of the latter’s right of possession;
possession of the property;

Prior physical possession is the primary iii. thereafter, the defendant remained in
consideration in a forcible entry case. A party possession of the property and deprived the
who can prove prior physical possession can plaintiff of the enjoyment thereof;
recover such possession even against the
owner himself.
iv. demand upon lessee to pay the rental or comply
with the terms of the lease and vacate the
premises; and
ii. The plaintiff must also allege that he/she
was deprived of his/her possession by force,
intimidation, strategy, threat or stealth; What constitutes a demand in unlawful detainer
and

If the alleged dispossession did not occur by a. To pay AND to vacate – If the suit is based on
any of these means, the proper recourse is to defendant’s failure to pay the rentals agreed upon; or
file a plenary action to recover possession, not
an action for forcible entry. The demand should NOT be “to pay OR vacate”
because this type of demand does not give rise to
In forcible entry cases, no force is really an unlawful detainer case since it is in essence an
necessary. The act of going on the property action for a sum of money.
and excluding the lawful possessor therefrom
necessarily implies the exertion of force over Thus, even if the complaint is captioned,
the property, and this is all that is necessary. “Collection of a Sum of Money with Damages,” the
action is actually for ejectment or unlawful
detainer where the demand is “to pay AND to
2. Unlawful Detainer vacate”.

A complaint sufficiently alleges a cause of action for

unlawful detainer if it recites the following: b. To comply AND to vacate – If suit is predicated
upon the defendant’s non-compliance with the
conditions of the lease contract.
[Link], possession of property by the defendant was
by contract with or by tolerance of the plaintiff; Similarly, if the unlawful detainer case is anchored
upon the failure of the defendant to comply with
the conditions of the lease, the demand must NOT
be “to comply OR vacate” because this type of

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 demand is not one for unlawful detainer but one NOTE: Moral, exemplary, and actual damages are
for specific performance. neither "rents" nor "reasonable compensation for the
use and occupation of the premises," nor "fair rental
value".
v. within one year from the last demand on
defendant to vacate the property, the plaintiff ACCION PUBLICIANA AND REIVINDICATORIA
Page | 306
instituted the complaint for ejectment (De los
Reyes v. Spouses Odones). When the complaint fails to aver facts constitutive
of forcible entry or unlawful detainer, as where it
JUDGMENT does not state how entry was effected or how and
when dispossession started, the action should
It is well-settled that, although an ejectment suit is an either be accion publiciana or reivindicatoria in the
action in personam wherein the judgment is binding RTC or in the MTC depending upon the assessed
only upon the parties properly impleaded and given value of the property.
an opportunity to be heard, the judgment becomes
binding on anyone who has not been impleaded if he Accion publiciana is also used to refer to an ejectment
or she is: suit where the cause of dispossession is not among
the grounds for forcible entry and unlawful detainer,
or when possession has been lost for more than one
1. a trespasser, squatter or agent of the year and can no longer be maintained under Rule 70
defendant fraudulently occupying the of the Rules of Court. The objective of the plaintiff in
property to frustrate the judgment;
an accion publiciana is to recover possession only, not
2. a guest or occupant of the premises with the
ownership (Modesto v. Urbina, 633 SCRA 383, 391,
permission of the defendant;
3. a transferee pendente lite; October 18, 2010).
4. a sublessee;
5. a co-lessee or Accion reivindicatoria or accion de reivindicacion is an
6. a member of the family, relative or privy of action whereby plaintiff alleges ownership over a
the defendant. parcel of land and seeks recovery of its full
possession. It is different from accion
SCOPE OF DAMAGES THAT MAY BE RECOVERED IN interdictal or accion publiciana where plaintiff merely
AN EJECTMENT SUIT alleges proof of a better right to possess without
claim of title.
While damages may be adjudged in forcible entry and
detainer cases, these damages’ mean `rents’ or `the THREE POSSESSORY ACTIONS
reasonable compensation for the use and occupation
of the premises,’ or `fair rental value of the property.’ Accion Accion Accion
Profits which the plaintiff might have received were it Interdictal Publiciana Reivindicator
not for the forcible entry or detainer do not represent ia
a fair rental value. As to Nature
Summary Plenary An action for
Although Section 1 of Rule 70 uses the word action for action for the recovery
"damages", the authors of the Rules of Court, in the the of ownership,
drafting Section 6 of Rule 70 on the judgment to be recovery of recovery of which
pronounced, eliminated the word "damages", physical the real necessarily
placing in lieu thereof, the words "reasonable possession right of includes the
compensation for the use and occupation of the where the possession recovery of
premises”. dispossessi when the possession.
on has not dispossessi
lasted for on has

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 more than lasted for demand to vacate and refusal to vacate which makes
one year. more than unlawful the withholding of possession.
one year.
As to Jurisdiction FORM OF DEMAND
MTC has 1. RTC – if the value of the
exclusive property exceeds: Page | 307
original a. P20,000 outside 1. The demand may be in the form of a written
jurisdiction Metro Manila; notice served upon the person found in the
regardless b. P50,000 within Metro premises.
of the Manila 2. The demand may also be made by posting a
1. MTC – if the value does not written notice on the premises if no person can
assessed
exceed the above amounts be found thereon (Sec. 2, Rule 70).
value of the
3. Demand upon a tenant may be oral (Jakihaca v.
property Aquino, G.R. No. 83982, January 12, 1990). Since,
the demand is not written, sufficient evidence
RULE 70, SECTION 2 must be adduced to show that there was indeed
a demand like testimonies from disinterested
LESSOR TO PROCEED AGAINST LESSEE ONLY AFTER and unbiased witnesses (Riano, 2016).
DEMAND
WHEN PRIOR DEMAND IS NOT REQUIRED
A demand is a prerequisite to an action for unlawful
detainer when the action is for failure to pay rent 1. Where the purpose of the action is to
due or to comply with the conditions of his lease, terminate the lease by reason of expiry of its
and not where the action is to terminate the lease term; 

because of the expiration of its term. 2. Where the purpose of the suit is not for
ejectment but for the reinforcement of the
NOTE: Where the action is to terminate the lease terms of the contract; or 

3. When the defendant is not a tenant but a mere
because of the expiration of its term, no such
intruder; or
demand is necessary. Upon the expiration of the
4. When there is stipulation dispensing with a
term of the lease, the landlord may go into the demand (Art. 1169, NCC; Sec. 2, Rule 70).
property and occupy it, and if the lessee refuses to
vacate the premises, an action for unlawful RULE 70, SECTION 3
detainer may immediately be brought against him
even before the expiration of the fifteen or five SUMMARY PROCEDURE
days provided in Rule 70, Section 2.
Rules that should govern the proceedings of Accion
WHEN ACTION FOR UNLAWFUL DETAINER MAY BE Interdictal (Forcible Entry and Unlawful Detainer);
COMMENCED Nature

Unless there is a stipulation to the contrary, the GR: Ejectment cases are summary proceedings,
action for unlawful detainer shall be commenced irrespective of amount of damages or unpaid rentals
only after demand and the lessee fails to comply sought to be recovered.
therewith after:
XPNS:
1. Fifteen days in the case of lands; or
2. Five days in the case of buildings.
1. Cases covered by agricultural tenancy laws;
NOTE: Mere failure to pay rent does not ipso facto
2. Cases within the jurisdiction of the Regional
make unlawful the tenant’s possession. It is the Trial Court acting as a Special Agrarian Court
as provided under Republic Act No. 6657;

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 3. When the decision of the MTC is appealed to
the RTC, the applicable rules are those of the ALLEGATIONS IN THE ANSWER
latter court; and
4. When the law otherwise expressly provides. The answer of the defendant must contain all the
affirmative and negative defenses.
RULE 70, SECTION 4
Page | 308
NOTE: Defenses, affirmative or negative, not pleaded
PLEADINGS ALLOWED in the answer shall be deemed waived

The only pleadings allowed to be filed are: (3CA) XPNS: The following defenses are not deemed
1. Complaint; waived:
2. Compulsory Counterclaim;
3. Crossclaim pleaded in the answer; and
4. All answers thereto. (Sec. 3, Rule 70)
1. Lack of jurisdiction over the subject matter;
and
NOTE: All pleadings submitted to the court must be
2. Failure to refer the case to the Lupon for
verified. Conciliation as provided under Sec. 12, Rule
70 vis-a- vis Sec. 412, Local Government
NOTE: See Section 6 for the period to file answer; Code.
Section 13 for the prohibited pleadings and motions. a. Referral to the Lupon is required when the
parties are living in the barangay in the same city or
RULE 70, SECTION 5 municipality.

