Rule 62 Interpleader

1. Interpleader

1. Original action
2. Presupposes that the plaintiff has no interest in the subject matter of the action or has an
interest therein which, in whole or part, is not disputed by the other parties to the action;
3. Complaint in interpleader must be answered 15 days from service of summons.
Rule 63 Declaratory Relief and Similar Remedies

1. Requisites for action for declaratory relief:

1. Subject matter of controversy is a deed, will, contract, or other written instrument, statute,
executive order, or regulation, or ordinance;

à Court may refuse to adjudicate where decision would not terminate the uncertainty or
controversy which gave rise to the action OR where the declaration is not necessary and proper at
the time;

2. Terms and validity thereof are doubtful and require judicial construction;
3. No breach of the document, otherwise ordinary civil action is the remedy;

à Must be before breach is committed, as in the case where the petitioner paid under protest the
fees imposed by an ordinance. Declaratory relief still proper because the applicability of the
ordinance to future transactions still remains to be resolved, although the matter could be
threshed out in an ordinary suit for the recovery of the fees paid.

4. There is an actual justiciable controversy between persons whose interests are adverse;
5. The same is ripe for adjudication;
6. Adequate relief is not available through other means or other forms of action or proceeding.
Rule 64 Review of Judgments and Final Orders or Resolutions of the Commission on
Elections and The Commission on Audit
à For petition for review of judgments and final orders of the COMELEC and COA – period to file is
30 days to be counted from notice of the judgment or final order or resolution sought to be
reviewed and not from the receipt of the denial of the Motion for Reconsideration; the period to
file petition is merely interrupted by the filing of the Motion for Reconsideration and continues to
run again for the remaining period which shall not be less than 5 days from notice of denial.
Rule 65 Certiorari, Prohibition and Mandamus
1. 1. Certiorari
1. Purpose – to correct an act performed by respondent;
2. Act sought to be controlled – discretionary acts;
3. Respondent – one who exercises judicial functions and acted with grave abuse of discretion or in
lack or excess of jurisdiction.
 4. Generally directed against an interlocutory order of the court prior to appeal from the judgment
in the main case;
5. Need merely be filed seasonably (within 60 days), without undue delay and before the act,
order, or proceedings, sought to be reviewed or set aside has become fait accompli such that
any reversal thereof shall have become academic;
6. Unless a writ of preliminary injunction shall have issued, does NOT stay the challenged order;
7. Parties are the aggrieved parties against the lower court or quasi-judicial agency and the
prevailing parties;
8. Motion for reconsideration is a condition precedent, subject to certain exceptions;
9. Higher court exercises original jurisdiction under its power of control and supervision over the
orders of lower courts.

à If CA reverses the judge, the latter may not go the SC via a petition for certiorari. He is merely
a nominal party, and he should not seek the reversal of a decision that is unfavorable to the
action taken by him.

à Professional Regulation Commission vs. CA – It is well settled that the remedies of ordinary
appeal and certiorari are mutually exclusive, not alternative or successive. However, it has also
been held that after a judgment has been rendered and an appeal therefrom had been perfected,
a petition for certiorari relating to certain incidents therein may prosper where the appeal does
not appear to be a plain, speedy and adequate remedy. In this case, the SC noted that, while
petitioners tried to justify their recourse to both an appeal and to a petition for certiorari by
claiming that their appeal would not constitute a plain, speedy and adequate remedy, they did
not see fit to withdraw or abandon said appeal after filing the petition. Thus, both the CA and SC
are reviewing the same decision of the RTC at the same time. Such a situation would lead to
absurdity and confusion in the ultimate disposition of the case.
1. 2. Prohibition
2. 3. Mandamus
3. 4. When SC allows the writ of certiorari even when appeal is available and proper:
4. 5. Cases where Motion for Reconsideration is NOT condition precedent for certiorari:
1. 6. The period for filing any of the 3 actions is not later than 60 days from notice of
judgment, order, or resolution sought to be reviewed.
1. Purpose – to prevent the commission or carrying out of an act;
2. Act sought to be controlled – discretionary and ministerial acts;
3. Respondent – one who exercises judicial or non-judicial functions.
1. Purpose – to compel the performance of the act desired;
2. Act sought to be controlled – ministerial act;
3. Respondent – one who performs judicial or non-judicial functions.
1. Appeal does not constitute a speedy and adequate remedy;
2. Orders were issued either in excess of or without jurisdiction;
3. For certain special considerations, such as public welfare or policy;
4. Where in criminal actions, the court rejects rebuttal evidence for the prosecution, as in
acquittal;
 5. Where the order is a patent nullity;
6. Where the decision in the certiorari case will avoid future litigation.
1. Order is a patent nullity;
2. Questions raised in the certiorari proceeding were duly raised and passed upon by the lower
court, or are the same as those raised and passed upon in the lower court;
3. Urgent necessity for the resolution of the question and any further delay would prejudice the
interests of the government;
4. Under the circumstances, a motion for recon would be useless;
5. Petitioner was deprived of due process and there is extreme urgency for relief;
6. Where in a criminal case, relief from order or arrest is urgent and the granting of such relief by
the trial court is improbable;
7. Proceedings in the lower court are null for lack of due process;
8. Proceeding was ex parte or in which petitioner had no opportunity to object;
9. Issue raised is one purely of law or where public interest is involved.
à In case a motion for reconsideration or new trial is timely filed, whether such motion is
required or not, the 60-day period shall be counted from notice of the denial of said motion. (SC
Circular 56-2000, effective September 1, 2000)
à No extension of time to file the
petition shall be granted except for compelling reason and in no case exceeding 15 days. (SC
Circular 56-2000)
Rule 66 Quo Warranto
1. 1. Quo Warranto distinguished from Election Contest:

Quo Warranto
Election Contest
Basis is that occupant is disqualified from Challenge rights of a person to hold
holding office by reason of ineligibility or office on the ground of irregularities in
disloyalty the conduct of the election
Successful protestant will assume office
if he had obtained plurality of valid votes
If successful, respondent is ousted but
petitioner shall not automatically assume
the office vacated
Rule 67 Expropriation
1. In expropriation, the complaint must be verified.
2. The defendant can only file an answer instead of a motion to dismiss
1. The final order of expropriation is appealable, but the lower court may determine the
just compensation to be paid.

à The power of eminent domain is exercised by the filing of a complaint which shall join as
defendants all persons owning or claiming to own, or occupying, any party of the expropriated
land or interest therein. If a known owner is not joined as defendant, he is entitled to intervene
in the proceedings; or if he is joined but not served with process and the proceeding is already
closed before he came to know of the condemnation, he may maintain an independent suit for
damages.

Rule 70 Forcible Entry and Unlawful Detainer

1. 1. Forcible entry distinguished from Unlawful detainer

Forcible entry Unlawful detainer

Possession of land is unlawful from the
beginning due to force, intimidation,
threat, strategy or stealth
No requirement of previous demand for
defendant to vacate premises
Plaintiff must prove that he was in prior
physical possession until he was deprived
thereof by defendant
1-year period counted from date of actual
entry or when plaintiff learned thereof.
Possession of defendant is inceptively
lawful but becomes illegal by reason of
termination of right of possession
Demand is jurisdictional
Plaintiff need not have been in prior
physical possession
1-year period from date of last demand

2. When prior demand in unlawful detainer actions not required;

1. When purpose of action is to terminate lease because of expiry of term and not because of
failure to pay rental or to comply with terms of lease contract;
2. Purpose of suit is not for ejectment but for enforcement of terms of contract;
3. When defendant is not a tenant but a pure intruder

à In all other cases, there must be a demand:

1. To pay or to comply with the conditions of the lease; AND

2. To vacate by written notice on the person in the premises or by posting such notice on the
premises if no person is found thereon and this is a condition precedent to the filing of the case;
ORAL demand is not permitted.
1. If demand is in the alternative (pay OR vacate), this is NOT the demand contemplated by
the Rules.

3. When the defendant raises the issue of ownership in his pleadings and the question of
possession cannot be resolved without deciding the issue of ownership, the latter issue shall be
resolved only to determine the issue of possession.

à A forcible entry/unlawful detainer action has an entirely different subject matter from that of
an action for reconveyance. The former involves material possession, and the latter,
ownership. Thus, the pendency of an action for reconveyance does not divest the MTC of its
jurisdiction over an action for FE/UD, nor will it preclude execution of judgment in the ejectment
case where the only issue involved is material possession.

Rule 71 Contempt
1. 1. Criminal contempt
2. 2. Civil Contempt
3. 3. Direct Contempt (contempt in facie curiae)
4. 4. Indirect Contempt
1. Purpose is to vindicate public authority;
2. Conduct directed against the dignity or authority of the court.
1. Purpose is to protect and enforce civil rights and remedies for the litigants;
2. Failure to do something ordered by the court for the benefit of a party.
1. Committed in the presence of or so near a court or judge;
2. Punished summarily without hearing;
3. No appeal may be taken but the party adjudged in contempt may avail himself of actions of
certiorari or prohibition which shall stay the execution of the judgment, provided a bond fixed
by the court is filed.
1. Not committed in the presence of the court;
2. Punished only after hearing – complaint in writing or motion or party or order of court requiring
person to appear and explain, opportunity to appear and show cause.

Reference:
Remedial Law (Civil Procedure) Memory Aid
Ateneo Central Bar Operations 2001
Posted in Civil Procedure

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Tags: Civil Procedure - Rules 62 - 71

Civil Procedure – Rules 51 – 60

DEC 19

Posted by Magz
Rule 51 Judgment
1. Memorandum decisions are permitted in the CA.
2. After judgment or final resolution of the CA and dissenting or separate opinions if any, are
signed by the Justices taking part, they shall be delivered for filing to the clerk who shall
indicate thereon the date of promulgation and cause true copies to be served upon parties or
counsel.
3. Date when judgment or final resolution becomes executory shall be deemed as date of entry.
 RULE 56 Procedure in the Supreme Court
1. 1. Original cases cognizable – exclusive list:
1. Petitions for certiorari, prohibition, mandamus, quo warranto, habeas corpus;
2. Disciplinary proceedings against judges and attorneys;
3. Cases affecting ambassadors, other public ministers, and consuls.
2. An appeal to SC can only be taken by petition for review on certiorari, except in criminal
cases where the penalty imposed is death, reclusion perpetua, or life imprisonment.

3. Grounds for dismissal of appeal by SC

1. Failure to take appeal within the reglementary period;

2. Lack of merit in the petition;
3. Failure to pay the requisite docket fee and other lawful fees or to make deposit for costs;
4. Failure to comply with the requirements regarding proof of service and contents of and the
documents which should accompany the petition;
5. Failure to comply with any circular, directive or order of the SC without justifiable cause;
6. Error in choice or mode of appeal
7. Case is not appealable to the SC.
1. Discretionary upon SC (and CA) to call for preliminary conference similar to pre-trial.
2. General Rule: Appeal to SC by notice of appeal shall be dismissed.
Exception: In criminal cases where the penalty imposed is life imprisonment, or when a lesser
penalty is imposed but involving offenses committed on the same occasion or arising out of the
same occurrence which gave rise to the more serious offense for which the penalty of death or life
imprisonment is imposed (Section 3, Rule 122)
1. Appeal by certiorari from RTC to SC submitting issues of fact may be referred to the CA for
decision or appropriate action, without prejudice to considerations on whether or not to give
due course to the appeal as provided in Rule 45.

Provisional Remedies

Provisional remedies (ancillary/auxiliary)

à Writs and processes available during the pendency of the action which may be resorted to by a
litigant to preserve and protect rights and interests therein pending rendition, and for the purpose
of ultimately affecting a final judgment in the case.

à PROVISIONAL – constituting temporary measures availed of during the pendency of the action.

à ANCILLIARY – incidents in and dependent on the result of the main action.

Rule 57 Preliminary Attachment

1. 1. Preliminary Attachment
 1. Available even if the recovery of personal property is only an incidental relief sought in the
action;
2. May be resorted to even if the personal property is in the custody of a third person;
3. Extends to all kinds of property, real or personal or incorporeal;
4. To recover possession of personal property unjustly detained, presupposes that the same is being
concealed, removed, or disposed of to prevent its being found or taken by the applicant;
5. Can still be resorted to even if the property is in custodia legis, as long as the property belongs
to the defendant, or is one in which he has proprietary interests, AND with permission of the
court

2. Grounds

1. Recovery of specified amount of money and damages, except moral or exemplary, where party is
about to depart from the Phils with intent to defraud creditors;
2. Action for money or property embezzled or for willful violation of duty by public officers,
officers of corporation, agent, or fiduciary;
3. Recovery of possession of property (both real and personal) unjustly detained, when the
property is concealed or disposed of to prevent is being found or taken;
4. Action against party guilty of fraud in contracting the debt or incurring the obligation or in the
performance thereof;
5. Action against party who is concealing or disposing of property, or is about to do so, with intent
to defraud creditors;
6. Action against party who is not a resident of the Phils and cannot be found therein or upon who
service by publication can be made.

3. PRINCIPLE OF PRIOR OR CONTEMPORARY JURISDICTION:

Enforcement of writ of preliminary attachment must be preceded by or simultaneously

accompanied by service of summons, copy of complaint, application and affidavits for the
attachment and the bond upon the adverse party; BUT the requirement of prior or
contemporaneous service of summons shall not apply where the summons could not be served
despite diligent efforts, or the defendant is a resident of the Phils temporarily absent therefrom,
or the defendant is a non-resident of the Phils or the action is in rem or quasi in rem.
1. 4. When preliminary attachment is discharged
1. a. Debtor posts a counterbond or makes requisite cash deposit- if attachment to
be discharged is with respect to particular property, counterbond or deposit shall be
equal to the value of the property as determined by the court; in all other cases, amount
of counterbond should be equal to the amount fixed in the order of attachment.

à CASH DEPOSIT OR COUNTERBOND SHALL SECURE THE PAYMENT OF ANY JUDGMENT THAT
ATTACHING PARTY MAY RECOVER

1. b. Applicant’s bond is insufficient or sureties fail to justify;

2. c. Attachment was improperly or irregularly issued;
 3. d. Property attached is exempt from execution;
4. e. Judgment is rendered against attaching party;
5. f. Attachment is excessive – discharge is with respect to the excess

5. Application for discharge may only be filed with the court where the action is pending and
may be filed even before enforcement of the writ so long as there has been an order of
attachment.

6. When to apply for damages against the attachment bond

1. Before trial;
2. Before appeal perfected;
3. Before judgment becomes executory;
4. In the appellate court for damages pending appeal, before judgment becomes executory.
1. 7. When judgment becomes executory, sureties on counterbond to lift attachment are charged
and can be held liable for the amount of judgment and costs upon notice and summary
hearing. There is no need to first execute judgment against the judgment obligor before
proceeding against sureties.
2. 8. Claims for damages cannot be subject of independent action except:
1. a. When principal case is dismissed by the trial court for lack of jurisdiction
without giving the claiming party opportunity to prove claim for damages;
2. b. When damages sustained by a third person not a party to the action.
Rule 58 Preliminary Injunction
1. 1. Preliminary injunction distinguished from Prohibition

Preliminary Injunction
Generally directed against party to the
action but may be against any person
Does NOT involve the jurisdiction of the
court
Prohibition
Directed against a court, tribunal, or
person exercising judicial powers
May be on the ground that the court
against whom the writ is sought acted
without or in excess of jurisdiction;
Always a main action

May be main action itself or just a

provisional remedy in the main action

2. Grounds for Preliminary Injunction

1. Plaintiff is entitled to relief sought which consists in restraining or requiring the performance of
acts (latter is preliminary mandatory injunction);
2. The commission of acts or non-performance during pendency of litigation would probably work
injustice to the plaintiff;
 3. Defendant is doing or about to do an act violating plaintiff’s rights respecting the subject of the
action and tending to render judgment ineffectual.

3. Injunction may be refused or dissolved when:

1. Complaint is insufficient;
2. Defendant is permitted to post a counterbond it appearing that he would sustain great and
irreparable injury if injunction granted or continued while plaintiff can be fully compensated;
3. Plaintiff’s bond is insufficient or defective

4. No Preliminary Injunction or TRO may be issued without posting of bond and notice to adverse
party and hearing.

5. PRINCIPLE OF PRIOR OR CONTEMPORARY JURISDICTION:

à When an application for a writ of preliminary injunction or a temporary restraining order is

included in a complaint or any initiatory pleading, the case, if filed in a multiple-sala court, shall
be raffled only after NOTICE to and IN THE PRESENCE of the adverse party or the person to be
enjoined. In any event, such notice shall be preceded, or contemporaneously accompanied by
service of summons, together with a copy of the complaint and the applicant’s affidavit and bond,
upon the adverse party in the Phils; BUT the requirement of prior or contemporaneous service of
summons shall NOT apply where the summons could not be served despite diligent efforts, or the
defendant is a resident of the Phils temporarily absent therefrom, or the defendant is a non-
resident of the Phils

à Difference with principle in preliminary attachment – In attachment, the principle applies only
in the implementation of the writ, while in applications for injunction or TRO, this principle
applies before the raffle and issuance of the writs or TRO.

6. TRO good for only 20 days from service; 60 days for CA; until further orders from SC.

7. TRO can be issued ex parte only if matter of grave urgency and plaintiff will suffer grave
injustice and irreparable injury. Good for 72 hours from issuance, within which judge must
comply with service of summons, complaint, affidavit and bond, and hold summary hearing to
determine whether TRO should be extended for 20 days. In no case can TRO be longer than 20
days including 72 hours.
8. No TRO, preliminary injunction or preliminary mandatory injunction may issue against the
government in cases involving implementation of government infrastructure projects. (Garcia vs.
Burgos, reiterated in Administrative Circular no. 7-99, promulgated June 25,1999)
Rule 59 Receivership
1. 1. When receiver may be appointed:
2. 2. When receivership may be denied/lifted
 1. Party has an interest in the property or fund subject of the action and such is in danger of being
lost, removed, or materially injured;
2. Action by mortgagee for foreclosure of mortgage when the property is in danger of being wasted
or materially injured and that its value is probably insufficient to discharge the mortgage debt,
OR that the parties have stipulated in the contract of mortgage;
3. After judgment, to preserve the property during the pendency of the appeal, or to dispose of it,
or to aid in execution when execution has been returned unsatisfied or the judgment debtor
refuses to apply his property to satisfy judgment, or to carry out the judgment.
4. When appointing one is the most convenient and feasible means to preserve, administer, or
dispose of the property in litigation.
1. Appointment sought is without sufficient cause;
2. Adverse party files sufficient bond for damages;
3. Applicant or receiver’s bond is insufficient.

3. Both the applicant for the receivership and the receiver appointed must file separate bonds.

4. In claims against the bond, it shall be filed, ascertained and granted under the same
procedure as Section 20, Rule 57, whether is be damages against the applicant’s bond for the
unlawful appointment of the receiver or for enforcing the liability of the sureties of the receiver’s
bond by reason of the receiver’s management (in the latter case, no longer need to file a separate
action).

Rule 60 Replevin
1. 1. Replevin
2. 2. Defendant entitled to return of property taken under writ if:
1. Available only where the principal relief sought in the action is the recovery of possession of
personal property;
2. Can be sought only where the defendant is in the actual or constructive possession of the
personal property involved.
3. Extends only to personal property capable of manual delivery;
4. Available to recover personal property even if the same is NOT being concealed, removed, or
disposed of;
5. Cannot be availed of if property is in custodia legis, as where is it under attachment, or was
seized under a search warrant or distrained for tax assessment.
1. He seasonably posts redelivery bond
2. Plaintiff’s bond is insufficient or defective
3. Property is not delivered to plaintiff for any reason.

à Replevin bond is only intended to indemnify defendant against any loss that he may suffer by
being compelled to surrender the possession of the disputed property pending trial of the
action. Thus, surety not liable for payment of judgment for damages rendered against plaintiff on
a counterclaim for punitive damages for fraudulent or wrongful acts committed by the plaintiffs
which are unconnected with the defendant’s deprivation of possession by the plaintiff.

Special Civil Actions

1. Types of Special Civil Actions

1. Mandamus
2. Interpleader
3. Certiorari
4. Contempt
5. Prohibition
6. Eminent Domain
7. Declaratory Relief
8. Quo warranto
9. Partition of real estate
10. Foreclosure of mortgage
11. Unlawful detainer
12. Forcible Entry

Reference:
Remedial Law (Civil Procedure) Memory Aid
Ateneo Central Bar Operations 2001
Posted in Civil Procedure

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Tags: Civil Procedure - Rules 51 - 60

Civil Procedure – Rules 41 – 50

DEC 19

Posted by Magz
Rule 41 Appeal from the RTC
1. Appeal may be taken from a judgment or final order that completely disposes of the case or of a
particular matter therein.
2. No appeal may be taken from:
1. Order denying a motion for new trial or recon;
2. Order denying a petition for relief or any similar motion seeking relief from judgment;
3. Interlocutory order;
4. Order disallowing or dismissing an appeal;
5. Order denying a motion to set aside a judgment by consent, confession, compromise on the
ground of fraud, mistake, or duress, or any other ground vitiating consent;
 6. Order of execution;

à Not appealable because execution is only the result of the judgment. If order of execution is
not in accord with the dispositive portion, remedy is certiorari under Rule 65.

7. Judgment or final order for or against one or more of several parties or in separate claims, while
the main case is pending, unless the court allows an appeal therefrom;
8. Order dismissing an action without prejudice;

à In all these cases, aggrieved party may file an appropriate civil action under Rule 65.

