Professional Documents
Culture Documents
CIVIL PROCEDURE
RULE 1
GENERAL PROVISIONS (B)
ACTION IN ACTION IN ACTION
Statutes regulating the procedure of REM PERSONAM QUASI IN REM
courts will be construed as applicable to
actions pending and undetermined at the Directed Directed Directed
time of their passage so long as vested against the against against
rights will not be impaired. thing itself particular particular
persons persons
Under the 1987 Constitution, the rule-
Judgment is Judgment is Judgment
making power of the Supreme Court has binding on the binding only binding upon
the following limitations: whole world upon parties particular
1. shall provide a simplified and impleaded or persons, but
inexpensive procedure for the their the real motive
speedy disposition of cases; successors in is to deal with
2. Uniform for all courts of the interest real property
same grade, and or to subject
3. Shall not diminish, increase or said property
modify substantive rights (Art. to certain
claims.
VIII Sec. 5[5]).
Ex. Land Ex. action to Ex. Unlawful
registration recover detainer or
Section 3. Cases governed. case; probate damages; forcible entry;
ACTION CLAIM proceedings action for judicial
for allowance breach of foreclosure of
An ordinary suit in a A right possessed by of a will. contract mortgage.
court of justice one against another
(D)
LOCAL ACTION TRANSITORY Section 6. Construction.
ACTION
General Rule: Liberal construction .
Must be brought in a Generally, must be Exceptions:
particular place, in brought where the a. reglementary periods
the absence of an party resides b. rule on forum shopping
agreement to the regardless of where
contrary the cause of action
arose
RULE 2
Ex. Action to recover Ex. Action to recover CAUSE OF ACTION
real property sum of money
Section 2. Cause of Action, defined.
Section 5. Commencement of action. Essential elements of cause of action
1. Existence of a legal right of the
An action is commenced by: plaintiff;
1. filing of the complaint (the date of 2. Correlative legal duty of the
the filing determines whether or not defendant to respect one’s right;
the action has already prescribed); 3. Act or omission of the defendant
and in violation of the plaintiff’s
2. payment of the requisite docket fees legal right; and
(determined on the basis of the 4. Compliance with a condition
amount of the claim including the precedent.
damages indicated in body or the
prayer of the pleading) CAUSE OF ACTION RIGHT OF ACTION
delict or wrongful act remedial right or right
It is not simply the filing of the or omission committed to relief granted by
by the defendant in law to a party to
complaint or the appropriate initiatory
violation of the institute an action
pleading but also the payment of the primary rights of the against a person who
prescribed docket fee that vests a trial plaintiff has committed a delict
court with jurisdiction over the subject or wrong against him
matter or nature of the action. The reason for the the remedy or means
action afforded or the
The court may allow the payment of the consequent relief
deficient docket fee within a reasonable the formal statement right that is given –
period but not beyond the applicable of alleged facts the right to litigate
prescriptive or reglementary period. because of the
occurrence of the
alleged facts
An action can be commenced by filing
Determined by facts determined by
the complaint by registered mail. In as alleged in the substantive law
which case, it is the date of mailing that complaint and not the
is considered as the date of filing, and prayer therein
not the date of the receipt thereof by
the clerk of court. RELIEF REMEDY SUBJECT
MATTER
The date of the filing of an amended the redress, the the thing,
complaint joining additional defendant is protection, procedure or wrongful act,
the date of the commencement of the award or type of contract or
action with regard to such additional coercive action which property which
defendant. measure which may be is
SPLITTING OF CAUSE OF ACTION – is the Par. (b) requires that: only causes of
practice of dividing one cause of action action in ordinary civil actions may be
into different parts and making each joined, obviously because they are
part subject of a separate complaint. subject to the same rules.
Applies NOT only to complaints but also Par. (c) As long as one cause of action
to counterclaims and crossclaims. falls within the jurisdiction of the RTC,
the case can be filed there even if the
MTC has jurisdiction over the others.