ACTION ON COMPLAINT In these two cases, the defendant may file a Motion
to Dismiss.
The actions that may be undertaken by the court
upon examination of the allegations in the complaint
and evidence:
RULE 70, SECTION 7

1. Dismiss motu proprio on any grounds for EFFECT OF FAILURE TO ANSWER WITHIN THE PERIOD
dismissal of a civil action which are apparent PROVIDED
therein; or
2. Issue summons if no ground to dismiss is The court shall render judgment as may be warranted
found. by the facts alleged in the complaint and limited to
what is prayed for therein.
RULE 70, SECTION 6

ANSWER 1. Motu proprio or;

2. On motion of the plaintiff
DUTY OF THE DEFENDANT
The court may in its discretion reduce the amount of
damages and attorney's fees claimed for being
1. File his answer to the complaint; and excessive or otherwise unconscionable
2. Serve a copy of the answer to the plaintiff.
NOTE: without prejudice to the applicability of Rule 9
PERIOD if there are two or more defendants

The defendant shall file his answer to the complaint

within 10 days.

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 RULE 70, SECTION 8
Sec. 8 of Rule 70 can apply even if it is the lessor who
PRELIMINARY CONFERENCE appeals in the sense that in such a case, if the lessee
desires to prevent execution pending appeal, the
A preliminary conference shall be held, not later than lessee must still file the supersedeas bond and
30 days after the last answer is filed, deposit in court the accruing rentals (City of Manila vs Page | 309
CA & Santos, G.R. No. L-42364 April 9, 1987)
NOTE: The provisions of Rule 18 on pre-trial shall be
applicable to the preliminary conference unless Section 8 requires a supersedeas bond only if there
inconsistent with the provisions of this Rule. are accrued rentals in arrears. It dispenses with that
bond if the defeated tenant deposits in court the
APPEARANCE OF PARTIES rentals due from time to time (Once vs Gonzales, et
al., G.R. No. L-44806, March 31, 1977)
Failure of the plaintiff to appear in the preliminary
conference RULE 70, SECTION 9
• Cause for dismissal of complaint;
• Defendant who appears shall be entitled to RECORD OF PRELIMINARY CONFERENCE
judgment on his counterclaim;
• All cross-claims shall be dismissed. Within 5 days after the termination of the preliminary
conference, the court shall issue an order stating the
Failure of the defendant to appear in the preliminary matters taken up
conference
• Plaintiff shall likewise be entitled to CONTENTS OF PRELIMINARY CONFERENCE RECORD
judgment
• NOTE: This procedure shall not apply where
one of two or more defendants sued under a 1. Whether the parties have arrived at an
common cause of action defense shall amicable settlement, and if so, the terms
appear at the preliminary conference. thereof;
2. The stipulations or admissions entered into
Under Rule 70, Sec. 8, it is not necessary to show good by the parties;
reasons for the immediate execution of the judgment 3. Whether, on the basis of the pleadings and
against the defendant. The judgment is executed the stipulations and admission made by the
immediately in favor of the plaintiff, as a matter of parties, judgment may be rendered without
right, to prevent further damage arising from the loss the need of further proceedings, in which
of possession (San Miguel Wood Products vs Tupas, event the judgment shall be rendered within
MTJ-93-892, October 25, 1995) 30 days from issuance of the order;
4. A clear specification of material facts which
POSTPONEMENT OF PRELIMINARY CONFERENCE IS remain converted; and
5. Such other matters intended to expedite
NOT ALLOWED
the disposition of the case. (8, RSP)
No postponement of the preliminary conference shall
be granted

XPN: for highly meritorious grounds and without

prejudice to such sanctions as the court in the
exercise of sound discretion may impose on the
RULE 70, SECTION 10
movant

SUPERSEDEAS BOND
SUBMISSION OF AFFIDAVITS AND POSITION PAPERS

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 Within a non-extendible period of 10 days from REFERRAL TO LUPON
receipt of the order, the parties shall submit:
When there is no showing of compliance with the
1. Affidavits of their witnesses and; requirement of the referral to Lupon, when the case
2. Other evidence on the factual issues defined requires such referral, it shall be dismissed without
Page | 310
in the order; prejudice and may only be revived after that
3. Position papers setting forth the law and the requirement shall have been complied with.
facts relied upon by them.
BARANGAY CONCILIATION

If the plaintiff and defendant live in the same city or

SECTION 11: PERIOD FOR RENDITION OF
municipality, their case must first be referred to the
JUDGEMENT
Lupong Tagapamayapa before it can be filed to the
court.
PERIOD FOR JUDGEMENT
If there is failure to arrive at an amicable settlement,
The court may render judgement within 30 days:
a certificate to file action shall be issued by the
barangay. Such certificate must be attached to the
complaint because it is a condition precedent that
1. after receipt of affidavit and position
must be complied with.
papers; or
2. the expiration of the period for filing the
same. FAILURE TO ATTACH CERTIFICATE TO FILE ACTION;
REMEDY
NOTE: The court may still issue an order specifying
matters to be clarified if the court find it necessary to The case may be dismissed by the court if the referral
clarify material facts. In such case it may require requirement, as evidenced by attaching the
parties to submit affidavits or other evidence on said certificate to file action, is not complied with.
matters within 10 days from receipt of such order.
The remedy of failure to attach the certificate to file
Judgement will thereafter be rendered within 15 days action is to file an amended complaint, as long as the
after the receipt of the last affidavit or the expiration plaintiff has complied with the referral requirement.
of the period for filing the same.
SECTION 13: PROHIBITED PLEADINGS AND
OBJECTIONS AND ORAL INTERPELLATION, NOT MOTIONS
EXERCISED
THE FOLLOWING PETITIONS, MOTIONS OR
Oral arguments and objections are not exercised in PLEADINGS ARE NOT ALLOWED:
actions for unlawful detainer and forcible entry
because everything will be ruled upon on the basis of
documents submitted to the court. 1. Motion to dismiss

JUDGE MAY BE HELD ADMINISTRATIVELY LIABLE XPN:

1) On the ground of lack of jurisdiction
over the subject matter; or
If the judge does not follow the period within which
2) Failure to refer the case for
to render judgement, the judge may be held
barangay conciliation when
administratively liable.
required

SECTION 12: REFERRAL FOR CONCILIATION

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 2. Motion for bill of particulars expunge the inadmissible affidavit or portion thereof
3. Motion for new trial or for reconsideration from the record.
of a judgement or for reopening of trial
4. Petition for relief from judgement TESTIFYING BASED ON PERSONAL KNOWLEDGE;
5. Motion for extension of time to file COMPETENT
pleadings, affidavits or any other paper
6. Memoranda Page | 311
A person may testify based on what she / he saw or
7. Petition for certiorari, mandamus,
perceived. The same may only testify based on
prohibition against any interlocutory order
issued by the court personal knowledge. Further, the person must be
8. Motion to declare the defendant in default competent.
9. Dilatory motions for postponement
10. Reply LIABILITY IN CASE OF VIOLATION
11. Third-party complaints
12. Interventions When the plaintiff alleged a tall tale, the plaintiff may
be held criminally liable. If the lawyer connived with
MOTION FOR NEW TRIAL, RECONSIDERATION OR the plaintiff, he may be sanctioned.
REOPENING OF TRIAL; NOT ALLOWED, EXCEPTION
NO HEARING ON INFERIOR COURTS
However, where the motion for reconsideration
against an interlocutory order was made, it may be Inferior courts no longer conduct a hearing for the
allowed by the court because what is prohibited is a reception of testimonial evidence under the Revised
motion for reconsideration against a final judgement Rules on Summary Procedure. The adjudication is
(Lucas v. Fabros, A.M. No. MTJ-99-1226, January 31, done based on position papers and affidavits.
2000).

Also, a motion for reconsideration of a decision SECTION 15: PRELIMINARY INJUNCTION

dismissing an action for lack of jurisdiction is not a
prohibited motion under the Revised Rules on REASON FOR PRELIMINARY MANDATORY
Summary Procedure. What is a motion that seeks INJUNCTION
reconsideration of a judgement rendered by the court
after trial on the merits of the case. A dismissal on the It is to compel the defendant to prevent committing
ground of lack of jurisdiction is not an adjudication on further acts of dispossession.
the merits (Joven v. CA, GR No. 80739, August 20,
1992). NOTE: What the plaintiff should file is a motion for the
issuance of a writ of preliminary mandatory
SECTION 14: AFFIDAVITS injunction and not “preliminary injunction” because
such pertains to
CONTENTS OF THE AFFIDAVIT
NO HEARING ON INFERIOR COURTS

1. Only facts of direct personal knowledge of The plaintiff may ask for a writ for preliminary
the affiants which are admissible in mandatory injunction within 5 days from the filing of
evidence; and the complaint and the same shall be decided within
2. Affiants’ competence to testify to the 30 days from the filing thereof.
matters stated therein
This is to prevent the defendant from committing
Violation of the said requirements may subject the
further acts of dispossession. This is also a remedy of
party or the counsel to disciplinary action and shall
the plaintiff to obtain possession of the premises
during the pendency of the action (Riano, 2012).

