San Beda College of Law Memory Aid in Remedial Law

San Beda College of Law
10
MEMORY AID IN REMEDIAL LAW
CIVIL PROCEDURE
REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
10

REM
RULE 1
GENERAL PROVISIONS
Directed
against the
thing itself
Statutes regulating the procedure of courts will be

construed as applicable to actions pending and
undetermined at the time of their passage so long
as vested rights will not be impaired.
An ordinary suit in a
court of justice
CLAIM
Directed
against
particular
persons
A right possessed by
one against another
One party prosecutes

The moment said
another for the
claim is filed before a
enforcement or
court, the claim is
protection of a right
converted into an
or the prevention or
action or suit.
redress of a wrong.
The distinction is important in determining the EFFECT

of the judgment.
(C)
REAL
ACTION
Also governed by
ordinary rules but
SUBJECT to specific
rules prescribed (Rules
62 to 71).
Formal demand of
Special features not
ones legal rights in a found in ordinary civil
court of justice in the
actions
manner prescribed by
the court or by the
law
PERSONAL
ACTION
MIXED
ACTION
Ownership or personal property is Both real and

possession of
sought to be
personal
real property is recovered or where properties are
involved
damages for breach
involved
of contract are
sought
Founded on
Founded on privity Founded on
privity of
of contract
both
estate
ex. Accion
Ex. Action for a sum ex. Accion
reinvidicatoria
of money
publiciana
with a claim
for damages
CLASSIFICATION OF ACTIONS.
(A)
ORDINARY CIVIL
SPECIAL CIVIL
ACTION
ACTION
Governed by ordinary
rules
Directed
against
particular
persons
Judgment is Judgment is
Judgment
binding on the binding only binding upon
whole world upon parties
particular
impleaded or persons, but
their
the real motive
successors in is to deal with
interest
real property
or to subject
said property
to certain
claims.
Ex. Land
Ex. action to Ex. Unlawful
registration
recover
detainer or
case; probate
damages;
forcible entry;
proceedings
action for
judicial
for allowance
breach of
foreclosure of
of a will.
contract
mortgage.
Under the 1987 Constitution, the rule-making power

of the Supreme Court has the following limitations:
1. shall provide a simplified and inexpensive
procedure for the speedy disposition of
cases;
2. Uniform for all courts of the same grade,
and
3. Shall not diminish, increase or modify
substantive rights (Art. VIII Sec. 5[5]).
Section 3. Cases governed.
ACTION
PERSONAM QUASI IN REM
The distinction is significant in the determination of

venue. With respect to mixed actions, the rules on venue
of real actions shall govern, i.e., where the real
property is located.
(D)
(B)
ACTION IN
ACTION IN
ACTION
LOCAL ACTION
TRANSITORY
ACTION
Must be brought in a
particular place, in
Generally, must be
brought where the

Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
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the absence of an
agreement to the
contrary
party resides
regardless of where
the cause of action
arose
Ex. Action to recover Ex. Action to recover

real property
sum of money
Section 5. Commencement of action.

An action is commenced by:
1. filing of the complaint (the date of the filing
determines whether or not the action has
already prescribed); and
2. payment of the requisite docket fees
(determined on the basis of the amount of the
claim including the damages indicated in body
or the prayer of the pleading)
It is not simply the filing of the complaint or the
appropriate initiatory pleading but also the
payment of the prescribed docket fee that vests a
trial court with jurisdiction over the subject matter
or
nature
of
the
action.
The court may allow the payment of the deficient
docket fee within a reasonable period but not
beyond the applicable prescriptive or reglementary
period.
An action can be commenced by filing the
complaint by registered mail. In which case, it is
the date of mailing that is considered as the date of
filing, and not the date of the receipt thereof by
the clerk of court.
The date of the filing of an amended complaint
joining additional defendant is the date of the
commencement of the action with regard to such
additional defendant.
Section 6. Construction.
General Rule: Liberal construction .
Exceptions:
a. reglementary periods
b. rule on forum shopping
CAUSE OF ACTION
Section 2. Cause of Action, defined.
Essential elements of cause of action
1. Existence of a legal right of the plaintiff;
2. Correlative legal duty of the defendant to
respect ones right;
3. Act or omission of the defendant in violation of
the plaintiffs legal right; and
4. Compliance with a condition precedent.
CAUSE OF ACTION RIGHT OF ACTION
delict or wrongful act remedial right or right
or omission committed to relief granted by
by the defendant in
law to a party to
violation of the
institute an action
primary rights of the against a person who
plaintiff
has committed a
delict or wrong
against him
The reason for the
the remedy or means
action
afforded or the
consequent relief
the formal statement right that is given
of alleged facts
the right to litigate
because of the
occurrence of the
alleged facts
Determined by facts
determined by
as alleged in the
substantive law
complaint and not the
prayer therein
RELIEF
REMEDY
SUBJECT
MATTER
the redress,
the
the thing,
protection,
procedure or wrongful act,
award or
type of
contract or
coercive
action which
property
measure which
may be
which is
the plaintiff
prays the court
to render in his
favor as a
consequence of
the delict
committed by
the defendant
RULE 2
availed of by
directly
the plaintiff involved in the
as the means
action,
to obtain the concerning
desired
which the
relief
wrong has
been done and
with respect
to which the
controversy
has arisen.
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Section 4. Splitting a single cause of action, effect
of.
SPLITTING OF CAUSE OF ACTION is the practice
of dividing one cause of action into different parts
and making each part subject of a separate
complaint.
Applies NOT only to complaints but also to
counterclaims and crossclaims.
Remedy against splitting a single cause of action:
A. Motion to dismiss on the ground of:
Litis pendentia, if the first complaint is still
pending (Rule 16, Sec. 1[e]); or
Res judicata, if any of the complaints is
terminated by final judgment (Rule 16, Sec.
1[f])
B. An answer alleging either of the above-cited
grounds as affirmative defense (Rule 16, Sec.
6)
General Rule on Divisible Contract
A contract to do several things at several times is
divisible, and judgment for a single breach of a
continuing contract is not a bar to a suit for a
subsequent breach.
Doctrine of Anticipatory Breach
Even if the contract is divisible in its performance
and the future periodic deliveries are not yet due,
if the obligor has already manifested his refusal to
comply with his future periodic obligations, the
contract is entire and the breach total, hence
there can only be one action for damages (Blossom
& Co. vs. Manila Gas Corp., 55 Phil. 226)
Section 5. Joinder of causes of action.
Rule in this section is PERMISSIVE and the plaintiff
can always file a separate action for each cause of
action.
Par. (a): The joinder of causes of action may
involve the same or different parties. If the joinder
involved different parties, it must comply with Sec.
6 Rule 3, thus, there must be a question of fact or
law common to both parties joined arising out of
the same or series of transactions.
Par. (b) requires that: only causes of action in
ordinary civil actions may be joined, obviously
because they are subject to the same rules.
Par. (c) As long as one cause of action falls within the

jurisdiction of the RTC, the case can be filed there even
if the MTC has jurisdiction over the others.
Pars. (d) embodies the TOTALITY RULE
Section 33 BP129, as amended by RA 7691 - Where
there are several claims or causes of actions between
the same or different parties, embodied in the same
complaint, the amount of the demand shall be the
totality of the claims in all the causes of actions,
irrespective of whether the causes of action arose out of
the same or different transactions.
SPLITTING OF
JOINDER OF
CAUSE OF ACTION CAUSES OF ACTION
There is a single cause Contemplates several
of action
causes of action
PROHIBITED. Causes
multiplicity of suits
and double vexation
on the part of the
defendant
ENCOURAGED.
Minimizes multiplicity
of suits and
inconvenience on the
parties
Section 6. Misjoinder of causes of action.

Not a ground for dismissal of an action. A misjoined
cause of action may be severed and proceeded with
separately.
There is no sanction against non-joinder of separate
causes of action since a plaintiff needs only a single
cause of action to maintain an action.
RULE 3
PARTIES TO CIVIL ACTIONS
Section 1.
defendant.
Who
may
be
parties;
plaintiff
and
REQUIREMENTS FOR A PERSON TO BE A PARTY TO A

CIVIL ACTION:
1. he must be a natural or juridical person or an entity
authorized by law;
2. he must have a legal capacity to sue; and
3. he must be the real party in interest.
PLAINTIFFS- Those having an interest in the subject
matter of the action or in obtaining the relief
demanded.
DEFENDANTS:
1. persons who claim an interest in the controversy or
the subject thereof adverse to the plaintiff; or

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2. who are necessary to a complete determination
or settlement of the questions involved therein;
or
3. all those who ordinarily should be joined as
plaintiffs but who do not consent thereto, the
reason therefore being stated in the complaint.
Neither a dead person nor his estate may be a party
plaintiff in a court actionConsidering that capacity
to be sued is correlative of the capacity to sue, to
the same extent, a decedent does not have the
capacity to be sued and may not be named a party
defendant in a court action (Ventura vs. Militante
316 SCRA 226).
substantive law or procedural rule such as in the case of

spouses under Sec. 4.
5. Quasi parties those in whose behalf a class or
representative suit is brought.
Section 5. Minor or incompetent persons.
Under the present rule, a person need not be judicially
declared to be incompetent in order that the court may
appoint a guardian ad litem. It is enough that he be
alleged to be incompetent.
The suit can be brought by or against the minor or
incompetent person personally BUT with the assistance
of
his
parents
or
guardian.
Section 3. Representatives as parties.

Section 6. Permissive joinder of parties.
REAL PARTY IN INTEREST the party who stands to
be benefited in the suit or the party entitled to the
avails of the suit.
Impleading the beneficiary as a party in the suit is

now mandatory, in cases allowed to be prosecuted
or defended by a representative.
CLASSIFICATION OF PARTIES IN INTEREST
1. Indispensable parties those without whom no
final determination can be had of an action. (must
be joined)
2. Necessary (or proper) parties those who are
not indispensable but ought to be parties if
complete relief is to be accorded as to those
already parties, or for a complete determination or
settlement of the claim subject of the action. (may
or may not be joined)
3. Representative parties someone acting in
fiduciary capacity. Maybe a trustee, guardian,
executor or administrator, or a party authorized by
law or these Rules.
An agent acting in his own name and for the benefit
of an undisclosed principal may sue or be sued
without joining the principal except when the
contract involves things belonging to the principal
4. Pro forma parties those who are required to be
joined as co-parties in suits by or against another
party as may be provided by the applicable
PERMISSIVE JOINDER the aggregate sum of all the

claims, determines the jurisdiction of the court.
Requisites of permissive joinder of parties.
1. Right to relief arises out of the same transaction or
series of transactions;
2. There is a question of law or fact common to all the
plaintiffs or defendants; and
3. Such joinder is not otherwise proscribed by the
provisions of the Rules on jurisdiction and venue.
SERIES OF TRANSACTIONS transactions connected with
the same subject of the action.
INDISPENSABLE
PARTIES
NECESSARY
PARTIES
The action cannot

proceed unless they
are joined
The action can

proceed even in the
absence of some
necessary parties
No valid judgment if
indispensable party is
not joined
The case may be

determined in court
but the judgment
therein will not
resolve the entire
controversy if a
necessary party is not
joined
They are those with They are those whose

such an interest in the presence is necessary
controversy that a
to adjudicate the
final decree would whole controversy but
necessarily affect their whose interests are so
rights so that the court far separable that a

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cannot proceed
final decree can be
without their presence made in their absence
without affecting
them
JOINT DEBTORS indispensable party with respect

to own share and a necessary party with respect to
the share of the others.
SOLIDARY DEBTORS either is indispensable and

the other is not even a necessary party because
complete relief may be obtained from either.
Section 9. Non-joinder of necessary parties to be
pleaded.
The non-inclusion of a necessary party may be
excused only on meritorious grounds.
The court may order the inclusion of the omitted
necessary party if jurisdiction over his person may
be obtained by ordering plaintiff to file an amended
complaint impleading the necessary party therein as
co-defendant.
The only sanction for failure to implead a necessary
party when ordered by the court and jurisdiction
can be obtained over said party is a waiver of the
claim against him. This is considered as an
exception to the provision on penalties imposed on
a disobedient party under Sec. 3 of Rule 17 which
would have entailed the dismissal of the complaint
itself.
Section 11. Misjoinder and non-joinder of parties.
Neither misjoinder nor non-joinder of parties is a
ground for dismissal of the action.
Objections to defects in parties should be made at
the earliest opportunity the moment such defect
becomes apparent by a MOTION TO STRIKE THE
NAMES OF THE PARTIES impleaded.
If there is misjoinder, a separate action should be
brought against the party misjoined.
The absence of an indispensable party renders all
subsequent actions of the court null and void for
want of authority to act, not only as to the absent
parties but even as to those present.
Section 12. Class suit.

REQUISITES OF A CLASS /REPRESENTATIVE SUIT.
1. subject matter of the controversy is one of
common or general interest to many persons;
2. parties affected are so numerous that it is
impracticable to bring them all before the court;
3. parties bringing the class suit are sufficiently
numerous or representative of the class and can
fully protect the interests of all concerned.
Class Suit
Permissive Joinder
of Parties
There is one single

cause of action
pertaining to
numerous persons
There are multiple

causes of action
separately belonging
to several persons.
Section 14. Unknown identity or name of defendant.

Requisites:
1. there is a defendant
2. his identity or name is unknown
3. fictitious name may be used because of
ignorance of defendants true name and said
ignorance is alleged in the complaint
4. identifying description may be used: sued as
unknown owner, heir, devisee, or other
designation
5. amendment to the pleading when identity or
true name is discovered
6. defendant is the defendant being sued, not a
mere additional defendant
Service of summons upon a defendant whose identity is
unknown may be made by publication in a newspaper of
general circulation in accordance with Section 14 of Rule
14.
Section 15. Entity without juridical personality as

defendant.
They may be sued under the name by which they are
generally known, but they cannot sue under such name
for lack of juridical personality.
The service of summons may be effected upon all the
defendants by serving upon any of them, or upon the

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person in charge of the office or place of business
maintained under such name. (Sec. 8, Rule 14)
INSTANCES WHERE SUBSTITUTION OF PARTIES IS
PROPER:
A. Death of party; duty of counsel (Sec. 16)
This provision applies where the claim is not
thereby extinguished as in cases involving property
and property rights such as:
1. recovery of real and personal property
against the estate.
2. enforcement of liens on such properties
3. recovery for an injury to person or property
by reason of tort or delict committed by the
deceased.
D. Transfer of interest (Sec. 19)

Substitution of parties in this section is NOT mandatory,
it being permissible to continue the action by or against
the original party in case of transfer of interest
pendente lite. Unless the substitution by or the joinder
of the transferee is required by the court, failure to do
so does not warrant the dismissal of the case. A
transferee pendente lite is a proper, and not an
indispensable party.
The case will be dismissed if the interest of plaintiff is
transferred to defendant UNLESS there are several
plaintiffs, in which case, the remaining plaintiffs can
proceed with their own cause of action.
Section 20. Action on contractual money claims.
In this case, the heirs will be substituted for the

deceased OR if no legal representative is named
then the court will order the opposing party to
procure the appointment of an executor or
administrator for the estate of the deceased.
Requisites:
1. The action must primarily be for recovery of
money, debt, or interest thereon, and not where
the money sought therein is merely incidental
thereto.
In case of minor heirs, the court may appoint a

guardian ad litem for them.
2. The claim, subject of the action, arose from a

contract, express or implied, entered into by the
decedent in his lifetime or the liability for which
had been assumed by or is imputable to him.
The substitute defendant need not be summoned.

The ORDER OF SUBSTITUTION shall be served upon
the parties substituted for the court to acquire
jurisdiction over the substitute party
If there is failure to notify the fact of death: the

case may continue and proceedings will be held
valid, and judgment will bind the successors in
interest.
B. Death or separation of a party who is a public
officer (Sec. 17)
The action may be maintained by and against his
successor.
The action contemplated here is one brought
against the public officer in his official capacity.
C. Supervening Incompetence or incapacity of a
party (Sec. 18)
The action shall continue to be prosecuted by or
against him, personally or assisted by the
corresponding guardian.
If defendant dies before entry of final judgment in the

court where it was pending at that time, the action shall
not be dismissed but shall be allowed to continue until
entry of final judgment thereon.
However, execution shall not issue in favor of the
winning party. It should be filed as a claim against the
estate of the decedent.
Section 21. Indigent party.
Indigent one who has no property or income sufficient
for his support aside from his labor, even if he is selfsupporting when able to work and in employment. He
need not be a pauper to entitle him to litigate in forma
pauperis.
While the authority to litigate as an indigent
party may be granted upon an ex parte application and
hearing, it may be contested by the adverse party at any
time before judgment is rendered.
RULE 4
VENUE OF ACTIONS
VENUE the place where an action must be instituted
and tried.

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VENUE
JURISDICTION
permanent or temporary, at the time the action is

instituted.
Place where the action Power of the court to

is instituted
hear and decide a case
May be waived
Jurisdiction over the

subject matter and
over the nature of the
action is conferred by
law and cannot be
waived
Procedural
Substantive
May be changed by the Cannot be the subject

written agreement of
of the agreement of
the parties
the parties
The rule on VENUE IS NOT APPLICABLE in cases

1) Where a specific rule or law provides
otherwise; or
2) The parties have validly agreed in writing
before the filing of the action on the
exclusive venue thereof (Sec. 4).
Requisites for venue to be exclusive
1. A valid written agreement
2. Executed by the parties before the filing of
the action; and
3. Exclusive nature of the venue.
In the absence of qualifying or restrictive words,
venue stipulation is merely permissive meaning that
the stipulated venue is in addition to the venue
provided for in the rule (Polytrade Corp. vs. Blanco
30 SCRA 187)
Section 1. Venue of real actions.
If property is located at the boundaries of two
places: file one case in either place at the option of
the plaintiff.
If case involves two properties located in two
different places:
1. If the properties are the object of the same
transaction, file it in any of the two places.
2. If they are the subjects of two distinct
transactions, separate actions should be
filed in each place unless properly joined.
Means of waiving venue:

1. failure to object via motion to dismiss
2. affirmative relief sought in the court where the
case is filed
3. voluntary submission to the court where the case
is filed
4. laches
Section 3. Venue of actions against non-residents.
RULES
1. NON-RESIDENT FOUND IN THE PHIL.
a. for personal actions where the plaintiff
resides; and
b. for real actions where the property is
located.
2. NON RESIDENT NOT FOUND IN THE PHIL.
An action may be filed only when the case
involves:
a. Personal status of plaintiff venue:
where plaintiff resides;
b. Any property of said defendant located
in the Phil. venue: where the property
or any portion thereof is situated or
found.
The Supreme Court has the power to order a change of
venue to prevent a miscarriage of justice.
Dismissal of Action for Improper Venue
The court may not motu propio dismiss a complaint on
the ground of improper venue. An exception is provided
in Section 4 of the Revised Rule on Summary Procedure.
Section 2. Venue of personal actions.