Remedy against splitting a single cause
of action: Pars. (d) embodies the TOTALITY RULE
A. Motion to dismiss on the ground of: Section 33 BP129, as amended by RA
Litis pendentia, if the first 7691 - Where there are several claims or
complaint is still pending (Rule causes of actions between the same or
16, Sec. 1[e]); or different parties, embodied in the same
Res judicata, if any of the complaint, the amount of the demand
complaints is terminated by final shall be the totality of the claims in all
judgment (Rule 16, Sec. 1[f]) the causes of actions, irrespective of
whether the causes of action arose out
B. An answer alleging either of the of the same or different transactions.
above-cited grounds as affirmative
defense (Rule 16, Sec. 6) SPLITTING OF JOINDER OF
CAUSE OF ACTION CAUSES OF ACTION
General Rule on Divisible Contract
A contract to do several things at several There is a single cause Contemplates several
times is divisible, and judgment for a of action causes of action
single breach of a continuing contract is
PROHIBITED. Causes ENCOURAGED.
not a bar to a suit for a subsequent
multiplicity of suits Minimizes multiplicity
breach. and double vexation of suits and
on the part of the inconvenience on the
Doctrine of Anticipatory Breach defendant parties
Even if the contract is divisible in its
performance and the future periodic
deliveries are not yet due, if the obligor Section 6. Misjoinder of causes of
has already manifested his refusal to action.
comply with his future periodic Not a ground for dismissal of an action. A
obligations, “the contract is entire and misjoined cause of action may be
severed and proceeded with separately. the party entitled to the avails of the
suit.
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. Impleading the beneficiary as a party in
the suit is now mandatory, in cases
RULE 3 allowed to be prosecuted or defended by
PARTIES TO CIVIL ACTIONS a representative.
BUT with the assistance of his parents or JOINT DEBTORS – indispensable party
guardian. with respect to own share and a
necessary party with respect to the
share of the others.
SUBSTITUTION shall be served upon the 1. The action must primarily be for
parties substituted for the court to recovery of money, debt, or
acquire jurisdiction over the substitute interest thereon, and not where
party the money sought therein is
merely incidental thereto.
The action contemplated here is one However, execution shall not issue in
brought against the public officer in his favor of the winning party. It should be
official capacity. filed as a claim against the estate of the
decedent.
C. Supervening Incompetence or
incapacity of a party (Sec. 18) Section 21. Indigent party.
The action shall continue to be
prosecuted by or against him, personally Indigent – one who has no property or
or assisted by the corresponding income sufficient for his support aside
guardian. from his labor, even if he is self-
supporting when able to work and in
D. Transfer of interest (Sec. 19) employment. He need not be a pauper
Substitution of parties in this section is to entitle him to litigate in forma
NOT mandatory, it being permissible to pauperis.
continue the action by or against the
original party in case of transfer of While the authority to litigate as
interest pendente lite. Unless the an indigent party may be granted upon
substitution by or the joinder of the an ex parte application and hearing, it
transferee is required by the court, may be contested by the adverse party
failure to do so does not warrant the at any time before judgment is
dismissal of the case. A transferee rendered.
pendente lite is a proper, and not an
indispensable party. RULE 4
VENUE OF ACTIONS
The case will be dismissed if the interest
of plaintiff is transferred to defendant VENUE – the place where an action must
UNLESS there are several plaintiffs, in be instituted and tried.
which case, the remaining plaintiffs can
proceed with their own cause of action. VENUE JURISDICTION
Section 20. Action on contractual Place where the action Power of the court to
money claims. is instituted hear and decide a case
Procedural Substantive
Filing of verified
complaint with the The Court should not dismiss the
MTC complaint or counterclaim if they are
not verified. The requirement is merely
a formal one, and not jurisdictional. It
court may court may should therefore simply direct the party
summon the dismiss the case
defendant outright concerned to have it verified.
Section 3. Complaint.
COMPLAINT – is a concise statement of
the ultimate facts constituting the
plaintiff’s cause or causes of action,
with
Filing of complaint
KATARUNGANG PAMBARANGAY
w/ the Punong PROCEDURE
Barangay (PB)
W/in the next working day At any time during the
Proceedings…
Arbitration Hearings
Mediation (hearing)
Failure of Settlement
mediation
efforts
One which arises out It does not arise out of The dismissal of the complaint carries
of or is necessarily nor is it necessarily with it the dismissal of a cross-claim
connected with the connected with the which is purely defensive, but not a
transaction or subject matter of the cross-claim seeking affirmative relief.
occurrence that is the opposing party’s
subject matter of the claim.
opposing party’s
claim. Cross Claim Counterclaim 3rd-party
Complaint
It does not require for It may require for its
its adjudication the adjudication the Against a co- Against an Against a
presence of third presence of third party opposing party person not a
parties of whom the parties over whom the party to the
court cannot acquire court cannot acquire action
jurisdiction. jurisdiction.
