various - tuazon civpro reviewer (salvador)

R. G. Tuazon | Civil Procedure CODAL + CLASS NOTES | Atty. Tranquil Salvador | SY 2008-09, 2nd sem | 1

CRIM PRO

JURISDICTION

BP 129/ amended by RA 7691

“Not capable of pecuniary estimation”

Ex. cancellation of K of sale De Leon: real property mortgages to be cancelled; in spite of assessed value of

real property Amount of property only incidental But if it is a quasi-delict: if principal action is to recovery value of damages –

then it can be capable of pecuniary estimation IMPORTANCE:

o RTC has jurisdictiono If not capable of estimation: Rule 141, Sec 7 applies – standard fees

(flat rate), rather than graduated amount

Jurisdiction – conferred by law

Over subject mattero Allegations only help the court decideo Generally, RA 7691

Over personso Receipt of summons – noticeo Voluntary appearance

Either personally appear or Submit motion/pleading1 or counsel appears2

Estoppel by laches to question jurisdiction

Tijam v Sibonghanoy:o Raised issue for first time on appealo After participating in proceedings

1 Must ask for POSTIVE action, not motion to dismiss for lack of jurisdiction2 Counsel can have qualified appearance – then file motion to dismiss after, for lack of jurisdiction

o Tijam case: 10 years pending: unreasonable delayo BUT general rule: question of jurisdiction can be raised at anytime,

even for the first time on appeal

Differentiate:

Concurrent J: court have same J over same subject matter Exclusive J: just that court Original and concurrent

o ex. RTC and SC over ambassadorso ex. habeas corpus, quo warranto, certiorari, etc.o BUT there is still hierarchy of courts: MTC order on certiorari,

then go to CA Appellate J: appeal perfect within reglementary period

RTC Jurisdiction

1. Not capable of pecuniary estimation2. Right/title/interest over real property

a. Value > 20K (OMM)b. Value > 50K (MM)

3. Maritimea. Value > 300K (OMM)b. Value > 400K (MM)

4. Probate – same value as maritime5. Other – same value as maritime6. Family cases/marriage7. Juvenile/agrarian case

Summary procedure for civil cases

1. Forcible entry & unlawful detainer2. All other cases where plaintiff’s claim:

a. Value <= 100K (OMM)b. Value <= 200K (MM)c. EXCEPT probate

Admin. Circular 09-94 (1994)


Par. 2: even if for money claims, damages are excluded Admin. Circular 11-94: claim should include interest, damages, etc. (all

assessed – pay everything for court fees) But for jurisdictional purposes, just the principal claim

MTC

1. Unlawful detainer/forcible entrya. Summary procedure

2. Real propertya. Value >= 20 K (OMM)b. Value >= 50 K (MM)

3. Civil actiona. Value >= 300K (OMM)

i. Value >= 100K – summaryb. Value >= 400K (MM)

i. Value >= 200K – summary

Small claims

Value >= 100 K Just a form and file in court Somehow, superceded OMM cases

RULE 1 – GENERAL PROVISIONS

Class notes:

How to initiate court case:o File complainto Pay docket fees

Court does not acquire J if there is no payment If insufficient, pay deficiency within 15 day pd.

Civil procedure: effect 1 July 1997o Basis: SC can promulgate rules as per Art. VIII, Sec. 5(5)o Broad powers

Civil action:

o Protection/enforcement of righto Prevention/redress of wrong

Distinguish:o Ordinary – ordinary rules (1-39)o Special – ordinary rules and subject to special rules

No need for cause of action in special actions (R2, S1) Ex. Certiorari – G.A.D. is basis, not cause of action

Elements of cause of action:o 1. RIGHTo 2. OBLIGATIONo 3. BREACH

Proton v Banque Nacional :o A.C. 11-94 – include interest, damages, and fees in filing fees

(deficiency must be paid w/n 15 d.)o Reglementary period – connected with pleadingso Need to pay filing fees even for permissive counterclaims, 3rd party

claims, etc.o Put amount of claim NOT ONLY in the body but also in the prayer –

because in the Manchester case, the lawyer hid the claim in the body

There is cause of action in foreign judgments R1S6 – liberal construction to secure just, speedy, inexpensive disposition

o DO NOT apply this to justify technical violations

Codal:

Sec 3o Civil action – party sues another for enforcement/protection of

right, prevention/redress of a wrong Ordinary/special

Sec 4 – not applicable to:o Election caseso Land registration/cadastralo Naturalizationo Insolvency


o And other cases not provided for unless by analogy/suppletory character or practicable/convenient

Sec 5 – COMMENCEMENT of actiono WHEN: filing of original complaint in court

Additional defendant: commenced upon filing of later pleading – even if denied by court

Sec 6 – constructiono Liberally construed to promote objective and secure: just, speedy,

inexpensive disposition

RULE 2 – CAUSE OF ACTION

Class notes:

San Miguel : no payment of docket fees on compulsory counterclaimso But permissive counterclaims: pay filing fees

The fact there was allegation of breach is NOT enough:o “Damnum absque injuria” – LOSS WITHOUT INJURY

Bernardo v CA: weird decision o Certiorari – special civil action was consolidated w/ annulment of

judgmento Why? This violated R2, S5, after allo POSSIBLY because both certiorari and annulment of judgment are

both original cases filed in CA Splitting COA – grounds to dismiss others:

o Litis pendentia (file one)o Res judicata (judgment on one)

One contract with several stipulations – still one COAo Exception: contract compels one to do several things at several

times – divisible

JOINDER:

GENERAL RULE: 1 suit for 1 cause of action Ex. PN1 (250K – MTC), PN2 (500K – RTC), PN3 (350K – MTC) There are THREE causes of action May be joined

NO requirement these have to arise from same transaction (if there was, then there would be no totality rule)

If at least 1 is within RTC’s jurisdiction, file in RTC General rule: cannot join ordinary and special R3, S6: can only apply when there are multiple parties on either side

o BUT there must be commonality Thus, DISTINGUISH:

o If same one plaintiff and one defendant: may join as many COAs as possible

o If multiple plaintiffs/defendants on either side: there must be unity of action or series of transactions

Differentiate from article 3 joinders:

Class action: common interest, one cause of action Permissive joinder: multiple causes of action and multiple parties (same

series) There is no class action in MV Princess of the Stars – different interests

o Ex. if the passenger is a doctor, engineer, baby, etc.o BUT there can be joinder due to common set of factso Not a question of numbero There can be defendant class in Philippines as long as they have

STRICTLY the same interest Ex. Oposa v Factoran

Misjoinder cannot cause dismissal of case – just drop/add Alternative COAs:

o Ex. culpa contractual and culpa aquiliana

Codal:

Sec 1o Ordinary cause of action: must be based on COA

Sec 2 – COA definedo Act or omission by which party violates a right of another

Sec 3o One suit per COA


Sec 4 – splitting of COA (2 or more suits for one COA)o Ground to dismiss others if:

Filing of one Judgment upon merits on any one

Sec 5 – joinder of COAo May assert as many COA as he may have against one party

Alternative or otherwiseo As long as:

1. Party joining COA complies with rules on joinder 2. Joined X include special civil actions 3. If COAs – same parties but different venues/Js – allowed

in RTC as long as one of the COAs falls within J of said court

4. If all claims are for recovery of money – aggregate amount is test of J

Sec 6 – misjoindero Not ground for dismissal of actiono Severed and proceeded with separately:

Motion of a party Court motu propio

RULE 3 – PARTIES TO CIVIL ACTIONS

Class Notes:

Differentiate:

Locus standi – by reason of governmental act; private person files public suit Real Party in Interest – for private suits

Sec 4 – general rule: H&W sue/are sued jointly, except:

Professional misconduct Criminal case CSP/JSP And the like

Indigents

Gross income + family’s income <= monthly minimum wage of employee x 2 And own real property whose fair market value is <= 300K One can be an employee and still be indigent If he fits within Rule 141, Sec 9 definition of indigent, the court must declare

him to be such BUT if after notice and hearing, there is income greater than what is provided,

then:o Collect docket fees/other legal feeso Else, execute on property to satisfy fees and impose other sanctionso And/or dismiss the case

Remedies: Misjoinder – motion to strike out Nonjoinder – not ground per se to dismiss action

o Court must first order joinder of partyo Non-compliance with this order may be grounds for dismissal of

action (R17, S3)

Codal:

Sec 1 –o Parties in a civil action:

Natural persons Juridical persons Authorized entities

o “Plaintiff”: Original claiming party Counter-claimant X-claimant 3rd/4th/etc-party

o “Defendant”: Original defendant party Counter-claimant X-claimant 3rd/4th/etc-party

Sec 2 – parties in interest


o REAL PARTY IN INTEREST: he who stands to be benefited/injured by judgment in suit or party entitled to avails of suit

o UPO, every action prosecuted/defended in name of real party in interest

Sec 3 – representatives as partieso Someone acting in fiduciary capacity: beneficiary included in title of

case and is R-P-in-Io Agent acting in own name: may be sued/may sue w/o joining

principal Except: K involves things of principal

Sec 4 – Husband and wifeo Shall sue/be sued jointlyo UPO

Sec 5 – minors/incompetentso With F/M/G/G.A.L (if none)

Sec 6 – permissive joinder of parties: as plaintiffs or defendantso If there is same transaction or series of transactionso Court may prevent:

Party from being embarrassed From being put to expense without interest

Sec 7 – indispensable partieso Without which, NO final determination can be hado Compulsorily joined

Sec 8 – Necessary partieso Not indispensable, but needed for complete relief or complete

determination/settlement Sec 9 – non-joinder of necessary parties

o Pleading must: State name, if known Reason why not joined

o If unmeritorious reason, court may order him to joined If J over person may be obtained Failure to include party: deemed waiver of claim over him

o Court may proceed with actiono AND no prejudice to rights of necessary party

Sec 10 – unwilling co-plaintiffo May be made a defendanto Reason stated in complaint

Sec 11 – misjoinder/non-joindero NOT grounds to dismiss actiono Parties may be dropped/added by order of court

On motion of any party Or motu propio At any stage If terms are just

o Claim against misjoined party: may be severed and separately proceeded

Sec 12 – Class suito Common/general interesto Persons so numerous, it is impracticable to join all as partieso Sufficient number may represent interests of allo ANY party in interest may intervene to protect his interest

Sec 13 – alternative defendantso If plaintiff uncertaino May join any or all of them, even if relief against one is inconsistent

with the other Sec 14 – Unknown identity/name of defendant

o May be sued by designation as case may require (heir, owner, etc.)o When true name/identity discovered – amend pleading

Sec 15 – entity without juridical personalityo May be sued under name they are generally/commonly knowno In defendant’s answer: reveal names and addresses of persons

composing the entity Sec 16 – DEATH of party/duty of counsel

o Pending action is NOT extinguishedo Duty of counsel to inform court of death

Within 30 days Give name and address of legal rep. Failure: disciplinary action

o Heirs may be allowed to substitute – without requiring appointment of X/A


Court may appoint G.A.L. for minor heirso Court orders legal representative:

Appear and substitute Within 30 days of notice

o If counsel does not name rep. or the rep. does not appear: Court orders opposing party to procure X/A for estate Court charges may be recovered as costs

Sec 17 – death/separation of party who is public officero Must be sued in official capacity and dies, resigns, ceases to hold

officeo Action may be continued/maintained by successor if –

Successor takes office within 30 days (UPO) Any party shows substantial need to continue action Successor adopts, continues, or threatens to continue

conducto Before substitution:

Give notice to party/officer to be affected Give opportunity to be heard Unless he expressly assented to it

Sec 18 – incompetency/incapacityo If party becomes incompetent, action may be continued by/against

himo ...assisted by G/G.A.L.