RESIDENCE the place where the party actually
resides with continuity and consistency, whether
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RULES ON SUMMARY PROCEDURE

SUMMARY PROCEDURE IN CIVIL CASES
Filing of verified
complaint with the
MTC
court may
summon the
defendant
court may
dismiss the case
outright
W/in 10 days
from receipt of
summons,
defendant
answers,
incoporating
compulsory
counterclaim or
crossclaim, and
serves a copy on
plaintiff
If Defendant fails to
answer in 10 days
The court, motu propio
or on plaintiffs
motion, may render
judgment based on
facts alleged in the
complaint w/o
prejudice to
R9, S3 (c)
The Court should not dismiss the

complaint
or
Answer to
counterclaim
and crossclaim
w/in 10 days
Preliminary
conference w/in 30
days after last
answer is filed
W/in 5 days after

conference, court
issues record of
preliminary
conference
If plaintiff fails to
appear
in
prelim
conference, complaint
may be dismissed.
Defendant entitled to
decision based on his
counterclaim.
All
crossclaims dismissed.
If sole defendant
fails to appear,
plaintiff entitled to
judgment based on
complaint and
what is proved
therein
counterclaim if they are not

verified. The requirement is
W/in 10 days from
merely a formal one, and not
receipt of order,
jurisdictional. It should therefore
submission by the
parties of
simply direct the party concerned
affidavits and
to have it verified.
position papers
PROHIBITED PLEADINGS / MOTIONS UNDER THE RULE

ON SUMMARY PROCEDURE.
1. Motion to dismiss the complaint or to quash the
complaint or information except on the ground
of lack of jurisdiction over the subject matter or
failure to comply with prior barangay
conciliation (referral to the Lupon)
2. Motion for a bill of particulars
3. Motion for a new trial or for reconsideration of a
judgment or for reopening of trial
4. Petition for relief from judgment
5. Motion for extension of time to file pleadings,
affidavits, or any other paper
6. Memoranda
7. Petition for certiorari, mandamus, or prohibition
against any interlocutory order issued by the
court
8. Motion to declare defendant in default
9. Dilatory motions for postponement
10. Reply
11. Third party complaints
12. Interventions
The filing of a prohibited pleading will not suspend the
period to file an answer or to appeal.
Although a motion to dismiss is a prohibited pleading, its
filing after the answer had already been submitted does
not constitute a pleading prohibited by the summary
rules. What the rules proscribe is a motion to dismiss
that would stop the running of the period to file an
answer and cause undue delay.
While a motion to declare the defendant in default is
prohibited by the rules on summary procedure, the
plaintiff may nevertheless file a motion to render
judgment as may be warranted when the defendant fails
to file an answer.
The issuance of the pre-trial order is an important part
of the summary procedure because it is its receipt by
the parties that begins the ten-day period to submit the
affidavits and other evidence.
TRIAL PROCEDURE IN CIVIL CASES
No trial date is set. No testimonial evidence is required
nor cross-examination of witnesses allowed. All that is
required is that within (10) days from receipt by the
parties of the courts pre-trial order, they shall submit
(1) the affidavits of their witnesses (2) and other
evidence on the factual issues set forth in the pre-trial
order, Together with their position papers setting forth
the law and the facts relied upon by them.
Rendition
of judgment
CHAIRPERSON
: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
w/in 30
days Zabala
from SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Ventura,
Jocelyn
receipt
of
last de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
Proceedings); Jeenice
affidavit, or w/in 15
days after last
clarificatory paper
18

Judgments of inferior courts in cases governed by
summary procedure are appealable to the RTC.
The decision of the RTC in civil cases under this
rule, including ejectment cases, are IMMEDIATELY
executory.
KATARUNGANG PAMBARANGAY LAW
(Title One, Book III, RA 7160)
No complaint, petition, action, or proceeding

involving any matter within the authority of the
lupon shall be filed or instituted directly in court or
any other government office for adjudication
UNLESS
1. there has been a confrontation between the
parties before the lupon chairman or
pangkat, AND
2. that no conciliation or settlement has been
reached OR unless the settlement has been
repudiated by the parties thereto.
CASES NOT COVERED BY THE KATARUNGANG

PAMBARANGAY LAW:
1. Where one party is the government or any
subdivision or instrumentality thereof;
2. Where one party is a public officer or
employee, and the dispute relates to the
performance of his official functions;
3. Offenses punishable by imprisonment
exceeding 1 year or a fine exceeding
P5,000.00;
4. Offenses where there is no private offended
party;
5. Where the dispute involves real properties
located in different cities or municipalities
UNLESS the parties thereto agree to submit
their differences to amicable settlement by
an appropriate lupon;
6. Disputes involving parties who actually
reside in barangays of different cities or
municipalities,
EXCEPT
where
such
barangay units adjoin each other and the
parties thereto agree to submit their
differences to amicable settlement by an
appropriate lupon;
7. Such other classes of disputes which the
President may determine in the interest of
justice.
However, the court may, at any time before trial, motu

proprio refer the case to the lupon concerned for
amicable settlement, non criminal cases not falling
within the authority of the latter.
While the dispute is under mediation, conciliation, or
arbitration, the prescriptive periods for offenses and
cause of action under existing laws shall be interrupted
upon filing of the complaint with the punong barangay.
THE PARTIES MAY GO DIRECTLY TO COURT IN THE

FOLLOWING INSTANCES:
1. Where the accused is under detention;
2. Where the person has otherwise been deprived
of personal liberty calling for habeas corpus
proceeding;
3. Where the actions are coupled with provisional
remedies such as preliminary injunction,
attachment, delivery of personal property, and
support pendente lite; and
4. Where the action may otherwise be barred by
the statute of limitations.
The parties may, at any stage of the proceedings, agree
in writing to have the matter in dispute decided by
arbitration by either the Punong Barangay or Pangkat. In
such case, arbitrational hearings shall follow order of
adjudicative trials.
The settlement and arbitration agreement may be
repudiated on the ground that consent is vitiated by
fraud, violence, or intimidation. Such repudiation shall
be sufficient basis for the issuance of the certification
for filing a complaint in court or any government office
for adjudication.
RULES ON VENUE UNDER THE KATARUNGANG
PAMBARANGAY LAW
1. Disputes between residents of the same
barangay shall be brought for settlement before
lupon of said barangay
2. Residents of different barangays within the same
city or municipality in the barangay where the
respondent or any of the respondents reside at
the election of the complainant
3. Disputes involving real property or any interest
therein- where real property or larger portion
thereof is situated

19

ULTIMATE FACTS - essential facts constituting the
plaintiffs cause of action.
4. Disputes arising at the WORKPLACE where
the contending parties are employed or at
the INSTITUTION where such parties are
enrolled for study in the barangay where
such workplace or institution located.
CHART ON KATARUNGANG PAMBARANGAY, SEE PAGE 22.
PROCEDURE IN REGIONAL TRIAL COURTS

RULE 6
KINDS OF PLEADINGS
2. Legal conclusions, conclusions or inferences of

facts from facts not stated, or incorrect
inferences or conclusions from facts stated.
3. The details of probative matter or particulars of
evidence, statements of law, inferences and
arguments.
4. An allegation that a contract is valid or void is a
mere conclusion of law.
Section 1. Pleadings defined.

PLEADINGS the written allegations of the parties
of their respective claims and defenses submitted
to the court for appropriate judgment.
A motion to dismiss is NOT a pleading.
It is the allegations or averments in the pleading
that determines the jurisdiction of the court and
the nature of the action.
PLEADING
What are NOT ultimate facts:

1. Evidentiary or immaterial facts.
MOTION
TEST OF SUFFICIENCY: if upon admission or proof of the

facts being alleged, a judgment may be properly given.
A fact is essential if it cannot be stricken out without
leaving the statement of the cause of action
insufficient.
Section 4. Answer
ANSWER the pleading where the defendant sets forth
his affirmative or negative defenses.
It relates to the cause An application for an

of action; interested order not included in
in the matters to be
the judgment
included in the
judgment.
May be initiatory
Cannot be initiatory as
they are always made
in a case already filed
in court
Always filed before

judgment
May be filed even

after judgment
Section 3. Complaint.
COMPLAINT is a concise statement of the ultimate
facts constituting the plaintiffs cause or causes of
action, with
a specification of the relief sought, but it may add a

general prayer for such further relief as may be
deemed just or equitable.
2 kinds of defenses that may be set forth in the

answer:
a.
AFFIRMATIVE DEFENSES allegation of a new
matter which while hypothetically admitting the
material allegations in the pleading, would
nevertheless prevent or bar recovery by him. It is in
the nature of Confession and Avoidance
b. NEGATIVE DEFENSES specific denial of the
material facts or facts alleged in the pleading
Insufficient denial or denial amounting to admissions:

20

1. General denial
2. Denial in the form of a negative
pregnant
Section 6. Counterclaim
COUNTERCLAIM any claim which a defending
party may have
Filing of complaint
against
an
w/ the Punong
opposing party.
Barangay (PB)
W/in the next working day
Nature
of
Issuance of
summons to
the parties
and the
witnesses
counterclaim: A counterclaim is in the nature of a crosscomplaint. Although it may be alleged in the answer, it
is not part of the answer. Upon its filing, the same
proceedings are had as in the original complaint. For this
reason, it must be answered within ten (10) days from
service.
Section 7. Compulsory Counterclaim
RULES ON COUNTERCLAIM
A counterclaim before the
At any time during the
MTC
must be within the
Proceedings
jurisdiction of said court,
both as to the amount and nature
thereof (De Chua vs. IAC).
Parties agree
to submit the
dispute for
arbitration
Arbitration Hearings
Mediation (hearing)
Failure of
mediation
efforts
Settlement
Execution
w/in 6
months from
date thereof
Constitution of the
Pangkat
Repudiation of
arbitration
agreement
within 5 days
from date of
agreement
KATARUNGANG PAMBARANGAY PROCEDURE

Pangkat convenes not
later than 3 days
from its constitution
and summons the
parties
Pangkat must
arrive at a
settlement
w/in 15 days
from the day
it convenes
Award to be
made after the
lapse of the
period to
repudiate and
w/in 10 days
thereafter
Execution w/in
6 months from
the date of the
award
Conciliation
(hearing)
Settlement
Execution w/in 6
months from the
date of settlement
Repudiation of
settlement w/in 10
days from date
thereof
Note: Repudiation shall

only be allowed on ground
of vitiation of consent by
fraud,
violence
or
intimidation.
Failure of Conciliation
hearings at the Pangkat
ISSUANCE OF
Level and of Arbitration
CERTIFICATION
FOR
shall also lead to
OF A(Special Civil Actions andhearings
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure);FILING
Alnaiza Hasiman
Special
the
issuance
of
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat
(Evidence) IN COURT
COMPLAINT
certification for filing a
complaint in court.
21

action.
Need not be
answered; no default.
Must be answered,
otherwise, the
defendant can be
declared in default.
GENERAL RULE: A compulsory counterclaim not set up in

the answer is deemed barred.
EXCEPTION: If it is an after-acquired counterclaim, that
is, such claim matured after filing of the answer. In this
case, it may be pleaded by filing an amended answer or
a supplemental answer or pleading.
DOCTRINE OF ANCILLARY JURISDICTION

In an original action before the RTC, the
counterclaim may be considered compulsory
regardless of the amount (Sec. 7, Rule 6 ).
If a counterclaim is filed in the MTC in excess of its
jurisdictional amount, the excess is considered
waived (Agustin vs. Bacalan). In Calo vs. Ajax Intl,
the remedy where a counterclaim is beyond the
jurisdiction of the
MTC is to set off the claims and file a separate
action to collect the balance.
COMPULSORY
COUNTERCLAIM
PERMISSIVE
COUNTERCLAIM
One which arises out It does not arise out of

of or is necessarily
nor is it necessarily
connected with the
connected with the
transaction or
subject matter of the
occurrence that is the
opposing partys
subject matter of the
claim.
opposing partys
claim.
Section 8. Cross-claim
CROSS-CLAIM any claim by one party against a co-party
arising out of the transaction or occurrence that is the
subject matter either of the original action or
counterclaim.
If it is not set up in the action, it is barred, except:
1. when it is outside the jurisdiction of the court or;
2. if the court cannot acquire jurisdiction over third
parties whose presence is necessary for the
adjudication of said cross-claim.
In which case, the cross-claim is considered permissive.
The dismissal of the complaint carries with it the
dismissal of a cross-claim which is purely defensive, but
not a cross-claim seeking affirmative relief.
Cross Claim Counterclaim
Against a co- Against

an Against
a
party
opposing party person not a
party to the
action
It does not require for It may require for its

its adjudication the
adjudication the
presence of third
presence of third
parties of whom the parties over whom the
court cannot acquire court cannot acquire
jurisdiction.
jurisdiction.
It is barred if not set
up in the action.
3rd-party
Complaint
It is NOT barred even

if not set up in the

22

Must arise out
of the
transaction
that is the
subject matter
of the orig.
action or of a
counterclaim
therein.
May arise out of Must be in

or be necessarily respect of
connected with
the
the transaction opponents
or that is the
claim
subject matter (Plaintiff)
of the opposing
partys claim, in
which case, it is
called a
compulsory
counterclaim, or
it may not, in
which case it is
called a
permissive
counterclaim.
Section 10. Reply.

REPLY - the response of the plaintiff to the
defendants answer.
EFFECT OF FAILURE TO REPLY: new facts that
were alleged in the answer are deemed
controverted. Hence, the filing of the reply is
optional except for the denial of the genuineness
and due execution of an actionable document used
as defense in the answer.
Section 11. Third (fourth, etc.) party complaint.
THIRD (FOURTH,ETC.) PARTY COMPLAINT a
claim that a defending party may, with leave of
court, file against a person not a party to the action
for contribution, indemnity, subrogation or any
other relief, in respect of his opponents claim.
THIRD-PARTY
COMPLAINT
COMPLAINT IN
INTERVENTION
Brings into the action

a third person who
was not originally a
party.
Same
Initiative is with the

Initiative is with a
person already a party non-party who seeks
to the action.
to join the action.
TESTS to determine whether the third-party

complaint is in respect of plaintiffs claim:
1. Where it arises out of the same transaction
on which the plaintiffs claim is based, or,
although arising out of another or different
transaction, is connected with the plaintiffs

claim;
2. Whether the third-party defendant would be
liable to the plaintiff or to the defendant for all
or part of the plaintiffs claim against the
original defendant; and
3. Whether the third-party defendant may assert
any defenses which the third-party plaintiff has
or may have to the plaintiffs claim.
Leave of court to file a third-party complaint may be
obtained by motion under Rule 15.
Summons to new party (third, fourth, etc.) is needed for
the court to obtain jurisdiction over his person, since he
is not an original party.
Where the trial court has jurisdiction over the main
case, it also has jurisdiction over the third party
complaint, regardless of the amount involved as a third
party complaint is merely auxiliary to and is a
continuation of the main action (Republic v. Central
Surety & Insurance Co. L-27802, Oct. 26, 1968).
Section 12. Bringing new parties.
Distinguished from 3rd-party complaint: A 3rd-party
complaint is proper when not one of the third-party
defendants therein is a party to the main action. But if
one or more of the defendants in a counterclaim or
cross-claim is already a party to the action, then the
other necessary parties may be brought in under this
section.
RULE 7
PARTS OF A PLEADING
Section 3. Signature and address.
The signature of the counsel is a certification that:
1. That he has read the pleading;
2. There is good ground to support it; and
3. It is not interposed for delay
Only the original copies must be signed.
UNSIGNED PLEADING may be stricken out as sham and
false, and the action may proceed as though the
pleading has not been served. It has no legal effect.
Section 4. Verification.
Pleadings need NOT be verified EXCEPT when otherwise
provided by the law or rules.
A verification must now be based on personal knowledge
or based on authentic records.