Must arise out May arise out of Must be in
It is barred if not set It is NOT barred even of the or be necessarily respect of
up in the action. if not set up in the transaction connected with the
action. that is the the transaction opponent’s
subject matter or that is the claim
Need not be Must be answered, of the orig. subject matter (Plaintiff)
answered; no default. otherwise, the action or of a of the opposing
defendant can be counterclaim party’s claim, in
declared in default. therein. which case, it is
called a
compulsory
GENERAL RULE: A compulsory
counterclaim, or
counterclaim not set up in the answer is it may not, in
deemed barred. which case it is
called a
EXCEPTION: If it is an after-acquired permissive
counterclaim, that is, such claim counterclaim.
matured after filing of the answer. In
this case, it may be pleaded by filing an Section 10. Reply.
amended answer or a supplemental
answer or pleading. REPLY - the response of the plaintiff to
the defendant’s answer.
deemed controverted. Hence, the filing Summons to new party (third, fourth,
of the reply is optional except for the etc.) is needed for the court to obtain
denial of the genuineness and due jurisdiction over his person, since he is
execution of an actionable document not an original party.
used as defense in the answer.
Where the trial court has jurisdiction
Section 11. Third (fourth, etc.) – party over the main case, it also has
complaint. jurisdiction over the third party
complaint, regardless of the amount
THIRD (FOURTH,ETC.) – PARTY involved as a third party complaint is
COMPLAINT – a claim that a defending merely auxiliary to and is a continuation
party may, with leave of court, file of the main action (Republic v. Central
against a person not a party to the Surety & Insurance Co. L-27802, Oct. 26,
action for contribution, indemnity, 1968).
subrogation or any other relief, in
respect of his opponent’s claim. Section 12. Bringing new parties.
The amended or superseded, original The 15-day period begins to run from
pleading is not expunged but remains on receipt of summons.
the record although the admission of the
amended pleading amounts to Section 3. Answer to amended
withdrawal of the original pleading. complaint.
1. If the filing of an amended
RULE 11 complaint is a matter of right -
WHEN TO FILE RESPONSIVE PLEADINGS within 15 days from service of
the amended complaint.
Answer to the complaint 2. If the filing of the amended
1. Within 15 days after service of complaint is NOT a matter of
summons, UNLESS a different period right – within 10 days counted
is fixed by the Court (Sec. 1) from notice of the court order
admitting the same.
2. In case the defendant is a foreign
private juridical entity: If no new answer is filed by the
a. if it has a resident agent – defendant in case an amendment has
within 15 days after service been made after he had filed his answer,
of summons to him the original answer of the defendant
b. if it has no resident agent, may serve as the answer to the amended
but it has an agent or officer complaint, and hence, cannot be
in the Philippines – within 15 declared in default.
days after service of
summons to said agent or Section 5. Answer to third (fourth,
officer etc.)-party complaint.
c. if it has no resident agent The third-party defendant is served with
nor agent nor officer – in summons just like the original
which case service of defendant, hence, he also has 15, 30, 60
summons is to be made on days from service of summons, as the
the proper government case may be, to file his answer.
office which will then send a
copy by registered mail to Section 7. Answer to supplemental
the home office of the complaint.
foreign private corporation – Leave of court is required in filing, the
within 30 days after receipt court may fix a different period for
of summons by the home answering the supplemental complaint in
office of the foreign private lieu of the reglementary 10-day period.
entity.
Section 10. Omitted counterclaim or
3. In case of service of summons by cross-claim.
publication – within the time The pleader may set up a counterclaim
specified in the order granting leave or cross-claim by amendment before
to serve summons by publication, judgment when he fails to set it up by
which shall NOT be less than 60 days reason of oversight, inadvertence, or
after notice (Rule 14, Sec.15). excusable neglect ort when justice
requires. Leave of court is necessary.
4. In case of a non-resident defendant
on whom extraterritorial service of RULE 12
summons is made, the period to BILL OF PARTICULARS
answer should be at least 60 days.
They can be served only under the three 2. Proof of service by ordinary mail:
modes. Affidavit of the person mailing;
demands a relief
plaintiff must obtain the which consists
appointment of a guardian wholly or in part in
ad litem for him. excluding the
defendant from
any interest in any
Service upon Serve on officer having property within the
prisoner management of the jail or Phil; or
prison property of
defendant has
Service upon To the president, been attached in
domestic private managing partner, general the Phil.
juridical entity manager, corporate
ENTITY secretary, treasurer, or Mode of service
in-house counsel. a. with leave of court
NOTE: Service upon a served outside the
person other than those Phil. By personal
mentioned is invalid and service; or
does not bind the b.with leave of court
corporation. The serve by publication
enumeration is in a newspaper of
EXCLUSIVE. general circulation,
in which case copy of
Service upon Serve on resident agent ; the summons and
foreign private or if none; on gov’t order of court must
juridical entity official designated by law; also be sent by
or registered mail to
on any officer or agent of the last known
the corporation within the address of
Philippines. defendant; or
c. any other manner the
Service upon in case defendant is the court deem
public Republic of the sufficient.