Sec 19 – transfer of interesto Original party may continueo UNLESS court orders person to whom interest is transferred to:

Substituted Be joined

Sec 20 – action on K’al money claimso Recovery of money from K (express/implied)o Defendant dies before entry of FJo It will NOT be dismissed until entry of FJo Favorable judgment – against estate

Sec 21 – Indigent partyo Upon ex parte applicationo Benefits:

Exempt from docket and lawful fees Exempt from fees for transcript of stenographic notes BUT, these will be lien on favorable judgment, if ever

(UPO)o Adverse party may contest grant of indigent status before judgment

rendered by TC If court finds sufficient income – collect proper fees If not, execute to pay Other sanctions allowed

Sec 22 – notice to Solicitor Generalo Actions:

Validity of treaty Law Ordinance EO PD Rules or regulations

o Court may require Sol-Gen to appear Personally Or through representative

RULE 4 – VENUE OF ACTIONS

Class notes:

Personal Actions:

If there are several plaintiffs and defendants, code inserted word “principal” to avoid bringing the case to far-flung areas

o Remedies against bringing case to far-flung areas: Motion to dismiss because of improper venue Answer, alleging improper venue

Stipulation controls, but not to the exclusion of other options (PilTel case)o Unless wording provides, expressly, the exclusion of all other

options General rule: you can file anywhere because it can be waived but it’s still

challengeable


Codal:

Sec 1 – real actionso Affecting title and possession or interest in real propertyo Court in area where property is situatedo MTC:

Forcible entry Unlawful detainer

Sec 2 – personal actionso Either, at plaintiff’s election:

Where plaintiff (any principal plaintiff) resides Where defendant (any principal defendant) resides

o If non-resident defendant, where he may be found Sec 3 – non-residents

o If non-resident and not found in the Philippineso Action: personal status of defendant or property of defendant in

Philippineso Either:

Where plaintiff resides Where property/any portion is situated

Sec 4 – when rule not applicableo Where specific law/rule provides otherwiseo Where parties have validly stipulated in writing before filing on

exclusive venue

RULE 5 – UNIFORM PROCEDURE IN TRIAL COURTS

Class notes:

Order:o Complainto Answero Replyo Pre-trialo Judgment

Summary procedure:o Complaint – court can dismiss outright hereo Summons – 10 days to file answer (not 15)o Answer

If no answer, court can decide already If with answer, preliminary conference

o NO extension of time

Codal:

Sec 1 – uniform procedureo Procedure in MTC same as RTCo Except:

Particular provision expressly/impliedly only applies to either

Civil cases governed by summary procedure Sec 2 – Terms

o “MTC” = municipal, metropolitan, municipal circuit trial

PROCEDURE IN RTCs

RULE 6 – KINDS OF PLEADINGS

Class notes:

Financial Building: motion to dismiss bars CCCo BUT in 2006: dismissal of original case does not dismiss CCC

anymore (Rule 17, S 2) (Alcura)o R17, S2 – defendant can now reserve right to file CCC

Codal:

Sec 1 – pleadings definedo Written statements of respective claims and defenseso For court’s judgment

Sec 2 – pleadings allowed:


o Complainto CCo XCo 3/4/x party claimo Complaint-in-intervention

Sec 3 – complainto Pleading alleging cause(s) of actiono Names and residences of both P and D stated

Sec 4 – answero Pleading where defendant sets forth defenses

Sec 5 – defenses:o Affirmative – allegation of new matter (hypothetically admitting

material allegations), but would prevent/bar recovery; ex: Fraud Prescription Release Payment Illegality SoF Estoppel Former recovery Discharge in bankruptcy Others

o Negative – specific denial of facts alleged essential to COA Sec 6 – CC

o Any claim defendant has against opposing party Sec 7 – Compulsory CC, reqs:

o Arising out of transaction constituting SM of claimo And does not require presence of 3rd parties where court cannot

acquire Jo Within court’s J as far as amount/natureo Except: original action in RTC – CC is compulsory regardless of

amount Sec 8 – XC

o Claim by party aginst co-party arising out of transaction that is SM of the action, either:

Original action CC

Sec 9 – CCC and CXCo CC may be against original CCo XC may be against original XC

Sec 10 – replyo Function: deny or allege facts in denial or avoidance of new matters

raised as defense in answero If no reply: all new matters alleged in answer deemed controvertedo If plaintiff wants new claims arising from new matters:

Amended complaint Or supplemental complaint

Sec 11 – 3/4/x party complainto Claim that a defending party may file against non-party to action

With leave of courto For subrogation, contribution, indemnity, or any other relief re:

claim Sec 12 – bringing in new parties

o In bringing in parties not part of original action:o Court orders them to be brought in as defendants

If J over them can be attained Sec 13 – answer to 3/4/x party complaint

o A 3/4/x party defendant may allege in answer his defense, CC, XC, or 3/4/x party complaint

o In proper case: may also assert CC against original plaintiff (with regard to claim against that 3/4/x party plaintiff)

RULE 7 – PARTS OF A PLEADING

Class notes:

Attestation based on personal knowledge and authentic documents on record/file (VERIFICATION)

CERTIFICATION (of non-forum shopping [“CNFS”])o No pending case w/ same facts/issues/reliefo If there is, inform court of status


o If there was but plaintiff unaware, inform court w/n 5 days of knowledge

Where verification required:o Petition for certiorari, Rule 65o Petition for review on certiorari, Rule 45o Provisional remedies, Rule 57-61

Complaints, as a rule, need not be verified, but as a matter of caution: VERIFY!

Distinguish:

Absence of verification: non-jurisdictional Absence of CNFS: JURISDICTIONAL

o Cannot amend to cureo Dismiss w/o prejudice

For both: ALL petitioners must sign

o If spouses, one spouse is enough if w/ common interesto SUBSTANTIAL COMPLIANCE: not the rule, but merely the exceptiono If both are co-owners/same residence but with common interest,

maybe one can sign. But don’t take chances!o When an in-house lawyer can sign CNFS:

Board resolution Lawyer knew the facts

o Assisted: Minor Incapacitated

o Corporation can authorize anyone

If petition has reglementary period, and needs CNFS, and petition dismissed:

Period runs Can become final and executory

Codal:

Sec 1 – captiono Name of court

o Title of action Names of parties

Indicate participation All named in original complaint Subsequent pleadings – name of first parties enough, with

indication that there are otherso Docket number

Sec 2 – bodyo Contents:

Designation Allegations of party’s claims/defenses Relief prayed for Date of pleading

o Paragraphs Allegations in body divided into numbered paragraphs Single statement of single set of circumstances (as far as

convenient)o Headings

Several causes of action: preface with words “nth cause of action”

Several answers: preface with words: “answer to nth cause of action”

o Relief Specify relief sought But may ask for further relief in general prayer

o Date Every pleading dated

Sec 3 – signature and addresso Every pleading signed by party or counsel

Unsigned pleading: no legal effect Court may allow deficiency to be remedied if it were done

due to mere inadvertence and not intended for delayo State address – NOT a P.O. boxo Counsel’s signature – is a certification that:

He read the pleading To best of knowledge, there is good ground to support it


It was not done for delayo Disciplinary action against counsel who:

Deliberately files unsigned pleading Signs it against this rule Inserts scandalous or indecent matter in it Fails to promptly resort to court for change of his address

Sec 4 – Verificationo GENERAL RULE: pleadings need not be under oath, verified, or

accompanied by affidavit UPO by law/rule

o Pleading – verified by affidavit that affiant has read it and allegations are true (as to personal knowledge or authentic records)

o May be treated as unsigned pleading: If verified based on “information and belief” Upon “knowledge, information, or belief” Lacks proper verification

Sec 5 – certification against forum shoppingo By plaintiff/principal partyo UNDER OATHo In complaint/initiatory pleading with reliefo Or in sworn certificationo Contents:

He has not commenced any action/filed any claim involving same issues in any court/tribunal/QJ agency – and to best of knowledge – no pending claim therein

If there is other pending action/claim, state provide complete statement on present status

If he learns about similar action/claim filed/pending, report fact within 5 days to court where he filed pleading

o Failure to comply: Not curable by mere amendment of complaint Cause for dismissal without prejudice

UPO, upon motion and hearingo Submission of false certificate:

Indirect contempt of court w/o prejudice to criminal/administrative actions

o Willful and deliberate forum shopping: Direct contempt of court Summary dismissal with prejudice Administrative sanctions

RULE 8 – MANNER OF MAKING ALLEGATIONS IN PLEADINGS

Class notes:

Pleading:o Allegations – ultimate factso No evidentiary facts

Evidence – Rule 128, S 1 – defined as means to establish truth of facts

Reproduction of text:o No need to appendo But in practice, better to attach a copy

Sec 3: conditions precedent (examples):

Earnest effort to compromise Lupon pambarangay

Sec 5:

Fraud/mistake: with particularity Malice/intent/knowledge: averred generally

Sec 8:

Specific denial under oath if denying documents:o Verification/affidavit (sworn to) appendedo Also usury

Codal:

Sec 1 –o Plain, concise, direct statement of ultimate factso Omit evidentiary facts


o If defense is based on law: pertinent provisions and applicability clearly and concisely stated

Sec 2 – alternative causes of action/defenseo May set forth alternative/hypothetical claims/defense

Either in one COA/COD Or separate COAs/CODs

o If alternative, but one would be independently sufficient, pleading is not made insufficient as a whole by insufficiency of one/more alternative

Sec 3 – conditions precedento General averment of performance/concurrence of conditions

precedent sufficient Sec 4 – capacity

o Aver: Facts showing capacity to sue/be sued Or facts showing authority to sue/be sued in

representative capacity Or legal existence of organized association

o If legal existence/capacity raised in defense: SPECIFIC DENIAL needed Include supporting particulars to pleader’s knowledge

Sec 5 – fraud/mistake/condition of mindo Particular – fraud or mistakeo Malice/intent/knowledge – averred generally

Sec 6 – based on judgmento Pleading judgment by:

Domestic/foreign court Judicial/QJ tribunal Board/officer

o Just aver the judgment without setting forth matter showing J to render judgment

Sec 7 – action/defense based on documento Substance of instrument/document set forth in pleading

And original/copy attached to pleading as exhibit Deemed part of pleading

o Or copy may be set forth in pleading

Sec 8 – contesting documentso Genuineness and due execution assumed to be admitted by adverse

party, UNLESS:o Under oath:

Specifically denies them And sets forth what he claims to be the facts

o No need to be under oath if: Adverse party not party to instrument Compliance with order for inspection of original document

refused Sec 9 – official document or act

o Sufficient to aver the document was issued/act done in compliance with law

Sec 10 – specific denialo Specify material allegation of fact he does not admit:

And set forth substance of matters supporting denial (if practicable)

o If only part of averment denied: Specify which of it is true and material And deny only the remainder

o When defendant is without knowledge or information to form belief as to truth of allegation:

STATE THIS Effect of denial

Sec 11 – o Material averment not denied, deemed admitted

Except unliquidated damageso Allegations of usury

Deemed admitted if not denied under oath Sec 12 – striking out pleading/matter

o Either: Court may order any pleading to be stricken out Or any sham, false, redundant, immaterial, impertinent,

scandalous matter be stricken outo When:

Upon motion by a party before response to pleading


Of if no response required, within 20 days of service of pleading

Or court, any time

RULE 9 – EFFECT OF FAILURE TO PLEAD

Class notes:

Default:

A party can be in default and still win the case Because claiming party must win at strength of its own case

Computation of time:

Count last, but don’t count first day If last day is Sat, Sun, or holiday – next working day

Proof of service of summons:

Sheriff’s return – narrative of how he served the summons Must answer within 15 days of service

Grounds to lift order: FAMEN:

Fraud (extrinsic): prevented from participating in proceedings Negligence of counsel is negligence of client

o But if GROSS negligence, the client can break free on grounds of due process

No default in annulment/nullity/legal separation

Court may either:

Render judgment on claims Or have ex parte proceeding

Codal:

Sec 1 – defenses and objections not pleaded

o DEEMED WAIVED!o Except:

Court has no J over SM Litis pendentia Res judicata Statute of limitations

Sec 2 – o CCC, XC not set-upo IS BARRED

Sec 3 – declaration of defaulto Can declare default:

If defending party fails to answer within time allowed Upon motion of claiming party With notice to defending party And proof of failure

o Court can either: Grant relief Or require submission of evidence

To clerko Effect:

Entitled to notice of subsequent proceedings BUT CANNOT PARTICIPATE

o Relief from order of default: After notice of default and BEFORE judgment File motion to lift order, based on FAMEN Judge may lift, with terms and conditions in interest of

justiceo Effect of partial default:

If there is common COA against several defendants, and some answer and some don’t

Court tries case upon all answers filed Render judgment upon evidence presented

o Extent of relief: Not exceed amount Not different in kind from that prayed for No unliquidated damages


o Where no defaults allowed: In annulment/nullity of marriage/legal separation Court orders prosecuting attorney to investigation if

collusion exists If no collusion, intervene to see that evidence is not

fabricated

RULE 10 – AMENDED AND SUPPLEMENTAL PLEADINGS

Class notes:

Distinguish:

Supplement – for facts not yet existing during filing Amendment – add/strike out

MATTER OF RIGHT:

When:o Before response

Note: a Motion to Dismiss is NOT a responsive pleadingo Or within 10 days after service of reply

Whether form or substance NOTICE to amend, not motion

WITH LEAVE OF COURT:

After answer Substantive But if formal, STILL a matter of right

Codal:

Sec 1 – amendments in generalo By adding or striking out:

Allegations Names of parties

o Correcting mistake: in name of party

any other respecto So controversy may speedily be determined

Without regard to technicalities In expeditious and inexpensive manner

Sec 2 – AS MATTER OF RIGHTo Any time before responsive pleading servedo Or any time within 10 days after it was servedo Done once

Sec 3 – BY LEAVE OF COURTo Substantial amendments o Leave may be refused if court deems the motion as intending to

delayo Process:

Motion filed in court Notice to other party Opportunity to be heard

Sec 4 – FORMAL AMENDMENTSo May be summarily correctedo AT ANY STAGE of actiono Either:

Court motu propio Upon motion

o There must be no prejudice to other party Sec 5

o Issues not raised by parties tried with express/implied consent – treated as if raised

o Amendment to conform to evidence presented: Motion of ANY party ANY TIME, even after judgment

o Failure to amend does not affect result of trialo If evidence objected because not within issues in pleadings:

