civil procedure 2009

8/6/2019 Civil Procedure 2009

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CIVIL PROCEDUREMEMORY AID

ADAMSON UNIVERSITY - MABINI LAW 2009

RULE 1 GENERAL PROVISIONS

1. Civil action – one by which a party sues another for the enforcement or protectionof a right, or the prevention or redress of a wrong; may be ordinary or

special

Criminal action – one by which the state prosecutes a person for an act or omissionpunishable by law

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

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

a. Election cases;

b. Land registration;

c. Cadastral proceedings;

d. Naturalization proceedings; and

e. Insolvency proceedings

RULE 2 CAUSE OF ACTION

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

2. REQUISITES OF JOINDER OF CAUSES OF ACTION:

a. The party joining the causes of action shall comply with the ruleson joinder of parties;

b. The joinder shall NOT include special civil action or actionsgoverned by special rules;

c. Where the causes of action are between the same parties butpertain to different venues or jurisdiction, the joinder may be allowed in the RTCprovided one of the causes of action falls within the jurisdiction of the RTC andthe venue lies therein;

3. Where the claims in all the causes of action are principally for recovery of money, theaggregate amount claimed shall be the test of jurisdiction.

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

RULE 3 PARTIES TO CIVIL ACTIONS

1. CLAIMS THAT SURVIVE THE DEATH OF A PARTY:

a. Actions to recover real and personal property against the estate;

b. Actions to enforce liens thereon;

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

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

2. Death of defendant in action on contractual money claims before judgment of RTCNOT ground for dismissal. Action continues until entry of final judgment. Any

judgment against estate of deceased will be enforced as money claim. Writ of preliminary attachment, if any, not dissolved.

3. REQUISITES OF PERMISSIVE JOINDER OF PARTIES:

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

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

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

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4. REQUISITES OF A CLASS SUIT:

a. Subject matter of the controversy is one of common or general interest to manypersons;

b. Parties affected are so numerous that it is impracticable to bring them all to thecourt;

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

5. TRANSFER OF INTEREST

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

RULE 4 VENUE OF ACTIONS

* Uniform rule on venue in RTC and MTC

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

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

3. VENUE OF PERSONAL ACTIONS – where the plaintiff or any of the principal plaintiffs resides,or where the defendant or any of the principal defendants resides, or in the caseof a non-resident defendant where he may be found , at the election of the

plaintiff.

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

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

a. ACTION AFFECTS THE PLAINTIFF’S PERSONAL STATUS - in the court of the place where the

plaintiff resides.

b. ACTION AFFECTS ANY PROPERTY OF THE DEFENDANT IN THE PHILIPPINES - where the propertyor any portion thereof is situated or found.

5. Rules on Venue shall NOT apply:

a. In those case where a specific rule or law provides otherwise (e.g., civil case for

damages in cases of libel, where Article 360 of RPC provides specific rules onvenue); OR

b. Where the parties have validly agreed IN WRITING before the filing of the actionon the EXCLUSIVE venue thereof.

In this instance, the action can only be filed in the place agreed upon even if the other place is the place of residence of the parties or the location of thereal property involved.

RULE 5 UNIFORM PROCEDURE IN TRIAL COURTS

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

2. Uniform Procedure shall NOT be applicable:

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

b. In civil cases governed by the Rule on Summary Procedure.




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RULE 6 KINDS OF PLEADINGS

1. Negative Defense – specific denial of the material fact or facts alleged in thepleading of the claimant essential to his cause of action.

2. Affirmative defense – an allegation of a new matter which, while hypotheticallyadmitting the material allegations in the pleading of theclaimant, would nevertheless prevent or bar recovery by him.Includes:

a. Fraud

b. Statute of limitations

c. Release

d. Payment

e. Illegality

f. Statue of frauds

g. Estoppel

h. Former recovery

i. Discharge in bankruptcy

j. Any other matter by way of confession or avoidance.

3. Compulsory counterclaim – REQUISITES:

a. Arises out of or is necessarily connected with the transaction or occurrencewhich is the subject matter of the opposing party’s claim;

b. Does not require for its adjudication the presence of 3rd parties of

whom the court cannot acquire jurisdiction; and

c. Must be within the jurisdiction of the court both as to the nature andthe amount, except that in an ORIGINAL action in the RTC, the counterclaimmay be considered regardless of the amount.

Agustin vs. Bacalang

A court (if MTC) has no jurisdiction to hear and determine a set-off or counterclaim in excess of its jurisdiction. A counterclaim beyond the court’s

jurisdiction may only be pleaded by way of defense, the purpose of which is todefeat or weaken the plaintiff’s claim, but NOT to obtain affirmative relief.MOREOVER, the amount of judgment obtained by the defendant on appeal cannot exceed the jurisdiction of the court in which the action began. Since thetrial court did not acquire jurisdiction over the counterclaim in excess of the

jurisdictional amount, the appellate court likewise did not have jurisdiction over the same. In such a case, the award in excess of the jurisdiction of the trial courtis void.

Calo vs. Ajax

A counterclaim, even if otherwise compulsory, but amount exceeds the jurisdiction of the inferior court, will only be considered permissive. Hence, factthat it is not set-up in the inferior court will not bar plaintiff from instituting aseparate action to prosecute it.

RULE 7 PARTS OF A PLEADING

1. FORMAL REQUIREMENTS OF PLEADINGS:

a. Captionb. Title

c. Body divided into headings and paragraphs

d. Signature and address

e. Verification in some cases

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




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a. He has read pleading

b. To the best of his knowledge, information, and belief, there is good ground tosupport it

c. It is not interposed for delay.

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

a. Affiant (person verifying) has read the pleading

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

4. A pleading required to be verified which:

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

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

c. Lacks a proper verification

Shall be treated as an unsigned pleading.

5. What pleadings have to be verified:

a. Petition for relief from judgment (38.3)

b. Appeal by certiorari from CA to SC (45.1)

c. Complaint with prayer for preliminary attachment (57. 3)

d. Complaint for injunction (58.4)

e. Complaint for replevin (60.2)

f. Petition for certiorari (65.1)

g. Petition for prohibition (65.2)

h. Petition for mandamus (65.3)i. Complaint for forcible entry or unlawful detainer (70.4)

j. Petition for appointment of general guardian (93.2)

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

l. Petition for declaration of competency of the ward (97.1)

m. Petition for habeas corpus (102.3)

n. Petition for change of name (103.2)

o. Petition for voluntary dissolution of a corporation (104.1)

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

q. Petition to take deposition in perpetuam rei memoriam (before action or pendingappeal) (24.2)

r. Motion to set aside a default order of an inferior court

s. Motion for dissolution of preliminary injunction on the ground of irreparabledamage to the movant while the adverse party can be fully compensated

t. Petition for appointment of receiver

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

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

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

x. Answer to written interrogatories (25.2)

y. Answer to request for admission (26.2)

z. Notice of appeal from administrative tribunals to the CA




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6. Supporting affidavits of merit required:

a. Motion to postpone for absence of evidence (30.3)

b. Motion to postpone for illness of a party or counsel (30.4)c. Motion for summary judgment or opposition thereto (35.1,2,3,5)

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

e. Petition for relief from judgment (38.3)

f. Third-party claim (39.16)

g. Proof required of a redemptioner (39.30)

h. Motion for preliminary attachment (57.3)

i. Motion for dissolution of preliminary injunction (58.6)

j. Application for writ of replevin (60.2)

k. Claim against the estate of the decedent (86.9)

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

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

a. That he has not commenced any action or filed any claim involving the sameissues in any court, tribunal or quasi-judicial agency; to the best of his knowledgeno such other claim or action pending;

b. If there is such other pending action, a complete statement of the present statusthereof;

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

NOTE: FAILURE TO COMPLY NOT CURABLE BY MERE AMENDMENT OF THECOMPLAINT OR PLEADING BUT SHALL BE CAUSE FOR DISMISSAL OF THECASE WITHOUT PREJUDICE; IF THE ACTS OF PARTY OR COUNSEL CLEARLYCONSTITUTE WILLFUL & DELIBERATE FORUM SHOPPING, GROUND FORSUMMARY DISMISSAL WITH PREJUDICE AND CONSTITUTE DIRECTCONTEMPT.

