WHAT IS JUDICIAL POWER?

Differentiate between errors of judgment and

errors of jurisdiction.
Judicial power includes the duty of the courts of
justice to settle actual controversies involving An error of judgment is one which the court may
rights which are legally demandable and commit in the exercise of its jurisdiction they
enforceable, and to determine whether or not are reviewable on appeal.
there has been a grave abuse of discretion
An error of jurisdiction renders an order or
amounting to lack of jurisdiction on the part of
judgment void or voidable they are reviewable
any branch or instrumentality of the government.
on certiorari.
WHAT ARE THE CLASSES OF COURTS?
WHAT ARE THE CLASSES OF JURISDICTION?
1. General jurisdiction competent to decide their
(1) General extends to all controversies which
own jurisdiction and take cognizance of all causes,
may be brought before a court
civil or criminal, of a particular nature;
Special confined to particular causes
Special jurisdiction incapable of deciding their
own jurisdiction and taking cognizance of only a (2) Original inherent in a court of first instance
few matters.
Appellate power of a superior court to rehear
2. Original jurisdiction where a cause arises; and determine causes which have been tried in
inferior courts
Appellate jurisdiction where a cause is reviewed.
(3) Exclusive possessed by a court to the
3. Courts of law administer justice according to
exclusion of all others
the law;
Concurrent exercised by different courts at the
Courts of equity - administer justice according to
same time over the same subject matter
the principles of equity.
(4) Criminal exists for the punishment of crimes
4. Courts or record; courts not of record.
Civil exists when the matter is not criminal in
5. Civil courts determine controversies between
nature
private persons; criminal courts adjudicate
offenses committed against the state. (5) Territorial power of the court with reference
to the territory within which it is to be exercised
6. Superior courts exercise original and
supervisory jurisdiction; (6) Jurisdiction over the subject matter power to
hear cases of the general class to which the
Inferior courts have very limited jurisdiction and
proceedings in question belong
are subject to review.
(7) Jurisdiction over the person power to render
7. Constitutional courts owe their existence to
a personal judgment against a person
the constitution;
(8) Jurisdiction over the res or property
Statutory courts owe their existence to statute,
obtained by a constructive service of process or
although they may have been mandated by the
seizure of the property under legal process
Constitution.
HOW IS JURISDICTION OVER THE SUBJECT
DISTINGUISH BETWEEN COURTS AND
MATTER ACQUIRED?
JUDGES.
It is conferred by law and in the manner
Courts may exist without a judge. There may be a
prescribed by law.
judge without a court. Disqualification of a judge
does not destroy the court. Courts are first HOW IS JURISDICTION OVER THE PERSON
created and then judges are appointed to preside. ACQUIRED?
Plaintiff: by filing the complaint
WHAT IS JURISDICTION? Defendant:
It is the authority to hear and determine a cause a. by service of summons, either personal or
or the right to act in a case. It does not depend on substituted
the regularity of the exercise of the power or the
correctness of the decisions made. b. by voluntary appearance

An error committed in the exercise of jurisdiction

does not deprive a court of jurisdiction.

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 appearance does not necessitate
physical presence in the court; it
includes the filing of pleadings
What are the elements of jurisdiction in civil
cases?
The court must have jurisdiction over the:
a. subject matter
b. parties
c. res, if jurisdiction over the person cannot
be acquired and:
1. the defendant does not reside and
cannot be found in the Philippines,
and:
i. the action affects the
personal status of the
plaintiff, OR
ii. the action relates to
property in the Philippines
in which the defendant
has an interest, OR
iii. the relief demanded in the
action consists in
excluding the defendant
from any interest in
property located in the
Philippines, OR
iv. the defendants property
has been attached within
the Philippines.
CAN THE PARTIES DEPRIVE A COURT OF ITS
JURISDICTION BY AGREEING THAT ANY
CONTROVERSIES ARISING FROM A
CONTRACT WILL BE REFERRED TO
ARBITRATION ALONE?
No. Arbitration can be made a condition precedent
to an action in court and it may be stipulated that
the arbitrators award is final and valid but the
award will always be subject to judicial review
under the grounds provided for in the Civil Code
and in the Arbitration Law.
WHAT IS THE CONSTITUTIONAL LIMITATION
ON THE POWER OF CONGRESS TO
DETERMINE THE JURISDICTION OF COURTS?
Congress can define, prescribe, and apportion the
jurisdiction of various courts but:
a. it cannot deprive the sc of its minimum
appellate jurisdiction;
b. it can increase the appellate jurisdiction
only with the ADVICE AND CONCURRENCE
of the SC and;
Civil Procedure Reviewer
Cayo 2D
c. it can reorganize the judicial system
provided it does NOT UNDERMINE THE
SECURITY OF TENURE OF ITS MEMBERS
WHAT IS THE ORIGINAL JURISDICTION OF
THE SC?
Original cases involving ambassadors, public
ministers, consuls;
Petitions for certiorari, mandamus, prohibition,
quo warranto, habeas corpus
Original and Exclusive petitions for certiorari,
mandamus, and prohibition against the CA,
COMELEC, COA, Sandiganbayan
Original and Concurrent with the CA CPM
against the NLRC, CSC, CBAA, CTA, QJ, RTC,
lower courts
Original and Concurrent with the CA and RTC
CPM against lower courts and bodies;
Petitions for habeas corpus and quo warranto
Original and Concurrent with the RTC cases
involving ambassadors, public ministers, consuls;
WHAT IS THE APPELLATE JURISDICTION OF
THE SC?
A. Appeal by notice of appeal:
Criminal cases from the RTC or the
Sandiganbayan where the penalty imposed is
reclusion perpetua or higher and other offenses,
though not so punished, arose out of the same
occurrence or were committed on the same
occasion. Facts and law are reviewed.
B. Automatic review:
Criminal cases where the death penalty is
imposed.
C. Appeal by petition for review on certiorari:
1. Appeals from the CA
2. Appeals from the Sandiganbayan on questions
of law, unless the penalty imposed is RP or higher
3. Appeals from the RTC exercising original
jurisdiction in the following cases:
a. If no question of fact is involved (if question of
fact, appeal to CA):
Constitutionality or validity of any treaty, PD, etc
Legality of any tax, impost, toll, assessment,
penalty imposed
Jurisdiction of lower court is in issue
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b. all cases where only questions of law are
involved
WHAT IS THE ORIGINAL JURISDICTION OF
THE CA?
Original and Exclusive actions for annulment
of the RTC on the grounds of extrinsic fraud and
lack of jurisdiction
Original and Concurrent with the SC - CPM
against the NLRC, CSC, CBAA, CTA, QJ, RTC,
lower courts
Original and Concurrent with the SC and the
RTC - CPM against lower courts and bodies;
Petitions for habeas corpus and quo warranto
WHAT IS A CIVIL ACTION?
One by which a party sues another for the
enforcement of protection of a right or the
prevention or redress of a wrong. It may either be
ordinary or special.
WHAT IS A CRIMINAL ACTION?
One by which the state prosecutes a person for an
act or omission punishable by law.
WHAT IS A SPECIAL PROCEEDING?
It is a proceeding to establish the status or right
of a party, or a particular fact.
DISTINGUISH A REAL ACTION FROM A
PERSONAL ACTION.
Real actions are actions affecting title to, or
possession of real property, or interest therein, or
forcible entry and detainer actions.
Personal actions are founded on privity of contract
or for the enforcement or resolution of a contract,
or for recovery of personal property.
DISTINGUISH BETWEEN ACTIONS IN
PERSONAM, IN REM, AND QUASI IN REM.
An action in personam is one whose technical
object is to establish a claim against a person,
with a judgment which generally binds his body,
or to bar some individual claim or objection, so
that only certain persons are entitled to be heard
in defense. Examples are actions to enforce
specific performance or seek resolution.
An action in rem is one whose object is to bar
indifferently all who might be minded to make an
objection of any sort against the right sought to
be established, and where anyone in the world
has a right to be heard on the matter. An example
is a land registration proceeding.
Civil Procedure Reviewer
Cayo 2D
An action quasi in rem is one where an individual
is named as a defendant and the purpose of the
proveeding is to subject his interest in the
property to the obligation or lien burdening it.
Examples are actions for attachment, foreclosure,
etc.
WHEN IS AN ACTION COMMENCED?
A civil action is commenced by the filing of the
original complaint in court.
WHAT MUST ACCOMPANY THE COMPLAINT?
There must be concurrent payment of docket fees.
Without payment of docket fees, the court does
not acquire jurisdiction over the subject matter
and no pleading is considered as filed. Hence, the
prescriptive period continues to run.
WHAT IS A CAUSE OF ACTION AND WHAT
ARE ITS ELEMENTS?
A cause of action is the act or omission by which a
party violates the right of another. Its essential
elements are:
(1) The legal right of the plaintiff;
(2) Correlative obligation of the defendant,
and;
(3) Act or omission of the defendant in
violation of the plaintiffs legal right.
DIFFERENTIATE BETWEEN A CAUSE OF
ACTION AND A RIGHT OF ACTION.
A right of action is a remedial right belonging to a
person which depends on substantive law.
A cause of action is a formal statement of the
operative facts that give rise to such remedial
rights it is governed by the laws on procedure.
WHAT ARE THE RULES ON JOINDER OF
CAUSES OF ACTION?
(1) The rules on joinder of parties must be
observed;
(2) Special civil actions or actions governed
by special rules are not covered;
(3) In case of different venues or
jurisdictions, the joinder may be made in
the RTC provided it has jurisdiction over
one of the causes of action and the venue
lies therein;
(4) When all the causes of action are for
recovery of money, the aggregate amount
claimed shall be the test of jurisdiction.
WHAT IS THE EFFECT OF A MISJOINDER OF
CAUSES OF ACTION?
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It is not a ground for dismissal but the causes of
action may be severed and proceeded with
separately, either upon motion or motu proprio.
If there is no objection to the misjoinder, they
may be adjudicated together.
WHO MAY BE PARTIES TO A CIVIL ACTION?
Natural or juridical persons, or entities authorized
by law (corporations by estoppel but only to be
sued).
WHEN MAY ASSOCIATIONS WITHOUT
JURIDICAL PERSONALITY BE SUED WITHOUT
MAKING ALL THE MEMBERS PARTIES TO THE
SUIT?
(1) When they are so numerous that it is
impracticable to name them all;
(2) When the suit is against a corporation by
estoppel.
WHEN MAY THE STATE BE SUED?
(1) When it enters into a private contract;
(2) When it enters into a business operation
unless it does so as a necessary incident
of its governmental function;
(3) When the state sues a private party,
unless to resist a claim;
(4) When the state fails to abide by what the
law or contract requires.
WHEN IS A SUIT AGAINST THE STATE?
(1) When the suit is against the Republic in
name;
(2) When the suit is against a government
office or agency without juridical
personality.
WHO IS A REAL PARTY IN INTEREST?
He is the party who stands to be benefited or
injured by the judgment in the suit or the party
entitled to the avails of the suit. As a general rule,
every action must be prosecuted or defended in
the name of the real party in interest.
Ex. when an agent sues in behalf of the principal
or is sued as a representative of the principal, the
principal must be made a party to the suit.
WHAT IS A PERMISSIVE JOINDER OF
PARTIES AND WHEN MAY IT BE MADE?
It is where a right to relief arising from the same
transaction exists in the plaintiffs or against the
defendants to be joined.
Civil Procedure Reviewer
Cayo 2D
The requisites are:
(1) Right to relief in respect to or arising out
of the same transaction or series of
transactions, and;
(2) Common question of law or fact in the
action.
DISTINGUISH BETWEEN INDISPENSABLE
AND NECESSARY PARTIES.
Indispensable parties are parties in interest
without whom no final determination of an action
can be had. His interest in the subject matter and
the relief sought are so inextricably intertwined
with the other parties that his legal presence as a
party to the proceeding is an absolute necessity.
Failure to join an indispensable party will prevent
the court from exercising judicial power.
A necessary party is one whose interest in the
controversy or subject matter is distinct and
divisible from the interest to the other parties and
will not necessarily be prejudiced by a judgment.
He should be joined whenever possible because
his presence would permit complete relief or a
complete determination of the controversy.
WHAT HAPPENS WHEN THE PLEADER FAILS
TO JOIN A NECESSARY PARTY?
(1) The pleader must set forth the partys
name and the reason for the omission;
(2) The court may order the inclusion of the
omitted party if it finds the reason to be
unmeritorious provided jurisdiction over
his person may be obtained;
(3) Failure to comply with the order of
inclusion, without justifiable cause, shall
be a waiver of the claim against such
party;
(4) The non-inclusion of the necessary party
does not prevent the court from
proceeding with the action, and the
judgment rendered shall be without
prejudice to the rights of the necessary
party.
WHAT IS THE REMEDY AGAINST AN
UNWILLING CO-PLAINTIFF?
He may be made a defendant and the reason
therefor shall be stated in the complaint.
WHAT IS THE EFFECT OF MISJOINDER OR
NON-JOINDER OF PARTIES?
Neither is a ground for a dismissal of an action.
The parties may be dropped or added by order of
the court upon motion or motu proprio at any
stage of the action and on terms that are just. A
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claim against a misjoined party may be severed
and proceeded with separately.
WHAT ARE THE REQUISITES OF A CLASS
SUIT?
(1) The subject matter of the controversy is
one of common or general interest to
many persons, and;
(2) The interested person are so numerous
that it is impracticable to bring them all
before the court.
WHAT ARE ALTERNATIVE DEFENDANTS?
When the plaintiff is uncertain against who of
several persons he is entitled to relief, he may
join any or all of them as defendants in the
alternative, although a right to relief against one
may be inconsistent with a right of relief against
the other.
Ex: An action against a principal and an agent in
the alternative if the agency is proved then the
principal will be bound; if not, the agent will be
bound.
WHAT IS THE RULE WHEN THE NAME OR
IDENTITY OF A DEFENDANT IS UNKNOWN?
He may be sued as the unknown owner, heir,
devisee, etc. and when his identity is discovered,
the pleading must be amended.
WHAT IS THE RULE WHEN AN ENTITY
WITHOUT JURIDICAL PERSONALITY IS
SUED?
When two or more persons not organized as an
entity with juridical personality enter into a
transaction, they may be sued under the name by
which they are commonly known.
In the answer of such defendant, the names and
addresses of the persons composing said entity
must all be revealed.
The service of summons may be effected upon all
by serving upon any one or on the person in
charge of the office maintained under such name.
WHAT ARE THE RULES AND WHAT IS THE
DUTY OF COUNSEL WHEN A PARTY DIES AND
THE CLAIM IS NOT EXTINGUISHED?
(1) Counsel must inform the court within 30
days after the death and give the name
and addresses of his legal representative.
Failure to do so is a ground for disciplinary
action;
(2) The heirs may be allowed to substitute for
the deceased;
Civil Procedure Reviewer
Cayo 2D
(3) The court shall order the legal
representatives to appear and be
substituted within 30 days from notice;
(4) If no legal representative appears, the
adverse party may be ordered to procure
the appointment of one and the court
charges may be recovered as costs.
WHEN DOES AN ACTION SURVIVE; WHEN IS
IT EXTINGUISHED?
If the wrong complained of affects primarily
property and property rights and the injuries to
the person are merely incidental, the action
survives. If the injury complained of is the
primary cause of action, then the action does not
survive.
OTHER RULES AS TO DEATH OF THE PARTY:
If the court is informed of the death but
no substitution is made and the
proceeding continue, the resulting
judgment is void because the court never
acquired jurisdiction over the substitute.
If there is no notice of death and the court
has no knowledge thereof, any
subsequent judgment will be valid.
OTHERS:
Public officer - When a public officer who
was a party to an action in his official
capacity ceases to hold office pending the
action, the same may be continued
against his successor if within 30 days
after assumption of office, the court is
satisfied that (1) there is substantial need
for continuing the action and (2) that the
successor adopts the action of his
predecessor.
Incompetent If a party becomes
incompetent, the action may be continued
by or against him assisted by his legal
guardian.
Transfer of interest In case of transfer
of interest, the action may be continued
by or against the original party unless the
court, upon motion, directs the person to
whom the interest has been transferred to
be substituted.
Contractual money claims When the
action is for recovery of money arising
from a contract and the defendant dies
before final judgment the action shall not
be dismissed but shall continue until entry
of judgment. A favorable judgment shall
be enforced against the estate of the
deceased.
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 If the defendant dies before the action
was filed, the claim must be filed with a
probate court.
If the money claim arises not out of
contract (quasi-delict), the claim may be
filed against the executor.
Indigent party A party may be
exempted from payment of docket fees,
other fees, and stenographic notes, if the
court is satisfied, upon his ex parte
application, that he has no money or
property sufficient for food, shelter, and
basic necessities. The fees shall constitute
a lien on any favorable judgment.
The adverse party may contest the order
granting the exemption and if it found that
the person has sufficient property, the
proper fees shall be imposed and he may
even be sanctioned with dismissal of the
complaint.
Notice to the SolGen The court may
require the appearance of the SolGen in
any case involving the validity of any law,
treaty, etc.
VENUE IN CIVIL CASES IS SUBJECT TO
STIPULATION the parties can validly agree in
writing before the filing of the action on the
exclusive venue thereof and it is only when there
is no stipulation that the following rules will apply.
Remember that stipulations as to venue must be
clear and categorical as to the court with
jurisdiction and not merely permissive.
WHAT IS THE VENUE OF REAL ACTIONS?
Actions affecting title to or possession of real
property, or interest therein, shall be tried in the
court which has jurisdiction over the area where
the real property of a portion thereof is situated.
In case of forcible entry or unlawful detainer
actions, the action shall be tried in the municipal
trial court.
WHAT IS THE VENUE OF PERSONAL
ACTIONS?
Personal actions may be tried where the plaintiff
or any of the principal plaintiff or the defendant or
any of the principal defendants resides or in case
of a non-resident defendant, where he may be
found. The plaintiff has the right to choose from
the above venues.
IMPT: An action for the cancellation of a REM is a
personal action. It is primarily to compel the
Civil Procedure Reviewer
Cayo 2D
mortgagee to accept payment of the debt. There
is no issue as to the lots.
WHAT IS THE VENUE OF ACTIONS AGAINST
NON-RESIDENTS?
If the defendant does not reside AND is not found
in the Philippines, and the action affects the
personal status of the plaintiff or any property of
said defendant located in the Philippines, the
action may be tried in the court of the place
where the plaintiff resides, or where the property
or any portion thereof is situated or found.
This is not applicable to actions in personam,
where jurisdiction over the person must be
acquired. What are covered here are judgments
against the res or the property or status of the
non-resident who cannot be found.
WHAT ARE PLEADINGS AND WHAT ARE THE
PLEADINGS ALLOWED?
Pleadings are the written statements of the
respective claims and defenses of the parties
submitted to the court for appropriate judgment.
The pleadings containing claims are complaints,
counterclaims, cross-claims, third (fourth, etc.)
party complaints, or complaints in intervention.
The defenses are alleged in the answer, which in
turn may be responded to by a reply.
DEFINITIONS:
COMPLAINT pleading alleging the plaintiffs
cause or causes of action. The names and
residences of the defendant must be stated in the
complaint.
The complaint must contain only ultimate
facts and not evidentiary matters or
conclusions of law.
Exhibits cannot take the place of the
allegations.
The occurrence of a condition precedent
must be alleged and proved.
The cause of action is determined not by
the relief sought but by the relief available
under the law.
ANSWER pleading in which a defending party
sets forth his defenses.
WHAT ARE THE KINDS OF DEFENSES?
Negative specific denial of the material fact or
facts alleged in the pleading of the claimant
essential to his cause or causes of action.
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Affirmative allegation of a new matter, which of time and effort by the parties and the
hypothetically admits the allegations of the courts.
claimant but constitutes a bar to the claim.
Examples are fraud, prescription, release,
payment, illegality, statute of frauds, estoppel, CROSS CLAIM any claim by one party against a
former recovery, discharge in bankruptcy, etc. co-party which MUST arise out of the transaction
or occurrence that is the subject matter either of
HOW MUST A DENIAL OF THE ALLEGATIONS
the original action or of a counterclaim therein.
IN THE COMPLAINT BE MADE?
Specifically - allegations not specifically denied,
other than as to the amount of unliquidated REPLY it is filed in response to an answer to
damages are deemed admitted. deny new matters alleged by way of defense in
the answer and thereby join or make issue as to
Specific denials are made in the following
such new matters. If no reply is filed, all the
manners:
matters in the answer are deemed controverted.
(1) The defendant must specify each material
Remember, a reply is in response to an answer
allegation he does not admit and set forth the
and not to a counterclaim or cross-claim.
matters to support his denial.
(2) Where only part of an averment is to be
denied, the defendant shall specify what is THIRD (FOURTH, ETC.)-PARTY COMPLAINT
true and deny the remainder. a claim that a defending party may, with leave of
court, file against a person not a party to the
(3) Where a defendant is without sufficient
action for relief in respect of his opponents claim.
knowledge to form a belief as to the truth of
an averment, he may state so and this shall
be a specific denial.
BRINGING NEW PARTIES, WHAT AND HOW.
When the presence of parties is required for
COUNTERCLAIM any claim which a defending granting of complete relief (necessary parties) in
party may have against an opposing party. the determination of a counter-claim or cross
claim, the court shall order them to be brought in
***A counterclaim is not an answer, nor is it part
as defendants, if jurisdiction over them can be
of the answer. It is a distinct cause of action
obtained.
which must be answered by the adverse party
within 10 days from service. This is different from a third-party complaint
because in this case, one of the parties is already
impleaded and another party is necessary, not for
COMPULSORY COUNTERCLAIM one that is: a new cause of action, but for a more thorough
adjudication of the case.
(1) cognizable by the regular courts or justice
(a labor claim cognizable by the NLRC
cannot be the subject of a counterclaim) ;
WHAT ARE ALTERNATIVE CAUSES OF ACTION
(2) arises out of or is connected with the / DEFENSES?
transaction or occurrence constituting the
These are when a party has separate causes of
subject matter of the opposing partys
action or defenses and such are set forth in the
claim (if it does not, it is merely a
pleading alternatively.
permissive counterclaim);
Ex: Alternative causes of action could asserted
(3) does not require for its adjudication the
when the plaintiff does not know the complete
presence of third parties of whom the
facts and instead sets forth several scenarios, in
court cannot acquire jurisdiction.
the alternative, each giving him a different cause
WHEN IS A COUNTERCLAIM COMPULSORY? of action Say Fact 1 is established; the plaintiff
can couple it with Hypothesis 1 or 2 or 3, and in
When:
each case come up with a different cause of
(1) It is logically related to the claim being action.
asserted by the opposing party and;
Alternative defenses would be that the defendant
(2) Separate trials of the claim and the was induced to enter into the contract by fraud
counterclaim would involve a duplication