Court may allow pleadings to be amended Do with liberality, to meet justice Court may grant continuance to enable amendment to be

made Sec 6 – Supplemental pleadings


o Upon motiono Upon reasonable notice and just termso Set forth transactions, occurrences, events, since pleading sought to

be supplementedo Adverse party – plead against within 10 days of notice of admission

of supplemental pleading Sec 7

o New copy of entire pleading, with amendments – indicated with marks – filed

Sec 8 – Effectso Supersedes pleading it amendso Admissions in superseded pleadings may be received in evidence

against pleadero Claims/defenses not incorporated in amendment pleading: DEEMED

WAIVED

RULE 11 – WHEN TO FILE

Codal:

Sec 1 – ANSWER: 15 days after service of summons (UPO) Sec 2 – ANSWER of foreign private juridical entity:

o And service done to government official designated by lawo 30 days after receipt of summons

Sec 3 – ANSWER to amended complaint:o Matter of right – 15 days after service of copyo Not matter of right – within 10 days of notice of order admitting it

Answer filed earlier deemed same answer if no new answer filed

o Same rule for CC, XC, 3/4/x, complaint in intervention Sec 4 – ANSWER to CC/XC – 10 days after service Sec 5 – ANSWER to 3/4/x – 15 days after service (same as complaint) Sec 6 – REPLY: 10 days from service Sec 7 – SUPPLEMENTAL COMPLAINT: within 10 days from notice of order

admitting it (UPO)o Answer to complaint deemed same answer to supplemental

complaint if no new answer filed

Sec 8 – existing CC/XC:o Existing at time of filing of answero Contained in answer

Sec 9 – CC/XC arising after service of pleading:o With permission of courto Can be presented as CC/XC by supplemental pleading

Sec 10 – omitted CC/XCo With leave of courto If through oversight, inadvertence, excusable neglect – may set-up

CC/XC by amendment before judgment Sec 11 – extensions:

o Upon motiono And on just terms

RULE 12 – BILL OF PARTICULARS

Class notes:

Nature:

Not a mandatory pleading Just an option

What needed:

Defect Paragraph number Details needed

Period:

Complaint: 15 days Answer: 15 days Reply: 10 days

Court action:

Deny


Granto The other party has file AMENDED PLEADING or BILL OF

PARTICULARS if motion granted Hold hearing

Time period after service of BOP/amended pleading/notice of denial:

File responsive pleadingo At least 5 days

Ex:o Orig deadline – Feb 16o Feb 1 – motion for BOPo Feb 9 – BOP giveno Rule 22, Sec 2 – day causing interruption not counted

2 to 8 February counted – 7 days So 8 days remain

Poor compliance with BOP:

Motion to strike out Or motion to dismiss (R17, S3) – non-compliance with court order

Codal:

Sec 1o For matters not averred with sufficient definiteness or particularity

to enable proper responseo Before responding to pleading (so 15 days)o If reply – 10 dayso Point out:

Defects Paragraph Details desired

Sec 2 – action by courto Upon filing, clerk brings it to court’s attentiono Court may:

Deny outright

Grant outright Hear parties

Sec 3 – compliance with ordero If granted – compliance must be within 10 days from notice of order

(UPO)o Either:

Separate pleading Amended pleading

Sec 4 – effect of noncomplianceo Either:

Order not obeyed Insufficient compliance

o Court may order striking out of portions or other order Sec 5 – period to file responsive pleading

o Applies after: Service of BOP or more definite pleading or notice of

denial Within period in which he was entitled Should not be less than 5 days

Sec 6 –o BOP becomes part of pleading for which it is intended

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

Class notes:

Service: covers all pleadings except original complaint

Original complaint: summons served by court

Filing:

Personal: clerk endorses Registered mail: post office stamps date of filing

Service:

Personal: hand it to person/counsel, office, or residence


Registered mail Ordinary mail

Proof of filing:

Record of case ; if none: Clerk acknowledges copy Registry receipt

Proof of service:

Personal: written admission, official return of sender (narrative of what happened), affidavit of sending party

Ordinary mail: affidavit Registered mail: registry receipt/affidavit

Completeness of service:

Personal: receipt Registered mail: actual receipt

o or 5 days after notice of postmastero Whichever comes first

Ordinary mail: 10 days after mailing

PRIORITY IS ALWAYS PERSONAL SERVICE.

Make explanation if not personal; else, deemed not filed But if initiatory and no compliance, it must be within reglementary period –

dismissed!

Substituted service in Rule 13:

Proof of failure of personal and registered mail Give to clerk

If return card given back and document rejected, what to do:

Secure certification from the postmaster as to lack of receipt Return card and the affidavit filed

Lis pendens:

To annotate – just notice To cancel – court order Only to REAL property Apply to judicial cases only – for Q-J agencies: own rules apply

Codal:

Sec 1o All pleadings and other paperso UPO

Sec 2o Filing: act of presenting pleading/other paper to clerko Service: providing party with copy of pleading/other paper

Either to counsel or party UPO by court

o One counsel for several parties – just one copy of paper needed Sec 3 – manner of filing

o 1. Present original copies personally to clerk Clerk endorses on pleading the date and hour

o 2. Or registered mail Date of mailing as shown by P.O. stamp on envelope

considered date of filing/payment/deposit in court Envelope attached to case record

Sec 4 – papers requiring filing and serviceo Every judgment, resolution, order, pleading subsequent, written

motion, notice, appearance, demand, offer of judgment, similar papers

o FILED with court and SERVED to other parties Sec 5 – modes of service: personally or by mail Sec 6 – personal service

o Personal delivery to party/counselo OR leaving in office with clerk or person in charge


o OR leaving in party’s/counsel’s residence with person of sufficient age and discretion

Situations: If no person in office Or office not known Or no office

Between 8 am to 6 pm Sec 7 – by mail

o Registered mail Deposit copy in post office in sealed envelope addressed

to party/counsel at office Or if not known, residence

Postage fully pre-paid Instruction to postmaster to return after 10 days if

undeliveredo Ordinary mail

If no registry service available in locality of sender or addressee

Sec 8 – substituted serviceo If cannot be made under two preceding sections

And office/residence both unknowno Service by delivery of copy to clerk

With proof of failure of both methods Service complete upon delivery

Sec 9 – service of judgments, final orders, resolutionso Personally or registered mailo Party summoned by publication:

If failed to appear The j/FO/r published at prevailing party’s expense

Sec 10 – completeness of serviceo Personal – upon actual deliveryo Ordinary mail – expiration of 10 days after mailing

UPOo Registered mail – actual receipt by addressee

Or after 5 days from date he received first notice from postmaster

Whichever’s earlier Sec 11 – priorities

o PERSONAL SERVICE is priorityo Papers served in other ways – must be accompanied by written

explanation why not personally FAILURE: paper deemed not filed Doesn’t apply to court’s papers

Sec 12 – proof of filingo General rule: by case recordo If not in record but claimed to have been filed –

personally: by written/stamped acknowledgement by clerk on copy

registered mail: registry receipt and affidavit of person mailing stating concurrence of requirements in sec 7

Sec 13 – proof of service o Personal:

Written admission of party served Official return of server Affidavit of party serving, containing statement of:

Date Place Manner of service

o Ordinary mail: Affidavit of person mailing showing compliance with sec 7

o Registered mail: Affidavit Registry receipt issued by mailing office What is filed by sender:

Registry return card, upon receipt OR if document not received/refused, the

unclaimed letter with certified/sworn copy of notice given by postmaster to other party

Sec 14 – notice of lis pendenso Action affecting real propertyo Plaintiff or defendant may record notice of lis pendens

In ROD


Contain names of parties, object of action, description of property

o Constructive notice to purchaser/encumbrancer begins from filing of this notice

o But to cancel: order of court – Purpose is to molest adverse party Protect rights of party who caused it to be protected

RULE 14 – SUMMONS

Class notes:

Rules:

Person – service must be personalo Important to attain J over persono Sec 4: Sheriff’s return – narrative

Else, TENDER – try to hand it for him Who can serve: sheriff, deputy, server

If there is failure to serve or summons lost:

Apply for alias summons Have to apply repeatedly before substituted service

BEFORE SUBSTITUTED SERVICE:

There must be extra repeated efforts to serve repeatedly There must be impossibility of personal service There can be no substituted service for non-residents because they have no

residenceo Only personalo Exception: if the spouse-resident of the defendant non-resident

previously appointed as atty-in-fact There can be no substituted service for juridical entities :

o Only P, GM, MP, CS, CT, I-HCo Different if any of those enumerated are sued in personal capacity

then there can be substituted service

o As long as company is incorporated in Philippines regardless of % of ownership, service can be made locally

Non-juridical entity:

Any member Or person-in-charge

Foreign juridical entity:

Doing business and licensed: can sue and can be sued Doing business but not licensed: cannot sue and can be sued

o Except: benefits estoppel Not doing business (isolated transaction):

o Cannot be sued and can sue – but service is a problem

Distinguish:

In personam:o Particular personso Bind them only

In rem:o Bind versus the whole world

Quasi-in-rem:o Particular persons, but bind the whole worldo But don’t need them as long as J over the res attained

Publication: only for in rem or quasi-in-rem (Gomez v CA)

But if there is attachment on a res, even if personal action, there can be service by publication

o So for an unknown party who the plaintiff wants to summon, he can move for preliminary attachment of that unknown person’s property first so that the action is converted to quasi in rem or in rem

But just because publication is allowed, personal service is still preferred Proof of publication – 2 affidavits:

o Of publication + copyo Of depositing it for mailing to defendant


Distinguish:

Sec 14 – mere publication is enough Sec 15 –there must be service in the last known residence Sec 16 – any of those in 15; substituted service allowed – if w/ impossibility

Important: all technicalities are moot, if there is voluntary appearance

But Rule 9, Sec 1 governs: all grounds not raised deemed waived (so defective summons cannot be raised)

Filing of motion to dismiss is not deemed voluntary appearanceo Except lack of J over person of defendant

If there is motion for extension before motion to dismiss – there is already subjection to court’s J

If there is defective service of summons leading to judgment:

All proceedings from defective service are null and void (Spouses Mason)

Codal:

Sec 1o Clerk issues summonso To defendantso Upon:

Filing of complaint & Payment of requisite legal fees

Sec 2o Directed to defendanto Signed by clerko 1. Name of court and partieso 2. Direction that defendant answers within fixed timeo 3. Notice that if no answer, plaintiff takes judgment by defaulto ATTACH to original and each copy of summons:

Copy of complaint Appointment of G.A.L. (if any)

Sec 3 – served by:o Sheriff

o Or Deputyo Or other proper court officero Or any suitable person – for justifiable reasons

Sec 4 – returno By server, within 5 days of serviceo ORIGINAL SUMMONS

Return to issuing clerk With proof of service

o COPY To plaintiff’s counsel Personally Or registered mail

Sec 5 – ALIAS SUMMONSo Def: issued when the original summons did not produce desired

effect, and thereafter supercedes ito TWO SITUATIONSo 1. Return of summons without it being served on any or all

defendants Additionally, copy of return given to plaintiff’s counsel State reason for failure to serve Within 5 days

o 2. Summons has been lost Sec 6

o Preferred: service in persono If he refuses – tender it to him

Sec 7 – substituted serviceo If it cannot be served within reasonable time as provided:o 1. Leave copies of summons at defendant’s residence with person of

suitable age and discretiono 2. Leave copies at defendant’s office with competent person

Sec 8 – entities without juridical personalityo Sued under name generally/commonly knowno Either:

1. All defendants 2. Person in charge of office where business is maintained


o Service does not bind individuals who severed connection before action – with due notice

Sec 9 – prisonerso To officer with management of institutiono Deemed deputized as special sheriff for that purpose

Sec 10 – minors and incompetentso Personally and on G

If none, G.A.L. appointed – applied for by plaintiffo Minor – also can be to parent/s

Sec 11 – corporation/organized association/partnershipo President, corporate secretary, treasurero Or managing partner, general managero Or in-house counsel

Sec 12 – foreign private juridical entity which has transacted business in the Philippines

o Resident agento Or if none, government official provided by lawo Or any of its officers/agents within Philippines

Sec 13 – public corporationso If RP: service effected on Sol-Geno Province, city, municipality, public corporations: executive

head/other officers as court may direct Sec 14 – upon defendant with unknown whereabouts

o Either: 1. Unknown owner 2. Whereabouts unknown and cannot be ascertained by

diligent inquiryo Service may be by publication in newspaper of general circulation or

in such places and for such time With leave of court

Sec 15 – Extraterritorial serviceo Defendant does not reside in Philippines and is not found in the

Philippineso Affects:

1. Personal status

2. Property in Philippines where defendant has actual or contingent interests – and relief will exclude defendant from interest or property attached

o Methods: 1. Personal service 2. Newspaper of general circulation in such places and for

such time as court may order 3. Registered mail – send summons and order of court to

last known addresso Reasonable time to answer: not less than 60 days

Sec 16 – residents temporarily out of Philippineso May be effected as in prior section

Sec 17 – LEAVE OF COURTo 1. Motion in writingo &2. Supported by affidavit stating grounds

