Professional Documents
Culture Documents
Summary procedure
1. Filing of the complaint
o In summary procedure, after filing the complaint, what can
the court do?
A) Dismiss the case outright
B) Issue summons
o What is the responsive pleading?
Answer.
Can you file a MTD?
In general, no. It is a prohibited pleading.
When do you file the answer?
10 days, not the usual 15.
o Can the plaintiff file a reply?
No. Its also a prohibited pleading.
o What if there is no answer?
The plaintiff can file a motion for the court to render
judgment.
A motion to declare the defendant in default is a
prohibited pleading. Just ask the court to render
judgment.
o After the filing of the last pleading, move on to next stage.
2. Preliminary conference.
o Take note, in SP, it is NOT pre-trial but preliminary conference.
o When does the court set this?
Period of 30 days.
o What happens here?
The parties can compromise, identify issues, etc.
o Can the court render a judgment based on what was
presented in the preliminary conference?
Yes, the court can, if it is convinced at this point in
time.
o Assuming there is no judgment in steps 1 and 2, move to the
next step
3. Submission of judicial affidavits or position papers
o Is there a hearing in summary proceeding or trial?
No hearing, no trial.
o Within how many days do you submit affidavits?
Within 10 days
o Can the court render judgment?
General rule: 30 days from the filing of the last
pleading
NOT submission for resolution, but
submission of the last pleading
Exception: 15 days, if the court asks for further
clarificatory documents
What are the prohibited pleadings?
o 1. MTD
Except lack of jurisdiction over subject matter
Or failure to refer to lupon
o 2. Reply
o 3. Bill of particulars
o 4. MR or MNT
o 5. Petition for relief from judgment
o 6. Motion to declare in default
o 7. Third party complaint
o 8. Memoranda
o 9. Dilatory motions for postponement
Does this cover motion for cancellation of
hearing?
If is not dilatory. But be careful with this,
because the judge has to determine first if it
is dilatory.
o 10. Motion for extension of time
o 11. Petition for certiorari, mandamus, prohibition against
interlocutory orders of the court
o 12. Interventions
Jalique v. Dandan:
o This is a case where the respondents filed a joint counter
affidavit in an ejectment case, rather than a response. The
MTC decided in favor of plaintiff. RTC affirmed. CA moved to
have the case remanded to MTC for re-hearing.
o HELD: Valid action by CA. The court interpreted the rules on
summary proceeding liberally here, because there was
presence of a responsive pleading anyway and there was
challenge of the material allegations of fact in the complaint.
So the MTC should have considered it.
Bonifacio v. Bellosillo
o The judge was sanctioned here, because there was no
answer, and instead of promulgating judgment, he still called
for a preliminary conference.
Pascual v. Jovellanos
o The defendant filed a Motion to Strike Out instead of an
answer, which was, in reality, a motion to dismiss. The judge
should not have granted this.
Boy v. CA:
o May the MTC pass upon questions of ownership in an
ejectment case?
YES, only provisionally and for the purpose of
resolving forcible entry/unlawful detainer cases. This
is a power granted by BP 129.
Macasaet v. Macasaet:
o In the preliminary conference, representatives appeared on
behalf of the original parties (as attorneys-in-fact). This special
authorization is a valid cause for someone else to appear in
the plaintiffs or defendants behalf.
o What happens when the plaintiff is absent in preliminary
conference?
Case is dismissed
o What happens when the defendant does not appear?
As if he didnt file an answer. The court can render
judgment.
o What is the stopgap?
Have an explanation OR send a representative
o Where does this rule come from?
Provision on authorization does not appear in the
rules on summary procedure. But the SC applied to
Rule 70 suppletorily, the rules of Rule 18 on pretrial
and appearance by representative.
Small claims
What should a plaintiff file?
o 1. Statement of claim
o 2. Together with certificate of non forum shopping
o 3. Authentic copies of document from which the action stems
from (actionable documents)
Who signs the statement of claim?
o The claimant. No need for the lawyer.
o [Atty. Salvador: maybe this special rule is for bar flunkers to
practice, because the claimant still needs to file certain
documents he may not know how to execute]
What happens after?
o Court files notice for defendant to submit response
o Defendant has 10 days to file a response
o What are the formal requirements?
There is already a form provided for the plaintiff and
defendant to fill in.
They just need to attach documents.
o Can there be a counterclaim in a small claim action?
Yes.
And then? [review/cross-check these rules]
o The parties can decide for amicable settlement or judicial
dispute resolution (JDR)
o Can a claimant apply as an indigent litigant?
Yes. (Aldura)
o Will there be presentation of evidence?
Yes, but it is not a strict and formal trial. You can only
present the evidence attached to the claims.
o Is there a preliminary conference?
None mentioned.
o Do the parties have to appear?
Yes, or at least their representatives. Failure for the
plaintiff to appear leads to dismissal without prejudice
of the claim. Failure for the defendant to appear has
the same effect as not filing a response.
What happens after JDR?
o In a multi-sala court, the executive judge refers to the pairing
judge for hearing and decision within 5 working days from
referral
o In a single sala court: Pairing judge hears and decides the
case in the court of origin within 5 working days from referral
by JDR judge
Are there prohibited pleadings?
o Same as summary procedure
o Except in MTD, only lack of jurisdiction over the SM is the
exception. Failure to refer to the lupon is not an exception.
Can it be appealed?
o No. By express provision, it is final and executory.
o What then, is the remedy?
Rule 65 (petition for certiorari) because there is no
plain, adequate, speedy remedy
Pleadings
What must be in the complaint?
o Claims a cause of action
o Must contain allegations brief and concise statement of
ultimate facts, devoid of evidentiary matters
You can also allege as to fraud, mistake, malice,
illegality, condition of the mind, etc.
As to matters of fraud, how must it be alleged?
o With particularity
As for mistake, how must it be alleged?
o With particularity
If its a condition of the mind (malice, intent, knowledge, etc.)?
o Generally
You can also base your claim on an actionable document. How to
do you allege it?
o 1. You can attach or append the document
To show the court that this is where your cause of
action arises
o 2. You can reproduce the contents of the document in the
pleading en toto
(But in practice, just always append anyway)
How do you deny an allegation under an actionable document?
o Specifically denied, under oath
o What is the exception to when you need to specifically
deny under oath an allegation from actionable document?
1) When the adverse party is not a party to the
instrument
2) When there is an order for inspection and it is
refused
What is the effect of failure to specifically deny under oath an
actionable document?
o It is an admission ONLY as to the genuineness and due
execution of the actionable document
But what about the rights and obligations of the parties arising
from that document?
o It is up to the court to determine it.
What is the period to file an answer?
o 15 days after service of summons
o Could it be 30 days after receipt of summons?
For foreign corporation and service is done to
government official designated by law
What are the defenses available in answer?
o 1) Affirmative defense
If you only hypothetically admit, without raising
any defense, what happens?
In this case, there is no more issue. This will
lead to a judgment on the pleadings (Rule
34)
This occurs when the answer does not
tender an issue or admits the material
allegations
o 2) Negative defense
Specific denial of facts alleged essential to the cause
of action.
What are the kinds of specific denial?
1) general denial
2) specific denial
3) disavowal of knowledge (lack of
knowledge and belief to form a specific
denial)
Is the counterclaim or cross-claim in a separate pleading?
o No.
What is a compulsory counterclaim?
o Arises out of the transaction constituting subject matter of the
action
What is a permissive counterclaim?
o Arising from an event unrelated.
What is the period to answer a counterclaim?
o 10 days
o (In practice, you only answer a permissive counterclaim. In
practice, a compulsory counterclaim is not answered.)
What is a cross claim?
o Made against a person/party on the same side.
Can there be a counterclaim defendant cross claim?
o Yes. The counterclaim defendant is the original plaintiff. He
can file a cross claim against a co-party.
Is there a period to answer a cross claim?
o 10 days
Do you need leave of court to file a counter or cross claim?
o No, whether it be a permissive/compulsory counterclaim or a
cross claim, no.
For a third party complaint, do you need leave of court?
o Yes . You cannot just file a third party complaint.
o Who is usually the third party plaintiff?
The defendant in the main case, who feels that he
should file a complaint against someone that court
has yet to acquire jurisdiction from.
This is the reason why there is need for leave of
court. You need to have the third party impleaded.
Why would you want a third party complaint?
To contribute or indemnify
o Classic case: car crash a hit b hit
c. C sued B. B sued A for
indemnification.
Subrogation
Any other similar ground
o What is the period to answer a third party complaint?
15 days, because it is treated as an entirely new
complaint
Is the reply a mandatory pleading?
o No.
What is the period to file a reply?
o 10 days.
What do you do in a reply?
o To controvert the new matters raised in the answer
What is the effect of failure to file a reply?
o All new matters stated in the answer are deemed controverted
o What is the reason for this?
[Didnt answer]
What happens after answer, etc?
o Pre-trial
Three important things:
o Signature, verification, and CNFS
What is the effect of a lawyer affixing his signature in a pleading?
o Indicates that he has read the pleading, and to the best of his
knowledge, the information is correct
o And that the filing of the same is not for the purposes of delay
There are some pleadings that are left unsigned. What happens?
o It has no legal effect at all.
o Is there a way to cure it?
If counsel can show it is due to mere inadvertence
and not for delay
o Will the court just give effect to the pleading or will it still
require actual signing?
[Didnt answer]
If a lawyer changes his address, what is his duty?
o Inform the court. Failure to do so may lead to disciplinary
action.
What are the contents of the verification?
o That the affiant has read the pleading and the allegations are
true.
Must it be under oath?
o Yes.
Is it mandatory?
o No. Only when the law requires you to verify.
Is it jurisdictional?
o No. Failure to attach is not fatal.
o But why do the SC and CA dismiss cases for failure to
attach verification?
Although it can be cured, the court may dismiss a
pleading for failure to comply with procedural
requirements.
Who signs the verification?
o The party filing the pleading.
Can the lawyer sign it?
o General rule, no. Unless there is some compelling reason.
o For example, the partys father is to be buried on the day of
filing of the petition the court allowed it.
o Also, the distance of the petition from the counsel (ex. the
petitioner is in the USA and the counsel is in Manila, and there
are only 15 days to file.)
Can a minor sign?
o Must be assisted.
Can a married person sign by himself or herself?
o One spouse is enough, but only if there is common interest.
(N.B. but see note below)
For co-owners or those in the same residence?
o Signature of one is enough if there is common interest. (N.B.
but see note below)
TAKE NOTE: The key when it comes to multiple parties, all of them
have to sign. However, if there is a common interest among the parties,
a signature of a number of them may be enough.
o BUT in practice, do not take chances.
CNFS: What about a juridical entity? Who can sign?
o [Anyone, as long as authorized by a board resolution]
What are the contents of the form?
o Plaintiff/principal party shall certify under oath that he has not
filed a similar complaint involving the same issues in another
court, tribunal, QJ agency
o If there is any other pending claim, provide status
o If he learns about similar action, report fact within 5 days to the
court
Why does the law require that it is the party that signs?
o Because it is only the party, and not even the lawyer, that
knows whether there is another action.
