PHILIPPINE CHRISTIAN UNIVERSITYCOLLEGE OF LAW

FREQUENTLY ASKED TOPICS IN CIVIL PROCEDURE IN ORDER OF FREQUENCY

(BASES ON QUICK REVIEWER)(13 TIMES)

A. Appeal

a. Three modes of appeal1. Ordinary Appeal (Rule 40 and 41)

a. Notice of Appealb. Record on Appeal

2. Petition for Review (Rule 42)3. Appeal by Certiorari (Rule 45)

b. When is appeal a matter of right1. First Appeal is a matter of rightEXCEPT: In civil cases, first appeal is not a matter of right if filed with the Supreme Court.2. In criminal cases, when the RTC imposes death penalty, the Court of Appeals shall automatically review the judgment (Section 3(d) Rule 122). If the Court of Appeals finds that death penalty should be imposed, the CA shall not render judgment but certify and elevate the case to the Supreme Court for review (Section 13(a) Rule 124).

(9 TIMES)B. Forcible Entry and Unlawful Detainer

FORCIBLE ENTRY UNLAWFUL DETAINERPossession of land is unlawful from the beginning due to force,

Possession of defendant is inceptively lawful but becomes

intimidation, threat, strategy or stealth

illegal by reason of termination of right of possession

No requirement of previous demand for defendant to vacate premises

Demand is jurisdictional

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

Plaintiff need not have been in prior physical possession

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

1-year period from date of last demand

THREE KINDS OF ACTION FOR RECOVERY OF POSSESSION

ACCION INTERDICTAL

ACCION PUBLICIANA ACCION REIVINDICATORIA

Summary action for the recovery of physical possession where the dispossession has not lasted for more than 1 year

A plenary action for the recovery of the real right of possession when the dispossession has lasted for more than 1 year

An action for the recovery of ownership, which necessarily includes the recovery of possession

MTC only RTC if value of property exceeds P20,000.00, or P50,000.00 in Metro Manila

RTC if value of property exceeds P20,000.00, or P50,000.00 in Metro Manila

(8 TIMES)C. Writ of Certiorari- It is a writ issued by a superior court to an inferior

court, board or officer exercising judicial or quasi-judicial functions whereby the record of a particular case is ordered to be elevated for review and correction in matters of law.

D. Petition for Prohibition- Legal remedy available to prevent inferior courts, or other tribunals, corporations, boards, officers, or persons, from

usurping or exercising a jurisdiction with which they have not been vested by law, to prevent the unlawful and oppressive exercise of legal authority and to provide for a fair and orderly administration of justice.

E. Petition for Mandamus- Command issuing from a court of law of competent jurisdiction, in the name of the state or sovereign, directed to some inferior court, tribunal, or board, or to some corporation or person, requiring the performance of a particular duty therein specified, which duty results from the official station of the party to whom the writ is directed, or from operation of law.

(8 TIMES)PROVISIONAL REMEDIES

F. ATTACHMENT:WHEN APPLICATION FOR ATTACHMENT MAY BE MADE:1. At the commencement of the action; or2. At any time before entry of judgment.

TWO-FOLD PURPOSE OF ATTACHMENT:1 .To seize the property of the debtor in advance of final judgment and to hold it for purposes of satisfying the said judgment;2. To enable the court to acquire jurisdiction over the action by the actual or constructive seizure of the property in those instances where personal service of summons on the creditor cannot be effected.

HOW TO PREVENT THE ATTACHMENT1.BY DEPOSITING with the court from which the writ was issued an amount equal to the value of the bond fixed by the court in the order of attachment or an amount equal to the value of the property to be attached, exclusive of costs; or2.BY GIVING A COUNTERBOND executed to the applicant, in amount equal to the bond posted by the latter to secure the attachment or in an amount equal to the value of the property to be attached exclusive of costs (Riano, p.55&)REMEDY OF THE THIRD PERSON: 1. File a terceria or third party claim (similar to Sec. 16, Rule 39)2. File independent action to recover his property; or3. File a motion for intervention (This is available only before a judgment is rendered, hence, and not allowed under Rule 39

(6 TIMES)

G. Motion to Dismiss

GENERAL RULE: A court may not motu propio dismiss a case unless a motion to that effect is filed by a party thereto. EXCEPTIONS: 1. Those cases where the court may dismiss a case motu proprio (Sec. 1, Rule 9); 2. Upon the plaintiff’s own motion (Sec. 2, Rule 17); or 3. Rule on Summary Procedure (Section 4, 1991 Revised Rule on Summary Procedure).

a. Grounds1. No jurisdiction over the person of the defending party; 2. No jurisdiction over the subject matter of the calm; 3. Improper venue; 4. No legal capacity to sue; 5. Litis pendentia; 6. Res judicata; 7. Prescription; 8. Failure to state a cause of action; 9. Claim or demand has been paid, waived, abandoned, or otherwise extinguished; 10. Claim is unenforceable under the Statute of Frauds; and 11. Non-compliance with a condition precedent for filing a claim.

b. Effects of DismissalGENERAL RULE: The action or claim may be re-filed. EXCEPTIONS: The action cannot be re-filed if it was dismissed on any of these grounds: 1. Res judicata; 2. Prescription; 3. Extinguishment of the claim or demand; and 4. Unenforceability under the Statue of Frauds. In these instances, the remedy of the plaintiff is APPEAL.