Sec 18 – Proof of serviceo Made in writing by server

Manner, place, date of service Papers which have been served with process Name of receiving person

o Sworn to IF made by person other than sheriff or deputy Sec 19 – Proof of service by publication

o Affidavit of printer/foreman or principal clerk/editor/business or advertising manager

o Attach copy of publicationo Affidavit showing deposit of copy of summons and order for

publication in post office Postage prepaid Directed to defendant by registered mail – last known

address Sec 20 – voluntary appearance

o Equivalent to summonso NOT A VOLUNTARY APPEARANCE: inclusion in motion to dismiss of

other grounds aside from lack of J

RULE 15 – MOTION


Class notes:

Motions are not pleadings

But not claims/defenses Only reliefs

Secs 4-7 – important:

4: there should be a notice of hearingo If there is none, it’s a mere scrap of papero Address to the other partyo Notice of setting : to the clerko No notice of hearing required if it will not prejudice other party’s

right – but to be sure, file notice anyway Motion served to other party at least 3 days before hearing Hearing must not be later than 10 days from motion

Motion day:

April 2008 onwards: motion day is always Friday afternoon If holiday, next working day

Omnibus motion:

Motion attacking pleading/order/judgment/proceeding Include all objections available

Motion to admit pleading/motion: attach the pleading/motion

Codal:

Sec 1 – application for relief other than by pleading Sec 2 – must be in writing

o Except those made in open courto Or in course of hearing/trial

Sec 3o State relief soughto Grounds

o If required or necessary – accompanied by supporting affidavits/papers

Sec 4o Default rule: hearing required

Unless court may decide upon it without prejudicing other party

o WRITTEN MOTIONS REQUIRED TO BE HEARD – notice of hearing to defendants

Ensure RECEIPT at least 3 days before hearing Unless shorter, for good cause

Sec 5 – Notice of hearing to all parties concernedo Time and date of hearingo Date not later than 10 days of filing of motion

Sec 6o No written motion acted upon without proof of service

Sec 7o All motions scheduled on Friday afternoons

Unless needing immediate action If Friday is non-working day – afternoon of next working

day Sec 8 – Omnibus motion

o Motion attacking pleading, order, judgment, proceeding – include all objections then available

o Else, waived Sec 9 – motion for leave to file a pleading or motion

o ATTACH pleading or motion sought to be admitted Sec 10 – Form

o Rules re: pleadings apply to written motions (caption, designation, signature, matters of form)

RULE 16 – MOTION TO DISMISS

Class notes:

Grounds in Sec 1:

Only time when defendant can seek dismissal of the case


But can also be used as affirmative defense But other affirmative defenses cannot be used to dismiss a case

GENERAL RULE: grounds can be waived

What cannot be waived:

1. Lack of J over SMo Provided by lawo Can be raised anytime

2. Prescription 3. Res judicata

o 1. Previous FJo 2. J over SM and partieso 3. Judgment over meritso 4. Identity of parties, SM, cause of action between first and second

actions 4. Litis pendentia

o Another action pending for same cause between partieso Test of forum shopping is either R.J. or L.P.o Jurisprudence – raise forum shopping at earliest opportunity

BUT not waivable, because forum shopping is still essentially R.J. or L.P., which can be raised until the end

Other grounds:

Venue improperly laido Rule 4 is general ruleo Except when parties agree to a venueo The rule 4 venues still applyo EXCEPT if the stipulation has words of exclusivityo Or if the law provides otherwiseo Waiver of wrong venue allowedo Court cannot dismiss motu propio

No legal capacity to sueo Ex. minor sues on his own

o Ex. corporation must be regged in SEC and duly organized in Philippines

Pleading asserting the claim states no COAo Different from no COA at allo This ground applies if the pleading is filed against wrong party (not

real party in interest)o Lack of COA can be raised even after an answero If there was already presentation by plaintiff of evidence, it becomes

a demurrer Unenforceable under Statute of Frauds

o Must have written memorandum Condition precedent for filing

o And did not complyo Admin case/quasi-judicial – need to pursue admin processes first

Payment/waiver/extinguishment/abandonment

Hearing:

Ordinarily, not heard as hearing but some just ask questions and give time to respond

If no cause of action – no need to present evidence

Motion to dismiss – is not an affirmative defense per se

But can be used as affirmative defense in answer But there can be no combination of motion to dismiss and affirmative answer

Discretion of court:

Dismiss action Dismiss motion Order amendment

Allowing grounds for motion to dismiss to be raised as affirmative defenses:

In line with court policy to join pleadings So the court is encouraging to have affirmative defenses with the grounds for

dismissal


ONLY IF THERE IS NO MOTION TO DISMISS will the court hold a preliminary hearing on grounds cited

o As if there were a motion to dismiss filed

Codal:

Sec 1 – Groundso 1. Court has no J over defending party’s persono 2. Court has no J over subject mattero 3. Venue improperly laido 4. Plaintiff has no legal capacity to sueo 5. Litis pendentiao 6. Res judicata/prescriptiono 7. No cause of actiono 8. Claim/demand paid, waived, abandoned, extinguishedo 9. SoFo 10. Condition precedent for filing claim not complied witho Before filing answer to complaint or pleading asserting claim

Sec 2 – hearing of motiono Qs of law: submit argumentso Qs of fact: submit evidence

Except those unavailable at the timeo If trial proceeds, evidence presented automatically part of evidence

Sec 3 – resolution of motiono Court may:

Dismiss action/claim Deny motion Order amendment of pleading

o Ground not indubitable – court cannot use this act reason to defer resolution

o Resolution should state clearly/distinctly reasons therefor Sec 4 – time to plead

o Motion denied: file answer within balance of period – but not less than 5 days

From receipt of notice of denial

o Pleading amended: file answer within period under Rule 11 from service of amended pleading

UPO by court Sec 5

o What cannot be re-filed: Prescription Extinguished Res judicata SoF

o Subject to right of appeal Sec 6 – if no motion to dismiss filed

o Can still use any of the grounds as affirmative defenseo Court’s discretion: preliminary hearing as if motion to dismiss filedo Dismissal: without prejudice to prosecution of same/separate action

in counter-claim

END OF MIDTERMS COVERAGE


RULE 17 – DISMISSAL OF ACTIONS

Sec 1 – DISMISSAL UPON NOTICE:o Notice of dismissal before:

Service of answer Or motion for summary judgment

o Upon notice – court issues order confirming dismissalo Without prejudice

Unless stated in notice BUT is an adjudication upon merits when filed by plaintiff

who once dismissed same claim in competent court Sec 2 – DISMISSAL UPON MOTION:

o Except as provided above – need court approval and upon terms and conditions of court

o If with counter-claim prior to service of motion to dismiss – dismissal only to complaint

o Without prejudice to future counter-claim File within 15 days from notice of motion

o Default: dismissal is without prejudiceo Class suits:

Cannot be dismissed/compromised without approval of court

Sec 3 – DISMISSAL DUE TO PLAINTIFF’S FAULTo Grounds:

1. Plaintiff fails to appear on date of presentation of evidence

2. Failure to prosecute action for unreasonable length of time

3. Failure to comply with rules/order of courto Defendant’s motion can dismiss complaint or court motu propioo Considered adjudication upon merits o Without prejudice to counter-claim

Sec 4 – DISMISSAL of CC, XC, or 3PCo Same provisions applyo But before:

Responsive pleading

Motion for summary judgment served Or if there is none, introduction of evidence at

trial/hearing

RULE 18 – PRE-TRIAL

Sec 1 – when conductedo After last pleading served and filedo Duty of plaintiff – move ex parte that case set for pre-trial

Sec 2 – Nature and purpose:o Possibility of amicable settlemento Simplification of issueso Necessity/desirability of amendments to pleadingso Possibility of stipulations/admissions of fact to avoid unnecessary

proofo Limitation on number of witnesseso Advisability of preliminary reference of issues to commissionero Propriety of rendering:

judgment on pleadings summary judgment ground for dismissal

o Advisability/necessity of suspension of proceedingso Other matters for prompt disposition

Sec 3 – noticeo Served to counsel

If no counsel: partyo Counsel charged with duty to notify party

Sec 4 – Appearance of partieso Appearance is a dutyo Non-appearance only excused if:

Valid cause shown Or representative appears, authorized to:

Enter amicable settlement Submit to alternative modes of dispute

resolution Enter into stipulations/admissions of facts/docus


Sec 5 – Failure to appearo Failure of plaintiff – cause dismissal of action

With prejudice, unless ordered by courto Failure of defendant – plaintiff can present evidence ex parte

Court can render judgment Sec 6 – Pre-trial brief

o File with court and serve to adverse party Ensure receipt at least 3 days before pre-trial date

o Contents: Willingness to enter into amicable settlement/alternative

modes – indicate desired terms Summary of admitted facts and proposed stipulation of

facts Issues to be tried/resolved Docus/exhibits to be presented Manifestation of having availed/intention to avail:

discovery procedures/referral to commissioners Number and names of witnesses and substance of

testimonieso Failure to file pre-trial brief = same effect as failure to appear at pre-

trial Sec 7 – Record of pre-trial

o Record proceedingso Court issues PRE-TRIAL ORDER:

Matters taken up Action taken Amendments allowed Agreements/admissions

o Order explicitly limits issues to be tried

Contents control unless modified to prevent manifest injustice

RULE 19 – INTERVENTION

Class discussion: intervention may only happen in TRIAL, although in CA and SC, the courts have discretion to allow intervention

o File BEFORE rendition of TC judgmento Attach pleading-in-intervention to motion and serve

Who may intervene:o With legal interest in litigationo With interest in success of either of the parties, or against botho Would be adversely affected by distribution of property in court’s

custody With leave of court. Court will consider:

o If it rights can be protected in separate proceedingo If intervention would prejudice original parties

File:o Complaint-in-intervention (if he goes against either or both) or

Has 15 day period to be answered tooo Answer-in-intervention (if he unites with defendant)

RULE 20 – CALENDAR OF CASE Assignment of cases EXCLUSIVELY by raffle

RULE 21 – SUBPOENA Subpoenas

o Subpoena ad testificandum – require with him to attend and to testify at the hearing/trial, investigation, or taking of deposition

o Subpoena duces tecum – BRING WITH HIM books, documents, other things in his control

Who issues:o 1. Court where witness must attendo 2. Court where deposition will be takeno 3. Officer/body conducting investigationo 4. Any justice of SC/CA in any case/investigation pending

Special rules on detainees:o For subpoenas for detainees, the judge/officer must examine

application to see if it is for valid purposeo For those under death/RP/life and confined – must be authorized by

SC to appear under subpoena


Form and contents – indicate:o Name of courto Title of action/investigationo Directed to person required to attendo (with duces tecum) reasonable description of things

Quashing a subpoenao Ad testificandum –

Witness not bound thereby Witness fees and kilometrage not tendered upon service

of subpoenao Duces tecum –

Unreasonable/oppressive Or relevance is not clear Failed to advance reasonable cost of production (the

person in whose behalf the subpoena is issued) Proof needed for subpoena for depositions:

o Proof of service ENOUGH for clerk of court to issue subpoena for person required to testify in a deposition

o BUT for duces tecum, there MUST be an order of the court Service

o Similar to summonso Show original copyo Tender fees for one day’s attendance and kilometrage allowed by

rules Except if issued by/for the Philippines or any

officer/agencyo If duces tecum – reasonable cost to produce books, documents, and

things must be tendered Failed to attend:

o Court can have the witness arrested by sheriff and brought to the court

o Witness pays for costs, if absence was willful and unjustifiedo Can be held in contempt, if there is no cause. If not before a court,

punished by applicable law/ruleso THESE RULES DO NOT APPLY IF:

Witness resides more than 100 KM from residence to place where he is needed

Detainee, without permission of court where his case is pending

RULE 22 – COMPUTATION OF TIME How to compute:

o Day of act/event commencing period excluded and last date for performance included

o If last day is Saturday/Sunday/holiday – time runs until next working day

Interruption:o EXCLUDE day of the act of interruption from computation of periodo Resume the day after notice is given of cessation of interruption’s

cause

DISCOVERING EVIDENCE

Depositions Pending Action (Rule 23)

Kinds of Deposition Pending Actiono Oral Examination/Depositiono Written Interrogatories

What to file to initiate deposition taking? (Sec 1)o Before answer has been filed, there must be a motion to take oral

deposition or written interrogatorieso After answer has been filed, notice to take oral deposition or written

interrogatories What is the scope and coverage of the deposition?

o Any relevant matter not privileged (Sec 22) What are the uses of deposition? (Sec 4)

o 1. Contradicting or impeaching the testimony of deponent as a witness

Impeach on a prior inconsistent statement when he is called as a witness


o 2. Deposition of a party or of any one who at the time of the taking of deposition was an officer, director, or managing agent of a public or private corporation, partnership or association which is a party may be used by an adverse party for any purpose

o 3. For any purpose if: Witness is dead (FOR AS LONG AS THAT DEPOSITION WAS

SUBJECTED TO CROSS EXAMINATION) OR the witness resides more than 100 km from the place

of trial/hearing or is out of the Philippines (RELATE: THE COURT COULD NOT COMPEL THE APPEARANCE OF A WITNESS MORE THAN 100 KM FROM THE PLACE OF TRIAL – R 21,S10)

The witness is unable to attend/testify because of age, sickness, infirmity, or imprisonment

Unable to procure attendance of the witness by subpoena Analogous circumstances

What is the effect of substitution of parties on right to use depositions previously taken?

o WILL NOT AFFECT ITo In a subsequent proceeding involving same subject matter between

same parties – can be used What is the effect of taking depositions?

o A party shall not be deemed to make a person his own witness by taking his deposition.