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but even if the contract were perfectly valid, the
action to enforce it had already prescribed.
WHAT IS THE FIRST THING THAT A
CORPORATION (OR ANY OTHER PARTY)
MUST SET FORTH IN A PLEADING?
That it has the capacity to sue or be sued.
WHAT MAY A DEFENDANT DO IN CASE HE
WISHES TO CONTEST THE PLAINTIFFS
CAPACITY TO SUE?
File a motion to dismiss or set it up as an
affirmative defense.
HOW MUST FRAUD, MISTAKE, AND
CONDITIONS OF THE MIND BE ALLEGED?
Fraud and mistake must be alleged with
particularity the acts constituting such must be
set forth. Malice, intent, and other conditions of
the mind may be averred generally.
HOW ARE ACTIONABLE DOCUMENTS
PLEADED?
(1) The substance of the document must be set
forth in the pleading;
(2) The original or a copy of the document shall
be:
a. Attached to the pleading as an exhibit
OR
b. Said copy shall be set forth in the
pleading
Actionable documents are those on which a cause
of action (a PN) or a defense (a receipt
acknowledging payment) may be based.
HOW ARE ACTIONABLE DOCUMENTS
CONTESTED?
The genuineness (not fake) and due execution
(executed with authority) of an actionable
document properly pleaded is deemed admitted
unless the adverse party:
(1) Specifically denies them; and
(2) Sets forth what he claims to be the facts;
(3) Under oath.
a. The requirement of the oath does not
apply when:
i. The adverse party (against
whom the instrument is being
asserted) is not a party to the
instrument OR
ii. Compliance with an order for
inspection of the original
instrument is refused.
Civil Procedure Reviewer
Cayo 2D
WHAT IS THE EFFECT OF A FAILURE TO
PLEAD DEFENSES AND OBJECTIONS?
Defenses and objections not pleaded either in a
motion to dismiss or in the answer are deemed
waived except the following:
(1) Lack of jurisdiction over the SM;
(2) Prescription;
(3) Lis pendens;
(4) Res judicata.
This waiver is revocable and may be corrected
through an amendment of the answer with leave
of court.
WHAT IS THE EFFECT OF A FAILURE TO SET
UP A COMPULSORY COUNTERCLAIM?
It shall be barred. The rationale is that the
counterclaim could have best been adjudicated
during the proceedings and the courts will not
permit subsequent filing of suit due to the partys
failure to set it up.
WHAT IS THE EFFECT OF A FAILURE TO SET
UP A CROSS-CLAIM?
It shall be barred. Same rationale as the
counterclaim.
IMPT: A COUNTERCLAIM OR A CROSS-CLAIM
THAT EXISTS AT THE TIME THE ANSWER IS
FILED MUST BE CONTAINED THEREIN.
OTHERWISE, IT SHALL BE BARRED. THIS IS
A COMPULSORY COUNTERCLAIM. Unless, of
course, the court allows the answer to be
amended on the grounds of oversight,
inadvertence, or excusable neglect (see page 9).
WHAT IF THE COUNTERCLAIM OR CROSS-
CLAIM MATURES AFTER THE PLEADING OR
OTHER ANSWER IS FILED?
The pleader may file a supplemental pleading
containing the counterclaim or cross-claim, with
leave of court. This is not a compulsory pleading.
WHEN IS AN AMENDED ANSWER PROPER; A
SUPPLEMENTAL ANSWER?
An amended answer is proper if at the time the
original answer was filed, the counterclaim or
cross-claim ALREADY EXISTED but was not set up
due to oversight, inadvertence, or excusable
negligence.
A supplemental answer is proper if the
counterclaim or cross-claim MATURES AFTER the
answer is filed. This after acquired counterclaim is
not compulsory.
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In both cases, leave of court is necessary.
LETS TALK ABOUT DEFAULT. HOW IS AN
ORDER OF DEFAULT MADE?
(1) The defending party fails to answer within
the time allowed;
(2) The plaintiff files a motion to have the
defendant declared in default;
(3) The court renders judgment according to
the complaint or requires the submission
of evidence (may be to the clerk of court).
WHAT IS THE EFFECT OF AN ORDER OF
DEFAULT?
The party in default is ENTITLED TO NOTICE but
may not participate in the trial.
HOW CAN RELIEF FROM AN ORDER OF
DEFAULT BE OBTAINED?
The party declared in default may:
(1) after notice;
(2) before judgment;
(3) file a motion under oath to set aside the
order upon showing that:
a. his failure to answer was due to
FAME (fraud, accident, mistake,
excusable negligence) AND
b. he has a meritorious defense.
WHAT IS THE EFFECT OF A PARTIAL
DEFAULT?
When there is a common cause of action against
several defendants and only a number of them
answer, such answers shall serve as such for
those who failued to answer.
What is the extent of relief to be awarded in a
judgment by default?
(1) It shall not exceed the amount or be
different in kind from that prayed for.
(2) It shall not award unliquidated damages
(damages must be proved by evidence).
WHEN CAN THERE BE NO JUDGMENT BY
DEFAULT?
In actions for annulment and legal separation, to
prevent collusion.
HOW ARE PLEADINGS AMENDED?
By adding or striking out:
(1) an allegation, or;
(2) the name of any party, or;
Civil Procedure Reviewer
Cayo 2D
(3) by correcting a mistake in the name of a
party, or;
(4) a mistaken or inadequate allegation or
description
(5) so that the actual merits of the case may
be determined without regard to
technicalities and in a speedy and cheap
manner.
WHEN IS AN AMENDMENT A MATTER OF
RIGHT?
An amendment is a matter of right:
(1) only once;
(2) at any time before a responsive pleading
(i.e. an answer to a complaint; reply to an
answer) is served
a. in case it is a reply that will be
amended, within ten days after its
service
IMPT: A motion to dismiss is not a responsive
pleading. If the only reply to a complaint is a
motion to dismiss, the plaintiff may still amend his
complaint once as a matter of right (provided the
complaint was not dismissed and the dismissal
final).
PROBLEM: A COMPLAINT IS PROPERLY
AMENDED, ALLEGING NEW CAUSES OF
ACTION. MUST SUMMONS BE SERVED AGAIN
ON THE DEFENDANT?
It depends.
If the defendant has already appeared in court, it
is sufficient that a copy of the amended complaint
be served upon him.
If the defendant has not yet appeared in court,
another summons must be served with the
amended complaint; otherwise, the court has no
jurisdiction to render judgment on the new causes
of action.
WHAT IS THE RULE WITH REGARD TO
SUBSTANTIAL AMENDMENTS?
If the amendment is only the first one and is
made before the responsive pleading is filed, it is
a matter or right.
Otherwise, leave of court is necessary, as well as
notice to the other party and opportunity to be
heard.
HOW ABOUT FORMAL AMENDMENTS?
Clerical and typographical errors may be:
(1) Summarily corrected by the court;
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 (2) At any stage of the proceedings; (2) claims or defenses in the superseded
pleading not incorporated in the amended
(3) Provided no damage is caused to the
pleading are deemed waived.
adverse party.
So always make sure not to omit such claims or
PROBLEM: SEVERAL ISSUES WERE NOT
defenses.
RAISED BY THE PLEADINGS BUT WERE
TRIED WITH THE CONSENT OF THE PARTIES.
WHAT SHALL BE DONE?
PERIODS WITHIN WHICH TO FILE
Upon motion of any party, even after judgment, RESPONSIVE PLEADINGS:
the pleadings may be amended to conform to the
evidence by raising the issued. Failure to amend Answer to complaint 15 days from receipt
will not affect the result of the trial. So bakit pa? of summons or

PROBLEM: EVIDENCE IS PRESENTED AT THE 30 days from receipt

TRIAL AND OBJECTED TO BECAUSE THE of summons if
ISSUE IT SEEKS TO RESOLVE IS NOT WITHIN foreign corp. and
THOSE RAISED IN THE PLEADINGS. WHAT summons served on
SHALL BE DONE? govt officer

The court may allow amendment of the pleadings Answer to amended 10 days from service
if the presentation of the evidence will serve the complaint of copy if matter of
ends of substantial justice. right

WHEN ARE SUPPLEMENTAL PLEADINGS 15 days from notice

PROPER? admitting if not
matter of right
(1) Upon motion;
Answer to 10 days from service
(2) With notice; counterclaim or of copy
(3) Upon just terms; cross-claim

(4) A party seeks to set forth occurrences Answer to third Just like complaint
which happened after the pleading sought party complaint (15/30)
to be supplemented. Answer to 10 days from notice
DISTINGUISH BETWEEN AMENDED AND supplementary of order admitting
SUPPLEMENTAL PLEADINGS. complaint the same

Amended pleadings ALLEGE FACTS WHICH Reply to answer 10 days from

OCCURRED PRIOR to the filing of the original
pleading but which were not alleged because of
oversight, inadvertence, or subsequent discovery.
Supplemental pleadings ALLEGE FACTS
WHICH OCCURRED AFTER the filing of the original
pleading.
WHAT DOES AN AMENDED PLEADING LOOK
LIKE?
The amended pleading must indicate the
amendments by appropriate marks. This is to
enable the court and the other party to know
which are the amendments without having to
search for them.
WHAT IS THE EFFECT OF AN AMENDED
PLEADING?
It supersedes the pleading amended but:
(1) admissions in superseded may be received
in evidence against the pleader and;
pleading responded
to
WHEN MUST THE ANSWER TO THE
COMPLAINT BE FILED?
Generally, 15 days after service of summons
unless otherwise provided by the court.
In case the defendant is a foreign private juridical
entity and the summons is served on:
a. the resident agent 15 days
b. the government official designated to
receive the same 30 days from receipt
of home office
(1) foreign corporations SEC; foreign
banks BSP; foreign insurance
companies Insurance Commissioner

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WHEN MUST AN AMENDED COMPLAINT
(COUNTERCLAIM, CROSS-CLAIM, ETC.) BE
ANSWERED?
(1) If it is filed as a matter of right (see page 9)
15 days from service of copy;
(2) If its filing is not a matter of right (see page
9) 10 days from notice of order admitting
the same (in this case, the amendment
requires notice and hearing)
WHEN MUST A COUNTERCLAIM OR CROSS-
CLAIM BE ANSWERED?
10 days from service.
WHEN MUST A THIRD (FOURTH, ETC.)-PARTY
COMPLAINT BE ANSWERED?
Same as an answer to a regular complaint 15
days from service of summons unless otherwise
provided by the court (30 if foreign juridical
person and summons served on govt officer).
WHEN MUST A REPLY BE FILED?
10 days from service of the pleading responded
to.
WHEN MUST AN ANSWER TO A
SUPPLEMENTAL COMPLAINT BE FILED?
10 days from notice of the order admitting the
same, unless a different period is ordered by the
court. If the original complaint has been answered
and no answer to the supplemental complaint is
filed, the original answer shall serve as the
answer to the supplementary complaint.
CAN THERE BE EXTENSIONS GIVEN TO THE
PERIODS WITHIN WHICH TO FILE
PLEADINGS?
Yes. Upon motion and on such terms as may be
just, the court may extend the time to plead or
even allow a pleading to be filed after expiration.
IMPT: ONE OF JUSTICE SABIOS FAVORITES:
The motion for extension must be filed before the
expiration of the period. If it is filed after, there is
nothing more to extend.
Also, Justice Sabio stresses that counsel should
always be prepared for a denial of the motion for
extension, or any motion for that matter, and
have the appropriate pleading on hand.
WHAT IS A MOTION FOR A BILL OF
PARTICULARS?
It is a motion requesting for a definite statement
of any matter which is not averred with sufficient
Civil Procedure Reviewer
Cayo 2D
particularity to enable him to properly prepare his
responsive pleading.
REMEMBER, A BILL OF PARTICULARS IS THE
DOCUMENT CLARIFYING THE PLEADING
WHICH WAS THE SUBJECT OF THE MOTION
FOR A BILL OF PARTICULARS.
Ex: A complaint was found to be vague. The
defendant files a motion for a bill of particulars. If
the court grants the motion, the claimant then
submits the bill of particulars clarifying the
indefinite points.
AT WHAT POINT IN TIME SHOULD A MOTION
FOR A BILL OF PARTICULARS BE FILED?
It should be filed within the period allowed for the
filing of the responsive pleading.
WHAT HAPPENS AFTER THE COURT GRANTS
THE MOTION FOR A BILL OF PARTICULARS?
There must be compliance (submission of the bill)
within 10 days from notice of the courts order.
WHAT IF THERE IS INSUFFICIENT OR NO
COMPLIANCE TO THE ORDER FOR THE
SUBMISSION OF THE BILL OF PARTICULARS?
The court may order the striking out of the
pleading or the specific vague portions or even
dismiss the complaint.
WHAT HAPPENS WHEN THE BILL OF
PARTICULARS IS SERVED OR THE MOTION IS
DENIED?
After it is filed, and the bill is served or the motion
is denied, the moving party may file his
responsive pleading within the period to which he
was entitled at the time the motion was filed. This
period shall not be less than five days.
DISTINGUISH BETWEEN FILING AND
SERVICE.
Filing is the act of presenting the pleading or other
paper to the clerk of court.
Service is the act of providing a party with a copy
of the pleading or paper concerned.
Service may be made upon counsel or the party
unless service upon the party is ordered by the
court. One counsel representing several parties is
entitled only to one copy served by the opposite
side.
WHEN CAN SERVICE UPON A PARTY HIMSELF
BE ORDERED?
(1) When counsel of record cannot be located;
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(2) When the party is ordered to show cause why
he should not be punished for contempt.
WHAT IS THE MANNER OF FILING?
(1) personally, by presenting original copies to
the clerk of court
the clerk shall indicate on the pleading the
date and hour of filing
(2) by registered mail
1) the post office stamp shall be considered
as the date of the filing the envelope
must be attached to the rollo.
CAN THE FILER USE PRIVATE LETTER
FORWARDERS SUCH AS DHL, FEDEX, ETC?
Yes. However, the downside is that the pleadings
are considered filed only when actually received
by the clerk of court.
SO WHAT DO YOU DO FIRST, FILE OR SERVE?
It depends.
Judgments, resolutions and orders of the courts
must first be filed with the clerk of court before
they are served upon the parties. Filing them with
the clerk is promulgation unlike in criminal cases
where the reading of the judgment serves as
promulgation. (I suppose its the judge that files
them.)
Pleadings subsequent to the complaint (because
you dont serve the complaint on the defendant;
rather, it is attached to the summons) and written
motions must first be served upon the parties
before they are filed in court.
HOW ARE PLEADINGS AND PAPERS SERVED?
Service may either be:
(1) personal
a. delivering the papers to the party or
his counsel
b. leaving it in his office with his clerk or
with a person having charge thereof
c. as a last resort, by leaving it at the
partys or counsels residence
i. between 8am and 6pm
ii. with a person of sufficient age
and discretion RESIDING
THEREIN
(2) by registered mail
a. depositing a copy in the post office
b. in a sealed envelope
Civil Procedure Reviewer
Cayo 2D
c. plainly addressed to the party or his
counsel at his office or residence
d. with instructions to the postmaster to
return to sender after 10 days if
undelivered
(3) by ordinary mail if no registry service is
available in the locality of the sender or
addressee.
WHAT IF PERSONAL OR SERVICE BY MAIL OF
PLEADINGS AND PAPERS CANNOT BE MADE?
If personal service or service by mail cannot be
made, service may be made by:
(1) delivering the copy to the clerk of court
(2) with proof of failure of both personal service
and service by mail
The service shall be complete at the time of such
delivery.
HOW ARE JUDGMENTS, FINAL ORDERS, AND
RESOLUTIONS SERVED?
Either personally or be registered mail. But if a
party summoned by publication fails to appear in
the action, service may also be by publication.
Only final orders are covered here. Interlocutory
orders are served in the same manner as
pleadings and papers.
WHY IS ORDINARY MAIL NOT AVAILABLE AS
A MODE OF SERVICE OF FINAL ORDERS OR
JUDGMENTS?
These are appealable and it is necessary that the
appeal period may be computed. Actual receipt
must be known.
WHEN IS SERVICE COMPLETE?
(1) Personal upon actual delivery
(2) Registered mail
a) upon actual receipt by the addressee as
shown by the registry return card (a
certification by the postmaster and the
delivery book can be substituted) or
b) after 5 days from the date he received the
first notice of the postmaster, whichever is
earlier.
(3) Ordinary mail upon the expiration of 10
days after mailing, unless otherwise provided
by the court.
BETWEEN THE DENIAL OF RECEIPT BY A
LAWYER AND A CERTIFICATION BY THE
POSTMASTER OF THE SENDING OF THE
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NOTICE, WHAT SHOULD BE GIVEN addressed to the court, with
CREDENCE? postage prepaid, and with
instructions to return to sender
The postmaster, of course. There is a presumption
that an official duty was regularly performed. (4) If by ordinary mail
WHAT IS THE PREFERRED MODE OF a. An affidavit of the mailer that there is
SERVICE? no registry service available in either
or both localities
Personal service , whenever practicable shall be
the mode. DISCUSS THE RULE REGARDING A NOTICE
OF LIS PENDENS.
Except with respect to papers emanating from the
court (judgments, orders, resolutions) a resort to Where the action affects the title or the right of
other modes must be accompanied by a written possession of real property, the plaintiff or the
explanation why service was not done personally. defendant may record in the register of deeds a
If there is no such explanation, the court may notice of the pendency of the action.
consider the paper or pleading as not filed.
The notice shall contain:
Distance from the court or from the adverse party
is a good reason. a. the names of the parties;
HOW IS FILING PROVED? b. the object of the action or defense;
The filing of a pleading or a paper shall be proved c. a description of the property affected.
by:
The notice binds third parties only upon its filing.
(1) its existence in the rollo;
It may be cancelled upon order of the court if:
(2) If filed personally
a. it was only for the purpose of molesting the
a. by the written or stamped adverse party or
acknowledgement of its filing by the
clerk on a copy; b. it is not necessary to protect the rights of the
parties.
(3) if by registered mail
a. by the registry receipt AND
WHO ISSUES SUMMONS? WHEN? WHAT ARE
b. an affidavit of the mailer containing ITS CONTENTS?
i. a full statement of the date The clerk of court issues summons upon:
and place of the deposit in the
post office in a sealed a. the filing of the complaint, and;
envelope, addressed to the b. the payment of the requisite legal fees
court, with postage prepaid,
and with instructions to return The summons shall be:
to sender a. directed to the defendant,
HOW IS SERVICE PROVED? b. signed by the clerk under seal,
(1) By a written admission of the party served; c. and contain:
(2) If personal service: i. the name of the court
a. By the official return of the server; ii. the names of the parties to the action;
b. By the affidavit of the server, iii. a direction that the defendant answer
containing a full statement of the within the proper period;
date, place and manner of serving;
iv. a notice if there is no answer, plaintiff
(3) If by registered mail: will obtain judgment by default and
a. by the registry receipt AND may be granted the relief applied for

b. an affidavit of the mailer containing d. attached to the summons shall be:

1. a full statement of the date and i. a copy of the complaint and;

place of the deposit in the post
office in a sealed envelope,

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 ii. an order for appointment of a
guardian ad litem, if any.
WHAT IS THE IMPORTANCE OF SERVICE OF
SUMMONS?
It is the manner by which jurisdiction over the
person of the defendant is acquired. A judgment
rendered without service of summons is void
unless jurisdiction has been acquired by voluntary
appearance of the defendant.
HOW IS JURISDICTION ACQUIRED OVER
ADDITIONAL DEFENDANTS?
Summons must be served upon the new party as
if he were an original party defendant (see page 7
- Bringing New Parties).
PROBLEM: A COMPLAINT IS PROPERLY
AMENDED, ALLEGING NEW CAUSES OF
ACTION. MUST SUMMONS BE SERVED AGAIN
ON THE DEFENDANT?
It depends.
If the defendant has already appeared in court,
even if just to file a motion to dismiss, it is
sufficient that a copy of the amended complaint
be served upon him.
If the defendant has not yet appeared in court,
another summons must be served with the
amended complaint; otherwise, the court has no
jurisdiction to render judgment on the new causes
of action.
WHO MUST SERVE THE SUMMONS?
a. The sheriff;
b. His deputy;
c. Any suitable person authorized by the court,
for justifiable reasons.
Service by any other person is INVALID.
WHAT IS A RETURN OF SUMMONS? WHAT IS
ITS PURPOSE?
When service has been completed, the server
shall, within 5 days:
a. serve a copy of the return personally or by
registered mail to the plaintiffs counsel and
b. return the summons to the clerk who issued
it, accompanied with proof of service.
The return is important so the plaintiff may know
when to file an motion to have the defendant
declared in default.
WHAT IS AN ALIAS SUMMONS?
An alias summons is issued when:
Civil Procedure Reviewer
Cayo 2D
a) the summons has been lost, or;
b) a summons is returned without being served
1. in this case, the server shall, within 5
days, serve a copy on plaintiffs counsel,
stating the reasons for failure
HOW IS SUMMONS SERVED?
1) As much as possible, by PERSONAL SERVICE,
which means:
a. Actual delivery, or;
b. Tender, in case the defendant refuses
to receive the summons
2) SUBSTITUTED SERVICE, if for justifiable
causes, the defendant cannot be served
personally. How?:
a. Leaving copies of the summons at the
defendants residence with:
i. some person of suitable age
ii. and discretion
iii. residing therein
b. leaving copies at the defendants
office or regular place of business
with:
i. some competent person
ii. in charge of the office
WHAT ARE THE REQUISITES OF
SUBSTITUTED SERVICE?
(1) The defendant cannot be served
personally within a reasonable time;
(2) The impossibility should be shown by
stating the efforts made to serve the
summons personally and that the efforts
failed. This is shown in a proof of service.
HOW IS SUMMONS IN AN ACTION IN
PERSONAM SERVED ON A RESIDENT
TEMPORARILY OUTSIDE OF THE
PHILIPPINES?
1. By substituted service, or;
2. By extraterritorial service.
Substituted service is the normal means;
extraterritorial service is extraordinary.
HOW IS SERVICE OF SUMMONS MADE ON
ENTITIES WITHOUT JURIDICAL
PERSONALITY (CORPORATIONS BY
ESTOPPEL)?
All the persons can be served by:
a. Serving upon any one of them or;
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 b. Serving upon the person in charge of the Philippines or must be engaged in business in the
office maintained in such name. Philippines.
HOW IS SERVICE OF SUMMONS MADE ON SO THE RULES WITH REGARD TO FOREIGN
PRISONERS? CORPORATIONS ARE:
Summons shall be served by the officer managing Doing business with license may sue, may be
the penal institution; he is deemed deputized as a sued
special sheriff for the purpose.
Doing business without license may not sue,
HOW IS SERVICE OF SUMMONS MADE ON may be sued
MINORS AND INCOMPETENTS?
Not doing business, with license may sue, may
1. By service on him personally, and; be sued (I think)
2. By service on his guardian or his guardian Not doing business, without license may not
ad litem. sue, may not be sued
3. In case of a minor, service may also be on HOW IS SERVICE OF SUMMONS MADE ON
one of his parents. PUBLIC CORPORATIONS?
HOW IS SERVICE OF SUMMONS MADE If the defendant is the Republic, upon the Solicitor
DOMESTIC PRIVATE JURIDICAL ENTITIES? General.
Service must be made on its: If the defendant is a political subdivision, on its
executive head or such other officers as the court
a. President;
may direct.
b. Managing partner;
HOW IS SERVICE OF SUMMONS MADE ON
c. General Manager; DEFENDANTS WHOSE IDENTITY OR
WHEREABOUTS ARE UNKNOWN AND CANNOT
d. Corporate Secretary; BE ASCERTAINED WITH DILIGENT INQUIRY?
e. Treasurer; In this case, service may, by leave of court, be
f. In-house Counsel effected by publication in a newspaper of general
circulation.
Service on any other officer is invalid.
HOW IS SERVICE OF SUMMONS MADE ON
HOW IS SERVICE OF SUMMONS MADE ON DEFENDANTS WHO DO NOT RESIDE AND
FOREIGN PRIVATE JURIDICAL ENTITIES CANNOT BE FOUND IN THE PHILIPPINES
WHICH HAVE TRANSACTED BUSINESS IN
THE PHILIPPINES? or

Service must be made on: WHEN IS EXTRATERRITORIAL SERVICE

PROPER?
1. its resident agent, or;
1. Service may be effected extraterritorially:
2. on any of its officers or agents within the
Philippines, or; a. By personal service, or;

3. with the government officer designated by b. By publication in a newspaper of

law. general circulation

WHAT DOES IT MEAN TO BE DOING In this case, a copy of the

BUSINESS? summons and the order for
publication shall be sent to the
There must be a continuity of conduct and last known address of the
intention to establish a continuous business. defendant
PROBLEM: X CORPORATION, A FOREIGN c. In any other manner which the court
JURIDICAL ENTITY, HAS NO LICENSE TO DO may deem sufficient.
BUSINESS IN THE PHILIPPINES BUT ENTERS
INTO ONE TRANSACTION IN THE 2. When the defendant does not reside AND is
PHILIPPINES. CAN X CORPORATION BE not found in the Philippines, and;
SUED? 3. The action is in rem or quasi in rem or in
No. In order to be sued, the foreign corporation other words:
must either have a license to do business in the

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 a. Affects the personal status of the motion to dismiss for any grounds is not
plaintiff, or; considered as having voluntarily submitted
himself to the courts jurisdiction.
b. Relates to property:
i. within the Philippines in which
WHAT IS A MOTION? WHAT IS ITS FORM?
the defendant has an interest,
WHAT ARE ITS CONTENTS?
OR;
A motion is an application for relief other than by
ii. in which the relief demanded
a pleading.
consists in excluding the
defendant from any interest It must be in writing unless it is made in open
therein, OR court or in the course of a hearing or trial as such
are made in the presence of the adverse party
iii. belonging to the defendant
who has opportunity to object.
within the Philippines, which
has been attached It shall:
The defendant shall have at least 60 days after (1) State the relief sought, and;
notice to answer.
(2) the grounds on which it is based, and;
WHAT IS THE PRIMARY PURPOSE OF
(3) if necessary, be accompanied by supporting
EXTRATERRITORIAL SERVICE OF SUMMONS?
affidavits and papers.
It is only for complying with the requirement of
WHEN ARE SUPPORTING AFFIDAVITS
fair play. Jurisdiction over the person is not
NECESSARY?
essential in actions in rem or quasi in rem.
(1) When so required by the rules;
What constitutes proof of service of summons?
(2) If the facts alleged in the motion are not of
Proof of service shall:
judicial notice;
(1) be in writing by the server;
(3) A motion to set aside a judgment of default
(2) set forth the manner, place, and date of must be accompanied by an affidavit of merit.
service;
WHEN ARE SUPPORTING AFFIDAVITS NOT
(3) specify the name of the person who received NECESSARY?
the summons;
(1) If the ground on which the motion is based
(4) specify any papers which have been served appears in the rollo;
with the process;
(2) A motion to set aside an order of default need
(5) be sworn to when made by a person other not be accompanied by an affidavit of merit if
than a sheriff or his deputy (because such the ground is interruption of the reglementary
duties are covered by their oath of office). period by the filing of a motion to dismiss.
But if the service was made by publication, proof WHEN SHOULD MOTIONS BE HEARD?
shall constitute:
Motion day is Friday, in the afternoon; and when
1. the affidavit of the printer, editor, etc.; Friday is a non-working day, in the afternoon of
the next working day.
2. a copy of the publication;
Except for ex parte motions (which may be acted
3. an affidavit showing the deposit in the
upon without hearing) all written motions shall be
post office of:
set for hearing.
a copy of the summons and;
The hearing date shall be set by the movant and
order for publication he shall give notice to the affected party in such a
manner as to ensure receipt by the latter at least
NOTE: As discussed under jurisdiction, voluntary 3 days before the hearing date.
appearance of the defendant can take the place of
service of summons to vest the court with DESCRIBE THE NOTICE.
jurisdiction over his person.
(1) It must be addressed to all parties concerned;
Appearance can be the filing of an answer, the
filing of a motion for extension, but not the filing
of a motion to dismiss. A defendant who files a