For Forum-Shopping to exist, there must be:

i. Same transactions involved;

ii. Same essential facts and circumstances; and

iii. Actions raise identical cause of action, subject matter, and issues

RULE 8 MANNER OF MAKING ALLEGATIONS IN PLEADINGS

1. Allegations of capacity

a. Capacity of party to sue or be sued or the authority of a party to sue or be sued ina representative capacity or the legal existence of an organized association thatis made a party must be averred;

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

2. Action or defense based on document

a. Substance of such document set forth in the pleading;

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

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




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

a. Specifically denies them under oath;

b. Sets forth what he claims to be the facts.

Requirement of an oath does NOT apply:

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

ii. When compliance with an order for an inspection of the originalinstrument is refused.

Admission of genuineness and due execution:

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

ii. Was in words and figures as set out at the time it was signediii. Document was delivered

iv. Any formal requisites required by law which it lacks arewaived by him

The following defenses are cut-off by admission of genuineness and dueexecution of the document:

i. Signature is a forgery

ii. Signature is unauthorized

iii. Corporation is not authorized under its charter to sign theinstrument

iv. Party charged signed the instrument in some other capacitythan that alleged in the pleading setting it out

v. Document was never delivered.

4. SPECIFIC DENIAL

a. Defendant must specify each material allegation of fact the truth of which hedoes not admit;

b. Defendant must set forth the substance of the matters upon which he relies tosupport his denial, whenever practicable;

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

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

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

5. Allegations not specifically denied, other than those as to amount of unliquidateddamages deemed admitted.

RULE 9 EFFECT OF FAILURE TO PLEAD

1. General Rule: Defenses and objections not pleaded in answer or motion to dismissare deemed waived (Omnibus Motion Rule).

Exception: Court shall dismiss the claim, even without allegation in answer or motion

to dismiss, if any of the following appear from the pleadings or theevidence on record:

a. Lack of jurisdiction over the subject matter;

b. Litis pendentia between same parties for the same cause;

c. Res judicata

d. Action barred by statute of limitations.




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2. DECLARATION OF DEFAULT

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

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

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

d. Effect of order of default – party in default entitled to notice of subsequentproceedings but not to take part in trial;

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

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

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

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

RULE 10 AMENDED AND SUPPLEMENTAL PLEADINGS

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

a. At any time before responsive pleading is served

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

Plaintiff may amend complaint as a matter of right even after defendant files a

Motion to Dismiss, since the same is not a “responsive pleading.”

2. Substantial amendments may be made only with leave of court, except asprovided above.

3. An amended pleading supersedes the pleading that it amends but admissions insuperseded pleadings may be received in evidence against the pleader. (NOT

judicial admissions anymore; thus, must be formally offered)

4. Claims and defenses alleged in original but not incorporated in the amendedpleading shall be deemed waived.

5. Amended and Supplemental pleadings distinguished:

AMENDED SUPPLEMENTAL

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

Refers to facts arising after the filing of theoriginal pleading

Results in the withdrawal of the originalpleading

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

Can sometimes be made as a matter of right

Always filed with leave of court

RULE 11 WHEN TO FILE RESPONSIVE PLEADINGS

1. Answer to complaint – 15 days from service, unless different period fixed by thecourts;

2. Answer of defendant foreign private juridical entity – when service of summons ismade on the government official designated by law, answer to be filed within 30 daysfrom receipt of summons by such entity.

3. Answer to amended complaint – if amended as a matter of right, 15 days frombeing served with copy thereof

If amended not as a matter of right, 10 days from notice of order admitting thesame




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Answer earlier filed may be answer to amended complaint, if no new answer isfiled

Applicable to amended counterclaim, cross, third, etc,

4. Answer to counterclaim or cross-claim – within 10 days from service.

5. Answer to 3rd party complaint – 15 days from service

6. Reply – may be filed within 10 days from service of the pleadingresponded to

RULE 12 BILL OF PARTICULARS

1. Bill of particulars

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

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

court

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

Motion for Bill of Particulars may NOT call for matters which form part of theproof of the complaint. Thus, motion should not be granted if the complaint,while not very definite, nonetheless already states a sufficient cause of action.

RULE 13 FILING AND SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERS

1. Kinds of service of pleadings:

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

b. Service by mail (ordinary if no registered mail)

c. Substituted service (delivering copy to clerk of court with proof of failure of 1 st 2

modes)

Except with respect to papers emanating from the court, a resort to other modesmust be accompanied by a written explanation why the service or filing was notdone personally.

Violation of rule may be cause to consider the paper as not filed.

2. Kinds of service of final orders:

a. Personal

b. Registered mail

c. Publication (if summons by publication)

3. Proof of personal service

a. Written admission of party served;

b. Official return of the server; or

c. Affidavit of party serving, containing a full statement of the date, place andmanner of service.

RULE 14 SUMMONS

1. Contents of summons

a. Signed by the clerk under the seal of the court

b. Name of the court and that parties to the action

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

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

2. Kinds of service of summons:

a. PERSONAL:




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i. Handing a copy to the defendant in person; OR

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

B. SUBSTITUTED:i. Leave copies at his residence, with person of suitable age and discretionresiding therein; OR

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

c. By publication

3. By whom served:

a. Sheriff

b. Other proper court officer

c. Any suitable person specially authorized by the judge

4. When extraterritorial service allowed:

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

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

c. Where relief demanded consists in whole or in part in excluding the defendantfrom any interest in such property

d. When property of defendant has been attached within the Philippines

5. Kinds of extra territorial service

a. Personal service

b. Publication and summons sent by registered mail to last known address

c. Any other matter the court may deem sufficient

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

a. Identity of defendant unknown

b. Whereabouts of defendant unknown and cannot be ascertained by diligentinquiry

(a) and (b), applies to ANY action, even actions in personam

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

d. Defendant is temporarily out of the country and the suit is quasi in rem7. Service upon private domestic juridical entity – refers to corporation, partnership,or association organized under Phil. Laws with a juridical personality:

a. President

b. Managing partner

c. General manager

d. Corporate secretary

e. Treasurer

f. In-house counsel

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

Phils:

a. Resident agent designated in accord with Law

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

c. On any of its officers or agents within the Phils

NOTE: IF NO RESIDENT AGENT, SERVICE OF SUMMONSES AND PROCESSESON THE SEC.




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9. Newspaper of general circulation (RA 4883, PD 1079)

a. Published for the dissemination of local news and general information

b. Has a bona fide subscription list of subscribersc. Published at regular intervals

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

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

Mere filing of an answer per se should not be automatically treated as a voluntaryappearance by the defendant for the purpose of sumons. It should be noted thatwhen the appearance of the defendant is precisely to object to the jurisdiction of the court over his person, it cannot be considered as an appearance in court.

RULE 15 MOTIONS

1. All motions must be in writing except :

a. Those made in open court; OR

b. Those made in the course of a hearing or trial.

2. Exceptions to the three-day notice rule:

a. Ex parte motion

b. Urgent motion

c. When court sets hearing on shorter notice for good cause

d. Motion for summary judgment (must be served at least 10 days before thehearing)

A prudent judge would, in the absence of the opposing party in the hearing of amotion, inquire from the other party or inquire from the records the proof of theservice of notice rather than proceed with the hearing. He should not rely on aparty’s undertaking to notify the adverse party of a scheduled hearing. The judgemust demand what the rule requires, i.e., proof of such notice on the adverseparty. Otherwise, a contentious motion should be considered a mere scrap of paper which should not have even been received for filing.

Subsequent service of the motion on the adverse party may be consideredsubstantial compliance with the Rule 15, § 6. Failure to attach to the motionproof of service thereof to the adverse party is not fatal when the adverse partyhad actually received a copy of the motion and was in fact present in court whenthe motion was heard.

RULE 16 MOTION TO DISMISS

1. Motion to Dismiss must be filed within the time for and before the filing of ananswer to complaint.

2. Grounds for motion to dismiss:

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

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

c. Venue is improperly laid;d. Plaintiff has no legal capacity to sue;

e. There is another action pending between the same parties for the same cause;

Requisites of litis pendentia:

i. Identity of parties/interest

ii. Identity of rights asserted and prayed for/relief founded on the same facts;




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iii. Identity of the 2 cases (such that judgment in one would amount to res judicata in the other)

f. Cause of action is barred by a prior judgment or by statute of limitations;

Requisites of res judicata:

i. Final judgment or order

ii. Rendered by court of competent jurisdiction

iii. On the merits (even without trial, such as cases decided by Judgment onthe Pleadings, Summary Judgment, or dismissed for failure to prosecuteor for refusal to obey an order of the court)

iv. Identity of the parties

g. Pleading asserting claim states no cause of action;

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

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

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

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

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

a. Grant it – remedy: appeal

b. Deny – NOT appealable; but may avail of certiorari, prohibition andmandamus

c. Order amendment of the pleading

4. If denied, defendant must file answer within the balance of the 15-day period, but notless than 5 days from the time he received notice of the denial;

5. Subject to the right to appeal, dismissal based on the following grounds will be bar torefiling:

a. Res judicata

b. Extinguishment of claim or demand

c. Prescription

d. Unenforceability under the Statute of Frauds

6. The dismissal of the complaint shall be without prejudice to the prosecution in thesame or separate action of a counterclaim pleaded in the answer.