1. Ordinary appeal from RTC (in the exercise of original jurisdiction) to CA is by filing notice of
appeal with the RTC within 15 days from notice of its judgment. Record on appeal required only
for special proceedings and where multiple appeals allowed filed within 30 days.
2. Motion for extension of time to file a motion for new trial or reconsideration is prohibited.
3. Contents of Notice on appeal:
1. Names of the parties to the appeal;
2. Specify judgment or final order or part thereof appealed from;
3. Court to which the appeal is being taken;
4. Material dates showing timeliness of appeal;

6. Contents of Record on appeal:

1. Full names of all parties to the proceedings shall be stated in the caption;
2. Include judgment or final order from which appeal taken;
3. In chronological order, copies of only such pleadings, petitions, etc. and all interlocutory orders
as are related to the appealed judgment;
4. Data showing that appeal perfected in time – material data rule;
5. If an issue of fact is to be raised, include by reference all the evidence, oral or documentary,
taken upon the issues involved.

7. Appeal from decision of RTC in appellate jurisdiction is by petition for review filed with CA.

8. Where only questions of law are raised, by petition for review on certiorari with SC.

9. Notice of Appeal and Record of Appeal distinguished:

Notice of Appeal Record of Appeal

Party’s appeal by notice of appeal
deemed perfected as to him upon the
filing of the notice of appeal in due time
Court loses jurisdiction over case upon
perfection of the appeals filed in due time
Deemed perfected as to appellant with
respect to the subject matter upon the
approval of the record on appeal filed in
due time
Court loses jurisdiction only over subject
matter upon approval of records on
and expiration of time to appeal of other appeal filed in due time and expiration of
parties the time to appeal of other parties.

10. Failure to pay appellate docket fees within the reglamentary period is ground for dismissal of
appeal.

11. General Rule: An ordinary appeal stays the execution of a judgment

Exceptions: a. Decisions of quasi-judicial body appealed to the CA

b. Executions pending appeal

c. Cases covered by Summary Procedure

Rule 42 Petition for Review from the RTC to the CA

1. 1. Form and contents of petition for review (from RTC to CA)

In 7 legible copies:

1. Full names of parties to case, without impleading the lower courts or judges thereof;
2. Indicate specific material dates showing it was filed on time;
3. Concise statement of matters involved, issues raised, specification of errors of fact or law, or
both allegedly committed by the RTC, and the reasons or arguments relied upon for the
allowance of the appeal;
4. Accompanied by clearly legible duplicate originals or true copies of the judgments or final order
of both MTC and RTC;
5. Certification under oath of non-forum shopping.
1. 2. Contents of comment

In 7 legible copies, accompanied by certified true copies of material portions of record and other
supporting papers:

1. State whether or not appellee accepts the statement of matters involved in the petition;
2. Point out such insufficiencies or inaccuracies as he believes exists in petitioner’s statement of
matters;
3. State reasons why petition should not be give due course.

3. CA may:

1. Require respondent to file a comment; or

2. Dismiss the petition if it finds:
1. Patently without merit
 2. Prosecuted manifestly for delay
3. Questions raised are to insubstantial to require consideration
Rule 43 Appeals from the CTA and Quasi-Judicial Agencies to the CA
1. 1. Appeals from judgments and final orders of the Court of Tax Appeals and quasi-judicial
agencies in exercise of quasi-judicial functions (unless otherwise provided by law and the Labor
Code [NLRC decisions]) shall be by petition for review to the CA, to be taken within 15 days from
notice of award or judgment or from notice of the denial of the motion for reconsideration. Only
1 Motion for reconsideration allowed
2. 2. Quasi-judicial agencies covered:
1. Civil Service Commission;
2. Central Board of Assessment Appeals;
3. Securities and Exchange Commission;
4. Office of the President;
5. Land Registration Authority;
6. Social Security Commission;
7. Civil Aeronautics Board;
8. Bureau of Patents, Trademarks and Technology Transfer;
9. National Electrification Administration;
10. Energy Regulatory Board;
11. National Telecommunications Commission;
12. Department of Agrarian Reform under RA No. 6657;
13. GSIS;
14. Employees Compensation Commission;
15. Agricultural Inventions Board;
16. Insurance Commission;
17. Construction Industry Arbitration Commission;
18. Voluntary arbitrators
à St. Martin’s Funeral Home vs. NLRC – DECISIONS OF THE NLRC – ORIGINAL ACTION FOR
CERTIORARI UNDER RULE 65 FILED WITH THE CA, NOT SC
à Fabian vs. Desierto – Appeals from decisions of the Office of the Ombudsman in administrative
disciplinary cases should be taken to the CA under Rule 43.
Æ According to A.M. no. 99-2-02-SC (promulgated February 9, 1999), any appeal by way of
petition for review from a decision, final resolution or order of the Ombudsman, or special civil
action relative to such decision, filed with the SC after March 15, 1999 shall no longer be referred
to the CA, but shall be dismissed.
Rule 45 Appeal by Certiorari to the Supreme Court

1. Question of Law – exists when doubt or difference arises as to what the law is, based on a
certain state of facts

Question of Fact – exists when doubt or difference arises as to the truth or the falsehood of
alleged facts
2. Findings of fact of the CA may be reviewed by the SC on appeal by certiorari when:

1. The conclusion is a finding grounded entirely on speculations, surmises, or conjectures;

2. The inference made is manifestly mistaken, absurd, or impossible;
3. There is grave abuse of discretion;
4. The judgment is based on misapprehension of facts;
5. Findings of fact of trial court and CA are conflicting;
6. The CA, in making its findings, went beyond the issues of the case and the same is contrary to
the admissions made;
7. CA manifestly overlooked certain relevant facts not disputed by the parties and which, if
properly considered, would justify a different conclusion.

3. Certiorari as mode of appeal:

From judgment or final order of the CA, Sandiganbayan, RTC on pure questions of law, or other
courts whenever authorized by law, by filing a petition for review on certiorari with the SC within
15 days from notice of judgment.

4. Rule 45 and Rule 65 distinguished:

Rule 45 Rule 65
No need for Motion for Recon Motion for Recon generally required
Applies to interlocutory orders rendered
Relates to final judgments in excess/lack of jurisdiction
An appeal Not an appeal in the strict sense
15 days from notice of judgment 60 days from notice of judgment
à Kho vs. Camacho: An RTC judge has no right to disapprove a notice of appeal on the ground that
the issues raised involve a pure question of law, and that the mode of appeal is erroneous. That is
the prerogative of the CA, not the RTC judge. A notice of appeal need not be approved by the
judge, unlike a record on appeal.
Rule 47 Annulment of Judgments or Final Orders and Resolutions
1. Grounds for annulment of judgment of RTC in civil cases:
1. Petition for annulment available only if ordinary remedies of new trial, appeal, petition
for relief or other appropriate remedies no longer available through no fault of the
Petitioner.
1. Extrinsic fraud – not available as a ground if availed of earlier in a motion for new trial or
petition for relief
2. Lack of jurisdiction.

3. Periods:
 1. For extrinsic fraud – four years from discovery;
2. Lack of jurisdiction – must be filed before action barred by laches.

4. Effects of judgment of annulment – gives the CA authority to order the trial court on motion to
try the case if the ground for annulment is extrinsic fraud, but not if it is lack of jurisdiction.

à Prescriptive period for refiling the original action is suspended unless the extrinsic fraud is
attributable to the plaintiff in the original action.

Rule 50 Dismissal of Appeal

1. 1. Grounds for dismissal of appeal by the CA:
1. Failure of the record on appeal to show on its face that the appeal was taken within the
reglamentary period;
2. Failure to file the notice of appeal or record on appeal within the period;
3. Failure of the appellant to pay the docket and other lawful fees;
4. Unauthorized alterations, omissions, or additions in the approved record on appeal;
5. Failure of the appellant to serve and file the required number of copies of his brief or
memorandum within the time provided;
6. Absence of specific assignment of errors in appellants brief or page references to the record;
7. Failure of the appellant to take necessary steps for the completion or correction of the record
within the time limited by the order;
8. Failure of appellant to appear at the preliminary conference or to comply with orders, circulars,
or directives of the court without justifiable cause
9. Judgment or order appealed from is not appealable.

Reference:
Remedial Law (Civil Procedure) Memory Aid
Ateneo Central Bar Operations 2001
Posted in Civil Procedure

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Tags: Civil Procedure - Rules 41 - 50

Civil Procedure – Rules 31 – 40

DEC 19

Posted by Magz
Rule 31 Consolidation or Severance
1. 1. CONSOLIDATION – the court may order a joint hearing or trial of any or all matters in issue
when actions involving a common question of law or fact are pending before the court.
2. 2. BUT the court may order a separate trial of any claim, cross-claim, counterclaim, or third-
party complaint, in furtherance of convenience or in the interest of justice.
 Rule 32 Trial by Commissioner

Trial by commissioner:

1. 1. Reference by consent of both parties

2. 2. Reference by motion of one of the parties or motu proprio:
1. Trial requires examination of a long account of either side
2. Taking of an account is necessary for the information of the court before judgment or for
carrying a judgment order into effect
3. Question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of
the case.
Rule 33 Demurrer to Evidence

Demurrer to evidence is made by the defendant after the plaintiff has completed the presentation
of his evidence where the defendant moves for dismissal on the ground that upon the facts and
the law the plaintiff has shown no right to relief.

1. 1. If motion denied – defendant has the right to present evidence

2. If motion granted, but reversed on appeal – defendant deemed to have waived the right to
present evidence.

Rule 34 Judgment on the Pleadings

1. Judgment on the Pleadings is proper:

1. If answer fails to tender an issue; or

2. If answer otherwise admits the material allegations of the adverse party’s pleading

à Then court may, on motion of that party, direct judgment on the pleadings

2. However, the material facts alleged in the complaint shall always be proved in actions for:

1. Declaration of nullity of marriage

2. Annulment of marriage
3. Legal separation
Rule 35 Summary Judgments

Summary judgment:

1. 1. Proper if no genuine issue as to any material fact (except as to damages recoverable) and if
moving party is entitled to a judgment as a matter of law
2. 2. Based not only on pleadings but also on affidavits, deposition, and admissions of the parties
showing that, except as to the amount of damages, there is no genuine issue.
3. 3. Motion shall be served at least 10 days before the time specified for the hearing.
 1. 4. May be asked for by a party seeking to recover upon a claim, counterclaim, cross-
claim or to obtain a declaratory relief.

5. Although Rule does not specifically provide, also unavailable in actions for annulment of and
declaration of nullity of marriage, and for legal separation since Sec. 1 refers to actions “to
recover upon a claim”, or to recover a debt or a liquidated demand for money, or “to obtain
declaratory relief.”

6. Judgment on the pleadings and summary judgment distinguished:

Judgment on the Pleadings Summary judgment

Proper when there is no genuine issue
between the parties
Based exclusively on the pleadings
without introduction of evidence
Available in any action, except the 3
exceptions
Proper even if there is an issue as to the
damages recoverable
Based not only on pleadings but also on
affidavits, depositions and admissions of
the parties
Proper only in actions to recover a debt,
or for a liquidated sum of money, or for
declaratory relief

à Motions for summary judgment may be filed by the claimant or by the defending party. The
defending party may file such motion, pursuant to Rule 35, §2“at any time”, as distinguished from
§1 where the claimant may file the motion at any time after the answer is filed.

Rule 36 Judgments, Final Orders and Entry Thereof

1. 1. The date of the finality of the judgment or final order shall be deemed to be the date of its
entry. The judgment or final order shall be entered by the clerk in the book of entries of
judgments if no appeal or motion for new trial or consideration is filed within 15 days
2. 2. Several Judgments

In action against several defendants, the court may render judgment against one or more of them,
leaving the action to proceed against the others.

1. 3. Separate judgments

Judgment rendered to dispose of one of the several claims for relief presented in an action, made
at any stage, upon a determination of the issues material to a particular claim and all
counterclaims arising out of the transaction or occurrence which is the subject matter of the
claim, which terminates such claim. Action shall proceed as to other claims

Rule 37 New Trial or Reconsideration

 1. 1. Motion for new trial or reconsideration filed within 15 days from notice of judgment and
resolved by the court within 30 days from submission for resolution.
2. 2. Grounds: Motion for New Trial
1. Fraud, accident, mistake, or excusable negligence;
2. Newly discovered evidence

à Requisites:

1. Discovered after trial

2. Could not have been discovered and produced at trial despite the exercise of reasonable
diligence
3. If presented, could probably alter the result of the action

3. Grounds: Motion for Reconsideration

1. Damages awarded are excessive

2. Evidence is insufficient to justify the decision or final order
3. Decision is contrary to law

4. Motion for new trial shall be in writing, and supported by affidavits of merit if the ground is
FAME; for newly-discovered evidence, it must be supported by affidavits of witnesses by whom
such evidence is expected to be given, or by duly authenticated documents to be introduced.

Motion for reconsideration shall specifically point out the findings or conclusions of the judgment
which are unsupported by evidence or contrary to law, with express reference to the testimonial
or documentary evidence or the provisions of law alleged to be contrary to such findings.

5. Pro forma motion for new trial or reconsideration shall not toll the period for appeal.

6. No second motion for reconsideration allowed. Second motion for new trial must be based on
a ground not existing or available when the first motion was made, which may be filed during the
remainder of the 15-day period.

Rule 38 Relief From Judgments, Orders, or Other Proceedings

1. 1. Petition for relief from judgment filed within 60 days after learning of judgment and not
more than 6 months after such judgment

à Must be supported by affidavit showing the FAME and the facts constituting the petitioner’s good
or substantial cause of action or defense

1. 2. Party who has filed a timely motion for new trial cannot file a petition for relief after the
former is denied. The two remedies are exclusive of one another.
2. 3. Grounds:
1. Judgment or final order is rendered and party has been prevented by FAME from taking an
appeal
 1. Judgment or final order entered against a party by FAME; or

à For fraud to be extrinsic, the losing party must never have had a chance to controvert the
adverse party’s evidence.

à Uniform procedure for relief from judgments of MTC and RTC

1. 4. After petition is filed, court shall order adverse parties to answer within 15 days from
receipt. After answer is filed or expiration of period therefor, court shall hear the petition.
2. 5. If granted, judgment set aside and court shall proceed as if timely motion for new trial has
been granted; if granted against denial of appeal, court shall give due course to appeal.
Rule 39 Execution, Satisfaction and Effect of Judgments
1. 1. Execution as a matter of right

On motion with notice, upon a judgment or order that disposes of the action or proceeding upon
the expiration of the period to appeal therefrom if no appeal has been duly perfected.

à For so long as there is a certificate of entry of judgment, execution may already be issued by
the court of origin or directed to do so by the CA.

1. 2. Discretionary execution – pending period to appeal or during appeal; may issue only upon
good reasons to be stated in a special order after hearing.
1. By trial court – even after the perfection of the appeal for so long as the motion for execution
was filed while the TC has jurisdiction over the case and is in possession or the records, upon
motion of the prevailing party with notice to the adverse party
2. Appellate court – after the TC has lost jurisdiction

à Example:

P receives judgment: June 3

D receives judgment: June 1

D files notice of appeal: June 5

When does trial court lose jurisdiction? June 18

BUT, if P also files a notice of appeal on June 10, trial court loses jurisdiction on that date.

à Execution with respect to appealed cases- there is no need to await remand of the records.

à Execution with respect to consequential and exemplary damages should be postponed until such
time as the merits of the case have been finally determined in the regular appeal, as the amounts
remain uncertain and indefinite pending resolution.
3. a. Motion for execution of final and executory judgment should be served on adverse party
and set for hearing;

b. In case of appeal, motion is filed with court of origin supported by certified true copies of
final judgment of appellate court.

3. Appellate court may on motion order court of origin to issue writ of execution (SC Circular No.
24-94, 4/18/94)

4. Judgments NOT stayed by appeal (immediately executory, unless court provides otherwise)

1. Actions for injunction

2. Receivership
3. Accounting
4. Support
5. Judgments declared immediately executory

5. A final and executory judgment may be executed on motion within 5 years from entry. May be
revived and enforced by action after lapse of 5 years but before 10 years from entry. Revived
judgment may be enforced by motion within 5 years from entry and thereafter by action before
barred by statute of limitations – file motion within 10 years from the finality of the revived
judgment.

6. Execution in case of party’s death:

1. Death of judgment obligee – application of his executor or administrator or successor-in-interest

2. Death of judgment obligor -
1. Against his executor, etc. if the judgment be for recovery of real or personal property or the
enforcement of a lien thereon.
2. If death after execution is actually levied upon his property, it may be sold for satisfaction of
the obligation.

à If the judgment obligor dies after the entry but before levy, execution will issue if it be for the
recovery of real or personal property. However, if judgment is for a sum of money, and the
judgment obligor dies before levy, such judgment cannot be enforced by writ of execution but
must be filed as a claim against his estate.

7. Writ of execution:

1. Shall issue in the name of the Republic of the Phils from court which granted the motion
2. State the name of the court, case number and title, dispositive portion of the judgment order
3. Require the sheriff or other proper officer to whom it is directed to enforce the writ according
to its terms
8. Manner of executing writ:

1. If judgment against property of the judgment obligor – out of real or personal property with
interest
2. If against his real or personal property in the hands of the personal representatives, heirs,
devisees, legatees, tenants, or trustees of the judgment obligor – out of that property, with
interest
3. If for sale of real or personal property – to sell property, describing it and apply the proceeds in
conformity with judgment.
4. If for delivery of possession of property – deliver possession of the same to the party entitled to
it, describing it, and to satisfy any costs, damages, rents, or profits covered by the judgment out
of the personal property of the person against whom it was rendered, and out of real property if
sufficient personal property cannot be found.
5. In all cases, writ of execution shall specifically state the amount of the interest, costs, damages,
rents, or profits due as of date of issuance of writ, aside from principal obligation.

à Judgment obligor is given option to choose which property may be levied on sufficient to satisfy
the judgment.

9. Property exempt from execution

1. Family home as provided by law, homestead in which he resides, and land necessarily used in
connection therewith;
2. Tools and implements used in trade, employment, or livelihood;
3. 3 horses, cows, or carabaos or other beasts of burden used in his ordinary occupation;
4. Necessary clothing and articles for ordinary personal use, excluding jewelry;
5. Household furniture and utensils necessary for housekeeping not exceeding P3,000;
6. Professional libraries and equipment of judges, lawyers, physicians, etc. not exceeding
P300,000;
7. One fishing boat and accessories not more than P100,000 owned by a fisherman and by which he
earns his living;
8. Salaries, wages, or earnings for personal services within the 4 months preceding the levy which
are necessary for the support of the family;
9. Lettered gravestones;
10. Money, benefits, annuities accruing or in any manner growing out of any life insurance;
11. Right to receive legal support or any pension or gratuity from the government;
12. Properties especially exempted by law.

à Exemption does not apply if execution upon a judgment for its purchase price or for foreclosure
of mortgage.

à Right of Exemption is a personal right granted to the judgment creditor. The sheriff may thus
not claim it.
10. Third party claims:

1. Purpose of bond filed by judgment obligee or plaintiff is to indemnify third-party claimant, not
the sheriff or officer;
2. Amount of bond not less than value of property levied on;
3. Sheriff not liable for damages if bond is filed;
4. Judgment obligee or plaintiff may claim damages against third-party claimant in the same or a
separate action.
5. 3rd Party claimant may vindicate his claim to property levied in a separate action because
intervention is no longer allowed since judgment already executory; in preliminary attachment
and replevin, 3rd party claimant may vindicate his claim to the property by intervention since the
action is still pending.

11. Who may redeem real property sold:

1. Judgment obligor or his successor in interest in the whole or any part of the property;
2. Creditor having lien by virtue of an attachment, judgment, or mortgage on the property sold
subsequent to the lien under which the property was sold. (Redeeming creditor is termed a
redemptioner).

12. Judgment obligor has one year from the date of the registration of the certificate of sale to
redeem property sold by paying the purchaser the amount of his purchase, with 1% per month
interest plus any assessments or taxes which he may have paid thereon after purchase with
interest on said amount at 1% per month.

Redemptioners have one year to redeem from the date of registration of the certificate of
sale. They may also redeem beyond one-year period within 60 days after the last redemption,
with 2 % interest on the sum to be paid on the last redemption. The judgment obligor’s right to
redeem within 60 days from last redemption is limited to the one-year period, beyond which he
can no longer redeem.

à Purchaser or redemptioner not entitled to receive rents and income of property sold inasmuch
as these belong to the judgment obligor until the expiration of the period of redemption.

13. Effect of judgment or final orders

1. In case of judgment against a specified thing, probate of will, or administration of estate or

legal condition or status, it is conclusive on the title or condition, status, relationship, will or
administration.
2. In other cases/matters directly adjudged, or matters relating thereto that could have been
raised subsequent to commencement of action, judgment is conclusive between parties and
their successors in interest.
3. In any other litigation, that only is deemed to have been adjudged in a former judgment or
which was actually and necessarily included therein.
14. Effect of foreign judgment

1. Judgment upon a specific thing, conclusive upon title to the thing;

2. If against a person, judgment is presumptive evidence of a right as between the parties and
their successors in interest;

15. When foreign judgment may be repelled

1. Evidence of want of jurisdiction

2. Want of notice to party
3. Collusion
4. Fraud
5. Clear mistake of law.
16. Requisites for res judicata
1. Final former judgment
2. Judgment is on the merits
3. Rendered by a court of competent jurisdiction
4. Between first and second actions, identity of subject matter, parties and cause of action.

17. When quashal of writ of execution proper

1. Improperly issued
2. Defective in substance
3. Issued against the wrong party
4. Judgment was already satisfied
5. Issued without authority
6. Change of the situation of the parties renders execution inequitable
7. Controversy was never validly submitted to the court
8. Writ varies the terms of the judgment
9. Writ sought to be enforced against property exempt from execution
10. Ambiguity in the terms of the judgment

18. SPECIAL JUDGMENT – requires the performance of any other act than the payment of money or
the sale or delivery of real or personal property.