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(2) Specify the time and date of the hearing,
which must not be more than 10 days after
the filing of the motion (to avoid delay).
WHEN MUST NOTICE BE SERVED?
At least three days before the hearing or Tuesday,
at the latest:
1. if given by registered mail:
a. actually received by Tuesday or
b. the first notice of the
postmaster should be 5 days
before Tuesday
2. if given by ordinary mail, mailed 10
days before Tuesday
WHEN CAN THE 3 DAY PERIOD NOT BE
FOLLOWED?
a. Urgent motions, such as a
motion for postponement due to
sudden illness of counsel can
have shorter notice;
b. A motion for summary judgment
must be served 10 days before
the hearing
WHAT ARE SOME EX PARTE MOTIONS?
Motions for extension to file pleadings,
applications for writs of preliminary attachment,
restraining orders, etc.
WHAT IS THE EFFECT OF THE ABSENCE OF
NOTICE OF HEARING TO THE ADVERSE
PARTY AND PROOF OF SERVICE?
The motion is a mere scrap of paper.
SO THE STEPS IN SETTING A MOTION FOR
HEARING ARE (AS FAR AS I CAN FIGURE
OUT):
(1) Serve on the affected parties a copy of the
motion and notice of hearing (at least 3 days
before the hearing date);
(2) File the motion in court and set the hearing
date attaching to the motion proof of service
of the motion and notice.
IMPT: A motion attacking a pleading, order, or
proceeding must include all motions available and
objections not included shall be waived. The Rules
discourage the filing of multiple motions.
Objections excluded from this rule are:
(1) Lack of jurisdiction over the SM;
(2) Prescription;
(3) Lis pendens;
Civil Procedure Reviewer
Cayo 2D
(4) Res judicata.
Ex: A motion to dismiss should include all grounds
available at that time.
OTHERS:
A motion for leave to file a pleading or
motion should be accompanied by the
motion or pleading sought to be admitted.
WHEN MUST A MOTION TO DISMISS BE
FILED AND WHAT ARE THE GROUNDS?
An motion to dismiss must be filed within the time
but before filing the answer to the complaint
(counterclaim, etc.).
The grounds are [JJVLPSNEUC]:
(a) that the court has no jurisdiction over the
person of the defendant;
(b) that the court has no jurisdiction over the
subject matter of the claim;
(c) that venue is improperly laid;
(d) that the plaintiff has no legal capacity to sue;
(e) that there is another action pending between
the same parties for the same cause;
(f) that the cause of action is barred by a prior
judgment or by the statute of limitations;
(g) that the pleading asserting the claim states no
cause of action;
(h) that there has been payment, waiver,
abandonment, or other extinguishment of the
obligation;
(i) that the claim is unenforceable under the
statute of frauds;
(j) that a condition precedent for filing has not
been complied with.
WHAT ARE THE REQUISITES OF LIS
PENDENS?
(1) the same parties, or at least such as represent
the same interest;
(2) the same rights asserted, and the same relief
prayed for;
(3) this relief must be founded on the same facts,
and the title or essential basis for the relief
sought must be the same;
(4) the identity in these particulars should be
such that a judgment in one would constitute
res judicata.
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How do you determine which of the two actions
should be dismissed?
The following are things to consider:
(1) the date of filing, with the first action
preferred;
(2) whether the action sought to be dismissed
was merely to preempt the later action or to
anticipate its filing and lay the basis for its
dismissal; and
(3) whether the action is the appropriate vehicle
for litigating the issues between the parties.
WHAT ARE THE REQUISITES OF RES
JUDICATA?
(1) The former judgment or order must be final;
(2) It must have been rendered by a court having
jurisdiction over the subject matter and the
parties;
(3) It must have been based on the merits;
(4) There must be identity of:
a. parties;
b. subject matter, and;
c. cause of action
WHAT IS THE TEST OF WHETHER THE
COMPLAINT STATES A CAUSE OF ACTION?
The test is whether, admitting the facts alleged,
the court could render a valid judgment in
accordance with the relief sought.
WHAT ARE EXAMPLES OF CONDITIONS
PRECEDENT TO THE FILING OF SUITS?
a. failure to avail of barangay conciliation
where the same is required
b. lack of earnest efforts to reach a
compromise in suits between family
members
WHAT ACTIONS IS THE COURT LIMITED TO
AFTER HEARING A MOTION TO DISMISS?
The court may:
(1) dismiss the action;
(2) deny the motion;
(3) order amendment of the pleading.
WHAT SHOULD THE MOVANT DO IF THE
MOTION TO DISMISS IS DENIED? IF AND
AMENDMENT OF THE PLEADING IS
ORDERED?
Civil Procedure Reviewer
Cayo 2D
If the motion is denied he shall be entitled to
the time remaining when he served his motion but
not less than 5 days.
If the pleading is ordered amended, the periods in
Rule 11 shall apply (15 days if amendment is a
matter of right; 10 if not)
WHAT IS THE EFFECT OF AN ORDER OF
DISMISSAL?
Res judicata if the grounds for dismissal are:
(1) res judicata or prescription;
(2) extinguishment of the obligation;
(3) unenforceability;
(4) lis pendens
OTHERS:
The grounds for a motion to dismiss may also be
pleaded as affirmative defenses.
The dismissal of a complaint upon a motion to
dismiss does not prevent the adverse party from
prosecuting a counterclaim.
How is an action dismissed by the plaintiff?
(1) by filing a NOTICE of dismissal at any time
before service of:
a. the answer, OR;
b. a motion for summary judgment.
Upon filing of the notice, the court shall
confirm the dismissal.
The dismissal is without prejudice except:
i. It is stated in the notice that
dismissal is with prejudice;
ii. when the notice is filed by a
plaintiff who has once dismissed
an action based on the same
claim.
(2) By filing a MOTION to dismiss after the service
of the answer
Upon approval of the court and upon
terms and conditions deemed proper.
Only the original complaint is dismissed
any counterclaims survive and may be
resolved in the same action or in a
separate action.
When may an action dismissed due to the
plaintiffs fault?
When:
Page 18 of 70
(1) The plaintiff fails to appear without justifiable WHAT IS THE EFFECT OF FAILURE TO
cause on the date of presentation of his APPEAR AT PRE-TRIAL?
evidence;
Failure of plaintiff dismissal with prejudice,
(2) The plaintiff fails to prosecute his case for an unless otherwise ordered.
unreasonable length of time;
Failure of defendant plaintiff may present
(3) The plaintiff fails to comply with a court order evidence ex parte.
or the Rules.
WHEN SHOULD A PRE-TRIAL BRIEF BE FILED
Dismissal is either upon motion of the AND WHAT SHOULD IT CONTAIN?
defendant or motu proprio.
It should be filed in court and served on the
Dismissal constitutes res judicata unless the adverse party at least three days before the pre-
court orders otherwise. trial.
It shall contain:
WHEN IS PRE-TRIAL CONDUCTED? (a) a statement of willingness to enter into
amicable settlement;
After the last pleading is served and filed, it is the
duty of the plaintiff to move ex parte that the case (b) a summary of admitted facts;
be set for pre-trial.
(c) the issues to be tried;
What is the nature and purpose of a pre-trial?
(d) the documents to be presented;
Pre-trial is mandatory. The court shall consider:
(e) a manifestation of intention to avail of
(a) the possibility of an amicable settlement or of discovery procedures or referral to
a submission to alternative modes of dispute commissioners;
resolution;
(f) the number and names of witnesses and the
(b) the simplification of the issues; substance of their testimonies;
(c) the necessity or desirability of amending the (g) applicable laws and jurisprudence;
pleadings;
(h) the available trial dates of counsel.
(d) the possibility of obtaining stipulations or
admissions of facts and of documents to avoid
unnecessary proof;
(e) the limitation of the number of witnesses;
(f) the advisability of a preliminary reference of
issues to a commissioner;
(g) the propriety of rendering judgment on the
pleadings, or summary judgment, or of
dismissing the action should a valid ground
therefor be found to exist;
(h) the advisability or necessity of suspending the
proceedings; and
(i) such other matters as may aid in the prompt
disposition of the action.
It is the duty of the parties and counsel to
appear at the pre-trial. Non appearance of a
party can be excused only if:
o A valid cause is shown; or
o A representative appears on his behalf
fully authorized in writing (special
authority) to enter into an amicable
settlement, enter into stipulations,
etc.

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Cayo 2D
WHAT ARE THE REQUISITES FOR
INTERVENTION?
The intervenor must:
(1) Have legal interest in the matter in
controversy; or
(2) Have legal interest in the success of either of
the parties;
(3) Have legal interest against both; or
(4) Be so situated as to be adversely affected by
a disposition of property in the custody of the
court;
(5) Intervention will not unduly delay or prejudice
the adjudication of rights of original parties;
and
(6) Intervenors rights may not be fully protected
in a separate proceeding.
WHAT KIND OF INTEREST MUST AN
INTERVENOR HAVE?
His interest must be actual, material, direct, and
immediated, and not simply contingent and
expectant.
WHEN SHOULD THE MOTION TO INTERVENE
BE FILED?
At any time before rendition of judgment by the
trial court. A copy of the pleading-in-intervention
should be attached.
WHAT ARE THE PREFERRED CASES?
Habeas corpus cases, election cases, special civil
actions, and others required by law.
HOW ARE CASES ASSIGNED?
By raffle, in open session, with sufficient notice so
those interested may be present.
WHAT IS A SUBPOENA?
It is a process directed to a person requiring him
to attend and to testify at:
(1) a hearing, trial, or
(2) investigation,
(3) or for the taking of his deposition.
If he is required to produce books,
documents, etc. it is a subpoena duces tecum
If both testimony and production of
documents, etc., it is a subpoena duces tecum
ad testificandum.
Civil Procedure Reviewer
Cayo 2D
WHO ISSUES A SUBPOENA?
(1) the court before whom the witness is required
to attend;
(2) the court of the place where the deposition is
to be taken;
(3) the officer or body authorized to do so in
connection with an investigation;
(4) and Justice of the SC or CA in any case or
investigation pending within the Philippines
HOW IS A SUBPOENA QUASHED?
Duces tecum upon motion if:
(1) it is unreasonable and oppressive; or
(2) the relevancy of the books, documents, does
not appear; or
(3) if the person in whose behalf the subpoena is
issued pails to advance the reasonable cost of
the production thereof
(4) Witness and kilometrage fees not tendered
upon service
Ad testificandum
(1) if the witness is n to bound thereby
(2) Witness and kilometrage fees not tendered
upon service
WHAT IS THE RULE IN THE ISSUANCE OF
SUBPOENAS FOR DEPOSITIONS?
Though it is not necessary to serve a subpoena on
a party for the purpose of taking his deposition
notice of the taking being enough the court may
issue a subpoena upon proof of service of notice
to take the deposition.
The issuance of a subpoena merely preps the
court to exercise its power of contempt.
Issuance of a subpoena duces tecum, however,
necessitates a prior court order.
HOW IS A SUBPOENA SERVED?
In the same manner as a personal or substituted
service of summons.
There must also be tender of fees for one days
attendance (P20 in MTC, P50 in higher courts) and
kilometrage.
When the subpoena is issued on behalf of the
Republic, tender of fees need not be made.
If the subpoena is duces tecum, the cost of
producting the things must also be tendered.
HOW IS ATTENDANCE COMPELLED?
Page 20 of 70
Upon proof of service and failure to attend, a WHAT IS A DEPOSITION PENDING ACTION?
warrant may be issued for the witnesss arrest. WHEN MAY IT BE TAKEN?
This applies to subpoenas issued by fiscals and
It is taken:
court-appointed commissioners.
(1) by:
WHEN WILL THE SUBPOENAED WITNESS
NOT BE COMPELLED TO ATTEND OR CITED 1. oral examination; OR
FOR CONTEMPT FOR FAILING TO ATTEND?
2. written interrogatories
When such witness resides more than 100 km.
from the place where he is to testify or to a (2) with:
detention prisoner if no permission of the court 1. leave of court
where his case was pending is obtained.
after jurisdiction has been acquired
over the defendant or property; or
HOW IS TIME COMPUTED? person to be deposed is in prison
The day the period begins to run is excluded and 2. without leave
the date of performance included. If the last day
falls on a Saturday, Sunday or legal holiday, the after an answer has been served
time shall not run until the next working day. WHAT IS THE SCOPE OF EXAMINATION?
When a period is interrupted, the allowable period Any matter:
after the interruption begins on the day after
notice of the cessation of the cause thereof. The (1) not privileged;
day of the act that caused the interruption shall (2) relevant to the subject of the action
be excluded.
HOW MAY DEPOSITIONS BE USED?
WHAT ARE THE MODES OF DISCOVERY? Any part of a deposition may be used against any
party who was represented at the taking or who
(1) Depositions pending action; had notice thereof, in accordance with the
(2) Depositions before action or pending appeal; following:

(3) Interrogatories to parties; (1) may be used for contradicting or impeaching

(4) Admission by adverse party;
(5) Production or inspection of documents or
things;
(6) Physical and mental examination of persons.
WHAT ARE THE PURPOSES OF RULES OF
DISCOVERY:
deponent as a witness;
(2) deposition of one who was an officer of a
corporation which is a party may be used for
any purpose;
(3) the deposition of a witness, whether or not a
party, may be used for any purpose if the
court finds:

(1) as a device to narrow down and clarify the 1. witness is dead;

basic issues between the parties
(2) as a device for ascertaining the facts relative
to the issues
(3) to enable the parties to obtain the fullest
possible knowledge of the issues and facts
before civil trials to prevent trials carried on in
the dark
(4) to facilitate mutual knowledge of all the
relevant facts gathered by both parties, to this
end either party may compel the other to
disgorge whatever facts he has
(5) advances stage at which disclosure can be
compelled in order to reduce possibility of
surprise
2. witness resides more than 100km from
place of trial, or is out of the Philippines,
unless absence procured by the party
offering the deposition;
3. witness unable to attend because of
age, sickness, imprisonment;
4. attendance of witness not successfully
procured despite subpoena;
5. other just circumstances.
WHAT IS THE EFFECT OF TAKING A
DEPOSITION? USING A DEPOSITION?
By taking a deposition, a party is not deemed to
make the person his witness.

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Cayo 2D
By introducing the deposition in evidence, other
than to contradict or impeach, the deponent
becomes the witness of the party.
DEPOSITION BEFORE ACTION:
In order to perpetuate testimony
INTERROGATORIES TO PARTIES
To elicit material and relevant facts
Limited to one set per party
interrogated
ADMISSION BY ADVERSE PARTY
To seek admission of the genuineness of
any document or the truth of any relevant
matter.
Implied admission if not answered by
adverse party within 15 days from service
of request.
Admission is for the pending action only.
PRODUCTION OR INSPECTION OF THINGS
(1) Production of tangibles for inspection,
duplication, etc.
(2) Permit entry into property for inspecting,
surveying, etc.
PHYSICAL AND MENTAL EXAMINATION
Where the physical or mental condition of
a party is in controversy
REFUSAL TO COMPLY WITH MODES OF
DISCOVERY
Refusal to answer
Adjourn or
Court may compel answer
o Continued failure
Contempt
Facts deemed established
Refusal to allow
disobedient party to
present evidence
Strike out pleadings or
judgment by default
Arrest except for refusal
to submit to physical or
mental examination
REFUSAL TO ATTEND
Strike out pleadings;
Dismiss action
Civil Procedure Reviewer
Cayo 2D
Judgment by default
Pay expenses
TRIAL
ADJOURNMENTS OR POSTPONEMENTs
Not for longer than one month at a time
or three months in all, except when
otherwise authorized
MOTION TO POSTPONE FOR ABSENCE OF
EVIDENCE
Affidavit that evidence is material and due
diligence was used to procure it
Trial can go on if adverse party admits to
facts to be proved by evidence even if
right to object is reserved.
MOTION TO POSTPONE TRIAL FOR ILLNESS
OF PARTY OR COUNSEL
Affidavit that presence is indispensable
and non-attendance is excusable
ORDER OF TRIAL:
(1) plaintiff evidence in support
of complaint
(2) defendant evidence in
support of defense,
counterclaim, cross-claim,
third party complaint
(3) third party defendant
evidence in support of
defense, counterclaim, cross-
claim, third party complaint
(4) fourth party defendant
evidence is support of
defense, counterclaim, cross-
claim, third party
complaintand so on
(5) Parties against whom
counterclaim or cross-claim
pleaded adduce evidence in
support of defense
(6) Parties rebutting evidence
unless court permits evidence
on original case
Newly discovered;
Omitted through
inadvertence or
mistake;
Page 22 of 70
 Purpose is to correct
evidence previously
offered.
RECEPTION OF EVIDENCE
By judge; or
By clerk of court who is member of
bar if:
(1) Ex parte hearing
(2) Parties agree in writing
**Clerk cant rule on admissibility
Consolidation
Actions involving a common question of
law or fact are pending before the same
court
To avoid unnecessary costs or delay
Severance
Claim, counterclaim, cross-claim, third
party complaint may be tried separately
For convenience or furtherance of justice
Trial by commissioner
WHEN?
By consent of parties; OR
By order of the court, if:
o Long examination of accounts
o Taking of account necessary
for judgment
o Question of fact not in
pleadings arises
Commissioner can proceed ex parte and punish
for contempt for failure to appear
A commissioner can issue subpoenas and rule on
admissibility
Demurrer to evidence
When? How?
After presentation by plaintiff of evidence.
Defendant may move for dismissal on the ground
that the plaintiff has not established a right to
relief.
If denied, present evidence.
Civil Procedure Reviewer
Cayo 2D
If granted, case dismissed. But on appeal, no
more right to present evidence.
Judgment on the pleadings
When?
Proper where:
(1) answer:
o fails to tender an issue or
o admits the material allegations of the
adverse partys pleading
(2) motion for judgment on the pleadings is filed
o Not allowable in annulment or legal separation
cases
o A general denial is an admission which
warrants judgment on the pleadings
Summary judgments
o For claimant; when:
o After answer
o Claimant moves for summary
judgment with supporting documents
and affidavits
o For defendant; when:
o Any time
o Defendant moves for summary
judgment with supporting documents
and affidavits
o Motion must be served 10 days before
hearing of motion
o Affidavits and documents served 3 days
before hearing
o Judgment rendered if:
o No genuine issue as to any
material fact, except unliquidated
damages
o Movant is entitled to judgment as
a matter of law.
DISTINGUISH BETWEEN JUDGMENT BY
DEFAULT, JUDGMENT ON THE PLEADINGS,
SUMMARY JUDGMENT, AND MOTION TO
DISMISS.
Judgment by default when there is failure to
answer within the proper period.
Page 23 of 70
Judgment on the pleadings when the answer fails
to tender an issue.
Summary judgment when the answer apparently
raises an issue, but supporting documents show
that there is no genuine issue as to any material
fact.
A motion to dismiss is filed before an answer if the
complaint (not the answer) states no cause of
action, among other grounds

FORM OF JUDGMENT:
(1) in writing;
(2) stating the facts and law on which it is based;
(3) personally and directly prepared by the judge;
(4) signed by him;
(5) filed with the clerk (promulgation).

WHAT ARE THE GROUNDS OF NEW TRIAL OR

RECONSIDERATION?
New trial:
(1) Fraud, accident, mistake, excusable
negligence unavoidable and rights impaired
o Only extrinsic fraud committed outside
the trial by the successful party
(2) Newly discovered evidence which couldnt
have been produced even with diligence AND
would probably affect the outcome
Reconsideration:
(1) damages awarded are excessive;
(2) evidence is insufficient to justify decision;
(3) decision is contrary to law.
RULE WITH REGARD TO SECOND MOTIONS
FOR NEW TRIAL AND SECOND MOTIONS FOR
RECONSIDERATION:
New trial:
A motion for new trial must include all grounds
available at that time and those not included are
barred.
A second motion based on new grounds may be
filed subject to the aforementioned rule.
Recon:
Not possible, except in the SC.