corporations Philippines - by serving
upon the Solicitor General
in case of a province, city Service upon a Substituted service or
or municipality, or like resident with leave of court,
public corporations – by temporarily out of personal service out of
serving on its executive the Phil. the Phil. as under
head, or on such other extraterritorial service
officer or officers as the
law or the court may Service upon an With leave of court, by
direct. unknown publication in a
defendant or newspaper of general
Extraterritorial Requisites whose circulatiuon
service a. defendant does whereabouts are
not reside or is unknown
not found within
the Phil.
b. he action either: Section 20. Voluntary appearance.
affects the personal
status of plaintiff; Any form of appearance in court, by the
relates to or the defendant, by his agent authorized to do
subject of which is so, or by attorney, is equivalent to
property within the service of summons EXCEPT where such
Philippines in appearance is precisely to object to the
which defendant jurisdiction of the court over the person
has a lien or
of the defendant.
interest;
9. Claim or demand has been paid, 1. Those cases where the court may
waived, abandoned, or otherwise dismiss a case motu proprio
extinguished (Sec. 1, Rule 9)
10. Claim is unenforceable under the 2. Such ground appears in the
Statute of Frauds allegations of the complaint or in
11. Non-compliance with a condition plaintiff’s evidence
precedent for filing claim
REQUISITES OF LITIS PENDENTIA
1. Parties to the action are the
same
MOTION TO DISMISS MOTION TO DISMISS
2. There is substantial identity in
UNDER RULE 16 UNDER RULE 33 the cause of action and relief
(demurrer to sought
evidence) 3. The result of the first action is
determinative of the second in
Grounded on based on insufficiency any event and regardless of
preliminary of evidence. which party is successful
objections.
Motion to dismiss may be filed in either
may be filed by any May be filed only by suit, not necessarily in the one instituted
defending party the defendant against first.
against whom a claim the complaint of the
is asserted in the plaintiff.
action. REQUISITES OF RES JUDICATA
1. Previous final judgment
should be filed within May be filed only after 2. Jurisdiction over the subject
the time for but prior the plaintiff has matter and the parties by the
to the filing of the completed the court rendering it
answer of the presentation of his 3. Judgment upon the merits
defending party to the evidence. 4. In a case prosecuted between
pleading asserting the same parties
claim against him. 5. Involving the same subject
matter
If denied, defendant If denied, defendant
6. Same cause of action
answers, or else he may present evidence
may be declared in if granted, plaintiff
default appeals and the Order There could be res judicata without a
If granted, plaintiff of the dismissal is trial, such as in a judgment on the
may appeal or if reversed, the pleadings (Rule 34); a summary
subsequent case is not defendant loses his judgment (Rule 35); or an order of
barred, he may re-file right to present dismissal under Section 3 of Rule 17.
the case evidence.
When the ground for dismissal is that the
Effect of motion to dismiss: A motion to complaint states no cause of action,
dismiss hypothetically admits the truth such fact can be determined only from
of the facts alleged in the complaint. the facts alleged in the complaint.
However, such admission is limited only Where the plaintiff has not exhausted
to all material and relevant facts which all administrative remedies, the
are well pleaded in the complaint. complaint not having alleged the fact of
such exhaustion, the same may be
An action cannot be dismissed on a dismissed for failure to state a cause of
ground not alleged in the motion even if action.
said ground is provided for in Rule 16.
Non-compliance with P.D. 1508
EXCEPT: (Katarungang Pambarangay Law) may
result to dismissal of the case on the
he manifests his
intention to have his
counterclaim resolved
in the same action
When non-appearance of a party may Failure to file pre-trial brief has the
be excused (Sec.4): same effect as failure to appear at the
1. If a valid cause is shown pre-trial.
therefore
2. If a representative shall appear Record of pre-trial. The contents of the
in his behalf fully authorized in PRE-TRIAL order shall control the
writing to: subsequent course of the action, UNLESS
a. Enter into an amicable modified before trial to prevent
settlement manifest injustice.
b. Submit to alternative modes
of dispute resolution A party is deemed to have waived the
c. Enter into stipulations or delimitations in a pre-trial order if he
admissions of facts and of failed to object to the introduction of
documents evidence on an issue outside of the pre-
trial order, as well as in cross-examining
A special authority for an attorney to the witness in regard to said evidence.
compromise is required under Sec. 23,
Rule 138. Under Art. 1878 (c) of the FOR CHART ON PRE-TRIAL PLS. SEE THE NEXT
Civil Code, a special power of attorney PAGE.
is required.