19. Remedies against executory judgments or orders:

1. Petition for relief

2. Direct attack
3. Collateral attack – judgment is null on its face or court had no jurisdiction

20. When court may order execution even before an executory judgment and pending an appeal
 1. a. Lapse of time would make the ultimate judgment ineffective;
2. b. Appeal is clearly dilatory;
3. c. Judgment is for support and the beneficiary is in need thereof;
4. d. Articles subject of the case are perishable;
5. e. Defendants are exhausting their income and have no other property aside from the
proceeds from the subdivision of lots subject of the action;
6. f. Movants were in extreme need of the premises subject of the suit and the bond to
answer for damages in case of reversal on appeal (supersedeas bond) was posted by them;
7. g. Judgment debtor is in imminent danger of insolvency;
8. h. Prevailing party is of advanced age and in a precarious state of health and the right in
the judgment is non-transmissible being for support;
9. i. Prevailing party posts sufficient bond to answer for damages in case of reversal of
judgment

à But in most cases, the mere filing of a bond is not sufficient justification for discretionary
execution.

21. Order granting writ of execution ONLY appealable when:

1. Order varies terms of the judgment

2. When vague and court renders what is believed to be wrong interpretation.
22. Garnishment – act of appropriation by the sheriff if the property involved is money, stocks, or
other incorporeal property in the hands of third persons; merely sets apart such funds but does
not constitute the creditor the owner of the garnished property.

23. Persons disqualified from participating in the execution sale:

1. Officer conducting the execution sale or his deputy;

2. Guardian with respect to the property under his guardianship;
3. Agents, the property entrusted to them, unless with principal’s consent;
4. Executors and administrators, the property of the estate under administration;
5. Public officers and employees, the property of the State or any subdivision thereof, or any
GOCC, the administration of which has been entrusted to them;
6. Justices, judges, prosecuting attorneys, clerks of courts, and other officers and employees
connected with the administration of justice, the property and rights in litigation or levied upon
an execution before the court within whose jurisdiction or territory they exercise their
respective functions;
7. Lawyers, the property and rights which may be the subject of litigation in which they take part
by virtue of their profession;
8. Others specifically disqualified by law. (e.g. seller of goods who exercise right of resale of
goods).
Rule 40 Appeal from MTC to RTC
 1. Appeal from judgment or final order of MTC taken to RTC exercising jurisdiction over the area to
which MTC pertains. File notice of appeal with the MTC which rendered decision appealed from
within 15 days after notice of such judgment.
2. Record on appeal is filed within 30 days and required only for special proceedings
3. Appellate docket fees paid to clerk of court of MTC – payment not a condition precedent for
perfection of appeal but must nonetheless be paid within the period for taking appeal;
4. Procedure for appeal from cases dismissed without trial for lack of jurisdiction:
1. If affirmed because the MTC has no jurisdiction, RTC will try case on the merits as if it has
original jurisdiction;
2. If reversed, the case shall be remanded to the MTC;
3. If the first level court tried the case on the merits without jurisdiction, the RTC should not
dismiss the case but shall decide it in the exercise of original jurisdiction.

Reference:
Remedial Law (Civil Procedure) Memory Aid
Ateneo Central Bar Operations 2001
Posted in Civil Procedure

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Tags: Civil Procedure - Rules 31 - 40

Civil Procedure – Rules 21-30

DEC 19

Posted by Magz
Rule 21 Subpoena
1. 1. Subpoena issued by:
1. The court before whom witness is required to attend;
2. The court of the place where the deposition is to be taken;
3. The officer or body authorized by law to do so in connection with its investigations;
4. Any Justice of the SC or CA in any case or investigation pending within the Phils
2. No prisoner sentenced to death, reclusion perpetua, or life imprisonment and who is confined
in any penal institution shall be brought outside said institution for appearance or attendance in
any court unless authorized by the SC.
1. 3. Grounds for quashing subpoena duces tecum
2. 4. Ground for quashing subpoena ad testificandum
1. It is unreasonable or oppressive
2. The articles sought to be produced do not appear to be relevant
3. Person asking for subpoena does not advance cost of production
 1. The witness is not bound thereby – if witness resides more than 100 km from the place where he
is to travel by the ordinary course of travel, or if he is a detention prisoner and no permission is
obtained from the court in which his case is pending
à This is known as the “viatory right” of the witness; NOTE, however, that the right is available
only in CIVIL cases
2. Witness fees and kilometrage allowed by rules not tendered when subpoena served.
1. 5. Service of subpoena made in the same manner as personal or substituted service of
summons.
2. 6. Person present in court before a judicial officer may be required to testify as if he were in
attendance upon a subpoena.
3. 7. Failure by any person without adequate cause to obey a subpoena served upon him shall be
deemed a contempt of the court from which subpoena issued.
Rule 22 Computation of Time
1. 1. Computing for any period of time: day of the act or event from which designated period of
time begins to run is to be excluded and the date of performance included.
2. 2. If last day of period falls on Saturday, Sunday or legal holiday in place where court sits, the
time shall not run until the next working day.
3. 3. If there is effective interruption of period, it shall start to run on the day after notice of the
cessation of the cause of the interruption. The day of the act that caused the interruption is
excluded in the computation of the period.
Rule 23 Depositions Pending Action
DEPOSITIONS DE BENE ESSE – taken for purposes of pending action
1. 1. Depositions pending action
1. 2. Scope of examination – deponent may be examined regarding any matter not
privileged relevant to the subject of the action
2. 3. Examination and cross-examination proceeds as in trials
3. 4. Depositions and Affidavits distinguished
1. Taken by leave of court after court obtains jurisdiction over any defendant or property subject
of the action
2. Taken without leave after an answer has been served
3. Upon the instance of any party
4. May be deposition upon oral examination or written interrogatories

Depositions Affidavits
Written testimony of witness in course of
judicial proceedings, in advance of trial
and hearing Mere sworn written statements
Opportunity for cross-examination No cross-examination
Can be competent testimonial evidence Little probative value (hearsay)
1. 5. Use of depositions
à Any part or all of a deposition which is admissible in evidence may be used against any party
who was present or represented during the taking of the deposition or who had notice thereof as
follows:

Deposition of May be used by

A witness
Any party, or anyone who
at the time of taking the
deposition was an officer,
director, or managing
agent of a public or
private corporation
Of any witness, whether a
party or not
Purpose
To contradict or impeach the
Any party deponent’s testimony as a witness
An adverse
party For any purpose
For any purpose, IF court finds that:
1. Witness is dead;
2. b. Witness resides at a
distance more than 100 km
from place of trial, UNLESS
absence procured by party
offering the deposition
3. c. Witness is unable to
testify because of age,
sickness, infirmity, or
imprisonment;
4. d. Party offering the
deposition has been unable to
procure the attendance of the
witness by subpoena; OR
5. e. Other exceptional
circumstances make it
desirable to allow deposition
Any party to be used.

à Deponent is made the witness of the party offering the deposition.

à If only part of the deposition is introduced, adverse party may require that all of it which is
relevant to the part introduced be introduced.

6. Persons before whom depositions may be taken

a. Within the Philippines

 1. Judge
2. Notary public
3. Any person authorized to administer oaths if the parties so stipulate in writing

b. In foreign countries

1. On notice, before a secretary of any embassy or legation, consul-general, consul, vice-consul,

consular agent of the Phils
1. Before such person or officer as may be appointed by commission or under letters-
rogatories
2. Any person authorized to administer oaths if the parties so stipulate.
Commission – addressed to any authority in a foreign country authorized therein to take down
depositions; the taking of such depositions is subject to the rules laid down by the court issuing
the commission
Letters Rogatory – addressed to judicial authority in the foreign country; the taking of the
depositions is subject to the rules laid down by such foreign judicial authority.

7. Persons disqualified to take depositions

1. Relative within 6th degree of consanguinity or affinity of any party

2. Employee of any party
3. Counsel of any party
4. Relative within the same degree of party’s counsel
5. Employee of party’s counsel
6. Anyone financially interested in the action

8. Depositions upon written interrogatories

à Party desiring to take such deposition shall serve them upon every other party with a notice
stating the name and address of the person who is to answer them and the name and descriptive
title of the officer before whom the deposition is to be taken;

à Party so served may serve cross-interrogatories upon the proponent within 10 days thereafter

à Re-direct interrogatories served within 5 days

à Re-cross interrogatories served within 3 days

9. Effects of errors and irregularities in the depositions

1. As to notice – waived unless written objection is promptly served upon the party giving the
notice
2. As to disqualification of officer – waived unless made before the taking of the deposition begins
or as soon thereafter as the disqualification becomes known or could be discovered with
reasonable diligence
 3. As to competency or relevancy of evidence – NOT waived by failure to make them before or
during the taking of the deposition, unless ground is one which might have been obviated or
removed if presented at that time
4. As to oral exam and other particulars – Errors occurring at the oral exam in the manner of taking
the deposition, in the form of questions and answers, in oath or affirmation, or in conduct of
parties, and errors of any kind which might be obviated, removed, cured if promptly prosecuted
are waived unless reasonable objection is made at the taking of the deposition.
5. As to form of written interrogatories – waived unless served in writing upon party propounding
them within the time allowed for serving succeeding cross or other interrogatories and within 3
days after the service of the last interrogatories authorized.
6. As to manner of preparation – errors as to manner in which the testimony is transcribed or the
deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed or otherwise dealt
with by the officer are waived unless a motion to suppress the deposition or some part of it is
made with reasonable promptness after such defect is, or with due diligence might have been,
ascertained.

à A deposition, in keeping with its nature as a mode of discovery, should be taken before and not
during trial. IN fact, the rules on criminal practice – particularly on the defense of alibi – states
that when a person intends to rely on such a defense, that person must move for the taking of the
deposition of his witness within the time provided for filing a pre-trial motion.

Rule 24 Depositions Pending Action

DEPOSITIONS IN PERPETUAM REI MEMORIAM – taken to perpetuate evidence for purposes of an
anticipated action or further proceedings in a case or appeal.
1. 1. Depositions before action

A person desiring to perpetuate his own testimony or that of another person regarding any matter
that may be cognizable in any court of the Phils may file a verified petition in the court of the
place of the residence of any expected adverse party, which petition shall be entitled in the name
of the petitioner and shall show:

1. That petitioner expects to be a party to an action in a court of the Phils but is presently unable
to bring it or cause it to be brought;
2. The subject matter of the expected action and his interest therein;
3. The facts which he desires to establish by the proposed testimony and his reasons for desiring to
perpetuate it;
4. The names or description of the persons he expects will be the adverse parties and their
addresses so far as known;
5. The name and addresses of the persons to be examined and the substance of the testimony
which he expects to elicit from each.
1. 2. Use of deposition
If deposition to perpetuate testimony is taken under this rule or if not so taken is still admissible
in evidence may be used in any action involving the same subject matter subsequent brought in
accordance with the provisions of Rule 23.

Rule 25 Interrogatories to Parties

1. Interrogatories and the answers thereto should be filed in court and served on adverse parties,
so that the answers may constitute judicial admissions.
2. Effect of failure to serve written interrogatories – a party not served with such may NOT be
compelled by the adverse party to give testimony in open court or deposition pending appeal.
Rule 26 Admission by Adverse Party
1. 1. Request for admission

A written request for the admission of the other party of the genuineness of any material or
document or request for the truth of any material and relevant matter of fact set forth in the
request may be filed and served upon the other party at any time after issues have been joined.

1. 2. Implied admission

Each of the matter requested to be admitted shall be deemed admitted within a period
designated in the request, which shall not be less than 15 days after service thereof or within such
further time as the court may allow on motion, UNLESS, party requested serves upon the party
requesting a sworn statement either specifically denying or setting forth in detail the reasons why
he cannot truthfully either admit or deny those matters.

1. 3. Effect of admission

Admission is only for the purpose of the pending action and shall NOT constitute an admission for
any other person nor may it be used against him in any other proceeding.

1. 4. A party who fails to file and serve a request for admission on the adverse party of material
facts within the personal knowledge of the latter shall not be permitted to present evidence
thereon,
Rule 27 Production or Inspection of Documents or Things
1. Any party may move for the court in which the action is pending to order any party to:
1. Produce and permit the inspection and copying or photographing of any designated
documents, papers, books, accounts, letters, photographs, objects or tangible things, not
privileged, which:
1. Constitute or contain evidence material to any matter involved in the action AND
2. Are in his possession, custody or control.
3. Permit entry upon designated land or other property in his possession or control for
the purpose of inspecting, measuring, surveying, or photographing the property or
any designated relevant object or operation thereon.
2. The order:
1. Shall specify the time, place and manner of making the inspection and taking copies AND
 2. May prescribe such terms and conditions which are just.
Rule 28 Physical and Mental Examination of Persons
1. If the mental or physical condition of a party is in controversy, the court may order him to
submit to a physical or mental examination by a physician.
2. The party examined waives any privilege he may have in that action regarding the testimony of
the person who has examined or may examine him with respect to that same mental or physical
examination by:
1. Requesting and obtaining a report of the examination so ordered OR
2. Taking the deposition of the examiner.
Rule 29 Refusal to Comply with the Modes of Discovery

1. If a party/deponent refused to answer:

1. The examination may be completed on other matters

2. The examination may be adjourned
3. The proponent may apply to the court for order to compel answer

à The court may then order:

1. The refusing party or his counsel to pay the expenses incurred in obtaining the order, including
the attorney’s fees (if it finds the refusal to answer without substantial justification)
2. The proponent or his counsel to pay the expenses incurred in opposing the application, including
attorney’s fees (if it finds the application to be without substantial justification)

2. If a party/witness refuses to be sworn or to answer after being directed to do so by the court,

the refusal may be considered contempt of that court.

1. If a party/officer or managing agent of a party refuses to obey an order requiring him:

a. To answer designated questions

b. To produce a thing for inspection or to permit entry upon property

1. To submit to a physical or mental examination

à the court may order:

1. That the matters regarding which the questions were asked, or the character of the land or the
thing, or the physical and mental condition of the party be taken to be established.
2. The disallowance of the disobedient party’s claims
3. The prohibition of the disobedient party to present evidence
4. The striking out of the pleadings or parts thereof
5. The dismissal of the action or parts thereof
6. Rendering judgment by default against the disobedient party OR
 7. The arrest of any party or agent EXCEPT in disobeying an order to submit to a physical or mental
examination.

4. If a party refuses to attend or serve answers, the court may:

1. Strike out all or any part of any pleading of that party.

2. Dismiss the action or any part thereof.
3. Enter a judgment by default against that party, OR/AND
4. Order that party to pay reasonable expenses incurred, including attorney’s fees.

5. The Republic of the Philippines cannot be required to pay expenses and attorney’s fees under
this Rule.

Rule 30 Trial
1. 1. Order of trial

Trial shall be limited to the issues stated in the pre-trial order and shall proceed as follows:

1. The plaintiff shall adduce evidence in support of his complaint;

2. The defendant shall adduce evidence in support of his defense, counterclaim, cross-claim, and
third-party complaint;
3. The 3rd-party defendant, if any, shall adduce evidence of his defense, counterclaim, cross-claim,
and 4th party complaint;
4. The 4th party and so forth, if any, shall adduce evidence of the material facts pleaded by them;
5. The parties against whom any counterclaim or cross-claim has been pleaded, shall adduce
evidence in support of their defense, in the order to be prescribed by the court;
6. The parties may then respectively adduce rebutting evidence only, unless the court, for good
reasons and in the furtherance of justice, permits them to adduce evidence upon their original
case; and
7. Upon admission of the evidence, the case shall be deemed submitted for decision, unless the
court directs the parties to argue or to submit their respective memoranda or any further
pleadings.
1. 2. Judge should personally receive evidence EXCEPT that in default or ex parte hearings and in
any case where the parties so agree in writing, the court may delegate the reception of
evidence to its clerk of court who is a member of the bar. The clerk shall have no power to rule
on objections to any question or to the admission of exhibits, which objections shall be resolved
by the court upon submission of his report and the transcripts within 10 days from the
termination of the hearing.

Reference:
Remedial Law (Civil Procedure) Memory Aid
Ateneo Central Bar Operations 2001
Posted in Civil Procedure
Leave a comment
Tags: Civil Procedure - Rules 21-30

Civil Procedure – Rules 11-20

DEC 19

Posted by Magz
Rule 11 When to File Responsive Pleadings
1. 1. Answer to complaint – 15 days from service, unless different period fixed by the courts;
2. 2. Answer of defendant foreign private juridical entity – when service of summons is made on
the government official designated by law, answer to be filed within 30 days from receipt of
summons by such entity.
3. 3. Answer to amended complaint – if amended as a matter of right, 15 days from being served
with copy thereof

à If amended not as a matter of right, 10 days from notice of order admitting the same

à Answer earlier filed may be answer to amended complaint, if no new answer is filed

à Applicable to amended counterclaim, cross, third, etc,

1. 4. Answer to counterclaim or cross-claim – within 10 days from service.

2. 5. Answer to 3rd party complaint – 15 days from service
3. 6. Reply – may be filed within 10 days from service of the pleading responded to.
Rule 12 Bill of Particulars
1. 1. Bill of particulars
1. Period of filing motion – before responding to a pleading; if pleading is a reply, within 10 days
from service thereof;
2. Order for bill must be complied with in 10 days from notice OR period fixed by court
3. After service of bill or denial of motion – party has balance of time he was entitled to file
responsive pleading, but not less than 5 days

à Motion for Bill of Particulars may NOT call for matters which form part of the proof of the
complaint. Thus, motion should not be granted if the complaint, while not very definite,
nonetheless already states a sufficient cause of action.

Rule 13 Filing and Service of Pleadings, Judgments and Other Papers

1. 1. Kinds of service of pleadings:

1.
Personal service – to be done whenever practicable (Most preferred mode)
2. Service by mail (ordinary if no registered mail)
3. Substituted service (delivering copy to clerk of court with proof of failure of 1 st 2 modes)
à Except with respect to papers emanating from the court, a resort to other modes must be
accompanied by a written explanation why the service or filing was not done personally.

à Violation of rule may be cause to consider the paper as not filed.

1. 2. Kinds of service of final orders:

1. Personal
2. Registered mail
3. Publication (if summons by publication)

3. Proof of personal service

1. Written admission of party served;

2. Official return of the server; or
3. Affidavit of party serving, containing a full statement of the date, place and manner of service.
Rule 14 Summons
1. 1. Contents of summons
2. 2. Kinds of service of summons:
3. Handing a copy to the defendant in person; OR
1. If he refuses to receive and sign for it, by tendering it to him
2. Substituted:
1. Leave copies at his residence, with person of suitable age and discretion residing
therein; OR
2. Leave copies at defendant’s office/regular place of business, with competent
person in charge thereof.
3. 3. By whom served:
4. 4. When extraterritorial service allowed:
5. 5. Kinds of extra territorial service
6. 6. When service by publication in a newspaper of general publication allowed:
1. Signed by the clerk under the seal of the court
2. Name of the court and that parties to the action
3. Direction that the defendant answer within the time fixed by these rules
4. Notice that unless defendant so answers, plaintiff will take judgment by default
1. Personal:
3. By publication
1. Sheriff
2. Other proper court officer
3. Any suitable person specially authorized by the judge
1. Defendant is a non-resident and is not found in the Philippines and action affects plaintiff’s
personal status
2. Subject of action is property within the Philippines in which the defendant has or claims a lien or
interest
3. Where relief demanded consists in whole or in part in excluding the defendant from any interest
in such property
 4. When property of defendant has been attached within the Philippines
1. Personal service
2. Publication and summons sent by registered mail to last known address
3. Any other matter the court may deem sufficient
1. Identity of defendant unknown
2. Whereabouts of defendant unknown and cannot be ascertained by diligent inquiry
à (a) and (b), applies to ANY action, even actions in personam
3. Defendant is non-resident and the suit is quasi in rem
4. Defendant is temporarily out of the country and the suit is quasi in rem
1. 7. Service upon private domestic juridical entity – refers to corporation, partnership, or
association organized under Phil. Laws with a juridical personality:
2. 8. Service upon private foreign juridical entity transacting business in the Phils:
1. President
2. Managing partner
3. General manager
4. Corporate secretary
5. Treasurer
6. In-house counsel
1. Resident agent designated in accord with Law
2. If no such agent, on government official designated by law OR
3. On any of its officers or agents within the Phils
NOTE: IF NO RESIDENT AGENT, SERVICE OF SUMMONSES AND PROCESSES ON THE SEC.
1. 9. Newspaper of general circulation (RA 4883, PD 1079)
1. Published for the dissemination of local news and general information
2. Has a bona fide subscription list of subscribers
3. Published at regular intervals
4. Not published for nor devoted to the interest of a particular group of persons
5. Must have been regularly published for at least 2 years before the date of the publication in
question.

à Mere filing of an answer per se should not be automatically treated as a voluntary appearance
by the defendant for the purpose of sumons. It should be noted that when the appearance of the
defendant is precisely to object to the jurisdiction of the court over his person, it cannot be
considered as an appearance in court.

Rule 15 Motions
1. 1. All motions must be in writing except:
2. 2. Exceptions to the three-day notice rule:
1. Those made in open court; OR
2. Those made in the course of a hearing or trial.
1. Ex parte motion
2. Urgent motion
3. When court sets hearing on shorter notice for good cause
4. Motion for summary judgment (must be served at least 10 days before the hearing)
à A prudent judge would, in the absence of the opposing party in the hearing of a motion,
inquire from the other party or inquire from the records the proof of the service of notice rather
than proceed with the hearing. He should not rely on a party’s undertaking to notify the adverse
party of a scheduled hearing. The judge must demand what the rule requires, i.e., proof of such
notice on the adverse party. Otherwise, a contentious motion should be considered a mere scrap
of paper which should not have even been received for filing.