Civil Procedure Reviewer Page 24 of 70

Cayo 2D
 RULE 39
EXECUTION
WHEN DOES EXECUTION UPON JUDGMENTS
OR FINAL ORDERS ISSUE AS A MATTER OF
RIGHT?
(1) On motion;
(2) Upon a judgment or order that disposes of
the action or proceeding;
(3) Upon the expiration of the appeal period
with no appeal taken.
WHEN AND WHERE DOES EXECUTION ISSUE
IF APPEAL HAS BEEN PERFECTED AND
RESOLVED?
(1) Applied for in the court of origin;
(2) On motion;
(3) With notice;
(4) Submitting certified true copies of:
a. Judgment or final order; and
b. The entry thereof.
*Records do not have to be transmitted to the
court of origin, copies are sufficient.
WHEN MAY THE APPELLATE COURT DIRECT
THE COURT OF ORIGIN TO ISSUE THE WRIT
OF EXECUTION, WITHOUT APPLICATION
BEING MADE IN THE LATTER?
(1) Upon motion;
(2) When the interest of justice requires.
DISTINGUISH FINAL JUDGMENTS FROM
FINAL AND EXECUTORY JUDGMENTS.
Final judgments finally dispose of, adjudicate, or
determine the rights of the parties in the case.
They are not yet executory (as a matter of right)
in the sense that an appeal may still be perfected.
Final and executory judgments become so by
operation of law; upon the lapse of the appeal
period if no appeal is perfected.
ARE THERE JUDGMENTS AND FINAL ORDERS
THAT MAY BE EXECUTED AS A MATTER OF
RIGHT BEFORE THE EXPIRATION OF THE
APPEAL PERIOD?
Yes.
(1) Forcible entry and unlawful detainer
judgments by lower courts;
(2) [SIRA] Support, injunction, receivership,
and accounting, unless otherwise ordered;
Civil Procedure Reviewer
Cayo 2D
(3) Quasi-judicial judgments, orders, or
resolutions appealable to the CA.
ARE THERE INTERLOCUTORY ORDERS THAT
MAY BE SUBJECT OF EXECUTION?
Yes, such as an order granting support pendente
lite.
ARE THE JUDGMENTS THAT ARE NOT
APPEALABLE? [CSI]
(1) Conditional judgments contains no
judgment; just a statement of action
should a condition occur
(2) Sin perjuicio judgments judgment
without a statement of facts to support
no prejudice
(3) Incomplete judgments leaves matters to
be settled in a subsequent proceeding.
AS A GENERAL RULE, TRIAL COURTS HAVE
THE MINISTERIAL DUTY TO ORDER
EXECUTION OF A FINAL AND EXECUTORY
JUDGMENT. WHAT ARE THE EXCEPTIONS, IF
ANY? [NU-VICE]
(1) Not submitted - When it appears that
the controversy has never been submitted
to the judgment of the court;
(2) Unclear - When the terms of the
judgment are not clear and there remains
room for interpretation;
(3) Varies - When the writ of execution
varies the judgment;
(4) Improvident - When in appears that the
writ of execution has been improvidently
issued, defective in substance, against the
wrong party, issued without authority, or
that the debt has been paid or satisfied.
(5) Change - When there has been a change
in the situation of the parties which makes
the execution inequitable or unjust;
(6) Exempt - When execution is sought to be
enforced against property exempt from
execution;
In the above cases, the other party may file a
motion to quash the writ of execution.
WHEN MAY EXECUTION OF FINAL AND
EXECUTORY JUDGMENTS BE ENJOINED?
(1) Upon the filing of a petition for relief from
judgment;
(2) When judgment is attacked for being void
for lack of jurisdiction or obtained through
fraud;
Page 25 of 70
 (3) On equitable grounds;
(4) In cases falling under the exceptions to
the ministerial duty of ordering execution
[NU-VICE]
CAN FINAL AND EXECUTORY JUDGMENTS BE
AMENDED? ARE THERE ANY EXCEPTIONS TO
THE RULE?
Final and executory judgments cannot be
amended except:
(1) To correct clerical errors;
(2) To clarify ambiguities;
(3) To enter nunc pro tunc orders (now for
then);
(4) To modify judgments for support.
WHAT IS THE TEST TO DETERMINE WHETHER
AN ERROR IS CLERICAL OR NOT?
It is a clerical error if there was a failure to
preserve or correctly represent in the record the
actual decision of the court.
It is a judicial error if it relates to something the
court did not consider or erroneously decided.
HOW ARE RIGHTS WHICH MAY HAVE BEEN
CREATED AFTER JUDGMENT HAS BECOME
FINAL AND EXECUTORY BE ENFORCED?
A new suit must be filed.
WHEN MAY DISCRETIONARY EXECUTION OR
EXECUTION PENDING THE PERIOD TO
APPEAL OR EXECUTION OF SEVERAL
JUDGMENTS BE HAD?
(1) On motion for execution by the prevailing
party;
(2) With notice to the adverse party;
(3) Filed in either:
a. The trial court while:
i. It has jurisdiction over the
case and (should this be
OR?)
ii. Is in possession of the
original record or record
on appeal
b. The appellate court, if the trial
court has lost jurisdiction
(4) After hearing;
(5) Upon good reasons to be stated in a
special order.
Civil Procedure Reviewer
Cayo 2D
*In the book, the requisites are (1) motion with
notice; (2) good reasons; (3) stated in a special
order.
EXECUTION PENDING APPEAL IS FILED IN
THE TRIAL COURT WHEN:
(1) The trial court still has jurisdiction over
the case;
(2) The trial court has lost jurisdiction but still
has the records.
EXECUTION PENDING APPEAL IS FILED IN
THE APPELLATE COURT WHEN:
The trial court has lost jurisdiction over the case
and the records have been transmitted to the
appellate court.
WHAT ARE SEVERAL, SEPARATE, OR PARTIAL
JUDGMENTS?
Several judgment rendered against one or
more defendants, leaving the action to proceed
against the others.
Separate or partial judgments rendered at
any stage of an action disposing of a particular
claim and leaving the action to proceed as to the
remaining claims.
WHAT ARE GOOD REASONS?
(1) Appeal was made only for delay;
(2) Education of the person to be supported
would be unduly delayed;
(3) Monthly allowances as necessary support;
(4) Insolvency of the judgment debtor.
WHAT ARE NOT GOOD REASONS?
(1) Claim is not secured;
(2) Judge may still determine whether appeal
is dilatory;
(3) Posting of a bond.
*When discretionary execution is granted and
there are no good reasons therefor, certiorari will
lie even if the appeal has been filed or a
supersedeas bond has been filed.
OTHERS:
Actual and compensatory damages (but
not moral and exemplary damages) may
be ordered executed pending appeal.
Execution pending appeal is not applicable
in land registration proceedings.
Page 26 of 70
HOW IS DISCRETIONARY EXECUTION
STAYED?
(1) Upon motion and of supersedeas bond;
(2) Approved by the court;
(3) Conditioned upon the performance of the
judgment or order in case it is finally
sustained in which case the judgment may
be proceeded against on motion and
notice to the surety.
*This does not preclude the filing of certiorari to
question discretionary execution ordered with
GADALEJ
WHAT ARE THE JUDGMENTS NOT STAYED BY
APPEAL?
Yes.
(1) Forcible entry and unlawful detainer
judgments by lower courts;
(2) [SIRA] Support, injunction, receivership,
and accounting, unless otherwise ordered;
(3) Quasi-judicial judgments, orders, or
resolutions appealable to the CA.
*So it seems the only way these may be stayed
are by filing a supersedeas bond.
OTHERS:
Sureties are solidarily liable with the
principal and the measure of the liability is
the appealed decision.
WHAT HAPPENS WHEN AN EXECUTED
JUDGMENT HAS BEEN REVERSED OR
ANNULLED?
Upon motion, the court may order restitution or
reparation of damages as equity and justice may
warrant.
Reversal or annulment could by under petition for
relief under Rule 38 or annulment under Rule 47.
WHAT ARE SOME RULES WITH REGARD TO
RESTITUTION?
(1) Specific restitution is proper in case of
complete reversal.
(2) In case or partial reversal, only the excess
is returned.
(3) In case of properties sold to third parties
at an execution sale, the sale remains
valid but the judgment debtor is liable for
the amount realized plus interests.
Civil Procedure Reviewer
Cayo 2D
(4) If the creditor is the purchaser at the
execution sale, he may be made liable for
the property, at the option of the, debtor.
(5) If the writ of execution is void, the
subsequent sale is unenforceable (I
think).
WHEN AND HOW MUST A FINAL AND
EXECUTORY JUDGMENT OR ORDER BE
EXECUTED?
(1) Within 5 years from date of entry on
motion;
(2) After 5 years but before 10 years from
date of entry by action (for revival).
(3) The same periods apply to revived
judgments.
WHAT IS THE PERIOD WITH REGARD TO THE
EXECUTION OF A JUDGMENT BY
COMPROMISE?
The period begins to run only after the expiration
of the period within which payment should have
been made.
Ex: In a compromise to make the amount payable
within six years from entry of judgment, the
period begins to run only after the expiration of
the six year period.
WHEN ARE THE PERIODS SUSPENDED?
(1) When the enforceability of the judgment is
suspended by order or becomes
conditional, prescription does not run.
(2) By agreement of the parties to suspend
enforcement.
(3) When proceeding supplementary to
execution are intitiated by the creditor
(examination of debtor due to unsatisfied
execution).
(4) When the delay was due to the judgment
debtors fault.
(5) When an action to revive the judgment is
filed.
PERIODS ARE NOT SUSPENDED BY:
(1) Injunction enjoining execution sale.
(2) Written extrajudicial demand or
acknowledgement of debt.
DIFFERENTIATE JURISDICTION TO AMEND
JUDGMENT FROM JURISDICTION TO
EXECUTE JUDGMENT.
Page 27 of 70
Jurisdiction to amend terminates when the
judgment becomes final and executory.
Jurisdiction to execute continues even after the
judgment becomes executory because it is
necessary for the enforcement of the judgment.
WHAT IS THE VENUE FOR THE ACTION TO
ENFORCE JUDGMENT?
The venue will depend on the character of the
principal action (whether personal or real).
WHAT ARE DEFENSES IN AN ACTION FOR
ENFORCEMENT?
Prescription, satisfaction of the judgment after
entry, permissive counterclaims.
OTHERS:
A judgment rendered against several
defendants, jointly and severally, can be
revived against one of the only.
Only the execution must be had within the
5 year period; sale may occur after.
But sale must occur before the expiration
of the 10 year period.
Judgment for support is a continuing
obligation and does not prescribe; but
unpaid installments more than 10 years
old are uncollectible.
Periods are not applicable to special
proceedings such as land registration
cases.
HOW IS EXECUTION ENFORCED IN CASE OF
THE DEATH OF A PARTY?
(1) Death of judgment obligee - upon
application of his executor, administrator,
or successor in interest;
(2) Death of the judgment obligor:
a. For recovery of real or personal
property or the enforcement of a
lien thereon against his
executor, administrator, or
successor in interest;
If it is judgment for money, such
as in an action for damages, it
shall be filed as a regular money
claim.
b. Death of judgment obligor after
execution is actually levied upon
his property property may be
sold to satisfy the judgment
Civil Procedure Reviewer
Cayo 2D
WHAT IS THE FORM OF A WRIT OF
EXECUTION?
Probably wont come out.
WHAT ARE THE GROUNDS FOR QUASHING A
WRIT OF EXECUTION?
[NU-VICE]
(1) Not submitted - When it appears that
the controversy has never been submitted
to the judgment of the court;
(2) Unclear - When the terms of the
judgment are not clear and there remains
room for interpretation;
(3) Varies - When the writ of execution
varies the judgment;
(4) Improvident - When in appears that the
writ of execution has been improvidently
issued, defective in substance, against the
wrong party, issued without authority, or
that the debt has been paid or satisfied.
(5) Change - When there has been a change
in the situation of the parties which makes
the execution inequitable or unjust;
(6) Exempt - When execution is sought to be
enforced against property exempt from
execution.
HOW IS EXECUTION ON JUDGMENTS FOR
MONEY ENFORCED? EXPLAIN BRIEFLY.
(a) Immediate payment on demand - of cash,
certified check payable to the judgment
obligee, any other form acceptable to the
judgment obligee;
(b) Satisfaction by levy This occurs if
immediate payment in (a) is not made. The
obligor can choose which properties will be
levied and sold. If no choice is made, personal
property will be sold before real property.
(c) Garnishment of debts and credits
Credits and debts due the judgment obligor
and in the possession or control of third
persons (garnishee) may be levied by serving
notice upon such third persons. The amount
garnished should be delivered directly to the
obligee by the garnishee within 10 days from
notice.
HOW IS EXECUTION ON JUDGMENTS FOR
SPECIFIC ACTS PERFORMED?
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 (a) Judgment to perform acts to vest title
(such as delivery of deeds) - The court
may direct the act to be done at the cost
of the disobedient party.
(b) Sale of real or personal property - The
court shall order the property to be sold
and the proceeds to be applied to satisfy
the judgment.
(c) Delivery or restitution of real property
The officer shall demand that the
occupants vacate within 3 days and if they
fail to do so, reasonable means may be
employed.
(d) Delivery or restitution of personal
property the officer will take possession
and deliver the property to the judgment
obligee.
(e) Removal of improvements on
property subject of execution If the
judgment obligor refuses to remove
improvements, the officer can only
demolish the improvements if there is a
special order issued upon motion of the
obligee and after due hearing.
HOW ARE SPECIAL JUDGMENTS EXECUTED?
A copy of the judgment and the writ of execution
shall be served on the person required to perform
the required act and such person may be
punished for contempt until he performs such act.
DIFFERENTIATE JUDGMENTS FOR SPECIFIC
ACTS FROM SPECIAL JUDGMENTS.
Judgments for specific acts are for payment, sale,
or delivery of property. Upon refusal, the court
can appoint an officer or other person to perform
the act. Refusal is not generally punishable by
contempt.
Special judgments are for acts which can only be
performed by the obligor because of some
qualification or circumstance. Only the obligor can
perform the act and refusal is punishable by
contempt.
WHAT IS THE EFFECT OF LEVY ON
EXECUTION AS TO THIRD PERSONS?
The levy shall create a lien in favor of the
judgment obligee subject to liens already existing.
WHAT ARE THE PROPERTIES EXEMPT FROM
EXECUTION? GIVE AT LEAST 5.
(1) Family home;
Civil Procedure Reviewer
Cayo 2D
(2) Professional libraries and equipment of
judges, lawyers, engineers, dentists, and
other professionals;
(3) The right to receive support;
(4) Necessary clothing and personal effects,
excluding jewelries!
(5) Salaries or wages for personal services
rendered within the 4 months preceding
the levy and necessary for family support;
(6) Ordinary tools used in livelihood;
(7) Three beasts of burden used in livelihood;
(8) Etc.
But if property mentioned above is mortgaged, it
is not exempt from foreclosure.
WHAT HAPPENS IF PROPERTY LEVIED BY
THE SHERIFF IS CLAIMED BY A THIRD
PERSON?
GR: If the third person claimant makes an
affidavit of his claim and serves it on the sheriff
and obligee, the sheriff shall not be bound to keep
the property.
Exception: The sheriff may keep the property if
the obligee puts up a bond to indemnify the third
party and the sheriff will not be liable for any
damages to the third person if such bond is
furnished.
9 The third person may vindicate his claim in a
separate action.
9 The sheriff keeps or releases the property at
his discretion with or without a bond. If no
bond is filed and the sheriff keeps the
property, he can be liable for damages.
HOW CAN THE JUDGMENT OBLIGOR
PREVENT EXECUTION?
By paying the amount required by the execution
at any time before the sale.
HOW PROPERTY IS SOLD ON EXECUTION.
 The judge/officer involved cannot purchase
 Inadequacy of price can be grounds for setting
aside the sale ONLY IF it shocks the
conscience and there can be a better price at
a subsequent sale UNLESS there is right of
redemption.
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 RULE 45 (1) Conflicting findings of fact - When
the findings of fact are conflicting;
APPEAL BY CERTIORARI TO THE SC
(2) Contrary to RTC findings - When
WHAT IS AT ISSUE IN ABC? the findings of fact of the CA are
GR: Only questions of law are entertained. contrary to those of the trial court;

E: In ABC from the RTC, when the SC believes (3) Not supported by evidence - When
there are factual issues, it may decide them or the findings of fact are conclusions
refer them to the CA. without citation of specific evidence on
which they are based;
DISTINGUISH BETWEEN APPEAL BY
CERTIORARI RULE 45 AND THE SPECIAL (4) Not disputed by respondent -
CIVIL ACTION OF CERTIORARI RULE 65. When the facts set forth in the petition
as well as in the petitioners main and
ABC 45 SCAC 65 reply briefs are not disputed by the
respondent;
WHAT IS Questions or errors Acts of
REVIEWED? of law decided by lower court, (5) Mistaken inference - When the
lower court body or inference is manifestly mistaken,
officer absurd, or impossible;
exercising
(6) Misapprehension of facts - When
judicial or
the judgment is based on a
quasi-
misapprehension of facts;
judicial
functions (7) Premised on absence of evidence -
when with When the finding of fact of the CA is
or in excess premised on the supposed absence of
of evidence and is contradicted by the
jurisdiction evidence on record.
or with
GADALEJ (8) GADALEJ - When there is GADALEJ;

Errors of judgment Errors of (9) Speculation - When the conclusion is

a finding grounded entirely on
jurisdiction
speculation, surmises, or conjectures;
PARTIES? Same parties Inferior
(10) Beyond issues - When the CA, in
appellant/petitioner court,
making its findings, went beyond the
: board or
issues of the case and the same is
appellee/respondent officer is
contrary to the admissions of both
the public
appellant and appellee;
respondent;
appellee is HOW AND WHEN IS ABC COMMENCED?
private
respondent (1) By filing a verified petition raising only
questions of law, accompanied by:
DECISION? Affirming, Annulling or
reversing, or modifying a. Docket and other lawful fees and
modifying the the act deposit for costs
judgment b. AND proof of service on the lower
court and the adverse party.
(2) Within 15 days from notice of:
When may the SC inquire into conclusions of fact
made by the CA? a. final order
GR: Conclusions of fact of the CA are binding on b. OR denial of motion for new trial
the SC. or reconsideration properly filed.
E: CAN THERE BE AN EXTENSION OF THE 15
DAY PERIOD?
[CCNNMMPGSB] corny, walang vowels
Yes, there can be a 30 day extension to file the
petition:

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 (1) upon motion duly filed and served;
(2) with full payment of docket, and other
lawful fees and deposit of costs;
(3) before the expiration of the original 15
day period.
WHAT ARE THE CONTENTS OF THE
PETITION?
(1) Names of the parties petitioner and
respondent;
(2) Material dates notice of judgment/denial
of MR/MNT appealed from;
(3) Statement of matters and arguments;
(4) Certified true copy of the judgment, final
order or resolution appealed from and
pertinent portions of the record;
(5) Certification of non-forum shopping.
WHEN MAY THE PETITION BE DISMISSED OR
DENIED?
Dismissed:
(1) failure to pay fees;
(2) no proof of service;
(3) failure to comply with formal requirements
(as to the contents of the petition)
Denied:
(1) without merit;
(2) for delay;
(3) raises unsubstantial questions.
IS ABC A MATTER OF RIGHT? WHEN WILL IT
BE GRANTED?
ABC is a matter of judicial discretion and will be
granted only when there are special and
important reasons therefor, such as but not
limited to:
(1) When the lower court has decided a
question of substance:
a. not previously decided by the SC
b. OR decided it not in accordance
with jurisprudence
(2) When the lower court has departed from
the accepted and usual course of judicial
proceedings so as to call for an exercise
by SC of its power or supervision.
Documents:
Civil Procedure Reviewer
Cayo 2D
Pleadings, briefs, memoranda, etc. may be
required by the SC to help it determine whether to
deny the petition.
WHEN THE PETITION IS GIVEN DUE COURSE:
(1) the SC may require the filing of pleadings,
briefs, memoranda, etc.
(2) the SC may require the elevation of the
entire records of the case or parts thereof.
RULE 46
ORIGINAL CASES
TO WHAT ACTIONS IS RULE 46 APPLICABLE?
Orignal actions for certiorari, prohibition,
mandamus, and quo warranto.
WHAT IS THE ORIGINAL JURISDICTION OF
THE CA?
(1) CPM under R65;
(2) Quo warranto;
(3) Habeas corpus;
(4) Annulment of RTC judgments
EXCLUSIVE
WHAT ARE THE CONTENTS OF THE
PETITION?
(1) names and addresses of the parties
petitioner/respondent;
(2) statement of facts and matters;
(3) relief prayed for
(4) material dates if R65
(5) proof of service;
(6) certified true copy of the judgment, final
order or resolution and material portions
of the record
(7) certification of non-forum shopping;
(8) docket and lawful fees, deposit for costs.
WHO ARE THE PARTIES?
The parties are the petitioner and the respondent.
HOW IS JURISDICTION OVER PARTIES
ACQUIRED?
Petitioner by filing the petition
Respondent
(1) by service of the initiatory action taken by
the court resolving either to dismiss the
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 petition of give due course thereto, Extrinsic fraud is fraud committed outside
requiring the submission of a comment the trial by the successful party
(2) OR voluntary submission. (2) Lack Of Jurisdiction
WHAT DOES THE COURT DO AFTER
RECEIVING THE PETITION?
WHEN MUST THE ACTION BE FILED?
The court may either:
If based on:
(1) Dismiss the petition with specific reasons
(1) extrinsic fraud within four years from
therefor;
discovery;
(2) OR require the respondent to comment
(2) lack of jurisdiction before it is barred by
(initiatory action).
laches or estoppel.
WHAT IF THE RESPONDENT FAILS TO
COMMENT?
WHAT ARE THE CONTENTS OF THE VERIFIED
The court may decide based on the record.
PETITION?
HOW DOES THE COURT DETERMINE FACTUAL
(1) Statement of the facts and law justifying
ISSUES?
annulment as well as the petitioners
The court may: cause of action or defense, as the case
may be.
(1) conduct hearings;
(2) Certified copy of the JOFR
(2) OR delegate reception of evidence to:
(3) Affidavits of witnesses
a. A member of the court;
(4) Certification of non-forum shopping;
b. OR an appropriate court (lower
court), agency, or office.
WHAT IS THE COURTS ACTION ON THE
PETITION?
RULE 47
No merit dismiss
ANNULMENT OF JUDGMENTS OR FINAL
ORDERS AND RESOLUTIONS Prima facie merit give due course and serve
summons on the respondent.
WHEN IS THIS REMEDY AVAILABLE?
The CA may annul:
WHAT IS THE PROCEDURE TO BE
(a) judgments, final orders or resolutions of FOLLOWED?
RTCs
The procedure in ordinary civil cases.
The RTC has jurisdiction over petitions for
annulment of judgments, final orders or HOW IS EVIDENCE RECEIVED BY THE CA?
resolutions of the MTCs The reception of evidence may be referred to:
(b) for which the ordinary remedies of new (a) a member of the CA;
trial, appeal petition for relief or other
appropriate remedies are no longer (b) an RTC judge.
available (if they are available, R47
cannot be resorted to).
IMPT: WHAT IS THE EFFECT OF THE
(c) through no fault of the petitioner JUDGMENT OF ANNULMENT?
If based on lack of jurisdiction the
WHAT ARE THE GROUNDS FOR ANNULMENT? questioned judgment will be rendered null and
void without prejudice to the original action being
(1) Extrinsic Fraud unless it was availed of refiled in the proper court (with jurisdiction).
OR could have been availed of in a motion
for new trial or petition for relief (R37 & If based on extrinsic fraud
R38)

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 (1) Plaintiff in the original action (the action
that was annulled) is not guilty of extrinsic
fraud
a. upon the plaintiffs motion, the CA
may order the RTC to try the case
as if a timely motion for new trial
had been granted therein
b. OR the plaintiff may refile the case
the prescriptive period for
refilling the original action is
suspended from the filing of the
original action until the judgment
of annulment.
(2) Plaintiff in the original action (the action
that was annulled) WAS GUILTY of
extrinsic fraud the plaintiff who was
guilty of extrinsic fraud may refile the
original action if his cause of action had
not yet prescribed.
Ex: If the plaintiff sued upon a contract
and employed extrinsic fraud in procuring
a favorable judgment, when the judgment
is annulled, he may refile his claim
provided that his right of action has not
yet prescribed. In this case, provided ten
years have not yet elapsed from the time
the right of action accrued. There is no
suspension of the prescriptive period by
the filing of the action for annulment.
WHAT RELIEF IS AVAILABLE?
(1) attorneys fees
(2) damages
(3) restitution, if the judgment annulled had
already been executed
RULE 48
PRELIMINARY CONFERENCE
At any time during the pendency of the case, the
court may call the parties and their counsel to a
preliminary conference:
(a) Amicable settlement - To consider the
possibility of an amicable settlement
unless the case is not subject to
compromise;
(b) To define, simplify, and clarify the issues;
(c) To formulate stipulations of fact, limit
witnesses, etc.
Civil Procedure Reviewer
Cayo 2D
RULE 49 ORAL ARGUMENT
RULE 50
DISMISSAL OF APPEAL
WHAT ARE THE GROUNDS FOR
DISCRETIONARY DISMISSAL OF AN APPEAL?
Remember, these grounds are discretionary.
The CA MAY dismiss an appeal, upon motion or
motu proprio, on the following grounds:
[MOSS-FUCkUP]
(a) Material data rule - Failure of the record
on appeal to show on its face that the
appeal was taken within the period fixed
by these Rules;
(b) Out of time - Failure to file the notice of
appeal or the record on appeal within the
period prescribed by these Rules;
(c) Service - Failure of the appellant to serve
and file required brief or memoranda;
(d) Specific assignment of errors -
Absence of specific assignment of errors in
the appellants brief, or of page references
to the record;
(e) Fees - Failure of the appellant to pay the
docket and other lawful fees;
(f) Unauthorized alterations, omissions or
additions in the approved record on
appeal;
(g) Correction/completion - Failure of the
appellant to take the necessary steps for
the correction or completion of the record
within the time limited by the court in its
order;
(h) Unappealable - The fact that the order
or judgment appealed from is not
appealable;
(i) Preliminary conference - Failure of the
appellant to appear at the preliminary
conference or to comply with orders,
circulars, or directives without justifiable
cause.
OTHER CAUSES FOR DISMISSAL OF APPEAL
NOT IN THE RULES:
Also discretionary
(1) Moot causes;
(2) Frivolous appeals
a. Dilatory
Page 33 of 70
 b. No justiciable question
c. Patently without merit.
WHAT ARE THE CAUSES FOR MANDATORY
DISMISSAL OF APPEALS?
Dismissal is mandatory in the following
circumstances:
(1) The appeal from the RTC decision raises
only questions of law SC has
jurisdiction;
(2) Appeal by notice of appeal instead of by
petition for review.
Notice of appeal - if RTC judgment is
rendered in the exercise of original
jurisdiction.
Petition for review - if RTC judgment is
rendered in the exercise of appellate
jurisdiction.
WHEN IS WITHDRAWAL OF AN APPEAL A
MATTER OF RIGHT? WHEN IS IT A MATTER
OF DISCRETION?
Matter of right at any time before the filing of
the appellees brief.
Matter of discretion after the appellees brief is
filed.
RULE 51
JUDGMENT
WHEN IS A CASE DEEMED SUBMITTED FOR
JUDGMENT?
In ordinary appeals:
(1) No hearing held upon filing of last
required pleading or expiration of the
period for its filing;
(2) Hearing held upon termination of the
hearing or upon filing of last required
pleading or expiration of the period for its
filing
In original actions and petitions for review:
(1) Where no comment is filed upon
expiration of the period to comment;
(2) No hearing held upon filing of last
required pleading or expiration of the
period for its filing;
(3) Hearing held upon termination of the
hearing or upon filing of last required
Civil Procedure Reviewer
Cayo 2D
pleading or expiration of the period for its
filing
WHO RENDERS JUDGMENT?
The members of the court who participated in the
deliberation on the merits of the case before its
assignment to a member for the writing of the
decision.
HOW IS VOTING DONE?
 All three members must participate and vote
unanimously.
 Should there be a dissent, the Presiding
Justice of the CA will choose two additional
Justices by raffle to form a special division of
5 Justices.
 A decision will be rendered only with the
participation of all five and a majority vote.
WHAT IS THE FORM OF A DECISION?
It should state clearly and distinctly the facts and
law on which it is based either contained in the
decision itself or adopted from the decision
appealed from.
In case of adoption, the decision appealed from
must be incorporated in the decision rendered;
mere reference is not allowed.
IMPT: WHAT QUESTIONS MAY BE DECIDED
BY THE COURT?
No errors which does not affect the jurisdiction
over the SM or the validity of the judgment
appealed from will be considered unless:
(1) stated in the assignment of errors;
(2) OR closely related to or dependent on an
assigned error and properly argued in the
brief;
(3) OR they are merely plain errors and
clerical errors.
WHEN IS JUDGMENT ENTERED IN THE BOOK
OF ENTRIES OF JUDGMENTS?
Judgment is entered by the clerk in the book of
entries of judgments when it becomes final and
executory - upon the expiration of the period to
file an appeal or a motion for new trial.
Even if the judgment is physically entered after
the expiration of the period, the date of entry is
considered to be the date it became final and
executory.
WHEN AND HOW MAY JUDGMENT BE
EXECUTED?
Page 34 of 70
GR: Upon the filing of a motion after the entry of the court below even with diligence AND would
the judgment (after it becomes final and probably affect the outcome of the case.
executory).
ACTION OF THE CA?
E: Unless it is ordered to be immediately
(1) Grant or refuse a new trial in the lower
executory.
court after considering the new evidence
In original actions in the CA the writ of and the evidence produced at trial;
execution will be accompanied by a copy of the
(2) OR order the taking of additional
judgment and addressed to a proper officer for
testimony;
enforcement
(3) OR render judgment as it may deem just.
In appealed cases, where a motion for execution
pending appeal is granted and the CA is in
possession of the original record or the record on
appeal the resolution granting the motion, a RULE 54
copy of the judgment to be executed, and an INTERNAL BUSINESS
order to issue a writ of execution will be sent to
the lower court. WHEN DOES THE CA SIT EN BANC?
(1) Administrative;

RULE 52 (2) Ceremonial;

MOTION FOR RECONSIDERATION (3) OR other non-adjudicatory functions.