What is the effect of using depositions?o The deponent is made a witness of the party introducing the

deposition. Before whom?

o Within the Philippines (Sec 10) 1. Judge 2. Notary Public 3. Parties can stipulate in writing that depositions may be

taken before any person authorized to administer oath (EX. JUSTICE, PROSECUTOR, OMBUDSMAN)

o In foreign countries (Sec 11)

1. Before a secretary of embassy or legation, consul-general, consul, vice-consul, or consular agent of the Republic of the Philippines

2. Person or officer as may be appointed by commission (APPOINTMENT OF REPRESENTATIVE BY A JUDICIAL BODY) or under letters rogatory (COMMUNICATION BY ONE JUDICIAL AUTHORITY TO ANOTHER COURT)

3. Person referred to in Sec. 14 Who are disqualified to take deposition?

o 1. Person who is relative by SIXTH degree of consanguinity or affinity, employee, or counsel of any of the parties

o 2. Relative within the same degree or employee of the counselo 3. Anyone financially interested in the situation

What are the grounds to oppose taking of deposition?o Not relevant (Sec. 1)o To protect party or witness from annoyance, embarrassment, or

oppression (Sec. 16 and 18); The court… …can deny …OR cut short …OR choose questions

Process of deposition (Sec. 17, 19, 20, and 21) (IF THERE IS DEFECT IN THE PROCEDURE, THEN THERE CAN BE MOTION TO SUPPRESS THE DEPOSITION. BUT IF THE DEPOSITION WAS TAKEN IN FRONT OF THE JUDGE WHERE THE ACTION IS PENDING, THESE RULES CAN BE RELAXED. – AYALA CASE)

o Taking of testimony by stenographic noteso Signing of the witness (CAN BE WAIVED, IF BOTH PARTIES AGREE)o Certification of the officero Placing in sealed envelopeo Filing in courto Notice of filing

What are the effects of errors and irregularities?o As to notice

General rule: waived Unless promptly served to party giving notice

o As to competence or relevance of evidence General rule: not waived


Unless the ground for objection is one which may be obviated, or removed if presented – meaning if it can be corrected at this point in time

o As to DQ of officer General rule: waived Unless made before taking of the deposition begins as

soon thereafter as the DQ becomes knowno As to oral examination and other particulars

General rule: waived Unless reasonable objection is made

o As to form of written interrogatories General rule: waived Unless served in writing upon the party propounding them

within the time allowed for serving cross or other interrogatories – ANY OBJECTION SHOULD BE MADE DURING THE TIME THE CROSS INTERROGATORIES ARE PREPARED

o As to manner of preparation General rule: waived Unless a motion to suppress the deposition or some part

thereof is promptly made

Depositions Before Action (Rule 24)

This superseded Rule 134 Who can apply?

o A person who desires to perpetuate his own testimony or that of another person

What to file?o Verified Petition

Where to file?o Place of residence of any expected adverse party or defendant – THIS

PROVISION THUS HAS A SPECIAL RULE ON VENUE, DIFFERENT FROM RULE 4 What are the contents of the petition?

o Petitioner who expects to be a partyo The subject matter of the expected action and his interest thereino Facts which he desires to establish by the proposed testimony and

his reasons for perpetuating it

o Names and description of the persons he expects will be adverse parties and their addresses

o Names and addresses of the persons to be examined and the substance of the testimony he expects to elicit

o Ask for an order authorizing the petitioner to take depositions of the persons to be examined

Depositions Pending Appeal (Rule 24)

Who can apply?o Any party can perpetuate testimony for use in the event of further

proceedings Where to apply?

o In the court that rendered the judgment – I LOST IN THAT COURT AND I’M TELLING THAT COURT THAT I’M GOING TO TAKE DEPOSITIONS?

When to apply?o At any time before judgment becomes final

What to file?o Motion upon notice and service

Contents:o Names and addresses of the persons to be examinedo Facts and reasons

How deposition pending appeal are taken?o Under same conditions as depositions pending action whether oral

deposition or written interrogatories What are the uses?

o Under same conditions as depositions pending action, specifically R23 S4

Interrogatories to parties

Any party desiring to elicit material and relevant facts from any adverse parties under the same conditions as R1 S23

How to apply?o By filing and serving upon the adverse parties written interrogatories

How many days to respond to written interrogatories?o Within 15 days after service


How many days to oppose the written interrogatories?o Within ten days after service

What is the effect of failure to serve written interrogatories?o A party not served with written interrogatories may not be

compelled by the adverse party to give testimony in open court, or to give deposition pending appeal

o ONE CANNOT CALL THE OTHER PARTY TO THE WITNESS STAND, UNLESS WRITTEN INTERROGATORIES WERE TAKEN AGAINST THAT OTHER PARTY. – THIS IS REALLY IMPORTANT.

o AN ADVERSE PARTY WITNESS IS DIFFERENT FROM AN ADVERSE PARTY’S WITNESS. THIS SECTION CONTEMPLATES CALLING THE OTHER PARTY TO THE STAND.

o Exception: in the interest of justice What is the scope and use of interrogatories under Rule 25?

o The interrogatories may relate to any matter in R23 S2 and answers may be used for same purpose in R23 S4

What is the effect of failure or refusal to answer the written interrogatories?o The case may be dismissed or they may be a judgment by defaultO BUT IT MUST BE AN IMPORTANT OR MATERIAL FACT TO THE CASE.

Admission by adverse party (Rule 26)

Who can apply?o A party may file and serve upon any other party a written request

Matters are covered by the request for admission: the admission of the:o Genuineness of any material and relevant document

MAKE SURE YOU ATTACH A COPY OF THE DOCUMENT BECAUSE YOU ARE ASKING THE OTHER PARTY TO ADMIT THE GENUINENESS OF THE DOCUMENT

o OR the truth of any material and relevant matter When to apply?

o Any time after issues have been joinedO UNLIKE THE OTHER REQUESTS ABOVE WHEN THE CASE IS PENDING

When to file a sworn statement or to oppose?o Not less than 15 days after service

Effect of failure to file and serve request for admission?

o A party who fails to file and serve a request for admission on the adverse party of material and relevant facts at issue which are within the personal knowledge of the latter, shall not be permitted to present evidence on such facts (R26 S5)

O THIS PENALTY WILL ONLY APPLY IF YOU REFER TO A FACT, NOT A DO CUMENT. What is the effect of an admission?

o It is ONLY for the purpose of the pending action. It shall not constitute an admission by him for any other purpose nor may the same be used against him in any other proceeding.

Can admission be withdrawn or amended?o Under such conditions as may be just.

Production or inspection of things or documents (Rule 27)

What to file?o Motion with notice to the other party

What are the contents of the Motion?o Request that an order be issued directing a party to produce and

permit inspection and copying or photographing of any designated documents, papers, books, accounts, letters, photographs, or object not privileged

o Requesting that an order be used allowing a party to enter upon a land or property in the possession/control of another to inspect, etc. – TAKE NOT OF THIS

Physical and mental examination (Rule 28)

When can an examination be ordered?o In an action in which the mental/physical condition of a party is in

controversy What are the modes to initiate the examination?

o Court in its discretion (S1)o Motion for good cause and upon notice (S2)

Is the party examined entitled to a copy of the report or examination?o YES. If requested by the party examined, the party causing the

examination shall delivery to the party examined a copy of the detailed report of the examining physician.


What is the consequence of the request and the subsequent delivery of the report to the party examined?

o The party causing the examination shall be entitled upon request to receive from the other party examined a like report, previously, or thereafter made, of the same mental or physical condition. – THIS IS POTENTIALLY DANGEROUS

What is the effect of failure of a party examined to deliver his other reports?o The court on motion may make an order requiring delivery of the

report and if the physician fails or refuses to make such report the court may exclude his testimony if offered at the trial. (S3)

Refusal to comply with modes of discovery (Rule 29)

What is the effect of refusal to answer?o The applicant may secure an order to compel an answer (S1).o The deponent may be placed in contempt if he refuses to be sworn

in or to answer any question (S2). What are the other consequences for refusal to answer or to comply with an

order under Rules 27 and 28?o The court may:o 1. Order that no facts shall be taken to establish the purpose of the

action.o 2. Order disallowing the disobedient party to support or oppose

designated claims or defenses.o 3. Order striking out pleadings or staying further proceedings or

dismissing the action or rendering judgment by defaulto 4. Order the arrest of a party disobeying the order except an order

to submit to a physical or mental examination What is the effect of refusal to admit under Rule 26?

o Secure an order requiring the other party to pay him the reasonable expenses incurred in making such proof (S4).

What are the effects of failure of a party to serve answers under Rule 25?o Pleadings may be stricken out, actions/proceedings may be

dismissed, or enter a judgment by default (S5).

TRIAL AND POST-TRIAL RULES

Rule 30 - Trial

To postpone trial because of absence of evidence:o AFFIDAVIT showing:

Materiality of evidence Due diligence in procuring it

o But if adverse party admits facts for which evidence will be presented, the trial will not be postponed

To postpone trial because of absence of party/counselo AFFIDAVIT showing:

Presence of party/counsel is indispensable Illness makes the absence excusable

Order of trialo Plaintiff’s evidence to support complainto Defendant’s evidence to support defense/CC/XC/3PCo 3P defendant’s evidence to support defense/CC/XC/3PCo 4P and so ono Parties faced with a XC/CC present evidence in defenseo Parties present rebutting evidence

Unless court for justice allows evidence for caseo Case deemed submitted for decision

Unless court directs parties to argue/submit memoranda The parties MAY just agree upon facts involved and submit case for judgment

EVEN WITHOUT evidenceo BUT cannot stipulate on what evidence contains and ask for

judgment just on that Who receives evidence:

o General rule: judge receiveso But may delegate to clerk of court (member of Bar) if:

Ex parte In default Parties agreed in writing

o No power to rule on objections to questions/admissibility of evidence – submit report within 10 days


o Clerk and subpoenas: MAY issue subpoena ad testificandum MAY NOT issue subpoena duces tecum unless ordered by

the courtRule 31 – Consolidation or Severance

Consolidation is different from joinder because here, the cases are pending already, while in joinder, the cases have yet to be filed

Actions need common question of law or fact Consolidated in case with the lowest docket number

Rule 32 – Trial by commissioner

Reference by consent:o Written consent by both partieso Any or all of the issues in case may be referred

Reference ordered on motion:o When parties do not consento Either party applies or motu propioo WHEN:

1. Trial requires examination of long account of either side 2. Taking of account necessary for court’s information pre-

judgment or to carry out judgment 3. Question of fact arising upon a motion in any stage of

the case Order of reference

o Commissioner reports on particular issueso May issue subpoenas (both)o May swear witnesseso May rule upon admissibility of evidence (UPO)

Party fails to appear – commissioner MAY:o Proceed ex parteo Adjourn to a later day

If witness refuses, it is considered contempt of court Objection to reports:

o 10 days after notice by clerk of filing

o Objections based on grounds already available during proceedings before the commission NOT considered by court

unless made before the commissioner Other than conclusions and findings

Court may adopt/modify/reject the report BUT if parties stipulate that the commissioner’s findings of fact are FINAL, only

questions of law considered by court

Rule 33 – Demurrer to evidence

Ground: when after presenting evidence, plaintiff has not shown right to relief Motion granted

o Dismiss complainto Remedy of plaintiff is appeal

Motion deniedo Movant has right to present evidenceo Denial interlocutory and NOT appealable

Motion granted but reversed on appealo Movant deemed to have waived right to present evidenceo Order of the court is adjudication on the merits

Need not ask for leave of court (unlike criminal cases)

Rule 34 – Judgment on the Pleadings

Upon motion or court motu propio – decision based on the pleadings alone, with no need to receive evidence (c.f. default, where decision still based on evidence)

Grounds:o Answer fails to tender an issueo Answer admits material allegations of the adverse party’s pleading

Except:o Declaration of nullity of marriageo Annulmento Legal separation

Rule 35 – Summary judgments


When one may move for summary judgment:o Plaintiff/XC/CC/declaratory relief – after answero Defendant – any time

Ground: when there is no genuine issue or controversy as to a material facto Available ONLY in actions to recover a debt, liquidated sum of

money, or for declaratory reliefo Not genuine: issues that are sham, contrived, set up in BF, patently

unsubstantial Timing:

o Motion served at least 10 days before hearingo Affidavits/depositions/admissions by adverse party at least 3 days

before hearing Trial conducted on genuinely controverted facts only Affidavits in bad faith: court orders that party to pay the other party the

reasonable expenses which the filing of the affidavits caused him to incur

Rule 36 – Judgments, final orders, and entry thereof

Judgment on merits/final order:o In writingo Personally and directly prepared by the judgeo State clearly and distinctly the facts and law upon which it is basedo Signedo Filed with clerk of court