23
Section 5. Certification against forum shopping.

FORUM SHOPPING the filing of a two or more
cases based on the same cause of action in different
courts for the purpose of obtaining a favorable
decision in either.
Capacity to sue and be sued either personally or

in representative capacity must be specifically averred
by the party suing or being sued, and specifically denied
by the party questioning such capacity.
Capacity is challenged by specific denial, motion
to dismiss or bill of particulars.
Section 5. Fraud, mistake, condition of the condition
Test to determine the presence of forumshopping: whether in the two (or more) cases
pending, there is identity of (a) parties, (b) rights or
causes of action, and (c) reliefs sought.
The certificate is to be executed by petitioner, and
not by counsel.
Required ONLY
pleadings.
for
complaints
or
initiatory
Certificate of non-forum shopping is not required in

a compulsory counterclaim (UST Hosp. vs. Surla).
EFFECT OF FAILURE TO COMPLY:
1. Not curable by amendment of said pleading
2. shall be cause for the dismissal of the case,
without
prejudice,
unless
otherwise
provided, upon motion and after hearing
FACTS THAT MAY BE AVERRED GENERALLY:

1. Conditions precedent (BUT there must still be an
allegation that the specific condition precedent
has been complied with, otherwise, it will be
dismissed for failure to state a cause of action)
2. Malice, intent, knowledge, or other condition of
the mind
3. Judgments of domestic or foreign courts,
tribunals, boards, or officers (no need to show
jurisdiction)
4. Official document or act
FACTS THAT MUST BE AVERRED PARTICULARLY:
1. Circumstances showing fraud or mistake in all
averments of fraud or mistake
2. Capacity
ACTIONABLE DOCUMENT written instrument upon
which the action or defense is based.
EFFECT OF SUBMISSION OF FALSE CERTIFICATION

OR NON-COMPLIANCE WITH THE UNDERTAKINGS
THEREIN:
1. indirect contempt
2. administrative and criminal actions
EFFECT OF WILFULL AND DELIBERATE FORUM
SHOPPING:
1. shall be ground for summary dismissal of
the case with prejudice;
2. direct contempt.
RULE 8
MANNER OF MAKING ALLEGATIONS IN A PLEADING
Pleadings should state ultimate facts essential to
the right of action.
ULTIMATE FACTS: those which directly form the
bases of the right sought to be enforced or the
defense relied upon.
If the ultimate facts are NOT alleged, the cause of
action would be insufficient.
Section 4. Capacity.
Two permissible ways of pleading an actionable

document:
1. By setting forth the substance of such document
in the pleading and attaching said document
thereto as an annex (contents of the document
annexed are controlling, in case of variance in
the substance of the document set forth in the
pleading and in the document attached); or
2. By setting forth said document verbatim in the
pleading.
Where the actionable document is properly alleged,
the failure to specifically deny under oath the same
results in:
1. The admission of the genuineness and due
execution of said document, EXCEPT that an
oath is not required:
a. When the adverse party was not a party to
the instrument; and

24

b. When an order for the inspection of the
original document was not complied
with.
2. The document need not be formally offered
in evidence.
GENUINENESS
That the document is not spurious, counterfeit, or
of different import on its face from the one
executed by the party, or that the party whose
signature it bears has signed it and that at the time
it was signed it was in words and figures exactly as
set out in the pleadings.
DUE EXECUTION
That the document was signed voluntarily and
knowingly by the party whose signature appears
thereon.
Defenses that the opposing party may set up even
after failure to deny under oath:
1. Mistake;
2. fraud;
3. compromise;
4. payment;
5. prescription;
6. want or illegality of consideration; or
7. estoppel
BUT the following defenses are waived:
a. forgery in the signature;
b. want of authority of an agent or
corporation;
c. want of delivery; or
d. the party charged signed the instrument in
some other capacity
Section 10. Specific Denial
THREE WAYS OF MAKING A SPECIFIC DENIAL:
1. By specifically denying each material
allegation of the other party and, whenever
possible, setting forth the substance of the
matters relied upon for such denial;
2. Part admission or part denial;
3. By an allegation of lack of knowledge or
information sufficient to form a belief as to
the truth of the averment in the opposing
partys pleading (must be made in good
faith).
A denial must not be general. A general denial is
regarded as an admission of the facts stated in the
complaint and entitles plaintiff to a judgment on
the pleadings.
NEGATIVE PREGNANT a form of denial which at the

same time involves an affirmative implication favorable
to the opposing party; It is in effect, an admission of the
averment to which it is directed; It is said to be a denial
pregnant with an admission of the substantial facts in
the pleading responded to.
Section 11. Allegation not specifically denied deemed
admitted.
GENERAL RULE: Allegations NOT specifically denied
deemed admitted (such as allegations of usury in the
complaint, and the authenticity and due execution of
actionable documents).
EXCEPTIONS:
1. Allegations as to the amount of unliquidated
damages
2. Immaterial allegations;
3. Incorrect conclusions of fact.
RULE 9
EFFECT OF FAILURE
TO PLEAD
Section 1. Defenses and objections not pleaded.
GENERAL RULE: Defenses and objections that are not
pleaded in a MOTION TO DISMISS or in the answer are
deemed waived.
EXCEPTIONS (not waived even if not raised):
1. Lack of jurisdiction over the subject matter
2. Litis pendentia
3. Res judicata
4. Prescription of the action
These defenses may be raised at any stage of the
proceedings even for the first time on appeal EXCEPT
that lack of jurisdiction over the subject matter may be
barred by laches. (Tijam vs. Sibonghanoy).
The presence of these grounds authorizes the court to
motu proprio dismiss the claims. These grounds must,
however, appear from the pleadings or the evidence on
record.
Section 3.
DEFAULT the failure of the defendant to answer
within the proper period. It is not his failure to appear
nor failure to present evidence.
ORDER OF
DEFAULT
JUDGMENT BY
DEFAULT
issued by the court, Rendered by the court

25

on plaintiffs motion
for failure of the
defendant to file his
responsive pleading
seasonably.
Interlocutory - not
appealable
following a default
order or after it
received, ex parte,
plaintiffs evidence.
Final appealable
NO default may be declared in the following

actions:
1. Annulment of marriage
2. Declaration of nullity of marriage
3. Legal Separation
4. Special
civil
actions
of
certiorari,
prohibition and mandamus where comment
instead of an answer is required to be
filed
After the
lapse of time
to file an
answer, the
plaintiff may
move to
declare the
defendant in
default
Motion granted:
Court issues order
of default and
renders judgment,
or require plaintiff
to submit evidence
ex parte.
court
cannot
motu
proprio
declare
a
defendant
in
default. For
Defendant
defendant
to
answers
be declared in
default, the plaintiff
Motion denied:
Defendant
allowed to file an
answer
If the defendant was declared in default upon an original

complaint, the filing of the amended complaint resulted
in the withdrawal of the original complaint, hence, the
defendant was entitled to file answer to the amended
complaint as to which he was not in default.
EFFECT OF ORDER OF DEFAULT:
1. While the party in default cannot take part in
the trial, he is nonetheless entitled to notice of
subsequent proceedings.
2. He may still be called on as a witness, in behalf
of the non-defaulting defendants.
DEFAULT
must:
1. File a MOTION to declare
defendant in default
2. Prove that summons have
been properly served on the
defendant
Court
maintains
order of
default
Before judgment
by default is
rendered,
defendant may:
1. move to set
aside order of
default upon
showing:
a. FAME
b. He has a
meritorious
defense
2. Avail of Rule 65
in proper cases
Court sets aside

order of default and
defendant is
allowed to file an
answer
The
2. Non-compliance with the order of the court to

file a bill of particulars or in case of insufficient
compliance therewith (Rule 12, Section 4)
3. Refusal to comply with the modes of discovery
(Rule 29, Section 3, par. c)
4. Failure to furnish plaintiff with a copy of the
answer
3. Prove
that the defendant
really failed to
answer within the
proper period.
CAUSES
OF
DEFAULT
1. Failure to
answer within the
proper
period
Presentation
of plaintiffs
evidence exparte
PARTIAL DEFAULT:
1. The pleading asserting a claim states a common
cause of action against several defending parties
If Uy
plaintiff
plaintiff
CHAIRPERSON: Jinky Ann
ASST. CHAIRPERSONS: If
Allen
Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
hisHEADS: Jona Obia
fails(Civil
to prove
Ventura, Jocelyn Zabala proves
SUBJECT
Procedure); Alnaiza Hasiman (Special Civil Actions and Special
allegations,
his
allegaProceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
Case set for
pre-trial
judgment by
default.
tions, case is
dismissed.
26

2. some of the defending parties answer and
the others fail to do so
3. the answer interposes a common defense
EFFECT OF PARTIAL DEFAULT: The court will try
the case against ALL defendants upon the answer of
some EXCEPT where the defense is personal to the
one who answered, in which case, it will not benefit
those
who
did
not
answer.
REMEDY FROM JUDGMENT BY DEFAULT (FLOW
CHART)
Judgment by default
Motion for new trial or reconsideration at

any time after service of judgment by
default and within 15 (30) days therefrom
When the complaint is amended, 2 situations may arise:

1. If the complaint merely corrects or modifies the
original complaint, then the action is deemed
commenced upon the filing of the original
complaint;
2. If the amended complaint alleges a new cause of
action, then that cause of action is deemed
commenced upon the filing of the amended
complaint.
Section 2. Amendments as a matter of right.
Amendment for the first time is a matter of right before
a responsive pleading is filed, or in case of a Reply,
within 10 days after it was served.
Since a motion to dismiss is NOT a responsive pleading,
an amendment may be had even if an order of dismissal
has been issued as long as the amendment is made
before order of dismissal becomes final.
Section 3. Amendments by leave of court.
Failure to file motion for new trial/

Denial of said motion
Perfect appeal from said judgment by

default within the balance of said
15 (30) - day period
Failure to appeal without

defendants faulk
Petition for relief from judgment within

60 days from notice of the judgment but
within 6 months from entry thereof
EXTENT
OF
RELIEF
TO BE AWARDED
IN
A
JUDGMENT
BY
DEFAULT:
Annulment of Judgment
Shall
not
exceed
under Rule 47
the
amount OR be
different in kind from that prayed for NOR award
unliquidated
damages.
RULE 10
AMENDED AND SUPPLEMENTAL PLEADINGS
AMENDMENTS
Section 1. Amendments in general.
Instances when amendment by leave of court may not

be allowed:
1. When cause of action, defense or theory of the
case is changed;
2. Amendment is intended to confer jurisdiction to
the court;
3. Amendment to cure a premature or non-existing
cause of action;
4. Amendment for purposes of delay.
Section 5. Amendment to conform to or authorize
presentation of evidence.
1ST PART: refers to amendment to conform to evidence
when issues NOT raised by the pleadings are tried with
the express or implied consent of the parties
- but failure to amend does NOT affect the result of the
trial of these issues
2ND PART: refers to amendment to authorize
presentation of evidence if evidence is objected to at
the trial on the ground that it is not within the issues
made by the pleadings.
SUPPLEMENTAL PLEADINGS
A cause of action which accrued after the filing of the
original complaint may, in the discretion of the court, be
pleaded in a supplemental complaint if there was a valid
subsisting cause of action at the time the original
complaint was filed.
AMENDED

SUPPLEMENTAL
27

PLEADING
PLEADING
Refers to facts
Refers to facts arising
existing at the time of after the filing of the
the commencement
original pleading.
of the action.
Take the place of the Taken together with
original pleading.
the original pleading.
Can be made as a
Always with leave of
matter of right as
court
when no responsive
pleading has yet been
filed
Section 7. Filing of amended pleadings.

The amended pleading supersedes the original
pleading.
within 15 days after service of summons to

said agent or officer
c. if it has no resident agent nor agent nor
officer in which case service of summons is
to be made on the proper government office
which will then send a copy by registered
mail to the home office of the foreign
private corporation within 30 days after
receipt of summons by the home office of
the foreign private entity.
3. In case of service of summons by publication within
the time specified in the order granting leave to
serve summons by publication, which shall NOT be
less than 60 days after notice (Rule 14, Sec.15).
4. In case of a non-resident defendant on whom
extraterritorial service of summons is made, the
period to answer should be at least 60 days.
An amendment which merely supplements and

amplifies facts originally alleged in the complaint
relates back to the date of the commencement of
the action and is not barred by the statute of
limitations which expired after service of the
original complaint.
EFFECT OF AMENDED PLEADING:
1. Admissions in the superseded pleading can
still be received in evidence against the
pleader;
2. Claims or defenses alleged therein but not
incorporated or reiterated in the amended
pleading are deemed waived.
The court may extend the time to file the pleadings BUT
may NOT shorten them.
The amended or superseded, original pleading is not

expunged but remains on the record although the
admission of the amended pleading amounts to
withdrawal of the original pleading.
If no new answer is filed by the defendant in case an

amendment has been made after he had filed his
answer, the original answer of the defendant may serve
as the answer to the amended complaint, and hence,
cannot be declared in default.
RULE 11
WHEN TO FILE RESPONSIVE PLEADINGS
Answer to the complaint
1. Within 15 days after service of summons,
UNLESS a different period is fixed by the Court
(Sec. 1)
2. In case the defendant is a foreign private
juridical entity:
a. if it has a resident agent within 15
days after service of summons to him
b. if it has no resident agent, but it has an
agent or officer in the Philippines
The 15-day period begins to run from receipt of

summons.
Section 3. Answer to amended complaint.
1. If the filing of an amended complaint is a matter
of right - within 15 days from service of the
amended complaint.
2. If the filing of the amended complaint is NOT a
matter of right within 10 days counted from
notice of the court order admitting the same.
Section 5. Answer to third (fourth, etc.)-party

complaint.
The third-party defendant is served with summons just
like the original defendant, hence, he also has 15, 30, 60
days from service of summons, as the case may be, to
file his answer.
Section 7. Answer to supplemental complaint.
Leave of court is required in filing, the court may fix a
different period for answering the supplemental
complaint in lieu of the reglementary 10-day period.
Section 10. Omitted counterclaim or cross-claim.
The pleader may set up a counterclaim or cross-claim by
amendment before judgment when he fails to set it up

28

by reason of oversight, inadvertence, or excusable
neglect ort when justice requires. Leave of court is
necessary.
RULE 12
BILL OF PARTICULARS
BILL OF PARTICULARS- a more definite statement
of any matter which appears vague or obscure in a
pleading.
PURPOSE: to aid in the preparation of a responsive
pleading.
Motion for bill of particulars must be filed within
the reglementary period for the filing of a
responsive pleading. The filing of a motion if
sufficient in form and substance, will interrupt the
time to plead.
The motion for bill of particulars may be granted in
whole or in part as not all the allegations
questioned by the movant are necessarily
ambiguous as to require clarification.
A bill of particulars may be filed either in a
separate or an amended pleading.
A bill of particulars becomes part of the pleading
which it supplements.
EFFECTS OF MOTION
1. If the motion is granted, the movant can
wait until the bill of particulars is served on
him by the opposing party and then he will
have the balance of the reglementary
period within which to file his responsive
pleading.
2. If his motion is denied, he will still have
such balance of the reglementary period to
do so, counted from service of the order
denying his motion. In either case, he will
have at least 5 days to file his responsive
pleading.
Effect of non-compliance:
1. If the Order is not obeyed or in case of
insufficient compliance therewith, the
court:
a. may order the striking out of the
pleading or the portion thereof to
which the order is directed; or
b. make such order as it may deem
just.
2. If plaintiff, his compliant will be stricken off and

dismissed (Rule 12, sec. 4; Rule 17, sec. 3)
3. If defendant, his answer will be stricken off and
his counterclaim dismissed, and he will be
declared in default upon motion of the plaintiff
(Rule 12, sec. 4; Rule 17, sec. 4; Rule 9, sec. 3).
RULE 13
FILING AND SERVICE OF PLEADINGS, JUDGMENTS AND
OTHER PAPERS
Notice given to a party who is duly represented by
counsel is a nullity, unless service thereof on the party
himself was ordered by the court or the technical defect
was waived.
Section 3. Manner of filing.
1. Personally
2. by registered mail
Filing by mail should be through the registry service
which is made by deposit of the pleading in the post
office, and not through other means of transmission.
If registry service is not available in the locality of either
sender or addressee, service may be done by ordinary
mail.
If a private carrier is availed of by the party, the date of
actual receipt by the court of such pleading and not the
date of delivery to the carrier, is deemed to be the date
of the filing of that pleading.
NOTE: PERSONAL and SUBSTITUTED service as applied to
pleadings have a different meaning compared to
summons under Rule 14.
MODES OF SERVICE
PLEADINGS
1. PERSONAL SERVICE
a. Delivering personally a copy to the party or his
counsel or;
b. Leaving a copy in counsels office with his clerk
or with a person having charge thereof or;
c. Leaving the copy between 8 a.m. and 6 p.m. at
the partys or counsels residence, if known,
with a person of sufficient age and discretion
residing therein---if no person found in his

29

office, or if his office is unknown, or if he
has no office.
2. SERVICE BY MAIL
If no registry service is available in the locality, of
either sender or addressee, service may be done by
ordinary mail.
3. SUBSTITUTED SERVICE
Delivering the copy to the clerk of court with proof
of failure of both personal and service by mail.
JUDGMENTS, FINAL ORDERS, RESOLUTIONS (Sec.9)
1. By personal service; or
2. By registered mail;
3. By publication, if party is summoned by
publication and has failed to appear in the
action.
If filed by registered mail: proved by -the registry

receipt and the affidavit of the person who did the
mailing.
Section 13. Proof of service
1. Proof of personal service:
a. Written admission of the party served; or
b. Official return of the server; or
c. Affidavit of the party serving.
2. Proof of service by ordinary mail: Affidavit of the
person mailing;
3. Proof of service by registered mail:
a. Affidavit, and
b. Registry receipt issued by the mailing office.
They can be served only under the three modes.
Section 14. Notice of lis pendens.
They CANNOT be served by substituted service.
LIS PENDENS - a notice of a pendency of the action

between the parties involving title to or right of
possession over real property.
NOTE: A resort to modes other than by personal

service must be accompanied by a written
explanation why the service or filing was not done
personally (Sec. 11).
Section 10. Completeness of service.
1. Personal service
a. by handling a copy to defendant; or
b. tendering him copy if he refuses;
c. complete upon actual delivery
2. Service by ordinary mail:
Complete upon expiration of 10 days after
mailing,
unless
the
court
provides
otherwise.
3. Service by registered mail:
a. Complete upon actual receipt by the
addressee; or
b. After 5 days from the date he received the
1st notice of the postmaster, whichever date
is earlier.
Section 12. Proof of filing.
Filing is proved by its existence in the record of the
case.
If it is not in the record, and:
If filed personally: proved by the written or
stamped acknowledgment of its filing by the clerk
of court on a copy of the same; or
It serves as a warning to all persons, prospective

purchasers or encumbrancers of the property in litigation
to keep their hands off the property in litigation unless
they are prepared to gamble on the result of the
proceedings.
The defendant may also record a notice of lis pendens
when he claims an affirmative relief in his answer.
Notice of lis pendens CANNOT be cancelled on an ex
parte motion or upon the mere filing of a bond by the
party on whose title the notice is annotated, as section
14 provides that such cancellation may be authorized
ONLY upon order of court, after proper showing that:
1. The notice is for the purpose of molesting the
adverse party; or
2. It is not necessary to protect the rights of the
party who caused it to be recorded.
RULE 14
SUMMONS
PURPOSE OF SUMMONS:
1. to acquire jurisdiction over the person of the
defendant, and;
2. to give notice to the defendant that an action
has been commenced against him.
EFFECT OF NON-SERVICE: Unless there is waiver, nonservice or irregular service renders null and void all

30

subsequent proceedings and issuances in the action
from the order of default up to and including the
judgment by default and the order of execution.
Service upon
minors and
incompetents
Where the defendant has already been served with

summons on the original complaint, no further
summons is required on the amended complaint if it
does not introduce new causes of action.
But where the defendant was declared in default on
the
original
complaint
and
the
plaintiff
subsequently filed an amended complaint, new
summons must be served on the defendant on the
amended complaint, as the original complaint was
deemed withdrawn upon such amendment.
Section 3. By whom served.