H. Dismissal of Actions

a. Upon Notice by the Plaintiff

GENERAL RULE: Such dismissal is WITHOUT PREJUDICE.EXCEPTIONS:1.Where the notice of dismissal so provides; or2. Where the plaintiff has previously dismissed the same case in a court of competent jurisdiction. (TWO-DISMISSAL RULE)

b. Upon Motion of the PlaintiffThe dismissal of the complaint is subject to the DISCRETION of the court and upon such terms and conditions as may be just.

Dismissal under this rule is WITHOUT PREJUDICE, ( the complaint can be re-filed) EXCEPT:1. When otherwise stated in the motion to dismiss; or2. When stated to be with prejudice in the order of the court.

(6 TIMES)A. Demurrer to Evidence

NATURE: There is only a one-sided trial, i.e., it is only the plaintiff who has presented evidence.PURPOSE: To discourage prolonged litigations.

a. If motion denied- Movant shall have the right to present his evidence.Denial is INTERLOCUTORY. Sec. 1, Rule 36 (That judgment should state clearly and distinctly the facts and the law on which it is based), will not apply. The denial is NOT appealable.

b. If motion granted but reversed on appeal- Movant is deemed to have waived his right to present evidence. The decision of the appellate court will be based only on the evidence of the plaintiff as the defendant loses his right to have the case remanded for reception of his evidence

Order of the court is an ADJUDUCATION ON THE MERITS. Hence, the requirement in Sec. 1, Rule 36 should be complied with.

c. Judgment on Demurrer to Evidence- A judgment rendered by the court dismissing a case upon motion of the defendant, made after plaintiff has rested his case, on the ground that upon the facts

presented by the plaintiff and the law on the matter, plaintiff has not shown any right to relief.

(5TIMES)I. Default

a. Effect of Order of DefaultWhile the party in default cannot take part in the trial, he is nonetheless entitled to notice of subsequent proceedings.He may still be called on as a witness, in behalf of the non-defaulting defendants

b. Remedies of a party declared in default1. Before the rendition of judgment;

(a) file a motion to dismiss under oath to set aside the order of default on the grounds of fraud, accident, mistake or excusable negligence and that he has a meritorious defense (Sec. 3[b] of Rule 9 ); and if reconsideration is denied, he may file the special civil action of certiorari for grave abuse of discretion tantamount to lack or excess of jurisdiction ( Sec. 1 of Rule 65 ); or(b) file a petition for certiorari if he has been illegally declared in default e.g. during the pendency of his motion to dismiss or before the expiration of the time to answer. (Matute v. CA, 26 SCRA 768; Acosta-Ofalia v. Sundial, 85 SCRA 412 ).

2. After judgment but before its finality; (a.) file a motion for new trial on the grounds of fraud, accident, mistake, excusable negligence or;(b.) file a motion for reconsideration on the ground of excessive damages, insufficient evidence or the decision or final order being contrary to law ( Sec. 2 of Rule 37); and thereafter, if the motion is denied, appeal is available under Rules 40 or 41, whichever is applicable.

3. After finality of judgmentThere are three ways to assail the judgment, which are:(a) a petition for relied under Rule 38 on the grounds of fraud, accident, mistake or excusable negligence; (b) annulment of judgment under Rule 47 for extrinsic fraud or lack of jurisdiction;

(c) certiorari if the judgment is void on its face or by the

judicial record.

VENUE OF PERSONAL ACTIONS (4 TIMES)JOINDER AND MISJOINDER OF CAUSES OF ACTION (4TIMES)EXECUTION BY MOTION OR BY INEDEPENDENT ACTION (4 TIMES)EXECUTION, SATISFACTION, AND EFFECT OF JUDGMENTS (4 TIMES)WHEN PETITION FOR CERTIORARI, PROHIBITION AND MANDAMUS IS PROPER (4TIMES)INTERVENTION (3TIMES)

(3TIMES)J. REPLEVIN

Replevin is the provisional remedy seeking for the possession of the property prior to the determination of the main action for replevin.Procedure for the application for Replevin (Requisites):1. File an APPLICATION at the commencement of the action or at any time before defendant answers.2. Applicant must give a BOND, executed to the adverse party, which shall be double the value of the property as stated in the affidavit.