PART 1: CIVIL PROCEDURE Tantuico vs.
Republic (1991): (The
CHAPTER 1: Ordinary Civil
Actions
I. Commencement of Action
This section would discuss the following
topics:
A. Definitions and Requirements
1. Definition of a Complaint
2. Verification
3. Certificate Against Forum-Shopping
B. Filing of Complaint
1. Manner
2. Docket and other lawful fees
A. Definition and Requirements
1. Definition of a Complaint
Rule 6, Sec.3. Complaint.The complaint is
the pleading alleging the plaintiffs cause or
causes of action. The names and residences of
the plaintiff and defendant must be stated in
the complaint.
A complaint:
should contain a concise statement of
the ultimate facts constituting the
cause of action.
ULTIMATE FACTS: essential facts
constituting the plaintiffs cause of
action.
WHEN IS A FACT ESSENTIAL? A
fact is essential if it cannot be
stricken without leaving the
statement of the cause of action
insufficient.
does not contain evidentiary facts or
legal conclusions.
Conclusions of law alleged in the
complaint are not binding on the
court.
The details of probative matter or
particulars of evidence, statements
of law, inferences and arguments
are mere legal conclusions.
The test of sufficiency of the facts alleged
in the complaint: WON upon the
averment of facts, a valid judgment
ma be properly be rendered.
complaints) function is to inform the
defendant clearly and definitely of claims
made against him so that he may be
prepared to meet the issues at trial. It
should inform the defendant of all
material facts on which the plaintiff relies
to support his demand. It should state
the theory of a cause of action which
forms the bases of plaintiffs claim of
liability.
2. Verification
Rule 7, Sec.4. Verification.Except when
otherwise specifically required by law or rule,
pleadings need not be under oath, verified or
accompanied by affidavit.
A pleading is verified by an affidavit that the
affiant had read the pleading and that the
allegations therein are true and correct of his
personal knowledge or based on authentic
records.
A pleading required to be verified which
contains a verification based on information
and belief or upon knowledge, information
and belief, or lack a proper verification, shall
be treated as an unsigned pleading.
Q: How is a pleading verified?
A: A pleading is verified by an affidavit
that states:
The affiant has read the pleading;
and
The allegations therein are true and
correct of his personal knowledge or
based on authentic documents.
3. Certificate Against Forum-Shopping
Rule 7, Sec.5. Certificate against forum
shopping.The plaintiff or principal party
shall certify under oath in the complaint or
other initiatory pleading asserting a claim for
relief, or in a sworn certification annexed
thereto and simultaneously filed therewith: (a)
that he has not theretofore commenced any
action or filed any claim involving the same
issues in any court, tribunal or quasi-judicial
agency and, to the best of his knowledge, no
such other action or claim is pending therein;
(b) if there is such other pending action or
claim, a complete statement of the present
status thereof; and (c) if he should thereafter
learn that the same or similar action or claim
has been filed or is pending, he shall report
that fact within 5 days therefrom to the court
wherein his aforesaid complaint or initiatory
pleading has been filed.