Summons may be served by:
1. Sheriff
2. Sheriffs deputy, or
3. Other proper court officers, or
4. For justifiable reasons, by any suitable
person authorized by the court issuing the
summons.
Enumeration is EXCLUSIVE.
plaintiff must obtain the

appointment of a guardian
ad litem for him.
Service upon
prisoner
Serve on officer having

management of the jail or
prison
Service upon
domestic private
juridical entity
ENTITY
To the president,
managing partner, general
manager, corporate
secretary, treasurer, or
in-house counsel.
NOTE: Service upon a
person other than those
mentioned is invalid and
does not bind the
corporation. The
enumeration is
EXCLUSIVE.
Service upon
foreign private
juridical entity
Serve on resident agent ;

or if none; on govt
official designated by law;
or
on any officer or agent of
the corporation within the
Philippines.
Service upon
public
corporations
in case defendant is the

Republic of the
Philippines - by serving
upon the Solicitor General
in case of a province, city
or municipality, or like
public corporations by
serving on its executive
head, or on such other
officer or officers as the
law or the court may
direct.
ALIAS SUMMONS issued when original has not

produced its effect because it is defective in form
or manner of service, and when issued, supersedes
the first (Section 5).
KINDS
1.
2.
3.
OF SERVICE OF SUMMONS:
personal service
substituted service
by publication
In actions in personam where the defendant cannot

be served with summons personally or by
substituted service, the case must first be
converted into an in rem or quasi in rem action by
attaching the property of the defendant found in
the Philippines before summons can be served by
publication. If no property can be found, the action
shall be archived but shall not be dismissed.
(Citizens Surety vs. Court Appeals)
SERVICE OF SUMMONS ON DIFFERENT ENTITIES
Service on entity Upon
any
or
all
w/o juridical
defendants being sued
personality
under common name; or
person in charge of office
In case of minors: by
serving upon the minor,
regardless of age, AND
upon his legal guardian, or
also upon either of his
parents.
In case of incompetents:
by serving on him
personally AND upon his
legal guardian, but not
upon his parents, unless
when they are his legal
guardians
IN ANY EVENT, if the
minor or incompetent has
no legal guardian, the
Extraterritorial

Requisites
31

service
a.
b.
defendant does
not reside or is
not found within
the Phil.
he action either:
personal status of
plaintiff;
subject of which is
property within
the Philippines in
which defendant
has a lien or
interest;
which consists
wholly or in part in
excluding the
defendant from
any interest in any
property within
the Phil; or
defendant has
been attached in
the Phil.
Mode of service
a. with leave of court
served outside the
Phil. By personal
service; or
b. with leave of court
serve by publication
in a newspaper of
general circulation,
in which case copy of
the summons and
order of court must
also be sent by
registered mail to
the last known
address of
defendant; or
c. any other manner
the court deem
sufficient.
Service upon a
resident
temporarily out of
the Phil.
Substituted service or
with leave of court,
personal service out of
the Phil. as under
extraterritorial service
Service upon an
unknown
defendant or
whose
whereabouts are
unknown
With leave of court, by

publication in a
newspaper of general
circulatiuon
Section 20. Voluntary appearance.

Any form of appearance in court, by the defendant, by
his agent authorized to do so, or by attorney, is
equivalent to service of summons EXCEPT where such
appearance is precisely to object to the jurisdiction of
the court over the person of the defendant.
Inclusion in a motion to dismiss of other grounds aside
from lack of jurisdiction over the person of the
defendant shall NOT be deemed a voluntary
appearance.
RULE 15
MOTIONS
MOTION is an application for relief other than by a
pleading.
GENERAL RULE: Motions must be in writing.
EXCEPTION: Those made in open court or in the course
of hearing or trial.
KINDS OF MOTIONS
a. motion EX PARTE- made without the presence or a
notification to the other party because the question
generally presented is not debatable.
b. motion OF COURSE where the movant is entitled
to the relief or remedy sought as a matter of
discretion on the part of the court.
c. LITIGATED motion one made with notice to the
adverse party to give an opportunity to oppose.
d. SPECIAL motion- motion addressed to the discretion
of the court.
GENERAL RULE: A motion cannot pray for judgment.
EXCEPTIONS:
1. Motion for judgment on the pleadings
2. Motion for summary judgment
3. Motion for judgment on demurrer to evidence.
Section 4. Hearing on motion.

32

3-DAY NOTICE RULE
GENERAL RULE: Service of the copy of motions
should be made in such a manner as shall ensure its
receipt at least 3 days before the hearing.
EXCEPTIONS:
1. Ex parte motions
2. Urgent motions
3. Motions agreed upon by the parties to be
heard on shorter notice or jointly submitted
by the parties, and
4. Motions for summary judgment which must
be served at least 10 days before its hearing
5. Non-litigated motions.
Section 5. Notice of hearing.
NOTICE OF HEARING shall:
1. Be addressed to all parties concerned
2. Specify the time and date of the hearing
which must not be later than 10 days after
the filing of the motion
NOTE: Any motion that does not comply with
Sections 4, 5 and 6 of this Rule is a mere scrap of
paper, should not be accepted for filing and, if
filed, is not entitled to judicial cognizance and does
not affect any reglementary period involved for the
filing of the requisite pleading.
Omnibus Motion Rule - All available grounds for
objection in attacking a pleading, order, judgment,
or proceeding should be invoked at one time,
otherwise, they shall be deemed waived.
Motion for leave to file a pleading or motion shall
be accompanied by the pleading or motion sought
to be admitted, otherwise, the latter will be
denied.
RULE 16
MOTION TO DISMISS
A Motion to Dismiss is NOT a responsive pleading.
Section 1. Grounds.
1. No jurisdiction over the person of the
defending party
2. No jurisdiction over the subject matter of
the claim
3. Improper venue
4. No legal capacity to sue
5. Litis pendentia
6. Res judicata
7. Prescription
8. States no cause of action
9. Claim or demand has been paid, waived,

abandoned, or otherwise extinguished
10. Claim is unenforceable under the Statute of
Frauds
11. Non-compliance with a condition precedent for
filing
claim
MOTION TO DISMISS MOTION TO DISMISS
UNDER RULE 16
UNDER RULE 33
(demurrer to
evidence)
Grounded on
preliminary
objections.
based on insufficiency
of evidence.
may be filed by any

May be filed only by
defending party
the defendant against
against whom a claim the complaint of the
is asserted in the
plaintiff.
action.
should be filed within May be filed only after
the time for but prior
the plaintiff has
to the filing of the
completed the
answer of the
presentation of his
defending party to the
evidence.
pleading asserting the
claim against him.
If denied, defendant If denied, defendant
answers, or else he may present evidence
may be declared in
if granted, plaintiff
default
appeals and the Order
If granted, plaintiff
of the dismissal is
may appeal or if
reversed, the
subsequent case is not defendant loses his
barred, he may re-file
right to present
the case
evidence.
Effect of motion to dismiss: A motion to dismiss

hypothetically admits the truth of the facts alleged in
the complaint.
However, such admission is limited only to all material
and relevant facts which are well pleaded in the
complaint.
An action cannot be dismissed on a ground not alleged in
the motion even if said ground is provided for in Rule 16.
EXCEPT:
1. Those cases where the court may dismiss a case
motu proprio (Sec. 1, Rule 9)
2. Such ground appears in the allegations of the
complaint or in plaintiffs evidence

33

REQUISITES OF LITIS PENDENTIA
1. Parties to the action are the same
2. There is substantial identity in the cause of
action and relief sought
3. The result of the first action is
determinative of the second in any event
and regardless of which party is successful
Motion to dismiss may be filed in either suit, not
necessarily in the one instituted first.
REQUISITES OF RES JUDICATA
1. Previous final judgment
2. Jurisdiction over the subject matter and the
parties by the court rendering it
3. Judgment upon the merits
4. In a case prosecuted between same parties
5. Involving the same subject matter
6. Same cause of action
There could be res judicata without a trial, such as
in a judgment on the pleadings (Rule 34); a
summary judgment (Rule 35); or an order of
dismissal under Section 3 of Rule 17.
When the ground for dismissal is that the complaint
states no cause of action, such fact can be
determined only from the facts alleged in the
complaint.
Where the plaintiff has not exhausted all
administrative remedies, the complaint not having
alleged the fact of such exhaustion, the same may
be dismissed for failure to state a cause of action.
Non-compliance with P.D. 1508 (Katarungang
Pambarangay Law) may result to dismissal of the
case on the ground of non-compliance with a
condition precedent.
An action cannot be dismissed on the ground that
the complaint is vague or indefinite. The remedy of
the defendant is to move for a bill of particulars or
avail of the proper mode of discovery.
GENERAL TYPES OF A MOTION TO DISMISS
1. motion to dismiss before answer under Rule
16
2. motion to dismiss under Rule 17
a. upon notice by plaintiff
b. upon motion of plaintiff
c. due to fault of plaintiff
3. motion to dismiss on demurrer to evidence after

plaintiff has rested his case under Rule 33
4. motion to dismiss the appeal filed either in the
lower court (Rule 41,Sec. 13) or in the appellate
court (Rule 50, Sec.1 ).
EFFECTS OF
ACTION ON MTD
REMEDY
Order granting motion

to dismiss is final
order
Order denying the
motion to dismiss is
interlocutory
Appeal from the order

of dismissal
Certiorari and
prohibition if there is
grave abuse of
discretion amounting
to lack or excess of
jurisdiction under
Rule 65
Section 4. Time to plead.

Defendant is granted only the balance of the
reglementary period to which he was entitled at the
time he filed his motion to dismiss, counted from his
receipt of the denial order, but not less than 5 days in
any event.
The same rule of granting only the balance of the period
is followed where the court, instead of denying the
motion to dismiss, orders the amendment of the
pleading challenged by the motion, in which case, the
balance of the period to answer runs from his receipt of
the amended pleading.
Section 5. Effect of dismissal

GENERAL RULE: The action or claim may be refiled.
EXCEPTION: The action cannot be refiled if it was
dismissed on any of these grounds:
1. Res judicata;
2. Prescription;
3. Extinguishment of the claim
or demand;
4. Unenforceability under the
Statute of Frauds.
Section 6. Pleading grounds as affirmative defenses.
If no motion to dismiss had been filed, any of the
grounds for dismissal provided for in Rule 16, INCLUDING
IMPROPER VENUE, may be pleaded as affirmative
defenses and preliminarily heard in the discretion of the
court.

34

Dismissal under this section WITHOUT prejudice to
the prosecution in the same or separate action of a
COUNTERCLAIM pleaded in the answer
These alternative remedies of the defendant are

available to him REGARDLESS OF WHETHER HIS
COUNTERCLAIM IS COMPULSORY OR PERMISSIVE.
RULE 17
DISMISSAL OF ACTIONS
Dismissal under this rule is WITHOUT PREJUDICE,

EXCEPT:
1. When otherwise stated in the motion to dismiss;
2. When stated to be with prejudice in the order of
the court.
Section 1. Dismissal upon notice by plaintiff.

Dismissal is effected not by motion but by mere
NOTICE of dismissal which is a matter of right
BEFORE the defendant has answered or moved for a
summary judgment.
The approval of the court is necessary in the dismissal or

compromise of a class suit.
Section 3. Dismissal due to fault of plaintiff.
But notice of dismissal requires an order of the

court confirming the dismissal.
Such dismissal is WITHOUT PREJUDICE,
EXCEPT:
1. Where the notice of dismissal so provides;
2. Where the plaintiff has previously dismissed
the same case in a court of competent
jurisdiction (TWO-DISMISSAL RULE);
3. Even where the notice of dismissal does not
provide that it is with prejudice but it is
premised on the fact of payment by the
defendant of the claim involved.
CAUSES FOR DISMISSAL

1. Plaintiff fails to appear for no justifiable cause
on the date of the presentation of his evidence
in chief on the complaint
2. Plaintiff fails to prosecute his action for an
unreasonable length of time (NOLLE PROSEQUI)
3. Plaintiff fails to comply with these Rules or any
order of the court. Unjustifiable inaction on the
part of plaintiff to have the case set for trial is a
ground for dismissal for failure to prosecute.
Section 2. Dismissal upon motion of plaintiff.
Complaint may be dismissed

1. Upon motion of the defendant, or
2. Upon courts own motion.
Where the plaintiff moves for the dismissal of his

complaint to which a counterclaim has been
interposed, the dismissal shall be limited to the
complaint.
Such dismissal shall be without prejudice to the
right of the defendant to either:
1. Prosecute his counterclaim in a separate
action,
In this case, the court should render the
corresponding order granting and reserving
his right to prosecute his claim in a separate
complaint.
-OR2. To have the same resolved in the same
action.
In such case, defendant must manifest such
preference to the trial court within 15 days
from notice to him of plaintiffs motion to
dismiss.
Dismissal shall have the effect of an ADJUDICATION

UPON THE MERITS (WITH PREJUDICE), unless
otherwise declared by the court.
SECTION 2
SECTION 3
Dismissal is at the
instance of the
plaintiff;
Dismissal is not
procured by plaintiff
though justified by
causes imputable to
him;
Dismissal is a matter Dismissal is a matter

of procedure, without
of evidence, an
prejudice unless
adjudication on the
otherwise stated in
merits;
the order of the court
or on plaintiffs
motion to dismiss his
own complaint;
Dismissal is without
Dismissal is without
prejudice to the right prejudice to the right
of the defendant to
of the defendant to
prosecute his
prosecute his

35

counterclaim in a
counterclaim on the
separate action unless
same or separate
w/in 15 days from
action.
notice of the motion
he manifests his
intention to have his
counterclaim resolved
in the same action
RULE 18
PRE-TRIAL
PRE-TRIAL- a mandatory conference and personal
confrontation before the judge between the parties
and their respective counsel.
The plaintiff must promptly move ex parte that the
case be set for pre-trial , and this he must do upon
the service and filing of the last pleading.
The pre-trial and trial on the merits of the case
must be held on separate dates.
When non-appearance of a party may be excused
(Sec.4):
1. If a valid cause is shown therefore
2. If a representative shall appear in his behalf
fully authorized in writing to:
a. Enter into an amicable settlement
b. Submit to alternative modes of dispute
resolution
c. Enter into stipulations or admissions of
facts and of documents
EFFECT OF NON-APPEARANCE OF PLAINTIFF:

Cause for dismissal of the action, with prejudice, unless
otherwise ordered by the court.
EFFECT OF NON-APPEARANCE OF DEFENDANT:
Cause to allow the plaintiff to present evidence ex parte
and the court to render judgment on the basis thereof.
Pre-trial brief. It is the mandatory duty of the parties to
seasonably file their pre-trial briefs under the conditions
and with the sanctions provided therein.
Failure to file pre-trial brief has the same effect as
failure to appear at the pre-trial.
Record of pre-trial. The contents of the PRE-TRIAL
order shall control the subsequent course of the action,
UNLESS modified before trial to prevent manifest
injustice.
A party is deemed to have waived the delimitations in a
pre-trial order if he failed to object to the introduction
of evidence on an issue outside of the pre-trial order, as
well as in cross-examining the witness in regard to said
evidence.
FOR CHART ON PRE-TRIAL PLS. SEE THE NEXT PAGE.
A special authority for an attorney to compromise is

required under Sec. 23, Rule 138. Under Art. 1878
(c) of the Civil Code, a special power of attorney is
required.

36
PRE-TRIAL
No
Settlement
Amicable
Settlement
Agreements
made by parties;
Amendments to
pleading;
Schedule of trial
Failure to
Appear
If plaintiff is
Absent, when
so required to
attend, the
court may
dismiss the
case
If defendant
is absent,
court may
hear
evidence of
plaintiff ex
parte
TRIAL
Court
renders
decision
RULE 19
INTERVENTION
WHO may intervene?
1. One who has legal interest in the matter in
litigation
2. One who has legal interest in the success of
either of the parties,
3. One who has an interest against both
parties
4. One who is so situated as to be adversely
affected by a distribution or other
disposition of property in the custody of the
court or of an officer thereof.
FACTORS TO BE CONSIDERED BY THE COURT
1. Whether or not the intervention will unduly
delay or prejudice the adjudication of the
rights of the original parties;
If evidence is insufficient to
prove plaintiffs cause of
action or defendants
counterclaim, court rules in
favor of either one or
dismisses the case
2. Whether or not the

intervenors rights may be
fully
protected
in
a
separate proceeding.
The interest which entitles

a person to intervene in a
suit must be on the matter in
litigation and of such direct
and immediate character that
the intervenor will either gain or lose by the direct legal
operation and effect of the judgment.
INTERVENTION
INTERPLEADER
An ancillary action.
An original action.
Proper in any of the Presupposes that the

four situations
plaintiff has no
mentioned in this
interest in the subject
Rule.
matter of the action
or has an interest
therein, which in
whole or in part, is
not disputed by the
other parties to the
action.
Defendants are
Defendants are being
already original
sued precisely to
parties to the pending
implead them
suit
Section 2. Time to intervene.

At any time before rendition of judgment by the trial
court.

37

JUSTIFICATION: Before judgment is rendered, the
court, for good cause shown, may still allow the
introduction of additional evidence and that is still
within the liberal interpretation of the period for
trial.
Since no judgment has yet been rendered, the
matter subject of the intervention may still be
readily resolved and integrated in the judgment
disposing of all claims in the case.
REMEDIES FOR THE DENIAL OF INTERVENTION:
1. APPEAL
2. MANDAMUS if there is grave abuse of
discretion
If there is improper granting of intervention, the
remedy of the party is certiorari.
RULE 21
SUBPOENA
SUBPOENA
SUMMONS
an order to appear and

Order to answer
testify or to produce
complaint
books and documents
may be served to a
Served on the
non-party
defendant
needs tender of
does not need tender
kilometrage,
of kilometrage and
attendance fee and
other fees
reasonable cost of
production fee
SUBPOENA AD TESTIFICANDUM a process directed

to a person requiring him to attend and to testify at
the hearing or the trial of an action, or at any
investigation conducted by competent authority, or
for the taking of his deposition.
SUBPOENA DUCES TECUM a process directed to a
person requiring him to bring with him books,
documents, or other things under his control.
Section 2. By whom issued
WHO may issue
1. Court before whom the witness is required
to attend
2. Court of the place where the deposition is
to be taken
3. Officer or body authorized by law to do so
in connection with investigations conducted
by said officer or body
4. Any Justice of the SC or of the CA in any
case or investigation pending within the
Philippines.
SUBPOENA TO A PRISONER must be for a valid purpose;

if prisoner required to appear in court is sentenced to
death, reclusion perpetua or life imprisonment and is
confined in prison must be authorized by the SC.
Section 4. QUASHING A SUBPOENA.
A. Subpoena DUCES TECUM may be quashed upon proof
that:
1. It is unreasonable and oppressive;
2. The articles sought to be produced do not
appear prima facie to be relevant to the issues;
3. The person asking for the subpoena does not
advance the cost for the production of the
articles desired.
B. Subpoena AD TESTIFICANDUM may be quashed if the
witness is not bound thereby.
In EITHER case, the subpoena may be quashed for failure
to tender the witness fees and kilometrage allowed by
the Rules.
GENERAL RULE
a. The court which issued the subpoena may issue a
warrant for the arrest of the witness and make
him pay the cost of such warrant and seizure, if
the court should determine that his disobedience
was willful and without just cause (Sec. 8);
b. The refusal to obey a subpoena without
adequate cause shall be deemed a contempt of
the court issuing it (Sec.9).
Exceptions:
Provisions regarding the compelling of attendance (Sec.
8) and contempt (Sec. 9) does not apply where:
a. Witness resides more than 100 km from his
residence to the place where he is to testify by
the ordinary course of travel, generally, by
overland transportation (VIATORY RIGHT).
b. Permission of the court in which the detention
prisoners case is pending was not obtained.
RULES OF DISCOVERY
DISCOVERY - is the procedure by which one party in an
action is enabled to obtain before trial knowledge of
relevant facts and of material evidence in the possession
of the adverse party or of a witness.
Rationale of discovery: to enable the parties to obtain
the fullest possible knowledge of the issues and evidence
long before the trial to prevent such trial from being
carried on in the dark.