HOWEVER, even if the judge who signed was NOT the one who heard the case or wrote the decision (as long as he reviewed it), it is VALID

Memorandum decision : judgment/final resolution adopts by reference findings of facts/conclusions of TC decision

A FINAL judgment may not be modified unless:o To correct clerical errorso To clarify ambiguities in the decisiono When judgment is voido In judgments for support – can be amended from time to time

Attack on judgmento Before finality

Appeal MNT MR

o After finality Relief from judgment Annulment of judgment Petition for certiorari

Several judgmentso If there are several partieso Liability of each much be separate and distinct – i.e. not if liability is

solidaryo Court proceeds against the others

Separate judgmentso If there are several claimso Action proceeds with regard to other claims

Rule 37 – MNT/MR

Grounds for MNT:o FAMEo Newly discovered evidence

Cannot have been discovered with reasonable diligence Discovered after Would probably alter the result

o ** there can be two MNTs, as long as the 2nd MNT is on grounds not existing in first MNT

Grounds for MR:o Excessive damageso Insufficient evidence to justify decisiono Decision contrary to law

Procedure:o In writing + groundso Give NOTICE to adverse party (like motions in Rule 15)o Attach:

For FAME – affidavits of merit


For new evidence – affidavits of prospective witnesses/documents

For contrary to law – point out specifically the findings/conclusions contrary to law

For insufficient evidence – identify the evidence contrary to findings

o If pro forma : WILL NOT TOLL THE PERIOD Failure to comply with above: pro forma

Effect of granting MNT:o Trial de novoo But recorded evidence from prior trial, if relevant, may be used in

NT without retaking the same There can be partial grant of MNT/MR if the issues are severable

o The court may enter judgment/final order as to those not covered by the NT or MR

Remedy against denial of MNT/MRo NOT APPEALABLEo Remedy is appeal from judgment/FO

Rule 38 – Relief from Judgments, orders, or other proceedings

Relief from judgmento Grounds: FAMEo Must be filed by a party in a caseo Provide an affidavit showing FAME

Relief from denial of appealo Grounds: FAME – prevented from taking an appealo Provide an affidavit showing FAME

Time (for both reliefs)o Within 60 days from knowledge of the judgment/FOo BUT NOT MORE THAN 6 months after judgment/FO entered

Order to file an answero Within 15 days from receipt of order

Preliminary injunctiono Court may grant one to preserve rights of the partieso Petitioner must issue a bond in favor of adverse party

o Injunction does NOT discharge/extinguish any lien of the adverse party over the petitioner’s property

Effect, if the petition stands:o Petition for relief from judgment

The judgment/FO will be deemed as if unissued Proceed with trial as if a MNT/MR was granted

o Petition for relief from denial of appeal Appeal given due course

Rule 39 – Execution, satisfaction, and effect of judgments

Execution as a matter of right – on motion – if: Judgment/order disposing of the action Expiration of period to appeal and there was none Appeal perfected and resolved:

o Judgment obligee: Motion to origin court CTC of judgment Notice to adverse party

o Appellate court: May direct origin court to issue writ If interest of justice requires

Exceptions to above rule – where remedy is certiorari (R65) Rebus sic stantibus Writ varies judgment Controversy never submitted for judgment Execution against exempt property Terms of judgment not clear Writ has substantial problems

Exceptions to rule that judgment cannot be modified: Clerical errors/mistakes Clarify ambiguity Nunc pro tunc orders (make present record of order rendered in previous term

but not entered by inadvertence)


Execution as matter of discretion: Execution of judgment/FO pending appeal

o If TC has lost J – file with appellate courto Else, with the TCo “for good reasons”

Execution of several, separate, or partial judgments Stay of DISCRETIONARY EXECUTION:

Judgment obligor files a supersedeas bond But if judgment sustained, the bond may be proceeded against on motion

to surety IF REVERSED after execution:

o Trial court – on motion – may order restitution/reparation

Judgments not stayed by appeal: Injunction Receivership Accounting Support Other judgments declared to be immediately executory

EXECUTION: Within five years from entry – BY MOTION After five years but before prescription – BY ACTION Same rules for revived judgments

In case of death of a party: Death of judgment obligee:

o Application of X/A/successor-in-interest Death of judgment obligor, and judgment is for recovery of real/personal

property:o LIEN over property

Death of judgment obligor, after execution levied upon the property:o SOLD for satisfaction of judgmento Excess returned by officer to X/A

Contents of writ of execution: Name of RP from court which granted the motion State name of court, case number, title, and dispositive portion Require sheriff/officer to enforce Will state manner of execution (against property, sale, delivery) – with

interest, damages, and other costs indicated

EXECUTIONS: Judgments for money

o Obligor pays in cash, certified bank check payable to obligee, or any other form of payment acceptable to latter

o Can’t pay in PN, because it creates new obligationo Turn over:

Amount of judgment debt: To obligee if present To clerk of court/fiduciary account in

government depository bank of RTC of locality if obligee not present

Lawful fees to clerk of court within same day By levy

o If cannot pay in cash/CBC/acceptable form of paymento Choice of property:

Priority to what the obligor chooses If he does not, sheriff chooses REAL or PERSONAL property

– but personal firsto Sell only enough to satisfy fees

Garnishment of debts and creditso Levy on personal property not capable of manual delivery (debts,

credits, deposits, financial interests, royalties, etc.)o Procedure:

Serve notice of garnishment to those having control/possession of credits to which obligor entitled

If more than one garnishee, obligor picks which one

Garnishee makes written report within 5 days w/n there are enough credits


Garnished amount delivered to obligee Judgments for specific act

o Conveyance of property or delivery of documents of title and failure to do so:

Court may compel other person to do the act At cost of obligor Or court may order title to be divested to some other

party – has effect of delivery/conveyanceo Sale of property: court may sell it and apply proceeds to judgmento Delivery or restitution of real property:

Officer demands all persons to peaceably vacate within 3 working days and restore possession to judgment obligee

Otherwise, oust persons through peace officers Rents, damages, costs, etc. executed in same manner as

judgment for moneyo Removal of improvements on property subject to execution

Officer cannot destroy these improvements Except by special order of the court

Upon obligee’s motion and after due hearing After obligor has failed to remove the same

within reasonable timeo Delivery of personal property

Officer takes possession of it and delivers to the party Special judgments

o Indicate in writ what needs to be doneo If party refuses, contempt

Rules on levy on execution As to third persons: their existing liens and encumbrances persist Property exempt from execution:

o Family home, homestead, and land used for theseo Tools of trade/employmento 3 beasts of burden, selected by obligor, used in occupationo Necessary clothing and personal items, EXCEPT jewelryo Furniture and household items, not exceeding 100Ko 4 months worth of provisions

o Professional libraries and equipment, not exceeding 300Ko One boat and accessories for fishermen, not exceeding 100Ko 4 months wages to support familyo Lettered gravestoneso Life insurance, annuities, etco Right to receive legal support and government gratuitieso Exempt propertieso BUT these are NOT EXEMPT if:

the abovementioned were mortgaged there is judgment for recovery of its price

Return of writ of executiono When judgment satisfied in full – return to courto Writ in effect for FIVE years (when it can be enforced by motion)o When judgment not satisfied:

After 30 days, and every 30 days thereafter, the officer reports to court on status

Copies furnished to parties

Sale of property on execution

Notice of sale of property on execution:o Written in notice in place where sale is to take place – 3 public

places: Perishable property – depending on character of property Personal property – at least 5 days Real property – 20 days

Describe property If value more than 50K, publish for 2 consecutive

weeks in newspapero Give written notice to obligor

Same manner as personal service of pleadings At least 3 days before sale Give details of sale (not earlier than 9 am or later than

2pm)o Where sale is:


For real property and property that cannot be manually delivered: in office of clerk of court

For personal property: where it is found Where property claimed by third person:

o 3rd person makes affidavit stating title thereto and serve to officero Officer not bound to keep property

UNLESS obligee gives supersedeas bond Can only recover against the bond for keeping of

property AFTER 120 days from date of filing But no bond required if the obligee is the

Republic of the Philippines This would indemnify third party not less than value of

property If value disagreed upon, court sets

Officer not liable for keeping property if bond filedo Separate actions allowed:

3rd person may still vindicate his claim to the property in a separate civil action

Obligee may file suit against 3rd party for a frivolous claim Penalties:

o Officer selling without notice: 5K to person injured Plus actual damages (in same action)

o Person willfully removing/defacing notice, before sale/satisfaction of judgment

5K to person injured Plus actual damages (in same action)

NO SALE if the obligor pays the amount required + costs incurred Manner of sale:

o Public auctiono After amount satisfied, no more sale – return the property to the

obligoro Property with several lots – sell separatelyo Obligor can direct order of saleo Officer and his deputies cannot purchase or become indirectly

interested in the purchase of properties

Refusal to pay:o Officer may sell to another persono OR the court may order payment, and punish for contempt if he failso Give to obligee, unless there was full satisfaction – give to obligor

If judgment obligee was the purchaser:o Need not pay amount if it did not exceed amount of judgmento If so, he pays only taxes

REDEMPTION of real property sold

Who may redeem:o Judgment obligor or successor-in-interesto Junior mortgagee (redeeming creditor)

May redeem within 1 year from date of registration of certificate Give notice to officer who made sale and file duplicate with ROD Pay purchaser the amount

o Plus 1% interest/montho If junior mortgagee/creditor – also pay the amount of the lien

For creditors – may be redeemed again and again, until 1 yearo Plus 2% interest/montho Pay the amount of the prior redemption

BUT if the obligor redeems, no subsequent redemption allowed Actions pending redemption

o The court may issue injunction to restrain commission of waste on the property – on application by judgment obligee or purchaser

What is not waste : Continuing to use it in same manner in which it was

previously used Ordinary course of husbandry Necessary repairs to buildings

o RENTS: Belong to the judgment obligor under period of

redemption expires When purchaser entitled to conveyance/possession of property:

o When 1 year has elapsed without redemptiono 60 days after the last redemption of a creditor


Although – still respect the 1 year period of the judgment obligor

o ** but take into account rights of third party possessors or mortgagees/creditors

Where purchaser loses possession/right over property and remedies:o GROUNDS for purchaser to lose possession/right over property:

Irregular proceedings Judgment reversed/set aside Property sold exempt from execution Third person has vindicated his claim to property

o Remedies: Motion/separate action to recover price paid with interest Motion – have original judgment revived in his name, for

whole price with interest (same force as original judgment)

Examination of judgment obligor Failure to satisfy judgment – obligee may compel court to issue order

examining obligor to be examined regarding his property and income Court may also require obligor of judgment obligor to be examined:

o Upon proof that he/she/it is indebted to himo Service of order shall bind all credits dueo Payment by obligor of judgment obligor shall satisfy the judgmento If the obligor of the obligor denies the debt or claims interest in the

property: Court may authorize the obligee to institute action against

the obligor’s obligor And seek prevention of disposition of interest within 120

days And punish disobedience of order as contempt

May punish for contempt for failure to appear

Satisfaction rules: Court may order installment payments if current income and expenses of the

judgment obligor looks sufficient to support familyo Failure without good excuse: indirect contempt

Remedies during pendency

o Court may appoint receiver to prevent waste/abuse of property Receiver may be allowed by court to sell the property IF:

1. There is real property in the place where proceedings

2. The judgment obligor has an interest in it (mortgagor/mortgagee/whatever)

3. AND INTEREST CAN BE ASCERTAINED WITHOUT CONTROVERSY

o Or forbid transfer/interference of properties not exempt from execution

EFFECT OF SATISFACTION OF JUDGMENT BY CLERK OF COURTo Entered by clerk of court in court docket and in execution book

WHEN:o 1. Upon return of writ of execution showing full satisfactiono 2. Admission to the satisfaction of obligation by the judgment

obligee/counsel Upon execution/satisfaction – obligor MAY compel the

obligee to admit/endorse admission as to satisfactiono 3. Endorsement of such admission by the judgment obligee on the

face of the record of judgment

Effect of judgments and final orders: 1. Against a specific thing, will/administration, condition/status/relationship of

person:o CONCLUSIVE upon that thing, etc.o Although probate of the will is only prima facie evidence of death of

testator/intestate 2. With respect to matter directly adjudged as could have been raised in

relation to:o CONCLUSIVE between parties and successors in interest by titleo …Litigating over same thing and under same title and capacityo RES JUDICATA

3. Any other litigation between the same parties/successors, what is ACTUALLY AND NECESSARILY INCLUDED therein is conclusive

o PRECLUSION OF ISSUES/CONCLUSIVENESS OF JUDGMENT


Effect of foreign judgments: With regard to specific things: CONCLUSIVE Against persons: PRESUMPTIVE EVIDENCE of right between parties

o Ex. examining probate of will: can be done even if person is still alive – so in this case it’s only presumptive