For those with no separate juridical existence, who signs?
o All the parties, since there is no juridical personality.
What is the effect of absence of CNFS? (Note: non-compliance is
different from absence)
o It will be dismissed. It can be re-filed because it is without
prejudice.
Can it be amended to cure?
o No, the defect cannot be cured by an amendment. Just re-file.
What is the effect of non-compliance? (Note: this occurs when there
is a CNFS, but you did not respect your commitment under the CNFS)
o Indirect contempt (Failure to comply with order or process of
court)
o Administrative and criminal cases (since you lied under oath)
o Dismissal of the case
What if there is willful and deliberate forum shopping?
o (Meaning, its not only false, but you also deliberately disregard
it)
o Dismiss the case with prejudice
What kind of dismissal?
Summary dismissal cannot contest
o Placed in direct contempt without opportunity
BPI v. CA
o There was a CNFS filed in the first place. What was not
attached was the board resolution showing the authority of the
Vice President to sign the CNFS on behalf of the company.
This authorization was submitted on the MR.
o NOTE: There was a valid CNFS. There was liberal
interpretation of this provision for these reasons.
Donato
o Here, the lawyer signed the verification, not the party. This
was validly excused by the court since the party was in the US,
and could not sign the pleading in time given the 15 day
period. There was physical impossibility.
o BUT as a general rule, the lawyer cannot sign.
Young v. Seng
o There was no forum shopping, because the first case was
dismissed due to lack of cause of action. When a case is
dismissed because of that, it is without prejudice, and that
party can file the same case again.
o Failure to disclose this fact is not a violation of the CNFS.
OSM Shipping
o Requires a duplicate original or CTC for the decision being
appealed (here, NLRC decision) and not the prior one (Labor
Arbiter in this case)
Tan v. Kaakbay
o No need for a CNFS for a compulsory counterclaim
New Sampaguita
o There was no forum shopping here, because the first case
questioned whether there can be a writ of execution when the
parties agreed to compromise in the first place, when the court
dismissed the initial case. The second case was whether the
court approved the compromise agreement in the first place.
These are different.
Solar
o Is the rule on personal service mandatory?
Yes. The rule is priority is by personal service. If you
cannot do it by personal service, you can do it by
registered mail, but you have to make an explanation.
o In this case, it was made by registered mail and there was no
explanation. For this reason, the decision of the court to allow
it was based on its reasonable discretion. BUT this is not the
rule.
Musa
o What are the material dates here?
Period only commences to run from date of receipt of
the decision
Date of filing of the MR
Date of receipt of denial of the MR
Amendments and supplements
There is amendment for civil cases and there is amendment for criminal
cases.
For civil cases, amendment may either be:
o 1) As a matter of right
o 2) With leave of court
When is it a matter right?
o Before an answer or within 10 days of service of reply
o What do you need to file?
NOTICE to amend
When do you need leave of court?
o After an answer has been made
o What do you need to file?
Motion to amend
For criminal cases, the reference point is not an answer. Instead, it is
plea.
Before plea, can you amend?
o Yes, whether as to matter of form or substance
After plea, can you still amend?
o Yes, but only as to matters of form, for as long as it will not
prejudice the rights of the accused
Dont forget that last bit!
o What is the test when it will prejudice the rights of the
accused, even if its a matter of form?
If the original defense of the accused will not change.
What is amendment to conform to evidence?
o This is section 5 of Rule 10
o Allegations are found in the body of the complaint/answer.
What is alleged must be proven.
o If the evidence you presented went beyond the allegations, you
may file a motion to amend the pleading to conform to
evidence
There are two kinds of amendments to conform to evidence. What
are these?
o First kind no objection on the part of the other party. For this
reason, it will be allowed even after judgment.
o Second kind if the other party objects, the amendment is left
to the sound discretion of the court.
Can you amend a complaint when it originally has no cause of
action?
o If in the first place there is no cause of action, no amendment
will cure such an absence.
o Can the court order an amendment even if there is no
application to amend?
1. Yes, if it is a mere formal (typo) amendment
2. For bill of particulars, the court can either order
compliance OR an amendment
3. Motion to dismiss the court can either grant,
deny, or order an amendment
There was an amendment of an original complaint, which was the
basis for the issuance of summons. If the original complaint is
amended and that is granted by the court, is there a need for
issuance of new summons?
o No, if you already lawfully obtained jurisdiction over the
defendant through summons or voluntary appearance.
o It is a question of jurisdiction over the person, not a question of
amendment.
o HOWEVER, if there are additional defendants, new summons
must be served to them.
What is a supplemental pleading?
o A pleading filed in addition to a prior one that has been filed,
pursuant to new transactions, occurrences, or events that have
arisen.
o Can there be a supplemental complaint?
Yes
o Can there be a supplemental answer?
Yes
o Can there be a supplemental reply?
Yes
o Can there be a supplemental petition?
Yes
So what is the general rule?
o You can file a supplemental pleading as long as there are new
transactions, occurrences, or events that occur after the filing
of the first pleading.
o What is the exception?
Usually you cannot do this to the Supreme Court,
because you cannot file something to it unless it
asked for it. You would be asked to explain why you
are submitting such.
What is the difference between amendments and supplements?
o Amendments pertain to events, transactions, or occurrences
that exist during the filing of the original pleading, but were not
placed in the pleading. There was just an omission.
May be filed without leave of court (before responsive
pleading)
o For supplements, the events, transactions, or occurrence only
arose after the filing of the original pleading.
Always with leave of court
Default
N.B. 1: What is the rule on objections?
o General rule: all objections on grounds not raised in an answer
or motion to dismiss are deemed waived.
o What are the exceptions?
1. Lack of jurisdiction over SM
2. Res judicata
3. Litis pendentia
4. Prescription
o What is the fifth exception provided by jurisprudence?
5. Lack or absence of cause of action
This is different from Rule 16 (that the
pleading states no cause of action)
N.B. 2: What is the rule on failure to allege a counterclaim?
o Any compulsory counterclaim or cross claim not set-up: barred
forever
o In special proceedings a claim against the estate must
be made in the period provided for in the notice.
Otherwise it will be forever barred. What is the exception?
If there was a suit started by the estate against you,
the claim can be raised as a counterclaim.
N.B. 3: How many kinds of default do we have?
o 1. In actions in rem, there is a general order of default.
There are no defendants, so notice is made to the
public that all oppositors have to come forward and
object. Otherwise, forever barred.
o 2. Failure to attend during pre-trial
Called as in default in the 1964 Rules of Court
If the defendant fails to attend, the plaintiff can
present evidence ex parte
When do you know when a party is in default?
o 1. Did not file responsive pleading
o 2. There is proof of such failure
You have to show the return
How can you set aside an order of default?
o
o 1) File a motion on any of these grounds:
1. Fraud
2. Accident
3. Mistake
4. Excusable negligence
o 2) It has to be under oath
o 3) State that you have a meritorious defense, without
necessarily giving an answer
o What kind of fraud is needed?
Extrinsic fraud.
o Is the fraud needed here the same fraud needed for motion
for new trial, petition for relief from judgment, and motion
for annulment of judgment?
YES. For all of these, you need extrinsic fraud.
How do you set aside an order of as in default [or allowance for
plaintiff to present evidence ex parte for the plaintiff]?
o Saguid: Remedy is to file an MR or relief from order of default
also on the ground of FAME
o Do you have to add that you have a meritorious defense?
No need. Youre already in pre-trial.
Can there be partial default?
o Yes.
o In a case where you file a case against A, B, C, D, and E. E
did not file an answer, while A to D did. Will A to D be
allowed to present evidence?
Yes.
o Will E be allowed to present evidence?
No. He is in default.
o Can A to Ds evidence be used against E or in favor of E?
Yes. In fact, E can still win the case along with the
others.
Can the court render a judgment after an order of default, without
presentation of evidence ex parte?
o Yes. This is a new provision introduced only in the 1997 Rules
of Civil Procedure.
o This has not been asked in the Bar examination yet. So be
careful.
Where can there be no order of default?
o 1. Nullification/annulment/legal separation
o Can there be default in Summary Procedure?
No. When there is failure to file answer, there can be
judgment rendered by court.
o 2. Certiorari, Prohibition, etc. Some SCAs require a
comment, so there can be no declaration of default
Are there SCAs where there can be declaration of
default?
Yes, like interpleader where the special rules
are deficient so there is suppletory
application of the ROC
Cerezo v. Tuazon:
o Order of default failure to submit an answer, so the
defendant is declared in default
o Judgment by default after the defendant is given notice of the
court processes, the court renders a decision without hearing
defendants defense, which he lost
o Remedy for an order of default?
Motion to set aside or lift an order of default based on
FAME (under oath, and you have to show you have a
good defense)
SSS v. Chavez: This must be accompanied by a
verification (under oath), affidavit of merit (that you
have a good defense), and notice of hearing. If this is
missing, the motion is lost.
o Remedy for a judgment by default?
MR or MNT (FAME) within period for filing an
appeal
After the reglementary period (i.e. when there is entry
of judgment) Petition for relief from judgment
6 months from entry of judgment AND within
60 days from knowledge
If there is GADALEJ, Rule 65 certiorari
Remington Steel:
o When there are multiple defendants, even if one has already
answered, you may amend the complaint as a matter of right
as to the other since there is no defense yet that would be
affected or altered by the amendment.
Philippine Export and Foreign Loans:
o When it is a dismissal without prejudice, appeal is not a
remedy. Your remedy is to re-file a case or file for a petition for
certiorari.
o Amendment to conform to evidence What if it was not
allowed, but the evidence was proven, can there be a valid
judgment based on that evidence?
Yes. It is valid, even if it is not consistent with what
was alleged.
Bill of particular
Can there be Bill of Particulars in criminal cases?
o Yes. Rule 116, Sec. 9.
Only four things to remember in BOP:
o 1. What is the definition of BOP?
o 2. What is the period to file a BOP?
o 3. What is the action taken by the court in BOP?
o 4. What is the consequence of failure to comply with order to
file a BOP?
When you file for a BOP, what do you want to achieve?
o A more definite statement of facts that appear in the complaint
that are not averred with sufficient particularity
o You are to identify the defects and the details desired.
Can you file a motion for BOP after an answer has been filed?
o No more, because issues have already been joined.
What is the effect of filing a motion for BOP on the period?
o The period is interrupted upon filing, but you always have at
least five days to file the answer after.
Deadline to file an answer is December 15. You filed a motion on
December 5. How many days do you have?
o TWELVE, not eleven. You dont count the day causing the
interruption. [VERY IMPT]
o This is the same way you count a motion to dismiss.
[Same facts] If you filed a motion for bill of particulars on
December 14, the motion is interrupted. How many days do you
have?
o You still have Five days.