à Subsequent service of the motion on the adverse party may be considered substantial
compliance with the Rule 15, § 6. Failure to attach to the motion proof of service thereof to the
adverse party is not fatal when the adverse party had actually received a copy of the motion and
was in fact present in court when the motion was heard.

Rule 16 Motion to Dismiss

1. 1. Motion to Dismiss must be filed within the time for and before the filing of an answer to
complaint.
2. 2. Grounds for motion to dismiss:
1. Court has no jurisdiction over the person of the defendant- unlike old rule, inclusion in motion
to dismiss of other grounds aside from lack of jurisdiction over the person does NOT constitute a
waiver of the said ground or voluntary appearance;
2. Court has no jurisdiction over the subject matter of the claim;
3. Venue is improperly laid;
4. Plaintiff has no legal capacity to sue;
5. There is another action pending between the same parties for the same cause;
à Requisites of litis pendentia:
1. Identity of parties/interest
2. Identity of rights asserted and prayed for/relief founded on the same facts;
3. Identity of the 2 cases (such that judgment in one would amount to res judicata in the other)
6. Cause of action is barred by a prior judgment or by statute of limitations;
à Requisites of res judicata:
1. Final judgment or order
2. Rendered by court of competent jurisdiction
3. On the merits (even without trial, such as cases decided by Judgment on the Pleadings,
Summary Judgment, or dismissed for failure to prosecute or for refusal to obey an order of the
court)
4. Identity of the parties
7. Pleading asserting claim states no cause of action;
8. Claim or demand in the plaintiff’s pleading has been paid, waived, abandoned, extinguished;
9. Claim on which action is founded is unenforceable under the statute of frauds;
10. Condition precedent for filing has not been complied with (this includes prior recourse to
barangay conciliation, or failure to make attempts to reach a compromise in cases between
members of the same family)
à The court shall not defer the resolution of the motion for the reason that the ground relied
upon is not indubitable.

3. Actions that court may take on a Motion to Dismiss:

1. Grant it – remedy: appeal

2. Deny – NOT appealable; but may avail of certiorari, prohibition and mandamus
3. Order amendment of the pleading

4. If denied, defendant must file answer within the balance of the 15-day period, but not less
than 5 days from the time he received notice of the denial;

5. Subject to the right to appeal, dismissal based on the following grounds will be bar to refiling:

1. a. Res judicata
2. Extinguishment of claim or demand
3. Prescription
4. Unenforceability under the Statute of Frauds

6. The dismissal of the complaint shall be without prejudice to the prosecution in the same or
separate action of a counterclaim pleaded in the answer.

à A motion to dismiss on the ground of failure to state a cause of action in the complaint must
hypothetically admit the truth of the facts alleged in the complaint. The admission, however, is
limited only to all material and relevant facts which are well pleaded in the complaint. The
demurrer does not admit the truth of mere epithets charging fraud; nor allegations of legal
conclusions; nor an erroneous statement of law; nor matters of evidence; nor to legally impossible
facts.

Rule 17 Dismissal of Actions

1. 1. Dismissal by the plaintiff
1. Notice of dismissal any time before service of the answer or a motion for summary judgment;
à Dismissal is without prejudice EXCEPT on 2nd notice of dismissal, which operates as adjudication
on the merits when filed by same plaintiff who has once dismissed an action based on or including
said claim.
1. If answer or motion for summary judgment already served, dismissal by a Motion for Dismissal,
which shall require approval of the court; shall be without prejudice unless otherwise specified
by the court

à If counterclaim has been pleaded by a defendant prior to the service upon him of plaintiff’s
motion to dismiss, dismissal is limited to the complaint; dismissal is without prejudice to
defendant’s right to prosecute counterclaim in a separate action or, if he makes a manifestation
within 15 days from notice of the motion, to prosecute CC in same action.
 1. 2. Dismissal due to plaintiff’s fault – the following must be without justifiable cause
1. If plaintiff fails to appear on the date of presentation of his evidence in chief;
2. Plaintiff fails to prosecute claim for an unreasonable length of time
3. Plaintiff fails to comply with the Rules of Court or any order of the court
à Complaint may be dismissed upon defendant’s motion or motu proprio.

à Unless otherwise declared by the court, dismissal has effect of adjudication upon the merits.

RULE ON SEVERANCE OF COMPULSORY CC: Dismissal of principal action upon plaintiff’s motion or
due to plaintiff’s fault does not necessarily carry with it the dismissal of the compulsory CC;
defendant is also given option to prosecute the same in same or separate action.
1. 3. Dismissal of counterclaim, cross-claim, or 3rd-party complaint – must be made by claimant
before a responsive pleading or a motion for summary judgment is served, or if there is none,
before the introduction of evidence.
Rule 18 Pre-Trial

1. What to consider in pre-trial (with notice to counsel or party without counsel)

1. Possibility of amicable settlement or arbitration

2. Simplification of the issues
3. Amendments to the pleadings
4. Stipulations or admissions of facts and documents
5. Limitation of number of witnesses
6. Preliminary reference of issues to a commissioner
7. Propriety of judgment on the pleadings, summary judgments, or dismissal of action
8. Other matters for the prompt disposition of the action
1. 2. It is the duty of the plaintiff to move ex parte for the setting of the case for pre-
trial. However, if plaintiff answers the defendant’s counterclaim, it will be the latter’s duty to
set the pre-trial.
2. 3. Failure of plaintiff to appear shall be cause for dismissal of the action. Non-appearance of
defendant is cause to allow plaintiff to present evidence ex parte and the court to render
judgment on basis thereof.
3. 4. Non-appearance of party excused only if:
1. 5. Must file pre-trial brief so as to ensure that other party receives it at least 3 days
before pre-trial. Failure to file brief has same effects as failure to appear at pre-trial.
2. 6. Proceedings recorded, and court shall issue an order reciting in detail matters taken
up.
1. A valid cause is shown therefor OR
2. If representative shall appear in his behalf fully authorized in writing to enter into an amicable
settlement, to submit to alternative modes of dispute resolution, and to enter into stipulations
or admissions of facts and of documents,
Rule 19 Intervention
1. 1. Grounds for intervention
2. 2. Motion may be filed at any time before rendition of judgment.
 1. 3. Answer to complaint-in-intervention must be filed within 15 days from notice of court
admitting the complaint.
2. 4. Motion for intervention will be granted if it will not unduly delay or prejudice
adjudication of rights or original parties and if the intervenor’s rights may be fully
protected in separate proceedings.
3. 5. Complaint in intervention is merely collateral to the principal action. Hence, it will
be dismissed if main action is dismissed.
4. 6. A complaint in intervention that seeks affirmative relief prevents a plaintiff from
taking a voluntary dismissal of the main action. Such a case is not subject to dismissal
upon intervenor’s petition showing him to be entitled to affirmative relief. The petition
will be preserved and heard regardless of the disposition of the main action.
1. Legal interest in the matter in litigation
2. Interest in the success of either or both parties or interest against both
3. Party is so situated as to be adversely affected by the distribution of the court
4. Disposition of property in the custody of the court or of an officer thereof.
Rule 20 Calendar of Cases

1. Calendar of cases to be kept by clerk of court for cases set for pre-trial, trial, those whose
trials adjourned or postponed and those with motions set for hearings.

1. 2. Preference given to habeas corpus, election cases, special civil actions and those so
required by law.

Reference:
Remedial Law (Civil Procedure) Memory Aid
Ateneo Central Bar Operations 2001
Posted in Civil Procedure

Leave a comment
Tags: Civil Procedure - Rules 11-20

Civil Procedure – Rules 1 – 10

DEC 19

Posted by Magz
CIVIL PROCEDURE
Rule 1 General Provisions
1. Civil action – one by which a party sues another for the enforcement or protection of a right,
or the prevention or redress of a wrong; may be ordinary or special
Criminal action – one by which the state prosecutes a person for an act or omission
punishable by law
 Special proceeding – remedy by which a party seeks to establish a status, a right, or a
particular fact
2. Rules of Court shall NOT be applicable to the following, except by analogy or in a suppletory
character, and whenever practicable and convenient
1. Election cases;
2. Land registration;
3. Cadastral proceedings;
4. Naturalization proceedings; and
5. Insolvency proceedings
Rule 2 Cause of Action
1. Cause of action – an act or omission by which a party violates the right of another

2. Requisites of Joinder of Causes of Action:

1. The party joining the causes of action shall comply with the rules on joinder of parties;
2. The joinder shall NOT include special civil action or actions governed by special rules;
3. Where the causes of action are between the same parties but pertain to different venues or
jurisdiction, the joinder may be allowed in the RTC provided one of the causes of action falls
within the jurisdiction of the RTC and the venue lies therein;

3. Where the claims in all the causes of action are principally for recovery of money, the
aggregate amount claimed shall be the test of jurisdiction.

4. Misjoinder of causes of action NOT a ground for dismissal; the action may, on motion ormotu
proprio, be severed and proceeded with separately.
Rule 3 Parties to Civil Actions

1. Claims that Survive the Death of a Party:

1. Actions to recover real and personal property against the estate;

2. Actions to enforce liens thereon;
3. Actions to recover for injury to persons or property by reason of tort;
4. Actions to recover money arising from contract, express or implied.

2. Death of defendant in action on contractual money claims before judgment of RTC NOT ground
for dismissal. Action continues until entry of final judgment. Any judgment against estate of
deceased will be enforced as money claim. Writ of preliminary attachment, if any, not dissolved.

3. Requisites of Permissive Joinder of Parties:

1. Right to relief arises out of the same transaction or series of transactions, whether jointly,
severally, or in the alternative;
2. There is a question of law or fact common to all the plaintiffs and defendants;
3. Such joinder is not otherwise proscribed by the provisions of the Rules on jurisdiction and venue.
4. Requisites of a Class 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 to the court;
3. Parties bringing the class suit are sufficiently numerous or representative of the class and have
the legal capacity to file the action.

5. Transfer of Interest

à Action may be continued by or against the original party, unless the court, on motion,
directs the transferee to be substituted in the action or joined with the original party; however, if
transfer is made before commencement of the action, the transferee must necessarily be the
party, since only he is the real party in interest.
Rule 4 Venue Of Actions
* Uniform rule on venue in RTC and MTC
1. Venue of real actions – in the proper court which has jurisdiction over the area whereinreal
property involved or a portion thereof is situated.
2. Venue for forcible entry and detainer actions – in the MTC of the municipality or city
wherein the real property or a portion thereof is situated.
3. Venue of personal actions – where the plaintiff or any of the principal plaintiffs resides, or
where the defendant or any of the principal defendants resides, or in the case of a non-resident
defendant where he may be found, at the election of the plaintiff.
NOTE: “residence” means place where party actually resides at time of action; does NOT mean
permanent home or domicile.

4. Action against non-resident not found in the Philippines

1. Action Affects the Plaintiff’s Personal Status – in the court of the place where the plaintiff
resides.
2. Action Affects Any Property of the Defendant in the Philippines – where the property or any
portion thereof is situated or found.

5. Rules on Venue shall NOT apply:

1. In those case where a specific rule or law provides otherwise (e.g., civil case for damages in
cases of libel, where Article 360 of RPC provides specific rules on venue); OR
2. Where the parties have validly agreed IN WRITING before the filing of the action on the
EXCLUSIVE venue thereof.

à In this instance, the action can only be filed in the place agreed upon even if the other place is
the place of residence of the parties or the location of the real property involved.

Rule 5 Uniform Procedure in Trial Courts

1. The procedure in the MTCs shall be the same as that in the RTC.

2. Uniform Procedure shall NOT be applicable:

1. Where a particular provision expressly or impliedly applies only to either of said courts.
2. In civil cases governed by the Rule on Summary Procedure.
Rule 6 Kinds of Pleadings
1. Negative Defense – specific denial of the material fact or facts alleged in the pleading of the
claimant essential to his cause of action.
2. Affirmative defense – an allegation of a new matter which, while hypothetically admitting the
material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery
by him. Includes:
1. Fraud
2. Statute of limitations
3. Release
4. Payment
5. Illegality
6. Statue of frauds
7. Estoppel
8. Former recovery
9. Discharge in bankruptcy
10. Any other matter by way of confession or avoidance.
3. Compulsory counterclaim – Requisites:
1. Arises out of or is necessarily connected with the transaction or occurrence which is the subject
matter of the opposing party’s claim;
2. Does not require for its adjudication the presence of 3 rd parties of whom the court cannot
acquire jurisdiction; and
3. Must be within the jurisdiction of the court both as to the nature and the amount, except that in
an ORIGINAL action in the RTC, the counterclaim may be considered regardless of the amount.
à Agustin vs. Bacalang
A court (if MTC) has no jurisdiction to hear and determine a set-off or counterclaim in excess of its
jurisdiction. A counterclaim beyond the court’s jurisdiction may only be pleaded by way of
defense, the purpose of which is to defeat or weaken the plaintiff’s claim, but NOT to obtain
affirmative relief. MOREOVER, the amount of judgment obtained by the defendant on
appeal cannot exceed the jurisdiction of the court in which the action began. Since the trial
court did not acquire jurisdiction over the counterclaim in excess of the jurisdictional amount, the
appellate court likewise did not have jurisdiction over the same. In such a case, the award in
excess of the jurisdiction of the trial court is void.
à Calo vs. Ajax

A counterclaim, even if otherwise compulsory, but amount exceeds the jurisdiction of the inferior
court, will only be considered permissive. Hence, fact that it is not set-up in the inferior court
will not bar plaintiff from instituting a separate action to prosecute it.
 Rule 7 Parts of a Pleading
1. 1. Formal Requirements of Pleadings:
2. 2. Signature of the lawyer constitutes a certification by him that:
1. Caption
2. Title
3. Body divided into headings and paragraphs
4. Body divided into headings and paragraphs
5. Signature and address
6. Verification in some cases
1. He has read pleading
2. To the best of his knowledge, information, and belief, there is good ground to support it
3. It is not interposed for delay.

3. How a Pleading is Verified: By an affidavit stating that

1. Affiant (person verifying) has read the pleading

2. Allegations therein are true and correct as of his personal knowledge or based on authentic
records. (SC Circular 48-2000, effective May 1, 2000)

4. A pleading required to be verified which:

1. Contains a verification based on “information and belief”, OR

2. Contains a verification based on “knowledge, information and belief,” OR
3. Lacks a proper verification

àShall be treated as an unsigned pleading.

1. 5. What pleadings have to be verified:

1. Petition for relief from judgment (38.3)
2. Appeal by certiorari from CA to SC (45.1)
3. Complaint with prayer for preliminary attachment (57. 3)
4. Complaint for injunction (58.4)
5. Complaint for replevin (60.2)
6. Petition for certiorari (65.1)
7. Petition for prohibition (65.2)
8. Petition for mandamus (65.3)
9. Complaint for forcible entry or unlawful detainer (70.4)
10. Petition for appointment of general guardian (93.2)
11. Petition for leave to sell or encumber property of estate or guardian (95.1)
12. Petition for declaration of competency of the ward (97.1)
13. Petition for habeas corpus (102.3)
14. Petition for change of name (103.2)
15. Petition for voluntary dissolution of a corporation (104.1)
16. Petition for cancellation or correction of entries in the civil registry (108.1)
17. Petition to take deposition in perpetuam rei memoriam (before action or pending appeal) (24.2)
 18. Motion to set aside a default order of an inferior court
19. Motion for dissolution of preliminary injunction on the ground of irreparable damage to the
movant while the adverse party can be fully compensated
20. Petition for appointment of receiver
21. Petition for review of the decision of an RTC in cases within the exclusive original jurisdiction of
the inferior court, by and elevated to the CA.
22. Pleadings that need not be verified but must be under oath:
23. Denial of the genuineness and due execution of an actionable document (8.8)
24. Denial of allegations of usury (8.11)
25. Answer to written interrogatories (25.2)
26. Answer to request for admission (26.2)
27. Notice of appeal from administrative tribunals to the CA

6. Supporting affidavits of merit required:

1. Motion to postpone for absence of evidence (30.3)

2. Motion to postpone for illness of a party or counsel (30.4)
3. Motion for summary judgment or opposition thereto (35.1,2,3,5)
4. Motion for new trial on the ground of FAME or opposition thereto (37.2)
5. Petition for relief from judgment (38.3)
6. Third-party claim (39.16)
7. Proof required of a redemptioner (39.30)
8. Motion for preliminary attachment (57.3)
9. Motion for dissolution of preliminary injunction (58.6)
10. Application for writ of replevin (60.2)
11. Claim against the estate of the decedent (86.9)
12. Motion for new trial based on newly discovered evidence in criminal cases (121.4)

7. Certification against Forum-Shopping: Plaintiff or principal party shall certify under oath in
the complaint or other initiatory pleading or in a sworn certification annexed and filed therewith:

1. That he has not commenced any action or filed any claim involving the same issues in any court,
tribunal or quasi-judicial agency; to the best of his knowledge no such other claim or action
pending;
2. If there is such other pending action, a complete statement of the present status thereof;
3. If he should thereafter learn that same or similar action or claim is filed or pending, he shall
report the same within 5 days therefrom to the court where he filed his complaint.
NOTE: FAILURE TO COMPLY NOT CURABLE BY MERE AMENDMENT OF THE COMPLAINT OR PLEADING
BUT SHALL BE CAUSE FOR DISMISSAL OF THE CASE WITHOUT PREJUDICE; IF THE ACTS OF PARTY OR
COUNSEL CLEARLY CONSTITUTE WILLFUL & DELIBERATE FORUM SHOPPING, GROUND FOR SUMMARY
DISMISSAL WITH PREJUDICE AND CONSTITUTE DIRECT CONTEMPT.

à For Forum-Shopping to exist, there must be:

 1. Same transactions involved;
1. Same essential facts and circumstances; and
2. Actions raise identical cause of action, subject matter, and issues.
Rule 8 Manner of Making Allegations in Pleadings

1. Allegations of capacity

1. Capacity of party to sue or be sued or the authority of a party to sue or be sued in a

representative capacity or the legal existence of an organized association that is made a party
must be averred;
2. To raise an issue as to the legal existence of a party or the capacity of a party in a
representative capacity, do so by specific denial, including such supporting particulars as are
peculiarly within the pleader’s knowledge.

2. Action or defense based on document

1. Substance of such document set forth in the pleading;

2. Original or copy attached to the pleading as exhibit and deemed to be part of the pleading; OR
3. Copy may be set forth in the pleading with like effect.
1. 3. How to contest actionable document: Genuineness and due execution of instrument deemed
admitted unless adverse party:
1. Specifically denies them under oath;
2. Sets forth what he claims to be the facts.

à Requirement of an oath does NOT apply:

1. When diverse party does not appear to be a party to the instrument; or

2. When compliance with an order for an inspection of the original instrument is refused.

à Admission of genuineness and due execution:

1. Party whose signature appears admits that he signed it, or that it was signed by another with his
authority
2. Was in words and figures as set out at the time it was signed
3. Document was delivered
4. Any formal requisites required by law which it lacks are waived by him

à The following defenses are cut-off by admission of genuineness and due execution of the
document:

1. Signature is a forgery
2. Signature is unauthorized
3. Corporation is not authorized under its charter to sign the instrument
1. Party charged signed the instrument in some other capacity than that alleged in the
pleading setting it out
 2. Document was never delivered.
3. 4. Specific Denial
1. Defendant must specify each material allegation of fact the truth of which he does not admit;
2. Defendant must set forth the substance of the matters upon which he relies to support his
denial, whenever practicable;
3. If denying only part of an averment, he shall specify so much of it as is true and material and
shall deny the remainder;
4. If defendant does not have knowledge or information sufficient to form a belief as to the truth
of a material averment, he shall so state and this has effect of denial.
à Negative pregnant – a denial which at the same time involves an admission of the substantial
facts in the pleading responded to.

5. Allegations not specifically denied, other than those as to amount of unliquidated damages
deemed admitted.

Rule 9 Effect of Failure to Plead

1. General Rule: Defenses and objections not pleaded in answer or motion to dismiss are deemed
waived (Omnibus Motion Rule).

Exception: Court shall dismiss the claim, even without allegation in answer or motion to dismiss, if
any of the following appear from the pleadings or the evidence on record:
1. Lack of jurisdiction over the subject matter;
2. Litis pendentia between same parties for the same cause;
3. Res judicata
4. Action barred by statute of limitations.
1. 2. Declaration of Default
1. Defendant entitled to notice of motion to declare him in default and of order of default;
2. Motion to set aside order of default may be filed after notice and before judgment;
3. Party may make motion, under oath, to set aside order of default upon proper showing that
failure to answer was due to FAME;
4. Effect of order of default – party in default entitled to notice of subsequent proceedings but not
to take part in trial;
5. Partial default – if several defending parties and not all in default, the court shall try the case
against all upon the answers thus filed and evidence presented;
6. After declaration of default, court may render judgment on the basis of the complaint or require
claimant to submit evidence;
7. Judgment against party in default shall not exceed the amount or differ in kind from that prayed
for nor award unliquidated damages;
8. No defaults in action for annulment or declaration of nullity of marriage or for legal separation.
Rule 10 Amended and Supplemental Pleadings

1. Amendments of pleadings may be made once as a matter of right:

 1. At any time before responsive pleading is served
2. In the case of a reply, anytime within 10 days after service.

à Plaintiff may amend complaint as a matter of right even after defendant files a Motion to
Dismiss, since the same is not a “responsive pleading.”

1. 2. Substantial amendments may be made only with leave of court, except as provided above.
2. 3. An amended pleading supersedes the pleading that it amends but admissions in superseded
pleadings may be received in evidence against the pleader. (NOT judicial admissions anymore;
thus, must be formally offered)
3. 4. Claims and defenses alleged in original but not incorporated in the amended pleading shall
be deemed waived.