38

Modes of discovery under the Rules of Court
1. Depositions pending action (Rule 23).
2. Depositions before action or pending appeal
(Rule 24).
3. Interrogatories to parties (Rule 25).
4. Admission by adverse party (Rule 26).
5. Production or inspection of documents, or
things (Rule 27).
6. Physical and mental examination of persons
(Rule 28).
Discovery before answer.
It is only in the exceptional or unusual case that the
need for discovery arises, or that it should be
allowed before service of answer.
1. after jurisdiction has been obtained over any

defendant or over the property which is the
subject of the action and BEFORE answer.
2. Deposition of a person confined in prison.
WITHOUT LEAVE OF COURT
AFTER answer AND deponent is not confined in prison.
Section 4. Use of depositions.
Where the witness is available to testify and the
situation is not one of those excepted under Sec. 4, his
deposition is inadmissible in evidence and he should be
made to testify.
It can be used as evidence by a party for any purpose
under the specific conditions in Sec. 4.
Modes of Discovery are intended to be CUMULATIVE,

and not alternative nor mutually exclusive.
Discovery is NOT MANDATORY but failure to avail
carries sanctions in Rules 25 and 26.
DEPONENT
USE
Any person
By any party for

contradicting or
impeaching the
testimony of deponent
as witness
RULE 23
DEPOSITIONS PENDING ACTION
DEPOSITION is a written testimony of a witness
given in the course of a judicial proceeding in
advance of the trial or hearing upon oral
examination
or
in
response
to
written
interrogatories and where an opportunity is given
for cross-examination.
Depositions are intended as a means to compel
disclosure of facts resting in the knowledge of a
party or other person, which are relevant in a
suit/proceeding.
CLASSIFICATIONS OF DEPOSITIONS
1. Depositions on ORAL EXAMINATION and
Depositions
upon
WRITTEN
INTERROGATORIES
2. Depositions DE BENE ESSE - those taken for
purposes of a pending action (Rule 23) ; and
3. Depositions IN PERPETUAM REI MEMORIAM
- those taken to perpetuate evidence for
purposes of anticipated action, or in the
event of further proceedings in a case on
appeal, and to preserve it against danger of
loss (Rule 24).
WHEN TAKEN
WITH LEAVE OF COURT
A party or any one By an adverse party for

who at the time of
any purpose
the deposition was
an OFFICER,
DIRECTOR, or
MANAGING AGENT of
a public or private
corp., partnership,
or association which
is a party
Witness, whether or
not a party
By any party for any

purpose if the court
finds the 5 instances
occurring
SCOPE OF INQUIRY IN DEPOSITIONS:

1. Matter which is relevant to the subject of the
pending action;
2. Not privileged
3. Not restricted by a protective order
Certiorari will not lie against an order admitting or
rejecting a deposition in evidence, the remedy being an
appeal from the final judgment.
Section 7. Effect of taking depositions.

39

A party shall not be deemed to make a person his
own witness for any purpose by taking his
deposition because depositions are taken for
discovery and not for use as evidence.
Exception: If a party offers the deposition in
evidence, then he is deemed to have made the
deponent his witness (Sec.8)
Exception to the Exception: Unless the deposition
is that of any adverse party, and unless, of course,
the deposition is used for impeaching or
contradicting the deponent (Sec.8).
Section 10 and 11. Persons
depositions may be taken.
before
whom
WITHIN THE PHILIPPINES:

1. judge
2. notary public
3. any person authorized to administer oaths,
as stipulated by the parties in writing
OUTSIDE THE PHILIPPINES:
1. on notice, before a secretary of embassy or
legation, consul general, consul, viceconsul, or consular agent of the Phil.
2. before such person or officer as may be
appointed by commission or letters rogatory
3. any person authorized to administer oaths,
as stipulated by the parties in writing
LETTERS ROGATORY
Motion
to
terminate
or
Depositions under this Rule are also taken conditionally,

to be used at the trial only in case the deponent is not
available.
Depositions under this Rule do not prove the existence of
any right and the testimony perpetuated is not in itself
conclusive proof, either of the existence of any right nor
even of the facts to which they relate, as it can be
controverted at the trial in the same manner as though
no perpetuation of testimony was ever had. However, in
the absence of any objection to its taking, and even if
the deponent did not testify at the hearing, the
perpetuated testimony constitutes prima facie proof of
facts
referred
to
in
the
deposition.
Section 6. Use of deposition.
Section 7. Depositions pending appeal.

Sec. 7 is the procedure in perpetuating testimony AFTER
JUDGMENT IN THE RTC and DURING THE PENDENCY OF
AN APPEAL.
Issued to a nonIssued to the

judicial foreign officer appropriate judicial
who will directly take officer of the foreign
the testimony
country who will direct
somebody in said
foreign country to take
down testimony
Applicable rules of
Applicable rules of
procedure are those of procedure are those of
the requesting court
the foreign court
requested to act
Resorted to if
Resorted to if the
permission of the
execution of the
foreign country is
commission is refused
given
in the foreign country
Leave of court is not
Leave of court is
necessary
necessary
Section 18.
examination.
RULE 24
DEPOSITIONS BEFORE ACTION OR PENDING APPEAL
If deposition is taken under this Rule, it may be used in

any action involving the SAME SUBJECT MATTER
subsequently brought.
Section 12. Commission or letters rogatory.

COMMISSION
1. any time during the taking of the deposition

2. on motion or petition of any party or of the
deponent; or
3. upon showing that the examination is conducted
in :
a. bad faith
b. in such manner as unreasonably to
annoy, embarrass, or oppress the
deponent or party
RULE 25
INTERROGATORIES TO PARTIES
PURPOSE of Written Interrogatories: to elicit facts from
any adverse party (answers may also be used as
admissions of the adverse party)
limit
Written interrogatories and the answers thereto must

both be FILED and SERVED.
Interrogatories
MAY BE FILED:
Bill of Particulars
40

A party may properly
seek disclosure of
matters of proof
which may later be
made a part of the
records as evidence.
A party may properly

seek disclosure only of
matters which define
the issues and become
a part of the
pleadings.
A party may serve written interrogatories:

1. WITHOUT LEAVE OF COURT after answer
has been served, for the first set of
interrogatories.
2. WITH LEAVE OF COURT before answer has
been served (REASON: at that time, the
issues are not yet joined and the disputed
facts are not yet clear, when more than one
set of interrogatories is to be served.)
A judgment by default may be rendered against a
party who fails to answer written interrogatories
Only one set of interrogatories by the same party is
allowed. Leave of court is necessary for succeeding
sets of interrogatories.
Section 6. Effect of failure to serve written
interrogatories.
Rule 25 and Rule 26 are directed to the party who
fails and refuses to RESORT to the discovery
procedures, and should not be confused with the
provisions of Rule 29 which provides for sanctions or
other consequences upon a party who refuses or
fails to COMPLY with discovery procedures duly
availed of by opponent.
The justification for this provision is that the party

in need of relevant facts having foregone the
opportunity to inquire into the same from the other
party through means available to him, he should not
thereafter be permitted to unduly burden the latter
with courtroom appearances or other cumbersome
processes.
Unless a party had been served written
interrogatories, he may not be compelled by the
adverse party:
1. to give testimony in open court, or
2. give a deposition pending appeal.
The only exception is when the court allows it for
GOOD CAUSE shown and to prevent a failure of
justice.
Depositions Upon Interrogatories to

Written
Parties under Rule
Interrogatories to
25
Parties under Rule
23 Sec. 25
As to Deponent
Party or ordinary
witness
As to Deponent
party only
As to Procedure
As to Procedure
With intervention of
no intervention.
the officer authorized
Written
by the Court to take
interrogatories are
deposition
directed to the party
himself
As to Scope
Direct, cross, redirect,
re-cross
As to Scope
only one set of
interrogatories
Interrogatories
no fixed time
Interrogatories
15 days to answer
unless extended or
reduced by the court
RULE 26
ADMISSION BY ADVERSE PARTY
Section 1. Request for admission.
PURPOSE OF written request for admission is to expedite
trial and relieve the parties of the costs of proving facts
which will not be disputed on trial and the truth of
which can be ascertained by reasonable inquiry.
When request may be made: at any time after the issues
have been joined.
What request may include
1. Admission of the genuineness of any material
and relevant document described in and
exhibited with the request.
2. Admission of the truth of any material and
relevant matter of fact set forth in the request.
3. Under this rule, a matter of fact not related to
any documents may be presented to the other
party for admission or denial.
Section 2. Implied Admission.
The effect of a FAILURE to make a reply to a request for
admission is that each of the matters of which an
admission is requested is deemed admitted.
A sworn statement either denying specifically each
matter or setting forth in detail the reasons why he

41

cannot truthfully admit or deny those matters must
be filed and served upon the party requesting the
admission.
Section 3. Effect of admission.
USE: An admission under this section is for the
purpose of the pending action only and cannot be
used in other proceedings.
The party who fails
admission of facts in
thereafter presenting
otherwise allowed
or refuses to request the

question is prevented from
evidence thereon UNLESS
by the court (Sec.5).
RULE 27
PRODUCTION OR INSPECTION OF DOCUMENTS OR
THINGS
Production of documents affords more opportunity
for discovery than a subpoena duces tecum because
in the latter, the documents are brought to the
court for the first time on the date of the scheduled
trial wherein such documents are required to be
produced.
The TEST to be applied in determining the
relevancy of the document and the sufficiency of
their description is one of reasonableness and
practicality.
PRODUCTION OR
INSPECTION OF
DOCUMENTS OR
THINGS
SUBPOENA DUCES
TECUM
Essentially a mode of
discovery
means of compelling
production of
evidence
The Rules is limited to may be directed to a
the parties to the
person whether a
action
party or not
The order under this may be issued upon an
Rule is issued only
ex parte application.
upon motion with
notice to the adverse
party
RULE 28
PHYSICAL AND MENTAL EXAMINATION OF PERSONS
The mental condition of a party is in controversy in
proceedings for GUARDIANSHIP over an imbecile or
insane person, while the physical condition of the
party is generally involved in PHYSICAL INJURIES cases.

Since the results of the examination are intended to be
made public, the same are not covered by the physicianpatient privilege.
Section 4. Waiver of privilege.
Where the party examined requests and obtains a report
on the results of the examination the consequences are:
1. he has to furnish the other party a copy of the
report of any previous or subsequent
examination of the same physical and mental
condition, AND
2. he waives any privilege he may have in that
action or any other involving the same
controversy regarding the testimony of any other
person who has so examined him or may
thereafter examine him.
RULE 29
REFUSAL TO COMPLY WITH MODES OF DISCOVERY
SANCTIONS
1. Contempt;
2. Payment of reasonable fees;
3. The matters regarding which the questions were
asked, character or description of land et al., be
taken to be in accordance with the claim of
party obtaining the order;
4. Prohibition on the refusing party to produce
evidence or support or oppose designated claims
or defenses;
5. Striking out pleadings, order the dismissal of the
action or stay the action until compliance or to
render judgment by default.
6. Order the arrest of the refusing party except in
cases of physical or mental examination.
RULE 30
TRIAL
TRIAL judicial process of investigating and determining
the legal controversies starting with the production of
evidence by the plaintiff and ending with his closing
arguments.
GENERAL RULE: when an issue exists, trial is necessary.
Decision should not be made without trial.
EXCEPTIONS: when there may be judgment without
trial:
1. Judgment on the Pleading (Rule 34)
2. Summary Judgment (Rule 35)
3. Judgment on Compromise
4. Judgment by Confession

42

5. Dismissal with Prejudice (Rule 17)
otherwise directs, the trial shall be limited to the issues

stated in the pre-trial order.
Section 3. Requisites of motion to postpone trial

for absence of evidence.
There must be an affidavit showing:
1. materiality or relevance of such evidence;
and
2. due diligence in procuring it.
If the adverse party admits the facts for which
evidence is to be presented, the trial will not be
postponed.
Section 4. Requisites of motion to postpone trial
for illness of party or counsel.
There must be an affidavit or sworn certification
showing:
1. presence of party or counsel at the trial is
indispensable; and
2. character of his illness is such as to render
his non-attendance excusable.
Section 5. Order of trial unless directed by the
court.
Plaintiff presents
evidence
Defendant presents
evidence to
support his
defense/countercla
im/crossclaim/
third party
complaint
Defendant files
demurrer to
evidence
Unless
Third
party
defendant
presents
eidence,
if any
If court
grants
motion:
Renders
dismisal
If court
denies
motion:
Continues
with
hearing
the
court
for
special
reasons
Rebuttal
Evidence by
Parties
RDECISION
EMEDIAL LAW COMMITTEE
After
Presentation of
evidence:
1. oral arguments
2. submission of
memoranda
Section 6. Agreed statements of facts.

This is known as STIPULATION OF FACTS and is among
the purposes of a pre-trial.
The parties may also stipulate verbally in open court.
Such stipulations are binding unless relief therefrom is
permitted by the court on good cause shown, such as
error or fraud.
But counsel cannot stipulate on what their respective
EVIDENCE consists of and ask that judgment be rendered
on the basis of such stipulation.
Stipulations of facts are not permitted in actions for
ANNULMENT OF MARRIAGE and for LEGAL SEPARATION.
Section 8. Suspension of actions.
Art. 2030 of the Civil Code. Every civil action or
proceeding shall be suspended
1. If willingness to discuss a possible compromise is
expressed by one or both parties; or
2. If it appears that one of the parties, before the
commencement of the action or proceeding,
offered to discuss a possible compromise but the
other party refused the offer.
Section 9. Judge to receive evidence; delegation to
clerk of court.
GENERAL RULE: the judge must himself personally
receive and resolve the evidence of the parties.
However, the reception of such evidence may be
delegated under the following conditions:
1. The delegation may be made only in defaults or
ex parte hearings, or an agreement in writing by
the parties.
2. The reception of evidence shall be made only by
the clerk of that court who is a member of the
bar.
3. Said clerk shall have no power to rule on
objections to any question or to admission of
evidence or exhibits; and
4. He shall submit his report and transcripts of the
proceedings, together with the objections to be
resolved by the court, within 10 days from the
termination of the hearing.
RULE 31
CONSOLIDATION OR SEVERANCE
GENERAL RULE: Consolidation is discretionary upon the
court
43

EXCEPTIONS: Consolidation becomes a matter of
duty when:
1. if the cases are pending before the same
judge OR
2. if filed with different branches of a court
and one of such cases has NOT been
partially tried.
Disobedience to a subpoena issued by the commissioner

is deemed a contempt of the court which appointed the
latter.
RULE 33
DEMURRER TO EVIDENCE
Section 1. Demurrer to evidence.
REQUISITES FOR CONSOLIDATION:

1. When actions involving a common question
of law or fact, and
2. The actions are pending before the same
court
if filed with DIFFERENT courts,
authorization from the SC is necessary.
3 WAYS OF CONSOLIDATING CASES:
1. by RECASTING THE CASES ALREADY
INSTITUTED, conducting only one hearing
and rendering only one decision;
2. by CONSOLIDATING THE EXISTING CASES and
holding only one hearing and rendering only
one decision; and
3. by HEARING ONLY THE PRINCIPAL CASE and
suspending the hearing on the others until
judgment has been rendered in the
principal case. (TEST-CASE METHOD)
Consolidation of cases on appeal and assigned to
different divisions of the SC and the CA is also
authorized. Generally, the case which was appealed
later and bearing the higher docket no. is
consolidated with the case having the lower docket
no.
RULE 32
TRIAL BY COMMISSIONER
COMMISSIONER- a person to whom a cause pending
in court is referred, for him to take testimony, hear
the parties and report thereon to the court, and
upon whose report, if confirmed, judgment is
rendered.
Reference to a commissioner may be had by the
written consent of both parties.
Situations when reference to a Commissioner may
be made on motion (Sec.2):
1. Examination of a long account
2. Taking of an account is necessary
3. Question of fact, other than upon the
pleading arises; or
4. Carrying a judgment or order into effect.
DEMURRER TO
EVIDENCE
MOTION TO DISMISS
It is presented after
the plaintiff has
rested his case
presented before a
responsive pleading
(answer) is made by
the defendant
The ground is based
it may be based on
on insufficiency of
any of those
evidence
enumerated in Rule 16
2 Scenarios
MOTION DENIED
MOTION GRANTED
BUT REVERSED ON
APPEAL
Movant shall have the Movant is deemed to

right to present his have waived his right
evidence
to present evidence.
The decision of the
appellate court will
be based only on the
evidence of the
plaintiff as the
defendant loses his
right to have the
case remanded for
reception of his
evidence.
denial is
order of the court is
INTERLOCUTORY. Sec. an ADJUDICATION ON
1 , Rule 36 (that
THE MERITS, hence,
judgment should state the requirement in
clearly and distinctly
Sec. 1, Rule 36
the facts and the law should be complied
on which it is based),
with.
will not apply.
The denial is NOT
appealable.
CIVIL CASES
CRIMINAL CASES
Defendant need not ask

leave of court is
for leave of court;
necessary so that the
accused could
present his evidence
if the demurrer is
denied