What action can the court take on a BOP if you fail to comply?
o 1. Motion to strike out
o 2. The case can be dismissed (Virata v. SB) Rule 17, Sec 3:
non-compliance with court order
What if the person fails to file an answer in the time left?
o Will be declared in default
Service and summons
Filing
What are the modes of filing?
o 1. Personal
o 2. Registered mail
Can there be filing by ordinary mail?
o None. Because here there is no way the court can find out
when you filed it.
o But there can be service by ordinary mail.
What are the requirements for personal and registered mail?
o PERSONAL: Stamped, dated, and signed by the clerk of court.
o REGISTERED MAIL: Pay for registry receipt and you have to
accomplish a return card
What is the proof that you personally filed?
o Primary: if the pleading is found in the records of the court.
o If it does not appear, you can present the received copy
What is your proof of registered mail filing?
o Registry receipt
o Affidavit of the person mailing
o Return card
Service
What are the modes of service?
o 1. Personal
o 2. Registered mail
o 3. Ordinary mail
What does rule 14 cover?
o 1. Covers party serving to another party,
o 2. party serving to court,
o 3. and the court itself serving notices (section 9)
If the person to whom you are serving is not available, then how do
you file substituted service?
o Delivery to the clerk of court with proof of failure of both
personal service and service by mail.
o There should be proof of both failure of personal service and
service by mail.
o [This is different from substituted service of summons]
How do you prove service by ordinary mail?
o Affidavit
What is completeness of personal service?
o Actual delivery
What is completeness of registered mail?
o Actual receipt or 5 days after notice of postmaster
o whichever comes first
What about ordinary mail?
o 10 days after mailing
What are the proofs of personal service?
o Written acknowledgement
o Affidavit of the person serving
o Official return of server
This refers to service by the court
What are the proofs of registered mail?
o Registry receipt
o Return card
What are the proofs of ordinary mail?
o Affidavit of person serving
What if I used registered mail, but I got back the return card
ALONG WITH the document itself (showing it is unclaimed). What
do you do to prove delivery?
o You have to file the return card plus the unclaimed document,
plus before you file, secure a certification from the post office.
Take note that a return card is required by law to be filed, but in
practice, we do not.
What is the priority of service?
o Personal service is always preferred
o What is the effect of filing by registered mail?
Put an explanation why you did not serve it through
personal service
o What if you dont comply?
As if the pleading was not filed.
Service of pleadings should be made to whom?
o To the counsel, if the party is represented by counsel.
What if service was made to a security guard on the ground floor
of a condominium building and your office is on the 3oth floor?
o You cannot. You have to serve it to counsel.
What is Lis Pendens?
o In an action involving right, title, or interest over a property, you
annotate it on the title of the property.
I file a case in the bureau of lands to declare null and void a title.
Can this be subject to a notice of Lis Pendens?
o No. This is a quasi-judicial action. Notice of lis pendens only
applies to judicial cases, not quasi-judicial. (Heir of Lopez)
Atlantic Erectors: You can only apply for Lis Pendens if the property is
the subject of the action.
o Can you put a notice of lis pendens in a partition case?
Yes.
Do you need court approval to effect a notice of Lis Pendens?
o Not at all. Just send a memorandum to the ROD, even without
court involvement.
When do you need court approval?
o When you intend to cancel the notice.
o Grounds:
1) purpose is to molest other party
2) no need for the notice to protect the rights of the
parties who caused it
Payongayong:
o Priority of service is ALWAYS personal. If you cannot do it
personally, you give an explanation
o Same as filing priority is personal. Otherwise, you give an
explanation.
United Pulp:
o Hypothetical There is a principal who is out of the
Philippines, and he designates X as his attorney-in-fact.
Can X sign the certification against non-forum shopping?
In general, he cannot. But in this special case, he
can, because the principal is out of the country.
o What is the test?
Mere representation is not enough. There must be a
specific authorization and clear authority given in the
SPA that he can sign the CNFS.
Summons
Can personal service and substituted service work
simultaneously?
o No. Personal service first, and this is the priority. You cannot
have these simultaneously.
Where?
o WHEREVER HE IS FOUND. Always remember the James
Yap rule.
What are the requirements for substituted service? Under what
circumstances?
o Only if personal service is IMPOSSIBLE.
o Proof of this: defendant cannot be served summons after all
efforts have been exhausted.
Is there a set of standards given by law on how
many times you have to try to serve?
A case says that it must be at least three
times on two different days.
o There has to be an explanation.
o Where will the explanation appear?
In the sheriffs return
Summons must be served within reasonable time. What do you
mean by this?
o For the sheriff, 15-30 days according to jurisprudence. After
the 30
th
day, the court will require the sheriff to submit the
return.
o Why is this important?
If you file a complaint and you dont see to it that the
summons is served, your complaint can be dismissed
for failure to prosecute.
What is alias summons?
o If the original summons has been lost or the original summons
was returned to court, unserved.
o Then you can apply for alias summons.
When do you talk about suitable age or discretion, to what kind of
substituted service does this apply?
o To service at the residence.
When you talk about suitable age or discretion for substituted
service, what do you mean?
o There is nothing in the law that says there must be age of
majority but from Manotoc to Pascual, there is consistent
jurisprudence that it must be age of majority.
Who must it be? Could it be a house helper?
o She or he must reside therein. This must concur with suitable
age or discretion. So these are two elements.
o A visitor or a transient cannot receive summons. But a house
helper can.
For offices, to whom must it be served?
o To a a) competent person b) in charge.
o Can a middle manager the same rank as Mr. X receive
summons for Mr. X?
He must be in charge of receiving summons in the
office.
o What does in charge mean?
In charge of the office. President or manager.
For corporations, what is the special rule?
o President, General Manager, Managing Partner, Corporate
Secretary, Corporate Treasurer, In-house Counsel
o Memorize this . It is a closed list.
But for personal cases of an individual, will the office receive it for
you?
Can substituted service be served on non-residents?
o No. None as a general rule. You cannot do substituted
service to a non-resident.
o [Sec. 15 does not talk about this situation. Sec. 15 talks about
non-resident and cannot be found.]
o Is there an exception?
Yes, but its very narrow. But there must a a) resident
spouse b) who was previously appointed as attorney-
in-fact.
In Secs. 14, 15, and 16: how can summons be done?
o By publication.
Distinguish.
o Section 14 : Defendant is unknown or his whereabouts are
unknown.
How do you do this?
Just publish.
Do you even have to try personal service?
No need for personal service (since you
dont know him or where he is).
In what kind of case?
Whatever kind of action, whether in rem or in
personam you can do it by publication, as
clarified by the SC.
Not just in rem or quasi in rem anymore.
How does publication in 14 differ from 15 and 16?
In 14, ONLY publication is needed. It does
not require service by registered mail in the
last known address.
o Section 15: Extra-territorial service
Against who?
Against a defendant that does not reside in
the Philippines and is not found in the
Philippines.
In what subject matter?
1. Involving personal status of the defendant
2. Property of non-resident defendant
3. Property is attached
4. Where defendant has actual or contingent
interest over property
What are the modes of service?
1. Personal service outside the Philippines
2. Publication AND service by registered
mail in his last known address
o N.B. Both must concur. Take note
of this.
3. Other modes deemed applicable by the
court
o Section 16 : Temporarily absent
Can he be a resident of the Philippines?
Yes. But hes just temporarily absent.
What is the length of time needed here?
None provided
How do you do serve summons?
Any of those in Sec. 15.
Add: Substituted service, if there is
impossibility and there are earnest efforts to
serve.
What is the purpose of summons?
o So the court can peg a date when it acquired jurisdiction over
the person.
What is the proof of service of summons?
o Sheriffs return.
Note the rules on:
o Provinces
o Prisons
What is the rule on voluntary appearance?
o It is not equivalent to summons, but if there is voluntary
appearance, summons can be dispensed with.
What is the rule on Motions to Dismiss?
o If you file a Motion to Dismiss, even if you join other grounds
other than lack of jurisdiction, you are not deemed to have
submitted to the jurisdiction of the court.
o Old rule: you have to separate the MTD based on lack of
jurisdiction.
Maximo v. Montalban:
o In this case, his residence is known and he is just temporarily
absent. So substituted service is not proper.
Samarino v. Ralu:
o Here, the sheriff did not prove that facts and circumstances
that would allow substituted service (repeated failure to
personally serve, etc.) it must be shown in the sheriffs return
Ancheta:
o There are only a few remedies when the judgment is already
final and executory. Here, the petitioner filed a petition to
annul the judgment based on lack of jurisdiction over the
person (because lack of jurisdiction is used, it can cover both
lack of jurisdiction over both SM and the person).
Gomez v. CA:
o Does it mean that if you are talking about an in rem action you
can venture on trying to serve it personally?
You can still do personal service, in case you find him
somewhere in the Philippines by chance.
o Section 14 before limits itself to in rem or quasi in rem. It now
extends likewise to actions in personam.
Motions
What is a motion?
o It seeks relief, but not a pleading.
o It does not raise a claim, nor does it raise defenses in an
answer.
o Does a motion to dismiss take the nature of an answer?
No, because it will not lead to a joinder of issues
What does EVERY motion need to have?
o A notice of hearing.
o Directed to whom?
To parties.
But also give notice to the clerk of court (even if the
provision does not say it), because he schedules the
hearings.
o Absence of a notice of hearing has what effect?
The motion becomes a mere scrap of paper.
When must notice be given?
o The motion must be filed in court and served to the other party
at least three days before the date of hearing. (Three day
notice rule)
What is the ten day rule?
o The hearing itself must be scheduled no later than 10 days
from the filing of the motion
Ex. you file it December 6. The last date you can set
the hearing for is December 16.
o Understand this along with the three day rule.
What is the Omnibus Motion rule?
o Include all grounds available; or else, it is deemed waived.
o What are these exceptions?
1. Lack of subject matter jurisdiction
2. Res judicata
3. Litis pendentia
4. Statute of limitations
What is motion day?
o Friday afternoon.
o If it is a holiday, set it on the next working day
o Is this mandatory?
Yes. But some judges apply the rule liberally.
But since 2008, this rule has been applied strictly.
Motion to dismiss
What are the kinds of dismissal in Civil Procedure?
o 1. There is a motion to dismiss in Rule 16, prompted by
defendant. MOST COMMON
o 2. But there is also a motion to dismiss in Rule 17, filed by the
very same plaintiff who filed.
Rule 17 also covers failure to prosecute, which is
another form of motion to dismiss.
o 3. Demurrer to evidence
What are the grounds in Rule 16?
o 1. Lack of J over the SM
How do you determine subject matter
jurisdiction?
It is the law that confers the right to hear, try,
and decide a case
The most common source is RA 7691
amending BP 129
o 2. Lack of J over the defendant
Look again into proper service of summons
Or voluntary appearance
o 3. Improper venue
Fall back to Rule 4, or special rule under law
o 4. No legal capacity to sue
Minor age of majority
Corporation must be duly registered with SEC
Attorney in fact look into scope of authority
o 5. Pleading Asserting the Claim States no COA (PACS-COA)
Does not go into the falsity or truthfulness of the claim
The pleading does not appear to state a COA
o 6. Res judicata
What are the elements?
