CIVPRO2 Quick Notes ☺Take note of section 1 rule 56. Memorize!
TAKE NOTE of Sec. 8, Rule 40. Section 1. Original cases cognizable . — Only petitions for
Certiorari , prohibition, mandamus, quo warranto, habeas
Section 8. Appeal from orders dismissing case without corpus, disciplinary proceedings against members of the
trial; lack of jurisdiction. — If an appeal is taken from an judiciary and attorneys, and cases affecting ambassadors,
order of the lower court dismissing the case without a trial on other public ministers and consuls may be filed originally in the
the merits, the Regional Trial Court may affirm or reverse it, as Supreme Court.
the case may be.
Take note: of Sec. 1, Rule 57, there are 6 cases wherein
In case of affirmance and the ground of dismissal is lack of those are the only cases wherein a party may apply for the
jurisdiction over the subject matter, the Regional Trial Court, if issuance of a writ of preliminary attachment. Such that if the
it has jurisdiction thereover, shall try the case on the merits as case does not fall under any of these 6, the application will
if the case was originally filed with it. In case of reversal, the be denied by the court.
case shall be remanded for further proceedings.
Preliminary Attachment: Rule 57, Section 1. Grounds
Take note of the fresh period rule. Upon receipt of the
upon which attachment may issue. — At the commencement
order denying the motion for new trial or MR, you have a
of the action or at any time before entry of judgment, a
fresh period of 15 days which you may file an appeal.
plaintiff or any proper party may have the property of the
adverse party attached as security for the satisfaction of any
☺Rule 41. Section 1. Subject of appeal. — An appeal may
judgment that may be recovered in the following cases:
be taken from a judgment or final order that completely
disposes of the case, or of a particular matter therein when (a) In an action for the recovery of a specified amount of
declared by these Rules to be appealable. No appeal may money or damages, other than moral and exemplary, on a
be taken from: cause of action arising from law, contract, quasi-contract,
delict or quasi-delict against a party who is about to depart
(a) An order denying a motion for new trial or
from the Philippines with intent to defraud his creditors;
reconsideration;
(b) In an action for money or property embezzled or
(b) An order denying a petition for relief or any similar
fraudulently misapplied or converted to his own use by a
motion seeking relief from judgment;
public officer, or an officer of a corporation, or an attorney,
(c) An interlocutory order; factor, broker, agent, or clerk, in the course of his
employment as such, or by any other person in a fiduciary
(d) An order disallowing or dismissing an appeal; capacity, or for a willful violation of duty;
(e) An order denying a motion to set aside a judgment (c) In an action to recover the possession of property
by consent, confession or compromise on the ground unjustly or fraudulently taken, detained or converted,
of fraud, mistake or duress, or any other ground vitiating when the property, or any part thereof, has been concealed,
consent; removed, or disposed of to prevent its being found or taken
by the applicant or an authorized person;
(f) An order of execution;
(d) In an action against a party who has been guilty of a
(g) A judgment or final order for or against one or fraud in contracting the debt or incurring the obligation
more of several parties or in separate claims, upon which the action is brought, or in the performance
counterclaims, cross-claims and third-party thereof;
complaints, while the main case is pending, unless the
court allows an appeal therefrom; and (e) In an action against a party who has removed or
disposed of his property, or is about to do so, with intent to
(h) An order dismissing an action without prejudice. defraud his creditors; or
In all the above instances where the judgment or final order is (f) In an action against a party who does not reside and is
not appealable, the aggrieved party may file an appropriate not found in the Philippines, or on whom summons may
special civil action under Rule 65. be served by publication.
☺Rule 41. Sec. 5. Notice of appeal. — The notice of Take note of these requirements: Sec. 3, Rule 57
appeal shall indicate:
Rule 57. Sec. 3. Affidavit and bond required. — An order of
1. the parties to the appeal; attachment shall be granted only when:
2. specify the judgment or final order or part thereof
appealed from; 1. it appears by the affidavit of the applicant, or of some
3. specify the court to which the appeal is being taken; other person who personally knows the facts, that a
and sufficient cause of action exists;
4. state the material dates showing the timeliness of 2. that the case is one of those mentioned in section 1
the appeal. hereof;
3. that there is no other sufficient security for the claim
sought to be enforced by the action; and
4. that the amount due to the applicant, or the value of 4. Replevin (Rule 60)
the property the possession of which he is entitled to 5. Support pendente lite (Rule 61)
recover, is as much as the sum for which the order is
granted above all legal counterclaims. TAKE NOTE: different kinds of bonds, who files the same
and the purposes of each.