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 Trial courts maintain jurisdiction over ejectment cases
NOTE: If judgment is appealed to the Regional Trial even if the question of possession cannot be resolved
Court, said court may issue a writ of preliminary without through the issue of ownership.
mandatory injunction to restore the plaintiff in
possession if the court is satisfied that the But ones the court determines the ownership of the
Page | 312 defendant's appeal is frivolous or dilatory or that the property in an unlawful detainer case, it is only for the
appeal of the plaintiff is prima facie meritorious (Rule sole purpose of determining the entitlement on the
70, Section 20, RoC). physical possession. Hence, the determination of
ownership is only provisional and does not bar an
PRELIMINARY MANDATORY INJUNCTION; APPLIES action between the same parties involving the title to
IN BOTH UNLAWFUL DETAINER AND FORCIBLE the land.
ENTRY CASES
A judgment in forcible entry or detainer case disposes
Although Article 539 of the Civil Code provides that of no other issue than possession and declares only
preliminary mandatory injunction is only possible in who has the right of possession, but by no means
forcible entry cases, Rule 70, Section 15 of the RoC constitutes a bar to an action for determination of
made it applicable to both cases in view of B.P. Blg. who has the right or title of ownership (Javier v.
129, Section 33. Veridiano, GR No. L-48050 October 10, 1994).

B.P. Blg. 129, Section 33 states that “provided the Q: Faye filed an unlawful detainer case against Bryan.
main action is within its jurisdiction, an inferior court After judgement on such case, Faye later on filed an
can appoint a receiver and it has jurisdiction to issue accion reindivicatoria against Bryan. Will the action
a writ of preliminary injunction in either forcible entry prosper?
or unlawful detainer cases” (Day v. RTC of
Zamboanga, GR No. 79119, November 22, 1990). A: Yes. Because even though the MTC determined the
issue on ownership, it is not a bar to resolve the issue
SECTION 16: RESOLVING DEFENSE OF OWNERSHIP on ownership in an accion reindivicatoria.

WHEN THE COURT MAY RESOLVE THE ISSUE OF Q: Carmina filed an unlawful detainer case against
OWNERSHIP: Faye, however, Carmina lost. Later on, she filed a case
of accion publiciana. Will her action prosper?

1. When the defendant raised that the issue of A: No. Res judicata sets in this case because the issue
ownership raised in an accion publiciana is one of possession, as
2. When the issue of possession cannot be the one raised in the unlawful detainer case.
resolved without deciding the issue of
ownership Q: MC filed a case of unlawful detainer against Rishi
NOTE: The issue of ownership shall be resolved only because the latter did not pay her rent. Rishi did not
to determine the issue of possession. Allegations of consign her rent to the court where the unlawful
ownership is not material in ejectment cases. detainer case was pending. Can Rishi file a separate
Evidence of ownership will be allowed only for the case for consignation?
court to determine the character and extent of
possession. A: No. Rishi should have raised that in the unlawful
detainer case.
OWNERSHIP DETERMINED ONLY TO IDENTIFY
POSSESSION; SEPARATE ACTION ON TITLE MAY BE NOTE: The Rules on Summary Procedure applies in
FILED the MTC but not on the RTC. If the MTC decided a case
and an appeal was made to the RTC, the Rules of
Procedure for RTCs will govern.

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 1. Injunction case filed in the RTC by the
Thus, even if a motion for reconsideration is a defendant
prohibited pleading under Revised Rules on Summary 2. Consignation
Procedure, a motion for reconsideration under Rule 3. Accion Publiciana
37 may be filed from a decision of the RTC when such 4. Writ of possession where the ownership is
acted in its appellate jurisdiction. coincidentally the principal issue before the
RTC Page | 313
5. Action for quieting of title
QUESTIONS TO BE RESOLVED IN AN ACTION FOR
FORCIBLE ENTRY

DEFENSE OF TENANCY
1. Who had actual possession over the real
property?
The mere assertion of tenancy as a defense does not
2. Was the possessor ousted therefrom within
ipso facto deprive the court of jurisdiction over an
one year from the filing of the complaint by
force, intimidation, threat, strategy or ejectment case. The jurisdiction of the court is
stealth (F-I-S-T-S)? determined by the allegations of the complaint and is
3. Does the plaintiff ask for the restoration of not dependent upon the defenses set upon by the
his possession? (Dizon v. Concina, GR No. L- defendant (Riano, pg. 356)
23756, December 27, 1969).

Q: A and B, husband and wife filed a case of unlawful Q: M is the owner of a land. B entered the land of M
detainer against their tenant, C (a lady) in the MTC. and stayed as an informal settler. M wants to recover
However, C is claiming that she cannot be ejected the premises of the land. What action should M file?
from the premises because A, the husband, donated
such property to her. Will the MTC be deprived of its A: It depends. If M filed it 1 year after the
jurisdiction to hear and decide the unlawful detainer dispossession of the property by B, then M should file
case? accion publiciana against B. However, if M filed it
within 1 year from the dispossession of the premises,
A: No. Jurisdiction is dependent upon the allegation then M can file an action for forcible entry.
of the complaint and not on the allegations raised in
the answer of the defendant. RECOVERY OF RENT, NOT POSSESSION

Q: In the same case, the court resolved the issue on An action for small claims may be filed if the owner is
ownership, declaring A and B as owners. The court merely claiming for the rent or reasonable
ruled that the property is part of the conjugal compensation for the use or occupation of the
property of A and B, hence, A cannot donate to C premises as long as the monetary claim is less than
because such is void. Will this bar the lady C in filing ₱400,000 in Metro Manila and ₱300,000 in other
an accion reindivicatoria case against the husband provinces or municipalities.
and wife?
WHEN THE MTC HAS NO JURISDICTION
A: No. Even if the MTC resolved the issue on
ownership, it is only for purposes of determining who The petitioner filed an illegal dismissal case before the
is entitled to the possession thereof. MTC, however, it is well-settled that where a
complaint arises from the failure of a buyer [of real
CASES PREJUDICIAL TO AN EJECTMENT SUIT; ABATES property] on installment basis to pay based on a right
THE LATTER to stop monthly amortizations under Presidential
Decree No. 957, as in the case at bench, the
determinative question is exclusively cognizable by

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 the Housing and Land Use Regulatory Board and not NOTE: The court can award the sum justly due,
the MTC (Francel Realty Corporation v. Sycip, GR No. regardless of the amount because it is considered as
154684. September 8, 2005). the reasonable compensation for the use and
occupation of the defendant on the premises.
RULE 70; AVAILABLE RELIEF FOR LESSEES
IF THE COURT FINDS THAT THE ALLEGATIONS ARE
Page | 314
Unlawful detainer and forcible entry is not only NOT TRUE
available to a landlord, vendor, or vendee, but also to
a lessee or tenant or any other person against whom If the allegations of the defendant were found true,
the possession of any land or building, or a part judgement is for the recovery of the costs.
thereof, is unlawfully withheld, or is otherwise
unlawfully deprived possession thereof, within one If a counterclaim is established, the court shall render
(1) year after such unlawful deprivation or judgement for the sum found in arrears from either
withholding of possession (Lim Keih Tong v. CA, G.R. party and award costs as justice requires.
No. 93451, March 18, 1991).
NOTE: The counterclaim must be within the
NOTE: The landlord, vendor or vendee is not jurisdiction of the MTC.
supposed to take the law in their own hands.
THE COURT CAN ONLY AWARD THE FOLLOWING
ACTION FOR ANNULMENT OF CONTRACT AND DAMAGES
UNLAWFUL DETAINER; MAY PROCEED SEPARATELY
1. The fair and reasonable value of the use and
The issue of physical possession in the action for enjoyment of the property or the rent arising
unlawful detainer cannot be identical with the issues from the loss of possession; or
of ownership and validity of contract in the action for 2. Liquidated damages when they form part of
annulment. From these essential differences, the lack the contract
of required identity in the causes of action for litis
pendentia to exist cannot be denied. Since the causes NOTE: Moral damages (besmirched reputation,
of action in the subject case for unlawful detainer and mental anguish and sleepless nights) cannot be
annulment of lease contract are entirely different, a awarded because it is not considered as a reasonable
judgment in one case would not amount to res compensation for the use and occupation of the
judicata in the other. Both cases may proceed premises.
separately and independently (Quito v. Stop & Save
Corp., GR No. 186657, June 11, 2014). Damages caused on land and building; file in
separate action
SECTION 17: JUDGEMENT
Physical damages on the premises cannot be claimed
IF THE COURT FINDS THE ALLEGATIONS TRUE in an action for unlawful detainer or forcible entry
because it is not a reasonable compensation on the
use of the premises. The lessor or owner must file a
1. It shall render judgement in favor of the separate ordinary action to ask for damages.
plaintiff for the restitution of the premises;
and Plaintiff cannot claim moral damages; defendant
2. Payment of the sum justly due as arrears for may claim such on counterclaim
rent or as a reasonable compensation for the
use and occupation of the premises, Plaintiff cannot claim damages other than that of the
attorney’s fees and costs reasonable use and occupation of the premises.
However, the defendant may claim damages by way
of a counterclaim as long as it is within the