A motion to dismiss on the ground of failure to state a cause of action in thecomplaint must hypothetically admit the truth of the facts alleged in the complaint.The admission, however, is limited only to all material and relevant facts which arewell pleaded in the complaint. The demurrer does not admit the truth of mereepithets charging fraud; nor allegations of legal conclusions; nor an erroneousstatement of law; nor matters of evidence; nor to legally impossible facts.

RULE 17 DISMISSAL OF ACTIONS

1. Dismissal by the plaintiff

a. Notice of dismissal any time before service of the answer or a motion for summary judgment;

Dismissal is without prejudice EXCEPT on 2nd notice of dismissal, whichoperates as adjudication on the merits when filed by same plaintiff who hasonce dismissed an action based on or including said claim.




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b. If answer or motion for summary judgment already served, dismissal by a Motionfor Dismissal, which shall require approval of the court; shall be without prejudiceunless otherwise specified by the court

If counterclaim has been pleaded by a defendant prior to the service uponhim of plaintiff’s motion to dismiss, dismissal is limited to the complaint;dismissal is without prejudice to defendant’s right to prosecute counterclaimin a separate action or, if he makes a manifestation within 15 days fromnotice of the motion, to prosecute CC in same action.

2. Dismissal due to plaintiff’s fault - the following must be without justifiablecause

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

b. Plaintiff fails to prosecute claim for an unreasonable length of time

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

Complaint may be dismissed upon defendant’s motion or motu proprio. Unless otherwise declared by the court, dismissal has effect of adjudication upon

the merits.

RULE ON SEVERANCE OF COMPULSORY CC: Dismissal of principal action uponplaintiff’s motion or due to plaintiff’s fault does not necessarily carry with it thedismissal of the compulsory CC; defendant is also given option to prosecute thesame in same or separate action.

3. Dismissal of counterclaim, cross-claim, or 3rd-party complaint – must be made byclaimant before a responsive pleading or a motion for summary judgment is served,or if there is none, before the introduction of evidence.

RULE 18 PRE-TRIAL

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

a. Possibility of amicable settlement or arbitration

b. Simplification of the issues

c. Amendments to the pleadings

d. Stipulations or admissions of facts and documents

e. Limitation of number of witnesses

f. Preliminary reference of issues to a commissioner

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

h. Other matters for the prompt disposition of the action

2. It is the duty of the plaintiff to move ex parte for the setting of the case for pre-trial. However, if plaintiff answers the defendant’s counterclaim, it will be the latter’sduty to set the pre-trial.

3. Failure of plaintiff to appear shall be cause for dismissal of the action. Non-appearance of defendant is cause to allow plaintiff to present evidence ex parte andthe court to render judgment on basis thereof.

4. Non-appearance of party excused only if:

a. A valid cause is shown therefor OR

b. If representative shall appear in his behalf fully authorized in writing to enter into

an amicable settlement, to submit to alternative modes of dispute resolution, andto enter into stipulations or admissions of facts and of documents,

5. Must file pre-trial brief so as to ensure that other party receives it at least 3 daysbefore pre-trial. Failure to file brief has same effects as failure to appear at pre-trial.

6. Proceedings recorded, and court shall issue an order reciting in detail matterstaken up.




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RULE 19 INTERVENTION

1. Grounds for intervention

a. Legal interest in the matter in litigationb. Interest in the success of either or both parties or interest against both

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

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

2. Motion may be filed at any time before rendition of judgment.

3. Answer to complaint-in-intervention must be filed within 15 days from notice of court admitting the complaint.

4. Motion for intervention will be granted if it will not unduly delay or prejudiceadjudication of rights or original parties and if the intervenor’s rights may be fullyprotected in separate proceedings.

5. Complaint in intervention is merely collateral to the principal action. Hence, it willbe dismissed if main action is dismissed.

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

RULE 20 CALENDAR OF CASES

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

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

RULE 21 SUBPOENA

1. Subpoena issued by:

a. The court before whom witness is required to attend;

b. The court of the place where the deposition is to be taken;

c. The officer or body authorized by law to do so in connection with itsinvestigations;

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

2. No prisoner sentenced to death, reclusion perpetua, or life imprisonment and who isconfined in any penal institution shall be brought outside said institution for appearance or attendance in any court unless authorized by the SC.

3. Grounds for quashing subpoena duces tecum

a. It is unreasonable or oppressive

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

c. Person asking for subpoena does not advance cost of production

4. Ground for quashing subpoena ad testificandum

a. The witness is not bound thereby – if witness resides more than 100 km from theplace where he is to travel by the ordinary course of travel, or if he is a detentionprisoner and no permission is obtained from the court in which his case is

pending

This is known as the “viatory right ” of the witness; NOTE , however, that theright is available only in CIVIL cases

b. Witness fees and kilometrage allowed by rules not tendered when subpoenaserved.

5. Service of subpoena made in the same manner as personal or substitutedservice of summons.




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6. Person present in court before a judicial officer may be required to testify as if hewere in attendance upon a subpoena.

7. Failure by any person without adequate cause to obey a subpoena served upon

him shall be deemed a contempt of the court from which subpoena issued.

RULE 22 COMPUTATION OF TIME

1. Computing for any period of time: day of the act or event from which designatedperiod of time begins to run is to be excluded and the date of performance included.

2. If last day of period falls on Saturday, Sunday or legal holiday in place wherecourt sits, the time shall not run until the next working day.

3. If there is effective interruption of period, it shall start to run on the day after notice of the cessation of the cause of the interruption. The day of the act thatcaused the interruption is excluded in the computation of the period.

RULE 23 DEPOSITIONS PENDING ACTION

DEPOSITIONS DE BENE ESSE – taken for purposes of pending action

1. Depositions pending action

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

b. Taken without leave after an answer has been served

c. Upon the instance of any party

d. May be deposition upon oral examination or written interrogatories

2. Scope of examination – deponent may be examined regarding any matter notprivileged relevant to the subject of the action

3. Examination and cross-examination proceeds as in trials

4. Depositions and Affidavits distinguished

DEPOSITIONS AFFIDAVITS

Written testimony of witness in course of judicial proceedings, in advance of trial andhearing

Mere sworn written statements

Opportunity for cross-examination No cross-examination

Can be competent testimonial evidence Little probative value (hearsay)

5. Use of depositions

Any part or all of a deposition which is admissible in evidence may be usedagainst any party who was present or represented during the taking of thedeposition or who had notice thereof as follows:

DEPOSITION OF MAY BE USED BY PURPOSE

A witness Any party To contradict or impeach thedeponent’s testimony as a witness

Any party, or anyone whoat the time of taking thedeposition was an officer,director, or managing agentof a public or privatecorporation

An adverse party For any purpose

Of any witness, whether aparty or not

Any party For any purpose, IF court finds that:

a. Witness is dead;

b. Witness resides at adistance more than 100 km fromplace of trial, UNLESS absence




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procured by party offering thedeposition

c. Witness is unable totestify because of age, sickness,infirmity, or imprisonment;

d. Party offering thedeposition has been unable toprocure the attendance of thewitness by subpoena; OR

e. Other exceptionalcircumstances make it desirableto allow deposition to be used.

Deponent is made the witness of the party offering the deposition.

If only part of the deposition is introduced, adverse party may require that all of itwhich is relevant to the part introduced be introduced.

6. Persons before whom depositions may be taken

a. Within the Philippines

i. Judge

ii. Notary public

iii. Any person authorized to administer oaths if the parties so stipulate inwriting

b. In foreign countries

i. On notice, before a secretary of any embassy or legation, consul-general,

consul, vice-consul, consular agent of the Phils

ii. Before such person or officer as may be appointed by commission or under letters-rogatories

iii. Any person authorized to administer oaths if the parties so stipulate.

Commission – addressed to any authority in a foreign country authorized therein totake down depositions; the taking of such depositions is subject to the rules laiddown by the court issuing the commission

Letters Rogatory – addressed to judicial authority in the foreign country; the taking of the depositions is subject to the rules laid down by such foreign judicial authority.