The affidavit, and the bond required by the next succeeding
section, must be duly filed with the court before the order
issues. Kind of bond Who files it Purpose
to indemnify the adverse
Take note of these grounds: Rule 57, Sec. 13. party or for the party
against whom the writ of
Section 13. Discharge of attachment on other grounds. — The attachment is issued for
party whose property has been ordered attached may file a Bond filed by
Applicant any damages suffered in
motion with the court in which the action is pending, before or the applicant
case the courts shall later
after levy or even after the release of the attached property, for on adjudge that the
an order to set aside or discharge the attachment on the applicant is not entitled to
ground that the same was: the attachment.
1. improperly or irregularly issued or enforced; or a security for the
2. that the bond is insufficient; satisfaction of any
Counterbond
judgment which may be
3. If the attachment is excessive, the discharge shall be
rendered by the court.
limited to the excess.
4. If the motion be made on affidavits on the part of the Bond filed by the purpose is indemnify
Applicant
movant but not otherwise, the attaching party may the applicant the third person who is the
(but with
oppose the motion by counter-affidavits or other but with owner of the said property
respect to
evidence in addition to that on which the attachment respect to for any damages suffered
other third
was made. other third by him for the enforcement
persons)
persons of the writ of attachment.
*If it is exempt from execution under Section 13 of Rule
39. (Diba there are properties under Sec. 13 of Rule 39
which are exempt from execution. Automatically, they are Rule 59. Section 1. Appointment of receiver. — Upon a
also exempt from attachment.) verified application, one or more receivers of the property
subject of the action or proceeding may be appointed by the
After due notice and hearing, the court shall order the setting court where the action is pending or by the Court of Appeals or
aside or the corresponding discharge of the attachment if it by the Supreme Court, or a member thereof, in the following
appears that it was improperly or irregularly issued or enforced, cases:
or that the bond is insufficient, or that the attachment is
excessive, and the defect is not cured forthwith. (a) When it appears from the verified application, and such
The requirements in order a writ of preliminary injunction other proof as the court may require, that the party applying
may be granted by the court. Take note that there are 3 for the appointment of a receiver has an interest in the
under Section 3, Rule 58: property or fund which is the subject of the action or
proceeding, and that such property or fund is in danger of
Section 3. Grounds for issuance of preliminary injunction. — A being lost, removed, or materially injured unless a receiver
preliminary injunction may be granted when it is established: be appointed to administer and preserve it;
(a) That the applicant is entitled to the relief demanded, and (b) When it appears in an action by the mortgagee for the
the whole or part of such relief consists in restraining the foreclosure of a mortgage that the property is in danger of
commission or continuance of the act or acts complained of, being wasted or dissipated or materially injured, and that
or in requiring the performance of an act or acts either for a its value is probably insufficient to discharge the mortgage
limited period or perpetually; debt, or that the parties have so stipulated in the contract of
mortgage;
(b) That the commission, continuance or non-performance of
the act or acts complained of during the litigation would
(c) After judgment, to preserve the property during the
probably work injustice to the applicant; or
pendency of an appeal, or to dispose of it according to the
(c) That a party, court, agency or a person is doing, judgment, or to aid execution when the execution has been
threatening, or is attempting to do, or is procuring or returned unsatisfied or the judgment obligor refuses to apply
suffering to be done some act or acts probably in violation of his property in satisfaction of the judgment, or otherwise to
the rights of the applicant respecting the subject of the action carry the judgment into effect;
or proceeding, and tending to render the judgment
ineffectual. (d) Whenever in other cases it appears that the
appointment of a receiver is the most convenient and
The provisional remedies available under the Rules: feasible means of preserving, administering, or disposing
1. Preliminary attachment (Rule 57) of the property in litigation.
2. Preliminary injunction (Rule 58)
3. Receivership (Rule 59)
During the pendency of an appeal, the appellate court may
allow an application for the appointment of a receiver tobe filed
in and decided by the court of origin and the receiver appointed
to be subject to the control of said court.