5. Amended and Supplemental pleadings distinguished:

Amended
Refers to facts existing at the time of the
commencement of the action
Results in the withdrawal of the original
pleading
Can sometimes be made as a matter of
right
Supplemental
Refers to facts arising after the filing of
the original pleading
Merely an addition, and does NOT result
in the withdrawal of, the original
pleading
Always filed with leave of court

Reference:
Remedial Law (Civil Procedure) Memory Aid
Ateneo Central Bar Operations 2001
Posted in Civil Procedure

Leave a comment
Tags: Civil Procedure - Rules 1 - 10

Civil Procedure: Rules 40 – 56

DEC 19

Posted by Magz
Appeals
Rules 40 – 56
NOTES ON APPEAL:
Appeal is a matter of right created by statutes. Once denied, one can avail of the constitutional
right to due process

Appeal is asking appellate court to correct errors in the exercise of jurisdiction

Errors of jurisdiction corrected by review on certiorari.

Question of fact (Qf): existence of a particular issue of fact.

Issue: which evidence is credible?

Whether or which particular situations exists.

As the case goes higher in court hierarchy, court deal with evidence as part of record, hence
becomes farther and farther from the source. For this reason, Trial courts are accorded high
respect in their findings of questions of fact.

Questions of law: characterization of facts as shown by the evidence, correct characterization of

fact based on a provision of law. Which law is applicable given a set of circumstances

Several Modes of Appeal:

1. Mandatory – appellate court must accept

2. Discretionary – appellate court can deny

Normally:

First appeal – always mandatory; as a matter of statutory right

Second appeal – discretionary

Third appeal – discretionary (however, if originating fr. MTC, may not be discretionary)

Exercise of jurisdiction – subject matter of appeal

Questions of jurisdiction – file an entirely new case; subject matter of special civil actions

In Appeals – title of the case remains the same

Plaintiff/Defendant only becomes Appellant/Appellee

Issue of jurisdiction – file entirely a different case by filing special civil action attaching as a
ground, abuse of discretion

Appeal can focus in the issue of law or fact or both.

Execution, Satisfaction and Effect of Judgments

Rule 39
Special Civil Actions
Rules 62 – 71
NOTES ON SPECIAL CIVIL ACTIONS:
Certiorari – means discretion

Appeal by certiorari – Rule 45 – title does not change

Petition for review on certiorari – title does not change

Special civil action for certiorari – Rule 65 – title does not change because it is an entirely
different case

Rule 45 is a mode of appeal while Rule 65 is an entirely different action

Petition for Relief from Judgment – title does not change, judge is not a party

On old rule, the Record on Appeal are merely summary of proceedings while the new in the rules,
the entire records are elevated to the appellate court, esp. if only one appeal is possible.

Remedies where more than 1 appeal is allowed e.g., Special Civil Action of Eminent Domain (Mun
of Biñan)

2 orders:

(1) condemnation of the property, Q of just taking, RTC original and exclusive jurisdiction

(2) order of whether there is just compensation

(final order: right to take and use prop)

(final order: value of prop)

Note: In the appeal of the 1st order, the court cannot elevate the entire records since the court
must still rule on the 2nd order. The appellant summarizes records on appeal which must be
approved by the RTC then such will be elevated with exhibits and relevant documents. Therefore
Record on Appeal (in Eminent Domain) substitutes the entire records.

Effect: time periods differ

a. elevation of records – after notice, records are elevated in 15 days

b. records on appeal – 30 days appellee can object within 5 days only upon approval of record.

Note: always institute action at the lowest court to maximize appeals

MTC to RTC – Rule 40

Multiple appeals – notice and record of appeal

Go directly to the SC when appeal contains only questions of law.

Start with CA – action to annul and special civil actions

Only one mode of appeal to SC – Appeal by certiorari.

6-9 – Appeal; execution of judgments – Interpleader, declaratory relief; special civil actions

Ordinary civil actions – record on appeal; in situations when you can take multiple appeals

Special civil actions – eminent domain; record on appeal also essential

Record on appeal substitutes for the records.

Ordinary appeals – entire records are elevated

SC

Original jurisdiction MTC- mode: only appeals by certiorari Rule 45; discretionary on the part of
the SC; raise only questions of law

Stay the judgment of the CA; [15] extendible for compelling reasons for 30 days

Gen Rule: All appeals stay execution of judgment

Exception: Rule 43

CA
Mode: Petition for review by cert; [15] extendible for 15 days and no second extension unless
compelling reasons [15 days]; must raise questions of fact with questions of law or questions of
fact alone (Habaluyas case: a Bar Q, classmates).

Rule 42- file petition not with court of origin but with the CA; summarizes the case, facts, the
issues and puts in the arguments.

RTC

mode: file notice of appeal [15]

Ordinary

appeal Ordinary civil actions- partial new trial

Rule 41 record on appeal [30] several judgments

No extension; avail only separate judgments;

Where mult. Appeals are where appeal is allowed

Avail; raise Q fact & Q law Special civil actions- eminent domain

partition

now: an appeals bond is not Special proceedings- only under Rule 109

required

MTC

Rule 43; in cases originating from Quasi-Judicial Agency, the CA having appellate jurisdiction, the
CA does not stay the execution of Judgment

Quasi-judicial

Agency

Rule 45- Appeal by certiorari (18 copies)

From RTC to SC possible only when questions of law are raised. [15] days extendible for 30 days

Appeals from MTC to RTC – original appellate jurisdiction

Rule 45- errors of exercise of jurisdiction

Rule 65- errors in jurisdiction

SC

Rule 45 Questions of law

Mode: Appeal by cert. Only Ql

CA

Mode: Ordinary appeals

Multiple appeals – notice with record on appeal

Raises Qf/Ql

RTC (exercises original jurisdiction)

SC – discretionary; may wish not to entertain appeal

Rule 45; Questions of law

Appeal by certiorari

CA – Court of origin

Or Annulment of judgment

Nullification of judgment

Special civil actions

Habeas corpus

SC

Mode: Appeal by cert.; raise only Ql; [15] extension [30 days;

Rule 45, furnish 18 copies

RTC

Rule 41 42 45
MTC RTC CA SC

45

QJA CA SC

43 45

APPEAL (PROCESS)

MTC } Ordinary appeal by filing notice of appeal with court of origin within

RTC } 15 days from notice of order Rule 41

Periods not a. notice of appeal [15 days]

Extendible b. notice with record on appeal [30 days]

Original and concurrent jurisdiction

SC – Ordinary civil action – cases involving ambassadors and consuls;

Special civil actions

CA – Ordinary civil actions annulments/nullification of judgment

Special civil actions cert, mandamus, prohibition, h. corpus

Ordinary appeal

Court of origin – where notice of appeal is filed

Perfection: when notice is filed

For defendants that did not file an appeal: when the period
to
appeal had lapsed

From date of perfection of appeal- court loses jurisdiction over the parties

After appeal is perfected- court of origin may still act prior to transmission of records

Not contentious points

Approve compromises
Permit appeals of indigent litigants

Eg. Subject matter is perishable

Appellate Court – has jurisdiction to dismiss the case only for reasons provided in ROC, it is nor
discretionary on their part

MTC to RTC- appellant’s memorandum/ appellee’s memorandum

RTC to CA- appellant’s brief/ appellee’s brief

Petition for review -

Nothing is filed at the court of origin; always filed with the appellate court; summarizes facts

Court has the option to dismiss the petition outright not on the procedural ground but on the
merits because grounds are not substantions (Rule 42, Rule 43)

Other parties required to file only a Comment

Rule 42 & 43 period to file memoranda; not extendible

Rule 45 period to file memoranda; extendible

Ordinary Appeal – Record on Appeal

Should be written by the judge; but burden of drafting the record falls on the appellant

TC losses jurisdiction, with respect to the party filing the appeal, upon its approval of the Record
of Appeal

Other party may object within 5 days from receipt of record on appeal

After approval; notice, record on appeal, exhibits, etc. are elevated to the appellate court

Concept of Multiple Appeals -

Eminent Domain

Concept of Record of Appeal (Summary of the case, looks like a Pre-Trial Brief)- should be written
by the Judge but the burden falls on the appellant, subject to approval of the court. Period:
within 30 days

Court of Origin loses jurisdiction upon the approval of record of appeal

MODES OF APPEAL

Ordinary Appeal Notice (1 Appeal)

Notice with record of appeal (Multiple Appeal)

Petition for Review 42

43

Appeal by Certiorari

Notice: Rule 65 is not an Appeal

Concept of an APPEAL

Errors of jurisdiction Rule 65

Subject matter

Errors in the exercise Appeal

Of jurisdiction

Q: When is appeal by cert under rule 65 available?

A: After a judgment or final order

It is not available if there is already a final judgment (Eternal Gardens) or a final order

Substitutes for an appeal

Gen Rule: No . MNT/MR is technically not a substitute

Excep’n: Presco v. CA, SCA by cert.

PROVISIONAL REMEDIES

Preliminary
Injunction/Preli
minary
Preliminary Mandatory Receiversh Support
Attachment Injunction ip Replevin Pendente Lite
 Preliminary
Injunction/Preli
minary
Preliminary Mandatory Receiversh Support
Attachment Injunction ip Replevin Pendente Lite

To place
the
property
subject of
an action
or
To have To require a proceedin
property of party or a g under
adverse party court, agency the
attached as or a person to control of
security for the refrain from a third To compel
satisfaction of doing a party for adverse
judgment that particular act its party to
may be or acts or to preservati provide
recovered in require the on and To recover support
cases falling performance of administr possession while action
under Sec 1, a particular act ation litis of personal is pending in
Purpose Rule 57. or acts. pendentia property court
At the
At the At the commencem
commencemen At any commence ent of the
t of the action time prior ment of action or at
or at any time At any stage to the action any time
When prior to the prior to the satisfactio but before prior to the
applied/gr entry of judgment or n of answer is judgment or
anted judgment final order judgment filed final order
File verified File
application and verified
applicant’s applicatio
bond; if n and
application is applicant’
included in the s bond;
initiatory applicatio
pleading, the n may File
adverse party also be affidavits File verified
File affidavits should be included and application;
How and applicant’s served with in applicant’s bond not
applied for bond summons initiatory bond required
 Preliminary
Injunction/Preli
minary
Preliminary Mandatory Receiversh Support
Attachment Injunction ip Replevin Pendente Lite

together with a pleading

copy of the in actions
initiatory for
pleading and foreclosur
the applicant’s e of
bond mortgage
Court
where
action is
pending,
the CA or
the SC
even if
action is
pending
in the
lower
court.
Only the Court Appellate
where the court may
action is allow
pending; applicatio
Court where Lower Court, n for
action is Ca or SC receiversh Court of
pending, the provided action ip be Only in the origin and
CA or the SC is pending in decided court appellate
even if action the same court by the where court. (See
Who may is pending in which issues court of action is Ramos v.
grant the lower court. the injunction. origin. pending CA)

 Sufficien
t cause
of action
 Case is
Requisites covered
for by
granting section 1
application Rule 57
 Preliminary
Injunction/Preli
minary
Preliminary Mandatory Receiversh Support
Attachment Injunction ip Replevin Pendente Lite

 No other
sufficient
security
for the
claim
exists
 Amount
due to
applicant
or value
of
property
he is
entitled
to
recover
is equal
to the
sum for
which
the order
of
attachme
nt is
granted
 Applican
t is
entitled
to the
relief
demande
d
 Act/s
complain
ed of
would
work
 Preliminary
Injunction/Preli
minary
Preliminary Mandatory Receiversh Support
Attachment Injunction ip Replevin Pendente Lite

injustice
to the
applicant
if not
enjoined
 Acts
sought to
be
enjoined
probably
violates
applicant
s rights
respectin
g the
subject
of the
action or
proceedi
ng
 Applican
t has
interest
in the
property
or fund
subject
matter of
the
action or
proceedi
ng
 Property
or fund
is in
danger of
being
 Preliminary
Injunction/Preli
minary
Preliminary Mandatory Receiversh Support
Attachment Injunction ip Replevin Pendente Lite

lost
removed
or
materiall
y injured
 Appoint
ment of
receiver
is the
most
convenie
nt and
feasible
means of
preservin
g,
administ
ering or
disposin
g of the
property
in
litigation
 Applican
t is the
owner of
the
property
claimed
or is
entitled
to the
possessio
n of the
same
 Property
is
 Preliminary
Injunction/Preli
minary
Preliminary Mandatory Receiversh Support
Attachment Injunction ip Replevin Pendente Lite

wrongful
ly
detained
by the
adverse
party
 Property
is not
distraine
d or
taken for
a tax
assessme
nt or a
fine
pursuant
to law
 Affidavit
s,
depositio
ns or
other
documen
ts should
show, at
least
provision
ally, that
the
applicant
is
entitled
to
receive
support
Where When third- When
 Preliminary
Injunction/Preli
minary
Preliminary Mandatory Receiversh Support
Attachment Injunction ip Replevin Pendente Lite

property is party claimant third-party

claimed by makes an claimant
third affidavit of his makes an
person title to the affidavit of
property or his his title to
right to the the
possession property or
thereof, and his right to
serves such the
affidavit to the possession
sheriff and a thereof,
copy thereof to and serves
the attaching such
party, the affidavit to
sheriff shall not the sheriff
be bound to and a copy
keep the thereof to
property unless the
the attaching attaching
party files a party, the
bond approved sheriff
by the court to shall not
indemnify the be bound
third-party to keep the
claimant in a property
sum not less under
than the value replevin
of the property unless the
levied upon. applicant
Claim for files a
damages for bond
the taking or approved
keeping the by the
property must court to
be filed within indemnify
120 days from the third-
filing of the party
bond. claimant in
a sum not
 Preliminary
Injunction/Preli
minary
Preliminary Mandatory Receiversh Support
Attachment Injunction ip Replevin Pendente Lite

less than
double the
value of
the
property
levied
upon.
Claim for
damages
for the
taking or
keeping
the
property
must be
filed
within 120
days from
filing of
the bond.
Bond
executed
to the
adverse
party
in double
the
value of
the
property
for the
return of
Bond executed to the adverse party in the amount the
fixed by the court to cover the costs which may property to
be adjudged to the adverse party and all damages the adverse
which he may sustain by reason of the granting party if
Bond of provisional remedy prayed for, if the court such return
requireme shall finally adjudge that the applicant was not be No bond
nt entitled thereto adjudged, required
 Preliminary
Injunction/Preli
minary
Preliminary Mandatory Receiversh Support
Attachment Injunction ip Replevin Pendente Lite

and for the

payment to
the adverse
party of
such sum
as he may
recover
from the
applicant
of the
action
By counter-bond: Party against whom the provisional remedy
is availed of, may move for the discharge of the provisional
remedy granted by filing a counter-bond in an amount equal to
that fixed by the court or equal to the value of the property if N
Discharge with respect to a particular property to secure the payment of ot
of remedy any judgment that the adverse party may recover in the action applicable.
Filing of
counter-bond
made only
upon showing
that the
issuance or
continuance
thereof would
cause
irreparable
damage to the
party or person
enjoined while Amount of
the applicant counter-
can be fully bond
compensated should also
for such bedouble
Cash deposit damages as he the
may be made may suffer ; value of
in lieu of the counter-bond the
counter-bond alone will not property
 Preliminary
Injunction/Preli
minary
Preliminary Mandatory Receiversh Support
Attachment Injunction ip Replevin Pendente Lite

suffice to
discharge the
injunction.
Other
grounds:
improper or Appointm
irregular ent was
issuance or obtained
enforcement or Insufficiency without
insufficiency of of the sufficient
the bond application cause
When
judgment or
final order
finds the
person who
has been
 Owner of property attached must file before trial or before providing
perfection of appeal application for damages support
 Party who availed of provisional remedy and his surety or pendente lite
sureties must be notified , showing right to damages and not liable
Damages therefor:
amount thereof
in case  Court
 Damages awarded only after proper hearing; included in
applicant shall
for any of judgment of the main case
order
the the
provisiona If judgment of appellate court is favorable to the party against whom
recipie
l remedies provisional remedy was effected:
nt to
not
 Application must be filed with the appellate court before return
entitled
thereto or the judgment of the appellate court becomes executory the
for any  Appellate court may allow application to be heard and amoun
irregularit decided by the trial court ts
y in the alread
procureme If bond or deposit given by the party availing of the provisional remedy y
nt of be insufficient or fail to satisfy the award: receiv
provisiona ed
l remedy  Adverse party may recover damages in the same action with
 Preliminary
Injunction/Preli
minary
Preliminary Mandatory Receiversh Support
Attachment Injunction ip Replevin Pendente Lite

interes
t from
the
dates
of
actual
payme
nt
 Recipi
ent
may
obtain
reimb
ursem
ent
from
the
person
legally
oblige
d to
give
suppor
t
(separ
ate
action
must
be
filed
for the
purpos
e)
 If
recipie
nt fails
to
 Preliminary
Injunction/Preli
minary
Preliminary Mandatory Receiversh Support
Attachment Injunction ip Replevin Pendente Lite

reimb
urse
the
amoun
t,
person
who
provid
ed the
same
may
seek
reimb
ursem
ent
from
the
person
legally
oblige
d to
give
the
suppor
t
(separ
ate
action
must
be
filed
for the
purpos
e)
SPECIAL CIVIL ACTIONS
 Fo
Ce re
rti clo
or su
ari re
(C of

Int O
M
Re
al
F
o
er EL Es r

pl
E tat ci
C Certiora e bl
ea Decla an ri M e D
rator d Prohibit or E et
de y C ion Quo Expro tg Part n ai

r Relie
f
O
A)
Manda
mus
Warr
anto
priati
on
ag
e
itio
n
tr
y
n
er
Cont
empt

Decl
arati
on of
right
s and
dutie Div
Com s isio
pel (refo n of
confl rmati Sa real
ictin on of tis pro
g instr fy pert
clai ume cr y
mant nt, ed am Prote
s to quiet ito ong ct
litiga ing r the judic
te of Takin ba part ial
their title, g of se ies syste
clai cons privat d clai m
ms olida e up min from
amo tion prope on g Recover unw
Pu ng of Remo rty se righ possessi arran
rp them own Correcting errors ve a for cu ts on in ted
os selve ershi of jurisdiction usurp publi rit ther fact intru
e s p) er c use y eto sion

Re  C  P Certior  A  R Dire
qu o e ari: e ct
isi n r  A p a cont
tes f s n e l empt
l o y r :
i n tr s p  A
c ib o r
t h u n o p
i a n p e
n s al u e r
g , s r s
i b u t o
c n o r y n
l t ar p
a e d s i b
i r o , s e
m e r h
s s o i o a
t ff n w v
e ic t n e
x u er r e d
i n e u d
s d x d i
t e er e b m
r ci s y p
u si r
p a n i s o
o g n e p
n d ju t v e
e di o e r
t e ci , r l
h d al a y
e , o o l
r r i
s w q p n
a i u u e
m l a n r t
e l si l s h
, ju a o e
s di w n
u c ci f s p
b o al u  P r
j n f l e e
e t u l r s
c r n y s e
 t a ct o n
c io h n c
m t n o e
a s l c
t o h d l o
t r a s a r
e s i
r o re o m s
 S t n r i o
u h d n
c e er e g n
h r e x e
d e r a
c w ju r i r
l r d c g
a i g i h a
i t m s t
m t e e c
s e nt s t o
n  S o u
a u o r
r i c f t t
e n h f h  S
s tr i e u
m t ib c c
a r u e p h
d u n , r
e m al o m
e , p p i
u n et o e s
p t c. s r b
o  P h i t e
n e a t y h
r s i a
a s a o d v
o ct n o i
p n e , e o
e ’ d s r
r s w o
s it r n o
o r h o b
n i o f t s
g ut r t
w h o a w r
h t r n a u
o s in c n c
e h t t
c a x i e
l r c s c d
a e e e o
i ss  A - o
m a o o r
s f f p w
f it u n i
n e s b e n
o c ju l r t
t ri i s e
i e s c h r
n d di i r
t ct o p u
e b io f p
r y n f t t
e Prohibit i o e
s a ion: c d
t  P e c
s r r o c
i t o n o
n a c d t u
t e o i r
t u e e n t
h t di s u
e e n e p
, g o  A r
s s r o
u e in p c
b x a s e e
j e tr u r e
e c ib f s d
c u u f o i
t t n e n n
i al r g
m v , s e s
a e c n
t o a j Indire
t o r n o ct
e r p y conte
r d o a s mpt:
e ra c
r ti t l  M
o a i
o n, w w s
r b h f b
o i u e
r ar c l h
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Reference: University of the Philippines

Posted in Civil Procedure
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Tags: Civil Procedure: Rules 40 - 56

Civil Procedure: Rule 61

DEC 19

Posted by Magz
Support Pendente Lite
Rule 61
Sec. 1. Application. – At the commencement of the proper action or proceeding, or at any time
prior to the judgment or final order, a verified application of support pendente lite may be filed
by any party stating the grounds for the claim and the financial conditions of both parties, and
accompanied by affidavits, depositions or other authentic documents in support thereof.
What is support pendente lite?

It is a provisional remedy which grants a person entitled to support an amount enough for his
“sustenance, dwelling, clothing, medical attendance, education and transportation” (Art. 194,
Family Code) while the action is pending in court. It may be availed of by any of the parties in the
action for support or in a proceeding where one of the reliefs sought is support for the applicant.
The capacity of the person who will provide the support and the needs of the one entitled to be
supported are taken into consideration in setting the amount of support to be granted.

Support pendente lite can be availed of at the commencement of the action or at any time
before the judgment or final order is rendered in the action or proceeding.

The one claiming for support must establish before the court the relationship between the parties
as to entitle one to receive support from the other.