44

if the court finds
if the court finds the
plaintiffs evidence
prosecutions
insufficient, it will evidence insufficient,
grant the demurrer by
it will grant the
dismissing the
demurrer by
complaint. The
rendering judgment
judgment of dismissal is
acquitting the
appealable by the
accused. Judgment
plaintiff. If plaintiff
of acquittal is not
appeals and judgment appeallable; double
is reversed by the
jeopardy sets-in
appellate court, it will
decide the case on the
basis of the plaintiffs
evidence with the
consequence that the
defendant already loses
his right to present
evidence no res
judicata in dismissal
due to demurrer
if court denies
if court denies the
demurrer, defendant
demurrer:
will present his
If demurrer was with
evidence
leave, accused may
present his evidence
If the demurrer was
without leave,
accused can no
longer present his
evidence and submits
the case for decision
based on the
prosecutions
evidence
JUDGMENT ON DEMURRER TO EVIDENCE

is a judgment rendered by the court dismissing a
case upon motion of the defendant, made after
plaintiff has rested his case, on the GROUND that
upon the facts presented by the plaintiff and the
law on the matter, plaintiff has not shown any right
to
relief.
RULE 34
JUDGMENT ON THE PLEADINGS
A judgment on the pleadings must be on motion of
the claimant. (NO SUPPORTING PAPERS ARE
REQUIRED BECAUSE EVERTHING IS BASED ON THE
PLEADINGS.)
HOWEVER, if at the pre-trial the court finds that a
judgment on the pleadings is proper, it may render
such judgment motu proprio.
GROUNDS:
1. Answer fails to tender an issue because of:

a. general
denial
of
the
material
allegations of the complaint;
b. insufficient denial of the material
allegations of the complaint ; or
2. Answer admits material allegations of the
adverse partys pleading
By moving for judgment on the pleading, plaintiff

waives his claim for unliquidated damages. Claim for
such damages must be alleged and proved.
NO JUDGMENT ON THE PLEADINGS IN ACTIONS FOR

1. Declaration of nullity of marriage
2. Annulment of marriage
3. Legal Separation
Motion to Dismiss
Motion for
judgment on the
pleadings
Filed by a defendant Filed by the plaintiff

to a complaint, if the answer raises
counterclaim, cross- no issue.
claim or 3rd-party
complaint
If the complaint states no cause of
action, a motion to dismiss should be
filed and not a motion for judgment on
the pleading.
RULE 35
SUMMARY JUDGMENTS
SUMMARY JUDGMENT
One granted by the court for the prompt disposition of
civil actions wherein it clearly appears that there exists
NO genuine issue or controversy as to any material fact.
Who can File
1. Plaintiff: he must wait for the answer to be filed and
served, and thus for the issue to be joined, before
he can move for summary judgment.
2. Defendant: he can move for summary judgment at
anytime, that is, anytime after filing and service of
the complaint even before he answers
The motion for summary judgment must be supported by
(1) affidavit, (2) depositions of the adverse party or a
third party, or (3) admissions of the adverse party, all
intended to show that:

45

a. there is no genuine issue as to any material
fact, except damages which must always be
proved, and
b. the movant is entitled to a judgment as a
matter of law.
2. Must state clearly and distinctly the facts and the

law on which it is based
3. It should contain a dispositive part and should be
signed by the judge and filed with the clerk of
court.
The summary judgment may be a judgment on the

merits, in which case, an appeal may be taken
therefrom.
PROMULGATION- the process by which a decision is

published, officially announced, made known to the
public or delivered to the clerk of court for filing,
coupled with notice to the parties or their counsel.
SUMMARY
JUDGMENT
JUDGMENT JUDGMENT
ON THE
BY DEFAULT
PLEADINGS
(Rule 9)
Based on the based solely on based on the

pleadings,
the pleadings. complaint and
depositions,
evidence, if
admissions
presentation is
and affidavits
required.
Available to
generally
Available to
both plaintiff available only
plaintiff.
and defendant to the plaintiff,
unless the
defendant
presents a
counterclaim.
There is
The answer no issues as no
no genuine fails to tender answer is filed
issue between an issue or
by the
the parties,
there is an
defending
i.e. there may admission of
party.
be issues but
material
these are
allegations.
irrelevant
10-day notice 3-day
notice 3-day notice
required
required
rule applies.
May
be On the merits On the merits
interlocutory
or
on
the
merits
RULE 36
JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF
JUDGMENT- final consideration and determination
by a court of the rights of the parties, upon matters
submitted to it in an action or proceeding.
The date of finality of the judgment or final order
shall be deemed to be the date of its entry.
REQUISITES OF A JUDGMENT:
1. It should be in writing, personally and directly
prepared by the judge
MEMORANDUM DECISION- a decision of the appellate

court which adopts the findings and the conclusion of
the trial court.
JUDICIAL COMPROMISE
A judgment based on a compromise which has
the force of law and is conclusive between
parties.
Not appealable.
A JUDGMENT is considered RENDERED Upon filing of
the signed decision. This includes an amended decision
because an amended decision is a distinct and separate
judgment and must follow the established procedural
rule.
The power to amend a judgment is inherent to the court
before judgment becomes final and executory.
After judgment has become executory, the court cannot
amend the same
EXCEPT:
1. To make corrections of clerical errors, not
substantial
amendments,
as
by
an
amendment nunc pro tunc.
2. To clarify an ambiguity which is borne out by
and justifiable in the context of the
decision.
3. In judgments for support, which can always
be amended from time to time.
MANNER OF ATTACKING JUDGMENTS:
1. Direct attack
a. before finality
1. motion for new trial or reconsideration;
2. appeal
b. after finality
1. relief from judgment, rule 38
2. annulment of judgment, Rule 47.
2.Collateral attack

46
PROMULGATION OF JUDGMENT
Court Renders Decision
Losing Party
Accepts
decision
without further
contest
Court
maintains
decision
If no appeal is
taken or did
not avail of
remedies,
judgment
becomes final
and
executory
Filing appeal within

15/30 days from
notice of judgment
Within 15/30 days

from notice of
judgment:
Motion for
reconsideration; or
motion for new trial
Section 4.
Court grants motion:
1.modifies decision; or
2.grants new trial
Several
Losing party may
appeal within the
remaining period
judgments.
Several judgment is proper where the liability of
each party is clearly separable and distinct from his
co-parties such that the claims against each of them
could have been the subject of separate suits, and
the judgment for or against one of them will not
necessarily affect the other.
A several judgment is NOT proper in actions against
solidary debtors.
Section 6. Separate Judgments
Proper when more than one claim for relief is
presented in an action and a determination as to
the issues material to the claim has been made. The
action shall proceed as to the remaining claims.
Judgment NUNC PRO TUNC (literally means now

for then)
rendered to enter or record such judgment as

has been formerly rendered but has not been
entered as thus rendered
its only function is to record some act of the
court which was done at a former time, but
which was not then recorded, in order to make
the record speak the truth, without any changes
in substance or any material respect.
Judgment upon Agreement or Compromise

A compromise agreement between the parties to a case
on which the decision of the court was based has upon
the parties the effect and authority of res judicata. It is
immediately executory.
Judgment by Confession
Judgment upon confession is one which is rendered
against a party upon his petition or consent. It usually
happens when the defendant appears in court and
confesses the right of the plaintiff to judgment or files a
pleading expressly agreeing to the plaintiffs demand.
Two kinds of judgment by confession
1. A judgment by COGNOVIT ACTIONEM here, the
defendant after service instead of entering a
plea, acknowledged and confessed that the
plaintiffs cause of action was just and rightful.
2. A
judgment
by
CONFESSION
RELICTA
VERIFICATIONE after pleading and before trial,
the defendant both confessed the plaintiffs
cause of action and withdrew or abandoned his
plea or other allegations, whereupon judgment
was entere against him without proceeding to
trial.
Judgment upon
Compromise
Judgment by
Confession
The provisions and

An affirmative and
terms are settled and voluntary act of the
agreed upon by the
defendant himself.
parties to the action, The court exercises a
and which is entered
certain amount of
in the record by the supervision over the
consent of the court. entry of judgment.
Clarificatory Judgment
rendered by the court, upon motion, when a judgment
previously rendered is ambiguous and difficult to comply
with.
AMENDED OR
CLARIFIED
JUDGMENT
SUPPLEMENTAL
DECISION
It is an entirely new
Does not take the

47

decision and
supersedes the
original judgment
place of or extinguish
the original judgment
Court makes a
Serves to bolster or
thorough study of the add to the original
original judgment and
judgment
renders the amended
and clarified judgment
only after considering
all the factual and
legal issues
RULE 37
NEW TRIAL OR RECONSIDERATION
Order denying
Second motion for new trial

based on grounds not existing or
available when 1st motion was
filed
Appeal from the judgment or
final order and assign as one of
the errors the denial of the
An order denying a motion for new trial is not

appealable.
NEW TRIAL - the rehearing of a case already
decided by the court but before the judgment
rendered thereon becomes final and executory,
whereby errors of law or irregularities are expunged
from the record, or new evidence is introduced, or
both steps are taken.
Purpose: to set aside the judgment or final order
and grant a new trial.
WHEN to file: within period for taking appeal.
WHERE to file: with the trial court which rendered
the questioned judgment.
MOTION FOR A NEW
TRIAL
MOTION FOR
RECONSIDERATION
The grounds are: fraud, The grounds are: the
accident, mistake or
damages awarded are
excusable negligence or excessive, that the
newly discovered
evidence is insufficient
evidence which could to justify the decision
not, with reasonable

or final order, or that
diligence, have
the decision or final
discovered and produced order is contrary to
at the trial, and which if
law.
presented would
probably alter the result
Second motion may be Second motion from
allowed
same party is
prohibited
If a new trial is granted if the court finds that
the trial court will set
excessive damages
aside the judgment or have been awarded or
final order
that the judgment or
final order is contrary
to the evidence or
law, it may amend
such judgment or final
order accordingly
REQUISITES for NEWLY-DISCOVERED EVIDENCE

1. Must have been discovered after trial
2. Could not have been discovered and produced at
the trial
3. If presented, would alter the result of the action
4. Otherwise it is called FORGOTTEN EVIDENCE.
A motion suspends or tolls the running of the
reglementary period for appeal except when the same is
pro-forma.
PRO-FORMA MOTION - when it does not comply with
Rule 15 and Rule 37, e.g. it does not point out
specifically the findings or conclusions of the judgment
as are contrary to law, making express reference to the
testimonial or documentary evidence or to the provisions
of law alleged to be contrary to such findings or
conclusions, and is merely intended to delay the
proceedings OR if there is no affidavit of merit.
Section 6. Effect of granting of motion for new trial
When motion is granted, the original judgment is
thereby vacated and the action stands for trial de novo,
but the recorded evidence taken upon the former trial so
far as the same is material and competent to establish
the issues, shall be used at the new trial taking the
same.
The order denying a motion for new trial is NOT
appealable.
MOTION FOR NEW
MOTION FOR
TRIAL
REOPENING OF THE
TRIAL
Specifically
mentioned in the

Not mentioned in the

Rules but is
48

Rules
nevertheless a
recognized procedural
recourse or device
deriving validity and
acceptance from long
established usage
NOTE: It is actually
mentioned in the Rules
of Criminal Procedure
Proper only after
May properly be
promulgation of
presented only after
judgment
either or both the
parties have formally
offered and closed
their evidence before
judgment
Based upon specific Controlled by no other
grounds set forth
rule than the
under Rule 37 in civil paramount interests of
cases and Rule 121 in justice, resting entirely
criminal cases
on the sound discretion
of a trial court, the
exercise of which
discretion will not be
reviewed on appeal
UNLESS a clear abuse
thereof is shown
MOTION FOR RECONSIDERATION

Purpose: To reconsider or amend judgment or final
order
WHEN to file: within period for taking an appeal
WHERE to file: with the trial court which rendered
the judgment or final order sought to be
reconsidered
RULE 38
RELIEF FROM JUDGMENTS, ORDERS, OR OTHER
PROCEEDINGS
REMEDIES AGAINST FINAL
JUDGMENTS OR ORDERS
AND
EXECUTORY
1. Petition for Relief from Judgment (Rule 38)

2. Annulment of judgments or final orders or
resolutions (Rule 47) on the ground of:
o Extrinsic fraud, to be filed within 4
years from the discovery of the fraud;
o Lack of jurisdiction, before it is barred
by laches or estoppel
3. Direct or collateral attack against a void or
voidable judgment
o DIRECT ATTACK when the validity of
the judgment itself is the main issue of
the action, a petition for certiorari and
action to annul judgment on the ground of

extrinsic fraud or lack of jurisdiction
COLLATERAL ATTACK if the judgment can
be resisted in any other action in which it is
involved.
RULE 37
RULE 38
Available BEFORE
judgment becomes
final and executory
Applies to
JUDGMENTS or FINAL
ORDERS only
Available AFTER
judgment has become
final and executory
Applies to judgments,
final orders and other
proceeding:
1.Land Registration
2.Special Proceedings
3. Order of Execution
GROUNDS:
i. FAME
ii. Newly discovered
evidence
WHEN AVAILED OF:
Within the time to
appeal
GROUNDS:
FAME
WHEN AVAILED OF:
within 60 days from
knowledge of the
judgment AND
within 6 months from

entry of judgment
If denied, the order
If denied, the order
of denial is NOT
denying a petition for
appealable, hence
relief is NOT
remedy is appeal
appealable; the
from the judgment remedy is appropriate
civil action under Rule
65
Legal remedy
Equitable remedy
Motion need not be
Petition must be
verified
verified
TWO HEARINGS UNDER RULE 38

1. Hearing to determine whether the judgment
should be set aside
2. If yes, a hearing on the merits of the case.
The period fixed by Rule 38 is non-extendible and is
never
interrupted.
RULE 39
EXECUTION, SATISFACTION AND EFFECT OF
JUDGMENTS
EXECUTION remedy provided
enforcement of a final judgment.

by
law
for
the
49

AGAINST WHOM ISSUED: execution can only issue
against a party and not against one who has not had
his day in court.
WRIT OF EXECUTION: judicial writ issued to an
officer authorizing him to execute the judgment of
the court.
ESSENTIAL REQUISITE OF A WRIT OF EXECUTION: a
writ of execution to be valid, must conform strictly
to the decision or judgment which gives it life.
It cannot vary the terms of the judgment it seeks to
enforce
FINAL JUDGMENT OR ORDER- one which disposes of
the whole subject matter or terminates the
particular proceedings or action, leaving nothing to
be done by the court but to enforce by execution
what has been determined.
Execution is a
matter of right
after
expiration of
period to
appeal and no
appeal is
perfected
If the winning
party does not
move for
execution w/in
5 years but
before 10
years from the
date of entry
of judgment,
the same can
only be
revived by
means of a
new action /
petition
EXECUTION ISSUES AS A MATTER OF RIGHT:

1. on motion
2. upon a judgment or order that disposes of the
action or proceeding AND
3. upon expiration of the period to appeal
therefrom and NO appeal has been duly
perfected.
QUASHAL OF WRIT PROPER WHEN:

1. Improvidently issued
2. Defective in substance
3. Issued against the wrong party
4. Judgment already satisfied
5. Issued without authority
TEST
TO
Discretionary
execution
upon good
reasons stated
in a special
order after
due hearing
DETERMINE
Sheriff enforces writ of execution
WHETHER
SPECIAL JUDGMENT one that requires the performance

of an act OTHER THAN:
1. The payment of money; and
2. The sale of real or personal property
Section 1. Execution Upon Judgments and Final
Orders.
GENERAL RULE: court cannot refuse execution

UNLESS:
1. Execution is UNJUST OR IMPOSSIBLE
2. Equitable grounds like a CHANGE IN SITUATION
of the parties which makes execution
inequitable
3. Judgment NOVATED by parties
4. Execution is enjoined
5. Judgment has become DORMANT
EXECUTION OF JUDGMENT
Judgment is
executed by
motion within
5 years from
date of its
entry
JUDGMENT OR ORDER IS FINAL OR INTERLOCUTORY:

The test is whether the judgment or order leaves
nothing more for the court to do with respect to the
merits of the case.
Section 2. Discretionary Execution

DISCRETIONARY
EXECUTION
EXECUTION AS A
MATTER OF RIGHT
May issue before

the lapse of period
to appeal
Period to appeal has

already lapsed and
no appeal is
perfected
Discretionary upon
the court; there is
inquiry on whether
there is GOOD
REASON for
execution
Ministerial duty of
the court PROVIDED
there are no
supervening events
Losing party is made to indemnify thru:

1. payment with interest;
2.Jocelyn
levy
and
sale
of personal
property;
Ventura,
Zabala
SUBJECT
HEADS: Jona Obia
(Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
3. levy
and
sale of
real Procedure);
property;Elaine Masukat (Evidence)
Proceedings);
Jeenice
de Sagun
(Criminal
4. delivery of personal and real
property
50

1. By motion within 5 years from date of its entry
2. By independent action after 5 years from entry
AND before it is barred by statute of limitations
GROUNDS FOR EXECUTION PENDING APPEAL:
1. Insolvency of the judgment debtor.
2. Wastage of asset by judgment debtor.
Section 3. Stay of Discretionary Execution. The
party against whom an execution is directed may
file a supersedeas bond to stay discretionary
execution.
SUPERSEDEAS BOND- one filed by a petitioner and
approved by the court before the judgment
becomes final and executory and conditioned upon
the performance of the judgment appealed from in
case it be affirmed wholly or in part.
Supersedeas bond guarantees satisfaction of the
judgment in case of affirmance on appeal, not other
things like damage to property pending the appeal
The court may, in its discretion, order an execution
before the expiration of the time within which to
appeal provided:
1. There is a motion for execution filed by the
winning party
2. There is notice of said motion to the
adverse party; and
3. There are good reasons stated in a special
order after due hearing.
GENERAL RULE: an order of execution is NOT
appealable otherwise there would be no end to the
litigation between the parties.
EXCEPTIONS:
1. When the terms of the judgment are not
very clear;
2. When the order of execution varies with the
tenor of the judgment.
Section 4. Judgments NOT Stayed By Appeal
1. INJUNCTION
2. RECEIVERSHIP
3. ACCOUNTING
4. SUPPORT
5. Such other judgments declared to be
immediately executory unless otherwise
ordered by the trial court.
Section 6. Execution By Motion Or Independent
Action.
Judgment for support does not become dormant, thus it

can always be executed by motion.
5-year period may be extended by the conduct of
judgment debtor.
A revived judgment is a new judgment thus another
5/10-year period to execute and revive is given the
party.
Section 7. Execution In Case Of Death Of Party.
If the obligor dies AFTER entry but BEFORE LEVY on his
property, execution will be issued for recovery of real or
personal property or enforcement of a lien thereon. But
for a sum of money, judgment cannot be enforced by
writ but as a claim against his estate/probate
proceedings.
If he dies AFTER a VALID LEVY has been made, execution
sale proceeds.
Section 8. Issuance, Form and Contents of a Writ of
Execution.
Remedies in an order granting or denying the issuance
of a writ of execution
Appeal is the remedy for an order denying the issuance
of a writ of execution.
Section 10. Execution Of Judgments For Specific Act.
If party REFUSES TO VACATE PROPERTY, remedy is NOT
contempt. The Sheriff must oust the party. But if
demolition is involved, there must be a special order.
If party REFUSES TO DELIVER, sheriff will take possession
and deliver it to winning party.
When the party REFUSES TO COMPLY, court can appoint
some other person at the expense of the disobedient
party and the act done shall have the same effect as if
the required party performed it, the disobedient party
incurs no liability for contempt.
Section 11. Execution of Special Judgments.
When judgment requires the performance of any act
other than for money and delivery of property.
The writ of execution shall be served upon the party
required to obey the same and such party may be
punished for contempt if he disobeys.
MODE OF ENFORCEMENT
51