No Amicable Failure to
Settlement Settlement Appear
Agreements
made by parties; If plaintiff is If defendant
Amendments to Absent, when is absent,
pleading; so required to court may
Schedule of trial attend, the hear evidence
court may of plaintiff
dismiss the ex parte
case
TRIAL
If evidence is insufficient to
prove plaintiff’s cause of
Court action or defendant’s
renders counterclaim, court rules in
decision favor of either one or
dismisses the case
2.
2.
Whether or not the intervenor’s
rights may be fully protected in
a separate proceeding.
RULE 19
INTERVENTION The interest which entitles a person to
intervene in a suit must be on the
WHO may intervene? matter in litigation and of such direct
and immediate character that the
1. One who has legal interest in the intervenor will either gain or lose by the
matter in litigation direct legal operation and effect of the
2. One who has legal interest in the judgment.
success of either of the parties,
3. One who has an interest against
both parties
4. One who is so situated as to be INTERVENTION INTERPLEADER
adversely affected by a
An ancillary action. An original action.
distribution or other disposition
of property in the custody of the Proper in any of the Presupposes that the
court or of an officer thereof. four situations plaintiff has no
Depositions under this Rule are also A party may serve written
taken conditionally, to be used at the interrogatories:
trial only in case the deponent is not 1. WITHOUT LEAVE OF COURT –
available. after answer has been served,
for the first set of
Depositions under this Rule do not prove interrogatories.
the existence of any right and the 2. WITH LEAVE OF COURT – before
testimony perpetuated is not in itself answer has been served
conclusive proof, either of the existence (REASON: at that time, the
of any right nor even of the facts to issues are not yet joined and the
which they relate, as it can be disputed facts are not yet clear,
controverted at the trial in the same when more than one set of
manner as though no perpetuation of interrogatories is to be served.)
testimony was ever had. However, in the
absence of any objection to its taking, A judgment by default may be rendered
and even if the deponent did not testify against a party who fails to answer
at the hearing, the perpetuated written interrogatories
testimony constitutes prima facie proof
of facts referred to in the deposition.
1. To make corrections of
clerical errors, not
JUDGMENT- final consideration and substantial amendments, as
determination by a court of the rights of by an amendment nunc pro
the parties, upon matters submitted to it tunc.
in an action or proceeding. 2. To clarify an ambiguity
which is borne out by and
The date of finality of the judgment or justifiable in the context of
final order shall be deemed to be the the decision.
date of its entry. 3. In judgments for support,
which can always be
REQUISITES OF A JUDGMENT: amended from time to time.
1. It should be in writing, personally
and directly prepared by the judge
2. Must state clearly and distinctly the MANNER OF ATTACKING JUDGMENTS:
facts and the law on which it is
based 1. Direct attack
3. It should contain a dispositive part a. before finality
and should be signed by the judge 1. motion for new trial or
and filed with the clerk of court. reconsideration;
2. appeal
PROMULGATION- the process by which a b. after finality
decision is published, officially 1. relief from judgment, rule
announced, made known to the public or 38
delivered to the clerk of court for filing, 2. annulment of judgment,
coupled with notice to the parties or Rule 47.
their counsel.
2.Collateral attack
MEMORANDUM DECISION- a decision of
the appellate court which adopts the
findings and the conclusion of the trial
court.
JUDICIAL COMPROMISE
PROMULGATION OF JUDGMENT
• A judgment based on a
compromise which has the force
Court Renders Decision
of law and is conclusive between
parties.
• Not appealable.
Filing appeal within
Losing Party 15/30 days from
A JUDGMENT is considered RENDERED notice of judgment
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 Accepts Within 15/30 days
established procedural rule. decision from notice of
without further judgment:
contest Motion for
The power to amend a judgment is reconsideration; or
inherent to the court before judgment motion for new trial
becomes final and executory.