The following are obliged to support each other:

1. The spouses;

2. Legitimate ascendants and descendants;

3. Parents and their legitimate children and the legitimate and illegitimate children of the latter;

4. Parents and their illegitimate children and the legitimate and illegitimate children of the
latter; and

5. Legitimate brothers and sisters, whether of the full or half-blood. ( Art. 195, Family Code)
Sec. 2. Comment. – A copy of the application and all supporting documents shall be served upon
the adverse party, who shall have five (5) days to comment thereon unless a different period is
fixed by the court upon his motion. The comment shall be verified and shall be accompanied by
affidavits, depositions or other authentic documents in support thereof.

The application for support pendente lite is responded to not by an answer but by a verified
comment accompanied by affidavits, depositions or other authentic documents in support of the
facts set forth in the comment.

Sec. 3. Hearing. – After the comment is filed, or after the expiration of the period for its filing,
the application shall be set for hearing not more than three (3) days thereafter. The facts in
issue shall be proved in the same manner as is provided for evidence on motions.

Hearing on the application is mandatory. It shall be held not later than three (3) days from the
receipt of the comment or from the expiration of the period to file the same.

Sec. 4. Order. – The court shall determine provisionally the pertinent facts, and shall render
such orders as justice and equity may require, having due regard to the probable outcome of the
case and such other circumstances as may aid in the proper resolution of the question involved. If
the application is granted, the court shall fix the amount of money to be provisionally paid or
such other forms of support as should be provided, taking into account the necessities of the
applicant and the resources or means of the adverse party, and the terms of payment or mode
for providing the support, If the application is denied, the principal case shall be tried and
decided as early as possible.
Ramos v. Court of Appeals
45 SCRA
Held: Where the trial court ruled that the claim of filiation and support has been adequately
proven, alimony pendente lite can be validly granted pending appeal of such decision.

Trial court’s refusal to grant support pendente lite does not deprive the appellate court the
authority to grant the same especially so where, in view of the poverty of the child, it would be a
travesty of justice to refuse him support until the decision of the judge is sustained on appeal.

Reyes v. Ines-Luciano
81 SCRA
Facts:

Held: Where petitioner failed to present evidence on the alleged adultery of his wife when the
action for legal separation is heard on the merits, the grant of support pendente lite is valid.
Adultery is a good defense and if properly proved and sustained will defeat the action. However,
the alleged adultery of the wife must be established by competent evidence. Mere allegation
would not suffice to bar her from receiving support pendente lite.
In determining the amount to be awarded as support pendente lite it is not necessary to go fully
into the merits of the case, it being sufficient that the court ascertain the kind and amount of
evidence which it may deem sufficient to enable it to justly resolve the application, one way or
the other, in view of the merely provisional character of the resolution to be entered. Mere
affidavits may satisfy the court to pass upon the application for support pendente lite. It is enough
that the facts be established by affidavits or other documentary evidence appearing in the record.

Sec. 5. Enforcement of order. – If the adverse party fails to comply with an order granting
support pendente lite, the court shall, motu propio or upon motion, issue an order of execution
against him, without prejudice to his liability for contempt.
When the person ordered to give support pendente lite refuses or fails to do so, any third
person who furnished that support to the applicant may, after due notice and hearing in the
same case, obtain a writ of execution to enforce his right of reimbursement against the person
ordered to provide support.

Sec. 6. Support in criminal cases. – In criminal actions where the civil liability includes support
for the offspring as a consequence of the crime and the civil aspect thereof has not been waived,
reserved or instituted prior to its filing, the accused may be ordered to provide support pendente
lite to the child born to the offended party allegedly because of the crime. The application
therefor may be filed successively by the offended party, her parents, grandparents or guardian
and the State in accordance with the procedure established under this Rule.

Sec. 7. Restitution. – When the judgment or final order of the court finds that the person who
has been providing support pendente lite is not liable therefor, it shall order the recipient
thereof to return to the former the amounts already paid with legal interest from the dates of
actual payment, without prejudice to the right of the recipient to obtain reimbursement in a
separate action from the person legally obliged to give support. Should the recipient fail to
reimburse said amounts, the person who provided the same may likewise seek reimbursement
thereof in a separate action from the person legally obliged to give such support.
JUDGMENTS AND FINAL ORDERS
FORM

Rule 36, Sec. 1. Rendition of final judgements and final orders. — A judgement or final order
determining the merits of the case shall be in writing personally and directly prepared by the
judge, stating clearly and distinctly the facts and the law on which it is based, signed by him, and
filed with the clerk of court.

Concept of Final Judgement and Final Order

Rule 41, Sec. 1. Subject of appeal. – An appeal may be taken from a judgement or final
order that completely disposes of the case, or of a particular matter therein when declared by
these Rules to be appealable.
No appeal may be taken from:

(a) An order denying a motion for new trial or reconsideration;

(b) An order denying a petition for relief or any similar motion seeking relief from judgement;

(c) An interlocutory order;

(d) An order disallowing or dismissing an appeal;

(e) An order denying a motion to set aside a judgement by consent, confession or compromise on
the ground of fraud, mistake or duress, or any other ground vitiating consent;

(f) An order of execution;

(g) A judgement or final order for or against one or more of several parties or in separate claims,
counter-claims, cross-claims and third-party complaints, while the main case is pending, unless
the court allows an appeal therefrom; and

(h) An order dismissing an action without prejudice.

In all the above instances where the judgement or final order is not appealable, the aggrieved
party may file an appropriate special civil action under Rule 65.

Ceniza v. CA, 218 SCRA 390

Facts: CA, in a resolution, dismissed petitioner Ceniza’s appeal on the ground of delayed filing of
appellants’ brief. Issue here is WON this resolution was a final order?
Held: Yes. A final order or judgment is one w/c either TERMINATES the action itself or operates to
vest some right in such a manner as to put out of the power of the ct. making the order to place
in the parties in their original conditions. A final order disposes of the whole subject matter or
terminates proceedings/action, LEAVING NOTHING TO BE DONE BUT TO ENFORCE BY EXECUTION.
However, a final order is appealable.
KINDS
As to finality
Rendition of Judgement
Rule 36, Sec. 1, supra.
Rule 40, Sec. 2. When to appeal. – An appeal may be taken within fifteen (15) days after notice
to the appellant of the judgement or final order appealed from. Where a record on appeal is
required, the appellant shall file a notice of appeal and a record on appeal within thirty (30) days
after notice of the judgement or final order.
The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No
motion for extension of time to file a motion for new trial or reconsideration shall be allowed.

Rule 41, Sec. 3. Period of ordinary appeal – The appeal shall be taken within fifteen (15) days
from notice of the judgement or final order appealed from. Where a record on appeal is required,
the appellant shall file a notice of appeal and a record on appeal within thirty (30) days from
notice of the judgement or final order.

The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No
motion for extension of time to file a motion for new trial or reconsideration shall be allowed.

Rule 42, Sec. 1. How appeal taken; time for filing – A party desiring to appeal from a decision of
the Regional Trial Court rendered in the exercise of its appellate jurisdiction may file a verified
petition for review with the Court of Appeals, paying at the same time to the clerk of said court
the corresponding docket and other lawful fees, depositing the amount of P 500.00 for costs, and
furnishing the Regional Trial Court and the adverse party with a copy of the petition. The
petition shall be filed and served within fifteen (15) days from notice of the decision sought to be
reviewed or of the denial of petitioner’s motion for new trial or reconsideration filed in due time
after judgement. Upon proper motion and the payment of the full amount of the docket and
other lawful fees and the deposit for costs before the expiration of the reglementary period, the
Court of Appeals may grant an additional period of fifteen (15) days only within which to file the
petition for review. No further extension shall be granted except for the most compelling reason
and in no case to exceed fifteen (15) days.
Entry of judgement
Rule 36, Sec. 2. Entry of judgements and final orders. – If no appeal or motion for new trial or
reconsideration is filed within the time provided in these Rules, the judgement or final order shall
forthwith be entered by the clerk in the book of entries of judgements. The date of finality of the
judgement or final order shall be deemed to be the date of its entry. The record shall contain the
dispositive part of the judgement or final order and shall be signed by the clerk, with a certificate
that such judgement or final order has become final and executory.
Rule 38, Sec. 3. Time for filing petition; contents and verification. – A petition provided for in
either of the preceding sections of this Rule must be verified, filed within sixty (60) days after the
petitioner learns of the judgement, final order, or other proceeding to be set aside, and not more
than six (6) months after such judgement or final order was entered, or such proceeding was
taken; and must be accompanied with affidavits showing the fraud, accident, mistake, or
excusable negligence relied upon, and the facts constituting the petitioner’s good and substantial
cause of action or defense, as the case may be.
Rule 39, Sec. 6. Execution by motion or by independent action. – A final and executory
judgement or order may be executed on motion within five (5) years from the date of its
entry. After the lapse of such time, and before it is barred by the statute of limitations, a
judgement may be enforced by action. The revived judgement may also be enforced by motion
within five (5) years from the date of its entry and thereafter by action before it is barred by the
statute of limitations.
Entry of Satisfaction of Judgement
Rule 39, Sec. 44. Entry of satisfaction of judgement by clerk of court. – Satisfaction of a
judgement shall be entered by the clerk of court in the court docket, and in the execution book,
upon he return of a writ of execution showing the full satisfaction of the judgement executed and
acknowledged in the same manner as a conveyance of real property by the judgement obligee or
by his counsel unless a revocation of his authority is filed, or upon the endorsement of such
admission by the judgement obligee or his counsel on the face of the record of the judgement.
Sec. 45. Entry of satisfaction with or without admission. – Whenever a judgement is satisfied in
fact, or otherwise than upon an execution, on demand of the judgement obligor, the judgement
obligee or his counsel must execute and acknowledge, or indorse, an admission of the satisfaction
as provided in the last preceding section, and after notice and upon motion the court may order
either the judgement obligee or his counsel to do so, or may order the entry of satisfaction to be
made without such admission.
As to process of procuring
Judgement of the Pleadings
Rule 34, Sec. 1. Judgement on the pleadings. – Where an answer fails to tender an issue, or
otherwise admits the material allegations of the adverse party’s pleading, the court may, on
motion of that party, direct judgement on such pleading. However, in actions for declaration of
nullity or annulment of marriage or for legal separation, the material facts alleged in the
complaint shall always be proved.
Judgement on Demurrer to Evidence
Rule 33, Sec. 1. Demurrer to evidence. – After the plaintiff has completed the presentation of
his evidence, the defendant may move for dismissal on the ground that upon the facts and the law
the plaintiff has shown no right to relief. If his motion is denied, he shall have the right to
present evidence. If the motion is granted but on appeal the order of dismissal is reversed he
shall be deemed to have waived the right to present evidence.
Summary Judgements
Rule 35
Sec. 1. Summary judgement for claimant. – A party seeking to recover upon a claim, counter-
claim, or cross-claim or to obtain a declaratory relief may, at any time after the pleading in
answer thereto has been served, move with supporting affidavits, depositions or admissions for a
summary judgement in his favor upon all or any part thereof.
Sec. 2. Summary judgement for defending party. – A party against whom a claim, counter-claim,
or cross-claim is asserted or a declaratory relief is sought may, at any time, move with supporting
affidavits, depositions or admissions for a summary judgement in his favor as to all or any part
thereof.
Sec. 3. Motion and proceedings thereon. – The motion shall be served at least ten (10) days
before the time specified for the hearing. The adverse party may serve opposing affidavits,
depositions, or admissions at least three (3) days before the hearing. After the hearing, the
judgement sought shall be rendered forthwith if the pleadings, supporting affidavits, depositions,
and admissions on file, show that, except as to the amount of damages, there is no genuine issue
as to any material fact and that the moving party is entitled to a judgement as a matter of law.
Sec. 4. Case not fully adjudicated on motion. – If on motion under this Rule, judgement is not
rendered upon the whole case or for all the reliefs sought and a trial is necessary, the court at the
hearing of the motion, by examining the pleadings, and the evidence before it and by
interrogating counsel shall ascertain what material facts exist without substantial controversy and
what are actually and in good faith controverted. It shall thereupon make an order specifying the
facts that appear without substantial controversy, including the extent to which the amount of
damages or other relief is not in controversy, and directing such further proceedings in the action
as are just. The facts so specified shall be deemed established, and the trial shall be conducted
on the controverted facts accordingly.
Sec. 5. Form of affidavits and supporting papers. – Supporting and opposing affidavits shall be
made on personal knowledge, shall set forth such facts as would be admissible in evidence, and
shall show affirmatively that the affiant is competent to testify to the matters stated
therein. Certified true copies of all papers or parts thereof referred to in the affidavit shall be
attached thereto or served therewith.
Sec. 6. Affidavits in bad faith. — Should it appear to its satisfaction at any time that any of the
affidavits presented pursuant to this Rule are presented in bad faith, or solely for the purpose of
delay, the court shall forthwith order the offending party or counsel to pay to the other party the
amount of the reasonable expenses which the filing of the affidavits caused him to incur, including
attorney’s fees. It may, after hearing, further adjudge the offending party or counsel guilty of
contempt.
Rule 29, Sec. 3. Other consequences. – If any party or an officer or managing agent of a party
refuses to obey an order made under section 1 of this Rule requiring him to answer designated
questions, or an order under Rule 27 to produce any document or other thing for inspection,
copying, or photographing or to permit it to be done, or to permit entry upon land or other
property, or an order made under Rule 28 requiring him to submit to a physical or mental
examination, the court may make such orders in regard to the refusal as are just, and among
others the following:

(a) An order that the matters regarding which the questions were asked, or the character or
description of the thing or land, or the contents of the paper, or the physical or mental condition
of the party, or any other designated facts shall be taken to be established for the purposes of the
action in accordance with the claim of the party obtaining the order;

(b) An order refusing to allow the disobedient party to support or oppose designated claims or
defenses or prohibiting him from introducing in evidence designated documents or things or items
of testimony, or from introducing evidence of physical or mental condition;
(c) An order striking out pleadings or parts thereof, or staying further proceedings until the order
is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgement by
default against the disobedient party; and

(d) In lieu of any of the foregoing orders or in addition thereto, an order directing the arrest of
any party or agent of a party for disobeying any of such orders except an order to submit to a
physical or mental examination.

Default Judgements
Rule 9, Sec. 3. Default; declaration of. – If the defending party fails to answer within the time
allowed therefor, the court shall, upon motion of the claiming party with notice to the defending
party, and proof of such failure, declare the defending party in default. Thereupon, the court
shall proceed to render judgement granting the claimant such relief as his pleading may warrant,
unless the court in its discretion requires the claimant to submit evidence. Such reception of
evidence may be delegated to the clerk of court.

(a) Effect of order of default. – A party in default shall be entitled to notice of subsequent
proceedings but not to take part in the trial.

(b) Relief from order of default. – A party declared in default may at any time after notice
thereof and before judgement file a motion under oath to set aside the order of default upon
proper showing that his failure to answer was due to fraud, accident, mistake or excusable
negligence and that he has a meritorious defense. In such case, the order of default may be set
aside on such terms and conditions as the judge may impose in the interest of justice.

(c) Effect of partial default. – When a pleading asserting a claim states a common cause of action
against several defending parties, some of whom answer and the others fail to do so, the
court shall try the case against all upon the answers thus filed and render judgement upon the
evidence presented.

(d) Extent of relief to be awarded. – A judgement rendered against a party in default shall not
exceed the amount or be different in kind from that prayed for nor award unliquidated damages.

(e) Where no defaults allowed. – If the defending party in an action for annulment or declaration
of nullity of marriage or for legal separation fails to answer, the court shall order the prosecuting
attorney to investigate whether or not a collusion between the parties exists, and if there is no
collusion, to intervene for the State in order to see to it that the evidence submitted is not
fabricated.

Judgements after ex parte presentation of Evidence

Rule 18, Sec. 5. Effect of failure to appear. – The failure of the plaintiff to appear when so
required pursuant to the next preceding section shall be cause for dismissal of the action. The
dismissal shall be with prejudice, unless otherwise ordered by the court. A similar failure on the
part of the defendant shall be cause to allow the plaintiff to present his evidence ex parte and the
court to render judgement on the basis thereof.
Compromise Judgement
Order for Dismissal
Motion to Dismiss (See Rule 16)
Dismissals under Rule 17 (Dismissal of Actions)
Dismissals under Rule 18, Sec. 5
Rule 18, Sec. 5. Effect of failure to appear. – The failure of the plaintiff to appear when so
required pursuant to the next preceding section shall be cause for dismissal of the action. The
dismissal shall be with prejudice, unless otherwise ordered by the court. A similar failure on the
part of the defendant shall be cause to allow the plaintiff to present his evidence ex parte and the
court to render judgement on the basis thereof.
Dismissals under Rule 29, Sec. 5
Rule 29, Sec. 5. Failure of party to attend or serve answers. – If a party or an officer or
managing agent of a party wilfully fails to appear before the officer who is to take his deposition,
after being served with a proper notice, or fails to serve answers to interrogatories submitted
under Rule 25 after proper service of such interrogatories, the court on motion and notice, may
strike out all or any part of any pleading of that party, or dismiss the action or proceeding or any
part thereof, or enter a judgement by default against that party, and in its discretion, order him
to pay reasonable expenses incurred by the other, including attorney’s fees.
As to parties
As against one or more several parties

Rule 36, Sec. 3. Judgement for or against one or more of several parties. – Judgement may be
given for or against one or more of several plaintiffs, and for or against one or more of several
defendants. When justice so demands, the court may require the parties on each side to file
adversary pleadings as between themselves and determine their ultimate rights and obligations.
Several Judgement
Rule 36, Sec. 4. Several judgements. – In an action against several defendants, the court may,
when a several judgement is proper, render judgement against one or more of them, leaving the
action to proceed against the others.
Rule 9, Sec. 3 (c). Effect of partial default. – When a pleading asserting a claim states a common
cause of action against several defending parties, some of whom answer and the others fail to do
so, the court shall try the case against all upon the answers thus filed and render judgement upon
the evidence presented.
Against entity without juridical personality
Rule 36, Sec. 6. Judgement against entity without juridical personality. – When judgement is
rendered against two or more persons sued as an entity without juridical personality, the
judgement shall set out their individual or proper names, if known.
As to claims
At various stages or separate judgements
Rule 36, Sec. 5. Separate judgements. – When more than one claim for relief is presented in an
action, the court, at any stage, upon a determination of the issues material to a particular claim
and all counter-claims arising out of the transaction or occurrence which is the subject matter of
the claim, may render a separate judgement disposing of such claim. The judgement shall
terminate the action with respect to the claim so disposed of and the action shall proceed as to
the remaining claims. In case a separate judgement is rendered, the court by order may stay its
enforcement until the rendition of a subsequent judgement or judgements and may prescribe such
conditions as may be necessary to secured the benefit thereof to the party in whose favor the
judgement is rendered.
Rule 31. Sec. 2. Separate trials. – The court, in furtherance of convenience or to avoid
prejudice, may order a separate trial of any claim, cross-claim, counter-claim, or third-party
complaint, or of any separate issue or of any number of claims, cross-claims, counter-claims,
third-party complaints or issues.
Rule 41, Sec. 1 (g). No appeal may be taken from: x x x x A judgement or final order for or
against one or more of several parties or in separate claims, counter-claims, cross-claims and
third-party complaints, while the main case is pending, unless the court allows an appeal
therefrom; and x x x x
As to how executed
Judgements not stayed on appeal
Rule 39, Sec. 4. Judgements not stayed by appeal. – Judgements in actions for injunction
receivership, accounting, support, and such other judgements as are now or may hereafter be
declared to be immediately executory, shall be enforceable after their rendition and shall not be
stayed by an appeal taken therefrom, unless otherwise ordered by the trial court. On appeal
therefrom, the appellate court in its discretion may make an order suspending, modifying,
restoring or granting the injunction, receivership, accounting, or award of support.

The stay of execution shall be upon such terms as to bond or otherwise as may be considered
proper for the security or protection of the rights of the adverse party.

Judgements for money

Rule 39, Sec. 9. Execution of judgements for money, how enforced. –

(a) Immediate payment on demand. – The officer shall enforce an execution of a judgement for
money by demanding from the judgement obligor the immediate payment of the full amount
stated in the writ of execution and all lawful fees. The judgement obligor shall pay in cash,
certified bank check payable to the judgement obligee, or any other form of payment acceptable
to the latter, the amount of the judgement debt under proper receipt directly to the judgement
obligee or his authorized representative if present at the time of payment. The lawful fees shall
be handed under proper receipt to the executing sheriff who shall turn over the said amount
within the same day to the clerk of court of the court that issued the writ.
(b) If the judgement obligee or his authorized representative is not present to receive payment,
the judgement obligor shall deliver the aforesaid payment to the executing sheriff. The latter
shall turn over all the amounts coming into his possession within the same day to the clerk of
court of the court that issued the writ, or if the same is not practicable, deposit said amounts to a
fiduciary account in the nearest government depository bank of the Regional Trial Court of the
locality. .
The clerk of said court shall thereafter arrange for the remittance of the deposit to the
account of the court that issued the writ whose clerk of court shall then deliver said payment to
the judgement obligee in satisfaction of the judgement. The excess, if any, shall be delivered to
the judgement obligor while the lawful fees shall be retained by the clerk of court for disposition
as provided by law. In no case shall the executing sheriff demand that any payment by check be
made payable to him.

(b) Satisfaction by levy. – If the judgement obligor cannot pay all or part of the obligation in cash,
certified bank check or other mode of payment acceptable to the judgement obligee, the officer
shall levy upon the properties of the judgement obligor of every kind and nature whatsoever
which may be disposed of for value and not otherwise exempt from execution giving the latter the
option to immediately choose which property or part thereof may be levied upon, sufficient to
satisfy the judgement. If the judgement obligor does not exercise the option, the officer shall
first levy on the personal properties, if any, and then on the real properties if the personal
properties are insufficient to answer for the judgement.

The sheriff shall sell only a sufficient portion of the personal or real property of the judgement
obligor which has been levied upon.