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

jurisdictional amount of the MTC (not exceeding 3. Trespassers, squatters or agents of the
₱300,000). defendant fraudulently occupying the
property to frustrate the judgment; and
Reasonable compensation for forcible entry 4. Transferees pendente lite, sublessees and
other privies of the defendant (Sunflower
The plaintiff may ask for reasonable compensation for Neighborhood Association v. CA, G.R. No.
136274, September 3, 2003). Page | 315
the use and occupation of the premises by showing
evidence of the estimate amount of rent (e.g.: by
NOTE: The plaintiff, in ejectment cases, is entitled to
asking neighbors who reside within the vicinity to
damages caused by his loss of the use and possession
execute an affidavit stating the reasonable rate of
of the premises, but not for damages caused on the
rent).
land or building, which latter items of damages should
be recovered by plaintiff, if he is the owner, in an
Liquidated damages
ordinary action (Santos v. Santiago, 38 Phil. 575).

If the contract of lease states a provision involving

However, it has been held that plaintiff can recover
liquidated damages, the court may award such as it is
from defendant liquidated damages stipulated in the
pursuant to the lease contract. (Azcuna Jr., v. CA, GR
lease contract (Gozon v. Vda. De Barrameda, G.R.
No. 116665, March 20, 1996)
No. 17473, June 30, 1964).
Inferior courts may adjudicate and award damages
Q: M rented the property of B. M subleased one of
more than their jurisdictional limit
the rooms in B’s property in favor of C. Later on, an
ejectment suit was filed by B against M and the latter
MTCs may award actual damages beyond the
lost. C is claiming that she is not included in the case
jurisdictional limit in ordinary civil actions because the
against M and insisted to stay in the premises. Is C’s
reason of the monetary award is immaterial to the
contention correct?
jurisdiction. The principal relief is the restoration of
possession and grant of damages by way of
A: No. The right of the sublessee flows from the right
reasonable use and compensation of the premises.
of M. Since M lost her right of possession in B’s
property, it follows that C also lost her right on the
Binding of judgement
room she is renting. Further, the lessor B, cannot sue
the sublessee C because there is no privity of contract
GR: Judgement on an ejectment case is binding only
between them. In entering a sublease agreement, the
upon the parties properly impleaded and given an
sublessee cannot acquire any right higher than the
opportunity to be heard.
main lessee.
XPNs: It becomes binding on anyone who has not
Profits, not included in damages to be awarded
been impleaded in certain instances as follows:
While damages may be adjudged in forcible entry and
detainer cases, these "damages" mean "rents" or "the
1. A sublessee is bound by the judgment
reasonable compensation for the use and occupation
against the lessee because his right to the
premises is merely subsidiary to that of the of the premises." Profits which the plaintiff might
lessee; have received were it not for the forcible entry or
2. A guest or a successor in interest, the detainer do not represent a fair rental value (Baens v.
members of the family of the lessee or his CA, Seng, GR No. L-57091 November 23, 1983).
servants and employees are likewise bound
by the judgment even if not impleaded in the SECTION 18: JUDGEMENT CONCLUSIVE ONLY ON
suit for ejectment; POSSESSION: NOT CONCLUSIVE IN ACTIONS
INVOLVING TITLE OR OWNERSHIP

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 NOTE: In unlawful detainer, the amount of the bond
No res judicata in unlawful detainer or forcible entry and periodic deposit of rentals shall be that stated in
and accion reindivicatoria the lease contract.

As to the issue of ownership, any resolution of the In forcible entry, the amount of the bond and the
Page | 316 MTC is only for the purposes of determining who is amount to be deposited shall be the reasonable value
entitled to the possession of the premises. of the use and occupation of the premises as
determined by the court.
WHERE TO APPEAL
All the three requirements must concur. Non-
In case of an unfavorable judgement, the plaintiff or compliance with any one of the foregoing shall render
defendant may appeal to the RTC acting as an the judgement immediately executory.
appellate court.
Discretionary execution; does not apply
WHEN TO APPEAL
Rule 39, Section 2 of the RoC does not apply in an
Appeal must be done 15 days upon the receipt of the action for unlawful detainer or forcible entry because
decision. The appellant must pay the docket fee. the judgement of the MTC is immediately executory
(San Manuel Wood Products v. Tupaz, A.M. No. MTJ-
APPEAL ON PURE QUESTION OF LAW 93-892, October 25, 1995).

The judgement of the RTC is appealable to the CA if EXECUTION EXECUTION PENDING

the issue involves question of facts, law or both (Rule PENDING APPEAL APPEAL UNDER
42, RoC). UNDER RULE 70, SECTION 19
RULE 39, SECTION 2
Applies in ordinary Applies in actions for
SECTION 19: IMMEDIATE EXECUTION OF civil actions unlawful detainer and
JUDGEMENT; HOW TO STAY SAME forcible entry
Discretionary upon Ministerial on the part of
GR: The judgement of the MTC against the defendant the trial court the trial court
in an ejectment proceeding is immediately executory. The prevailing party Upon the non-compliance
must file a motion to of the defendant on the
XPN: The defendant may stay the execution when the execute the three requisites of
following concur: judgement pending perfection of appeal, bond
appeal. and deposit, the judgement
is automatically executed
1. The defendant perfects his appeal pending appeal.
2. The defendant files sufficient supersedeas The prevailing party Proof of good cause or
bond to pay the rents, damages and costs must prove good reason is not required
accruing down to the time of judgement;
reasons for the
and
court to grant
3. The defendant makes periodical deposits of
the amount of rent due from time to time, execution pending
with the appellate court during the appeal
pendency of the appeal; or in the absence of
a contract, the reasonable value of the use SUPERSEDEAS BOND, PURPOSE
and occupation of the premises
The bond shall answer for the rents, damages and
costs accruing down to the time of judgement of the

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

inferior court appealed from. The filing of such bond 1. The deposits must be made on the day
is mandatory to stay the judgement of the MTC. stipulated in the contract between the
plaintiff and the defendants; or
NOTE: Attorney’s fees shall not be covered by the 2. If there is no contract between the parties,
supersedeas bond. the deposit must be made on or before the
10th day of each succeeding month or period.
(Vda. De Ampil v. Alvendia, GR No. L-19761, Page | 317
WHEN SUPERSEDEAS BOND IS NOT REQUIRED
April 30, 1964)

1. When the monetary award in the judgement

NOTE: Even though the lease contract is oral, the date
of the inferior court has been deposited with
agreed upon by the parties must be followed.
the court; or
2. When the judgement of the lower court or
MTC did not make findings with respect to Further, the MTC cannot set a different period for the
any amount in arrears, damages or costs payment of deposit other than what is stipulated in
against the defendant (Once v. Gonzales, GR the contract, or in the absence thereof, the period
No. L-44506, March 31, 1977). stated in Rule 70, Section 19 which is the 10th day of
each succeeding month (Ibid).
WHERE TO FILE THE SUPERSEDEAS BOND; FORM
When monthly deposits are not required:
The bond shall be filed in the MTC and such will be
transmitted to the RTC to which the action is
appealed. Since an appeal against the judgement in 1. When the MTC failed to fix the reasonable
an unlawful detainer or forcible entry case is compensation on the rentals, monthly
considered as an ordinary appeal, all the records will deposits are not required because the RTC
be brought to the RTC acting as an appellate court, does not have the power to supply the
including the supersedeas bond. deficiency on appeal.
2. When the judgement of the MTC is only for
other items of damages.
NOTE: The RTC in its discretion and upon good cause
3. When the defendant has vacated the
shown, may allow the defendant to file the bond
premises and is no longer in occupancy.
before it.
Deposit; lessor can withdraw
The supersedeas bond may be in cash or in surety.
All amounts paid to the appellate court shall be
DEPOSIT; PURPOSE deposited with the court or authorized government
depositary bank and shall be held there until the final
The monthly deposit shall insure that payment of disposition of the appeal.
rentals accruing after the judgement of the inferior
court until final judgement on appeal. The amount is The lessor can withdraw the supersedeas bond or the
determined by the inferior court as stated in the amount deposited in the court, provided that:
judgement and not by the appellate court.