1. Final judgment
2. J over SM and person
3. Judgment on merits
4. Identity of parties, SM, cause of action
o 7. Litis pendentia
Same as RJ, but without
o 8. Prescription
o 9. Failure to comply with condition precedent
Ex. Failure to refer to Katarungang pambarangay
Is this waivable?
o YES. Because it is not
jurisdictional.
Ex. Earnest efforts to compromise
Ex. Exhaustion of administrative remedies
Does this fall under this ground?
o Some commentators say yes. But
some say failure to exhaust must
fall under PACS-COA
o 7. PWEA (Payment, waiver, extinguishment, or abandonment)
o 8. Unenforceable under Statute of Frauds
Of all these grounds, if the court dismisses, can it be re-filed?
o ALL
o Except [F,H,I]
1. Prescription
2. Unenforceable under Statute of Frauds
3. Res judicata
4. Extinguish of claim or demand (PWEA)
When can you file a MTD?
o Within the reglementary period. Fifteen days.
How do you count a period?
o Just remember the rule on interruption. [Read up Bill of
Particulars portion.]
There was MTD filed on basis of lack of J over the defendant. The
court, instead of dismissing the action, dismissing the MTD, or
ordering amendment of the complaint, filed alias summons. Is this
grave abuse of discretion?
o There was none. Instead of dismissing the case and waiting
for re-filing, the court issued alias summons which will produce
the same effect.
Preliminary hearing of the affirmative defenses. What is this?
o You can file an answer, and the court has discretion to hold
preliminary hearing of your affirmative defenses and use it to
dismiss the complaint. Thus, an answer can be treated as a
MTD.
This is a new feature of the 1997 Rules of Court. This
has never been asked in the Bar.
o What is the reason for this new rule?
Note: a MTD is not a prohibited pleading, but when it
issues summons, the court persuades parties not to
file an MTD, but to file an answer with an affirmative
defense.
o Why is such court attitude?
Because issues will be joined, and pre-trial sets in
where parties can compromise.
o What is the difference between filing a MTD and an
answer?
There is no preliminary hearing of defenses in a MTD.
If the court mistakenly denies your MTD, what is your remedy?
o Petition for certiorari on Rule 65 based on GADALEJ.
o Does this petition for certiorari suspend the main
proceedings?
No. Even if there is a pending petition for certiorari,
the main proceedings will not be suspended unless
you obtain a TRO.
o The Eternal Gardens rule, which has been repeatedly abused,
invoking judicial courtesy here, does not apply anymore.
o Can the Court of Appeals dismiss the case if it feels the
RTC committed GADALEJ? Or should it only remand?
The court, subject to its discretion, can either dismiss
or remand it. There is no hard and fast rule.
Dismissal of Actions
What are the ways by which a plaintiff can dismiss a case?
o Filing a notice of dismissal any time before the answer is
served. Dismissal is a matter of right.
o What happens to the counterclaim?
There is no counterclaim yet, because there is no
answer.
o Can this case be re-filed?
Yes.
What is the exception?
Dismissed a second time under this section.
What if there is already an answer? See Pingga case
o File a motion for dismissal.
o What happens to the counterclaim, if there is?
It does not get dismissed. Pingga limits the dismissal
to the complaint, not the counterclaim. This
abandoned BA Finance rule.
Does this rule cover both permissive and
compulsory counterclaim?
Yes.
This is why the provision says that within 15
days, the party would have to manifest its
willingness to prosecute it in the same
action; otherwise it will be prosecuted in a
separate action.
Pre-trial
When is pre-trial conducted?
o Rule 18 Sec 1 does not say, it just says that the ex parte
motion by the plaintiff to move the case for pre-trial must be
done promptly
o BUT the 2004 guidelines say it must be within 5 days after the
last pleading has been filed
What if the plaintiff fails to move for pre-trial?
o The 1997 rules are silent. Before, dismissal was the
consequence, for failure to comply with Rules of Court. But
this is not the consequence anymore, because of the 2004
rules, which gives a specific outcome.
o 2004 rules : DUTY OF THE CLERK OF COURT to move for
pre-trial.
Before actual pre-trial, a few days before, what happens?
o Preliminary conference before the clerk of court. It will be
recorded and will form part of the pre-trial record.
o They explore possibility of compromise, etc.
o This is almost like a mini pre-trial.
Expect two dates in one notice
o One setting the preliminary conference
o One setting the pre-trial itself
On the first day of pre-trial what is the order of the day?
o The court issues an order referring the case to a court-
annexed mediator. Forward the records to him.
o You have to pay fees for a mediator.
o For the time-being, the pre-trial proceedings are suspended.
o What is the period for suspension?
30-60 days.
But in the same order, the court will say that if within
this period, there is no compromise, there will be
resumption of pre-trial on a later day.
What if there is inability to compromise?
o Records returned to court. The court will resume pre-trial.
o The Judge with all tact, patience, and impartiality, endeavor
to
[Missed something]
Judge talks to counsel and parties
Judge talks to only parties
[stepped out]
What do you need to submit at pre-trial?
o Pre-trial brief.
o What if you fail to submit a PTB?
Same effect as if you didnt appear at pre-trial.
Request for admissions: Rule 129 Section 4 Judicial Notice:
o No need for introduction of evidence
o You want an admission to abbreviate the proceedings
o You are submitting just proposals. If accepted by the other
party, it becomes an admission.
Issues to be submitted for resolution
Documentary and testimonial evidence to be presented:
o One day examination of witness rule if you can direct,
cross, re-direct, and re-cross a witness in one day, do so.
(This is in the guidelines, not in the Rules of Court.)
o Submit the most important evidence first.
o Evidence will be pre-marked.
What is the effect of failure to pre-mark?
You can no longer present the evidence if
you failed to pre-mark it.
Unless the court allows you in the interest of
justice, or if newly discovered.
o What if you fail to name the witness in court?
You cannot present the witness anymore.
What are the other contents of the brief that you may put?
o Referral to Commissioners
o Explore possibility of compromise
o Possibility of judgment on pleadings or summary judgment
o Avail of deposition/modes of discovery
How do you avoid consequences of absence?
o According to the provision, if there is a good excuse for
absence, the consequence will not vest. You can also
authorize someone to appear on his behalf in pre-trial.
What happens next?
o Pre-trial order is issued by the court.
DIFFERENCES BETWEEN CRIMINAL AND CIVIL PRE-TRIAL
o What if it is a criminal case and the prosecution is absent.
What happens?
It will be re-scheduled.
o What if the accused is absent?
The prosecution CANNOT present evidence ex-parte
because it will violate the accused persons right to
confront witnesses.
o RULE 118. TAKE NOTE OF THIS. THIS IS THE
DIFFERENCE BETWEEN CRIMINAL AND CIVIL PRE-TRIAL.
o For an admission of the accused to take effect against
him, what must be done?
It must be in writing and signed, by both the counsel
and accused.
No such requirement in civil admissions in pre-trial.
Judicial Dispute Resolution
o In the past, the JDR process only applies in Makati. Now it
also applies in QC and Manila.
o The judge here is both a mediator and a conciliator and an
independent evaluator.
o Unless the parties consent to continue with the JDR judge, it is
mandatory that there will be a new raffle and the new judge
who will hear, try, and decide the case is the trial judge
o This step happens when the Clerk of Court receives the
Mediators Report of a not settled mediation
o Check http://www.pmc.org.ph/downloads/JDR_Guide.pdf
Intervention
What is the concept of intervention?
o A third party takes part in a case between other parties
o Because he has a legal interest in the subject matter of the
case or he will be adversely affected by distribution/disposition
of property in custody of the court
What does the court look at?
o Legal interest of the intervener
o 1) Such intervention will not unduly delay or prejudice the
proceedings of the parties
o 2) Or if the right of the intervener can be protected in a
separate action
When can you intervene?
o You can intervene any time before rendition of judgment in the
trial court
o There is nothing in the rules talking about intervention in the
Appellate Court. But the court can exercise discretion to allow
intervention in the Appellate Courts.
After judgment, can there still be intervention?
o As a rule, no.
o But if the rule is an indispensable party, the court will allow
intervention even after judgment.
Can there be a complaint intervention or answer in intervention, or
a complaint against either/all of the original parties?
o Yes, for all.
Nordic:
o There was a mortgage over a vessel to secure a loan. There
was a default in the payment. For this reason, there was an
Extra-judicial foreclosure. While the petition was there, there
was a subsequent case filed.
o There was a complaint filed by the crew members of the vessel
against the vessel in RTC Manila (sum of money case).
o The mortgagee sought to intervene in the sum of money case,
because it held a Preferred Ship Mortgage.
o HELD: No legal interest, no cause of action. There must be a
personal cause of action in order to intervene. Here, the
mortgagee had no interest in the sum of money case. And in
this case, the mortgagee can protect its rights in the
foreclosure case.
Subpoena
Types of subpoena?
o Ad testificandum: appear and testify
o Duces tecum: appear and bring with him the documents or
things
N.B. Must appear too. Cannot just mail or send.
Who can issue a subpoena?
o 1. Court where witness must attend
o 2. Court where deposition is taken
o 3. Officer/body conducting investigation
o 4. Any justice of CA/SC in any case/investigation pending
Can the OMB issue a subpoena?
o Yes.
Can the office of the prosecutor issue?
o Yes.
Is the receipt of a subpoena by a respondent in a case filed before
the office of the prosecutor necessary for the office to acquire
jurisdiction over the respondent?
o No. It is totally irrelevant. Preliminary investigation before the
Office of the Prosecutor is a statutory right, not constitutional
right. You can altogether dispense with it, or waive it. It is not
essential for DP.
o There is an express provision in Rule 112(D) that says failure
to receive the subpoena will not bar the prosecutor from
issuing a resolution. It is not imperative.
Can a regular court judge subpoena a convict?
o The judge examines if it is for a valid purpose
o For those under death/RP/Life and confined: must be
authorized by the SC to appear under subpoena
Heart of the rule on subpoena is in Section 4 (Quashing a subpoena)
o How do you quash a subpoena as testificandum?
1. Witness is not bound thereby
What is an example of this?
o If the witness is not qualified. Ex
the witness is the spouse of the
person he/she is testifying against
2. Witness fees and kilometrage allowed by the Rules
were not tendered
Witness must live within 100 KM of the place
where hearing is conducted
You can also be arrested to compel you
o How do you quash a subpoena duces tecum?
1. Unreasonable and oppressive
2. Relevancy of the books, documents, etc. does not
appear
3. Failure to tender the costs of production
4. Kilometrage/witness fees Not in the duces
tecum part but you need the witness to appear too
5. Failure to describe with particularity N.B. not in
the rules
Can the clerk of court issue a subpoena in the absence of a judicial
action? (Note, this is not referring to investigation by a quasi-judicial
body.)
o No.
Depositions (Rule 23)
What can be subject of deposition?
o Any matter, as long as not privileged
o AND relevant
o What do you mean by not privileged?