Failure to comply with the foregoing
requirements shall not be curable by mere
amendment of the complaint or other
initiatory pleading but shall be cause for the
dismissal of the case without prejudice, unless
otherwise provided, upon motion and after
hearing. The submission of a false certification
or non-compliance with any of the
undertakings therein shall constitute indirect
contempt of court, without prejudice to the
corresponding administrative and criminal
actions. If the acts of the party or his counsel
clearly constitute willful and deliberate forum
shopping, the same shall be ground for
summary dismissal with prejudice and shall
constitute direct contempt, as well as a cause
for administrative sanctions.
Q: What is forum shopping?
A: It is the act of filing multiple suits in
different courts, simultaneously or
successively, involving the same parties,
to ask the courts to rule on the
same/related causes and/or to grant the
same or substantially the same relief.
Test to determine WON there is forum
shopping:
In the two or more cases pending, is there
identity of:
1. Parties;
2. Rights or causes of action; and
3. Relief sought.
The certificate of non-forum shopping is:
executed by the petitioner, not by
the counsel.
required only for complaints or
initiatory pleadings:
permissive counterclaim
cross-claim
appeals
not required if counterclaim is
compulsory
Failure to comply is not curable by mere
amendment of the pleading but shall be
cause for the dismissal of the case,
without prejudice and upon motion and
after hearing, unless otherwise provided.
UST Hospital vs.Surla: A counterclaim is
not an initiatory pleading.
Effects of non-submission of submission
of false CNFS:
1. Indirect contempt and
2. Administrative and criminal actions.
Effect of willful and deliberate forum
shopping:
1. Ground for summary dismissal of the
case with prejudice and
2. Direct contempt and administrative
sanctions.
B. Filing of Complaint
Rule 13, Sec.2. Filing and service, defined.
Filing is the act of presenting the pleading or
other paper to the clerk of court.
Service is the act of providing a party with a
copy of the pleading or paper concerned. If any
party has appeared by counsel, service upon
him shall be made upon his counsel, or one of
them, unless service upon the party himself is
ordered by the court. Where one counsel
appears for several parties, he shall only be
entitled to one copy of any paper served upon
him by the opposite side.
1. Manner of filing
Personal or
By registered mail
Personal Filing of Complaint:
The complaint is deemed filed upon
the receipt of the same by the clerk of
court who shall endorse on it the date
and hour of filing.
Benguet Electric Cooperative vs. NLRC:
If a party avails of a private carrier,
the date of the courts actual receipt of
the pleading (not the date of delivery
to the private carrier) is deemed to be
the date of the filing of that pleading.
Filing by carrier is considered
personal filing.
Filing of Complaint by Registered Mail:
Filing by mail should be through the
registry service (i.e. by depositing the
pleading in the post office).
The pleading is deemed filed on the
date it was deposited with the post
office.
 If registry service is not available in fee thereon shall constitute a lien on
the locality of either sender or the judgment award.
addressee, service may be done by
ordinary mail.