NOTE: The RTC has no power to reduce or increase 1. It was done with the approval of the court;
the amount fixed by the inferior court as reasonable or
rent or use of the premises. 2. It was done by agreement of the parties; or
3. In the absence of reasonable grounds of
WHEN DEPOSITS MUST BE MADE opposition to a motion to withdraw.

Failure of defendant to pay monthly deposit or

supersedeas bond

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 required as the rental in arrears was already paid by
When the defendant failed to deposit monthly rentals the lessee.
or supersedeas bond during the pendency of appeal,
there will be immediate execution with respect to the Removal or demolition of improvements; not
restoration of the possession. allowed without special order of court
Page | 318
NOTE: Such execution shall not be a bar to the appeal In the execution of judgement in ejectment cases, the
taking its course until the final disposition thereof on provisions of Rule 39, Section 10-d, to the effect that
the merits. no improvement shall be destroyed, demolished or
removed except by a special order by the court, is to
Example: S deposited a supersedeas bond and her be observed.
monthly rentals. She was able to pay the rental for the
first succeeding month. However, the rental for the Other judgements which are immediately executory
second month was not paid. 1. Injunction
2. Receivership
The plaintiff may file a motion before the appellate 3. Accounting
court for immediate execution and upon order of the 4. Support (Rule 39, Section 4, RoC)
court, the defendant will be dispossessed. The 5. Execution of judgement that was appealed to the
CA from a quasi-judicial agency (Rule 43, Section
property will be turned over to the plaintiff without
12, RoC)
prejudice to the continuation of the appeal.
6. Execution pending appeal when there is failure to
comply with the requirements of perfection of
Order for issuance of writ of execution; interlocutory appeal, supersedeas bond and deposit (Rule 70,
Section 19, RoC)
An order for the issuance of a writ of execution to 7. When the RTC’s judgement on an unlawful
immediately enforce judgement of the inferior court detainer or forcible entry case is appealed to the
is interlocutory and therefore not appealable. CA or SC (Rule 70, Section 21, RoC)

Delay of plaintiff to apply for immediate execution; Rule 70, Section 19 requirements still applies even if
not a waiver; exception lessor was the one who appealed

Mere delay of the plaintiff to apply for immediate The requirements under this section can apply even if
execution due to the default of deposit rentals does it is the lessor who appeals in the sense that, if the
not constitute a waiver of right to immediate lessee desires to prevent execution pending appeal,
execution. he (the lessee) must still file the supersedeas bond
and deposit in court the accruing rentals. Why should
But if plaintiff accepted belated payment, then the lessee continue occupying the premises without
plaintiff shall be deemed to have waived his right to filing the supersedeas bond and making the necessary
immediate execution. deposit for ensuing rentals (particularly when, by his
failure to appeal, the lessee does not question said
However, if the defendant paid his rentals but did not accrued and incoming rents)? (City of Manila v. CA,
vacate, the acceptance by the former of the lessees' GR No. L-42364 April 9, 1987).
back rentals did not constitute a waiver or
abandonment of their cause of action for ejectment
against the latter (Sps. Clutario v. CA, G.R. No. 76656,
December 11, 1992).
SECTION 20: PRELIMINARY MANDATORY
NOTE: In this case, if the lessee paid his back rentals, INJUNCTION IN CASE OF APPEAL
the lessor may only file a case of unlawful detainer for
the lessee to vacate. Supersedeas bond is no longer

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The RTC may issue a writ of preliminary mandatory
injunction on motion of plaintiff within 10 days from RTC’s execution of judgement; ministerial
the perfection of the appeal.
The judgement of the RTC shall not be stayed by the
There are two instances when preliminary mandatory mere continuing deposit of the defendant of the
injunction can be availed of by the plaintiff under Rule monthly rentals during the pendency of the case in Page | 319
70: the CA or SC. It is the ministerial duty of the RTC,
1. Immediately upon filing of the complaint acting as an appellate court, to immediately execute
before judgement (Rule 70, Section 15, RoC) its decision.
2. Pending appeal if the court is satisfied that
the defendant’s appeal is frivolous or Preliminary injunction on the writ of execution;
dilatory or that the appeal of the plaintiff is allowed
prima facie
On appeal, the appellate court may stay the writ of
SECTION 21: IMMEDIATE EXECUTION ON APPEAL
execution should circumstances require. Even though
TO COURT OF APPEALS OR SUPREME COURT
the judgement of the RTC in ejectment cases are
immediately executory, a preliminary injunction on
Judgement of appellate court; when plaintiff wins
the writ of execution is still allowed.

After the case has been decided by the RTC, and the
Non-compliance with a requirement from a relevant
judgement is in favor of the plaintiff, any money paid
law will be a ground for the dismissal of the case.
by the defendant for the purposes of staying
execution shall be disposed of in accordance with the
A complaint for unlawful detainer was dismissed on
provisions of the judgement of the RTC (Rule 70,
account of the failure of the seller to comply with the
Section 19, RoC).
provisions of Maceda Law on the cancellation of the
contract to sell.
NOTE: When the plaintiff wins on appeal or the RTC
affirmed the decision of the MTC in favor of the
Q: Shara bought a subdivision lot from Danica by
plaintiff, the judgement of the RTC will be
virtue of a contract to sell and the former immediately
immediately executory even if the defendant will file
occupied it. Shara paid the installments for the first
a petition for review pursuant to Rule 42.
months but later on, she defaulted in her monthly
payments. What action should Danica, the
Judgement of appellate court; when defendant wins
subdivision lot seller, file?

In any case where it appears that the defendant has

A: Danica can file a case of unlawful detainer against
been deprived of the lawful possession of land or
Shara because the latter has no right to possess as she
building pending the appeal by virtue of the execution
defaulted in paying her monthly installments.
of the judgement of the MTC, and the defendant
wins, damages for such deprivation of possession and
Q: In the same situation, Danica filed an unlawful
restoration of possession may be allowed the
detainer against Shara by virtue of a demand letter,
defendant in the judgement of the RTC disposing the
ordering Shara to vacate the said premises. However,
appeal (Ibid).
Danica was not able to give a notice of cancellation of
the contract to sell to Shara. Will Danica’s action for
NOTE: If the MTC judgement is in favor of the
unlawful detainer prosper?
defendant and the such is favorable upon the
defendant’s counterclaim, the judgement is not
A: No. The cancellation of the contract by the seller
immediately executory. The judgement may only be
must be in accordance with Sec. 3 (b) of R.A. No. 6552
executed after the expiration of the period to file an
(Maceda Law), which requires:
appeal.

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 resorted to unless necessary in the interest of justice
(Riano, pg. 368, 2019).
1. A notarial act of rescission; and
2. The refund to the buyer of the full payment The courts have inherent power to impose a penalty
of the cash surrender value of the payments for contempt that is reasonably commensurate with
on the property. the gravity of the offense. The degree of punishment
Page | 320
lies within the sound discretion of the courts. Ever
Actual cancellation of the contract takes place after mindful that the inherent power of contempt should
30 days from receipt by the buyer of the notice of be exercised on the preservative, not on the
cancellation or the demand for rescission of the vindictive, principle, and that the penalty should be
contract by a notarial act and upon full payment of meted according to the corrective, not the retaliatory,
the cash surrender value to the buyer (Pagtalunan v. idea of punishment, the Court must justly sanction
Dela Cruz, G.R. No. 147695, September 13, 2007). the contempt of court committed by the petitioner
and its counsel (Fortune Life vs. COA, GR No. 213525,
NOTE: Both of the requisites enumerated must November 21, 2017).
concur. Without such compliance, the rescission will
not take place and the case for unlawful detainer will PURPOSE AND NATURE OF CONTEMPT
be dismissed. Mere demand letter will not suffice PROCEEDINGS
(Ibid). Contempt proceedings have a dual function:
1. Vindication of public interest by punishment
RULE 71 – CONTEMPT of contemptuous conduct; and
2. Coercion to compel the contemnor to do
DEFINITION what the law requires him to uphold the
power of the Court, and also to secure the
Contempt of court has been defined as a willful
rights of the parties to a suit awarded by the
disregard or disobedience of a public authority.
Court (Riano, pg. 368, 2019).