When the witness is disqualified (e.g. attorney-client,
physician-patient, penitent-priest, husband-wife,
public office in related to State)
Ayala Land applied section one (see Modes notes). It explained how to
commence depositions.
o Can a judge before whom the action is pending take
depositions?
Yes. (Ayala Land)
o Before whom should deposition be taken?
If in the Philippines, 1. Judge, 2. Notary public, 3. Any
party authorized to administer oath, 4. The parties by
agreement/stipulation
In foreign country, 1. Embassy, legation, consular
officer/agent 2. One authorized by commission or
letters rogatory, 3. Stipulation of parties
o Dulay v. Dulay A brother duped his brother; both are
Filipinos. One brother is a naturalized American, and applied
for the latters naturalization. The US government approved it.
The later, once there, was made the trustee of the deposits of
the former. He spent the money. Filed case in Philippines.
Took deposition of bank manager in US. The local court
communicated the request with foreign authority (letters
rogatory communication by one judicial authority to another
to follow the rules of the latter). This is distinguished by
commission where a person is appointed commissioner; the
deposition is governed by Philippine rules.
o In this case, the court of Boston ignored the letters rogatory, so
they applied for deposition before a notary public. The local
court refused to accept, requiring a consular certification.
o The court here allowed because the letters were ignored and
there was no consular office in Boston, so they allowed
deposition before NY notary.
When is there need for leave of court?
o Whether an answer has been filed or not. When there is an
answer, you do not need leave of court, just notice. When
there is no answer yet, you need leave of court.
o Contrast with amendments: You need leave of court after
answer; before answer, you just need notice.
What is the process to take deposition?
o Rule 23, Sections 19-21.
o Who does the recording?
A stenographer, clerk, secretary under the direction
and supervision of the officer
o Then?
The deponent examines it and signs it
Can signing be waived?
Yes.
o After the signature, what next?
The officer certifies it first
Then files it in court with indication that it is authentic
and complete
If the procedure is not followed, what will happen? What is the
consequence?
o A party can file a motion to suppress deposition because the
procedure was not followed
o What is the Ayala doctrine?
The rules can be relaxed because the deposition was
taken before the judge in the main case. The judge
knows its authentic and complete by personal
knowledge.
What are the uses of deposition?
o 1. Impeach testimony of witness
[For prior inconsistent statements]
o 2. Against other party (or officer of corporation that is another
party) for any purpose
o 3. Used in place of oral testimony if the deponent:
A) Lives more than 100 KM from the place of trial
except if the absence was procured by the party, or
out of the Philippines
B) Is dead
C) Unable to attend to due age, sickness,
imprisonment, etc.
D) Cannot compel attendance of witness through
subpoena
E) Exceptional circumstances
Can a subpoena be issued by reason of deposition taking to make
sure the deponent comes?
o Yes. Rule 21, Sec. 5
Can a deposition of a deceased person be presented in court? Is
this not hearsay?
o It can be presented, as long as it was subjected to cross
examine. It is hearsay, but it can be submitted.
o Is cross examination a necessity?
Yes. This is necessary to exempt it from the hearsay
rule.
If you take a deposition, are you compelled to present it in court?
o No.
If you use a part of a deposition, can the rest be presented?
o Yes.
Always distinguish between take and use.
Who are disqualified to be deposition officers? [Memorize; this has
not yet been asked]
o 1. Sixth degree of consanguinity from party/employees
o 2. Sixth degree of consanguinity counsel of parties/employees
o 2. Financially interested in the action
Re: irregularities on taking of deposition. What is the general rule
on errors/irregularities on taking depositions?
o General rule is that it is waivable
o What is the exception?
Relevance or competency of evidence failure to
object is not a waiver
Unless a timely objection could have obviated the
defect
When is the period to object?
o The same as the period to file the responsive pleading.
o So to question direct: 10 days (period to file cross)
o To question cross: 5 days (period to file re-direct)
o To question re-direct: 3 days (period to file re-cross)
Can you take deposition even after pre-trial?
o Yes.
o Do you need to reserve?
No need, even if you do not reserve it during pre-trial.
Jonathan Landoil
If you take a deposition of a person, do you still have to present
the person as a witness?
o You still have to present him in court, in general. Depositions
cannot take the place of actual physical testimony in court.
o If you fail to cross examine the witness in the deposition,
can you still cross-examine him in court?
Yes, you definitely can! Sabio
What are the consequences for non-compliance with order for
deposition?
o Can it be dismissed?
Yes, the court can dismiss. There can even be a
judgment by default
However, in the old case of Arellano, the court
dismissed the case due to refusal to be subjected to
deposition. But the SC said it was wrong. In this
case though, the matter subject to deposition is an
incidental matter only, not the main issue of the case.
Bottom line: it IS a possible result, but fall back on
materiality of the matter
Can the court regulate the deposition? (Ex. excluding certain
matters)
o Yes.
Can the other party oppose the taking of a deposition?
o Yes.
o Under what grounds?
Annoy, embarrass, oppress memorize these
words
It is irrelevant
Depositions before action or pending appeal
What is perpetuation of testimony?
o See below
If there is no pending case can you take a deposition?
o No. You file a case for the perpetuation of a testimony
o So you file a case for the purpose of perpetuating a testimony
What is the special rule on venue here?
o Place where the expected adverse party resides
When could you apply for deposition pending appeal?
o Before judgment becomes final
o There is a pending case for certiorari, can you take a
deposition pending appeal?
No, certiorari is not an appeal
Interrogatories to parties
Distinguish Rules 23 and 25:
o Rule 25 Interrogatories to PARTIES. Always to parties.
o Rule 23 Party or a witness, or any person for that matter
How must the questions be answered?
o Rule 23 there is direct, cross, re-direct, and re-cross
o Rule 25 Just one set of questions to be answered by the
other party
Re: time to answer
o Rule 23 no fixed time to answer, because what dictates the
period is the officer (since they have to appear before the
officer)
o Rule 25
Are the uses of the depositions the same?
o Between Rule 23 and 25, the same
What is the effect of failure to serve written interrogatories to
parties?
o You cannot compel the adverse party to testify if you did not
serve written interrogatories
o Can you call the adverse party to the witness stand?
YES! In general, YES. The answer is in Rule 132,
Sec. 12
It is different if you call on the witness the accused
himself (in a criminal case)
Request for admission
What is a request for admission?
o 1. Requesting to the other party that he admit the genuineness
of any material/relevant document
What else do you need to do?
Attach the document so it can be examined
Does an admission cover the contents of the
document?
No, just the genuineness so you do not
have to prove it exists and it is genuine
The contents can be up for contentions
Case: There was a pre-trial. One party submitted a
list of equipment, and wanted the other party to
accept it. The other party said it was incomplete, and
asked that the first party prepare a new list to submit
to the court within X days. Instead of submitting it to
court, the first party submitted a request for admission
to the other party. Instead of answering, the second
party kept quiet. HELD: It was an implied admission.
o 2. Or truth of any material and relevant matter
The admission must be directed to whom?
o The adverse party (Not the counsel it must be served to the
other party) (Duque)
o But the partys counsel may answer (Larada)
What if the other party fails to respond?
o Considered an implied admission
Who will suffer the cost?
o The other party who refused to admit, if it is eventually proven
to be genuine or true
o But in the meantime, advanced by the party requesting
Producting or inspection of things/documents
What do you apply for?
o Request that a party produce and permit inspection of
documents, papers, objects, other tangible things
o OR to allow entrance into a place under control of the latter
and allow inspections, etc.
Is production of documents the same as subpoena duces tecum?
o No.
Is production required for presentation of secondary evidence?
o Yes, apart from a mode of discovery, it can be a preparatory
act to present secondary evidence. If you require production
and the other party refuses or says it is lost, then you can
produce secondary evidence.
o But there is need for request to produce
o So if you get a request to produce but it is targeted to a specific
document, most likely it is for secondary evidence
You applied for production of books/papers/documents, and you
are allowed to examine. Are you bound to present it as your
evidence?
o No, youre not required. It is a mode of discovery a way of
discovering evidence. If you like what you see, you still have
to go through the process of presenting it in court.
N.B. Under 2004 guidelines, it is the duty of the judge to issue an
order to the parties to avail of Modes of Discovery under Rules 23, 25-
27
Physical and mental examination
So limited in its use that even the 2004 guidelines do not include it
When can you apply for this?
o Mental or physical condition is in controversy
This is the only mode of discovery where the court can motu propio
issue it. The other modes, you have to apply for.
What is the consequence if the copy of the examination is given to
the requesting party?
o You waive the privilege.
o Because of your request, the other party can now also ask for
previous or subsequent examination, too.
o What if the requesting party refuses?
If by chance, the requesting partys physicians were
allowed to testify, their testimonies can be excluded.
N.B. Privilege of doctor-patient only applies to civil case, not criminal
case
Consequences of non-compliance
If there is refusal to answer, what are the consequences?
o 1. The case can be dismissed if he is plaintiff
o 2. If the defendant, judgment by default
o 3. Pleadings can be stricken out
o 4. Held in contempt
He can be arrested
When does arrest as a consequence not apply?
Request for physical or mental examination
Segue: deposition in other proceedings
Can you use modes of discovery in criminal actions?
o Yes.
Can you use modes of discovery in special proceedings?
o Yes.
o Special proceedings do not provide for an answer. But the
general principle of suppletory application (Rule 72, Sec. 2).
Is there criminal deposition?
o There is a Rule 119. Use it instead of Rule 23. Rule 119 talks
about a pending criminal action, but it is not yet trial.
o You can call witnesses even before trial and obtain their
testimony.
o But there is distinction between conditional examination of
witnesses for the prosecution and condition examination for
accused.
For prosecution examination before trial can only be
done in the court where the action is pending because
the law wants it to be harder for prosecution.
For the accused, it should be made before either any
judge, before any member of the Bar (good standing,
etc.), any inferior court designated or appointed by a
superior court.
o But the law does not say its deposition. But its akin to such,
according to Supreme Court decision.
Does physical and mental examination as a mode of discovery
apply in criminal trial?
o Its inherent.
Trial
Both civil and criminal procedures will not provide for conduct in
examination of a witness. Where is it found? Evidence.
What is the order of presentation of evidence?
o 1. Plaintiff, to support complaint
o 2. Defendant, present defense
o 3. Third party, and so on
o 4. Parties faced with counter or cross claim, present defense
o 5. Rebutting evidence
Can it be reversed?
o Yes, it can, if there is an affirmative defense.
o Plaintiff in the usual and ordinary course of things presents
before the defendant.
o [Check for midterms: can there be reverse order if it is a civil
case? ]
Can there be judgment without trial?
o When parties agree on facts
o [spaced out]
What are the grounds for cancellation of hearing?
o 1. His presence is indispensable and illness is excusable
N.B. it does not say the party must be indispensable;
just his presence
o 2. Absence of evidence, and the evidence is material and
cannot be procured despite due diligence
Who can receive evidence?
o Generally, the judge
o Exception: to the clerk of court delegated authority to receive
evidence
1. There are default proceedings
2. Ex parte
Examples of ex parte proceedings?
o Default
o Application of indigent
o As in default [did not appear
during PT]
3. Parties agree in writing
Can an adoption case proceeding be delegated to the clerk of
court for reception of evidence?
o No.
o Always with the judge
Can a clerk of court issue a subpoena?
o Yes, if it is a subpoena ad testificandum. If it is a subpoena
duces tecum, there must be order by court.