WHEN? A MR should be filed within 15 days from

notice of the judgment WITH PROOF OF SERVICE
RULE 55
ON THE ADVERSE PARTY. Must be resolved within
90 days. PUBLICATION OF JUDGMENTS AND FINAL
RESOLUTIONS
2ND? No second MR by the same party shall be
entertained (except that the rules dont apply to  Published in the OG and in the Reports
the SC it may entertain a 2nd MR) officially authorized by the court in the
language officially written:
STAY OF EXECUTION? A properly filed MR shall
stay the execution of the judgment unless the o SC Reports
court, for good reasons, shall otherwise direct.
o CA Reports
Required for appeal? The filing (and denial) of a
MR is usually a prerequisite to the filing of an
appeal or of a R65 remedy. RULE 56
WHAT IS ALLEGED IN THE MR (R37)? PROCEDURE IN THE SC
(1) Excessive damages;
ORIGINAL CASES
(2) Insufficient evidence;
WHAT CASES MAY BE FILED ORIGINALLY IN
(3) Judgment contrary to law. THE SC?
IMPT: PRO FORMA MR? A MR is pro forma if it (1) CPM R65;
does not raise any new issues. It does not toll the
(2) Quo warranto,
running of the period to appeal and should be
dismissed. (3) Habeas corpus;
(4) Disciplinary matters against members of
RULE 53 the judiciary and attorneys;

NEW TRIAL (5) Cases involving ambassadors, public

ministers and consuls
WHEN? At any time after perfection of the appeal
and before the CA loses jurisdiction over the case. APPEALED CASES
Must be resolved within 90 days. HOW IS APPEAL TO THE SC TAKEN?
GROUND? Newly discovered evidence which GR: Only by petition for review on certiorari
couldnt have been discovered prior to the trial in

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E: criminal cases where the penalty is death, RP
or life imprisonment.
WHAT ARE THE GROUNDS FOR THE
DISMISSAL OF AN APPEAL TO THE SC?
An appeal to the SC may be dismissed motu
proprio or on motion on the following grounds:
[UMCOFFEe?]
(1) Unappealable - The fact that the case is
not appealable to the SC;
(2) Merit - Lack of merit in the petition;
(3) CDO - Failure to comply with any circular,
directive or order of the SC without
justifiable cause;
(4) Out of time - Failure to take the appeal
within the reglementary period;
(5) Formal requirements - Failure to
comply with the requirements regarding
proof of service and contents of and the
documents which should accompany the
petition;
(6) Fees - Failure to pay the requisite docket
fee and other lawful fees or to make a
deposit for costs;
(7) Error in the choice or mode of appeal.
 Petition for review is the proper mode
 An appeal by notice of appeal shall be
dismissed unless the penalty imposed
is death, RP or life imprisonment
 An ABC from an RTC decision
submitting questions of fact may be
referred to the CA for appropriate
action
What is the procedure when the SC en banc is
unable to reach a decision?
In cases to be decided en banc, where the court is
divided or the required majority cannot be had:
(1) The case shall be re-deliberated.
(2) If there is still no decision:
a. The original case shall be
dismissed
b. The decision appealed from shall
be affirmed
c. The motion or petition on the
incidental matter shall be denied
d. The sentence of death shall be
reduced to reclusion perpetua
Civil Procedure Reviewer
Cayo 2D
PROVISIONAL REMEDIES
WHAT IS A PROVISIONAL REMEDY?
It is a collateral proceeding, permitted only in
connection with a regular action as one of its
incidents. It is a remedy provided to meet a
particular need or exigency.
The provisional remedies are:
(1) Preliminary attachment;
(2) Preliminary injunction;
(3) Receivership;
(4) Replevin.
RULE 57
PRELIMINARY ATTACHMENT
When: At the commencement of the action or at
any time before entry of judgment
If judgment has already been entered, a writ of
execution and not a writ of attachment is proper.
Purpose: To hold the property of the adverse
party as security for the satisfaction of any
judgment
Cases when available:
(1) In an action for recovery of specified
amount of money or damages, other than
moral and exemplary, on a cause of action
arising from law, contract, quasi
contract, delict, or quasi-delict against a
party who is about to depart from the
Philippines with intent to defraud his
creditors;
(2) In an action for money or property
embezzled or fraudulently misapplied or
converted to his own use by a public officer,
or an officer of a corporation, or an attorney,
factor, broker, agent, or clerk, in the course of
his employment as such, or by any other
person in a fiduciary capacity, or for a
willful violation of duty;
(3) In an action to recover the possession of
property unjustly or fraudulently taken,
detained or converted, when the property, or
any part thereof, has been concealed,
removed, or disposed of to prevent its being
found or taken by the applicant or an
authorized person;
(4) In an action against a party who has been
guilty of fraud in contracting the debt or
Page 36 of 70
 incurring the obligation upon which the action
is brought, or in the performance thereof;
(5) In an action against a party who has
removed or disposed of his property, or is
about to do so, with intent to defraud his
creditors;
(6) In an action against a party who does not
reside and is not found in the Philippines,
or on whom summons may be served by
publication.
DOES THE ISSUANCE OF A WRIT OF
ATTACHMENT REQUIRE HEARING?
No. Thus, it may be issued without jurisdiction
over the adverse party having been acquired.
However, the court may require prior hearing, in
which case, summons must be served.
But levy on attachment requires service of
summons.
MAY THE DEFENDANT OBTAIN A WRIT OF
PRELIMINARY ATTACHMENT?
Yes. In case he sets up a counterclaim.
WHAT IS THE LIFETIME OF THE WRIT OF
ATTACHMENT?
There is no lifetime stated in the Rules but its
character being interlocutory and ancillary, it is
necessarily lifted when the case is dismissed. It is
also terminated, of course, is when it is satisfied.
CAN A WRIT OF ATTACHMENT BE ISSUED
AGAINST A FOREIGN CORPORATION DULY
LICENSED TO DO BUSINESS IN THE
PHILIPPINES, WITHOUT ANY ALLEGATION
OF FRAUD OR INTENT TO ABSCOND (IN
OTHER WORDS, UNDER GROUND #6)?
No. First, the corporation necessarily has an agent
in the country; it cannot be considered non-
resident. Second, summons need not be served
by publication as the same can be served upon
the agent. Third, foreign corporations issue
securities upon registration precisely to safeguard
against their absconding.
WHAT PROPERTIES ARE EXEMPT FROM
ATTACHMENT?
 Properties exempt from execution are exempt
from attachment (three horses, three cows
).
 Property in custodia legis is exempt in
attachment and execution because it is under
the control of the court.
Civil Procedure Reviewer
Cayo 2D
 Property of the deceased in the hands of a
judicial administrator is also exempt because
it is in custodia legis. The creditors remedy is
to file a money claim against the estate.
But the defendants interest in the property
belonging to the estate of the deceased may
be attached by serving the executor with a
copy of the writ.
WHAT IS THE NATURE OF ATTACHMENT?
Attachment is a proceeding in rem and the lien it
creates over the property is enforceable against
the world and only subject to liens already
existing.
HOW IS PROPERTY ATTACHED?
(1) The applicant must file an affidavit either by
him or by another person with personal
knowledge, showing that:
(a) The case is one of those where
attachment is available;
(b) There is no other sufficient security;
(c) The amount due to the applicant is as
much as the amount for which the order is
granted
(2) The applicant must file a bond in the amount
fixed by the court conditioned that he will pay
all the costs and damages which may be
adjudged to the adverse party should the
court finally adjudge that the applicant was
not entitled to the attachment (ex: if the case
is dismissed).
(3) The court issues an order of attachment
a. Upon motion
i. ex parte
ii. OR with notice and hearing by
1. the court where the action is
pending
2. or the CA
3. or the SC
b. Requiring the sheriff to attach the
property of the party against whom it is
issued, not exempt from execution, and
sufficient to satisfy the demand.
(4) The sheriff attaches the property
a. IMPT: Actual attachment must be
accompanied or preceded by
service of summons together
with:
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 i. a copy of the complaint,
ii. the application for attachment
iii. the affidavit
iv. the bond
v. the order
vi. the writ
b. Service of summons is not required
where:
i. summons could not be served
personally or by substituted
service despite diligent efforts
ii. OR the defendant is a resident
of the Philippines temporarily
absent
iii. OR the defendant is a non-
resident;
iv. Or the action is in rem or
quasi in rem.
An action in personam may be
converted into an action quasi
in rem by attaching property
of the defendant, in which
case, summons may be
served by publication. The
attachment will precede the
service of summons.
HOW DOES THE ADVERSE PARTY PREVENT
THE ATTACHMENT?
He may file a counterbond or make a deposit
equal to the amount in the order of attachment.
The purpose of the deposit or the counterbond is
to secure the payment of any judgment which the
attaching party may recover in the action.
IN WHAT MANNER DOES THE SHERIFF
ATTACH PROPERTY?
(1) Real property filing in the registry of
deeds a copy of the order;
(2) Personal property capable of manual
delivery taking and keeping it;
(3) Stock or shares by leaving with the
president or managing agent a copy of the
writ;
(4) Bank deposits, debts, credits, and other
personal property not capable of manual
delivery (garnishment) by leaving with
the garnishee a copy of the writ;
Civil Procedure Reviewer
Cayo 2D
Only salary DUE may be attached, subject
to the rule that wages earned for personal
service in the four months preceding the
attachment and necessary for support are
exempt from execution/attachment.
(5) The interest of the adverse party as an
heir by serving the
executor/administrator with a copy of the
writ
(6) Property in custodia legis by serving the
court with a copy of the writ
Property in custodia legis is supposed to
be exempt from attachment. But I
suppose if the court where the property is
deposited agrees to the attachment, it can
be done.
Ex: Payment to a debtor/defendant
consigned in court and attached by a
creditor/complainant.
WHAT IS THE PROCEDURE IF THE
GARNISHEE DENIES THE INDEBTEDNESS?
Payment by the garnishee upon judicial order will
extinguish his debt to his creditor.
However, if he denies the indebtedness, he may
be required to appear in court and be examined
on oath regarding the same.
CAN THE GARNISHEE BE COMPELLED TO PAY
OR DELIVER THE PROPERTY IN THE EVENT
HE DENIES THE DEBT?
No; to do so would be to deprive him of property
without due process. A separate action must be
instituted.
WHEN MAY THE PROPERTY BE SOLD BEFORE
ENTRY OF JUDGMENT?
Upon notice and hearing
(1) When the property is perishable
(2) OR when the sale would be beneficial to
both parties.
The proceeds will be deposited in court to be
applied according to the judgment.
WHEN MAY ATTACHMENT BE DISCHARGED?
(1) By the adverse partys filing of a
counterbond;
(2) By the dismissal of the case;
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 (3) By the appointment of an assignee over
the adverse partys property under the
Insolvency Law;
(4) By filing a motion for the discharge of the
attachment on the ground that:
a. It was improperly or irregularly
issued such as in the following
circumstances:
i. The complaint states no
cause of action;
ii. The attaching creditor fails
to prove the ground on
which the attachment was
based;
iii. The plaintiffs affidavit and
bond are not in
accordance with the Rules.
b. OR that the bond is insufficient.
i. The attachment will be
reduced to correspond to
the bond
WHAT ARE THE PROCEEDINGS WHEN THE
PROPERTY IS CLAIMED BY A THIRD
PERSON?
The sheriff shall not be bound to keep the
property under attachment if:
(1) The property attached is claimed by a
third person
(2) The third person makes an affidavit of his
right to the property
(3) Serves the affidavit upon:
a. the sheriff
b. AND the attaching party
(4) The sheriff demands a bond from the
attaching party to indemnify the third
person claimant
(5) The attaching party fails to file the bond
This is different from the bond filed to
indemnify the adverse party
IN WHAT ORDER DOES THE SHERIFF
SATISFY THE JUDGMENT OUT OF PROPERTY
ATTACHED?
(1) Cash
(2) Sell property
Civil Procedure Reviewer
Cayo 2D
(3) Garnish
HOW ARE THE PROCEEDS OF THE
ATTACHMENT APPLIED?
(1) Costs of the proceedings;
(2) Judgment debt;
(3) Return to the judgment debtor any
excess.
HOW IS THE COUNTERBOND/CASH DEPOSIT
PROCEEDED AGAINST?
Counterbond - When the judgment becomes
executory, the sureties on the counterbond shall
be bound to pay the judgment after NOTICE AND
SUMMARY HEARING IN THE SAME ACTION.
Deposit paid to the judgment obligee
HOW AND WHEN IS A CLAIM FOR DAMAGES
ON ACCOUNT OF IRREGULAR, IMPROPER OR
EXCESSIVE ATTACHMENT MADE?
An application for damages must be made
(a) before trial as a matter of right
(b) before judgment becomes executory as
a matter of discretion
(c) before appeal is perfected probably also
a matter of discretion because judgment
is not yet executory
with due notice to the sureties
The damages will be awarded only after hearing
and will be included in the judgment on the main
case.
This applies even if judgment in the main case is
against the adverse party. Just because the
adverse party was truly liable doesnt cure any
defect in the attachment.
WHAT IS THE PROCEDURE FOR THE
RECOVERY OF DAMAGES AGAINST THE BOND
FOR AN ILLEGAL ATTACHMENT?
(1) There is a judgment in the main action
even if judgment is against the adverse
party;
(2) IMPT: The application for damages is
filed in the SAME ACTION before trial,
before appeal is perfected, or before
judgment becomes executory;
If damages are not claimed in the same
action, they are barred, except:
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 (a) Where the principal action is
dismissed for lack of jurisdiction over
the SM;
(b) In FEUD, where the amount of
damages exceeds the jurisdiction of
the MTC, it is necessary that the claim
be filed in the RTC.
(3) Notice is given to the attaching party and
his sureties;
(4) There is proper hearing regarding the
damages and the award was included in
the final judgment.

Civil Procedure Reviewer Page 40 of 70

Cayo 2D
 RULE 58
PRELIMINARY INJUNCTION
WHAT IS PRELIMINARY INJUNCTION?
SEC. 1. A preliminary injunction is an ORDER
granted at ANY STAGE of the proceeding PRIOR
TO THE JUDGMENT or final order, requiring a
party or a court, agency or a person to REFRAIN
from a particular act or acts. It may also REQUIRE
THE PERFORMANCE of a particular act or acts, in
which case it shall be known as a preliminary
mandatory injunction.
WHAT ARE THE CLASSES OF PRELIMINARY
INJUNCTION?
(1) Preventive or Prohibitory
a. Its purpose is to require one to refrain
from a particular act.
b. The act to be enjoined is alleged to be
illegal and has not yet been
performed. It is enjoined because it
would cause irreparable injury.
c. The situation is preserved in status
quo.
(2) Mandatory
a. Its purpose is to require the
performance of an act.
b. The party in whose favor it is issued is
placed in the same situation he was
before the commission of the illegal
act.
c. The status quo to be restored is the
last actual peaceable uncontested
status (LAPUS) which preceded the
pending controversy.
WHEN MAY PRELIMINARY INJUNCTION BE
ISSUED?
Preventive or Prohibitory
When the plaintiffs principal action is an ordinary
action of injunction (to restrain the commission of
an act perpetually or for a limited period) and the
grounds in SEC. 3 are present:
SEC. 3 Grounds (alternative):
(a) that the applicant is entitled to the relief
demanded, and the whole or part of such
relief consists in restraining the
commission or continuance of the act or
acts complained of, or in requiring the
performance of an act or acts, either for a
limited period or perpetually;
Civil Procedure Reviewer
Cayo 2D
(b) that the commission, continuance or non-
performance of the act or acts complained
of during the litigation would probably
work injustice to the applicant; or
(c) that a party, court, agency or person is
doing, threatening, or is attempting to do,
or is procuring or suffering to be done,
some act or acts probably in violation of
the rights of the applicant respecting the
subject of the action or proceeding, and
tending to render the judgment
ineffectual.
Mandatory
Mandatory injunction may be issued if the
following requisites are present (concurrent):
(1) the complainant has a clear legal right the
right must be clear and unmistakable because
unlike in prohibitory injunction, mandatory
injunction requires the performance of a
particular act and does more than maintain
the status quo;
(2) his right has been violated and the invasion is
material and substantial; and
(3) there is an urgent and permanent necessity to
prevent serious damage.
HOW IS PRELIMINARY INJUNCTION
DISTINGUISHED FROM FINAL INJUNCTION?
See definition of preliminary injunction (SEC. 1).
Final injunction is a judgment rendered after trial
which (1) perpetually restrains the party or
person enjoined from the commission or
continuance of the act or acts OR (2) confirms the
preliminary mandatory injunction.
HOW IS PROHIBITORY INJUNCTION
DISTINGUISHED FROM PROHIBITION?
Prohibitory injunction order requiring a party
to refrain from a particular act
Prohibition judgment commanding a tribunal,
board, corporation, officer, or person, whether
exercising judicial, quasi judicial, or ministerial
functions, to desist from further proceeding in the
action or matter because it is in excess of
jurisdiction or because it acts with GADALEJ.
HOW IS MANDATORY INJUNCTION
DISTINGUISHED FROM MANDAMUS?
Mandatory injunction order requiring a party
to perform a particular act in order to restore the
last peaceable actual uncontested status (LAPUS)
which preceded the pending controversy
Mandamus judgment commanding a tribunal,
corporation, board, officer, or person either (1)
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unlawfully neglecting the performance of an act
required by law or (2) excluding another from the
use and enjoyment of a right or office, to do such
acts required to be done.
DOES PRELIMINARY INJUNCTION APPLY TO
CONSUMMATED ACTS?
As a general rule, when defendants are required
to merely abstain or desist from performing
certain acts, they are under no duty to perform
positive acts.
The exception is when they are specifically
ordered to perform positive acts such as the
removal of the impediment complained of as
being prejudicial to the plaintiffs rights.
Ex:
The destruction of a dam built without necessary
permits.
The reconnection of an electrical line disconnected
arbitrarily.
The restoration to possession of a party unlawfully
deprived thereof by forcible entry.
RULES ON JURISDICTION OF COURTS TO
ISSUE PRELIMINARY INJUNCTION:
(A) A judge in charge of a branch of a trial court
has jurisdiction to issue a preliminary injunction in
a case pending in that branch notwithstanding the
fact that a similar injunction had been denied by
another judge in another branch of the court.
Ex: A case is pending in Branch 1 or the Makati
RTC. Branch 2 of the same RTC denies a petition
for preliminary injunction. Branch 1 may still issue
the writ despite the denial by Branch 2.
(B) The RTC has no authority to restrain or enjoin
acts being perpetrated or to be perpetrated
outside the territorial boundaries of its region.
(C) Where the main action is the annulment of
the respondents action and injunction is merely
corollary, the trial court of the locality where the
questioned act is to be implemented has
jurisdiction.
Ex: An order of dismissal issued by the LTO
Commissioner in Manila but to be enforced by a
subordinate officer in Dagupan may be enjoined
by the Dagupan courts despite the fact that the
original action for mandamus was filed in Manila.
(D) In cases of corporations, the court with
jurisdiction over the locality of principal office of
the corporation has the authority to issue
preliminary injunction, despite the fact that the
act sought to be enjoined are to be performed
elsewhere.
Civil Procedure Reviewer
Cayo 2D
(E) A court cannot interfere by injunction with the
JUDGMENT of a co-equal court.
WHAT ARE SOME SPECIFIC CASES WHERE
PRELIMINARY INJUNCTION LIES?
(1) In petitions for relief from judgment
entered through FAME.
(2) In actions for annulment of judgments
obtained through extrinsic fraud.
(3) In petitions for CPM.
(4) To restrain continued breach of valid
negative obligations.
(5) To restrain a city for abating a nuisance
per accidens without a judicial order.
(6) To restrain voting on disputed shares of
stock.
(7) To restrain sheriff from selling property on
execution not belonging to the judgment
obligor.
(8) To restrain criminal prosecutions.
WHAT ARE SOME SPECIFIC CASES WHERE
PRELIMINARY INJUNCTION DOES NOT LIE?
(1) To take property out of the possession of
one party and place it into that of another
whose title has not clearly been
established by law.
(2) Where an action for damages would
adequately compensate the injuries
caused remember, there must be a
probability of irreparable injury.
(3) To prevent directors from discharging
their offices and restoring former
directors.
(4) To restrain a criminal prosecution except
to prevent oppression and to protect
constitutional rights.
HOW IS A PRELIMINARY INJUNCTION OR
TEMPORARY RESTRAINING ORDER
GRANTED?
(a) Upon verified application showing facts
entitling the applicant to the relief demanded;
(b) AND filing of a bond to answer for damages
which the party enjoined may sustain if the
court should finally decide that the applicant
was not entitled thereto.
(c) With notice and hearing.
CAN PRELIMINARY INJUNCTION BE
GRANTED WITHOUT NOTICE?
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GR: No. The general procedure follows: (3) If its issuance would cause irreparable
damage to the person enjoined while the
(1) If appears from facts shown by the
applicant can be fully compensated for
affidavits or by the verified application
such damages as he may suffer AND the
that
person to be enjoined files a bond that he
(2) great or irreparable injury would result will pay such damages;
to the applicant before the matter can be
This is discretionary upon the court
heard on notice,
(4) It may be reduced if its extent is too
(3) the court to which the application for
great.
preliminary injunction was made, may
issue a temporary restraining order
(4) to be effective only for a period of 20 WHEN SHOULD DAMAGES UPON THE BOND
days from service on the party or BE CLAIMED?
person sought to be enjoined.
Just like in preliminary attachment, damages upon
(5) Within the said 20 day period, the court the bond should be claimed, heard and awarded in
must: the principal action.
a. order said party or person to show
cause why the injunction should
WHEN IS FINAL INJUNCTION GRANTED?
not be granted,
If after trial it appears that the applicant is
b. determine within the same period
entitled to have the acts complained of
whether or not the preliminary
permanently enjoined, the court shall grant a final
injunction shall be granted,
injunction.
c. and accordingly issue the
corresponding order.
E:
(1) If the matter is of extreme importance
(2) and the applicant will suffer grave
injustice and irreparable injury
(3) the executive judge of a multiple-sala
court or the presiding judge of a single
sala court may issue an ex parte
temporary restraining order
(4) effective only 72 hours from issuance
(5) Within the 72 hours, the judge before
whom the case is pending shall conduct a
summary hearing to determine whether
the temporary restraining order shall be
extended until the application for
preliminary injunction can be heard.
(6) In no case shall the total period of the
temporary restraining order exceed 20
days including the original 72 hours.