In its broad sense, contempt is a disregard of, or SECTION 1: DIRECT CONTEMPT PUNISHED
disobedience to, the rules or orders of a legislative or SUMMARILY
judicial body or an interruption of its proceedings by
disorderly behavior or insolent language in its SPECIFIC ACTS PUNISHABLE AS DIRECT CONTEMPT
presence or so near thereto as to disturb its 1. Any of the following acts constitutes direct
proceedings or to impair the respect due to such a contempt:
body. 1. Misbehavior in the presence of or
so near a court as to obstruct or
In its restricted and more usual sense, contempt interrupt the proceedings before
comprehends a despising of the authority, justice, or the same;
dignity of a court (Riano, pg. 366, 2019). 2. Disrespect toward the court;
3. Offensive personalities toward
CONTEMPT POWER IS INHERENT IN COURTS others;
4. Refusal to be sworn or to answer as
The power to punish for contempt is inherent in all
a witness; and
courts, and need not be specifically granted by
5. Refusal to subscribe an affidavit or
statute.
deposition when lawfully required
to do so (Rule 71, Section 1, RoC).
NOTE: Such power should be exercised on the 2. The acts of a party or a counsel which
preservative, not on the vindictive, principle. Only in constitute willful and deliberate forum
cases of clear and contumacious refusal to obey shopping (Rule 7, Section 5, RoC).
should the power be exercised. Such power, being 3. A pleading containing derogatory, offensive
drastic and extraordinary in its nature, should not be and malicious statements if submitted in the
same court or judge in which the

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 proceedings are pending (Riano, pg. 370,
2019). Pending the resolution of the petition for certiorari or
NOTE: No formal proceedings are required to cite a prohibition, the execution of the judgment for direct
person in direct contempt. The court may summarily contempt shall be suspended. The suspension,
adjudge one in direct contempt without a hearing. however, shall take place only if the person adjudged
But there must be adequate facts to support a in contempt files a bond fixed by the court which Page | 321
summary order for contempt in the presence of the rendered the judgment.
court (Riano, pg. 370-371, 2019).
NOTE: The bond is conditioned upon his performance
Contemptuous statements made in the pleadings of the judgment should the petition be decided
filed with the court constitute direct contempt. if the against him (Rule 71, Section 2, RoC).
pleading containing derogatory, offensive or
malicious statements is submitted in the same court SECTION 3: INDIRECT CONTEMPT TO BE PUNISHED
or judge in which the proceedings are pending, it is AFTER CHARGE AND HEARING
direct contempt because it is equivalent to a
misbehavior committed in the presence of or so near INDIRECT CONTEMPT
a court or judge as to interrupt the administration of
justice (Pascua v. Heirs of Simeon, GR No. L-47717, These are acts not committed in front of the judge
May 02, 1988). and can only be punished after a hearing.

PENALTIES FOR DIRECT CONTEMPT SPECIFIC ACTS CONSTITUTING INDIRECT CONTEMPT:

1. The penalty for direct contempt depends 1. Misbehavior of an officer of a court in the
upon the court against which the act was performance of his official duties or in his
committed. official transactions;
1. If the act constituting direct 2. Disobedience or resistance to a lawful writ,
contempt was committed against a process, order or judgment or any
Regional Trial Court or a court of unauthorized intrusion to any real property
equivalent or higher rank, the after being ejected;
penalty is a fine not exceeding two
thousand pesos or imprisonment In cases of disobedience of or resistance to
not exceeding 10 days, or both unlawful writ, process, order or judgments,
(Rule 71, Section 1, RoC). the following must be present:
2. If the act constituting direct
contempt was committed against a
a) Order must be specific;
lower court, the penalty is a fine not b) Order must be lawful; and
exceeding two hundred pesos or c) Disobedience should be willful.
imprisonment not exceeding 1 day,
or both (Rule 71, Section 1, RoC). 3. Any abuse or any unlawful interference with
2. If the contempt consists in the refusal or the proceedings not constituting direct contempt;
omission to do an act which is yet within the 4. Any improper conduct tending, directly or
power of the respondent to perform, he may indirectly, to impede, obstruct, or degrade the
be imprisoned by order of the court administration of justice;
concerned until he performs it (Rule 71, 5. Assuming to be an attorney or an office of
Section 8, RoC). the court without authority;
6. Failure to obey a subpoena duly served; and
SECTION 2: REMEDY THEREFROM 7. Rescue, or attempted rescue, of a person of
property in the custody of an officer by
virtue of an order or process of a court held
A person adjudged in direct contempt may not appeal
by him.
therefrom. His remedy is a petition for certiorari or
prohibition directed against the court which adjudged
RESPONDENT SHOULD BE:
him in direct contempt.

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 1. Given an opportunity to comment on the
charge within such period fixed by the court; CONTEMPTUOUS PLEADINGS, WHEN INDIRECT
and CONTEMPT
2. Heard thereon by himself or counsel.
The use of disrespectful or contemptuous language
Procedural requisites for Indirect Contempt against a particular judge in pleadings presented in
Page | 322 Proceedings:
another court or proceeding is indirect, not direct,
1. A charge in writing or an order of the court contempt as it is not tantamount to a misbehavior in
to appear and explain; and the presence of or so near a court of judge as to
2. An opportunity for the respondent to
interrupt the administration of justice (Antonio
comment on the charge and to appear and
Guerrero v. Hon. Judge Villamor, G.R. No. 82238-42,
explain his conduct.
November 13, 1989).
RATIONALE: The grounds are not committed in front
of the judge. EXAMPLE: AA filed a motion for reconsideration:
“Plaintiff most respectfully request your Honorable
NOTE: Respondent in a contempt charge is not Court to reconsider this order because the order is a
required to file a formal answer similar to that of an manifestation of the Judge’s ignorance/lack of judicial
ordinary civil action, instead the court must set the intellect.” AA will be cited indirect contempt if said
date for which the respondent to appear before the pleading be submitted to the said Judge.
court and answer the charge, pursuant to Section 4.
In another case, AA stated in the petition for
If the respondent fails to appear without a justifiable certiorari, AA stated that the lower court acted in
reason, then the court may order his arrest, pursuant grave abuse of discretion amounting to lack or excess
to Section 9. of jurisdiction, and in the Court of Appeals, AA called
the lower court judge a “moron,” AA will be cited
FAILURE TO APPEAR IN COURT indirect contempt.

Failure to appear in court for trial is not a direct Note that in the two cases whether the
contempt, summarily punishable under Section 1 of contemptuous motion or pleading was filed with the
Rule 71 of the New Rules of Court, for it is not a same Judge or to another Judge, AA was still cited
misbehavior in the presence of or so near a court or indirect contempt.
judge as to interrupt the administration of justice. It
may, however, constitute an indirect contempt
(People v. Torio et al., G.R. No. L-27152 November 2, WRIT OF EXECUTION/POSSESSION ADDRESSED TO
1982). SHERIFF

USE OF FALSIFIED AND FORGED DOCUMENTS A person cannot be punished for alleged
disobedience of an order of the court, such as a writ
The use of falsified and forged documents is a of execution directing the sheriff to place the plaintiff
contumacious act. However, it constitutes indirect in possession of the property held by said person. Said
contempt not direct contempt. Pursuant to the above writ is addressed to the sheriff and not the plaintiff as
provision, such act is an improper conduct which it is the sheriff who must perform his duty (Lipata v.
degrades the administration of justice. Where the Tutaan, G.R. No. L-61643, September 29, 1983).
falsity of the document is not apparent on its face,
merely constitutes indirect contempt, and as such is Note that the writ of possession was directed not to
subject to such defenses as the accused may raise in petitioners, but to the sheriff for him to deliver the
the proper proceedings (Español v. Formoso, G.R. No. properties to respondents. As the writ did not
150949, June 21, 2007). command the petitioners to do anything, they cannot
be held guilty of "disobedience of or resistance to a

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

lawful writ, process, order, judgment or command of contempt of court (Fortun v. Quinsayas, G.R. No.
a court." (Pascua v. Simeon, G.R. No. L-47717 May 2, 194578, February 13, 2013).
1988).
SECTION 4: HOW PROCEEDINGS COMMENCED
RE-ENTRY OF ADVERSE PARTY WHO WAS EVICTED
Due to its primitive aspect, contempt proceeding is in Page | 323
Where, by virtue of a judgment or order of a the nature of a criminal action, hence procedural and
competent court, a litigant has been placed in evidentiary rules of criminal action are applied as far
possession of real property, the re-entry of the as practicable. Doubts shall always be resolved in
adverse party who was evicted therefrom constitutes favor of the person charged with contempt.
contempt and there is no time limit in which re-entry
constitutes contempt (Medina v. Garces, G.R. No. L- The mode of procedure and rules of evidence in
25923, July 15, 1980). indirect contempt proceedings are assimilated to
criminal prosecutions. The court does not declare the
The act of re-entry by a party into the land from which respondent in a contempt charge in default (Bruan v.
he was ordered by the court to vacate may be People of the Philippines, G.R. No. 149428, June 4,
punished for contempt of court even after the lapse 2004).
of the judgment. The re-entry is clearly a defiance of
the authority of the court (Patagan v. Panis, G.R. No. TWO MODES:
L-55730, April 8, 1988 citing Benedicto v. Canada, 1. An order or other formal charge by the
G.R. No. L-20292, November 27, 1967). court against which the contempt has been
committed requiring the respondent to
COURT’S ORDERS show cause why he should not be punished
for contempt (motu propio);
If the court has jurisdiction when it rendered
judgment, the same cannot be disobeyed however The first procedure applies only when the
indirect contempt is committed against a
erroneous it may be (Santos v. CA, G.R. No. L-56614,
July 28, 1987). court or judge possessed and clothed with
contempt powers.
In special judgments under Rule 39, Sec. 11, the
person required by the judgment to obey the same NOTE: This gives the respondent an
may be punished for contempt if he disobeys. opportunity to be heard.