When there is more property of the judgement obligor than is sufficient to satisfy the judgement
and lawful fees, he must sell only so much of the personal or real property as is sufficient to
satisfy the judgement and lawful fees.

Real property, stocks, shares, debts, credits, and other personal property, may be levied upon in
like manner and with like effect as under a writ of attachment.

(c) Garnishment of debts and credits. – The officer may levy on debts due the judgement obligor
and other credits, including bank deposits, financial interests, royalties, commissions and other
personal property not capable of manual delivery in the possession or control of third parties.
Levy shall be made by serving notice upon the person owing such debts or having in his possession
or control such credits to which the judgement obligor is entitled. The garnishment shall only
cover such amount as will satisfy the judgement and all lawful fees.

The garnishee shall make a written report to the court within five (5) days from service of the
notice of garnishment stating whether or not the judgement obligor has sufficient funds or credits
to satisfy the amount of judgement. If not, the report shall state how much funds or credits the
garnishee holds for the judgement obligor. The garnished amount in cash, or certified bank check
issued in the name of the judgement obligee, shall be delivered directly to the judgement obligee
within ten (10) working days from service of notice on the said garnishee requiring such delivery,
except the lawful fees which shall be paid directly to the court.

In the event there are two or more garnishees holding deposits or credits sufficient to satisfy the
judgement, the judgement obligor, if available, shall have the right to indicate the garnishee or
garnishees who shall be required to deliver the amount due; otherwise, the choice shall be made
by the judgement obligee.

The executing sheriff shall observe the same procedure under paragraph (a) with respect to
delivery of payment to the judgement obligee.

Judgements for specific acts

Rule 39, Sec. 10. Execution of judgements for specific acts. –

(a) Conveyance, delivery of deeds, or other specific acts; vesting title. – If a judgement directs a
party to execute a conveyance of land or personal property, or to deliver deeds or other
documents, or to perform any other specific act in connection therewith, and the party fails to
comply within the time specified, the court may direct the act to be done at the cost of the
disobedient party by some other person appointed by the court and the act when so done shall
have like effect as if done by the party. If real or personal property is situated within the
Philippines, the court in lieu of directing conveyance thereof may by an order divest the title of
any party and vest it in others, which shall have the force and effect of a conveyance executed in
due form of law.

(b) Sale of real or personal property. – If the judgement be for the sale of real or personal
property, to sell such property, describing it, and apply the proceeds in conformity with the
judgement.

(c) Delivery or restitution of real property. – The officer shall demand of the person against
whom the judgement for the delivery or restitution of real property is rendered and all persons
claiming rights under him to peaceably vacate the property within three (3) working days, and
restore possession thereof to the judgement obligee; otherwise, the officer shall oust all such
persons therefrom with the assistance, if necessary, of appropriate peace officers, and employing
such means as may be reasonably necessary to retake possession, and place the judgement
obligee in possession of such property. Any costs, damages, rents or profits awarded by the
judgement shall be satisfied in the same manner as a judgement for money.

(d) Removal of improvements on property subject of execution. – When the property subject of
the execution contains improvements constructed or planted by the judgement obligor or his
agent, the officer shall not destroy, demolish or remove said improvements except upon special
order of the court, issued upon motion of the judgement oblige after due hearing and after the
former has failed to remove the same within a reasonable time fixed by the court.

(e) Delivery of personal property. – In judgements for the delivery of personal property, the
officer shall take possession of the same and forthwith deliver it to the party entitled thereto and
satisfy any judgement for money as therein provided.

Special Judgements
Rule 39, Sec. 11. Execution of special judgements. – When a judgement requires the
performance of any act other than those mentioned in the two preceding sections, a certified
copy of the judgement shall be attached to the writ of execution and shall be served by the
officer upon the party against whom the same is rendered, or upon any other person required
thereby, or by law, to obey the same, and such party or person may be punished for contempt if
he disobeys such judgement.
Effect of Judgements and Final Orders
Local
Rule 39, Sec. 47. Effect of judgements or final orders. – The effect of a judgement or final order
rendered by a court of the Philippines, having jurisdiction to pronounce the judgement or final
order, may be as follows:

(a) In case of a judgement or final order against a specific thing, or in respect to the probate of a
will, or the administration of the estate of a deceased person, or in respect to the personal,
political, or legal condition or status of a particular person or his relationship to another, the
judgement or final order is conclusive upon the title to the thing, the will or administration, or
the condition, status or relationship of the person; however, the probate of a will or granting of
letters of administration shall only be prima facie evidence of the death of the testator or
intestate.

(b) In other cases, the judgement or final order is, with respect to the matter directly adjudged
or as to any other matter that could have been raised in relation thereto, conclusive between the
parties and their successors in interest by title subsequent to the commencement of the action or
special proceeding, litigating for the same thing and under the same title and in the same
capacity; and

(c) In any other litigation between the same parties or their successors in interest, that only is
deemed to have been adjudged in a former judgement or final order which appears upon its
face to have been so adjudged, or which was actually and necessarily included therein or
necessary thereto.

Foreign
Rule 39, Sec. 48. Effect of foreign judgements or final orders. – The effect of a judgement or
final order of a tribunal of a foreign country, having jurisdiction to render the judgement or final
order is as follows:

(a) In case of a judgement or final order upon a specific thing, the judgement or final order is
conclusive upon the title of the thing; and

(b) In case of a judgement or final order against a person, the judgement or final order is
presumptive evidence of a right as between the parties and their successors in interest by a
subsequent title.

In either case, the judgement or final order may be repelled by evidence of a want of jurisdiction,
want of notice to the party, collusion, fraud, or clear mistake of law or fact.

NOTES ON JUDGMENT AND FINAL ORDERS:

Rule 36 § 1. Rendition of judgment and final orders. A judgment or final order determining the
merits of the case shall be:

(1) in writing

(2) personally and directly prepared by the judge

(3) stating clearly and distinctly the facts and the law on which it is based.

(4) Signed by him

(5) And filed with the Clerk of Court.

Rule 36 § 3. Judgment for or against one or more of several parties.

Judgment is rendered in favor of party A; based on particular judgment is rendered only against

Final order – Court has nothing else to do.

Order granting a MTD – a Final Order

Only final orders and judgment are subjects of appeal. Interlocutory orders are not subject of
appeal.

Rendition of judgment – upon the clerk receiving the copy

Book of entry of judgment – date of the lapse of the fifteen (15) days; not on the date of entry.

Book of satisfaction of judgment

Entry of judgment – important for counting of petition for entry of judgment, among others.

First Sense – terminates action

Second Sense of finality – final and executory.

Final judgment under new rules – that which can already be executed

Nunc pro tunc – “then as now”

Final & executory – even if ground is substantial can no longer be modified, except:

1. Clerical errors

2. Nunc pro tunc

3. Annulment of judgment based on extrinsic fraud (Jep Management Co.)

4. Void judgment (Paluwagan and Vda de Macoy) a void judgment never prescribes.

Difference between Motion for Re-open and MNT (taken within the period for taking appeal):

To re-open trial – make use of ordinary prudence, rules on motions

MNT – extrinsic fraud – basis of the cause of action, performance of a contract

Content of the action itself.

Extrinsic Fraud – one of the parties prevented the other by fraudulent acts to be given his day in
court.

Amendment of judgment

Before it becomes final and executory

Eternal Gardens Memorial v. IAC

165 SCRA 439
Facts: A Land Development Agreement was executed between Eternal & Mission. Mission owned
the property & Eternal was to develop it into a memorial park. Thereafter, a Deed of Absolute
Sale w/ mortgage was executed. BUT Maysilo claimed ownership over the land. Thus, Eternal filed
w/ the CFI a complaint for interpleader vs. Mission & Maysilo Estate. It alleged that, in view of the
conflicting claims & to protect its interests, defendants should be required to interplead & litigate
between themselves.
Mission filed a Motion for placing on judicial deposit the amounts due & unpaid fr. Eternal. Motion
was DENIED. The contract was declared ineffective on the ground that the subject matter of the
sale was not existing.

Mission then filed a Motion to Dismiss the Interpleader. TC ordered Eternal to comply w/ the
contract EXCEPT w/ regard to the interpleader of Maysilo Estate. Maysilo filed Motion for Recon
w/c was GRANTED by the TC. Hearings on the merits were ordered BUT Mission filed for Writ of
Execution. This was DENIED. On appeal, CA dismissed & this was affirmed by the SC. The order
became final & executory.

In 1983, heirs of Singson spouses filed an action for quieting of title where Eternal & Mission were
defendants. This case is still pending.

In the present case, Mission filed a petition for certiorari w/ the CA for the setting aside of RTC
orders regarding the setting of the hearing on the merits. CA dismissed BUT later on reversed.
Eternal filed a Motion for Recon w/c was again DENIED.

Held: Courts have the power to amend their judgments, to make them conformable to the
applicable jurisprudence PROVIDED said judgments ARE NOT YET FINAL. In the CAB, Eternal
admitted it still has to pay whoever will be declared as owner. Therefore, there was no plausible
reason for petitioner’s objections to the deposit order after having asked the ct. by complaint for
interpleader whose deposit is not only required but is a contractual obligation.

Finally, there is no res judicata here bec. there was no judgment on the merits. Also, there was
no identity of issues. One case involved the propriety of motion for recon w/o a hearing & the
denial of the motion for execution. The other case involved the propriety of a CA order that
Eternal shall deposit what was required of it pending the trial on the merits.

After it becomes final and executory

David v. CA< 214 SCRA 644

Facts: SUPRA
Held: The filing of the petition for relief fr. judgment w/ the TC was an unequivocal admission on
Afable’s part that his period to appeal fr. the decision had already expired. When a final judgment
has become executory, it thereby becomes immutable & unalterable. The judgment MAY NO
LONGER BE MODIFIED in any respect even if the modification is meant to correct what is perceived
to be an erroneous conclusion of fact or law, & regardless of whether the modification is
attempted to be made by the ct. rendering it or by the highest ct. of the land.

The only recognized EXCEPTIONS are:

1. Correction of clerical errors

2. Judgment Nunc Pro Tunc
3. Where the judgment is VOID

These are entries w/c cause NO INJURY to any party.

Judgments nunc pro tunc

Cardoza v. Singson, 181 SCRA 45

Annulment of judgment

Top Management Programs v. CA

222 SCRA 763
Facts: Gregorio promised to give a large tract of land to Trinidad & Fajardo if a case bet. Greggy
& Velasquez regarding the lot will be successful. Trini & Fajards then filed an action to ENFORCE
the agreement & the TC ruled in their favor. Trini & Fajards then filed a motion for the issuance
of a writ of execution w/c was granted by the TC. The Register of Deeds, however, informed the
ct. that the deed of conveyance cannot be issued in favor of Trini & Fajards bec. the land had
already been sold to other persons. However, the TC directed the Register of Deeds to issue
separate titles in favor of the two. Top Management then filed this petition to annul the orders of
the TC on the ground of extrinsic fraud. It claimed the it has title to the same parcel of land w/c
was being levied upon since it bought the same fr. the heirs of Greggy. The CA dismissed the
petition for annulment.
HELD: Extrinsic fraud is one the effect of w/c PREVENTS a party fr. having a trial or real contest
or fr. presenting all of his case to the ct. or where it operates upon matters pertaining NOT TO
THE JUDGMENT ITSELF but of the MANNER in w/c it was procured so that there is not a fair
submission of the controversy.

In other words, EXTRINSIC FRAUD refers to any fraudulent act of the prevailing party in the
litigation w/c is committed OUTSIDE OF THE TRIAL of the case, whereby the defeated party has
been PREVENTED fr. exhibiting FULLY his side of the case, by fraud, deception or deception
practiced upon him by his opponent.

The relief is granted on the theory that by reason of the extrinsic fraud preventing a party fr. fully
trying his case, there has never been a real contest before the ct. on the subject matter of the
action.

The allegations that the judge had no jurisdiction to order the sheriff to levy on execution since
the judge had full knowledge that Top Management & not Greggy who owned the land, that the
writ vs. the prop. was not justified bec. Top Management was not a party to the case–These DO
NOT CONSTITUTE FRAUD.
Top Management has not pointed to any act w/c prevented it form fully ventilating its case. If
ever there was any failure in the presentation of its case, it was caused by its own inaction.

Paluwagan ng Bayan v. King, 172 SCRA 60

Vda. De Macoy v. CA, 206 SCRA 244
Motion for New Trial/Reconsideration

Grounds and nature, Rule 37, Sec. 1

Motion for new trial, Rule 37, Sec. 1, par 1

Distinguished from Motion to reopen trial

Agulto v. CA, 181 SCRA 30

Facts: Agulto was convicted of bigamy. He filed a motion to reopen trial due to newly discovered
evidence AFTER THE PARTIES HAD RESTED BUT BEFORE JUDGMENT. His new evidence was a
photocopy of a marriage certificate of his second wife to another man. (His theory was that if his
second wife had been previously married, he could not have validly married her, therefore, no
bigamy).
Held: The MNT may be filed AFTER judgment but w/in the period of perfecting an appeal for the
grounds stated in S1,R37 & S2R121.

A Motion to Reopen Trial may be presented only after either or both parties have formally offered
& closed their evidence but BEFORE judgment. The reopening of a trial for the reception of new
evidence is not a grant of a new trial. There is no specific provision in the rules w/c governs. It is
only a recognized procedural recourse deriving validity fr. long established rules. The governing
rule is paramount interests of justice resting entirely on the sound judicial discretion of the trial
ct.. Therefore, the grant/denial is not subject to certiorari under grave abuse of discretion.

On the merits, the SC decided that the new evidence had defects & it failed to show that the 2nd
wife’s marriage was still existing when she married Agulto.

Grounds

Velasco v. Ortiz, 184 SCRA 303

Facts: The ward of the spouses Velasco was able to w/draw money of the dead husband of P
Velasco (the latter was diagnosed as disabled). The ward argued that she was instructed by the
decedent to w/draw money. The TC ruled in favor of Velasco. Copy of the decision was given to
the 1st counsel of the ward. The NEW counsel filed an MNT based on newly discovered evidence
(a certification fr. a doctor that the decedent can still properly communicate)
Held: For Velasco. There is no dispute that at the time the MNT was filed, the reglementary
period to appeal had lapsed, & the decision had become final & executory. A judgment w/c has
become final & executory can no longer be altered & modified, mush less set aside by the ct. w/c
rendered it since such ct. has already lost jurisdiction over the case. Thereafter, the power &
prerogative to order suspension of the rules of procedure is reposed, not in the ct. w/c had
rendered such decision but rather in an appellate ct. & ultimately in the SC, & then only upon a
showing that otherwise the imperious demands of substantial justice will be thwarted.

Where the reglementary period to appeal had expired, the remedy is an MNT. If it has become
final & executory, one can file a petition for relief under R 38 or a petition for annulment of
judgment.

An MNT upon the ground of newly discovered evidence is properly granted where there is
concurrence of the following requisites:

1. the evidence had been discovered after trial;

2. the evidence could not have been discovered & produced during trial even w/ exercise of
reasonable diligence

3. the evidence is material & not merely corroborative, cumulative or impeaching.

What is essential is not so much the time when the evidence offered first sprang into existence
not the time when it first came to the knowledge of the party now submitting it; what is essential
is, rather, that the offering party had exercised reasonable diligence in seeking to locate such
evidence before or during trial but had not nonetheless failed to secure ( it must have been
searched for but not found during trial. )

In the CAB, the new evidence was already presented as evidence in a criminal case vs. the ward
for falsification. Therefore, she had already come across that evidence before.

Moreover, it is in the nature of an impeaching evidence for it seeks merely to weaken or

controvert previous evidence; it is not material or corroborative.

Tumang v. CA 172 SCRA 332

Facts: Tumang filed for an annulment of a deed of sale bec. there was no consideration. The trial
ct. rule for her. The defendant filed an MFR & an MNT based on the ground that the decision was
based on insufficiency of evidence & that it was contrary to law. As evidence, D presented
receipts proving consideration. Tumang assails the decision of the CA w/c granted the motion of
D by saying that it was FORGOTTEN EVIDENCE (it had existed at trial & w/c could have been
discovered by D if due diligence was exercised.
Held: NEWLY DISCOVERED EVIDENCE: need not be newly created evidence. May & does
commonly refer to evidence already in existence prior or during the trial but w/c could not have
been secured & presented during the trial despite reasonable diligence.
FORGOTTEN EVIDENCE: evidence already in existence or available before or during the trial, w/c
was known to & obtainable by the party offering it w/c could have been presented seasonably
were it not for the oversight or forgetfulness of such party or his counsel.

In the case at bar, the receipts were found during a gen. cleaning, w/c goes to show that the it
could hardly have been located w/ the exercise of reasonable/average diligence.

The receipts are MATERIAL bec. they are of such import that a reasonably prudent man
would have searched for them. There would be a great benefit to D if he presents it in trial,
therefore, there is no reason why did not try to locate it.

Motion for reconsideration, Rule 37, Sec. 1, par. 2

Periods. Rule 37, Sec. 1

For filing

Effect of Motion for Extension of Time to File

See also Rule 41, Sec. 3, par. 2; Rule 40, Sec. 2, par. 2

Habaluyas v. Japson, 142 SCRA 208

This a resolution on a Motion for Reconsideration on the SC’s 2nd division decision.

Held: In S 39 of BP 129, the period of appeal in the RTC was reduced fr. 30 to 15 days for appeals
fr. final orders, resolution, awards, judgment or decision. But only 48 hours for habeas corpus
cases.

Only notice of appeal is required. Record is not required except in (a) appeals in spl. proc.; (2)
where multiple appeals are allowed. In these cases, the period is 30 days. According to the
Interim Rules, no appeal bond in necessary for appeal. Its S 4 disallows a second MFR of a final
order or judgment.

The purpose of such is to avoid procedural delays. But the Rules does not expressly prohibit a
motion for extension of time to file a MFR of a final order or judgment.

The interest of justice would be better served if the ruling in the original decision (denying
extension) were applied prospectively fr. the time herein stated. It would be unfair to deprive
parties of their right to appeal simply bec. they availed themselves of a procedure w/c was not
expressly prohibited or allowed by the law or Rules.
On the other hand, an MNT or MFR is not a prerequisite to an appeal, a petition for review or a
petition for review on certiorari, & since the purpose is to expedite the final disposition of cases,
a strict but prospective application of said ruling is in order

From June 30, 1986, the rule shall be strictly enforced that no motion for extension of time to file
an MNT or MFR, may be filed w/ the MeTC, MTC, RTC, & IAC. Such a motion may be filed only in
cases pending w/ the SC as the ct. of last resort, w/c may in its sound discretion either grant or
deny the extension requested.

In appeals in spl. proc. under R 109 & in other cases wherein multiple appeals are allowed, a
motion for extension of time to file the record on appeal may be filed w/in the reglementary
period of 30 days. If the ct. denies the motion for extension, the appeal must be taken w/in the
original period since such a motion does not suspend the period for appeal.

The TC may grant said motion after the expiration of the period for appeal provided it was filed
w/in the original period.

Not required for appeal

Director of Lands v. Aquino, 192 SCRA 296

Facts: Abra Industrial applied for registration of a piece of land w/c was granted. The Director
opposed saying that the land was mineral & unalienable. Within one year fr. the issuance of the
registration decree, Director filed a petition for review the decrees of registration.
Held: An MNT or MFR is not a pre-requisite to an appeal for review or petition for review on
certiorari. The reglementary period for filing a petition for review on certiorari in the instant
case was 30 days fr. notice of order or judgment subject of review w/c period, parenthetically, is
now 15 days pursuant to S 39 of BP129. The Director having been granted a total of 60 days w/in
w/c to file the petition, the same was timely filed.

Second Motion for New Trial, Rule 37, Sec. 5, par. 1

Second Motion for Reconsideration, Rule 37, Sec. 5, par. 2

For Resolution, Rule 37, Sec. 4

Contents of Motion for New Trial, Rule 37, Sec. 2

In general, Rule 37, Sec. 2; see also Rule 15

Motion for New Trial, Rule 37, Sec. 2, par. 2

Motion for Reconsideration, Rule 37, Sec. 2, par. 3

Pro forma motion and its effects, Rule 37, Sec. 2, par. 4
 Pojas v. Gozo-Dadole, 192 SCRA 575
Facts: The plaintiff filed a complaint for recovery of possession. The TC ruled for the plaintiff &
ordered the defendant to vacate. The defendant filed an MFR BUT IT FAILED TO MENTION THE
DAY THE MOTION IS TO BE RESOLVED (no notice of hearing). Later, the defendant filed a notice of
appeal.
Held: Notice of appeal denied. The MFR was a mere scrap of paper & therefore, pro forma. It
did not contain the day when the motion is to be heard, violating S5 R15. As such it does not
suspend the running of the period of appeal. The notice of appeal filed out of time.

Action upon Motion for New Trial

Options in general, Rule 37, Sec. 3

Granting, Rule 37, Sec. 6

Effect in general, Rule 37, Sec. 5

Fernan v. CA, 142 SCRA 208

Facts: Fernan was suspected of having stolen a wallet. The TC ruled against the plaintiff store &
awarded damages to Fernan. The CA affirmed the TC but upon the MFR of the plaintiff, the TC
was reversed.
Held. The appeal of the store raises no question of law but of fact Review of facts is not a
function of the CA. An exception to this rule is when manifestly correct findings has been
unwarrantedly rejected or reversed. In the CAB, the CA reversed the TC. These instances of
conflict of findings between the CA & TC is a basis of recourse to the SC.

There must be a showing on the face of the record of gross or extraordinary misperception or
manifest bias.

In the CAB, there was no substantial reason given by Fernan refuting the assessment of the CA w/c
ruled that her testimony had contradictions & inconsistencies.

Partial New Trials, Rule 37, Sec. 6, 7

Denying

Remedies, Rule 37, Sec. 9; Rule 41, Sec. 1 (a)

NOTES ON MOTION FOR NEW TRIAL & MOTION FOR RECONSIDERATION:

Judgment is vacated.