7. Persons disqualified to take depositions

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

b. Employee of any party

c. Counsel of any party

d. Relative within the same degree of party’s counsel

e. Employee of party’s counsel

f. Anyone financially interested in the action

8. Depositions upon written interrogatories

Party desiring to take such deposition shall serve them upon every other partywith a notice stating the name and address of the person who is to answer themand the name and descriptive title of the officer before whom the deposition is tobe taken;

Party so served may serve cross-interrogatories upon the proponent within 10days thereafter

Re-direct interrogatories served within 5 days

Re-cross interrogatories served within 3 days

9. Effects of errors and irregularities in the depositions




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a. As to notice – waived unless written objection is promptly served upon the partygiving the notice

b. As to disqualification of officer – waived unless made before the taking of the

deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence

c. As to competency or relevancy of evidence - NOT waived by failure to makethem before or during the taking of the deposition, unless ground is one whichmight have been obviated or removed if presented at that time

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

e. As to form of written interrogatories - waived unless served in writing upon party

propounding them within the time allowed for serving succeeding cross or other interrogatories and within 3 days after the service of the last interrogatoriesauthorized.

f. As to manner of preparation - errors as to manner in which the testimony istranscribed or the deposition is prepared, signed, certified, sealed, indorsed,transmitted, filed or otherwise dealt with by the officer are waived unless a motionto suppress the deposition or some part of it is made with reasonablepromptness after such defect is, or with due diligence might have been,ascertained.

A deposition, in keeping with its nature as a mode of discovery, should be takenbefore and not during trial. IN fact, the rules on criminal practice – particularly on

the defense of alibi – states that when a person intends to rely on such adefense, that person must move for the taking of the deposition of his witnesswithin the time provided for filing a pre-trial motion.

RULE 24 DEPOSITIONS PENDING ACTION

DEPOSITIONS IN PERPETUAM REI MEMORIAM – taken to perpetuate evidence for purposes of an anticipated action or further proceedings in a case or appeal.

1. Depositions before action

A person desiring to perpetuate his own testimony or that of another personregarding any matter that may be cognizable in any court of the Phils may file averified petition in the court of the place of the residence of any expected adverse

party, which petition shall be entitled in the name of the petitioner and shall show:a. That petitioner expects to be a party to an action in a court of the Phils but is

presently unable to bring it or cause it to be brought;

b. The subject matter of the expected action and his interest therein;

c. The facts which he desires to establish by the proposed testimony and hisreasons for desiring to perpetuate it;

d. The names or description of the persons he expects will be the adverse partiesand their addresses so far as known;

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

2. Use of deposition

If deposition to perpetuate testimony is taken under this rule or if not so takenis still admissible in evidence may be used in any action involving the same subjectmatter subsequent brought in accordance with the provisions of Rule 23.

RULE 25 INTERROGATORIES TO PARTIES

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




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2. Effect of failure to serve written interrogatories – a party not servedwith such may NOT be compelled by the adverse party to give testimony in opencourt or deposition pending appeal.

RULE 26 ADMISSION BY ADVERSE PARTY

1. Request for admission

A written request for the admission of the other party of the genuineness of any material or document or request for the truth of any material and relevant matter of fact set forth in the request may be filed and served upon the other party at anytime after issues have been joined.

2. Implied admission

Each of the matter requested to be admitted shall be deemed admitted withina period designated in the request, which shall not be less than 15 days after servicethereof or within such further time as the court may allow on motion, UNLESS, party

requested serves upon the party requesting a sworn statement either specificallydenying or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters.

3. Effect of admission

Admission is only for the purpose of the pending action and shall NOTconstitute an admission for any other person nor may it be used against him in anyother proceeding.

4. A party who fails to file and serve a request for admission on the adverse party of material facts within the personal knowledge of the latter shall not be permitted topresent evidence thereon,

RULE 27 PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS

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

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

i. Constitute or contain evidence material to any matter involved in the actionAND

ii. Are in his possession, custody or control.

b. Permit entry upon designated land or other property in his possession or control

for the purpose of inspecting, measuring, surveying, or photographing theproperty or any designated relevant object or operation thereon.

2. The order:

a. Shall specify the time, place and manner of making the inspection and takingcopies AND

b. May prescribe such terms and conditions which are just.

RULE 28 PHYSICAL AND MENTAL EXAMINATION OF PERSONS

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

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

a. Requesting and obtaining a report of the examination so ordered OR

b. Taking the deposition of the examiner.

RULE 29 REFUSAL TO COMPLY WITH THE MODES OF DISCOVERY




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1. If a party/deponent refused to answer:

a. The examination may be completed on other matters

b. The examination may be adjournedc. The proponent may apply to the court for order to compel answer

The court may then order:

i. The refusing party or his counsel to pay the expenses incurred inobtaining the order, including the attorney’s fees (if it finds the refusal toanswer without substantial justification)

ii. The proponent or his counsel to pay the expenses incurred in opposingthe application, including attorney’s fees (if it finds the application to bewithout substantial justification)

2. If a party/witness refuses to be sworn or to answer after being directed to do so bythe court, the refusal may be considered a contempt of that court.

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

a. To answer designated questions

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

c. To submit to a physical or mental examination

the court may order:

i. That the matters regarding which the questions wereasked, or the character of the land or the thing, or the physical and mentalcondition of the party be taken to be established.

ii. The disallowance of the disobedient party’s claims

iii. The prohibition of the disobedient party to presentevidence

iv. The striking out of the pleadings or parts thereof

v. The dismissal of the action or parts thereof

vi. Rendering judgment by default against thedisobedient party OR

vii. The arrest of any party or agent EXCEPT indisobeying an order to submit to a physical or mental examination.

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

a. Strike out all or any part of any pleading of that party.b. Dismiss the action or any part thereof.

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

d. Order that party to pay reasonable expenses incurred, includingattorney’s fees.

5. The Republic of the Philippines cannot be required to pay expenses and attorney’sfees under this Rule.

RULE 30 TRIAL

1. Order of trial

Trial shall be limited to the issues stated in the pre-trial order and shallproceed as follows:

a. The plaintiff shall adduce evidence in support of his complaint;

b. The defendant shall adduce evidence in support of his defense, counterclaim,cross-claim, and third-party complaint;

c. The 3rd-party defendant, if any, shall adduce evidence of his defense,

counterclaim, cross-claim, and 4th party complaint;




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d. The 4th party and so forth, if any, shall adduce evidence of the material factspleaded by them;

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

f. The parties may then respectively adduce rebutting evidence only, unless thecourt, for good reasons and in the furtherance of justice, permits them to adduceevidence upon their original case; and

g. Upon admission of the evidence, the case shall be deemed submitted for decision, unless the court directs the parties to argue or to submit their respectivememoranda or any further pleadings.

2. Judge should personally receive evidence EXCEPT that in default or ex partehearings and in any case where the parties so agree in writing, the court maydelegate the reception of evidence to its clerk of court who is a member of the bar.

The clerk shall have no power to rule on objections to any question or to theadmission of exhibits, which objections shall be resolved by the court uponsubmission of his report and the transcripts within 10 days from the termination of thehearing.

RULE 31 CONSOLIDATION OR SEVERANCE

1. CONSOLIDATION – the court may order a joint hearing or trial of any or allmatters in issue when actions involving a common question of law or fact arepending before the court.

2. BUT the court may order a separate trial of any claim, cross-claim, counterclaim,or third-party complaint, in furtherance of convenience or in the interest of justice.

RULE 32 TRIAL BY COMMISSIONER

Trial by commissioner:

1. Reference by consent of both parties

2. Reference by motion of one of the parties or motu proprio:

a. Trial requires examination of a long account of either side

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

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

RULE 33 DEMURRER TO EVIDENCE

Demurrer to evidence is made by the defendant after the plaintiff has completedthe presentation of his evidence where the defendant moves for dismissal on the groundthat upon the facts and the law the plaintiff has shown no right to relief.

1. If motion denied – defendant has the right to present evidence

2. If motion granted, but reversed on appeal – defendant deemed to have waived theright to present evidence.

RULE 34 JUDGMENT ON THE PLEADINGS

1. Judgment on the Pleadings is proper:

a. If answer fails to tender an issue; or

b. If answer otherwise admits the material allegations of the adverse party’spleading

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

2. However, the material facts alleged in the complaint shall always be proved inactions for:




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a. Declaration of nullity of marriage

b. Annulment of marriage

c. Legal separation

RULE 35 SUMMARY JUDGMENTS

Summary judgment:

1. Proper if no genuine issue as to any material fact (except as to damagesrecoverable) and if moving party is entitled to a judgment as a matter of law

2. Based not only on pleadings but also on affidavits, deposition, and admissions of the parties showing that, except as to the amount of damages, there is no genuineissue.