No contempt however lies in judgments for money EXAMPLE: Plaintiff’s counsel did not arrive;
(Sec. 9) and judgments for specific acts (Sec. 10) under the judge issued an order stating that the
Rule 39. plaintiff’s counsel was informed of the
hearing and the said counsel was not in court
VIOLATION OF THE CONFIDENTIALITY RULE IN without any justifiable cause. The order was
DISBARMENT PROCEEDINGS issued requiring the counsel to explain in
writing why he should no be cited in
Atty. Quinsayas is bound by Section 18, Rule 139-B of contempt.
the Rules of Court both as a complainant in the
disbarment case against petitioner and as a lawyer. As 2. A verified petition charging indirect
contempt with supporting particulars and certified
a lawyer and an officer of the Court, Atty. Quinsayas
true copies of the necessary documents and papers
is familiar with the confidential nature of disbarment
and must contain a certification against forum
proceedings. However, instead of preserving its shopping (independent action).
confidentiality, Atty. Quinsayas disseminated copies
of the disbarment complaint against petitioner to
members of the media which act constitutes

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 The second mode applies if the 2. An opportunity for the person charged to
contemptuous act was committed not appear and explain his conduct; and
against a court or a judicial officer with 3. To be heard by himself or counsel (Regalado
authority to punish contemptuous acts v. Go, G.R. No. 167988, February 6, 2007).
(Nazareno v. Barnes, G.R. No. L-59072, April
25, 1985). SECTION 5: WHERE CHARGE TO BE FILED
Page | 324
NOTE: This is a separate action, an initiatory GR: Proceeding for indirect contempt shall be filed in
pleading for indirect contempt. The verified and tried by the court against which the
petition is filed with all the requirements of contumacious conduct was committed.
an initiatory pleading.
XPN:
If the contempt charges arose out of or are 1. Indirect contempt committed against an
related to a principal action pending in the inferior court which may also be filed in and
tried by a Regional Trial Court regardless of
court, the petition for contempt shall allege
the imposable penalty.
that fact but said petition shall be docketed,
2. Indirect contempt against the Supreme
heard and decided separately, unless the which it may cause to be investigated by a
court in its discretion orders the prosecutor, with the corresponding charge
consolidation of the contempt charge and to be thereafter filed in and tried by a
the principal action for joint hearing and Regional Trial Court, or for hearing and
decision. recommendation where the charge involves
questions of fact. (Regalado, pg. 123, 2010)
EXAMPLE: The husband did not give support (support
pendete lite). The main case arose from a case If committed The charge may be filed with
pending from the RTC acting as a Family Court. against the RTC or such court.
Pursuant to Rule 39, Section 11, the wife can file for a court of
petition to cite the husband guilty for indirect equivalent or
contempt. The wife filed to a second court a petition higher rank or
to cite him for indirect contempt for failing to pay the against an officer
support. To consolidate the case (so that only one appointed by it.
court may hear the issues), the wife will file a motion If committed The charge may be filed:
in the second court to consolidate it with the original against a lower 1. With RTC of the
court from which the contempt action arose. In court place in which the
effect, there will be a joint hearing and decision. lower court is
sitting; or
Henceforth, except for indirect contempt 2. The proceedings
may also be
proceedings initiated motu proprio by order of or a
instituted in such
formal charge by the offended court, all charges shall
lower court subject
be commenced by a verified petition with full
to appeal to the
compliance with the requirements therefore and shall RTC.
be disposed in accordance with the second paragraph If committed The charge shall be filed in
of this section (Regalado v. Go, G.R. No. 167988, against persons or the RTC of the place wherein
February 6, 2007). entities exercising the contempt was committed
quasi-judicial (Bar Matter No. 803, July 21,
The Procedural Requisites Before the Accused may functions 1998).
be Punished for Indirect Contempt:
Sections 4 and 5, Rule 71 of the ROC state,
respectively, that “proceedings for indirect contempt
1. A charge in Writing to be filed;

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

may be initiated motu proprio by the court against Penalty imposed shall
which the contempt was committed” and “where the depend upon the
charge for indirect contempt has been committed provisions of the law
Person/Entity
against a Regional Trial Court or a court of equivalent authorizing a penalty for
exercising Quasi-
or higher rank, or against an officer appointed by it, contempt against such
Judicial Functions
the charge may be filed with such court.” persons or entities.
(Rule 71, Section 12, Page | 325
RoC)
Contempt proceedings are sui generis and are triable Rule 71 has suppletory
only by the court against whose authority the effect (Riano Vol. 2, p.393,
contempts are charged; the power to punish for 2019).
contempt exists for the purpose of enabling a court to IN VIOLATION OF
compel due decorum and respect in its presence and Offender may also be
due obedience to its judgments, orders and processes ordered to:
and in order that a court may compel obedience to its Writ of Injunction, 1. Make complete
orders, it must have the right to inquire whether Temporary restitution to the
there has been any disobedience thereof, for to Restraining Order, party injured by such
submit the question of disobedience to another violation of the
or
tribunal would operate to deprive the proceeding of property involved; or
Status Quo Order
half its efficiency (Angeles v. CA, G.R. No. 178733, 2. Such amount as may
September 15, 2014). be alleged and
proved.
SECTION 6: HEARING; RELEASE ON BAIL
NOTE: The writ of execution, as in ordinary civil
actions, shall issue for the enforcement of a judgment
If the hearing is not ordered to be had forthwith, the
imposing a fine unless the court otherwise provides
respondent may be released from custody upon filing
(Rule 71, Section 7, par. 2, RoC).
a bond, in an amount fixed by the court, for his
appearance at the hearing of the charge. On the day
SECTION 8: IMPRISONMENT UNTIL ORDER OBEYED
set therefor, the court shall proceed to investigate the
charge and consider such comment, testimony or
Indefinite incarceration
defense as the respondent may make or offer (Rule
71, Sec. 6, RoC).
This rule provides for indefinite incarceration in
SECTION 7: PUNISHMENT FOR INDIRECT CONTEMPT
contempt proceedings to compel a party to comply
with the order of the court (Riano Vol. 2, p. 393,
Penalties for Indirect Contempt
2019).

CONTEMPT PENALTY
Purpose
COMMITTTED AGAINST
Regional Trial Court 1. Fine not exceeding The punishment is imposed for the benefit of a
or P30,000; or
complainant or a party to a suit who has been injured,
2. Imprisonment not
Court of aside from the need to compel performance of the
exceeding 6 months;
Equivalent/Higher orders or decrees of the court, which the contemnor
or
Rank 3. Both. refuse to obey although able to do so.
1. Fine not exceeding
P5,000; or In effect, it is within the power of the person adjudged
Lower Court 2. Imprisonment not guilty of contempt to set himself free (Riano Vol. 2, p.
exceeding 1 month; or 394, 2019).
3. Both.