WHAT ARE THE GROUNDS FOR OBJECTION

TO OR DISSOLUTION OF A TEMPORARY
RESTRAINING ORDER OR AN INJUNCTION?
(1) Insufficiency;
(2) Other grounds as shown in affidavits;

Civil Procedure Reviewer Page 43 of 70

Cayo 2D
 RULE 59
RECEIVERSHIP
Sec. 1 UPON A VERIFIED APPLICATION, one or
more receivers of the PROPERTY SUBJECT OF THE
ACTION OR PROCEEDING may be appointed by
the COURT WHERE THE ACTION IS PENDING, or
by the CA, or by the SC, or a member thereof, in
the following cases:
(a) WHEN IT APPEARS FROM THE VERIFIED
APPLICATION, and such other proof as the
court may require, that:
1. the PARTY APPLYING for the appointment
if a receiver has AN INTEREST IN THE
PROPERTY or fund which is the subject of
the action or proceeding,
2. AND that such property is in DANGER OF
BEING LOST, removed, or materially
injured UNLESS A RECEIVER BE
APPOINTED to administer and preserve it.
(b) WHEN IT APPEARS IN AN ACTION BY THE
MORTGAGEE FOR THE FORECLOSURE OF A
MORTGAGE that:
1. THE PROPERTY IS IN DANGER OF BEING
WASTED or dissipated or materially
injured, AND that its VALUE IS
PROBABLY INSUFFICIENT to discharge
the mortgage debt,
2. OR that the PARTIES HAVE SO
STIPULATED in the contract of
mortgage.
(c) AFTER JUDGMENT,
3. to PRESERVE the property DURING THE
PENDENCY OF AN APPEAL,
4. OR to DISPOSE of it ACCORDING TO
THE JUDGMENT,
5. OR to AID EXECUTION when the
execution has been returned
UNSATISFIED or the JUDGMENT
OBLIGOR REFUSES to apply his property
in satisfaction of the judgment,
6. OR OTHERWISE to carry the judgment
into effect.
(d) WHENEVER IN OTHER CASES IT APPEARS
THAT THE APPOINTMENT of a receiver IS THE
MOST CONVENIENT AND FEASIBLE MEANS OF
PRESERVING, ADMINISTERING, OR
DISPOSING OF THE PROPERTY in litigation.
During the pendency of an appeal, the appellate
court may allow an application for the
appointment if a receiver to be filed in and
Civil Procedure Reviewer
Cayo 2D
decided by the court of origin and the receiver
appointed to be subject to the control of said
court.
WHAT IS A RECEIVER?
A receiver is an indifferent person between
the parties to a cause, appointed by the court
to receive and preserve the property or fund
in litigation pendente lite, when it does not
seem reasonable to the court that either party
should hold it.
He is an officer of the court, exercising his
function in the interest of neither party litigant
but for the common benefit of all parties in
interest.
o Since he is an officer of the court,
property held by him is considered as
being in custodia legis for the benefit
of whoever may establish title thereto.
WHO MAY APPOINT A RECEIVER?
(1) MTCs
(2) RTCs
(3) CA
(4) SC, or a member thereof.
DOES A PARTY HAVE A VESTED RIGHT TO
HAVE A RECEIVER APPOINTED BY THE
COURT?
No, it is DISCRETIONARY on the court where the
application is made, just like the grant of
preliminary injunction.
This is true even if there is a stipulation for
receivership.
WHAT IS THE REMEDY FOR A DENIED
APPLICATION FOR RECEIVERSHIP?
Since it is interlocutory, CERTIORARI, not appeal
is the proper remedy.
WHAT IS THE NATURE OF THE POWER TO
APPOINT A RECEIVER; HOW SHOULD IT BE
EXERCISED?
The power should be exercised with great caution
because receivership is THE MOST DRASTIC AND
FAR-REACHING OF THE EXTRAORDINARY
REMEDIES.
CASES WHEN RECEIVER MAY BE APPOINTED:
(a) WHEN IT APPEARS FROM THE VERIFIED
APPLICATION, and such other proof as the
court may require, that:
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 1. the PARTY APPLYING for the appointment
if a receiver has AN INTEREST IN THE
PROPERTY or fund which is the subject of
the action or proceeding,
2. AND that such property is in DANGER OF
BEING LOST, removed, or materially
injured UNLESS A RECEIVER BE
APPOINTED to administer and preserve it.
Receivership is NOT PROPER IN ACTIONS
INVOLVING TITLE TO REAL ESTATE where the
effect of the appointment is to take the
property out of the possession of the
defendant before a final adjudication of the
rights of the parties can be made EXCEPT IN
EXTREME CASES AND ON A CLEAR SHOWING
OF NECESSITY TO SAVE THE PLAINTIFF FROM
GRAVE AND IRREMEDIABLE LOSS or damage.
Receivership IS PROPER TO REMEDY
MALADMINISTRATION of property owned in
common and differences among co-owners.
PARTY APPLYING for receivership SHOULD
HAVE ACTUAL, EXISTING INTEREST in the
property in litigation.
o Where the land has no improvements
that produce income and only
standing crops, the appointment of a
receiver was not proper because the
possible damage was coverable by a
bond. The standing crops belong to he
who planted them.
(b) WHEN IT APPEARS IN AN ACTION BY THE
MORTGAGEE FOR THE FORECLOSURE OF A
MORTGAGE that:
1. THE PROPERTY IS IN DANGER OF BEING
WASTED or dissipated or materially
injured, AND that its VALUE IS
PROBABLY INSUFFICIENT to discharge
the mortgage debt,
2. OR that the PARTIES HAVE SO
STIPULATED in the contract of
mortgage.
IF THE PARTIES HAVE STIPULATED FOR
RECEIVERSHIP IN THE CONTRACT, IS IT A
MATTER OF RIGHT?
No, it is still within the courts discretion despite
the existence of a stipulation.
CAN THE COURT ORDER THE SALE OF THE
MORTGAGED PROPERTIES DESPITE THEIR
STILL BEING UNDER RECEIVERSHIP?
Yes, the properties are considered to be under
custodia legis and the court has control over
Civil Procedure Reviewer
Cayo 2D
them. It was the court that ordered their
placement under receivership it did not
relinquish control over the property.
(c) AFTER JUDGMENT,
1. to PRESERVE the property DURING THE
PENDENCY OF AN APPEAL,
2. OR to DISPOSE of it ACCORDING TO
THE JUDGMENT,
3. OR to AID EXECUTION when the
execution has been returned
UNSATISFIED or the JUDGMENT
OBLIGOR REFUSES to apply his property
in satisfaction of the judgment,
4. OR OTHERWISE to carry the judgment
into effect.
Appeal from the judgment of the RTC has been
perfected does it still have jurisdiction to
appoint a receiver?
Yes; although the perfection of the appeal
deprives the RTC of jurisdiction over the case, it
still retains jurisdiction over the preservation of
the property under litigation and involved un the
appeal. In such a case, the action may be
regarded as yet pending for the appointment of a
receiver because such appointment is merely to
preserve the property and thus effectuate the
courts decree.
May a receiver be appointed when execution of a
judgment remains unsatisfied?
Yes; Rule 39 Section 41 provides for the
appointment of a receiver of the property of the
judgment obligor.
Ex: Where execution of judgment was suspended
for one year from its affirmation by the SC, the
RTC should have appointed a receiver to insure
that the judgment obligees rights to the property
would be protected.
(e) WHENEVER IN OTHER CASES IT APPEARS
THAT THE APPOINTMENT of a receiver IS THE
MOST CONVENIENT AND FEASIBLE MEANS OF
PRESERVING, ADMINISTERING, OR
DISPOSING OF THE PROPERTY in litigation.
Where A purchased and took possession of
the property from X in an unregistered sale
and B also purchased the property in a
foreclosure sale where B was the mortgagee,
the appointment of a receiver over the
property was proper as the best way to
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 conserve and administer the property pending
the action.
Is a stipulation authorizing a mortgagee to take
possession of the mortgaged property upon
foreclosure valid?
Yes; such stipulation is a convenient and feasible
means of preserving and administering the
property under litigation.
WHAT MUST THE COURT DO BEFORE
ISSUING THE ORDER APPOINTING A
RECEIVER?
SEC. 2 Before issuing the order appointing a
receiver, the court shall:
(a) require the applicant to file a bond executed
to the party against whom the application is
presented,
in an amount to be fixed by the court,
to the effect that the applicant will pay
such party all damages he may sustain by
reason of the appointment of such
receiver in case the applicant shall have
procured such appointment without
sufficient cause;
(b) and the court may, in its discretion, at any
time after the appointment, require an
additional bond as further security for such
damages.
MAY AN ORDER FOR RECEIVERSHIP BE
ISSUED EX PARTE?
No; a hearing is necessary and a bond is required
from the applicant.
Who should be made parties to the suit for the
appointment of a receiver?
Interested parties should be included
(indispensable and necessary parties).
WHO SHOULD BE APPOINTED AS THE
RECEIVER; CAN IT BE THE PLAINTIFF?
An impartial person should be appointed as the
receiver. However, the plaintiff can be appointed
as the receiver under special circumstances. In
such a case, he receives no compensation but is
entitled to be reimbursed for expenses incurred in
caring for the property.
WHAT IS A COMMON-LAW RECEIVER AND
WHAT IS HIS LIABILITY?
Not sure but
One who assumes the receivership without judicial
appointment and is bound to account for the
Civil Procedure Reviewer
Cayo 2D
properties under his care. Though he cannot be
compelled to furnish a bond, if he does so and the
properties under his care are later dissipated,
destroyed, etc. the bond may be executed upon.
On what grounds may the application for
receivership be denied?
Other than for reasons that it is not among the
cases in SEC. 1, an application may be denied
when the adverse party files a bond executed to
the applicant, in an amount fixed by the court, to
cover all damages that may be suffered by reason
of the acts, omissions, or other matters specified
in the application as ground for the appointment.
On what grounds may the receiver be discharged?
He may be discharged if it is shown that his
appointment was obtained without sufficient
cause.
WHAT MUST THE RECEIVER DO BEFORE HE
ENTERS UPON HIS DUTIES?
He must:
(1) SWEAR to perform them faithfully
(2) AND file a BOND
executed to such person and in such sum
as the court may direct,
to the effect that he will faithfully
discharge his duties and obey the orders
of the court.
DIFFERENTIATE BETWEEN THE BOND FILED
BY THE APPLICANT AND THE BOND FILED BY
THE RECEIVER.
Applicants bond answers for all damages that
the adverse party may sustain by reason of the
appointment of the receiver in case the
appointment was procured without sufficient
cause
Receivers bond answers for damages suffered
by reason of the failure of the receiver to
discharge his duties faithfully or to obey the
orders of the court
WHAT MUST THE APPLICANT AND THE
RECEIVER DO WITH REGARD TO THEIR
RESPECTIVE BONDS?
The person filing a bond must serve a copy
thereof on each interested party, who may except
to its sufficiency or of the surety or sureties
thereon.
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Applicants / suretys bond - If the bond is found
to be insufficient or the surety or sureties fail to
justify, and such failure is not rectified, the bond
shall be denied or the receiver discharged, as the
case may be.
Adverse partys bond - If the bond is found to be
insufficient or the surety or sureties fail to justify,
and such failure is not rectified, the receiver shall
be appointed or reappointed, as the case may be.
WHAT ARE THE GENERAL POWERS OF THE
RECEIVER?
Subject to the control of the court where the
action is pending, the receiver shall have the
following powers:
(a) To bring and defend, in such capacity (as
receiver), actions in his own name;
(b) To take and keep possession of the property
in controversy;
(c) To receive rents;
(d) To collect debts due to himself as receiver of
the fund, property, estate, person, or
corporation of which he is the receiver;
(e) To compound for and compromise the same;
(f) To make transfers;
(g) To pay outstanding debts;
(h) To divide the money and other property that
shall remain among the persons legally
entitled to receive the same;
(i) And generally, to do such acts respecting the
property as the court may authorize.
MAY THE RECEIVER INVEST THE FUNDS IN
HIS HANDS?
Funds in the hands of the receiver may be
invested only by order of the court upon the
written consent of all parties to the action.
HOW IS AN ACTION BROUGHT AGAINST THE
RECEIVER?
No action may be filed by or against a receiver
without leave of court which appointed him. This
applies only when the receivership is pending.
MAY THE RECEIVER ENTER INTO A
CONTRACT WITH RESPECT TO THE
PROPERTY HELD BY HIM?
Yes, but only with court approval. Unauthorized
contracts are the receivers personal obligations.
DISTINGUISH THE FUNCTIONS OF A
RECEIVER FROM THOSE OF A SHERIFF.
Civil Procedure Reviewer
Cayo 2D
A RECEIVER is a special officer appointed in
relation to and within a certain case or action, and
whose duties are limited to his sphere of action,
and do not extend further than the case in which
he was appointed.
A SHERIFF is a court officer of a general character
who is not appointed for a certain judicial case. He
exercises his functions within the limits of his
jurisdiction.
FUNDS IN THE RECEIVERS CUSTODY are not
within the reach of processes coming from other
judicial proceedings. Those with claims must
appear in the same proceedings and assert their
claims.
FUNDS IN THE SHERIFFS CUSTODY may be
within the reach of processes coming from other
judicial proceedings.
NOTE: Authorization of court is not necessary in
mortgage foreclosure suit when mortgage was
constituted before appointment of receiver.
WHAT IS THE PROCEDURE IN
PRESENTATION OF CLAIMS AGAINST
RECEIVERSHIP?
(1) By motion or petition in the same proceeding
in which the receiver discharges his duties.
(2) By filing complaints-in-intervention in
accordance with section 1 of Rule 19.
(3) Notice must be given to all the parties in
interest.
WHAT IS THE LIABILITY FOR REFUSAL OR
NEGLECT TO DELIVER PROPERTY TO THE
RECEIVER?
Such person may be punished for contempt and
shall be liable to the receiver for the money or the
value of the property and other things so refused
or neglected to be surrendered, together with all
damages that may have been sustained by the
party or parties entitled thereto as a consequence
of such refusal or neglect.
HOW IS THE RECEIVERSHIP TERMINATED?
It is terminated when the court, motu proprio or
on motion of either party:
(1) determines that the necessity for a receiver
no longer exists, after due notice and hearing
to all interested parties,
(2) settles the accounts of the receiver, and
Page 47 of 70
(3) directs the delivery of funds and other
property in his possession to the person
adjudged to be entitled to receive them, and
(4) orders the discharge of the receiver as such.
WHEN SHOULD A RECEIVER BE REMOVED?
When he asserts ownership over the property in
his hands as a receiver and refuses to submit an
accounting of the financial status of the property.
WHEN SHOULD OBJECTIONS TO THE
ACCOUNTS OF THE RECEIVER BE MADE?
They should be made timely. They cannot be
made when no objection was interposed prior to
the courts approval and after receipt of benefits.

NOTE: The judgment should include recovery

against the sureties. Damages not claimed in the
same action are barred.

Civil Procedure Reviewer Page 48 of 70

Cayo 2D
 RULE 60
REPLEVIN
by Shak
Q: When may an application for replevin be
had?
A: At the commencement of the action or at
anytime before the answer.
Q: What is the purpose for such?
A: For the recovery of possession of personal
property.
Q: Who has jurisdiction to issue writ of
replevin?
A: IF the value of the personal property sought to
be recovered is more than 200K, and in Metro
Manila 400K, the RTC has jurisdiction.
If the value is less than above, then the MTC has
jurisdiction.
Q: Where may the writ of replevin be
enforced?
A: Anywhere in the Philippines.
Q: What is replevin?
A: Delivery of personal property as a provisional
remedy consists in the delivery, by order of the
court, of a personal property by the defendant to
the plaintiff, who shall give a bond to assure the
return thereof of the payment of damages to the
defendant if the plaintiffs action to recover
possession of the same property fails, in order to
protect the plaintiffs right of possession of said
property, or prevent the defendant from
damaging, destroying or disposing of the same
during the pendency of the suit.
Q: What is the main difference between
Replevin from Preliminary attachment?
A: If the purpose of the action is for the recovery
of possession of personal property belonging to
the plaintiff = replevin. If the property belongs to
the defendant and is sought to be attached by the
plaintiff to secure the satisfaction of any judgment
that he may recover form the defendant =
Preliminary attachment.
Q: What is the man difference between
replevin and receivership?
Civil Procedure Reviewer
Cayo 2D
A: The order of the court authorizing the plaintiff
corporation to take possession of the personal
property in litigation upon the filing of a bond
sufficient to secure the conservation or value of
the same, does not constitute a delivery of the
personal property, but only a deposit of the
property in litigation applied for by said plaintiff
corp. which became a receiver by authority of the
court, it being the party most interested in the
conservation and care of said property.
Q: How should preliminary attachment be
construed in case of doubt?
A: If the subject matter is personal property, then
it should be treated as replevin in case there is
conflict or doubt.
Q: If the mortgagor refuses to surrender
property, what should the mortgagee do?
A: He should institute an action either to effect a
judicial foreclosure directly or to secure
possession as a preliminary to the sale by a writ
of replevin. He should implead the mortgagor in
the complaint for the recovery of the encumbered
property. He cannot lawfully take the property by
force against the will of the mortgagor.
Q: What if the possession is held by a 3rd
party, who should be impleaded?
A: The indispensable parties in action to recover
possession as a preliminary to sale on foreclosure
are the 3rd party and the chattel mortgagor.
Q: What is the basis for jurisdiction in an
action by chattel mortgage?
A: The value of the money claim and the value of
the personal property combined.
Q: If a mortgagee in installment sales of
personal property chooses the remedy of
specific performance is he entitled to
deficiency judgment?
A: Yes, it is only when the vendor-mortgagee
chooses the remedy of foreclosure of chattel
mortgage that the mortgagor is not liable for any
deficiency.
Q: What are expenses of suit that not taken
out of the proceeds of the foreclosure sale
but directly recoverable from the mortgagor?
Page 49 of 70
A: Repayment for the premium on the replevin
bond it filed, the sheriffs fees, costs of suit, and a
reasonable sum as attys fees.
Q: Who may file an application for a writ of
replevin?
A: The applicant-plaintiff or some other person
who personally knows the facts.
Q: What should the application for a writ of
replevin contain?
A: 1.) That the applicant is the owner of the
property claimed or is entitled to the possession
thereof.
1.1) particularly describing it,
2.) That the property is wrongfully detained by
the adverse party.
2.1) Alleging the cause of detention
according to the best of his knowledge,
information, and belief.
3.) That the property has not been distrained or
taken for a tax assessment or a fine pursuant to
law
3.1) or seized under a writ of execution or
preliminary attachment,
3.2) or otherwise placed under custodia
legis
3.3) if so seized that it is exempt from
such seizure or custody
4.) The actual market value of the property.
5.) A bond must be given, executed to the
adverse party in double the value of the property.
Q: Why should it be double the value of the
property?
A: Depreciation?
Q: Is the writ of replevin limited as a remedy
to the plaintiff?
A: No, the defendant may obtain such in a
counterclaim for foreclosure of chattel mortgage.
Q: Why is that?
A: Because in a counterclaim, the defendant is
actually the plaintiff seeking this provisional
remedy.
Q: What does the order of the writ of
replevin contain and when is it issued?
Civil Procedure Reviewer
Cayo 2D
A: Upon filing of the affidavit and bond, the court
shall issue such writ, describing the personal
property alleged to be wrongfully detained and
requiring the sheriff to take such property in his
custody.
Q: What is the duty of the sheriff upon
receipt of such order?
A: He must serve a copy on the adverse party of
the affidavit and bond and must take the property
if it be in the possession of the adverse party, or
his agent, and retain it in his custody
Q: What if the property is concealed in a
building or enclosure?
A: The sheriff must demand its delivery, and if it
is still refused, he must cause the building or
enclosure to be broken open and take the
property into his possession.
Q: Whats next?
A: The sheriff must keep such property in a
secure place and shal be responsible for its
delivery to the party entitled after receiving his
fees and necessary expenses for taking and
keeping the same.
Q: Can the courts order the sheriff to deliver
personal property when such is under
attachment?
A: No, they do not have jurisdiction to order the
delivery of personal property to the applicant if
the property is under attachment, it being in
custodia legis.
Q: What if the property is subject of a search
warrant, can it be the subject of a writ of
replevin?
A: No, if it is in the custody of another public
officer by virtue of a search warrant, then it
cannot be subjected to a writ of replevin. Only the
court that issued the warrant may order its
release.
Q: What if the adverse party objects to the
sufficiency of the bond of the applicant?
A: The adverse party cannot immediately require
the return of the property.
Q: What if he does not object thereto?
A: He may at anytime before the delivery of the
property to the applicant require the return
Page 50 of 70
thereof, by filing with the same court a bond
executed to the applicant, in double the value of
the property as stated in the applicants affidavit.
Q: What is the purpose of the bond?
A: To enable the defendant to retain possession of
the property.
Q: Within what time must the sheriff return
the property to the applicant-plaintiff?
A: Within 5 days after the taking of the property.
Q: When may the adverse party require the
re-delivery of the property to him upon
payment of the bond?
A: At any time before the delivery of the property,
or within 5 days after the taking of the property of
the sheriff provided that it was not yet delivered.
Q: What does the defendant-adverse party
have to do if he wants the property returned
to him?
A: 1.) Put up a counter-bond in double the
amount of the chattel, and 2.) furnish the plaintiff
with a copy of the counter-bond within 5 days
from the date the sheriff took possession of the
property. Both these requirements are mandatory.
Q: When does the furnishing of a copy of the
counter-bond have to be accomplished?
A: It has to be accomplished within the prescribed
period if the plaintiff is to have an opportunity to
contest the redelivery of the property sought by
the defendant.
Q: What if the judge approves a counter-
bond beyond the 5 day period?
A: The act would be GADALEJ. Certiorari will lie.
Q: If the property taken is claimed by any
person other than the defendant-adverse
party what happens?
A: The sheriff shall not be bound to keep the
property under replevin or deliver it to the
applicant unless the applicant or his agent, on
demand of said sheriff, shall file a bond approved
by the court to indemnify the 3rd party claimant in
a sum not less than the value of the property
under replevin.
Q: When may a claim for damages be made
against the bond?
Civil Procedure Reviewer
Cayo 2D
A: It must be claimed in an action for such within
120 days from the date of the filing of the bond.
But if the claim is spurious or patently frivolous
then nothing herein shall prevent such claimant
from claiming damages.
Q: Will the sheriff be liable for the claim of
the 3rd person?
A: No, if a bond was filed. If no bond is filed by
the applicant to secure the claim of a 3rd party
intervenor, then he would be liable.
Q: What if the sheriff is sued for damages
when the writ is issued in favor of the
Republic of the P.I.?
A: The filing of the bond is not required because
the State repleived it. The sheriff shall be
represented by the Sol Gen, and if held liable
therefore, the actual damages adjudged by the
court shall be paid by the National Treasurer.
Q: How may a 3rd party vindicate his claim?
A: By filing of a complaint in intervention, because
he has a legal interest in the matter in litigation.
Q: After the taking of the property by the
sheriff, what should he do?
A: The sheriff must file the order, with his
proceedings indorsed with the court within 10
days.
Q: What does the judgment in these
contemplated situation state?
A: After trial of the issues, the court shall
determine who has the right of possession to and
the value of the property and shall render
judgment in the alternative for the delivery
thereof to the party entitled to the same, or for its
value in case delivery cannot be made, and also
for such damages as either party may prove.
Q: What does the re-delivery bond cover?
A: Although a replevin re-delivery bond does not
in terms require the property to be returned in
substantially good condition as when taken, such
an obligation is always implied by law. In other
words, the bond covers the deterioration or
depreciation of such personal property.
Q: When may the prevailing party refuse to
take the litigated property?
Page 51 of 70
A: When judgment is rendered for the articles or
their value and they cannot be returned in
substantially the same condition, it is settled that
the prevailing party may:
1.) Refuse to take them and instead sue
on the redelivery bond, or
2.) Execute on the judgment for value.
A: Damages must result from the refusal or
inability of the plaintiff to redeliver the property in
pursuance of a judgment. Unless there is an
adjudication, there is no duty to return the
personal property in question, and there being no
duty to return it, there can be no damages for
non-restitution.

Q: Is this right confined at the time of

judgment?

A: No, if the prevailing party has this right after

judgment, it is at once obvious that he must also
have the same right when, asking for the delivery
pendente lite of the same property, he afterwards
finds them in a substantially depreciated
condition.

Q: How is this right to reject assured?

A: By the provision that the judgment in a suit for

replevin must be in the alternative so as to afford
a measure of relief where the property cannot be
returned.

Q: Can the premiums paid to the surety for

the counter bond be claimed as damages by
the adverse party?

A: No, it constitutes an expense purely voluntary

due to his desire to retain possession of the
chattel pending the suit and his refusal to rely on
the replevin bond for indemnity.

Q: What should the judgment include?

A: It should include the claim for damages against

the applicant or adverse party, as the case may
be and the surety thereon. The rule stands that
damages must be claimed in the same action
otherwise it is barred.

Q: May a party claim damages against a

surety prior to the delivery of the property
pursuant to the writ of replevin?

A: No, a replevin bond is simply to indemnify the

defendant against any loss that he may suffer by
being compelled to surrender the possession of
the property pending trial, he can not recover on
the bond as for a reconversion when he has failed
to have judgment entered for the return of the
property.

Q: Why is the order to return property a

condition precedent to recover damages
from surety?