Court
After judgment has become executory, maintains
the court cannot amend the same decision
Court grants motion:
1.modifies decision; or
EXCEPT: 2.grants new trial
If no appeal is
taken or did
not avail of
2005 CENTRALIZED BAR OPERATIONSremedies, EXECUTIVE COMMITTEE AND SUBJECT
CHAIRPERSONS judgment
Maricel Abarentos (Over-all Chairperson), Ronaldbecomes Jalmanzar
final (Over-all Vice Chair), Yolanda
Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo
Losing party may
and executory(VC-Finance), Elaineappeal
Masukat (VC-
within the
EDP), Anna Margarita Eres (VC-Logistics) Jonathan
Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla remaining period
(Civil Law),
Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial
Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)
San Beda College of Law
52
1.Land Registration
MOTION FOR RECONSIDERATION 2.Special Proceedings
Purpose: To reconsider or amend 3. Order of Execution
judgment or final order
GROUNDS: GROUNDS:
WHEN to file: within period for taking an i. FAME FAME
appeal ii. Newly discovered
evidence
WHERE to file: with the trial court WHEN AVAILED OF: WHEN AVAILED OF:
which rendered the judgment or final Within the time to within 60 days from
order sought to be reconsidered appeal knowledge of the
judgment AND
RULE 38
RELIEF FROM JUDGMENTS, ORDERS, OR within 6 months from
entry of judgment
OTHER PROCEEDINGS
If denied, the order If denied, the order
of denial is NOT denying a petition for
REMEDIES AGAINST FINAL AND appealable, hence relief is NOT
EXECUTORY JUDGMENTS OR ORDERS remedy is appeal appealable; the
from the judgment remedy is appropriate
1. Petition for Relief from civil action under Rule
Judgment (Rule 38) 65
2. Annulment of judgments or final Legal remedy Equitable remedy
orders or resolutions (Rule 47) on Motion need not be Petition must be
the ground of: verified verified
o Extrinsic fraud, to be filed
within 4 years from the TWO HEARINGS UNDER RULE 38
discovery of the fraud; 1. Hearing to determine whether
o Lack of jurisdiction, before the judgment should be set aside
it is barred by laches or 2. If yes, a hearing on the merits of
estoppel the case.
3. Direct or collateral attack
against a void or voidable The period fixed by Rule 38 is non-
judgment extendible and is never interrupted.
FINAL JUDGMENT OR ORDER- one which SPECIAL JUDGMENT – one that requires
disposes of the whole subject matter or the performance of an act OTHER THAN:
1. The payment of money; and
Judgment is If the winning 2. The sale of real or personal
executed by party does not property
motion within move for Section 1. Execution Upon Judgments
5 years from execution w/in
date of its 5 years but
and Final Orders.
entry before 10
years from the EXECUTION ISSUES AS A MATTER OF
date of entry RIGHT:
of judgment, 1. on motion
Execution is a the same can 2. upon a judgment or order that
matter of right only be revived disposes of the action or
after by means of a proceeding AND
expiration of new action / 3. upon expiration of the period to
period to petition
appeal therefrom and NO appeal
appeal and no has been duly perfected.
appeal is
perfected terminates the GENERAL RULE: court cannot refuse
execution
Discretionary UNLESS:
execution upon
1. Execution is UNJUST OR
good reasons
stated in a
IMPOSSIBLE
special order 2. Equitable grounds like a CHANGE
after due IN SITUATION of the parties
hearing which makes execution
inequitable
3. Judgment NOVATED by parties
4. Execution is enjoined
Sheriff enforces writ of execution 5. Judgment has become DORMANT
Section 7. Execution In Case Of Death purposes or the execution sale. The levy
Of Party. on execution shall create a lien in favor
If the obligor dies AFTER entry but or the judgment creditor over the right,
BEFORE LEVY on his property, execution title and interest of the judgment debtor
will be issued for recovery of real or in such property at the time of the levy.
personal property or enforcement of a
lien thereon. But for a sum of money, The levy on execution creates a lien in
judgment cannot be enforced by writ but favor of the judgment creditor subject
as a claim against his estate/probate to prior liens and encumbrances.
proceedings.
GARNISHMENT - act of appropriation by
If he dies AFTER a VALID LEVY has been the court when property of debtor is in
made, execution sale proceeds. the hands of third persons
Section 8. Issuance, Form and Contents
of a Writ of Execution. The garnishee or the 3rd person who is in
possession of the property of the
Remedies in an order granting or judgment debtor is deemed a forced
denying the issuance of a writ of intervenor.
execution
Appeal is the remedy for an order
denying the issuance of a writ of
execution.
ATTACHMENT GARNISHMENT
Refers to corporeal refers to money,
Section 10. Execution Of Judgments
property in the stocks, credits and
For Specific Act. possession of the other incorporeal
If party REFUSES TO VACATE PROPERTY, judgment debtor. property which belong
remedy is NOT contempt. The Sheriff to judgment debtor
must oust the party. But if demolition is but is in the possession
involved, there must be a special order. or under the control of
a third person
If party REFUSES TO DELIVER, sheriff will
take possession and deliver it to winning
party. Section 16. Proceedings Where
Property Claimed By Third Person.