3. Motion shall be served at least 10 days before the time specified for the hearing.

4. May be asked for by a party seeking to recover upon a claim, counterclaim,cross-claim or to obtain a declaratory relief.

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

6. Judgment on the pleadings and summary judgment distinguished:

Judgment on the pleadings Summary judgment

Proper when there is no genuine issuebetween the parties

Proper even if there is an issue as to thedamages recoverable

Based exclusively on the pleadings withoutintroduction of evidence Based not only on pleadings but also onaffidavits, depositions and admissions of the parties

Available in any action, except the 3exceptions

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

Motions for summary judgment may be filed by the claimant or by the defendingparty. The defending party may file such motion, pursuant to Rule 35, §2“at any time”,as distinguished from §1 where the claimant may file the motion at any time after theanswer is filed.

RULE 36 JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF

1. The date of the finality of the judgment or final order shall be deemed to be thedate of its entry. The judgment or final order shall be entered by the clerk in the bookof entries of judgments if no appeal or motion for new trial or consideration is filedwithin 15 days

2. Several Judgments

In action against several defendants, the court may render judgment againstone or more of them, leaving the action to proceed against the others.

3. Separate judgments

Judgment rendered to dispose of one of the several claims for relief

presented in an action, made at any stage, upon a determination of the issuesmaterial to a particular claim and all counterclaims arising out of the transaction or occurrence which is the subject matter of the claim, which terminates such claim.Action shall proceed as to other claims

RULE 37 NEW TRIAL OR RECONSIDERATION

1. Motion for new trial or reconsideration filed within 15 days from notice of judgment and resolved by the court within 30 days from submission for resolution.




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2. Grounds: Motion for New Trial

a. Fraud, accident, mistake, or excusable negligence;

b. Newly discovered evidence Requisites:

i. Discovered after trial

ii. Could not have been discovered and produced at trial despite theexercise of reasonable diligence

iii. If presented, could probably alter the result of the action

3. Grounds: Motion for Reconsideration

a. Damages awarded are excessive

b. Evidence is insufficient to justify the decision or final order

c. Decision is contrary to law

4. Motion for new trial shall be in writing, and supported by affidavits of merit if theground is FAME; for newly-discovered evidence, it must be supported by affidavits of witnesses by whom such evidence is expected to be given, or by duly authenticateddocuments to be introduced.

Motion for reconsideration shall specifically point out the findings or conclusions of the judgment which are unsupported by evidence or contrary to law,with express reference to the testimonial or documentary evidence or the provisionsof law alleged to be contrary to such findings.

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

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

RULE 38 RELIEF FROM JUDGMENTS, ORDERS, OR OTHER PROCEEDINGS

1. Petition for relief from judgment filed within 60 days after learning of judgmentand not more than 6 months after such judgment

Must be supported by affidavit showing the FAME and the facts constituting thepetitioner’s good or substantial cause of action or defense

2. Party who has filed a timely motion for new trial cannot file a petition for relief after the former is denied. The two remedies are exclusive of one another.

3. Grounds:

a. Judgment or final order entered against a party by FAME; or b. Judgment or final order is rendered and party has been prevented by FAME from

taking an appeal

For fraud to be extrinsic, the losing party must never have had a chance tocontrovert the adverse party’s evidence.

Uniform procedure for relief from judgments of MTC and RTC

4. After petition is filed, court shall order adverse parties to answer within 15 daysfrom receipt. After answer is filed or expiration of period therefor, court shall hear thepetition.

5. If granted, judgment set aside and court shall proceed as if timely motion for new

trial has been granted; if granted against denial of appeal, court shall give duecourse to appeal.

RULE 39 EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS

1. Execution as a matter of right

On motion with notice, upon a judgment or order that disposes of the action or proceeding upon the expiration of the period to appeal therefrom if no appeal hasbeen duly perfected.




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For so long as there is a certificate of entry of judgment, execution may alreadybe issued by the court of origin or directed to do so by the CA.

2. Discretionary execution – pending period to appeal or during appeal; may issueonly upon good reasons to be stated in a special order after hearing.

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

b. Appellate court – after the TC has lost jurisdiction

Example:

P receives judgment: June 3

D receives judgment: June 1

D files notice of appeal: June 5

When does trial court lose jurisdiction? June 18

BUT, if P also files a notice of appeal on June 10, trial court loses jurisdiction onthat date.

Execution with respect to appealed cases- there is no need to await remand of the records.

Execution with respect to consequential and exemplary damages should bepostponed until such time as the merits of the case have been finally determinedin the regular appeal, as the amounts remain uncertain and indefinite pendingresolution.

3. a. Motion for execution of final and executory judgment should be served on

adverse party and set for hearing;b. In case of appeal, motion is filed with court of origin supported by certified true

copies of final judgment of appellate court.

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

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

a. Actions for injunction

b. Receivership

c. Accounting

d. Support

e. Judgments declared immediately executory

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

6. Execution in case of party’s death:

a. Death of judgment obligee - application of his executor or administrator or successor-in-interest

b. Death of judgment obligor -i. Against his executor, etc. if the judgment be for recovery of real or

personal property or the enforcement of a lien thereon.

ii. If death after execution is actually levied upon his property, it may besold for satisfaction of the obligation.

If the judgment obligor dies after the entry but before levy, execution will issue if itbe for the recovery of real or personal property. However, if judgment is for a




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sum of money, and the judgment obligor dies before levy, such judgment cannotbe enforced by writ of execution but must be filed as a claim against his estate.

7. Writ of execution:

a. Shall issue in the name of the Republic of the Phils from court which granted themotion

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

c. Require the sheriff or other proper officer to whom it is directed to enforce the writaccording to its terms

8. Manner of executing writ:

a. If judgment against property of the judgment obligor – out of real or personalproperty with interest

b. If against his real or personal property in the hands of the personal

representatives, heirs, devisees, legatees, tenants, or trustees of the judgmentobligor – out of that property, with interest

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

d. If for delivery of possession of property – deliver possession of the same to theparty entitled to it, describing it, and to satisfy any costs, damages, rents, or profits covered by the judgment out of the personal property of the personagainst whom it was rendered, and out of real property if sufficient personalproperty cannot be found.

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

principal obligation. Judgment obligor is given option to choose which property may be levied on

sufficient to satisfy the judgment.

9. Property exempt from execution

a. Family home as provided by law, homestead in which he resides, and landnecessarily used in connection therewith;

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

c. 3 horses, cows, or carabaos or other beasts of burden used in his ordinaryoccupation;

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

e. Household furniture and utensils necessary for housekeeping not exceedingP3,000;

f. Professional libraries and equipment of judges, lawyers, physicians, etc. notexceeding P300,000;

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

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

i. Lettered gravestones;

j. Money, benefits, annuities accruing or in any manner growing out of any life

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

l. Properties especially exempted by law.

Exemption does not apply if execution upon a judgment for its purchase price or for foreclosure of mortgage.

Right of Exemption is a personal right granted to the judgment creditor. Thesheriff may thus not claim it.




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10. Third party claims:

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

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

c. Sheriff not liable for damages if bond is filed;

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

e. 3rd Party claimant may vindicate his claim to property levied in a separate action

because intervention is no longer allowed since judgment already executory; inpreliminary attachment and replevin, 3rd party claimant may vindicate his claim tothe property by intervention since the action is still pending.

11. Who may redeem real property sold:

a. Judgment obligor or his successor in interest in the whole or any part of the

property;

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

12. Judgment obligor has one year from the date of the registration of the certificate of sale to redeem property sold by paying the purchaser the amount of his purchase,with 1% per month interest plus any assessments or taxes which he may have paidthereon after purchase with interest on said amount at 1% per month.

Redemptioners have one year to redeem from the date of registration of thecertificate of sale. They may also redeem beyond one-year period within 60 daysafter the last redemption, with 2 % interest on the sum to be paid on the last

redemption. The judgment obligor’s right to redeem within 60 days from lastredemption is limited to the one-year period, beyond which he can no longer redeem.

Purchaser or redemptioner not entitled to receive rents and income of propertysold inasmuch as these belong to the judgment obligor until the expiration of theperiod of redemption.