LEVY - act by which an officer sets apart or
appropriates a part of the whole of the property of
the judgment debtor for purposes or the execution
sale. The levy on execution shall create a lien in
favor or the judgment creditor over the right, title
and interest of the judgment debtor in such
property at the time of the levy.
The levy on execution creates a lien in favor of the
judgment creditor subject to prior liens and
encumbrances.
GARNISHMENT - act of appropriation by the court
when property of debtor is in the hands of third
persons
The garnishee or the 3rd person who is in possession
of the property of the judgment debtor is deemed a
forced
intervenor.
ATTACHMENT
GARNISHMENT
Refers to corporeal
property in the
possession of the
judgment debtor.
refers to money,
stocks, credits and
other incorporeal
property which belong
to judgment debtor
but is in the
possession or under
the control of a third
person
Section 16. Proceedings Where Property Claimed

By Third Person.
REMEDIES of THIRD PARTY CLAIMANT
1. Summary hearing before the court which
authorized the execution;
2. TERCERIA or third party claim filed with
the sheriff;
3. Action for damages on the bond posted by
judgment creditors; or
4. Independent reinvidicatory action.
The remedies are cumulative and may be resorted
to by third party claimant independently of or
separately from the others.
If winning party files a bond, it is only then that the
sheriff can take the property in his possession. IF
NO BOND, cannot proceed with the sale.
SALE ON EXECUTION
Notice of sale is required before levied property can be

sold at public auction (Sec. 15).
Remedy against an irregular sale is MOTION TO VACATE
OR SET ASIDE THE SALE to be filed in the court which
issued the writ.
REDEMPTION (Secs. 27 & 28)
Right of Redemption:
1. Personal Property NONE; sale is absolute
2. Real Property there is a right of redemption
WHO may redeem (Sec. 27)
Only the following:
a. Judgment obligor, or his successor in interest, in
whole or any part of the property; OR
b. Redemptioner who is a creditor having a:
1) Lien by attachment on the property sold
subsequent to the lien under which the
property was sold,
2) Lien by judgment on the property sold
property was sold;
3) Lien by mortgage on the property sold
property was sold.
WHEN CAN REDEMPTION BE MADE?
BY THE JUDGMENT OBLIGOR: Within one (1) year from
the date of registration of the certificate of sale.
BY THE REDEMPTIONER:
1. Within one year from the date of registration of
the certificate of sale; or
2. Within sixty days from the last redemption by
another redemptioner
If the judgment obligor redeems, no further
redemption is allowed (Sec. 29).
The period of redemption is NOT suspended by an action
to annul the foreclosure sale.
CAN REDEMPTION BE PAID IN OTHER FORMS THAN
CASH?
YES. The rule is liberality in allowing redemption (aid
rather than defeat the right) and it has been allowed in
the case of a cashiers check, certified bank checks and
even checks.
The offer to redeem must be accompanied with a bona
fide tender or delivery of the redemption price.
However, a formal offer to redeem with a tender is not
necessary where the right to redeem is exercised

52

through the filing of a complaint to redeem in the
courts, within the period to redeem.
RIGHTS OF THE JUDGMENT DEBTOR:
1. Remain in possession of the property
2. Collect rents and profits
3. Cannot be Ejected
4. Use the property in the same manner it was
previously used
5. Make necessary repairs
Section 33. Deed and possession to be given at
expiration of redemption period; by whom
executed or given.
The PURCHASER is entitled to a CONVEYANCE AND
POSSESSION of the property if there is no
redemption. He is substituted to and acquires all
the rights, title, interest and claims of the
judgment obligor to the property at the time of
levy.
The deed of conveyance is what operates to
transfer to the purchaser whatever rights the
judgment debtor had in the property. The
certificate of sale after execution sale merely is a
memorial of the fact of sale and does not operate
as a conveyance.
The purchaser acquires no better right than what
the judgment debtor has in the property levied
upon. Thus, if the judgment debtor had already
transferred the property executed prior to the levy
and no longer has an interest in the property, the
execution purchaser acquires no right.
c. The fact that the property was exempt from

execution.
d. A third person has vindicated his claim to the
property.
REMEDIES OF THE JUDGMENT CREDITOR IN AID OF
EXECUTION
1.
If the execution is returned unsatisfied, he may

cause examination of the judgment debtor as to
his property and income (Section 36)
2.
He may cause examination of the debtor of the

judgment debtor as to any debt owed by him or
to any property of the judgment debtor in his
possession (Section 37)
3.
If after examination, the court finds that there

is property of the judgment debtor either in his
own hands or that of any person, the court may
order the property applied to the satisfaction of
the judgment (Section 37)
4.
If the court finds the earnings of the judgment

debtor are more than sufficient for his familys
needs, it may order payment in installments
(Section 40)
5.
The court may appoint a receiver for the

property of the judgment debtor not exempt
from execution or forbid a transfer or
disposition or interference with such property
(Section 41)
6.
If the court finds that the judgment debtor has

an ascertainable interest in real property either
as mortgagor, mortgagee, or otherwise, and his
interest
can
be
ascertained
without
controversy, the court may order the sale of
such interest. (Section 42)
7.
If the person alleged to have the property of

the judgment debtor or be indebted to him,
claims an adverse interest in the property, or
denies the debt, the court may authorize the
judgment-creditor to institute an action to
recover the property, forbid its transfer and
may punish disobedience for contempt (Section
43)
WHEN A THIRD PERSON IS IN POSSESSION, The

procedure is for the court to order a hearing and
determine the nature of such adverse possession.
Section 34. Recovery of price if sale is not
effective; revival of judgment.
THE PURCHASER MAY RECOVER THE PURCHASE
PRICE WHEN
1. The purchaser or his successor-in-interest
FAILS TO RECOVER POSSESSION of the
property or;
2. Purchaser after having acquired possession
is evicted due to:
a. Irregularities
in
the
proceedings
concerning the sale.
b. Reversal or setting aside of judgment.
Section 46. When Principal Bound By Judgment

Against Surety.
The principal is bound by the same judgment from the
time he has notice of the action or proceeding and has

53

been given an opportunity at the suretys request,
to join the defense.
committed by the defendant even if the remedies are

different.
Section 47. Effect Of Judgment Or Final Orders.

Refers to judgments which are considered as
conclusive and may be rebutted directly by means
of relief from judgment or annulment of judgment
or indirectly by offering them in evidence under the
parole evidence rule.
Under the doctrine of res judicata, no matter how

erroneous a judgment may be, once it becomes final, it
cannot be corrected. The only grounds are lack of
jurisdiction, collusion or fraud.
Par (A) refers to rule ON RES JUDICATA

judgments IN REM
JUDGMENT or
FINAL ORDER
EFFECT: CONCLUSIVE
AS TO
Against a specific
thing
Title to the thing
Probate of a will or
administration of
the estate of a
deceased person
In respect to the
personal, political,
or legal condition or
status of a
particular person
Par. (C) is known as conclusiveness of judgment or

rule of AUTER ACTION PENDENT
in
Will or administration
However, ONLY prima
facie evidence of the
death of the testator
or intestate
CONCLUSIVENESS OF
Appeal decision of MTC by filing notice of
JUDGMENT
appeal and pay appellate court docket fee
has the effect of
in the same MTC within 15 days from receipt
preclusion only of
of judgment
issues.
parties in both actions
may be the same
15 days from perfection of appeal, MTC
but the causes of
clerk transmits record to RTC
action are different.
Notice to parties that an appeal is being

taken from the decision of MTC
Condition, status or
relationship of the
person
Within 15 days from notice of appeal:

appellant submits memorandum to
the RTC
appellee files his own memorandum
15 days from receipt of appellants
memorandum
Par (B) is referred to as bar by former

judgment or RES JUDICATA in judgments IN
PERSONAM
RES JUDICATA - final judgments on the merits by a
court of competent jurisdiction is conclusive as to
the rights of the parties or their privies in all later
suits on points determined in the former judgment.
REQUISITES:
1. A FINAL judgment or order
2. JURISDICTION over the subject matter and
the parties by the court rendering it
3. Judgment UPON THE MERITS
4. Between the two cases:
IDENTITY OF PARTIES
IDENTITY OF SUBJECT MATTER
IDENTITY OF CAUSE OF ACTION
THERE IS IDENTITY OF CAUSE OF ACTION when the
two actions are based on the same delict or wrong
If uncontested,
judgment is
entered in the
book of entries
Any party may

appeal by filing a
petition for
review with the
RTC
BAR BY FORMER CONCLUSIVENESS OF

JUDGMENT
JUDGMENT
There is identity of There is ONLY identity of
parties, subject
PARTIES AND SUBJECT
matter and causes
MATTER
of action
The first judgment
constitutes as an
ABSOLUTE BAR TO
ALL MATTERS
directly adjudged
and those that
might have been
adjudged.

The first judgment is

conclusive only as to
matters directly adjudged
and actually litigated in
the first action. Second
action can be prosecuted.
54

Section 48. Effect Of Foreign Judgment Or Final
Orders:
THE EFFECT OF FOREIGN JUDGMENTS
Provided that the foreign tribunal had jurisdiction:
1. IN CASE OF JUDGMENT AGAINST A SPECIFIC
THING, the judgment is CONCLUSIVE upon
the TITLE TO THE THING;
2. IN CASE OF A JUDGMENT AGAINST A
PERSON, the judgment is PRESUMPTIVE
EVIDENCE of a right as between the parties
and their successors-in-interest by a
subsequent title.
4. No motion for extension of time to file a motion

for new trial or reconsideration shall be
allowed.
Section 3. How to Appeal.
By Notice of Appeal:
1. File a notice of appeal with the trial court.
2. The notice of appeal must indicate:
a. parties
b. judgment or final order appealed from
c. material date showing timeliness of
appeal
3. A copy served on the adverse party.
4. Payment in full of docket fees and other lawful
fees
In both instances, the judgment may be repelled by

evidence of want of jurisdiction, notice, collusion,
fraud or clear mistake of law or fact.
RULE 40
APPEAL FROM MUNICIPAL TRIAL COURTS TO THE
REGIONAL TRIAL COURTS
APPEAL FROM MTC TO RTC
ORDINARY APPEAL - an appeal by notice of appeal

from a judgment or final order of a lower court on
questions of fact and law.
APPEAL TO THE RTC
Mode of Appeal Notice of Appeal within fifteen
(15) days from receipt of decision.
After an appeal to the RTC has been perfected,
the MTC loses its jurisdiction over the case and
any motion for the execution of the judgment
should be filed with the RTC.
The Summary Rules no longer apply when the
cases is on appeal.
Section 2. When to Appeal.
1. Within 15 days after notice of judgment or
final order;
2. Where a record on appeal is required,
within 30 days from notice of judgment or
final order by filing a notice of appeal and a
record on appeal;
3. Period to appeal shall be interrupted by a
timely
motion
for
new
trial
or
reconsideration.
ORDINARY APPEAL
PETITION FOR
REVIEW
Matter of right
All the records are
elevated from the
court of origin
Notice of record on
appeal is filed with
the court of origin
Discretionary
No records are
elevated unless the
court decrees it
Filed with the CA
By Record on appeal:
1. for special proceedings such as probate; and
2. in such other cases where multiple appeals are
allowed as in partition and in expropriation.
Section 4. Perfection of Appeal; effect thereof.
Appeal is deemed perfected:
1. by notice of appeal: as to him, upon the filing of
the notice of appeal in due time;
2. by record on appeal: as to him, upon the
approval of the record on appeal filed in due
time.
Effect of a perfected appeal:
The court loses jurisdiction upon the perfection or
approval of appeal and when the period of appeal for
other parties expire.
Residual power of the court prior to the transmittal of
the original record or record on appeal:

55

1.
2.
3.
4.
5.
to issue orders for the preservation of the

rights of the parties which do not involve
matters litigated by appeal;
to approve compromise prior to the
transmittal of the record;
permit appeal by an indigent;
order execution pending appeal under Rule
39, Sec.2 ( motion for execution was filed
before the expiration of the period to
appeal;
allow withdrawal of the appeal.
Section 8. Appeal from orders dismissing case

without trial; lack of jurisdiction
1.
2.
3.
4.
5.
6.
Order dismissing an action without prejudice

Order of Execution
Judgments or final orders for or against one or more
of several parties or in separate claims while the main
case is pending
Orders disallowing or dismissing an Appeal
Interlocutory orders
Orders denying:
a. Petition for relief;
b. Motion for new trial or reconsideration; and
c. Motion to Set aside a judgment, by consent,
confession or compromise on the ground of
fraud, mistake, duress or any ground vitiating
consent.
Remedy in cases where appeal is not allowed

Special civil action of certiorari or prohibition if there is
lack or excess of jurisdiction or grave abuse of discretion
or mandamus if there is no performance of duty.
If lower court dismissed case without trial on the

merits:
RTC may:
1. Affirm, or
2. Reverse, in which case, it shall remand the
case for further proceedings.
INTERLOCUTORY ORDER An order which does not

dispose of the case but leave something else to be done
by the trial court on the merits of the case.
If dismissal is due to lack of jurisdiction over the

subject matter:
RTC may:
1. Affirm; if RTC has jurisdiction, shall try the
case on the merits as if the case was
originally filed with it, or
2. Reverse, in which case, it remand the case
for further proceedings.
Section 2. Modes of appeal.
If the case was tried on the merits by the lower

court without jurisdiction over the subject
matter:
RTC shall not dismiss the case if it has original
jurisdiction, but shall decide the case, and shall
admit amended pleadings or additional evidence.
A judgment based on compromise is not appealable and

is immediately executory.
Ordinary
Petition for
appeal
review
(appeal by writ [Rule 42]
of error)
Petition for
review on
certiorari
[Rule 45]
Case is decided
Case is
by the RTC in
decided by
its original
the MTC.
jurisdiction
Appealed to
Appealed to the
the RTC.
CA
Petition for
review with
the CA
The case
raises only a
question of
law
RULE 41
APPEAL FROM REGIONAL
TRIAL COURTS
APPEALABLE CASES
1. Judgments or final orders that completely
disposes of the case.
2. A particular matter in a judgment declared
by the Rules to be appealable.
NON APPEALABLE CASES
56

File a notice of File a verified
appeal or a
petition for
record on
review with
appeal with the the CA. Pay
court of origin
the docket
(RTC) and give
and lawful
a copy to the
fees, and P
adverse party. 500 as deposit
for costs with
the CA.
Furnish RTC
and adverse
party copy of
such (R 42).
File a verified
petition for
review on
certiorari
with the SC (R
45) Pay
docket and
lawful fees
and P 500 for
costs.
Submit proof
of service of a
copy to the
lower court
and adverse
party.
Within 15 days Within 15 days Within 15

from the notice from notice of days from
of the judgment the decision notice of the
for notice of
to be
judgment or
appeal and
reviewed or
order or
within 30 days
from the
denial of the
for records on denial of a MR MR or new
appeal. The
or new trial.
trial.
period for filing
is interrupted
by a timely
motion for
reconsideration or new
trial.
Section 7. Approval of record on appeal.