When the party REFUSES TO COMPLY,
court can appoint some other person at REMEDIES of THIRD PARTY CLAIMANT
the expense of the disobedient party and
the act done shall have the same effect 1. Summary hearing before the
as if the required party performed it, court which authorized the
the disobedient party incurs no liability execution;
for contempt. 2. TERCERIA or third party claim
filed with the sheriff;
Section 11. Execution of Special 3. Action for damages on the bond
Judgments. posted by judgment creditors; or
When judgment requires the 4. Independent reinvidicatory
performance of any act other than for action.
money and delivery of property.
The remedies are cumulative and may be
The writ of execution shall be served resorted to by third party claimant
upon the party required to obey the independently of or separately from the
same and such party may be punished others.
for contempt if he disobeys.
If winning party files a bond, it is only
LEVY - act by which an officer sets apart then that the sheriff can take the
or appropriates a part of the whole of property in his possession. IF NO BOND,
the property of the judgment debtor for cannot proceed with the sale.
2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT
CHAIRPERSONS
Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda
Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-
EDP), Anna Margarita Eres (VC-Logistics) Jonathan
Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law),
Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial
Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)
San Beda College of Law
58
RULE 42
Within 15 days Within 15 days Within 15 PETITION FOR REVIEW FROM THE
from the notice from notice of days from REGIONAL TRIAL COURTS TO THE
of the judgment the decision notice of the COURT OF APPEALS
for notice of to be judgment or
appeal and reviewed or order or
Petition for review is not a matter of
within 30 days from the denial of the
for records on denial of a MR MR or new right but discretionary on the CA. It may
appeal. The or new trial. trial. only give due course to the petition if it
period for filing shows on its face that the lower court
is interrupted has committed an error of fact and/or
by a timely law that will warrant a reversal or
motion for modification of the decision or judgment
reconsidera- sought to be reviewed; OR dismiss the
tion or new petition if it finds that it is patently
trial.
without merit, or prosecuted manifestly
for delay, or the questions raised therein
Section 7. Approval of record on are too unsubstantial to require
appeal. consideration.
Procedure if the appeal is through a It is merely discretionary on the CA to
record on appeal order the elevation of the records. This
is because until the petition is given due
1. file record on appeal course, the trial court may still issue a
2. appellee may file an objection warrant of execution pending appeal and
within 5 days from his receipt in some cases such as ejectment and
thereof those of Summary Procedure, the
3. if there is no objection the court judgments are immediately executory. It
may: is only when the CA deems it necessary
• approve it as presented; OR that the Clerk of the RTC will be ordered
• direct its amendment on its to elevate the records of the case.
own or upon the motion of
the adverse party
4. if an amendment is ordered the RULE 43
appellant must redraft the APPEALS FROM THE COURT OF TAX
record within the time ordered APPEALS AND THE QUASI-JUDICIAL
or if there is no time, within 10 AGENCIES TO THE CA
days from receipt
2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT
CHAIRPERSONS
Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda
Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-
EDP), Anna Margarita Eres (VC-Logistics) Jonathan
Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law),
Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial
Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)
San Beda College of Law
64
RULE 44
ORDINARY APPEALED CASES
RULE 45
APPEAL BY CERTIORARI TO THE
Section 9. Appellant’s reply brief. SUPREME COURT
The petitioner and the The parties are the Section 5. Action by the court.
respondent are the aggrieved party
original parties to the against the lower PROCEDURAL OUTLINE (original cases
action, and the lower court or quasi-judicial
in the Court of Appeals)
court or quasi-judicial agency and the
agency is not prevailing parties 1. Filing of the petition
impleaded 2. Order to acquire jurisdiction
over respondents OR Outright
Motion for Motion for dismissal for failure to comply to
reconsideration is not reconsideration or for requirements also form and
required new trial is required payment of docket and other
If a motion for legal fees.
reconsideration or new 3. Require respondents to file
trial is filed, the COMMENT within 10 days from
period shall not only
be interrupted but
NOTICE
another 60 days shall 4. Court may require the filing of a
be given to the REPLY or such other pleadings as
petitioner ( SC Admin. it may deem necessary
Matter 002-03 ) 5. Determination of FACTUAL
ISSUES, the court may delegate
The court is in the Court exercises the reception of evidence on
exercise of its original jurisdiction such issues to any of its
appellate jurisdiction members.
and power of review
RULE 47
ANNULMENT OF JUDGMENTS OR FINAL Section. 5. Action by the court.