Can the clerk of court resolve objections raised in an ex parte
proceeding?
o No.
o Just note the objections, and forward to the judge.
o The other party is not there who will object?
Well, the clerk of court just has to note it down if
clearly objectionable.
Cf Trial by commissioner
Who is a commissioner?
o Person authorized by the court to
o Ex. auditor, referee, examiner
Any matter can be referred to the commissioner, when?
o If the parties consent. ANY MATTER.
But if the parties do not agree, what can be referred to the
commissioner?
o 1. Requires examination of long account
o 2. Taking of account necessary for courts information for court
to render judgment/execute it
o 3. Question of fact arising from motion
Can a commissioner issue a subpoena?
o Yes.
o Can he issue a subpoena duces tecum?
Yes, as long as within the order of reference (his
authority)
Can he resolve objections?
o Yes.
o N.B. this distinguishes him from a clerk of court
When are commissioners mandatory?
o Expropriation mandatory in second stage
o Partition only optional
If the parties stipulate how the property will be
partitioned, there is no need to go to the second stage
where commissioners are required
Report of a commissioner is not a judgment. It only aids the court.
What are the options of the court?
o It may adopt, modify, or reject the report
Who shoulders the cost?
o The losing party, in general. But the court may apportion
Consolidation
What is the difference between consolidation and joinder?
o In consolidation, the cases are already pending; in joinder, the
cases are just being filed
There was a case where the court allowed for the consolidation of cases
in two different judicial regions even when it was not even an issue in
the case!
Demurrer to evidence
When do you apply for demurrer?
o In civil, when plaintiff has completed presentation of evidence
o In criminal, when the prosecution rests its case
o When is this exactly?
After formal offer of evidence
Do you need leave of court?
o In civil cases, no need for leave of court.
o But if you file leave, is it okay?
Nothing really wrong, but youre just delaying your
case.
o In criminal cases, can you file demurrer without leave of
court?
Yes, but if it is denied, the consequences are serious.
If there is no leave, and demurrer is denied
accused waives the right to present evidence
If there is leave of court, and demurrer is denied
accused can still present evidence
What is your remedy of the losing party defendant if the demurrer
is granted? (civil)
o Can still appeal, because demurrer is a final disposition of a
case.
If your demurrer is denied, what do you do? (civil)
o You can submit evidence, and continue until judgment.
o Can you file for an MR of the denial?
Yes, you can file. As long as there is an order, you
can file an MR. You can even file it to a judgment,
although it is not a prerequisite for appeal.
o If the MR is denied, what can you do?
File certiorari
But in criminal demurrer, can you file for certiorari after denial of
the MR?
o You cannot appeal a denial or file for certiorari until final
disposition of the case.
Dayap: Criminal demurrer. What is the effect of dismissal in a
criminal case?
o It amounts to an acquittal. This is not a dismissal without
prejudice. You cannot re-file.
o But is it reviewable by appeal?
No. It is an acquittal. Double jeopardy has set in.
o But is it reviewable by another mode?
Petition for Certiorari (Rule 65)
Salazar: Demurrer to evidence takes the nature of a motion to dismiss.
If he files it without leave of court, he waives his right to present
evidence and he submits the case for submission purely on the
evidence presented by prosecution.
o If the demurrer is granted and the accused is acquitted,
can the accused adduce evidence on the civil aspect of
the case?
Despite the acquittal, the court can still hear the case
as to the civil aspect, unless there is a declaration that
the fact from which the civil liability would arise does
not exist.
So if the accused was not able to present evidence in
the civil aspect, it is a void judgment.
Radio Wealth: Civil demurrer. What is the consequence of a
reversal by the higher court, after the initial granting of a
demurrer?
o The defendant cannot adduce evidence anymore. The court
will render judgment on the available evidence.
o This effect does not apply to criminal cases
P v. Cachola: N.B. In a bar exam, demurrer was once coined as
motion to dismiss on the ground of insufficiency of evidence. This
case used the very same terms.
Judgment on the pleadings
When is there judgment on the pleadings?
o 1. The answer fails to tender an issue
o 2. Or the answer admits the material allegations of the adverse
partys pleading
What do the material allegations mean in the second ground?
o It means the cause of action
o See the next section on Summary Judgment as to what the
difference is with that concept
Who files a motion for judgment on the pleadings?
o The plaintiff, always
Can there be partial judgment on the pleadings on this ground?
o No. Its ALWAYS a full judgment on the pleadings.
o N.B. This is different from summary judgment, where there can
be partial or complete summary judgments.
Can the defendant file a motion for judgment on the pleadings?
o Based on a counterclaim.
If youre the plaintiff, when can you file a motion for judgment on
the pleadings?
o After the defendant files an answer.
o Can it be during pre-trial?
Yes under Rule 18, Section 2g.
But as a rule of strategy, file it upon first chance to do
so.
o Can you file a motion for judgment on the pleadings after
pre-trial?
Yes. But this is really belated.
If youre the defendant, when can you file?
o Anytime.
Can the court motu propio render a judgment on the pleadings
without motion of the parties?
o No. It must always be upon application.
o Very important: But during pre-trial, the judge may prompt the
parties during pre-trial to have judgment on the pleadings (Rule
18). But its still, ultimately with the parties consent. So in the
end, the judge still cannot grant it on his own.
Summary judgment
What is summary judgment?
o There is no genuine issue as to a material fact . Memorize this
phrase.
What is the difference between this and the answer does not
tender an issue?
o There is no issue as to a material fact (note: not on the issues)
But can you have a summary judgment based on a tort?
o No. Because damages here are unliquidated, and the court
has to hear the case.
When can there be summary judgment?
o Declaratory relief
o Liquidated sum of money or action to recover a debt
The court could rely on documents, papers, affidavits, depositions.
o Ex. X wants to make it appear that he does not owe Y
anything, but there is a document where he admits the
obligation. Y must file motion for summary judgment and
attach the document.
Wood Tech v. Equitable: Gives distinction of JOP and SJ. On SJ,
there could be an issue, but it is ostensibly sham or fictitious. In JOP,
the answer does not tender an issue, or it admits the material
allegations on the claim. There is no dispute.
Promissory note with no date when it is due and demandable. X
owes Y 500K. Y sues X. X claims its not yet due! Is this
something that would lead to summary judgment or judgment on
the pleadings?
o Summary judgment; although there appears to be an issue (X
made an issue out of nothing). It is ostensible, but its actually
sham or fictitious.
o Cannot lead to judgment on the pleadings, because there was
no admission of material claims.
Judgments
What is immutability of judgments?
o General rule: judgments are immutable; they cannot be
modified once final and executory
What are the exceptions?
o 1. Nunc pro tunc
o 2. Clerical or typographical errors
o 3. Void judgments
o 4. But some judgments cannot really obtain finality like
support
Is the judge required to take notes during course of hearing in
order to be able to render valid judgment?
o No.
Is it required that the judge who heard the case is the same who
renders the decision?
o No. But the judge must personally review it. He must have
authority [missed this]
Is filing of memoranda by the parties (after the trial, after
submission of evidence) required/mandatory?
o It is not mandatory. It is not essential.
o Non-submission is not fatal.
What is a separate judgment?
o If there are many claims, the court can render judgment on
one, and the action proceeds with regard to other claims
o Ex. In expropriation there are two judgments:
1. Authority to expropriate
2. Just compensation
o Ex. Summary judgment (one case has several judgments
summary as to the one with no genuine issue, and trial over
the ones with genuine issue)
What is the difference between a separate judgment from a several
judgment?
o Several refers to parties, separate refers to claims
Can the court render a judgment to a non-juridical entity?
o Judgment will be against the members, not the entity itself
Motion for reconsideration
Is an MR a prerequisite to appeal?
o No.
In a case involving summary procedure, is MR allowed?
o No, it is a prohibited pleading
How many days to file?
o 15 days
o Can it be extended?
Cannot be extended
This rule has never been changed. You cannot file an
extension on an MR
o So whats the remedy?
Some lawyers suggest filing a supplement. But
actually, there must be a new event or fact that arises
to do this. So this is dangerous.
How long must an MR be resolved?
o Within 30 days
Can there be a partial MR?
o Yes, when the court finds that the MR affects only a part of the
judgment (ex. just one of the issues).
Distinguish an MR from an MNT.
o The grounds are different. In MNT, the grounds are FAME and
newly discovered evidence.
What fraud is needed here?
Extrinsic fraud.
What is mistake?
Mistake of fact in good faith
If theres a mistake of law, the remedy is an
MR, not MNT
What is newly discovered evidence?
1. It must be material
2. It was not available during trial despite
exercise of due diligence
3. If considered by the court, it could
later/change the result
o What are the grounds for MR?
1. Evidence not sufficient to support the judgment
2. Excessive damages
3. Decision contrary to law
What is the fresh period rule?
o Neypes: After denial of an MR, the period returns to 15 days
Does the Neypes ruling apply to other kinds of appeal?
o Rules 40 and 41 (ordinary appeal) covered by Neypes ruling
o Rule 42 (petition for review) no need for Neypes ruling,
because the provision itself provides for it
o Rule 43 (review of QJA) no need as well
o Rule 45 (petition for review on certiorari) 15 day period for
MR is counted already in the period to file an appeal
o N.B. So the Neypes ruling is only targeted to Rules 40 and 41
(ordinary appeal)
How many times can you file an MR?
o Just once
How many times for a MNT?
o Can be multiple, as long as on grounds not existing when the
first MNT was filed
What is the effect of granting an MNT?
o There will be a trial de novo.
o The evidence so far presented may be used in the new trial
without retaking
Can there be MNT in the appellate court?
o Yes, but with different rules and only to the Court of Appeals
(not all appellate courts).
o Rule 53 covers MNT in the CA. So that MNT is different from
the MNT here. The MNT in the Court of Appeals only has one
ground: newly discovered evidence.
o There are different periods as well
In the MNT in trial court: 15 days from judgment
In the CA: for as long as its an active case (no need
to wait for a judgment in the CA)
Is there a MNT in the SC?
o Rule 56
o As a rule, an MNT cannot be entertained in the SC.
o But it is left with the sound discretion of the court if it feels that
it should do it in the interest of justice.
Petition for relief
How many kinds of petition for relief do we have?
o 1. From judgment
o 2. From denial of appeal
Where do you file it?
o From judgment: before the court that rendered judgment, not
before the appellate court
o From denial of appeal:
A lawyer forgot to file an appeal on time. He filed late, and it was
denied. What do you apply for?
o Cannot use petition for relief from denial of appeal, because
there is no ground
o You file an MR.
o Why?