13. Effect of judgment or final orders

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

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

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

14. Effect of foreign judgment

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

b. If against a person, judgment is presumptive evidence of a right as between theparties and their successors in interest;

15. When foreign judgment may be repelled

a. Evidence of want of jurisdiction

b. Want of notice to party

c. Collusion

d. Fraud

e. Clear mistake of law.

16. Requisites for res judicata

a. Final former judgment

b. Judgment is on the merits




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c. Rendered by a court of competent jurisdiction

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

17. When quashal of writ of execution proper

a. Improperly issued

b. Defective in substance

c. Issued against the wrong party

d. Judgment was already satisfied

e. Issued without authority

f. Change of the situation of the parties renders execution inequitable

g. Controversy was never validly submitted to the court

h. Writ varies the terms of the judgment

i. Writ sought to be enforced against property exempt from execution

j. Ambiguity in the terms of the judgment

18. SPECIAL JUDGMENT - requires the performance of any other act than the paymentof money or the sale or delivery of real or personal property.




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19. Remedies against executory judgments or orders:

a. Petition for relief

b. Direct attackc. Collateral attack - judgment is null on its face or court had no jurisdiction

20. When court may order execution even before an executory judgment and pending anappeal

a. Lapse of time would make the ultimate judgment ineffective;

b. Appeal is clearly dilatory;

c. Judgment is for support and the beneficiary is in need thereof;

d. Articles subject of the case are perishable;

e. Defendants are exhausting their income and have no other property aside from the proceeds from the subdivision of lots subject of the

action;f. Movants were in extreme need of the premises subject of the suit

and the bond to answer for damages in case of reversal on appeal (supersedeasbond) was posted by them;

g. Judgment debtor is in imminent danger of insolvency;

h. Prevailing party is of advanced age and in a precarious state of health and the right in the judgment is non-transmissible being for support;

i. Prevailing party posts sufficient bond to answer for damages incase of reversal of judgment

But in most cases, the mere filing of a bond is not sufficient justification for discretionary execution.

21. Order granting writ of execution ONLY appealable when:

a. Order varies terms of the judgment

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

22. Garnishment – act of appropriation by the sheriff if the property involved is money,stocks, or other incorporeal property in the hands of third persons; merely sets apartsuch funds but does not constitute the creditor the owner of the garnished property.

23. Persons disqualified from participating in the execution sale:

a. Officer conducting the execution sale or his deputy;

b. Guardian with respect to the property under his guardianship;

c. Agents, the property entrusted to them, unless with principal’s consent;d. Executors and administrators, the property of the estate under administration;

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

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

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

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

RULE 40 APPEAL FROM MTC TO RTC

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




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2. Record on appeal is filed within 30 days and required only for specialproceedings

3. Appellate docket fees paid to clerk of court of MTC - payment not a

condition precedent for perfection of appeal but must nonetheless be paid within theperiod for taking appeal;

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

a. If affirmed because the MTC has no jurisdiction, RTC will try case on the meritsas if it has original jurisdiction;

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

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

jurisdiction.

RULE 41 APPEAL FROM THE RTC

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

2. No appeal may be taken from:

a. Order denying a motion for new trial or recon;

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

c. Interlocutory order;

d. Order disallowing or dismissing an appeal;

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

f. Order of execution;

Not appealable because execution is only the result of the judgment. If order of execution is not in accord with the dispositive portion, remedy is certiorariunder Rule 65.

g. Judgment or final order for or against one or more of several parties or inseparate claims, while the main case is pending, unless the court allows anappeal therefrom;

h. Order dismissing an action without prejudice;

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

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

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

5. Contents of Notice on appeal:

a. Names of the parties to the appeal;

b. Specify judgment or final order or part thereof appealed from;

c. Court to which the appeal is being taken;

d. Material dates showing timeliness of appeal;

6. Contents of Record on appeal:

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

b. Include judgment or final order from which appeal taken;




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

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

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

7. Appeal from decision of RTC in appellate jurisdiction is by petition for review filedwith CA.

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

9. Notice of Appeal and Record of Appeal distinguished:

Notice of Appeal Record of Appeal

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

Deemed perfected as to appellant withrespect to the subject matter upon theapproval of the record on appeal filed in

due time

Court loses jurisdiction over case uponperfection of the appeals filed in due timeand expiration of time to appeal of other parties

Court loses jurisdiction only over subjectmatter upon approval of records on appealfiled in due time and expiration of the timeto appeal of other parties.

10. Failure to pay appellate docket fees within the reglamentary period is ground for dismissal of appeal.

11. General Rule: An ordinary appeal stays the execution of a judgment

Exceptions: a. Decisions of quasi-judicial body appealed to the CA

b. Executions pending appeal

c. Cases covered by Summary Procedure

RULE 42 PETITION FOR REVIEW FROM THE RTC TO THE CA

1. Form and contents of petition for review (from RTC to CA)

In 7 legible copies:

a. Full names of parties to case, without impleading the lower courts or judgesthereof;

b. Indicate specific material dates showing it was filed on time;

c. Concise statement of matters involved, issues raised, specification of errors of

fact or law, or both allegedly committed by the RTC, and the reasons or arguments relied upon for the allowance of the appeal;

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

e. Certification under oath of non-forum shopping.

2. Contents of comment

In 7 legible copies, accompanied by certified true copies of material portions of record and other supporting papers:

a. State whether or not appellee accepts the statement of matters involved in thepetition;

b. Point out such insufficiencies or inaccuracies as he believes exists in petitioner’sstatement of matters;

c. State reasons why petition should not be give due course.

3. CA may:

a. Require respondent to file a comment; or

b. Dismiss the petition if it finds:




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i. Patently without merit

ii. Prosecuted manifestly for delay

iii. Questions raised are to insubstantial to require consideration RULE 43 APPEALS FROM THE CTA AND QUASI-JUDICIAL AGENCIES TO THE CA

1. Appeals from judgments and final orders of the Court of Tax Appeals and quasi- judicial agencies in exercise of quasi-judicial functions (unless otherwise provided bylaw and the Labor Code [NLRC decisions]) shall be by petition for review to the CA,to be taken within 15 days from notice of award or judgment or from notice of thedenial of the motion for reconsideration. Only 1 Motion for reconsideration allowed

2. Quasi-judicial agencies covered:

a. Civil Service Commission;

b. Central Board of Assessment Appeals;

c. Securities and Exchange Commission;

d. Office of the President;

e. Land Registration Authority;

f. Social Security Commission;

g. Civil Aeronautics Board;

h. Bureau of Patents, Trademarks and Technology Transfer;

i. National Electrification Administration;

j. Energy Regulatory Board;

k. National Telecommunications Commission;

l. Department of Agrarian Reform under RA No. 6657;m. GSIS;

n. Employees Compensation Commission;

o. Agricultural Inventions Board;

p. Insurance Commission;

q. Construction Industry Arbitration Commission;

r. Voluntary arbitrators

St. Martin’s Funeral Home vs. NLRC - DECISIONS OF THE NLRC – ORIGINALACTION FOR CERTIORARI UNDER RULE 65 FILED WITH THE CA, NOT SC

Fabian vs. Desierto – Appeals from decisions of the Office of the Ombudsman inadministrative disciplinary cases should be taken to the CA under Rule 43.

∅ According to A.M. no. 99-2-02-SC ( promulgated February 9, 1999), anyappeal by way of petition for review from a decision, final resolution or order of the Ombudsman, or special civil action relative to such decision, filed withthe SC after March 15, 1999 shall no longer be referred to the CA, but shallbe dismissed.

RULE 45 APPEAL BY CERTIORARI TO THE SUPREME COURT

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

Question of Fact – exists when doubt or difference arises as to the truth or the

falsehood of alleged facts

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

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

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

c. There is grave abuse of discretion;




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d. The judgment is based on misapprehension of facts;

e. Findings of fact of trial court and CA are conflicting;

f. The CA, in making its findings, went beyond the issues of the case and the sameis contrary to the admissions made;

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

3. Certiorari as mode of appeal:

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

4. Rule 45 and Rule 65 distinguished:

Rule 45 Rule 65

No need for Motion for Recon Motion for Recon generally required

Relates to final judgments Applies to interlocutory orders rendered inexcess/lack of jurisdiction

An appeal Not an appeal in the strict sense

15 days from notice of judgment 60 days from notice of judgment

Kho vs. Camacho: An RTC judge has no right to disapprove a notice of appealon the ground that the issues raised involve a pure question of law, and that themode of appeal is erroneous. That is the prerogative of the CA, not the RTC

judge. A notice of appeal need not be approved by the judge, unlike a record onappeal.