Procedure if the appeal is through a record on
appeal
1. file record on appeal
2. appellee may file an objection within 5 days
from his receipt thereof
3. if there is no objection the court may:
approve it as presented; OR
direct its amendment on its own or
upon the motion of the adverse party
4. if an amendment is ordered the appellant
must redraft the record within the time
ordered or if there is no time, within 10
days from receipt
5. submit the record for approval with notice
on the adverse party
The period to appeal is MANDATORY and
JURISDICTIONAL. Failure to appeal on time makes
the decision final and executory and deprives the
appellate court of jurisdiction.
However in few instances the court has allowed due

course to such appeals on strong and compelling reasons
of
justice.
RULE 42
PETITION FOR REVIEW FROM THE REGIONAL TRIAL
COURTS TO THE COURT OF APPEALS
Petition for review is not a matter of right but
discretionary on the CA. It may only give due course to
the petition if it shows on its face that the lower court
has committed an error of fact and/or law that will
warrant a reversal or modification of the decision or
judgment sought to be reviewed; OR dismiss the petition
if it finds that it is patently without merit, or prosecuted
manifestly for delay, or the questions raised therein are
too unsubstantial to require consideration.
It is merely discretionary on the CA to order the
elevation of the records. This is because until the
petition is given due course, the trial court may still
issue a warrant of execution pending appeal and in some
cases such as ejectment and those of Summary
Procedure, the judgments are immediately executory. It
is only when the CA deems it necessary that the Clerk of
the RTC will be ordered to elevate the records of the
case.
RULE 43
APPEALS FROM THE COURT OF TAX APPEALS AND THE
QUASI-JUDICIAL AGENCIES TO THE CA
Judgments and final orders or resolutions of the NLRC
are reviewable by the COURT OF APPEALS in an original
action for certiorari under Rule 65 (St. Martin Funeral
Home vs. NLRC, Sept. 16, 1998).
A party adversely affected by a decision or ruling of the
CTA en banc may file with the Supreme Court a verified
petition for review on certiorari pursuant to Rule 45
(Sec. 12, RA 9282).
RULE 44
57

ORDINARY APPEALED CASES
Section 9. Appellants reply brief.
Failure to file appellant's brief on time is a ground
for dismissal of the appeal.
If a motion to dismiss an appeal has been filed, it
suspends the running of the period for filing the
appellant brief, as the same would be unnecessary
should the motion be granted.
The failure of the appellant to make specific
assignment of errors in his brief or page references
to the record as required in this section is a ground
for dismissal of his appeal.
RTC, Sandiganbayan or CA
renders decision
Any party files a petition for review on

certiorari w/in 15 days from notice of
final judgment or order of lower court
or notice of denial of motion for
reconsideration or new trial
Appellant serves copies of petition on

adverse parties and to the lower court,
and pay the corresponding docket fees
Section 15. Questions that may be raised on

appeal.
The appeal can raise only questions of law or fact
that
1. were raised in the court below; and
2. are within the issues framed by the parties
thereon.
BRIEF vs. MEMORANDUM
BRIEF
MEMORANDUM
Ordinary appeals
Certiorari, Prohibition,
Mandamus, Quo
Warranto and Habeas
Corpus cases
Filed within 45 days
within 30 days
Contents specified
by Rules
Shorter, briefer, only

one issue involved - no
subject index or
assignment of errors just
facts and law applicable
SC may dismiss the petition or require

the appellee to comment
Section 1. Filing
of petition with
Supreme Court
Appeals to the SC can be

taken
from
a
If given due course, parties may
judgment
or
final
submit memoranda
order or resolution
of the CA, the
Sandiganbayan, the RTC or such
other courts as
SC may affirm, reverse, or modify
maybe authorized
judgment of the lower court
by law and only
by verified petition for review on certiorari on questions
of law except only in appeals from judgments of the RTC
in criminal cases wherein the penalty imposed is life
imprisonment or reclusion perpetua which shall be
elevated by ordinary appeal, or wherein the death
penalty is imposed which is subject to automatic
review.
GENERAL RULE: the findings of fact of the CA are final

and conclusive and cannot be reviewed on appeal to the
SC.
EXCEPTIONS to CONCLUSIVENESS OF FACTS:
RULE 45
APPEAL BY CERTIORARI TO THE SUPREME COURT
1. When the finding is grounded entirely on

speculations, surmise or conjecture;
2. When inference made is manifestly absurd,
mistaken or impossible;
3. When the judgment is premised on a
misrepresentation of facts;

58

4. When there is grave abuse of discretion in
the appreciation of facts;
5. When the findings of fact are conflicting;
6. When the CA in making its findings went
beyond the issues of the case and the same
is contrary to both the admissions of
appellants and appellees;
7. When the findings of fact of the CA are at
variance with those of the trial court, the
SC has to review the evidence in order to
arrive at the correct findings based on the
record;
8. When the findings of fact are conclusions
without citation of specific evidence on
which they are based;
9. When the facts set forth in the petition as
well as in the petitioners main and reply
briefs are not disputed by the respondents;
10. The findings of fact of the CA is premised
on the supposed evidence and is
contradicted by the evidence on record;
11. When
certain
material
facts
and
circumstances have been overlooked by the
trial court which, if taken into account,
would alter the result of the case in that
they would entitle the accused to
acquittal.
QUESTIONS OF LAW
QUESTIONS OF
FACT
doubt or controversy doubt or difference

as to what the law is arises as to the truth
on certain facts
or falsehood of facts,
or as to probative
value of the evidence
presented
if the appellate court
the determination
can determine the involves evaluation or
issue raised without
review of evidence
reviewing or
evaluating the
evidence
Can involve questions
query invites the
of interpretation of
calibration of the
the law with respect
whole evidence
to certain set of facts considering mainly the
credibility of
witnesses, existence
and relevancy of
specific surrounding
circumstances and
relation to each other
and the whole
probabilities of the
situation
speedy or adequate
remedy
Certiorari under Rule 45 vs. certiorari under Rule

64/65 ( special civil action)
CERTIORARI UNDER CERTIORARI UNDER
RULE 45
RULE 64/65
petition is based on
questions of law
It is a mode of appeal
petition raises the

issue as to whether
the lower court acted
without jurisdiction or
in excess of
jurisdiction or with
grave abuse of
discretion
Special civil action
Involves the review of Directed against an

the judgment award interlocutory order of
or final order on the
the court or where
merits
there is no appeal or
any other plain,
Must be made within filed not later than 60

the reglementary
days from notice of
period
judgment, order or
resolution appealed
from
Stays the judgment or
Unless a writ of
order appealed from preliminary injunction
or temporary
restraining order is
issued does not stay
the challenged
proceeding
The petitioner and the The parties are the
respondent are the
aggrieved party
original parties to the
against the lower
action, and the lower court or quasi-judicial
court or quasi-judicial
agency and the
agency is not
prevailing parties
impleaded
Motion for
Motion for
reconsideration is not reconsideration or for
required
new trial is required

59

4. Court may require the filing of a REPLY or such
other pleadings as it may deem necessary
5. Determination of FACTUAL ISSUES, the court may
delegate the reception of evidence on such
issues
to
any
of
its
members.
If a motion for
reconsideration or
new trial is filed, the
period shall not only
be interrupted but
another 60 days shall
be given to the
petitioner ( SC Admin.
Matter 002-03 )
The court is in the
exercise of its
appellate jurisdiction
and power of review
RULE 47
ANNULMENT OF JUDGMENTS OR FINAL ORDERS AND
RESOLUTIONS
Court exercises
original jurisdiction
Annulment of judgment is a remedy in law independent

of the case where the judgment sought to be annulled
was rendered and may be availed of though the
judgment has been executed.
RULE 46
ORIGINAL CASES
Section 2. To what actions applicable.
Under B.P. Blg. 129, the CA has original
jurisdiction to issue writs of mandamus, prohibition,
certiorari, habeas corpus and quo warranto, and
auxiliary writs or processes, whether or not they are
in aid of its appellate jurisdiction, and it has
exclusive original jurisdiction over actions for
annulment of judgments of Regional Trial Courts.
Section 4. Jurisdiction over

acquired.
JURISDICTION IS ACQUIRED:
person,
how
1. Over the PETITIONER - by filing of the

petition.
2. Over the RESPONDENT - by the service on
the latter of the order or resolution
indicating the courts initial action on the
petition and NOT by the service on him of
the petition or by his voluntary submission.
One important condition for the availment of this

remedy - the petitioner failed to move for new trial in,
or appeal from, or file a petition for relief against, or
take other appropriate remedies assailing the questioned
judgment or final order or resolution through no fault
attributable to him.
If he failed to avail of those other remedies without
sufficient justification, he cannot resort to annulment
provided in this Rule, otherwise he would benefit from
his own inaction or negligence.
Grounds for ANNULMENT OF JUDGMENT
1. extrinsic fraud or collateral fraud;
2. lack of jurisdiction;
Extrinsic fraud shall not be a valid ground if it was
availed of, or could have been availed of, in a motion for
new trial or petition for relief.
EXTRINSIC OR COLLATERAL FRAUD is any fraudulent act
of the prevailing party in the litigation which is
committed outside of the trial of the case, whereby the
defeated party has been prevented from exhibiting fully
and fairly presenting his side of the case.
EXTRINSIC
FRAUD
Section 5. Action by the court.

PROCEDURAL OUTLINE (original cases in the Court
of Appeals)
1. Filing of the petition
2. Order
to
acquire
jurisdiction
over
respondents OR Outright dismissal for
failure to comply to requirements also form
and payment of docket and other legal fees.
3. Require respondents to file COMMENT
within 10 days from NOTICE
LACK OF
JURISDICTION
Period of
Filing
action
4 years from Before it is barred

discovery
by laches or
estoppel
Effect of
judgment
Trial court
will try the
case
Section. 5. Action by the court.

Two stages:

Original action
may be refiled
60

1. A preliminary evaluation of the petition for
prima facie merit therein, and
2. The issuance of summons as in ordinary civil
cases and such appropriate proceedings
thereafter as contemplated in Sec. 6.
The rule allows the CA to dismiss the petition
outright as in special civil actions.
For the court to acquire jurisdiction over the
respondent, the rule requires the issuance of
summons should prima facie merit be found in the
petition and the same is given due course.
RULE 48
PRELIMINARY CONFERENCE
Section 3. Binding effect of the results of the
conference
In the CA, this procedural device may be availed of
not only in original actions but also in cases on
appeal wherein a new trial was granted on the
ground of newly discovered evidence. The CA can
act as a trier of facts, hence the preliminary
conference authorized is a convenient adjunct to
such power and function.
RULE 49
ORAL ARGUMENT
Section 3. No hearing or oral argument for
motions
Motions in the SC and the CA do not contain notices
of hearing as no oral arguments will be heard in
support thereof; and if the appellate court desires
to hold a hearing thereon, it will itself set the date
with notice to the parties.
RULE 50
DISMISSAL OF APPEAL
Section 1. Grounds for dismissal of appeal
With the exception of Section 1 (b) dismissal of an
appeal is directory and not mandatory.
Other grounds for the dismissal of an appeal are:
1. by agreement of the parties, as where the
case was amicably settled by them.
2. where the appealed case has become moot
or academic.
3. where the appeal is frivolous or dilatory.
Section 2. Dismissal of improper appeal to the Court of

Appeals
No transfer of appeals, erroneously taken to it or to the
Court of Appeals, whichever of these tribunals has
appropriate appellate jurisdiction, will be allowed. Also,
elevating such appeal by the wrong mode of appeal shall
be a ground for dismissal.
A resolution of the Court of Appeals dismissing the
appeal and remanding the case to the trial court for
further proceedings is merely interlocutory, hence a
motion for its reconsideration filed year later may be
entertained and granted
Section 3. Withdrawal of Appeal
Court of Appeals may dismiss the appeal outright even
without motion. The remedy if dismissed for improper
appeal is to refile it in the proper forum but has to be
within the prescribed period.
RULE 51
JUDGMENT
Law of the Case the opinion delivered on a former
appeal. It means that whatever is once irrevocably
established, as the controlling legal rule or decision
between the same parties in the same case, continues to
be the law of the case, whether correct on general
principles or not, so long as the facts on which such
decision was predicated continue to be the facts before
the court.
But this rule does not apply to resolutions rendered in
connection with the case wherein no rationale has been
expounded on the merits of that action.
Section 5. Form of Decision
The requirement for the statement of facts and the law
refers to a decision or for that matter a final resolution.
The same are not required on minute resolutions since
these usually dispose of the case not on its merits but on
procedural or technical considerations.
Although the court may, if it feels necessary, briefly
discuss the matter on the merits in an extended
resolution.
With respect to petitions for review and motions for

reconsideration, the Constitution merely requires a
statement of the legal basis for the denial thereof or

61

refusal of due course thereto. The court may opt,
but it is not required to issue an extended
resolution thereon.
Section
6.
HARMLESS
ERROR
The court, at every stage of the proceeding, must
disregard any error or defect which does not affect
the substantial rights of the parties such as error in
admission or exclusion of evidence or error or
defect in the ruling or order.
Section 8. Questions that may be decided
Only errors claimed and assigned by a party will be
considered by the court, except errors affecting its
jurisdiction over the subject matter. To this
exception has now been added errors affecting the
validity of the judgment appealed from or the
proceedings therein.
Even if the error complained of by a party is not
expressly stated in his assignment of errors but the
same is closely related to or dependent on an
assigned error and properly argued in his brief such
error may now be considered by the court.
RULE 52
MOTION FOR RECONSIDERATION
The rules now prohibit a second motion for
reconsideration.
Sec. 3 provides a time limit of 90 days for the
resolution of a motion for reconsideration filed with
the Court of Appeals from the date the same was
submitted for resolution, which is normally the
filing of the last pleading required by the rules of
court or the expiration of such period.
Rules now requires the service of the motion to the
adverse
party
RULE 53
NEW TRIAL
Filing of a motion for new trial is at any time after
the perfection of the appeal from the decision of
the lower court and before the Court of Appeals
loses jurisdiction over the case
The ground is newly discovered evidence which
could not have been discovered prior to the trial in
the court below by the exercise of due diligence
and of such character as would probably alter the
result.
RULE 56
PROCEDURE IN THE SUPREME COURT
A. ORIGINAL CASES
Rule specifically states what cases may be originally
filed with the Supreme Court
1. petition for certiorari, prohibition, mandamus,
quo warranto, habeas corpus;
2. disciplinary proceedings against members of the
judiciary and attorneys
3. cases affecting ambassadors, other public
ministers and consuls
B. APPEALED CASES Mode of Appeal
In criminal cases where the penalty imposed is death or
reclusion perpetua, an appeal made to the Supreme
Court is through a notice of appeal filed with the RTC in
all other cases, an appeal made to the supreme court is
through a petition for review on certiorari.
PROVISIONAL REMEDIES
Also known as ancillary or auxiliary remedies, are writs
and processes available during the pendency of the
action which may be resorted to by a litigant to preserve
and protect certain rights and interests therein pending
rendition, and for purposes of the ultimate effects, of a
final judgment in the case.
The following are the provisional remedies provided for

in the Rules of Court
1. Preliminary Attachment (Rule 57)
2. Preliminary Injunction (Rule 58)
3. Receivership (Rule 59)
4. Replevin (Rule 60)
5. Support
Pendente
Lite
(Rule
61)
PD 1818 prohibits the issuance of injunctive writs not
only against government entities but also against any
person or entity involved in the execution,
implementation,
and
operation
of
government
infrastructure
projects.
RULE 57
PRELIMINARY ATTACHMENT
The proper party may have the property of the adverse
party attached at the commencement of the action or at
any time before entry of judgment.

62

WHEN issued
1. In actions for recovery of a specified sum of
money or damages, except moral and
exemplary, on a cause of action arising from
law, contract, quasi-contract, delict or
quasi-delict against a party about to depart
from the Phils. with intent to defraud his
creditors;
2. In actions for recovery of money or property
embezzled or fraudulently converted to his
own use by a public officer, or an officer of
a corp., or an attorney, factor, broker,
agent or clerk, in the course of his
employment as such, or by any person in a
fiduciary capacity;
3. In actions to recover property unjustly
taken or concealed, when the property or
any of its part, has been concealed or
disposed of to prevent its being found by
the applicant or any authorized person;
4. In actions against a person guilty of fraud in
incurring or performing an obligation upon
which the action is based;
5. In actions against a party who has removed
or disposed of his property, or is about to
do so, with intent to defraud his creditors;
6. In actions against non-residents not found in
the Phils., or on whom summons is served
by publication.
RULE 58
PRELIMINARY INJUNCTION
Preliminary Injunction an order granted at any
stage of an action or proceeding prior to the
judgment requiring a party or a court, agency or a
person to refrain from a particular act or acts.
PRELIMINARY MANDATORY Injunction an order
requiring the performance of a particular act or
acts.
would work injustice to the applicant if not

enjoined; or
3. the acts sought to be enjoined probably violates
the rights of the applicant respecting the subject
of the action and tending to render the
judgment ineffectual.
Section 5.
There must be prior notice to the person sought to be
enjoined and a hearing before preliminary injunction
may be granted.
If great or irreparable injury would result to the
applicant, the court may issue ex parte a temporary
restraining order, effective only for 20 days from service
on the party sought to be enjoined.
If the matter is of extreme urgency and the applicant
will suffer grave injustice and irreparable injury, the
judge may issue a TRO effective only for 72 hours from
issuance.
Its effectivity may be extended after
conducting a summary hearing w/in the 72-hrs period
until the application for preliminary injunction can be
heard.
The total period of effectivity of the TRO shall not
exceed 20 days, including the 72 hours.
If application is denied or not resolved within said
period, the TRO is deemed automatically vacated.
Effectivity of TRO is not extendible. There is no need of
a judicial declaration to that effect.
A TRO issued by the CA or any of its members is
effective for 60 days from service on the party sought to
be enjoined.
A TRO issued by the SC or a member therof is effective
until further orders.
GROUNDS FOR OBJECTION
1. insufficiency;
2. if injunction would cause irreparable damage to
the person enjoined while the applicant can be
fully compensated for such damages, PROVIDED
the former files a BOND.
Distinctions
Grounds
1. applicant is entitled to the relief
demanded; or
2. commission,
continuance
or
nonperformance of the act complained of
INJUNCTION
PROHIBITION
directed against a
party in the action
Directed against a
court, tribunal or a
person exercising
judicial powers

63

does not involve
jurisdiction of the
court
Based on the ground

that the court against
whom the writ is
sought had acted
without or in excess of
jurisdiction
it may be the main

action itself or just a
provisional remedy
Always the main

action
RULE 59
RECEIVERSHIP
WHEN MAY BE GRANTED
1. applicant has an interest in the property or
fund subject of the proceeding and such
property is in danger of being lost or
materially injured unless a receiver is
appointed;
2. in foreclosure of mortgage, when the
property is in danger of being wasted or
dissipated and that its value is probably
insufficient to discharge the mortgage debt
or that it has been agreed upon by the
parties;
3. after judgment, to preserve the property
during the pendency of an appeal or to
dispose of it accdg. to the judgment or to
aid execution;
4. when appointment of receiver is the most
convenient
and
feasible
means
of
preserving, administering or disposing of the
property in litigation.
A person who refuses or neglects to deliver property
within his control and which is the subject of the
action to the receiver may be punished for
contempt and liable to the receiver for the money
or the value of the property PLUS damages.
The receiver shall also file a bond before entering
upon his duties separate from the bond filed by the
applicant.
After 5 days and the adverse party failed to object or his

counter-bond is insufficient, the sheriff shall deliver the
property to the applicant.
Distinctions
REPLEVIN
ATTACHMENT
May be sought only

when the principal
action is recovery of
personal property.
Available even if
recovery of property is
only incidental to the
relief sought.
Can be sought only when May be resorted to even

defendant is in actual
if the property is in
possession of the
possession of a third
property.
person.
CANNOT be availed of Can be AVAILED of even
when property is in
if property is in
custodia legis
CUSTODIA LEGIS.
Available before
defendant answers
Available from
commencement but
before entry of
judgment
Bond is DOUBLE the

value of the property
Bond is FIXED by the

court
RULE 61
SUPPORT PENDENTE LITE
When may be applied for: at the commencement of the
action or at any time before judgment or final order.
Failure to comply with an order granting support
pendente lite may warrant the issuance of an order of
execution against the non-complying party. He may
likewise be liable for contempt.
See matrix on provisional remedies more detailed
information.
RULE 60
REPLEVIN
The sheriff shall retain the property for 5 days.
Within such period, the adverse party may object to
the sufficiency of the applicants bond or surety or
he may file a counter-bond.

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MEMORY AID IN REMEDIAL LAW

REMEDIAL LAW COMMITTEE