You file a petition for relief from denial of appeal if you
were prevented from filing it. Here, he was not.
What is the time period for filing petition for relief?
o Within 60 days from knowledge from the judgment of order
(count from entry of judgment)
o BUT NOT more than 6 months after entry of judgment/order
o N.B. both periods must apply
The sixty days can only move around the six months.
If you found out the day before six months expire, you
are left with one day, not 60 days.
Can you file a petition for relief from judgment when there is still
an available remedy of MR, MNT, or appeal?
o No. As long as there are still available reliefs, you cannot
resort to petition for relief from judgment. Take note, that there
must be entry of judgment, which means if there is no final
judgment yet, you can still do an MR/MNT/appeal.
Where else does FAME apply?
o 1. MNT
o 2. Petition for relief from judgment/denial of appeal
o 3. Motion to reconsider order of court in pre-trial declaring that
the plaintiff can present evidence ex parte due to failure of the
defendant to appear in pre-trial
o 4. Motion to lift order of default
What are the grounds for annulment of judgment (Rule 47)?
o 1. Extrinsic fraud
Prescribes 4 years from time of discovery
o 2. Lack of jurisdiction (covers both SM and person)
N.B. This is the only provision that uses lack of
jurisdiction both ways
Mr. X died, leaving an estate. Juan claims to be the sole heir. The
estate court adjudicated the entire estate in favor of Juan.
Judgment became final and executory. After 2 months, the rest of
the heirs who learned of the judgment came forward and filed a
motion to set aside the judgment. Court denied the motion to set
aside the judgment. So they went to the CA on an annulment of
judgment. (N.B. a petition for annulment of judgment is an original
action; it is not an appeal. You file this for a decision of the MTC, to the
RTC and for a decision of the RTC, to the CA.) Did they use the
proper remedy for filing petition for annulment of judgment in the
CA and not petition for relief to the court that issued the
judgment? (Alaban v. CA)
o Petition for relief.
o 1. Although section one states that only a party may file a
petition for relief from judgment, it is an action in rem. It
requires publication, so the heirs have been notified and
deemed as parties.
o 2. The learned of the judgment 2 months (60 days) from
learning of the judgment. So the proper remedy is petition for
relief, since it falls within the period.
Execution
When is execution a matter of right?
o Judgment is final and executory USUAL CASE
Ex. period appeal has already lapsed
When is execution a matter of discretion?
o For good reasons, when t is not yet final and executory
o Execution of several, separate, or partial judgment
Which court issues the writ of execution?
o Court that rendered judgment
o RTC issued a decision, it was appealed to the CA, then to
the SC. Who issues the writ of execution?
The RTC the court of original jurisdiction
o Are there instances wherein the writ will be issued by an
appellate court, or a court other than that of original
jurisdiction?
In the interest of justice , you can apply to the
appellate court. But the general rule is that it is still
the court that rendered the decision.
o Can the CA issue a writ of execution, other than in this
instance?
When it exercises original jurisdiction.
Where do you file a motion for execution?
o File it in the court that rendered the judgment.
o Can it be filed with the appellate court?
Same with above.
Do you need to file a bond to apply for discretionary execution?
o The obligor need to file a supersedeas bond to stay
discretionary execution; but the obligee does not need to file a
supersedeas bond to apply for discretionary execution.
o What does the obligee need to present then?
Proof showing good reason
o What are examples when discretionary execution vest?
1. Perishable goods
2. Old age + sickness [?]
Intramuros: Discusses when the judgment becomes final and
executory. A final judgment or order is one that finally disposes of a
case. This is the only thing that could be subject to execution.
What is the difference between discretionary execution and
execution pending appeal?
o They are the same. And both require good reasons.
Should the writ of execution conform to the dispositive portion?
o Execution must conform to the dispositive portion. What is
reproduced in the writ is the dispositive portion of the
judgment. (Intramuros)
Is a full blown trial required for a motion for execution?
o No.
Can execution pending appeal be applied for to the TC after the
appeal has been perfected?
o For as long as the TC has jurisdiction over the case.
o See Rule 41. [This includes execution pending appeal,
provisional remedies, etc.]
Do you need a bond to stay a writ of execution that was issued as
a matter of right?
o No. You cannot stay it anymore even with a bond. Its a
matter of right.
o What is the exception?
Get an injunction or TRO, claiming GADALEJ.
What are the judgments not stayed by appeal?
o Injunction, receivership, accounting, support, other judgments
saying its immediately executory
Can an MR stay a motion for execution?
o The provision only says an appeal cannot stay a judgment
theoretically, jurisdiction is still with the court of original
jurisdiction.
o But there is no clear answer.
In an ejectment case, which court issues the order of demolition?
o The court of original jurisdiction, i.e. the MTC
o What is the exception?
Mina: Discretionary execution can be entertained by
the RTC.
Who has to make reports?
o The sheriff, on any matter of execution, esp. the conduct of
such.
Is a motion for execution indispensable before the court can
execution?
o Yes, even for those immediately executory in nature.
o Cagayan de Oro: A lawful levy for execution is needed before
there can be a sale can be effected.
o Can the court motu propio issue a writ of execution?
OCA v. Corpuz: Court on its own, cannot issue a writ
of execution without motion of another party
What is revival of judgment by an independent action?
o If you went beyond 5 years from entry of judgment, but are still
within the prescriptive period, you can file an independent
action to execute.
When can you file a motion for execution?
o Within 5 years from entry of judgment
After lapse of period of ten years, can you still revive it?
o No.
o Is it always ten years?
YES. This is the flat prescriptive period for
judgments.
Death after judgment:
o If the judgment oblige dies, then the executor/administrator
applies for execution
o If the judgment obligor dies, and judgment is for recovery of
real/personal property there is a lien over his property
o What if levy has already been effected?
Proceed to sale of the property to satisfy the
judgment.
o What if the judgment is for money, not property?
File a claim against the estate
Section 8: Contents.
o Do the contents have to always be there?
No. Only to the extent applicable.
Money judgments
o Payment must be in what form?
In cash.
o Payment must be made to whom?
To the judgment obligee, if available
What if he is not available?
To his representative
What if he is not available?
To the sheriff
o Can payment be effected not by cash (Ex. check or PN)?
Certified bank check is allowed
Or any other form of payment acceptable to the latter
o What if there is no cash?
Go to
Levy on real or personal property
o What will be disposed first?
Choice of judgment obligor
If he doesnt make a choice, personal property is
prioritized over real property
o What if there is no property?
Go to
Garnishment
o Custodian of the funds/deposit/royalty has to make a report.
o How many days to report?
5 days from receipt of notice. The custodian/manager
has 5 days to report if there is money.
o What does the court do next?
It issues an order requiring transfer of funds.
o Can you garnish without prior demand of payment?
No.
Specific acts
o If the court requires the obligor to do something, but he
refuses, what happens?
The court can require another person to perform it.
o If the other person does not comply?
The court may consider that it has been DEEMED
complied with.
Give an example.
The court orders that there must be
execution of deed of sale in favor of Y, done
by X. X refuses. The court orders Z to
perform it. Z refuses. The court will deem it
complied with. This deed of sale will be
forwarded to the Register of Deeds or
whoever/whatever office
o Can an order for demolition be given along with the writ of
execution?
No. It is punitive in nature, so there must be a
hearing.
o When can there be contempt?
ONLY applies for special judgment, and there is
refusal to comply.
What are the properties exempt from judgment?
o Family home, homestead, and the land
If you mortgaged your Family Home, will it still be
exempt from execution?
[See last sentence?]
What are homestead lands?
Public lands given to people giving them a
chance to cultivate
o Libraries of professionals not beyond 300K
o Furniture for the family not beyond 100K
o Beasts of burden (up to 3)
o Tombstones
What about mausoleums?
No.
o [Among others]
When can you apply for a motion for execution?
o Section 14. This also tells you the life of the writ.
o What is the life of the writ?
5 years, before it expires.
Sec. 15-34:
o Important parts:
Requirements of sale
Certificates of sale
Redemption
Redemption period
Who will be in possession of the property sold in
public sale
Who will be entitled to fruits/profits of the property
What if after participating in the sale, you are unable
to take possession of the property remedies
o What are the requirements for sale?
TWO NOTICE REQUIREMENT: one to the judgment
obligor, one to the public
Public posting in conspicuous places, or
even by publication
What if it is a perishable good or personal
property?
Perishable goods within reasonable time
(no strict timeframe)
Personal property at least 5 days notice
Real property within 20 days
o N.B. not at least
What if the value of the real property
exceeds 50,000, what is needed?
o There must be publication
Should you notify the judgment obligor?
Perishable goods just notice before the
sale
In all cases, notice at least 3 days before the
sale
What time must the sale be?
9 am to 2 pm, and it must be in the office of
the Clerk of Court. But usually, it is done
outside the hall of justice
What if it is personal property capable of
delivery?
It must be done in the place where the
property is located
o Is a certificate of sale mandatory for personal properties
capable of manual delivery?
No, it is not.
For real properties, you need a certificate of sale.
What are the contents of a certificate of sale?
[See this]
o Can you redeem personal property sold on public sale?
No. Personal properties cannot be redeemed, only
real properties.
Who can redeem?
The judgment obligor can redeem
Who else?
Those who have interest on the property,
either by credit, encumbrance
(redemptioners)
What is the distinction?
Judgment obligor always has a period of 1
year, non-extendable
Once the judgment obligor redeems, no
further redemption is allowed.
What about the redemptioners?
o Theirs rights were never
extinguished. It still exists, over the
property.
If the judgment obligor does not redeem,
can the redemptioners redeem beyond
the 1 year period?
o No. This is the view sir subscribes
to, even if some commentators say
there can be endless redemption
beyond the 1 year period in 60 day
intervals. But sir said that after 1
year, the last redemptioner gets the
property.
o Who has possession during redemption period?
Obligor.
o Who is entitled to fruits and profits?
Obligor.
N.B. The obligor cannot change the nature of the
property during the period. He must not modify it.
o How must redemption be made?
It must be willingness and intention coupled with
tender of payment. Willingness and intention without
tender is not enough.
Case: The redemptioner wanted to redeem in
installments, and not full payment. This was held to
be invalid.
Beyond the redemption period, can it still be
redeemed?
It is not anymore redemption as
contemplated by law; just a contractual
arrangement between the redemptioner and
whoever purchased the property.
Amount subject to sale + interest + taxes, if
before the one year period; however, after
the period is over, the amount can be
dictated by the parties freely.
o I purchased property in a public sale, but someone with a
better interest came forward, so I wasnt able to get
possession and transfer of the property. But I already
parted with my money, and paid the sheriff. What should I
do?
1. You can recover its value in the same action or
separate action
2. You can have the judgment revived in the name of
the purchaser he steps into the shoes of the
judgment obligee.
In this case, he can execute just like any
other judgment obligee.
[So if he cannot pay, he can levy, and if not,
he can garnish.]