Civil Procedure Reviewer Page 52 of 70

Cayo 2D

CERTIORARI, PROHIBITION AND MANDAMUS
CERTIORARI
DEFINITION Certiorari is a writ issued by
a superior court to an
interior court, board or
officer exercising judicial or
quasi-judicial functions
whereby the record of a
particular case is ordered to
be elevated for review and
correction in matters of law.
WHO? Tribunal, board or officer
WHAT Judicial or quasi-judicial
FUNCTIONS?
DOES WHAT? has acted without or in
excess of its jurisdiction or
with GADALEJ
WHAT ELSE? and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course
of law
WHO FILES A person aggrieved thereby may file a verified petition in the proper court, alleging the
WHAT? facts with certainty
PRAYING? That judgment be rendered
annulling or modifying the
proceedings and granting
such incidental reliefs as
law and justice may require
Civil Procedure Reviewer
Cayo 2D
RULE 65
PROHIBITION
Prohibition is a legal
remedy, prerogative in
character, to prevent
courts, etc. from usurping
or exercising jurisdiction
with which they have not
been vested by law.
Tribunal, corporation, board, officer or person
Judicial, quasi-judicial or
ministerial
Conducts proceedings
without or in excess of its
jurisdiction or with
GADALEJ
That judgment be rendered
commanding the
respondent to desist from
further proceedings in the
action or matter specified
therein, or otherwise
granting such incidental
reliefs as law and justice
may require
MANDAMUS
Mandamus is a COMMAND
issuing from a court of law of
competent jurisdiction, in the
name of the state or
sovereign, directed to some
inferior court, etc. requiring
the performance of a
particular duty which duty
results from the official station
of the party to whom the writ
is directed.
n.a.
Unlawfully neglects the
performance of an act which
the law specifically enjoins as
a duty resulting from an
office, trust, or station
OR
Unlawfully excludes another
form the use and enjoyment
of a right or office to which
such other is entitled
That judgment be rendered
commanding the respondent
to do the act required to be
done to protect the rights of
the petitioner and to pay the
damages sustained by the
petitioner by reason of the
wrongful acts of the
respondent
Page 53 of 70
WHAT IS A WRIT OF CERTIORARI? (1) When appeal is not available ex. NLRC
decisions are not appealable but may be
It is a prerogative writ (takes precedence over
taken to the CA under Rule 65.
other civil cases), never demandable as a matter
of right, never issued except in the exercise of (2) When the right to appeal has been lost
judicial discretion. with or without the petitioners
negligence and the decision appealed
DISTINGUISH BETWEEN APPEAL BY
from is void for lack or excess of
CERTIORARI RULE 45 AND THE SPECIAL
jurisdiction.
CIVIL ACTION OF CERTIORARI RULE 65.
(3) When appeal is available but the order
ABC 45 SCAC 65 complained of is a patent nullity.
WHAT IS Questions or errors Acts of Even if appeal is available, certiorari can
REVIEWED of law decided by lower still lie if appeal is not equally speedy,
? lower court court, body adequate, etc.
or officer
exercising Even if appeal has already been
judicial or perfected, certiorari can still be availed
quasi- of if the latter proves to be the adequate
judicial remedy and its filing will not be
functions construed as an abandonment of the
when with appeal.
or in
IS A PREVIOUS MOTION FOR
excess of
RECONSIDERATION NECESSARY BEFORE
jurisdiction
FILING A PETITION FOR CERTIORARI?
or with
GADALEJ General rule: Yes.
Errors of judgment Errors of Exceptions: [PiPlPnQU]
jurisdiction
(1) where the issue is purely legal;
PARTIES? Same parties Inferior
(2) where public interest is involved;
appellant/petitioner court,
: board or (3) in case of urgency;
appellee/responden officer is
(4) where the question of jurisdiction was
t the public
sqarely raised, submitted to and met
respondent
and decided by the lower court;
; appellee
is private (5) where the order is a patent nullity.
respondent
DECISION? Affirming, Annulling
reversing, or or DISTINGUISH PROHIBITION FROM
modifying the modifying INJUNCTION.
judgment the act Prohibition is directed to the court itself,
commanding it to cease from the exercise of a
jurisdiction to which it has no legal claim.
WHAT ARE THE REQUISITES FOR
Injunction is directed only to parties litigant,
CERTIORARI?
without interfering with the court.
(1) Tribunal, board, or officer exercises judicial
WHAT ARE SOME LIMITATIONS ON THE
or quasi-judicial functions;
SCOPE OF PROHIBITION?
(2) Acted without or in excess of jurisdiction or
(1) It does not apply to political functions;
with GADALEJ;
(2) It applies only to threatened and not
(3) There is no appeal, or any plain, speedy, and
consummated acts;
adequate remedy in the ordinary course of
law. (3) It does not apply to errors and
irregularities in procedure where the
WHEN MAY CERTIORARI BE INVOKED (IN
proper remedy is probably certiorari.
RELATION TO APPEAL)?

Civil Procedure Reviewer 54

Cayo 2D
 Quo warranto is proper if the respondent usurps
the office.
TO WHAT ACTS/DUTIES DOES MANDAMUS
APPLY? They may be combined if one respondent
unlawfully excludes without usurping while
Ministerial acts to compel performance of
the other usurps.
the act required by law.
Discretionary acts to compel the exercise of
discretion. DISTINGUISH CERTIORARI FROM
PROHIBITION.
DO YOU MEAN TO SAY THAT MANDAMUS
CAN BE USED TO COMPEL THE Certiorari is a CORRECTIVE remedy used to re-
PERFORMANCE OF DISCRETIONARY ACTS? examine the action of a lower body directed at
the proceedings in such body.
Yes; what is compelled is action on the part of
the respondent in using his discretion. A good Prohibition is a PREVENTIVE remedy issued to
example is a petition for mandamus to compel a restrain future action, and is directed to the
judge to render judgment on a case he has been court itself.
sitting on beyond the period allowed by law. The
DISTINGUISH PROHIBITION FROM
court issuing the writ of mandamus will
MANDAMUS.
command him to decide but will not decide for
him. Prohibition has for its object that of preventing
an inferior tribunal from executing an act in
WHAT RIGHT MUST THE PETITIONER HAVE
excess of its jurisdiction.
FOR MANDAMUS TO LIE?
Mandamus has for its object to compel an
He must have clear and certain legal rights to
inferior tribunal to comply with a function which
the action being compelled. Mandamus will not
the law specially prescribes as a duty resulting
issue in doubtful cases.
from its office.
DISTINGUISH MANDAMUS FROM
INJUNCTION.
WHEN SHOULD THE PETITION BE FILED?
Mandamus is remedial; injunction is preventive.
Not later than 60 days from notice of the
Mandamus is employed to redress grievances;
judgment or notice of denial of the MR, whether
injunction is used to prevent injury.
such MR is required or not.
Mandamus is to set in motion; injunction is to
ARE THERE EXTENSIONS OF TIME TO FILE
restrain motion.
THE PETITION?
CAN MANDAMUS ISSUE WHEN
Yes, but only for compelling reasons and in no
ADMINISTRATIVE REMEDIES ARE STILL
case exceeding 15 days.
AVAILABLE?
WHERE SHOULD THE PETITION BE FILED?
General rule No.
(1) Supreme Court;
Exception Mandamus will issue even if
administrative remedies are available if: (2) RTC with territorial jurisdiction over the
area
(1) The respondent is in estoppel if by
his conduct, he led the other party to (3) CA whether or not in aid of its
believe that immediate judicial recourse appellate jurisdiction
is available.
(4) Sandiganbayan if in aid of its appellate
(2) Pure questions of law are raised jurisdiction
since these questions cannot be decided
by an administrative officer with finality. If it involves the acts or omission of a
quasi-judicial agency, the general rule is
DISTINGUISH THE SECOND GROUND FOR that the CA has exclusive jurisdiction.
MANDAMUS FROM QUO WARRANTO.
Mandamus is proper if the respondent excludes
the petitioner from an office to which the latter WHAT IS THE DUTY OF PRIVATE
is entitled without claiming such office for RESPONDENTS IN DEFENDING AGAINST A
himself. PETITION?

Civil Procedure Reviewer 55

Cayo 2D
The private respondents must appear and
defend, both himself and the public respondent.
Costs awarded are for the account of the private
respondent alone.
The public respondent should not intervene
in the case.
The joinder of the private respondent
interested in sustaining the action
complained of is MANDATORY.
WHAT IS THE PROCEDURE?
(1) Petition is filed;
(2) If petition is sufficient, order requiring
respondents to comment shall be issued;
This order is equivalent to a
summons.
(3) Respondent must file comment within 10
days from receipt of such order.
In petitions for certiorari before the SC
and the CA, before giving due course to
the petition, respondents may be
required to comment.
(4) After the comment is filed or the period
for filing it expires, the court may hear
the case or require submission of
memoranda.
(5) The court can the render judgment as is
appropriate.
DOES FILING THE PETITION INTERRUPT
THE RUNNING OF THE APPEAL PERIOD?
General rule: No. Under Sec. 7 of Rule 65, the
petition shall not interrupt the course of the
principal case
Exception: unless a TRO or a writ of
preliminary injunction has been issued against
the public respondent from further proceeding in
the case.
WHEN CAN A PETITION BE DISMISSED?
Before comment:
(1) Defective in form and substance;
(a) Non-joinder of private respondents;
(b) No proof of service;
(c) No certificate of non-forum shopping;
Civil Procedure Reviewer
Cayo 2D
(d) Without merit from allegations in the
complaint.
After comment:
(1) Manifestly without merit;
(2) Intended merely for delay;
(3) Unsubstantial questions that dont require
consideration.
WHAT RELIEF IS THE PETITIONER
ENTITLED TO?
Certiorari:
(1) A judgment annulling or modifying the
proceedings of the tribunal, board, or officer
taken without or in excess of jurisdiction or
with GADALEJ.
(2) Costs.
Prohibition:
(1) A judgment commanding the defendant to
desist from further proceeding in the action
or matter where the proceedings were
without or in excess of jurisdiction or with
GADALEJ.
(2) Costs.
Mandamus:
(1) Judgment commanding the respondent to do
the act required to be done.
(2) Costs (probably).
(3) Exemplary damages.
Why are damages not awarded in certiorari and
prohibition?
The question of damages can only be
determined in an adjudication of the merits of
the case. In certiorari and prohibition, all that is
determined is whether there is lack or excess of
jurisdiction.
56
 RULE 66
QUO WARRANTO
WHAT IS QUO WARRANTO?
It is Latin for by what authority.
It is a demand made by the state upon an
individual or corporation to show by what right
they exercise some franchise or privilege
appertaining to the state which, according to the
Constitution and the laws, they cannot legally
exercise except by virtue of a grant or authority
from the state.
Section 1. An action for the usurpation of a
public officer, position or franchise may be
commenced by a verified petition brought in the
name of the Republic of the Philippines against:
(a) A person who usurps, intrudes into, or
unlawfully holds or exercises a public office,
position or franchise;
(b) A public officer who does or suffers an act
which, by the provision of law, constitutes a
ground for the forfeiture of his office; or
(c) An association which acts as a corporation
within the Philippines without being legally
incorporated or without lawful authority so
to act.
IN WHOSE NAME AND AGAINST WHOM IS
AN ACTION FOR QUO WARRANTO
BROUGHT?
It is brought in the name of the Republic of the
Philippines.
It is brought against:
(a) Persons who usurp, intrude into or
unlawfully hold a public office, position or
franchise;
(b) Public officers who forfeit their office; and
(c) Associations which act as corporations
without legally being incorporated or
authorized.
DISTINGUISH QUO WARRANTO FROM THE
SECOND GROUND FOR MANDAMUS.
Quo warranto is proper if the respondent usurps,
intrudes, or unlawfully holds the office.
Mandamus is proper if the respondent unlawfully
excludes without usurping - the petitioner
from an office to which the latter is entitled.
Civil Procedure Reviewer
Cayo 2D
HOW IS QUO WARRANTO AGAINST DE
FACTO ELECTIVE OFFICERS BROUGHT
UNDER THE OMNIBUS ELECTION CODE?
It is brought by any voter via a sworn petition,
TEN DAYS after the proclamation of the results
of the election, on the ground of ineligibility or
disloyalty to the Republic of the Philippines.
The body with jurisdiction is:
(a) The COMELEC. if it is against a member of
congress or a regional, provincial, or city
officer;
(b) The RTC or MTC, if it is against a municipal
or barangay officer.
DISTINGUISH BETWEEN QUO WARRANTO
PROCEEDING REFERRING TO OFFICES
FILLED BY ELECTION AND THOSE FILLED
BY APPOINTMENT.
Election what is determined is the eligibility of
the elected candidate; the court cannot declare
that the second placer has been elected since
the law only authorizes declaration of election in
favor of a candidate who has received the most
votes
Appointment what is determined is the
legality of the appointment; the court
determines who has been appointed and should
declare who is entitled to occupy the office
NOTE: ACCEPTANCE OF INCOMPATIBLE
OFFICE AND ITS EFFECTS ON THE QUO
WARRANTO PETITION
Where the petitioner subsequently accepts an
office incompatible to the one he alleges to have
been usurped from him, the petition should be
dismissed because he is considered to have
abandoned it.
However, where abnormal conditions were
present and the incompatible office was only
temporarily accepted, the petition should not be
dismissed.
NOTE: REMOVAL AND REPLACEMENT OF
OFFICER
Where the petitioner was legally dismissed and
his replacement was qualified and duly
appointed, removal can only be done in the
regular way and the petition should be
dismissed.
Where removal was illegal, the appointment of
another person, even if apparently regular, was
invalid because the position is not considered
vacant.
57
DOES PUBLIC OFFICE INCLUDE
LEGISLATIVE OFFICE?
Yes. In Avelino v. Cuenco, the SC assumed
jurisdiction over the political question of who
was the duly elected senate president and held
that there was a quorum when Cuenco was
elected. The petition for quo warranto was
dismissed.
CAN QUO WARRANTO BE BROUGHT
AGAINST CORPORATIONS BY ESTOPPEL?
No, because they are not really corporations and
are merely treated as such for purposes of being
sued.
Quo warranto is brought against de facto
corporations or associations which act as
corporations without authority such as those
whose certificate of registration was improperly
issued.
WHAT ARE THE INSTANCES WHEN AN
ACTION FOR QUO WARRANTO IS BROUGHT
(AS TO WHO BRINGS THE ACTION)?
(1) The SolGen or a public prosecutor MUST
(Sec. 2) or MAY (Sec. 3) bring the action;
(2) An individual may bring the action (Sec. 4).
WHEN MUST THE SOLGEN OR A PUBLIC
PROSECUTOR COMMENCE THE ACTION
(SEC. 2)?
(1) When directed by the President; OR
(2) When he has good reason to believe that the
cases in section 1 can be established by
proof.
IS THE SOLGENS DUTY MANDATORY OR
DISCRETIONARY?
The book says that the SolGen exercises
discretion in the determination of the sufficiency
of proof when he has good reason to believe.
However, if he is directed by the President, who
has control and supervision over him, I think
that he MUST file the petition.
WHEN MAY THE SOLGEN OR A PUBLIC
PROSECUTOR COMMENCE THE ACTION
(SEC. 3)?
(1) At the request and upon the relation of
another person;
Civil Procedure Reviewer
Cayo 2D
(2) With the courts permission (where it is to be
commenced);
(3) Provided that the SolGen/prosecutor MAY
require the person requesting and relating to
provide an indemnity for the expenses and
costs of the action approved by and
deposited in the court.
IN CASES WHERE THE SOLGEN MAY FILE
THE PETITION, WHAT IS THE PROCEDURE?
(1) The request is made to the SolGen,
indemnity may be required;
(2) Permission is applied for in court;
(3) The court will direct notice to be given to the
respondent who may oppose the application;
(4) If permission is granted, an order granting
such permission shall be issued and copies
served on the interested parties;
(5) The petition for quo warranto will be filed
within the period ordered by the court.
WHO IS THE RELATOR?
The relator is the one at whose request the
SolGen or a public prosecutor brings the action
with the permission of the court.
WHEN MAY AN INDIVIDUAL COMMENCE
THE ACTION?
When the individual claims to be entitled to a
public office or position usurped or unlawfully
held or exercised by another, an action may be
brought in his own name.
IMPORTANT: WHAT MUST THE INDIVIDUAL
PETITIONER PROVE IN ORDER FOR THE
PETITION TO BE GRANTED?
He must show that he is entitled or that he has a
clear right to the office being contested. It is not
sufficient that he has preferential right to be
appointed to the office in question.
The doctrine is: No individual can bring a civil
action relating to usurpation of a public office
without averring that he has a right to the
same; and at any stage of the proceedings, if it
be shown that such individual has no right, the
action may be dismissed because there is no
legal ground upon which it may proceed when
the fundamental basis of such action is
destroyed.
May an individual bring an action for quo
warranto against two or more persons?
In general, an individual cannot bring an action
for quo warranto against two or more persons
58
illegally holding separate offices unless he is
entitled to them all.
WHAT ARE THE CONTENTS OF THE QUO
WARRANTO PETITION AGAINST
USURPATION?
(1) The parties:
a. Petitioner - he person/s claiming
to be entitled to the position
(Under Sec. 1, it is brought in
the name of RP but under Sec.
5, it can be brought in the
individuals own name).
b. Respondent the party alleged
to be unlawfully holding the
position
(2) An averment of the petitioners right to
the office
(3) An averment of the respondents
unlawful possession of the office
WHERE SHOULD THE ACTION FOR QUO
WARRANTO BE BROUGHT?
In general (original and concurrent):
(a) SC
(b) CA
(c) RTC with jurisdiction over the territorial area
where the respondent or any of the
respondents reside
Where the SolGen commences the action
(original and concurrent):
(a) SC
(b) CA
(c) RTC Manila
NOTE: Though the SC has original jurisdiction
concurrently with the RTC, unless there are
compelling reasons, the action will be left to the
RTC because of the factual issues involved.
NOTE: The Sandiganbayan has original
jurisdiction over quo warranto proceedings in aid
of its appellate jurisdiction. This is concurrent
with the SC.
NOTE: AS TO PERIODS FOR FILILNG
PLEADINGS / OTHER PROCEEDINGS
The court MAY reduce the periods provided in
the Rules for filing pleadings and for all other
Civil Procedure Reviewer
Cayo 2D
proceedings in order to secure the most
expeditious determination of the matters
involved therein consistent with the rights of the
parties. The action MAY be given precedence
over any other CIVIL matter pending in the
court.
WHAT SHOULD THE JUDGMENT CONTAIN?
Where the respondent is found to be guilty of
usurping, unlawfully holding, or exercising a
public office or franchise, judgment shall be
rendered:
(a) that such respondent be OUSTED and
altogether excluded from the office;
(b) that the petitioner or relator, as the case
may be, recover his COSTS;
(c) a determination of the respective rights
of the parties to the office/franchise MAY
also made as justice requires.
IMPORTANT: DISTINCTION BETWEEN THE
COURTS ACTION WHEN THE ACTION IS
BROUGHT BY THE SOLGEN OR A PUBLIC
PROSECUTOR AND AN INDIVIDUAL
Brought by SolGen / public prosecutor the
court may decide against defendant and order
his ouster even if there is no one adjudged to be
entitled to the office
Brought by individual if the individual fails to
prove that he is entitled to the office, there will
be no judgment against the defendant
WHAT ARE THE RIGHTS OF THE PERSON
ADJUDGED TO BE ENTITLED TO THE OFFICE
(SEC. 10)?
After taking the oath and executing the bond
required by law, if any, the person adjudged to
be entitled may:
(a) take upon himself the execution of the
office (perform the functions);
(b) demand from the respondent all the
books and papers in the latters custody
appertaining to the office, refusal of
which is punishable by contempt;
(c) bring an action for damages (back
salaries and other damages) sustained
by reason of the usurpation.
NOTE: DAMAGES UNDER THE OMNIBUS
ELECTION CODE
59
Actual or compensatory damages by be granted assured of reinstatement by the administrative
in election contests and quo warranto authorities.
proceedings.
NOTE: LIMITATIONS UNDER THE OMNIBUS
ELECTION CODE
WHAT ARE THE LIMITATIONS ON AN The petition for quo warranto must be filed with
ACTION FOR QUO WARRANTO (SEC. 11)? the COMELEC, RTC, or MTC, as the case may be,
within ten days after the proclamation of the
(1) The action itself must be commenced:
results of the election.
a. One year from ouster; or
However, the filing with the Commission to
b. One year from the time the right annul or suspend proclamation shall suspend the
of the petitioner to the office running of the prescriptive period.
arose
(2) An action for damages by reason of the
WHAT ELSE MUST THE JUDGMENT CONTAIN
usurpation must be commenced within
(SEC. 12)?
one year after the ENTRY of the
judgment establishing the petitioners The court may render judgment for costs against
right to the office in question. either the petitioner, the relator, or the
respondent, or the person or persons claiming to
In (1), both criteria must be met. Ex: If the
be a corporation, or may apportion the costs, as
petitioners right to hold the office has existed
justice requires.
for more than one year, the petition will be
dismissed although the usurper had been
occupying the office for less than a year.
In (2), the claim for back salaries and damages
is INCIDENTAL to the principal action and must
be brought within one year.
WHAT IS THE REASON FOR REQUIRING THE
QUO WARRANTO ACTION TO BE FILED
WITHIN ONE YEAR?
Persons ousted from an office should take
immediate steps to recover the office and a
delay of more than one year is considered as a
loss of the right to the office due to
abandonment thereof.
Public policy and convenience demand stability
in government.
IS THERE AN EXCEPTION TO THE ONE YEAR
PRESCRIPTIVE PERIOD WITHIN WHICH TO
FILE THE QUO WARRANTO ACTION?
Yes. In Cristobal v. Melchor, where the petitioner
was constantly promised and assured
reinstatement, he was held not to have lost his
right to file an action for quo warranto despite
the lapse of one year. Laches could not apply
because there was no inaction in view of the
representations of the government.
DOES THE RESORT TO ADMINISTRATIVE
REMEDIES ABATE THE ONE YEAR PERIOD
TO FILE QUO WARRANTO PROCEEDINGS?
No. The rule of exhaustion does not apply here.
Read this with the exception to the prescriptive
period where the petitioner was repeatedly