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 SECTION 9: PROCEEDING WHEN PARTY RELEASED NOTES:
ON BAIL FAILS TO ANSWER 1. Direct Contempt – it is immediately
executory so what you should do is file a
Proceeding when Party Released on Bail Fails to petition for certiorari and then post a bond
Answer 2. Indirect Contempt – if the judgment is
unfavorable, you may appeal but first you
Page | 326 must post a bond so that the judgment will
When a respondent released on bail fails to appear on
not be immediately executory
the day fixed for the hearing, the court may:
The judgment or final order of a court in a case of
a. Issue another order of arrest;
indirect contempt may be appealed to the proper
b. Order the bond for his appearance to be
forfeited and confiscated; or court as in criminal cases.
c. Both. Appeals from municipal courts to the Court of First
Instance in contempt proceedings, and those from
If Bond is Proceeded Against the Court of First Instance to the higher courts, shall
be perfected as in criminal cases, that is, by merely
If the bond be proceeded against, the measure of filing a notice of appeal within 15 days from
damages will be: promulgation of judgment, with such period
a. The extent of the loss or injury sustained by interrupted by a motion for new trial seasonably filed
the aggrieved party by reason of the misconduct for (J.M. Tuason & Co., Inc. us. Familara, et al., L-24934,
which the contempt charge was prosecuted; Sept. 28, 1968). In both cases, the judgment shall be
b. With the costs of the proceedings. suspended provided the appellant files the
corresponding bond required by the Rules in the
Such recovery shall be for the benefit of the party amount fixed by the courts whose judgments are
injured. appealed from (Regalado, p. 920)

If there is no aggrieved party, the bond shall be liable As in criminal cases, a judgment absolving a person
and disposed of as in criminal cases. charged with criminal contempt or dismissing the
contempt charged is not appealable (Pajao vs.
SECTION 10: COURT MAY RELEASE RESPONDENT Provincial Board of Canvassers of Leyte, 88 Phil. 588;
Mison vs. Subido, L- 27704, May 28, 1970)
COURT MAY RELEASE RESPONDENT

The court may issue may discharge respondent from SECTION 12: CONTEMPT AGAINST QUASI-JUDICIAL
imprisonment when it appears that public interest ENTITIES
will not be prejudiced by his release.
TO WHOM DOES THIS APPLY
SECTION 11: REVIEW OF JUDGMENT OR FINAL
ORDER; BOND FOR STAY Applies suppletorily to contempt committed against
persons, entities, bodies or agencies exercising quasi-
REVIEW OF JUDGMENT OR FINAL ORDER; BOND FOR judicial functions
STAY
JURISDICTION
If there is a judgement or final order of a court in a
case of direct or indirect contempt, such judgment is The provision referred to contemplates the situation
immediately executory. In order to put a stop to such where a person, without lawful excuse, fails to
judgment, it is necessary that a bond be posted and appear, make oath, give testimony or produce
the condition of the bond will be to abide by the documents when required to do so by the official or
judgment if it is still adverse to the person adjudged body exercising such powers. For such violation, said
in contempt. person shall be subject to discipline, as in the case of

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contempt of court, upon application of the official or Failure to appear in court for trial is not a direct
body with the Regional Trial Court for the contempt summarily punishable under Section 1 of
corresponding sanctions (Regalado, p. 921-922) Rule 71 of the New Rules of Court, for it is not a
misbehavior in the presence of or so near a court or
Take Note: Acts or violations may only be deemed judge as to interrupt the administration of justice. It
contemptuous if the governing laws specifically may, however, constitute an indirect contempt Page | 327
defines such violation as a contempt of court or punishable only after written charges and hearing
unequivocally authorizes said official or body to under Section 3, Rule 71 par. (b).
punish for contempt providing for at the same time
the penalty Ignacio Pascua vs. Heirs of Segundo Simeon
RULE 71 – JURISPRUDENCE
The mere refusal or unwillingness on the part of
LORENZO SHIPPING CORPORATION VS. petitioners to relinquish the properties would not
DISTRIBUTION MANAGEMENT ASSOCIATION OF THE constitute contempt. The proper procedure if the
PHILIPPINES petitioners refuse to deliver possession of the lands is
It is the cardinal condition of all such criticism that it not for the court to cite them for contempt but for the
shall be bona fide, and shall not spill over the walls of sheriff to dispossess them of the premises and deliver
decency and propriety. A wide chasm exists between the possession thereof to the respondents.
fair criticism, on the one hand, and abuse and slander
of courts and the judges thereof, on the other. However, if subsequent to such dispossession.,
Intemperate and unfair criticism is a gross violation of petitioners enter into or upon the properties for the
the duty of respect to courts. It is such a misconduct purpose of executing acts of ownership or possession
that subjects a lawyer to disciplinary action. or in any manner disturb the possession of
The test for criticizing a judge's decision is, therefore, respondents, then and only then may they be charged
whether or not the criticism is bona fide or done in with and punished for contempt.
good faith, and does not spill over the walls of
decency and propriety. ROLANDO TACARDON VS. RAMON ANG

JUDGE EUSTAQUIO GACOTT, JR. VS. Contemptuous statements made in the pleadings
MAURICIO REYNOSO, JR. filed with the court constitute direct contempt. if the
pleading containing derogatory, offensive or
Snide remarks or sarcastic innuendoes do not malicious statements is submitted in the same court
necessarily assume that level of contumely which is or judge in which the proceedings are pending, it is
actionable under Rule 71 of the Rules of Court. […] It direct contempt because it is equivalent to a
has not been shown that there exists a substantive misbehavior committed in the presence of or so near
evil which is extremely serious and that the degree of a court or judge as to interrupt the administration of
its imminence is so exceptionally high as to warrant justice.
punishment for contempt and sufficient to disregard
the constitutional guaranties of free speech and MA. CONCEPCION REGALADO VS. ANTONIO GO
press.
Indirect contempt proceedings may be initiated only
Under paragraph (d) of Section 3, Rule 71 of the Rules in two ways: (1) motu proprio by the court; or (2)
of Court on indirect contempt, any improper conduct through a verified petition and upon compliance with
tending, directly or indirectly, to impede, obstruct, or the requirements for initiatory pleadings. Procedural
degrade the administration of justice, constitutes requirements as outlined must be complied with.
criminal contempt.
JUDGE DOLORES ESPAÑOL VS. ATTY. BENJAMIN
PEOPLE OF THE PHILIPPINES VS. LUIS TORIO FORMOSO

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021

 The use of falsified and forged documents is a members of the media which act constitutes
contumacious act. However, it constitutes indirect contempt of court.
contempt not direct contempt. Pursuant to Sec. 3
Rule 71, such act is an improper conduct which ELISA ANGELES VS. HON. COURT OF APPEALS
degrades the administration of justice.
Page | 328 Sections 4 and 5, Rule 71 of the ROC state,
The imputed use of a falsified document, more so respectively, that “proceedings for indirect contempt
where the falsity of the document is not apparent on may be initiated motu proprio by the court against
its face, merely constitutes indirect contempt, and as which the contempt was committed” and “where the
such is subject to such defenses as the accused may charge for indirect contempt has been committed
raise in the proper proceedings. Thus, following against a Regional Trial Court or a court of equivalent
Section 3, Rule 71, a contemner may be punished only or higher rank, or against an officer appointed by it,
after a charge in writing has been filed, and an the charge may be filed with such court.”
opportunity has been given to the accused to be
heard by himself and counsel. Contempt proceedings are sui generis and are triable
only by the court against whose authority the
Vilma Arriola vs.. John Nabor Arriola contempts are charged; the power to punish for
contempt exists for the purpose of enabling a court to
Under the second paragraph of Section 4, Rule 71, the compel due decorum and respect in its presence and
requirements for initiating an indirect contempt due obedience to its judgments, orders and processes
proceeding are a) that it be initiated by way of a and in order that a court may compel obedience to its
verified petition and b) that it should fully comply orders, it must have the right to inquire whether
with the requirements for filing initiatory pleadings there has been any disobedience thereof, for to
for civil actions. The filing of a verified petition that submit the question of disobedience to another
has complied with the requirements for the filing of tribunal would operate to deprive the proceeding of
initiatory pleading, is mandatory. half its efficiency.

PHILIP SIGFRID FORTUN VS. PRIMA JESUSA FORTUNE LIFE INSURANCE COMPANY VS.
QUINSAYAS COMMISSION ON AUDIT

Proceedings against attorneys shall be private and The courts have inherent power to impose a penalty
confidential. However, the final order of the Supreme for contempt that is reasonably commensurate with
Court shall be published like its decisions in other the gravity of the offense. The degree of punishment
cases. The purpose of the rule is not only to enable lies within the sound discretion of the courts. Ever
this Court to make its investigations free from any mindful that the inherent power of contempt should
extraneous influence or interference, but also to be exercised on the preservative, not on the
protect the personal and professional reputation of vindictive, principle, and that the penalty should be
attorneys and judges from the baseless charges of meted according to the corrective, not the retaliatory,
disgruntled, vindictive, and irresponsible clients and idea of punishment, the Court must justly sanction
litigants; it is also to deter the press from publishing the contempt of court committed by the petitioner
administrative cases or portions thereto without and its counsel.
authority.

Atty. Quinsayas, however, failed to preserve the

confidentiality rule. Instead of preserving its
confidentiality, Atty. Quinsayas disseminated copies
of the disbarment complaint against petitioner to

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 Page | 329

CIVIL PROCEDURE – 2B | DEAN S.D. MAWIS UST | S.Y. 2020 -2021