Proof of Filing (Different from Proof of

Service)

Rule 13, Sec.12. Proof of filing.The filing of a

pleading or paper shall be proved by its
existence in the record of the case. If it is not
in the record, but is claimed to have been filed
personally, the filing shall be proved by the
written or stamped acknowledgment of its
filing by the clerk of court on a copy of the
same; if filed by registered mail, by the registry
receipt and by the affidavit of the person who
did the mailing, containing a full statement of
the date and place of depositing the mail in
the post office in a sealed envelope addressed
to the court, with postage fully prepaid, and
with instructions to the postmaster to return
the mail to the sender after 10 days if not
delivered.

Filing is proved by its existence in the

record of the case.
If it is not in the record, pleading is
deemed filed based on Rule 13, Sec.12
If personal filing is alleged, prove
filing by presenting the stamp or
acknowledgement made by the
clerk of court.
If registered mail is alleged to be
the mode used, prove filing by the
registry receipt and affidavit of
person who did the mailing.

2. Docket and other lawful fees

Balitaan v. CA (1999):
The rule in this jurisdiction is that
when an action is filed in court, the
complaint must be accompanied by
the payment of the requisite docket
and filing fees.
If the complaint is filed but the fees
are not paid at the time of filing, the
court acquires jurisdiction upon full
payment of the fees within a
reasonable time as the court may
grant, barring prescription.
If there are unspecified claims, the
determination of which may arise
after the filing of the complaint or
similar pleading, the additional filing
II. Jurisdiction over the Parties
This section would discuss the following
topics:
A. Modes of Service of Summons
1. Personal Service
2. Substituted Service
3. Constructive Service
4. Extraterritorial Service
B. Lack of Summons
Q: What is summons?
A: It is a coercive force issued by the
court to acquire jurisdiction over the
person of the defendant.
Purposes of summons:
1. To acquire jurisdiction over the person
of the defendant in a civil case;
2. To give notice to the defendant that an
action has been commenced against him.
Rule 14, Sec.1. Clerk to issue summons.
Upon the filing of the complaint and the
payment of the requisite legal fees, the clerk of
court shall forthwith issue the corresponding
summons to the defendants.
Contents of Summons:
Rule 14, Sec.2. Contents.The summons shall
be directed to the defendant, signed by the
clerk of court under seal, and contain: (a) the
name of the court and the names of the
parties to the action; (b) a direction that the
defendant answer within the time fixed by
these Rules; (c) a notice that unless the
defendant so answers, plaintiff will take
judgment by default and may be granted the
relief applied for.
A copy of the complaint and order for
appointment of guardian ad litem, if any, shall
be attached to the original and each copy of
the summons.
Who serves the summons (enumerated
under Rule 14, Sec.3):
1. Sheriff,
2. Sheriffs deputy,
3. Other proper court officer, or
4. Any suitable person authorized by the
court but only for justifiable reasons.
A. Modes of Service of Summons
1. Personal Service: is the service in
person of the defendant.
Rule 14, Sec.6. Service in person on defendant.
Whenever practicable, the summons shall be
served by handing a copy thereof to the
defendant in person, or, if he refuses to receive
and sign for it, by tendering it to him.
Handling a copy of the summons to
defendant or
Tendering a copy of the summons to
defendant who refuses to receive it.
2. Substituted Service: is the service by
leaving a copy of the summons.
To whom copy of summons may be left:
Rule 14, Sec.7. Substituted service.If, for
justifiable causes, the defendant cannot be
served within a reasonable time as provided in
the preceding section, service may be effected
(a) by leaving copies of the summons at the
defendants residence with some person of
suitable age and discretion then residing
therein, or (b) by leaving copies at defendants
office or regular place of business with some
competent person in charge thereof.
With some person of suitable age
and discretion then residing in the
defendants residence or
With some competent person in
charge of defendants office or regular
place of business.
Sps. Ventura vs. CA (1987): For a valid
substituted service of summons, the
following must be established in the proof
of service:
1. Impossibility of the personal service of
summons within a reasonable time;
2. Efforts made to find the defendant
personally and the fact that such efforts
failed;
3. Service by leaving copy of summons
either with some person of suitable age
and discretion then residing in the
defendants residence or with some
competent person in charge of the
defendants office or regular place of
business.