On appeal – accept evidence as it is; attach the evidence as it is.

New trial is not de novo, only those affected

Denial of MNT – appeal the judgment within the remaining time to file an appeal even if less than
five (5) days.

MNT- not supported by evidence, not supported by law, damages are excessive.

There can be a second MNT only when ________

Order granting MNT – first judgment is vacated for purposes of entering new evidence.

When judgment may be vacated in part – in case of separate and several judgments.

Motion to Re-open – governed by rules on Motions.

Options after judgment: but not yet final & executory:

1. Appeal

2. Motion for new trial FAME/good & substantial grounds for saying so

Discovery after J is ren

Newly discovered evidence Not discovered with reasonable evidence

Not merely colorative

3. Motion for reconsideration

(a) evidence

(b) law

(c) award of damages is excessive

After final & executory:

1. Nunc pro tunc

2. Petition for relief from judgment

3. Annulment of judgment

4. Remedies during execution

Final judgment – 16th day after notice

No prescriptive period in actions to nullify

Estoppel – by act

Laches – by negligence

Petition for relief from judgment- equitable remedy; only very highly discretionary on the part of
the court.

Action to annul – separate action. Res judicata may be raised.

Any kind of order for Petition for relief, if granted, not appealable.

If not granted, not appealable – only special civil actions

Relief from Judgments, Orders or other Proceedings

Grounds and nature, Rule 38, Secs. 1, 2

Grounds

Garcia v. CA, 202 SCRA 228

Facts: Eduardo Garcia was able to secure a judgment fr. the trial ct. issuing to him the
Certificate of Title to a land actually owned by the spouses Garcia. He did this by misinforming
the ct. of the spouses’ address so that the notices wont reach them thereby depriving them of the
opportunity to participate in the trial. Garcia further made further recovery of the land difficult
by conveying the land to another. The couple filed a petition for relief (PFR) fr. said judgment
but failed to categorically allege extrinsic fraud in their affidavit of merit. The PFR was
dismissed by CA saying that extrinsic fraud should be expressly alleged in the affidavit of merit for
the petition to lie. The SC said that since in case at bar, the spouses were able to allege facts
leading to extrinsic fraud, express allegation of such is not necessary.
Held: Where fraud is the ground, the fraud must be extrinsic or collateral & the facts upon w/c
the extrinsic fraud is based must have not been controverted or resolved in the case where the
judgment sought to be annulled was rendered. For this purpose, fraud is regarded as extrinsic or
collateral where it has prevented a party fr. having a trial or fr. presenting all of his case to the
ct.. Intrinsic fraud takes the form of acts of the party in a litigation during the trial, such as the
use of forged instruments of perjured testimony w/c did not affect the presentation of the case
but did prevent a fair & just determination of the case.
Conde v. IAC, 144 SCRA 144
Facts: Petitioners alleged fraud. Gutierrez was able to make it appear that he was the son
of Esteban & Fermina Gutierrez & as a necessary consequence of such filiation, was the absolute
owner by succession of the prop. in Q.
Held: Petition should be dismissed for lack of merit bec. the fraud allegedly perpetuated by G is
only intrinsic in nature & not extrinsic. Fraud is regarded as extrinsic or collateral where it has
prevented a party fr. having a trial or fr. presenting all of his case to the ct.. In the case at bar,
the fraud was in the nature of documents allegedly manufactured by G to make it appear he was
the rightful heir of the disputed property. Hence the fraud is intrinsic in nature.
Meralco v. CA, 187 SCRA 200
Facts: Meralco, after failing to appear at a pre-trial conference, was declared in
default. Thereafter, Meralco made the following steps: 1) Filed a MFR to Lift Order of Default &
to Vacate Judgment by Default – bec. of counsel’s influenza. Denied. 2) Petition for Relief fr.
Judgment . Dismissed. 3) Petition for Certiorari. Propriety of this last action is the issue in this
case.
Held: Certiorari is not proper. Such remedy had already been lost bec. of Meralco’s neglect or
error in the choice of remedies. Certiorari shall not lie to shield Meralco fr. the adverse
consequences of such neglect or error. Relief under Rule 38 is of equitable character & is allowed
only in exceptional cases where there is no other available or adequate remedy. Meralco could
have proceeded by appeal to vacate or modify the default judgment. Relief will not be granted
when the loss of remedy at law was due to his own negligence or a mistaken mode of procedure,
otherwise the petition for relief will be tantamount to the right of appeal already. Further, when
other lawyers could have appeared & moved for postponement, sickness of counsel is not
excusable.

Requires final judgment or loss of appeal

Villa Rey Transit v. Far East Motor Co., 81 SCRA 298

Facts: Villa Rey failed to answer w/in the reglementary period even after denial of its motion to
extend time to answer. Hence, & order of default was rendered. Thereafter it filed a MTQ Service
of Summons, Motion to Lift Order of Default & To Set Aside Judgment. This was denied. The 30-
day appeal period expired w/o any appeal. Villa Rey contends the motion it filed should be
considered as Petition for Relief.
Held: This is untenable. A petition for relief presupposes a final & unappealable judgment. In
this case, judgment has not yet become final & unappealable at the time of the filing of the
motion.
David v CA, 214 SCRA 644
Facts: An RTC decision was affirmed by CA w/ slight modification to reflect the date for the
computation of the interest to be awarded. This was done after denying the petitioner’s relief fr.
judgment.
Held: CA. In sustaining the RTC decision to deny the petition for relief fr. judgment the
respondent Court cannot at the same time modify the decision sought to be overturned by such a
petition. The filing of the petition for relief fr. judgment w/ the trial ct. was an unequivocal
admission on the private respondent’s that his period to appeal fr. the decision had already
expired. A petition for relief fr. judgment under Rule 38 presupposes a final judgment or loss of
the right to appeal. The affirmance of the CA of the denial of the petition is a confirmation of the
existence of a final & executory judgment. CA can neither amend nor modify it. When a final
judgment becomes executory it becomes immutable & unalterable, even if modification is meant
to correct an erroneous conclusion of fact or law. Only corrections of clerical errors or the making
of so-called NUNC PRO TUNC entries & other judgment w/c cause no prejudice to any party are
the exceptions to this rule, otherwise any other modifications of a final & executory judgment is
VOID.

Time for Filing, Rule 38, Sec. 3

Strictly followed

First Integrated Bonding v. Hernando, 199 SCRA 796

Facts: FIB was impleaded as the insurance agency of defendant who figured in an accident killing
one person. FIB failed to answer so it was declared in default. FIB took no positive step to vacate
the order of default. Instead it chose to file a petition for relief fr. judgment almost five months
fr. its receipt of copy of the amended decision.
Held: The petition for relief fr. judgment was filed out of time. The rules require that such
petition should be filed w/in 60 days after receipt of judgment & not more than six months after
entry of judgment. Period required by R 38 is non-extendible & never interrupted. It is not
subject to any cond. or contingency, bec. it is itself devised to meet a condition or
contingency. The remedy under the Rule 38 was an act of grace, designed to give the party one
last chance. Being in the position of one who begs, such party’s privilege is not to impose
conditions, haggle, or dilly-dally, but to grab what is offered him.

Contents

Affidavit of Merit, Rule 38, Sec. 3

Garcia v. CA, 202 SCRA 228

Facts: Eduardo Garcia was able to secure a judgment fr. the trial ct. issuing to him the
Certificate of Title to a land actually owned by the spouses Garcia. He did this by misinforming
the ct. of the spouses’ address so that the notices wont reach them thereby depriving them of the
opportunity to participate in the trial. Garcia further made further recovery of the land difficult
by conveying the land to another. The couple filed a petition for relief fr. said judgment but
failed to categorically allege extrinsic fraud in their affidavit of merit. The PFR was dismissed by
CA saying that extrinsic fraud should be expressly alleged in the affidavit of merit for the petition
to lie. The SC said that since in case at bar, the spouses were able to allege facts leading to
extrinsic fraud, express allegation of such is not necessary.
Held: CA denied PFR for want of express allegation of extrinsic fraud. SC reversed saying that
since Rule 38 Sec 3 (FAME as ground in affidavit of merit for PFR) & that in case at bar,
petitioners were able to show extrinsic fraud, affidavit is not necessary. HELD: The affidavit of
merit serves as a jurisdictional basis for a ct. to entertain a petition for relief. But it admits
of exceptions, i.e. Where the attachment of the affidavit of merit in the petition for relief is
unnecessary. The affidavit of merit is essential bec. a new trial would be a waste of court’s time
if the complaint turned out to be groundless. Thus, where there was no jurisdiction over the
defendant on the subject matter of the action, where a judgment was taken by default before
defendant’s time to answer had expired, where it was entertained by mistake, or was obtained by
fraud & other similar cases, as when the applicant had no notice of the trial, we ruled that an
affidavit is not necessary.

When motion for reconsideration considered as petition for relief

Dulos v. CA, supra

Facts: Nocom spouses filed forcible entry case v Dulos spouses in the MTC Las Piñas. Pre-trial
was set but the Nocoms still filed another case for annulment & a writ of preliminary injunction in
Makati. Dulos’ motion for suspension on forcible entry case was dismissed there being no
prejudicial question. Pre-trial saw that the Dulos spouses were in default despite the presence of
a purported representative (Rectra) who held a special power of attorney executed by said
spouses. Judgment on forcible entry case for the Nocoms. The Dulos’ filed a motion for
reconsideration of said judgment w/c was denied & the aggrieved spouses went to the Supreme
Court via special civil action for certiorari, w/c the Supreme Court dismissed. Nocoms filed for a
writ of demolition w/c was countered by petitioner spouses by filing for a petition for certiorari,
prohibition & preliminary injunction, w/c was granted by the CA. Hence, this appeal.
Held: A motion for reconsideration of a judgment of default may be considered a petition for
relief fr. judgment under R38 S2 only if it is a)verified, b) filed w/in 60 days fr. time petitioner
learns of the decision but not more than 6 months fr. entry of judgment & c) if in case of failure
to file an answer the motion must be accompanied by an affidavit of merit. It may be considered
as a motion for new trial under R27 S2 only if it is accompanied by an affidavit of merit.

Action of Court before Answer

Power to Deny, Rule 37, Sec. 4

Remedies after denial, see Rule 41, Sec. 1(b)

Service Specialists v. Sheriff of Manila, 145 SCRA 139

Facts: Service Specialists & counsel failed to appear at a pre-trial & was declared in
default. Service filed a petition for relief fr. judgment. The lower ct. dismissed the petition for
relief for lack of jurisdiction to hear & determine the same. Service filed a notice of appeal to
the IAC.
Held: Service filed its petition for relief also w/ the RTC Manila but not in the same case but in
another case. This is erroneous. A judgment or order denying relief under Rule 38 is final & not
appealable, unlike an order granting such relief w/c is interlocutory. However, in such an appeal,
the appellate ct. is only to determine the existence of any of the grounds relied upon (fraud,
accident, mistake or excusable negligence) & the merit of the petitioner’s cause of action or
defense, as the case may be. Moreover, Service merely filed a notice of appeal to the IAC fr. the
order of the lower ct. w/c dismissed his petition for relief. The appeal should have been made to
this Court through a petition for review on certiorari.

Prelimnary Injunction pending proceedings, Rule 38, Sec. 5

Order to file an answer, Rule 38, Sec. 4

Procedure

Order to file an answer, Rule 38, Sec. 4

Availability of preliminary injunction, Rule 38, Sec. 5

Proceedings after answer is filed, Rule 38, Sec. 6

Where denial of appeal is set aside, Rule 38, Sec. 7

Action of court after giving due course

Granting of petition for relief, Rule 38, Sec. 7

Remedies

David v. CA, 214 SCRA 644

Facts: An RTC decision was affirmed by CA w/ slight modification to reflect the date of
computing interest. This was done after denying the petitioner’s relief fr. judgment.
Held: The remedy under R41 w/c provides that a judgment denying relief under R38 is subject to
appeal, & in the course thereof, a party may also assail the judgment on the merits, upon the
ground that it is not supported by the evidence or it is contrary to law. This provision, however,
can’t be construed as allowing the review of the decision on the specific ground therein indicated,
if the denial of the petition for relief by the TC is sustained by the Appellate Court. It may only
be done if the appellate ct. overturns such denial. The CA, after sustaining the trial court’s
denial of the petition for relief should have dismissed the appeal & to declare the lower court’s
decision as firm, final & executory.
Cheesman v. IAC, 193 SCRA 93
Facts: Thomas Cheesman attempted to annul the sale by his Filipino wife of a residential lot &
building to Padilla. The sale was declared void ab initio. However, judgment was set aside as
regards Padilla on a petition for relief filed by her ground on fraud, accident, mistake or
excusable negligence w/c had seriously impaired her right to present her case adequately. The
petition for relief fr. judgment was given due course & a new judge presided over the case.
Padilla filed a motion for summary judgment w/c was granted. The judgment declared sale as
valid. Cheesman questions the propriety of such judgment.
Held: An order of the CFI granting a petition for relief under Rule 38 is interlocutory & is not
appealable. Once the petition for relief is granted & the judgment subject thereof set aside, &
further proceedings are thereafter had, the ct. in its judgment on the merits may properly grant
the relief sought in the petitioner’s basic pleadings, although different fr. that stated in his
petition for relief. Therefore, since both CFI & IAC found that the facts adequately proved fraud,
mistake or excusable negligence by w/c Padilla’s rights have been substantially impaired, the sale
was declared valid.

Denying petition for relief, Rule 41, Sec. 1 (b)

Service Specialists v. Sheriff of Manila, supra

Facts: Petitioner filed an action for replevin & damages against private respondents. A pre-trial
conference was set but private respondent & counsel failed to appear w/c resulted in the issuance
of an order & judgment of default against respondents. Private respondent then moved for relief
fr. judgment & order of default. This motion was opposed by a motion to dismiss filed by
petitioner. The Lower ct. dismissed the petition for relief on the ground of lack of
jurisdiction. Respondent filed a notice of appeal but a writ of execution was nevertheless
filed. This case stems fr. the deputy sheriff’s refusal to proceed w/ the auction of respondent’s
properties.
Held: A judgment or order denying relief under Rule 38 is final & appealable, unlike an order
granting such relief w/c is interlocutory. However, in the appeal the ct. may not reverse or
modify the judgment on the merits. The judgment fr. w/c relief is sought is already final &
executory. This remedy only enables the appellate ct. to determine not only the existence of any
of the grounds relied upon whether it be fraud, accident, mistake or excusable negligence, but
also & primarily, the merit of the petitioner’s cause of action or the defense, as the case may
be. If the appellate ct. finds that one of the grounds exist & that the petitioner has a good cause
of action or importance, it will reverse the denial or dismissal, set aside the judgment in the main
case & remand the case to the lower ct. for a new trial in accordance w/ Sec 7 Rule 38. Finally, a
notice of appeal fr. the order of the lower ct. w/c dismissed his petition for relief fr. judgment
“for lack of jurisdiction to hear & determine the same” should have been made to the SC through
a petition for review on certiorari & not to the IAC.

Remedies after petition for relief expires

Ramirez v. CA, 187 SCRA 153

Facts: Ramirez, as a plaintiff in a suit over an airstrip failed to do the following: furnish a copy
of the notice of hearing to other party; appear at the pre-trial; file appeal instead of seeking
relief; & seasonably file a motion for reconsideration. After the judgment in (favor of Ramirez’s
opponent) had become final & executory. Ramirez filed a petition for relief fr. judgment even if
the period for filing the same had expired.
Held: There is no means whereby the defeated party may procure a final & executory judgment
to be set aside w/ a view to the removal of the litigation beyond the period for seeking relief, fr.
a final order of judgment under Rule 38 unless A) judgment is void for want of jurisdiction or for
lack of due process of law or B) it has been fraud. (In other words, period for filing of PFR is
mandatory but admits of exceptions – lack of J & fraud.)

Reopening not allowed

Alvendia v. IAC, 181 SCRA 252

Facts: Alvendia defaulted on his obligation to pay Bonamy. Alvendia did not do anything fr. the
filing of the complaint against him up to the time that the judgment became final & executory.
Execution has been ordered & his property has been levied. He moved for extension of time to file
petition for review.
Held: It is axiomatic that there is no justification in law & in fact for the reopening of a case w/c
has long become final & w/c in fact has been executed. Time & again this ct. has said that the
doctrine of finality of judgment is grounded on fundamental considerations of public policy &
sound practice that at the risk of occasional error, the judgments of cts. must become final at
some definite date fixed by law – Alvendia cannot invoke equity to reopen case since they have
been given opportunity but failed.

Reference: University of the Philippines

Posted in Civil Procedure

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Tags: Civil Procedure: Rule 61

Civil Procedure: Rule 60

DEC 19

Posted by Magz
Replevin
Rule 60
Sec. 1. Application – A party praying for the recovery of possession of personal property may, at
the commencement of the action or at any time before answer, apply for an order for the
delivery of such property to him, in the manner hereinafter provided.

Sec. 2. Affidavit and bond. – The applicant must show by his own affidavit or that of some other
person who personally knows the facts:
 (a) That the applicant is the owner of the property claimed, particularly describing it, or
is entitled to the possession thereof;
(b) That the property is wrongfully detained by the adverse party, alleging the cause of
detention thereof according to the best of his knowledge, information, and belief;
(c) That the property has not been distrained or taken for a tax assessment or a fine
pursuant to law, or seized under a writ of execution or preliminary attachment, or otherwise
placed under custodia legis, or if so seized, that it is exempt from such seizure or custody; and
(d) The actual market value of the property.
The applicant must also give a bond, executed to the adverse party in double the value of
the property as stated in the affidavit aforementioned, for the return of the property to the
adverse party if such return be adjudged, and for the payment to the adverse party of such sum
as he may recover from the application in the action.

Sec. 3. Order. – Upon the filing of such affidavit and approval of the bond, the court shall issue
an order and the corresponding writ of replevin describing the personal property alleged to be
wrongfully detained and requiring the sheriff forthwith to take such property into his custody.

Sec. 4. Duty of the sheriff. – Upon receiving such order, the sheriff must serve a copy thereof on
the adverse party, together with a copy of the application, affidavit and bond, and must
forthwith take the property, if it be in the possession of the adverse party, or his agent, and
retain it in his custody. If the property or any part thereof be concealed in a building or
enclosure, the sheriff must demand its delivery, and if it be not delivered, he must cause the
building or enclosure to be broken open and take the property as herein provided, he must keep
it in a secure place and shall be responsible for its delivery to the party entitled thereto upon
receiving his fees and necessary expenses for taking and keeping the same.

Sec. 5. Return of property. – If the adverse party objects of the sufficiency of the applicant’s
bond, or of the surety or sureties thereon, he cannot immediately require the return of the
property, but if he does not so object, he may, at any time before the delivery of the property to
the applicant, require the return thereof, by filing with the court where the action is pending a
bond executed to the applicant, in double the value of the property as stated in the applicant’s
affidavit for the delivery thereof to the applicant, if such delivery be adjudged, and for the
payment of such sum to him as may be recovered against the adverse party, and by serving a copy
of such bond on the applicant.
Sec. 6. Disposition of property by sheriff. – If within five (5) days after taking the property by
the sheriff, the adverse party does not object to the sufficiency of the bond, or the surety or
sureties thereon; or if the adverse party so objects and the court affirms its approval of the
applicant’s bond or approves a new bond, or if the adverse party requires the return of the
property but his bond is objected to and found insufficient and he does not forthwith file an
approved bond, the property shall be delivered to the applicant. If for any reason the property is
not delivered to the applicant, the sheriff must return it to the adverse party.

Sec. 7. Proceedings where property claimed by third person. – If the property taken is claimed
by any third person other than the party against whom the writ of replevin had been issued or his
agent, and such person makes an affidavit of his title thereto, or right to the possession thereof,
stating the grounds therefor, and serves such affidavit upon the sheriff while the latter has
possession of the property and a copy thereof upon the applicant, the sheriff shall not be bound
to keep the property under replevin or deliver it to the applicant unless the applicant or his
agent, on demand of said sheriff shall file a bond approved by the court to indemnify the third-
party claimant in a sum not less than the value of the property under replevin as provided in
section 2 hereof. In case of disagreement as to such value, the court shall determine the same.
No claim for damages for the taking or keeping of the property may be enforced against the bond
unless the action therefor is filed within one hundred twenty (120) days from the date of the
filing of the bond.
The sheriff shall not be liable for damages, for the taking or keeping of such property, to
any such third-party claimant if such bond shall be filed. Nothing herein contained shall prevent
such claimant or any third person from vindicating his claim to the property, or prevent the
applicant from claiming damages against a third-party claimant who filed a frivolous or plainly
spurious claim, in the same or a separate action.
When the writ of replevin is issued in favor of the Republic of the Philippines, or any
officer duly representing it, the filing of such bond shall not be required, and in case the sheriff
is sued for damages as a result of the replevin, he shall be represented by the Solicitor General,
and if held liable therefor, the actual damages adjudged by the court shall be paid by the
National Treasurer out of the funds to be appropriated for the purpose.

Sec. 8. Return of papers. – The sheriff must file the order, with his proceedings indorsed
thereon, with the court within ten (10) days after taking the property mentioned therein.

Sec. 9. Judgment. – After trial of the issues, the court shall determine who has the right to the
possession to and the value of the property and shall render judgment in the alternative for the
delivery thereof to the party entitled to the same, or for its value in case delivery cannot be
made, and also for such damages as either party may prove, with costs.
Sec. 10. Judgment to include recovery against sureties. – The amount, if any, to be awarded to
any party upon any bond filed in accordance with the provisions of this Rule, shall be claimed,
ascertained, and granted under the same procedure as prescribed in section 20 of Rule 57.