Civil Procedure Reviewer 60

Cayo 2D
 RULE 68
FORECLOSURE OF REAL ESTATE MORTGAGE
By Shak
Q: How do you commence a Foreclosure of
Real Estate Mortgage?
A: By filing of a complaint which shall set forth
the date and due execution of the mortgage, its
assignments, if any, the names and residences
of the mortgagor and the mortgagee; a
description of the mortgaged property; a
statement of the date of the note or other
documentary evidence of the obligation secured
by the mortgage; the amount to be claimed to
be unpaid thereon and the names and
residences of all persons having or claiming an
interest in the property subordinate in right to
that of the holder of the mortgage, all of whom
shall be made defendants.
Q: What is pactum commissorium ?
A: The prohibition against the occurrence by
which a mortgagee-creditor appropriates the
thing mortgaged automatically upon default of
the mortgagor-debtor in paying the principal
obligation, or disposes of it without resorting to
the process of foreclosure, whether judicial or
extra-judicial. Any stipulation to the contrary is
void.
Q: What are the modes of foreclosure of
real estate mortgage?
A: It may be either judicial or extra-judicial.
Q: What are the provisional remedies
available to the mortgagee in case of
foreclosure?
A: 1. Preliminary attachment of properties of the
debtor not covered by the mortgage.
2. Receivership of mortgaged property.
Q: What are the remedies of the mortgage
creditor against the estate of the deceased?
A: He may abandon the security and prosecute
his claim, and share the general distribution of
the assets of the estates; or he may foreclose
his mortgage or realized upon his security, by
action in court, making the executor or
administrator a party defendant, and if there is a
Civil Procedure Reviewer
Cayo 2D
judgment for a deficiency, after the sale of the
mortgaged premises, or the property pledged, in
the foreclosure or other proceeding to realize
upon the security, he may claim his deficiency
judgment in the manner provided in the
preceding section, or he may rely upon his
mortgage or other security alone, and foreclose
the same at any time within the period of the
statute of limitations, and in that event he shall
not be admitted as creditor, and shall receive no
share in the distribution of the other assets of
the estate.
Q: Is extra-judicial foreclosure allowed
after the death of the mortgagor?
A: The general rule is that the power of sale
given in a mortgage is a power coupled with an
interest which survives the death of the grantor.
However, the proper way, in congruence with
the law, is to suspend temporarily the power to
sell so as not to interfere with the orderly
administration of the estate of a decedent. In
this light, extra-judicial foreclosure is not
allowed after the death of the mortgagor.
Q: What are the remedies of the mortgage
creditor against an insolvent debtor?
A: In the insolvency as well as in the
testamentary and intestate proceedings, the
mortgage creditor is not obliged to take part in
said proceedings for the recovery of his debt
against the insolvent or the decedents estate,
he may institute, maintain and prosecute a
separate suit against the insolvent debtor, or
against the executor or administrator for the
recovery of his secured credit until he obtains a
final judgment and he may enforce this
judgment against the property mortgaged to
him in the manner established by law.
However, after the mortgage debtor has been
declared insolvent and the insolvency court has
acquired control of his estate, no separate
foreclosure the mortgage without the knowledge
and previous consent of the insolvency court.
Q: What is the rule when a personal action
for the recovery of the debt is instituted
instead of foreclosure?
A: He may pursue either of the 2 remedies but
not both. By such election his cause of action
can by no means be impaired, for each of the 2
remedies is complete in itself. Thus, an election
to bring a personal action will leave open to him
61
all the properties of the debtor for attachment
and execution, even including the mortgaged
property itself.
Q: Where is the venue of foreclosure of real
estate mortgage?
A: Actions affecting title to or possession of real
property, or interest therein, shall be
commenced and tried in the proper court which
has jurisdiction over the area wherein the real
property involved, or a portion thereof, is
situated.
Q: Who are the parties in a foreclosure
complaint?
A: Indispensable parties:
1. The mortgage debtor
2. The mortgagor or owner of the mortgaged
property, if not the debtor, or
3. The executor or administrator of the
deceased mortgagor.
4. The executor or administrator of the
property mortgaged with the approval of the
court.
5. The heir to whom the mortgaged property
has been adjudicated.
Q: What is the effect of the failure to join
the second mortgagee, junior
encumbrancer, subordinate lienholder, or
subsequent purchaser?
A: While a second mortgagee is a proper and a
necessary party to a proceeding to foreclose a
1st mortgage on real property, he is not an
indispensable party, because a valid decree may
be made, as between the mortgagor and 1st
mortgagee, without regard to the second
mortgage, but the consequence of a failure to
make the 2nd mortgagee a party to such
proceeding is that the lien of the 2nd mortgagee
on the equity of redemption is not affected by
the decree of foreclosure.
The effect of the failure to implead a subordinate
lienholder or subsequent purchaser or both is to
render the foreclosure ineffective as against
them, with the result that there remains in their
favor the unforeclosed equity of redemption.
But the foreclosure is valid as between the
parties to the suit.
Civil Procedure Reviewer
Cayo 2D
Q: May the first mortgagee be joined as
party defendant in foreclosure action by the
second mortgagee?
A: Yes, in such a situation, the 2nd mortgagee
has to wait until after the debtors obligation to
the 1st mortgagee has been fully settled. The
court ordered the property given as security to
be sold, the proceeds to be paid to the first
mortgagee and the excess, if any, to the 2nd
mortgagee.
Q: What can he do once he is not joined?
A: He may file a complaint in intervention. Even
if the 1st mortgagee is not joined or does not
intervene, his rights are protected inasmuch as
the mortgaged property remains subject to his
lien.
Q: What is the effect of an accelerating
clause?
A: The failure of the mortgagor to comply with
this stipulation has the effect of accelerating the
time for the payment of the mortgage debt, and
rendering the mortgage subject to foreclosure
and sale under Act. 3135. When the mortgage is
rendered foreclosurable for such non-
compliance, the bringing of the action of
foreclosure may be justified.
Q: What is the effect of a prohibition
against a second mortgage, sale or
donation?
A: Although the civil code states that a
stipulation forbidding the owner form alienating
the immovable mortgaged shall be void, a way
to get around it is to provide for a stipulation
wherein such act or acts must be made with the
consent of the mortgagee as a condition.
Q: What happens when the court finds that
in the action for foreclosure, the facts set
forth in the complaint is true?
A: It shall ascertain the amount due to the
plaintiff upon the mortgage debt or obligation,
including interest and other charges and costs,
and shall render judgment for the sum so found
due and order that the same be paid to the court
or to the judgment obligee within a period of not
less than 90 days nor more than 120 days
(equity in redemption) from the entry of
judgment, and that in default of such payment
62
the property shall be sold at public auction to
satisfy the judgment.
Q: What is the manner of enforcing a
judgment of foreclosure after 5 years?
A: 1. A judgment of foreclosing a mortgage
which has lost executory force by the lapse of 5
years, may be revived by filing a complaint
based thereon.
2. A 2nd mortgagee who was not a party either
in the original complaint or in the judgment
entered by virtue thereof, may not be included
as party defendant in an action commenced by a
complaint for the purpose of reviving the said
judgment which has already lapsed
3. The mortgagee who forecloses a part of the
mortgaged properties only and does not
foreclose the remainder until after the expiration
of 5 years to recover the balance of the
mortgage indebtedness, is not entitled to charge
interest on said balance for the period of the
delay.
Q: What is the effect of the sale of
mortgaged property?
A: Upon the failure of the defendant to pay the
amount of the judgment within the specified
period, the plaintiff shall file a motion for
execution foreclosing the mortgage.
After the sale on foreclosure of the mortgaged
property, the plaintiff or the purchaser shall file
a motion for confirmation of the sale with notice
to all the parties to the action. Without notice
and hearing, an order of confirmation is void and
may be set aside anytime.
The confirmation of the sale of the mortgaged
real property in judicial foreclosure proceedings
cuts off all interest of the mortgagor in the
property sold and vest them in the purchaser.
Such confirmation retroacts to the date of the
sale. The order of confirmation is a final order
which is appealable.
Before the finality of the order of confirmation,
the mortgage debtor, the 2nd mortgagee, the
subsequent attaching creditor or purchaser may
exercise what is known as the equity of
redemption in judicial foreclosure of real estate
mortgage except when allowed by law.
Civil Procedure Reviewer
Cayo 2D
Q: What is the right of redemption?
A: The mortgagor or debtor shall have the right
to redeem the property by paying the amount
due under the mortgage deed, with interest
thereon at the rate specified in the mortgage,
and all the costs and expenses incurred by the
bank or institution from the sale and custody of
said property less the income derived therefrom.
The period of one year after the sale has been
construed as one year from the registration of
the sale of registered land.
Q: When in a foreclosure suit, there is no
3rd person intervenor, what should the
purchaser do in order to gain possession
thereof or attain title thereto?
A: He should obtain a writ of possession to put
an end to the litigation. As regards the title to
such property, it shall vest upon the purchaser
upon finality of the order of confirmation of the
sale.
Q: Differentiate right of redemption and
equity in redemption.
A: The right of redemption is the right of the
mortgagor to redeem the mortgaged property
within a certain period (in most cases, within 1
year) after the sale of the property in
satisfaction of the mortgage debt. It is available
to the mortgagor only when the mortgage is
foreclosed extrajudicially. It is not available in
judicial foreclosures, except when the
mortgagee foreclosing is a bank.
On the other hand, equity of redemption is the
right of the mortgagor in a judicial foreclosure to
pay the amount of his obligation before the
confirmation of the sale (usually 90 to 120 days)
of the mortgaged property.
Q: In order to that a sale may be validly
confirmed, what should the court do?
A: It is necessary that a hearing be given the
interested parties, at which they may have an
opportunity to show cause why the sale should
not be confirmed, and to inform them of the
time when their right of redemption is cut off.
Lack of notice and hearing of motion for
confirmation renders the order null and void.
63
Q: To enjoin a foreclosure proceeding
instituted by a bank, what should the
petitioner do?
A: He may file a bond in the amount fixed by the
court that he will pay all the damages which the
bank may suffer.
Q: Can the property be judicially sold
substantially less than its actual value?
A: Yes, mere inadequacy of the price is not a
ground for setting aside the sale, unless it is
unconscionable or iniquitous.
Q: What happens to the proceeds of the
sale?
A: After deducting the costs of the sale, the
amount realized shall be paid to the person
foreclosing the mortgage, and when there shall
be any balance or residue, after paying off the
mortgage debt due, the same shall be paid to
junior encumbrancers in the order of their
priority, to be ascertained by the court, or if
there be no such encumbrancers or there be a
balance or residue after payment to them, then
to the mortgagor or his duly authorized agent,
or to person entitled to it.
Q: How should the sale proceed in case the
debt is not all due?
A: If the debt for which the mortgage or
encumbrance was held is not all due as
provided in the judgment, as soon as a sufficient
portion of the property has been sold to pay the
total amount and the costs due, the sale shall
terminate, and afterwards, as often as more
becomes due for principal or interest and other
valid charges, the court may, on motion, order
more to be sold. But if the property cannot be
sold in portion without prejudice to the parties,
the whole shall be ordered to be sold in the 1st
instance, and the entire debt and costs shall be
paid, if the proceeds of the sale be sufficient
therefor, there being a rebate of interest where
such rebate is proper.
Q: If the payment of the secured debt is
made by installment, what is the rule?
A: Default in the payment of any installment
gives the mortgagee a right to foreclose as to
such installments without waiting for the
maturity of the whole debt. As often as more of
the debt becomes due for principal or interest,
Civil Procedure Reviewer
Cayo 2D
the court, may on motion order more property
to be sold. It lies within the power of the plaintiff
to present the matter by motion to the trial
court.
Q: What happens when there is a deficiency
in the amount realized by the judicial sale?
A: The court upon motion shall render judgment
against the defendant for any such balance for
which, by the record of the case, he may be
personally liable to the plaintiff, upon which
execution may issue immediately if the balance
is all due at the time of the rendition of the
judgment, otherwise, the plaintiff shall be
entitled to execution at such time as the balance
remaining becomes due under the terms of the
original contract, which time shall be stated in
the judgment.
Q: What are the cases wherein a deficiency
judgment cannot be decreed?
A: 1. One who mortgages his property to secure
the debt of another without expressly assuming
personal liability for such debt cannot be
compelled to pay the deficiency remaining due
after the mortgage is foreclosed.
2. In an action to foreclose a mortgage against a
nonresident defendant not found in the
Philippines who fails to submit himself to the
jurisdiction of the court, no personal judgment
for the deficiency can be rendered.
Q: If it be for a judicial foreclosure of a
chattel mortgage, can the deficiency be
claimed in the same action?
A: No, an independent action may be instituted
for the recovery of the deficiency.
Q: What is the prescriptive period to file an
action for deficiency in extrajudicial
foreclosure of real estate mortgage?
A: The right to claim payment of deficiency after
foreclosure of real mortgage prescribes in 10
years.
Q: What happens after confirmation of the
judicial sale?
A: If shall be registered in the registry of deeds.
If no right of redemption exists, the certificate of
title in the name of the mortgagor shall be
64
cancelled, and a new one issued in the name of
the purchaser.

Q: What if a right of redemption exists,

such as when the mortgagee is a bank?
A: The certificate of title in the name of the
mortgagor shall not be cancelled, but the
certificate of sale and the order confirming the
sale shall be registered and a brief
memorandum thereof made by the registrar of
deeds upon the certificate of title.

Q: What if the property is redeemed?

A: The deed of redemption shall be registered
with the registry of deeds, and a brief
memorandum thereof shall be made by the
registrar of deeds on said certificate of title.

Q: What if the property is not redeemed?

A: The final deed of sale executed by the sheriff
in favor of the purchaser at the foreclosure sale
shall be registered with the registry of deeds,
whereupon the certificate of title in the name of
the mortgagor shall be cancelled and a new one
issued in the name of the purchaser.

Civil Procedure Reviewer 65

Cayo 2D
 RULE 70 Cases of forcible entry and detainer are
summary in nature. This means that
FORCIBLE ENTRY AND UNLAWFUL technicalities or details of procedure which may
DETAINER cause unnecessary delays should carefully be
avoided.
By Sheryl
WHAT ARE THE KINDS OF ACTION TO RECOVER
DISTINGUISH BETWEEN FORCIBLE ENTRY POSSESSION OF REAL PROPERTY?
AND UNLAWFUL DETAINER
1. Forcible entry and detainer an
FORCIBLE ENTRY UNLAWFUL action which could be brought in the
DETAINER MTC within 1 year from the unlawful
Based on entry Based on unlawful deprivation or withholding of possession.
effected by force, detention by a person The object is the recovery of physical
intimidation, threat, who has acquired possession (possession de facto).
strategy, or stealth possession rightfully,
(FISTS) but who detains the 2. Accion Publiciana a plenary action
property after the for possession which should be filed in
right to keep the RTC within 10 years from the date of
possession is ended. dispossession. The object is recovery of
The action is to The possession is the better right to possession
recover possession legal at the start (possession de jure).
founded upon illegal but becomes illegal
possession from the after the right to 3. Accion Reivindicatoria an action to
beginning. keep it has ended recover ownership and possession,
which may be brought in the RTC within
10 years, if possession is in good faith,
WHERE SHOULD THE ACTION BE FILED? and 30 years if possession is in bad
faith.
The action should be filed in the MTC where the
property is located. So if A is dispossessed of his property
through FISTS, the he should file an action
WHEN SHOULD THE ACTION BE FILED? for forcible entry in the MTC. He should file
within one year from the date of
The action should be filed within 1 year after the dispossession. If after the expiration of
unlawful deprivation or withholding of one year, he does not file an action for
possession. forcible entry, the proper action is accion
publiciana, which should be filed in the RTC
WHO MAY FILE THE ACTION? within 10 years from dispossession.

For Forcible Entry: Anyone deprived of the

possession of any land or building by FISTS;
For Unlawful Detainer:
1. Any landlord, vendor, or vendee, or
other person against whom the
possession of any land or building is
unlawfully withheld after the expiration
or determination of the right to hold
possession, by virtue of any contract,
express or implied; and
2. The legal representatives or assigns of
any such landlord, vendor, vendee, or
any other person.
WHAT IS THE NATURE OF THE ACTION?
FROM WHAT DATE IS THE ONE-YEAR
PERIOD COUNTED?
In forcible entry: from the date of entry or
taking of possession by force, intimidation,
threat, or strategy. If entry is by means of
stealth, count from the date of discovery.
In illegal detainer:
1. from the date of the last demand to
vacate in case of non-payment of rent or
non-compliance with the conditions of
the lease.
2. from the date of the notice to quit, in
case of a tacit renewal of the lease;

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 3. from the date of the revocation of the
permit in case of occupancy on mere
tolerance or under a temporary permit.
IN AN ACTION FOR ILLEGAL DETAINER, IS
IT NECESSARY TO ESTABLISH PRIOR
PHYSICAL POSSESSION?
No. In an action for illegal detainer, an
allegation of prior physical possession is not
required. This is because in illegal detainer, the
defendant actually has prior possession. The
possession of the defendant is lawful at first and
becomes unlawful only after the right to keep it
has ended.
WHAT MUST THE PLAINTIFF ALLEGE IN AN
ACTION FOR FORCIBLE ENTRY?
The plaintiff must allege:
1. prior physical possession;
2. and that he was deprived thereof by
means of FISTS. (If the dispossession
did not take place by any of these
means, the RTC has jurisdiction, even if
the action is filed within one year from
dispossession)
IF THE AMOUNT OF DAMAGES AND RENTS
CLAIMED BY THE PLAINTIFF IN AN ACTION
FOR UNLAWFUL DETAINER OR FORCIBLE
ENTRY EXCEEDS THE JURISDICTIONAL
AMOUNT OF THE MTC, DOES THE MTC STILL
HAVE JURISDICTION?
Yes. The amount of damages in FE or UD is not
jurisdictional because it is only incidental to the
main action.
BEFORE COMMENCING THE ACTION FOR
UNLAWFUL DETAINER, WHAT MUST THE
LESSOR DO?
The lessor must first make a demand upon the
lessee:
1. to pay or to comply with the conditions
of the lease; and
2. to vacate the premises.
If the lessee fails to comply with these demands
within 15 days in case of land or 5 days in case
of buildings, the lessor may file the action for
unlawful detainer.
Civil Procedure Reviewer
Cayo 2D
The complaint must state that the two demands
mentioned above were made in order to confer
jurisdiction upon the MTC.
WHEN IS A DEMAND NOT NECESSARY?
A demand is not necessary when the action is to
terminate the lease because of the expiration of
the term. It is only necessary when the action is
for failure to pay rent due or to comply with the
conditions of the lease.
But remember that the demand is necessary
only in unlawful detainer cases. It is not
necessary in forcible entry cases because the
possession is illegal from the beginning.
WHAT PLEADINGS ARE ALLOWED IN AN
ACTION FOR FE OR UD?
The only pleadings allowed are:
1. complaint
2. compulsory counterclaim
3. cross claim
4. answers thereto
WHAT ACTION WILL THE COURT TAKE ON
THE COMPLAINT?
The court may either:
1. dismiss the case outright on any of the
grounds for the dismissal of a civil action
which are apparent thereon; or
2. issue summons, if no ground for
dismissal is found.
WHAT IS THE EFFECT OF THE FAILURE OF
THE DEFENDANT TO ANSWER THE
COMPLAINT WITHIN THE PERIOD
REQUIRED?
The court, motu propio or upon motion of the
plaintiff, shall render judgment as may be
warranted by the facts alleged in the complaint
and limited to what is prayed for therein. The
court may reduce the amount of damages and
attorneys fees prayed for if excessive or
unconscionable.
AFTER THE ANSWER IS FILED, WHAT
HAPPENS?
Not later than 30 days after the last answer is
filed, a preliminary conference shall be held.
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WHAT HAPPENS IF THE PLAINTIFF DOES
NOT APPEAR AT THE PRELIMINARY
CONFERENCE?
The failure of the plaintiff to appear in the
preliminary conference shall be cause for
dismissal of the complaint.
The defendant who appears in the absence of
the plaintiff shall be entitled to judgment on his
counterclaim based on the pleadings. All cross-
claims shall be dismissed.
WHAT HAPPENS IF THE DEFENDANT DOES
NOT APPEAR AT THE PRELIMINARY
CONFERENCE?
If the sole defendant fails to appear, the plaintiff
shall likewise be entitled to judgment on the
pleadings.
But if two or more defendants sued under a
common cause of action had pleaded a common
defense, and at least one of them appears at the
preliminary conference, the plaintiff shall not be
entitled to judgment on the pleadings.
CAN THE PRELIMINARY CONFERENCE BE
POSTPONED?
Generally, no. It can only be postponed for
highly meritorious grounds.
WHAT ARE THE CONTENTS OF THE RECORD OF
PRELIMINARY CONFERENCE?
Within 5 days after the termination of the
preliminary conference, the court shall issue an
order stating the matters taken up therein,
including but not limited to:
1. whether the parties have arrived at an
amicable settlement;
2. the stipulations or admissions entered
into by the parties;
3. whether judgment may be rendered
without the need of further proceedings;
4. a clear specification of material facts
which remain controverted;
5. other matters intended to expedite the
disposition of the case.
WHAT HAPPENS AFTER THE ISSUANCE OF
THE ORDER OF THE PRELIMINARY
CONFERENCE?
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Cayo 2D
Within 10 days from receipt of the order, the
parties shall submit:
1. affidavits of their witnesses and other
evidence on the factual issues; and
2. position papers setting forth the law and
the facts relied upon by them.
The affidavits must state only facts of direct
personal knowledge of the affiants and shall
show their competence to testify to the matters
stated therein.
WITHIN WHAT PERIOD MUST THE COURT
RENDER JUDGMENT?
Within 30 days after receipt of the affidavits and
position papers or the expiration of the period
for filing them, the court shall render judgment.
But if the court finds it necessary to clarify
certain material facts, it may issue an order
specifying the matters to be clarified and require
the parties to submit affidavits or other evidence
within 10 days. Judgment shall be rendered
within 15 days after receipt of the last affidavit.
WHAT ARE PROHIBITED PLEADINGS?
1. Motion to dismiss, except on the ground
of lack of jurisdiction over the subject
matter, or failure to refer the matter for
conciliation when required
2. Motion for bill of particulars;
3. Motion for new trial, reconsideration, or
reopening of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file
pleadings, affidavits, or any other paper;
6. Memoranda;
7. Certiorari, mandamus, prohibition
against any interlocutory order;
8. Motion to declare defendant in default;
9. Dilatory motions for postponement;
10. Reply;
11. Third-party complaints;
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 12. Interventions.
If the allegations of the complaint are found to
MAY THE COURT GRANT PRELIMINARY be true, the court shall render judgment in favor
INJUNCTION DURING THE PENDENCY OF of the plaintiff:
THE CASE?
1. for the restitution of the premises;
Yes. The plaintiff may, within 5 days after filing
the complaint, file a motion for the issuance of a 2. for rentals in arrears or for reasonable
writ of preliminary mandatory injunction to compensation for the use and occupation
restore him in his possession or preliminary of the property;
prohibitory injunction to prevent the defendant
from committing further acts of dispossession 3. attorneys fees;
against the plaintiff.
4. costs.
WHAT SHOULD THE MTC DO IF THE
DEFENDANT RAISES THE DEFENSE OF If the allegations are not true, the defendant
OWNERSHIP IN HIS PLEADINGS? may recover costs from the plaintiff.

If the question of possession cannot be resolved IS A JUDGMENT IN FE OR UD CONCUSIVE

without deciding the issue of ownership, the MTC AS TO OWNERSHIP?
should resolve the issue of ownership but only to
determine the issue of possession. Nye, siempre hindi. The judgment shall only be
conclusive as to possession. It shall not bind the
GUIDELINES: title or affect the ownership of the property. It
shall not bar an action between the same parties
1. The principal issue must be possession. with respect to title to the property.
Ownership must merely be ancillary
thereto. WHERE SHOULD THE DECISION OF THE
MTC BE APPEALED?
2. The plaintiff must really and primarily
seek the restoration of possession. If The judgment is appealable to the appropriate
the reliefs sought establish a case for RTC.
recovery of ownership, the action should
be dismissed. AGAINST WHOM IS THE JUDGMENT
BINDING?
3. The inferior court cannot adjudicate the
issue of ownership if the relationship of The judgment is binding against:
lessor-lessee has been sufficiently
established, unless the has been a 1. the defendant;
subsequent change in or termination of 2. all members of his family;
that relationship between the parties. 3. servants;
4. employees;
4. In forcible entry case, but not in 5. sublessees;
unlawful detainer, the party who can 6. guest;
prove prior possession can recover such 7. agent;
possession even against the owner 8. successor-in-interest.
himself.
DOES AN EJECTMENT CASE SURVIVE THE
5. If the question of possession hinges on DEATH OF A PARTY?
the question of ownership, the inferior
court may resolve the issue of ownership An ejectment case survives the death of a party.
provisionally. Such determination is This is because it involves possession of real
binding only with respect to possession property. The decision may be enforced against
and not to title. It does not bar a the successors-in-interest if one of the parties
subsequent action between the same dies.
parties involving title to the land.
IS A JUDGMENT AGAINST THE DEFENDANT
WHAT RELIEFS MAY BE AWARDED BY THE IMMEDIATELY EXECUTORY?
JUDGMENT IN FE OR UD?

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Yes, the judgment against the defendant in FE
or UD is immediately executory.
WHAT MUST THE DEFENDANT DO TO STAY
EXECUTION OF THE JUDGMENT?
CAN THE PLAINTIFF WITHDRAW THE
RENTALS DEPOSITED IN COURT?
Yes, if the defendant does not object.

The defendant must: WHILE THE JUDGMENT IS ON APPEAL TO

1. perfect an appeal to the RTC;
2. file a supersedeas bond to pay accrued
rent, damages, and costs; and
3. deposit rents in the RTC during the
pendency of the appeal, on the tenth
day of each succeeding month or period.
Upon failure of the defendant to file the bond or
to make the deposits, the RTC may, upon
motion, order execution of the judgment of the
MTC, without prejudice to the continuation of the
appeal of the decision.
CAN THE COURT EXTEND THE TIME FOR
MAKING THE DEPOSIT?
No, the court cannot extend the period for
making the deposit. It must be made on the
tenth day of each succeeding month or period.
WHEN CAN THE MOTION FOR IMMEDIATE
EXECUTION BE DENIED?
If because of:
THE RTC, CAN THE RTC ISSUE AN
INJUNCTION?
Yes. Within 10 days from the perfection of the
appeal to the RTC, the plaintiff may file a motion
for the issuance of a writ of preliminary
mandatory injunction to restore him in
possession if the court is satisfied that:
1. the defendants appeal is frivolous or
dilatory; or
2. the appeal of the plaintiff is prima facie
meritorious.
IS THE JUDGMENT OF THE RTC ON APPEAL
OF THE MTC DECISION IMMEDIATELY
EXECUTORY?
Yes. The judgment of the RTC against the
defendant is immediately executory. There is no
way of staying execution (unlike the MTC
decision). This is without prejudice to a further
appeal that may be taken from the RTC decision.

1. fraud, accident, mistake, or excusable

negligence (FAME), or

2. the occurrence of supervening events

which brought about a material change
in the situation of the parties and which
would make execution inequitable,

the defendant failed to post the supersedeas

bond or to make the periodic deposits, he may
file a petition for relief under Rule 38. The
motion for immediate execution should be
denied.

WHEN IS A SUPERSEDEAS BOND NOT

REQUIRED?

1. If the defendant deposits in court the

amount of back rentals fixed in the
judgment;

2. If there are not rents and damages in

arrears;

3. Or there is no judgment rendered for

rents and damages.

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