RULE 47 ANNULMENT OF JUDGMENTS OR FINAL ORDERS AND RESOLUTIONS

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

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

b. Lack of jurisdiction.

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

3. Periods:

a. For extrinsic fraud – four years from discovery;

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

4. Effects of judgment of annulment – gives the CA authority to order the trial court onmotion to try the case if the ground for annulment is extrinsic fraud, but not if it is lackof jurisdiction.

Prescriptive period for refiling the original action is suspended unless theextrinsic fraud is attributable to the plaintiff in the original action.

RULE 50 DISMISSAL OF APPEAL

1. Grounds for dismissal of appeal by the CA:

a. Failure of the record on appeal to show on its face that the appeal was taken

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

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

d. Unauthorized alterations, omissions, or additions in the approved record onappeal;

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




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f. Absence of specific assignment of errors in appellants brief or page references tothe record;

g. Failure of the appellant to take necessary steps for the completion or correction

of the record within the time limited by the order;

h. Failure of appellant to appear at the preliminary conference or to comply withorders, circulars, or directives of the court without justifiable cause

i. Judgment or order appealed from is not appealable.

RULE 51 JUDGMENT

1. Memorandum decisions are permitted in the CA.

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

3. Date when judgment or final resolution becomes executory shall bedeemed as date of entry.

RULE 56 PROCEDURE IN THE SUPREME COURT

1. Original cases cognizable – exclusive list:

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

b. Disciplinary proceedings against judges and attorneys;

c. Cases affecting ambassadors, other public ministers, and consuls.

2. An appeal to SC can only be taken by petition for review on certiorari, except incriminal cases where the penalty imposed is death, reclusion perpetua, or lifeimprisonment.

3. Grounds for dismissal of appeal by SC

a. Failure to take appeal within the reglementary period;

b. Lack of merit in the petition;

c. Failure to pay the requisite docket fee and other lawful fees or to make depositfor costs;

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

e. Failure to comply with any circular, directive or order of the SC without justifiablecause;

f. Error in choice or mode of appeal

g. Case is not appealable to the SC.

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

5. General Rule: Appeal to SC by notice of appeal shall be dismissed.

Exception: In criminal cases where the penalty imposed is life imprisonment, or whena lesser penalty is imposed but involving offenses committed on the sameoccasion or arising out of the same occurrence which gave rise to themore serious offense for which the penalty of death or life imprisonment isimposed (Section 3, Rule 122)

6. Appeal by certiorari from RTC to SC submitting issues of fact may bereferred to the CA for decision or appropriate action, without prejudice toconsiderations on whether or not to give due course to the appeal as provided inRule 45.

PROVISIONAL REMEDIES

Provisional remedies (ancillary/auxiliary)




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Writs and processes available during the pendency of the action which may beresorted to by a litigant to preserve and protect rights and interests therein pendingrendition, and for the purpose of ultimately affecting a final judgment in the case.

PROVISIONAL - constituting temporary measures availed of during the pendency of the action.

ANCILLIARY - incidents in and dependent on the result of the main action.

RULE 57 PRELIMINARY ATTACHMENT

1. Preliminary Attachment

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

b. May be resorted to even if the personal property is in the custody of a thirdperson;

c. Extends to all kinds of property, real or personal or incorporeal;d. To recover possession of personal property unjustly detained, presupposes that

the same is being concealed, removed, or disposed of to prevent its being foundor taken by the applicant;

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

2. Grounds

a. Recovery of specified amount of money and damages, except moral or

exemplary, where party is about to depart from the Phils with intent to defraudcreditors;

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

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

d. Action against party guilty of fraud in contracting the debt or incurring theobligation or in the performance thereof;

e. Action against party who is concealing or disposing of property, or is about to doso, with intent to defraud creditors;

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

3. PRINCIPLE OF PRIOR OR CONTEMPORARY JURISDICTION:

Enforcement of writ of preliminary attachment must be preceded by or simultaneously accompanied by service of summons, copy of complaint, applicationand affidavits for the attachment and the bond upon the adverse party; BUT therequirement of prior or contemporaneous service of summons shall not apply wherethe summons could not be served despite diligent efforts, or the defendant is aresident of the Phils temporarily absent therefrom, or the defendant is a non-residentof the Phils or the action is in rem or quasi in rem.

4. When preliminary attachment is discharged

a. Debtor posts a counterbond or makes requisite cash deposit- if attachment to be discharged is with respect to particular property, counterbond or

deposit shall be equal to the value of the property as determined by the court; inall other cases, amount of counterbond should be equal to the amount fixed inthe order of attachment.

CASH DEPOSIT OR COUNTERBOND SHALL SECURE THE PAYMENT OFANY JUDGMENT THAT ATTACHING PARTY MAY RECOVER

b. Applicant’s bond is insufficient or sureties fail to justify;

c. Attachment was improperly or irregularly issued;




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d. Property attached is exempt from execution;

e. Judgment is rendered against attaching party;

f. Attachment is excessive – discharge is with respect to the excess5. Application for discharge may only be filed with the court where the action is pending

and may be filed even before enforcement of the writ so long as there has been anorder of attachment.

6. When to apply for damages against the attachment bond

a. Before trial;

b. Before appeal perfected;

c. Before judgment becomes executory;

d. In the appellate court for damages pending appeal, before judgment becomesexecutory.

7. When judgment becomes executory, sureties on counterbond to lift attachmentare charged and can be held liable for the amount of judgment and costs upon noticeand summary hearing. There is no need to first execute judgment against the

judgment obligor before proceeding against sureties.

8. Claims for damages cannot be subject of independent action except :

a. When principal case is dismissed by the trial court for lack of jurisdiction without giving the claiming party opportunity to prove claim for damages;

b. When damages sustained by a third person not a party to theaction.

RULE 58 PRELIMINARY INJUNCTION

1. Preliminary injunction distinguished from Prohibition

Preliminary Injunction Prohibition

Generally directed against party to theaction but may be against any person

Directed against a court, tribunal, or personexercising judicial powers

Does NOT involve the jurisdiction of thecourt

May be on the ground that the courtagainst whom the writ is sought actedwithout or in excess of jurisdiction;

May be main action itself or just aprovisional remedy in the main action

Always a main action

2. Grounds for Preliminary Injunction

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

b. The commission of acts or non-performance during pendency of litigation wouldprobably work injustice to the plaintiff;

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

3. Injunction may be refused or dissolved when:

a. Complaint is insufficient;

b. Defendant is permitted to post a counterbond it appearing that he would sustaingreat and irreparable injury if injunction granted or continued while plaintiff can befully compensated;

c. Plaintiff’s bond is insufficient or defective

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

5. PRINCIPLE OF PRIOR OR CONTEMPORARY JURISDICTION:




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When an application for a writ of preliminary injunction or a temporary restrainingorder is included in a complaint or any initiatory pleading, the case, if filed in amultiple-sala court, shall be raffled only after NOTICE to and IN THE

PRESENCE of the adverse party or the person to be enjoined. In any event,such notice shall be preceded, or contemporaneously accompanied by service of summons, together with a copy of the complaint and the applicant’s affidavit andbond, upon the adverse party in the Phils; BUT the requirement of prior or contemporaneous service of summons shall NOT apply where the summonscould not be served despite diligent efforts, or the defendant is a resident of thePhils temporarily absent therefrom, or the defendant is a non-resident of the Phils

Difference with principle in preliminary attachment – In attachment, the principleapplies only in the implementation of the writ, while in applications for injunctionor TRO, this principle applies before the raffle and issuance of the writs or TRO.

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

SC.7. TRO can be issued ex parte only if matter of grave urgency and plaintiff will suffer

grave injustice and irreparable injury. Good for 72 hours from issuance, within which judge must comply with service of summons, complaint, affidavit and bond, and holdsummary hearing to determine whether TRO should be extended for 20 days. In nocase can TRO be longer than 20 days including 72 hours.

8. No TRO, preliminary injunction or preliminary mandatory injunction may issueagainst the government in cases involving implementation of governmentinfrastructure projects. (Garcia vs. Burgos, reiterated in Administrative Circular no. 7-99, promulgated June 25,1999)

RULE 59 RECEIVERSHIP

1. When receiver may be appointed:

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

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

c. After judgment, to preserve the property during the pendency of the appeal, or todispose of it, or to aid in execution when execution has been returned unsatisfiedor the judgment debtor refuses to apply his property to satisfy judgment, or tocarry out the judgment.