Judgment/final order may be repelled by:o Want of jurisdictiono Want of notice to partyo Collusiono Fraudo Clear mistake of law or fact

ALL ABOUT APPEALS

ORDINARY APPEAL (notice of appeal) When:

o MTC RTCo RTC (orig. J) CA

Within 15 days after notice of judgment/FOo Exception: habeas corpus case – 48 hours

Notice on appeal: give notice to MTCo Filing = perfectiono Court loses J over case upon perfection of appeal and expiration of

time to appeal of the other parties No extension Procedure upon reaching next-level court:

o After given notice of receipt of record, appellant submits within 15 days a memorandum

Failure to file memorandum here – ground to dismisso Within 15 days after appellee receives appellant memorandum,

appellee may file own memorandum

ORDINARY APPEAL (record on appeal) When:

o Special proceedings

o Multiple appeals Time

o Within 30 days if record on appealo Interrupted by MNT/MR – but no extension

Contains sequential arrangement of memorandao Appellee can object within 5 days from receipt if there are omitted

matterso If the court orders amended to include omitted matters, the

appellant has 10 days (or as provided) to amend Perfected upon approval by court

o Court loses J over SM only upon approval of records on appeal and expiration of time to appeal of the other parties

Appeal from orders dismissing case w/o trial If appeal is taken on order of lower court dismissing case without trial on

merit, RTC may:o Affirm

If dismissal is affirmed, and ground is LACK OF JURISDICTION: RTC tries case as if originally filed there, IF it has J

o Reverse – remand for further proceedings If lower court tried case w/o J over the SM:

o RTC, on appeal, will not dismiss the case IF it has original Jo Decide case according to appeals procedure above

Where there can be no appeals:1. Order denying petition for relief2. Interlocutory order3. Order denying appeal4. Order denying motion to set aside judgment by 5.

consent/confession/compromise on ground of vitiation of consent5. Order of execution6. Judgment/final order on a separate or several claim, when the main case is

still pending, UNLESS court allows appeal7. Order dismissing action without prejudice


BUT ONE MAY file appropriate special civil action: certiorari/prohibition/mandamus

Dismissal of appeal May be:

o motu propioo or upon motion

Grounds:o Non-payment of docket fees and other lawful feeso Filed out of time

(Procedure in the CA for ordinary appeals) Counsel and guardians ad litem automatically still the counsel and guardians

ad litem Briefs

o Appellant’s brief 45 days from receipt of notice of clerk 7 copies + 2 copies served to appellee CONTENTS:

Subject index Assignment of errors Statement of the case Statement of facts Statement of issues Argument(s) Relief

o Appellee’s brief 45 days from receipt of appellant’s brief 7 copies + 2 copies served to appellant CONTENTS:

Subject index Statement of facts or Counter-statement of facts Argument(s)

o Appellant’s reply brief 20 days from receipt of appellee’s brief Optional – to answer points not in main brief

o BRIEFS ARE EXTENDIBLE if there is good and sufficient cause ONLY Special cases

o No briefso MEMORANDA – 30 days, not 45o Non-extendible period

PETITION FOR REVIEW When:

o RTC (appellate J CA) File in CA

o Perfection: filing + payment of feeso RTC loses J upon the concurrence of above + expiration of period to

appeal by all other partieso There will be stay of judgment/FO – unless summary procedure

Timeo Within 15 days from:

Notice of decision OR denial of MNT/MR

o Extensions One 15-day extension allowed No second extension EXCEPT for most compelling reasons

Contentso Names, dates, errors/issues, judgment/FOo CNFSo Verificationo Explanation (if service done other than by personal service)

Grounds to dismiss:o Failure to pay feeso No proof of serviceo Failure to comply with requirements

COURT ACTION:o Dismiss if:

1. Patently w/o merit 2. Manifestly for delay 3. Questions too insubstantial


o Require respondent o file comment, NOT motion to dismiss within 10 days of notice

Thereafter, give due course or dismisso Give due course :

If there is prima facie finding by the CA that the lower court committed a reversible error

Either oral arguments or submission of memoranda w/n 15 days

APPEALS FROM QUASI-JUDICIAL AGENCIES TO THE CA DOES NOT COVER NLRC decisions!

o Can only be reviewed by CA on Rule 65, not this rule (43) (St. Martin’s Funeral Homes)

Requirements are practically the same as Petition for Review, but in addition, all copies are CERTIFIED TRUE COPIES

RTC has original J for intra-corporate disputes and rehabilitationo Remedy for judgments on these fall under THIS rule (43), because it

is akin to exercise of Q-J power by the RTC, to CA (2005 SC Circular)

PETITION FOR REVIEW ON CERTIORARI When:

o Where only questions of law are raised/involved – to SC Time

o Within 15 days from notice of the judgment/FO or denial of MNT/MR

o May grant one 30 day extension May include other provisional remedies Grounds to dismiss:

o Failure to pay docket feeso No proof of service

COURT ACTION:o Deny petition if:

Without merit Prosecuted manifestly for delay Questions raised are too insubstantial

o Grant only if there are special and important reasons

COURT OF APPEALS

Original cases Original actions:

o Certiorario Prohibitiono Mandamuso Quo warranto

CONTENTSo Full names and actual addresses of pets and respondentso Statement of matters/caseo Grounds relied on for reliefo (For Rule 65 – C,M,P) When the judgment/FO received and when

MNT/MR denied (if applicable)o Judgment/FOo Proof of serviceo CNFS

How J over respondent attainedo Service by court of order/resolution on initial action on petitiono OR voluntary submission

ACTIONS BY COURT:o Dismiss outright with specific reasonso OR require respondent to file a comment within 10 days from notice

No comment – court decides based on recordo MAY require hearings or reception of evidence

Annulment of judgment/FO/resolutions ONLY available if the following are NOT available (!):

o MNTo Appealo Petition for reliefo Other appropriate remedies

ONLY grounds:o Extrinsic fraud


This ground not available if availed of in MNT/petition for relief

OR could have been availed of Period: 4 years from discovery

o Lack of J Period: before barred by laches/estoppel

Wheno RTC CAo MTC RTC too!

COURT ACTION:o Dismiss outright – if no substantial merito Give due course – if there is prima facie merit

Then issue summons to respondent Then ordinary civil procedure arises

Effect of judgment:o Set aside without prejudice to refilling in proper court

Suspend prescriptive period for refiling of action from original action to finality of judgment of annulment

EXCEPT if extrinsic fraud attributable to plaintiffo If extrinsic fraud, may just grant new trial

Motions: No hearing or oral argument Thus no need for notice of hearing for motions of CA & SC Only require objections to be submitted within 5 days

GROUNDS TO DISMISS APPEAL1. Failure to show on appeal’s face that it was taken within the period fixed2. Failure to file notice/record of/on appeal within period fixed3. Failure to pay docket and other lawful fees4. Failure to serve and file required number of copies5. Absence of specific assignment of errors or page references in the appellant’s

brief (subject index, statement of case, statement of facts, arguments)6. Failure to correct/complete the record within time of court order7. Failure of appellant to appear in preliminary conference or comply with court

orders

8. Order or judgment is not appealable9. ** ADDITIONAL: when mode of appeal improper10. ** ADDITIONAL: when appeal withdrawn

a. Matter of right before appellee’s briefb. Matter of discretion after

Judgment When deemed to be submitted for judgment (deduce what is applicable)

o Last pleadingo Termination of hearingo Expiration of period for filing comment/pleading/brief

Required voteso UNANIMOUS by defaulto If not unanimous, raffle two judges to form a group of 5 – majority

vote Harmless errors:

o Those that did not affect substantial rights of the partieso Cannot disturb judgment/FO

Questions that may be decidedo Only those stated in assignment of errorso Or closely related/dependent on an assigned error

MR and MNT MR

o Within 15 days of notice of judgment/FOo NO 2nd MR allowedo Resolved within 90 days (different from TC, which is 30 only)o Pendency causes stay of execution

MNTo FAME is NOT a ground in MNT in CA!!! o ONLY newly discovered evidenceo When: after perfected appeal AND before CA loses Jo Resolved within 90 days too

SUPREME COURT


Original caseso C,P,M,QWo HCo Disciplinary proceedings against member of judiciary/attorneyso Cases affecting ambassadors, other public ministers, consuls

Appeal:o Only through petition for review on certiorario Except where there is death, reclusion perpetua, or life

imprisonment in criminal case Grounds to dismiss appeal:

o 1. Failure to take appeal within reglementary periodo 2. Lack of merit in petitiono 3. Failure to pay docket feeo 4. Failure to comply with requirements for proof of

service/documentso 5. Failure to comply with SC order/circular/directive with no just

causeo 6. Error in choice/mode of appeal

Thus dismiss appeal to SC by notice of appeal Except death, reclusion, life

BUT if the petition for review on certiorari contains questions of fact, then the SC may refer it to the CA

o 7. Case is not appealable to SC If there is deadlock en banc:

o Deliberate againo Vote againo If still deadlocked: dismiss motion/judgment or FO stands

PROVISIONAL REMEDIES

Rule 57 – Preliminary Attachment

Nature: a security, to protect right before opponent disposes of the thing

Grounds:

1. Action for recovery of specified amount of money against one about to depart the Philippines with intent to defraud

a. Except moral or exemplary damagesb. Arising from law, K, quasi-K, delict, quasi-delict

2. Action for money embezzled/fraudulently misapplied or converted to own use by the public officer or one with fiduciary capacity

3. Recovery of property unjustly/fraudulently concealed, removed, or disposed to prevent its being found

4. Action against party guilty of fraud in contracting obligation or performance5. Action against party who removed/disposed property or about to, to defraud

creditors6. Party who does not reside and is not found in the Philippines

Two ways:

Ex parte:o Part of initiatory pleading – no notice requiredo Cannot serve order yet not until there has been summons (or with

summons. EXCEPT WHEN: Summons could not be served despite diligent efforts Temporarily absent resident Non-resident In rem or quasi-in-rem action

Motion:o Pending actiono To court where action is pending/CA/SC

BUT the other party may give a bond equal to the value of property sought to be attached to defeat it

Requirements: Affidavit – personally know fasts/some other person does, showing cause, that

there is no other sufficient security, that the amount demanded is equal to demandable sum

Applicant’ bond – which will be used in case the attachment application is rejected, to pay damages to defendant and for costs


Effect of attachment: On debts/credits/etc – these creditors are now liable to the applicant On estate of decedent – does not remove power of X/A/representative; just

report to court; distribution: the attached property goes to sheriff making levy

Discharge of attachment: The person whose property was attached may file a cash deposit or a counter-

bond (if specific property attached, value of that property) If insufficient, and no new counter-bond given, the attaching party may apply

for a new attachment Other grounds to discharge:

o Irregularly issued or enforced attachmento Bond insufficiento Attachment excessive – only excess discharged

… and defect was not cured yet

Where property claimed by third person: 3rd person makes affidavit stating title thereto and serve to officer Officer not bound to keep property

o UNLESS obligee gives supersedeas bond Can only recover against the bond for keeping of property

AFTER 120 days from date of filing But no bond required if the obligee is the Republic of the

Philippineso This would indemnify third party not less than value of property

If value disagreed upon, court setso Officer not liable for keeping property if bond filed

Separate actions allowed:o 3rd person may still vindicate his claim to the property in a separate

civil action Obligee may file suit against 3rd party for a frivolous claim

When judgment enforced: First, that which is attached will be used to satisfy judgment Then, if there is deficiency, ordinary execution

If there are debts owing in favor of the party with attached property, the sheriff may collect from them

Return the excess to judgment obligor IF there is counter-bound, go against it

o Sureties to counter-bond also liable Damages : applies to all provisional remedies, except support

o Can draw from the bondo As long as not yet final and executory

Rule 58 – Preliminary injunction

Note: there can be ordinary civil action for injunction too, but this rule talks about injunction as a remedy

Nature: order granted at any stage of action prior to judgment/final order, requiring a party/court/agency from doing an act

o If it requires instead of prevents, then it is a preliminary mandatory injunction

o Issued by the court where action is pending (if in SC/CA, may be issued even by just a member)

Requisites:1. “Clear and unmistakable right” (Greenfields v Medina)2. Would cause breach to applicant3. Would result to grave or irreparable injury

a. Thus, cannot be given a monetary value

Requirements: Application showing facts Give bond Contemporaneous service of summons (if initiatory pleading)

o Unless cannot be served even with diligent efforts, temporarily absent, or nonresident

Summary proceeding (“sampling of evidence”) to establish prima facie right – within 24 hours

3 types of TRO:


General rule – needs notice and hearing Great or irreparable injury – court may issue ex parte TRO (for 20 day period)

o Within 20 days, party must disprove why there should be no injunction

Matter of extreme urgency –o EXECUTIVE JUDGE (multi-sala) or judge (single-sala) may issue TRO

(for 72 hour/3 day period)o Summary hearing w/n the 3 day period should be extendedo BUT the total should not exceed 20 days (including the 72 hours)