In execution, you need to remember the word satisfaction. Sections
44 and 45 have this end in mind. The books of the case will not be
closed, even if you won, if judgment has not yet been fully satisfied.
What are your remedies?
o 1. Call the judgment obligor and have him examined in court,
through subpoena
o 2. Call on the stand the debtor of the judgment obligor to be
examined in court, through subpoena
What if in the course of examination, we find that
he owes the obligor?
He can then be charged.
o 3. Pay directly to the sheriff, and the sheriff issues a proper
receipt
o 4. Amortization payments
o 5. Court appoints a receiver
Akin to the provisional remedy on receivership
This is the only provisional remedy that can be given
by the court even after judgment
The reason: to preserve the property.
o 6. If it is later discovered that the obligor has an interest over a
property, the court can order a sale
o 7. If person who has possession of the property of the obligor
refuses to recognize the title of the obligor, the obligee could
ask for an order to have the property sold for a period of 120
days. If there is sale within this period, the obligee (!) will be
the one penalized (odd).
What are the 3 scenarios to show full satisfaction?
o 1. The writ of execution has been returned to court
Every 30 days, the sheriff has to report on the status
of the writ
o 2. Written acknowledgement of the judgment obligee or
counsel
o 3. When there is an endorsement on the face of the records of
the case
Even if the other party does not consent, but the court believes that it
has been satisfied, the court may enter that it has been satisfied.
What are the effects of domestic judgment? (MEMORIZE)
o 1. As against a specific thing, condition/status/relationship of a
person conclusive upon it
Where a will has been probated, is death of the
party conclusive?
Its only presumed
o 2. Res judicata
Baretto v. CA: Two aspects of RJ 1. judgment bars
the prosecution of the same claim, demand, or cause
of action, 2. Precludes the re-litigation of a particular
fact or issue in another action between the same
parties in a different claim or cause of action
o 3. Preclusion of issues/conclusiveness of judgment
As to other litigation actually and necessarily included
therein
What are the effects of foreign judgment?
o 1. Conclusive as a specific thing
o 2. Presumptive evidence of rights between parties
How do you enforce foreign judgments?
o 1. File a verified petition in the RTC
o 2. There was jurisdiction of the court over the subject matter
and over the parties
o 3. Prove the law of that jurisdiction
How do you impugn that foreign judgment?
o 1. Want of jurisdiction/notice to party
o 2. Collusion
o 3. Fraud
o 4. Clear mistake of law/fact
How about foreign arbitral awards?
o You file an action for recognition. It is not a foreign judgment.
Appeals
What are the three modes of appeal?
o 1. Ordinary appeal (Rules 40 and 41)
o 2. Petition for review
o 3. Petition for review on certiorari
What are the ordinary appeals?
o Notice of appeal
o Record on appeal
When is there record on appeal?
o Multiple appeals
o Special proceedings
What are the periods?
o Notice of appeal 15 days
o Record on appeal 30 days
Can you extend the period of 15 days?
o Not extendable
o But if you file an MR and it is denied, following Neypes, you
get a fresh period
Can you extend the period of 30 days?
o No
o Except when there is an authorized alteration or modification of
the record
Where do you file a notice of or record on appeal if you are in the
MTC going up to the RTC?
o MTC. Always on the court that issued the judgment.
What is a record on appeal?
o Its a sequential compilation of the pleadings, orders, etc. of the
judge.
o Unlike a notice of appeal, which is just a statement when you
received the decision, that you paid appeal docket fees within
period, and you intend to appeal
If you go from the MTC to the RTC, what is the process?
o Take note that the RTC is an appellate court here.
o Parties file a memorandum to the RTC. The RTC will not
reexamine the evidence and witnesses.
In Rule 41, the court of original jurisdiction is the RTC, and the
appellate court is the CA. Why is it also an ordinary appeal?
o Because its only been decided on once, and will be reviewed
for the first time.
o As opposed to Petition for Review this deals with cases that
have been twice decided on.
What is the procedure in the CA?
o Filing of appellants and appellees brief. The procedure is
found in Rule 44, not 41.
Period for filing of briefs?
o 45 days, appellants brief
o 45 days, appellees brief
o 20 days, for reply
When does the court of original jurisdiction totally lose
jurisdiction, during appeal?
o When all the periods for appeal have expired
o Or when all the parties have appealed in due time
What are the two kinds of petition for review?
o Rule 42
o Rule 43 (quasi judicial agencies)
o What about petition for review of the decisions of the
Prosecutor?
It is technically not a petition for review because it is
for criminal procedure, and is in the executive branch
When does Rule 42 apply?
o There is denial in the MTC, and then denial in the RTC, and
then it goes up to the CA through Petition for Review.
o What about summary proceedings in the MTC?
When you lose in the MTC, you cannot file an MR.
BUT you can appeal to the RTC, then petition for
review to the CA.
o What about small claims in the MTC?
You cannot MR or appeal a small claims decision. It
is final and executory. But if there is GADALEJ, you
can go up to through a petition for certiorari.
When does Rule 43 apply?
o When the body with original jurisdiction is a quasi-judicial
agency
What are the periods?
o Same for Rule 42 and 43 15 days
o Can you ask for an extension?
Yes, you can ask for one during the reglementary
period.
o Can you ask for a second extension?
General rule is that no further extensions are allowed,
except for the most compelling reasons.
What are the requirements of a Rule 42?
o 1. It must be verified MEMORIZE
o 2. Attach a copy of the decision or a duplicate original
o 3. Affidavit of material dates (date of receipt of decision, date of
filing of MR, date of denial of MR)
o 4. Parties, issues, grounds relied upon, errors, explanation if
service is other than personal
o What are some of the causes that will dismiss your case?
1. If the jurat does not comply with the requirements
of the notarial law
2. Failure to attach registry receipt
What are the requirements of a Rule 43?
o SAME, but you attach all certified true copies
o Why?
Because it came from a QJA. So the court will not be
able to verify if the issued resolutions, etc. are
genuine
Is the enumeration in Rule 43 of QJAs exclusive?
o No.
o Can the decision of the Office of the President be reviewed
by the CA?
Yes.
o Can the decision of the HLURB be reviewed by the CA?
No. By express provision, it must go through the
President before the CA.
o NLRC by the CA?
Yes, but under Rule 65, not 43
o DARAB by the CA?
Yes.
o CTA by the CA?
No. It must be CTA en banc, then SC.
The only way to go up to the SC is through Petition for Review on
Certiorari.
o Except: In a criminal case where the punishment is Life
Imprisonment, Death, or RP you go to the SC through
Ordinary Appeal
Petition for Review on certiorari what is the period?
o 15 days.
o Can there be extension?
ONLY ONE extension for 30 days, for good reason
o I asked only for an initial extension of 15 days. But I
realized I needed more time. Can I ask for the last 15?
NOPE. You only get one extension.
Rules 44-56 CA
How is jurisdiction acquired over persons for original cases filed in
CA?
o Service of order/resolution or voluntary submission to the
courts jurisdiction
o What does service of order or resolution mean?
Akin to Rule 13 service
o What if there was an effort to serve and it was not
received? Is the court deemed to have acquired
jurisdiction?
No. There must be proper service of the resolution or
order. Not like summons, but the same as Rule 13.
Can the CA conduct a hearing?
o For original cases, yes. This is why the CA requires hearings
or arguments for certiorari, annulment of judgment,
mandamus, prohibition, quo warranto.
o N.B. Annulment of judgment is an original action seeking
annulment of judgment of an RTC decision.
Can you seek an annulment of judgment of an
MTC decision?
Yes. You file annulment in the RTC.
Can you seek an annulment of judgment of a CA
decision?
No. Fall back to the usual rule that you can
only go up to the SC through Rule 45.
o Can the justices hear the case?
Yes. Alternatively, it can ask the RTC to receive
evidence.
Preliminary conference is the equivalent of pre-trial in the CA. Whether
it is an original or appealed case, the CA can set it for preliminary
conference.
o What is the effect if the appellant is absent here?
The appeal will be dismissed. This is provided in
Rule 50.
Rule 50 enumerates grounds for dismissal of appeals.
Browse through this .
Ex. paid docket fees outside of reglementary
period, even if you filed the appeal within the
period; failed to file within the reglementary
period
Ex. failure to file an appellants brief
o Can the parties stipulate on the facts?
Yes, if it is an original action, or there is a grant of
new trial on the ground for newly discovered evidence
(Note: newly discovered evidence is the only ground
for the CA; FAME is not included)
Oral arguments: what do I need to know?
o 1. Only original cases are argued in court; not appealed cases
But if the CA feels that there is a need for the parties
to ventilate their arguments through oral discussion,
then it can do it in its discretion.
o 2. Do you hear motions in the CA?
While for trial courts, motions will be heard, except
those that will not prejudice the rights of the other
party.
BUT in the Court of Appeals, motions in the CA need
not be heard (same with the SC)
Comply with minimum requirements of Rule 44 and 50.
o What if you dont have an assignment of errors?
Your appeal will be dismissed.
o What if you dont comply with court circulars?
Dismissed.
Rule 51 provision on judgment. (For trial courts, it is Rule 36.)
<spaced out>
Can you file an MR in the appellate court?
o Yes. Rule 52.
o Same period (15 days)
o Same three grounds except that the period to resolve in the
CA (90 days) is longer than the TC (30 days)
Can you file a MNT in the CA?
o Yes.
o In the TC, grounds are FAME and newly discovered evidence
o In the CA, the only ground is newly discovered evidence
o Periods?
TC reglementary period within receipt of adverse
decision
CA from the time appeal is perfected and as long as
the CA has jurisdiction
Rule 56 Supreme Court
Remember Sec. 1 and 3. Memorize the cases that will be originally filed
in the SC.
What are the cases that can be originally filed in the SC?
o Certiorari, prohibition, mandamus, quo warranto, disciplinary
actiosn against members of the Bar/bench, against
ambassadors, consuls, other public ministers, etc.
But if you file a case against a member of the Bench,
it will be referred to the Court Administration. If
against a member of the Bar, it will be referred to the
IBP.
o Found in the Constitution: Constitutionality of law, treaty,
ordinance, tax imposition, EO, etc.
What do you need to follow for original cases?
o Rule 46 original cases
o PLUS: Rule 48 (preliminary conference), Rule 49 (oral
argument), Rule 51 (judgment), Rule 52 (MR)
o Is there a MNT?
No.
For appealed cases to the Supreme court, what is the mode?
o Rule 45 the only way to go up to the Supreme Court
o PLUS: Rule 48 (preliminary conference), Rule 51 (judgment),
Rule 52 (MR)
o Is there oral argument?
No.
Rule 57 attachment
Manguila: citing Davao Light and Power. Question is when should
jurisdiction over the defendant?
o Distinguish between issuance and implementation of the writ of
attachment to determine when jurisdiction is needed over the
defendant.
o Remember you could file an attachment will the initiatory
pleading and apply for it ex parte. You can also apply for it
upon motion.
o To answer the question : there are three stages for attachment