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

2. When receivership may be denied/lifted

a. Appointment sought is without sufficient cause;

b. Adverse party files sufficient bond for damages;

c. Applicant or receiver’s bond is insufficient.

3. Both the applicant for the receivership and the receiver appointed must file separatebonds.

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

RULE 60 REPLEVIN

1. Replevin




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

b. Can be sought only where the defendant is in the actual or constructive

possession of the personal property involved.

c. Extends only to personal property capable of manual delivery;

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

e. Cannot be availed of if property is in custodia legis, as where is it under

attachment, or was seized under a search warrant or distrained for taxassessment.

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

a. He seasonably posts redelivery bond

b. Plaintiff’s bond is insufficient or defective

c. Property is not delivered to plaintiff for any reason.

Replevin bond is only intended to indemnify defendant against any loss that hemay suffer by being compelled to surrender the possession of the disputedproperty pending trial of the action. Thus, surety not liable for payment of

judgment for damages rendered against plaintiff on a counterclaim for punitivedamages for fraudulent or wrongful acts committed by the plaintiffs which areunconnected with the defendant’s deprivation of possession by the plaintiff.

SPECIAL CIVIL ACTIONS

1. Types of Special Civil Actions

a. Mandamus

b. Interpleader

c. Certiorari

d. Contempt

e. Prohibition

f. Eminent Domain

g. Declaratory Relief

h. Quo warranto

i. Partition of real estate

j. Foreclosure of mortgage

k. Unlawful detainer

l. Forcible Entry

RULE 62 INTERPLEADER

1. Interpleader

a. Original action

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

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

RULE 63 DECLARATORY RELIEF AND SIMILAR REMEDIES

1. Requisites for action for declaratory relief:

a. Subject matter of controversy is a deed, will, contract, or other written instrument,statute, executive order, or regulation, or ordinance;




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Court may refuse to adjudicate where decision would not terminate theuncertainty or controversy which gave rise to the action OR where thedeclaration is not necessary and proper at the time;

b. Terms and validity thereof are doubtful and require judicial construction;

c. No breach of the document, otherwise ordinary civil action is the remedy;

Must be before breach is committed, as in the case where the petitioner paidunder protest the fees imposed by an ordinance. Declaratory relief stillproper because the applicability of the ordinance to future transactions stillremains to be resolved, although the matter could be threshed out in anordinary suit for the recovery of the fees paid.

d. There is an actual justiciable controversy between persons whose interests areadverse;

e. The same is ripe for adjudication;

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

RULE 64 REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF THE COMMISSION ON ELECTIONS AND THE COMMISSION ON AUDIT

For petition for review of judgments and final orders of the COMELEC and COA –period to file is 30 days to be counted from notice of the judgment or final order or resolution sought to be reviewed and not from the receipt of the denial of the Motionfor Reconsideration; the period to file petition is merely interrupted by the filing of theMotion for Reconsideration and continues to run again for the remaining periodwhich shall not be less than 5 days from notice of denial.

RULE 65 CERTIORARI, PROHIBITION AND MANDAMUS

1. Certiorari

a. Purpose – to correct an act performed by respondent;

b. Act sought to be controlled – discretionary acts;

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

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

e. Need merely be filed seasonably (within 60 days), without undue delay andbefore the act, order, or proceedings, sought to be reviewed or set aside has

become fait accompli such that any reversal thereof shall have becomeacademic;

f. Unless a writ of preliminary injunction shall have issued, does NOT stay thechallenged order;

g. Parties are the aggrieved parties against the lower court or quasi-judicial agencyand the prevailing parties;

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

i. Higher court exercises original jurisdiction under its power of control andsupervision over the orders of lower courts.

If CA reverses the judge, the latter may not go the SC via a petition for

certiorari. He is merely a nominal party, and he should not seek the reversalof a decision that is unfavorable to the action taken by him.

Professional Regulation Commission vs. CA – It is well settled that theremedies of ordinary appeal and certiorari are mutually exclusive, notalternative or successive. However, it has also been held that after a

judgment has been rendered and an appeal therefrom had been perfected, apetition for certiorari relating to certain incidents therein may prosper wherethe appeal does not appear to be a plain, speedy and adequate remedy. In




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this case, the SC noted that, while petitioners tried to justify their recourse toboth an appeal and to a petition for certiorari by claiming that their appealwould not constitute a plain, speedy and adequate remedy, they did not see

fit to withdraw or abandon said appeal after filing the petition. Thus, both theCA and SC are reviewing the same decision of the RTC at the same time.Such a situation would lead to absurdity and confusion in the ultimatedisposition of the case.




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2. Prohibition

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

b. Act sought to be controlled – discretionary and ministerial acts;c. Respondent – one who exercises judicial or non-judicial functions.

3. Mandamus

a. Purpose – to compel the performance of the act desired;

b. Act sought to be controlled – ministerial act;

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

4. When SC allows the writ of certiorari even when appeal is available andproper:

a. Appeal does not constitute a speedy and adequate remedy;

b. Orders were issued either in excess of or without jurisdiction;

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

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

e. Where the order is a patent nullity;

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

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

a. Order is a patent nullity;

b. Questions raised in the certiorari proceeding were duly raised and passed uponby the lower court, or are the same as those raised and passed upon in the lower

court;

c. Urgent necessity for the resolution of the question and any further delay wouldprejudice the interests of the government;

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

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

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

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

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

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

6. The period for filing any of the 3 actions is not later than 60 days from notice of judgment, order, or resolution sought to be reviewed.

In case a motion for reconsideration or new trial is timely filed, whether suchmotion is required or not, the 60-day period shall be counted from notice of thedenial of said motion. (SC Circular 56-2000, effective September 1, 2000)

No extension of time to file the petition shall be granted except for compellingreason and in no case exceeding 15 days. (SC Circular 56-2000)

RULE 66 QUO WARRANTO

1. Quo Warranto distinguished from Election Contest:

Quo Warranto Election Contest

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

Challenge rights of a person to hold officeon the ground of irregularities in theconduct of the election

If successful, respondent is ousted butpetitioner shall not automatically assumethe office vacated

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




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RULE 67 EXPROPRIATION

1. In expropriation, the complaint must be verified.

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

3. The final order of expropriation is appealable, but the lower court maydetermine the just compensation to be paid.

The power of eminent domain is exercised by the filing of a complaint which shall join as defendants all persons owning or claiming to own, or occupying, any partyof the expropriated land or interest therein. If a known owner is not joined asdefendant, he is entitled to intervene in the proceedings; or if he is joined but notserved with process and the proceeding is already closed before he came toknow of the condemnation, he may maintain an independent suit for damages.

RULE 70 FORCIBLE ENTRY AND UNLAWFUL DETAINER

1. Forcible entry distinguished from Unlawful detainer

Forcible entry Unlawful detainer

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

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

No requirement of previous demand for defendant to vacate premises

Demand is jurisdictional

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

Plaintiff need not have been in prior physical possession

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

1-year period from date of last demand

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

a. When purpose of action is to terminate lease because of expiry of term and notbecause of failure to pay rental or to comply with terms of lease contract;

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

c. When defendant is not a tenant but a pure intruder

In all other cases, there must be a demand:

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

ii. To vacate by written notice on the person in the premises or by postingsuch notice on the premises if no person is found thereon and this is acondition precedent to the filing of the case; ORAL demand is notpermitted.

iii. If demand is in the alternative (pay OR vacate), this is NOT the demandcontemplated by the Rules.

3. When the defendant raises the issue of ownership in his pleadings and the questionof possession cannot be resolved without deciding the issue of ownership, the latter issue shall be resolved only to determine the issue of possession.

A forcible entry/unlawful detainer action has an entirely different subject matter from that of an action for reconveyance. The former involves materialpossession, and the latter, ownership. Thus, the pendency of an action for reconveyance does not divest the MTC of its jurisdiction over an action for FE/UD, nor will it preclude execution of judgment in the ejectment case wherethe only issue involved is material possession.

RULE 71 CONTEMPT




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1. Criminal contempt

a. Purpose is to vindicate public authority;

b. Conduct directed against the dignity or authority of the court.2. Civil Contempt

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

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

3. Direct Contempt (contempt in facie curiae)

a. Committed in the presence of or so near a court or judge;

b. Punished summarily without hearing;

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

4. Indirect Contempt

a. Not committed in the presence of the court;

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

civil procedure 2009

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