Special time periods:o If CA issued – TRO effective for 60 dayso If SC issued – TRO effective indefinitely unless directed otherwise

BUT decide main case within 6 months , if there is preliminary injunction! (to prevent lazy judges from letting a case with a PI run stale)

Grounds to deny: Shown to be insufficient Denied/dissolved upon affidavits of party enjoined Denied/dissolved if it appears that the party enjoined will suffer irreparable

damage and the applicant may be fully compensated for damageso And the party enjoined files a bond

May be modified, if extent is too great Insufficient bond – may be challenged by the adverse party

o But if bond of the other party also insufficient, the injunction may be restored/applied

o Tranquil: but insufficiency of bond cannot discharge what was granted

Rule 59 – Receivership

Intent: to preserve ONLY provisional remedy that can be asked after judgment is final and

executory Need to file bond

o To compensate in case claim is frivolouso If insufficient bond, then it may be challenged

o BUT if the bond of the other party is also insufficient, then receivership may be appointed/re-appointed

Counter-bond by other party to deny/discharge receivership Receiver ALSO gives bond and says oath

Grounds:1. When the property is in danger of being lost, removed, or materially injured2. In action for foreclosure of mortgage, when the property is in danger of being

dissipated, value might be made insufficient to discharge the mortgage debt, or parties have stipulated

3. AFTER JUDGMENT, to preserve property during appeal pendencya. Appellate court may allow court of origin to hear receivership

application4. Other cases where appointment of receiver most convenient and feasible

means to preserve (catch basin)

Effects: Receiver may do acts as if he had title to the property (transfer, keep, collect

rents, compromise, file/defend actions in own name, etc.)o But investment of funds needs court order upon written consent of

all parties to action Refusal to transfer to receiver – contempt and liable for damages Termination:

o Court motu propio or upon application by either partyo Settle accounts, deliver property to rightful partyo Give reasonable compensation to receiver

Rule 60 – Replevin

Can ONLY be filed anytime before answer Nature: if prayer is recovery of personal property – replevin is order to deliver

property to himo VERY SPECIFIC: can only recover that property

The court:o Determines who deserves possession of propertyo AND EITHER:


Compels delivery of the property Or its value, if there can be no delivery made

Requirements:1. Affidavit:

a. Show that he is owner of property and entitled to possessionb. Show that property is wrongfully detained by other partyc. Show that property was not seized for tax assessment/fine under

law/under execution or attachment/custodia legisd. Show actual market value

2. Bonda. Double the actual market value statedb. Counter-bond: ALSO double the value

Where property claimed by third person: 3rd person makes affidavit stating title thereto and serve to officer Officer not bound to keep property

o UNLESS obligee gives supersedeas bond Can only recover against the bond for keeping of property

AFTER 120 days from date of filing But no bond required if the obligee is the Republic of the

Philippineso This would indemnify third party not less than value of property

If value disagreed upon, court setso Officer not liable for keeping property if bond filed

Separate actions allowed:o 3rd person may still vindicate his claim to the property in a separate

civil action Obligee may file suit against 3rd party for a frivolous claim

Rule 61 – Support Pendente Lite

Before final judgment/order Procedure:

o Application: show financial condition of parties + supporting evidence

o 5 days for adverse party to give comment (verified + supported by evidence)

o Within 3 days after, hearing doneo Court gives ORDER stating support given, amount, etc.

Enforcement of order:o Adverse party that fails to comply with order – court motu propio or

upon motion may issue order of executiono OR if a third person advances support, may ask reimbursement

In criminal cases:o Court may ask the accused to provide support pendent lite to the

child born to the offended party allegedly because of the crimeo …If civil aspect was not waived/reserved/instituted prioro Who can file: offended party, parents, grandparents, guardian, State

Restitution – in case court finds that supporter is not liableo Order recipient to returno Without prejudice to right of supporter to ask reimbursement from

the party actually liable

SPECIAL CIVIL ACTIONS

Rule 62 – Interpleader

Nature:o Conflicting claims over same subject matter – and person initiating

interpleader HAS NO INTEREST whatsoever over the subject mattero Compel the parties to litigate their claims

Any party may file motion to dismisso Due to impropriety of interpleader as actiono Or any other grounds in Rule 16

Filing fees paid by complainanto Treat as lien on judgment

Rule 63 – Declaratory relief and similar remedies


Jurisdiction: RTC has jurisdiction. SC does not, except when couple with an issue of constitutionality.

Tranquil: NO breach, and need imminence (Social Justice Society v Velarde)

Who may file: Any person interested under written instrument or whose rights are affected

by statute Before breach or violation thereof

o If there is breach during pendency of action: convert into ordinary action

Allowed actions: To determine any construction or the validity thereof, and for a declaration of

his rights/dutieso COURT ACTION DISCRETIONARY FOR THIS GROUND – may choose

not to exercise power if decision would not terminate controversy or where declaration not necessary

For reformation of instrument To quiet title/remove clouds To consolidate ownership under pacto de retro arrangement

Impleaded persons: Persons who have interest/claim that will be affected must be made parties Inform Solicitor General if validity of statute in question or constitutionality of

LGU ordinance Validity of LGU ordinance – inform prosecutor/attorney of LGU

Rule 64 – review of judgments and final orders/resolutions of COMELEC/COA

Brought straight to the SC on Rule 65 certiorari (GADALEJ)o Within 30 days, no extensiono But time suspended if MNT/MR filed

Petition o 18 copieso State facts, issues, prayer

o Duplicate original/CTC of judgmento State dates and show compliance with periodo Proof of service

SC action:o Can dismiss petition outright

If not sufficient in form or substance Or if filed merely to delay or questions too unsubstantial

o OR can require respondents to file comments within 10 days from notice

Filing DOES NOT stay execution of the final order/resolution

Rule 65 – Certiorari, prohibition, mandamus

Certiorario NOT an appealo When:

An officer exercising judicial/quasi-judicial powers acted with GADALEJ

AND there is no appeal or any plain, speedy, and adequate remedy under ordinary course of law (like NLRC decisions)

o To annul or modify proceedings, with incidental reliefso Accompanied by CTC of judgment, copies of pleadings, and CNFS

Prohibitiono When:

An officer exercising judicial/quasi-judicial/ministerial acted with GADALEJ

AND there is no appeal or any plain, speedy, and adequate remedy under ordinary course of law

o To command respondent to desist from further proceedings, with incidental reliefs

o Accompanied by CTC of judgment, copies of pleadings, and CNFS Mandamus

o Officer unlawfully neglects performance of a ministerial acto No other plain, speedy, and adequate remedy in ordinary court of

lawo To have the person do the act required


o Accompanied by CTC of judgment, copies of pleadings, and CNFS

When/where: For all – file within 60 days

o But time suspended by MNT/MRo No extension

If act/omission of MTC/corporation/board/officer/person:o In RTC exercising J over the territorial areao Or in the CA/Sandiganbayan

Act/omission of a quasi-judicial agencyo Only by the CA

Act/omission of MTC/RTC in election caseso Only to the COMELEC

Procedure: Join the officer/tribunal/board/etc as private respondent, and it is their duty

to defend both:o Private respondent (those interested in sustaining proceedings)o Public respondent (government entity)

ONLY the private respondent responsible for award Public respondent: shall not appear unless directed by the court

o If elevated to higher court – public respondent appears as nominal party

o BUT shall not appear/participate unless directed by court

Effects: These petitions should not suspend proceedings in main case

o Unless there is a TRO/preliminary injunction against public officer in main case

o Public respondent proceeds with principal case within 10 days of filing petition for certiorari – failure to do so: administrative charge

Court may dismiss it if:o Filed manifestly for delayo Too unsubstantial to merit consideration

Court may punish lawyers who file these patently dilatory and unmeritorious petitions

Rule 66 – Quo Warranto Action by government ONLY

o EXCEPTION: when a person claims to be entitled to a public office – may commence action in own namer

o Only done WITHIN ONE YEAR of cause of ouster Nature: action for usurpation of office/position/franchise Against:

o 1. Person who usurps or unlawfully holds public office/position/franchise

o 2. Public officer who does act that constitutes ground for forfeiture of public office

o 3. Association which acts as a corporation within the Philippines without lawful incorporation

When action MUST be commenced and when action MAY be commenced: MUST be commenced by Sol Gen or public prosecutor:

o 1. Directed by Presidento 2. Good reason to believe that it can be established by proof

MAY be commenced by Sol Gen or public prosecutoro 1. At the request and upon relation of another person

But the Sol Gen/public prosecutor may request for indemnity for costs and expenses to be given by the relating person

Venue: SC, CA, RTC exercising jurisdiction over area where RESPONDENT resides BUT when Sol Gen commences, may be in:

o SC, CA, or RTC of Manila

Effects (if petition successful): Oust and exclude the usurper Petitioner takes oath, gives bond, and can demand all documents from

respondent with pain of contempt if he failso Action for damages only WITHIN ONE YEAR of entry of judgment


Rule 67 – Expropriation Two stages:

o Expropriationo Just compensation

Must be for public purpose Real/personal property ALWAYS in RTC regardless of amount Entry can be made upon deposit of assessed value with authorized

government authority

Procedure: If no objection or defense:

o Respondent just files appearance and manifestationo Becomes entitled to notice of all proceedings

If with objection or defenseo File answero No CC/XC/3p allowed

All objections not given deemed waivedo Except amendments within 10 days of answer

BUT regardless, if there is appearance or answer, respondent MAY file claim for just compensation

THEN, court gives order of expropriationo May be appealed by any aggrieved partyo BUT this does not stop just compensation proceedings from pushing

through 3 commissioners ascertain just compensation

o Assess consequential damages and consequential benefits for the owner. BUT consequential benefits cannot exceed consequential damages.

Commissioners’ reporto Parties have 10 days to objecto Court may: accept, recommit for further report on facts, set aside

and appoint new commissioners, accept in part, make any order to secure rights

If there are conflicting claims:

o Any compensation paid for the property must be paid to the court to benefit the person adjudged to be entitled thereto

o Payment needed before entry but if there was entry already, court keeps the money for public use

After favorable judgment:o Pay just compensation AND THEN enter and appropriateo Or if there was prior payment for entry, may RETAINo Entry not delayed by appeal

Rule 68 – Foreclosure of Real Estate Mortgage JUDICIAL FORECLOSURE

o Not extra-judicial foreclosure under Act 3135

Procedure File complaint with details Court ascertains the amount due

o Renders judgment on debto Orders payment to court/judgment obligee in 90-120 dayso Else, sell in public auction

Who possesses the property:o Until finality of order of confirmation/expiration of period of

redemption: MORTGAGORo Upon finality: MORTGAGEE/PURCHASER

Where proceeds go:o 1. Pay off debt of mortgagoro 2. Pay junior encumbrancerso 3. Balance to mortgagor

If debt not at all due:o Sell portion of property to cover costs due and then sale terminates

If there is deficiency:o Court renders judgment on balanceo There can be execution (as long as those debts are already due)

COMPARE: Banking Law

o Bank possesses after auction and receives profits and rents


o The mortgagor can post a bond to recover Whether or not extra-judicial or judicial foreclosure, recovery is 1 year

o If the mortgagor is a natural persono BUT if the mortgagor is a juridical person:

Before registration of sale OR before 90 days, whichever comes first

Rule 69 – Partition

Rule 70 – Forcible Entry and Unlawful Detainer Within 1 year, else it becomes accion publiciana Need to prove:

o Prior physical possessiono Force, intimidation, strategy, stealth, threat

Lessor can only proceed against lessee if there is prior demand (to pay or vacate)

Judgment conclusive only on possession – BUT not conclusive in actions involving title or ownership

o Will not bar subsequent action between same parties respecting TITLE to the property

IMMEDIATE EXECUTION OF JUDGMENTo MTC – unless appeal perfected AND appellant files a supersedeas

bondo RTC – immediately executory without prejudice to appeal

Unless upper level court grants injunction (Benedicto case)

Rule 71 – Contempt Direct contempt

o Punished summarilyo In presence of judge or courto Punishment:

Fine of not more than 2K or imprisonment not more than 10 days (RTC or higher)

Fine of not more than 200 or imprisonment not more than 1 day (if lower court)

o Remedy: cannot appeal

But may do certiorari or prohibition Suspend punishment if there is bond

Indirect contempto Charge is in writingo Grounds:

Misbehavior of officer of court in official duties Disobedience to lawful writ/order/process/judgment of

court or entry/inducing entry into a property which has been adjudged upon

Abuse or unlawful interference with processes of court Any improper conduct directly or indirectly impeding

administration of justice Assuming to be attorney/officer without authority Failure to obey subpoena Rescue/attempt of person under custody

o Modes for indirect contempt: 1. Motu propio by court 2. Verified petition with particulars

Filed and docketed separately from the main case

Unless court orders consolidationo Punishment for indirect contempt:

RTC or higher: fine not exceeding 30K or imprisonment not exceeding 6m

Lower court: not exceeding 5K or imprisonment not exceeding 1m

Administrative contempto Check if the body has its own ruleso If none, ROC applyo Venue – RTC of place where the contempt was committed

various - tuazon civpro reviewer (salvador)

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