ORDERS AND RESOLUTIONS Two stages:
1. A preliminary evaluation of the
Annulment of judgment is a remedy in petition for prima facie merit
law independent of the case where the therein, and
judgment sought to be annulled was 2. The issuance of summons as in
rendered and may be availed of though ordinary civil cases and such
the judgment has been executed. appropriate proceedings
thereafter as contemplated in
One important condition for the Sec. 6.
availment of this remedy - the petitioner
failed to move for new trial in, or appeal The rule allows the CA to dismiss the
from, or file a petition for relief against, petition outright as in special civil
or take other appropriate remedies actions.
assailing the questioned judgment or
final order or resolution through no fault For the court to acquire jurisdiction over
attributable to him. the respondent, the rule requires the
issuance of summons should prima facie
If he failed to avail of those other merit be found in the petition and the
remedies without sufficient justification, same is given due course.
he cannot resort to annulment provided RULE 48
in this Rule, otherwise he would benefit
PRELIMINARY CONFERENCE
from his own inaction or negligence.
Section 3. Binding effect of the results
Grounds for ANNULMENT OF
of the conference
JUDGMENT
1. extrinsic fraud or collateral
In the CA, this procedural device may be
fraud;
availed of not only in original actions but
2. lack of jurisdiction;
also in cases on appeal wherein a new
trial was granted on the ground of newly
Extrinsic fraud shall not be a valid
discovered evidence. The CA can act as a
ground if it was availed of, or could have
trier of facts, hence the preliminary
been availed of, in a motion for new
conference authorized is a convenient
trial or petition for relief.
adjunct to such power and function.
EXTRINSIC OR COLLATERAL FRAUD is
RULE 49
any fraudulent act of the prevailing
ORAL ARGUMENT
party in the litigation which is
committed outside of the trial of the
Section 3. No hearing or oral argument
case, whereby the defeated party has
for motions
been prevented from exhibiting fully and
fairly presenting his side of the case.
Motions in the SC and the CA do not
contain notices of hearing as no oral
arguments will be heard in support
EXTRINSIC LACK OF thereof; and if the appellate court
FRAUD JURISDICTION desires to hold a hearing thereon, it will
itself set the date with notice to the
Period of 4 years from Before it is barred parties.
Filing discovery by laches or
action estoppel RULE 50
DISMISSAL OF APPEAL
Effect of Trial court Original action
judgment will try the may be refiled Section 1. Grounds for dismissal of
case appeal
2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT
CHAIRPERSONS
Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda
Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-
EDP), Anna Margarita Eres (VC-Logistics) Jonathan
Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law),
Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial
Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)
San Beda College of Law
68
brief such error may now be considered In criminal cases where the penalty
by the court. imposed is death or reclusion perpetua,
an appeal made to the Supreme Court is
RULE 52 through a notice of appeal filed with the
MOTION FOR RECONSIDERATION RTC in all other cases, an appeal made
to the supreme court is through a
The rules now prohibit a second motion petition for review on certiorari.
for reconsideration.
PROVISIONAL REMEDIES
Sec. 3 provides a time limit of 90 days Also known as ancillary or auxiliary
for the resolution of a motion for remedies, are writs and processes
reconsideration filed with the Court of available during the pendency of the
Appeals from the date the same was action which may be resorted to by a
submitted for resolution, which is litigant to preserve and protect certain
normally the filing of the last pleading rights and interests therein pending
required by the rules of court or the rendition, and for purposes of the
expiration of such period. ultimate effects, of a final judgment in
the case.
Rules now requires the service of the
motion to the adverse party
it may be the main Always the main After 5 days and the adverse party failed
action itself or just a action to object or his counter-bond is
provisional remedy insufficient, the sheriff shall deliver the
property to the applicant.
Distinctions
RULE 59
RECEIVERSHIP
REPLEVIN ATTACHMENT
WHEN MAY BE GRANTED
1. applicant has an interest in the May be sought only Available even if
property or fund subject of the when the principal recovery of property is
proceeding and such property is action is recovery of only incidental to the
in danger of being lost or personal property. relief sought.
materially injured unless a
receiver is appointed; Can be sought only when May be resorted to even
defendant is in actual if the property is in
2. in foreclosure of mortgage, when
possession of the possession of a third
the property is in danger of property. person.
being wasted or dissipated and
that its value is probably CANNOT be availed of Can be AVAILED of even
insufficient to discharge the when property is in if property is in
mortgage debt or that it has custodia legis CUSTODIA LEGIS.
been agreed upon by the parties;
3. after judgment, to preserve the Available before Available from
property during the pendency of defendant answers commencement but
an appeal or to dispose of it before entry of
accdg. to the judgment or to aid judgment
execution;
RULE 61
SUPPORT ‘PENDENTE LITE’