Sps. Ventura vs. CA (1987): For a
substituted service to be valid, summons
served at the defendant's residence must
be served at his residence at the time of
such service and not at his former place
of residence. "Dwelling house" or
"residence" refer to the place where
the person named in the summons is
living at the time when the service is
made, even though he may be
temporarily out of the country at the
time.
Northwest vs. CA (1995): Enjoyment of the
privileges of residence within the state,
and the attendant right to invoke the
protection of its laws, are inseparable
from the various incidences of state
citizenship. One such incident of domicile
is amenability to suit within the state
even during sojourns without the state,
where the state has provided and
employed a reasonable method for
apprising such an absent party of the
proceedings against him.
Laus vs. CA (1993): Substituted service
must be used only as prescribed and in
the circumstances authorized by statute.
Statutes prescribing modes other than
personal service of summons must be
strictly complied with to give the court
jurisdiction, and such compliance must
appear affirmatively in the return.
Mapa v. CA (1992): Absence in the
sheriff's return of a statement about the
impossibility of personal service does not
conclusively prove that the service is
invalid. Proof of prior attempts at
personal service may be submitted by
the plaintiff during the hearing of any
incident assailing the validity of the
substituted service. While the sheriff's
return carries with it the disputable
presumption of regularity in the sense
that the entries therein are deemed
correct, it does not necessarily follow that
an act done in relation to the official duty
for which the return is made was not
done simply because it is not disclosed
therein.
Leave of court is necessary for substituted
service.
Rule 14, Sec.17. Leave of court.Any
application to the court under this Rule for
leave to effect service in any manner for which
leave of court is necessary shall be made by
motion in writing, supported by affidavit of the
plaintiff or some person on his behalf, setting
forth the grounds for the application.
3. Constructive Service or Service by
Publication
Rule 14, Sec.14. Service upon defendant
whose identity or whereabouts are unknown.
In any action where the defendant is
designated as an unknown owner, or the like,
or whenever his whereabouts are unknown
and cannot be ascertained by diligent inquiry,
service may, by leave of court, be effected
upon him by publication in a newspaper of
general circulation and in such places and for
such time as the court may order.
Requisites for a valid service by
publication:
1. The action is in rem or quasi in rem;
2. Defendant's identity or whereabouts
are unknown and cannot be ascertained
by diligent inquiry; and
3. There must be leave of court.
Consolidated Plywood vs. Breve (1988):
Summons by publication in a personal
action cannot confer upon the court
jurisdiction over the person of the
defendant, who does not voluntarily
submit himself to the authority of the
court. The proper recourse for the plaintiff
is to locate properties of the defendant
whose address is unknown and cause
them to be attached.
4. Extraterritorial Service
Rule 14, Sec.15. Extraterritorial service.
When the defendant does not reside and is not
found in the Philippines, and the action affects
the personal status of the plaintiff or relates
to, or the subject of which is, property within
the Philippines, in which the defendant has or
claims a lien or interest, actual or contingent,
or in which the relief demanded consists,
wholly or in part, in excluding the defendant
from any interest therein, or the property of
the defendant has been attached within the
Philippines, service may, by leave of court, be
effected out of the Philippines by personal
service as under section 6; or by publication in
a newspaper of general circulation in such
places and for such time as the court may
order, in which case a copy of the summons
an order of the court shall be sent by
registered mail to the last known address of
the defendant, or in any other manner the
court may deem sufficient. Any order granting
such leave shall specify a reasonable time,
which shall not be less than 60 days after
notice, within which the defendant must
answer.
Requisites of a valid extraterritorial
service:
1. Defendant does not reside or is not
found in the Philippines;
2. Action either:
Affects the plaintiffs personal status;
Relates to or the subject matter of
which is property within the
Philippines in which defendant has a
lien/interest;
Demands a relief which consists
wholly/partially in excluding the
defendant from any interest in any
property within the Philippines;
Has defendants property in the
Philippines, attached.
Modes of extraterritorial service:
1. With leave of court, serve outside the
Philippines by personal service; or
2. With leave of court, serve by
publication in a newspaper of general
circulation, in which case copy of the
summons and order of the court must
also be sent by registered mail to the
defendants last known address;
3. Any other manner the court deems
sufficient.
What court order granting extraterritorial
service shall specify: a period of at least
60 days within which the defendant
should answer.
Return of Summons:
Rule 14, Sec.4. Return.When the service has
been completed, the server shall, within 5
days therefrom, serve a copy of the return,
personally or by registered mail, to the
plaintiffs counsel, and shall retrun the
summons to the clerk who issued it,
accompanied by proof of service.
Q: When is summons returned?
A: When the service has been
completed, the server shall, within 5
days there from, serve a copy of the
return (personally or by registered mail) to
the plaintiff's counsel, and shall return
the summons to the clerk who issued
it, accompanied by proof of service.
Alias Summons
Rule 14, Sec.5. Issuance of alias summons.If
a summons is returned without being served
on any or all of the defendants, the server
shall also serve a copy of the return on the
plaintiffs counsel, stating the reasons for the
failure of service, within 5 days therefrom. In
such a case, or if the summons has been lost,
the clerk, on demand of the plaintiff, may
issue an alias summons.
An alias summons may issue if:
The summons is returned without
being served on any/all or the
defendants, or
The summons was lost.
B. Lack of Summons
Service of summons may be waived:
Rule 14, Sec. 20. Voluntary appearance.The
defendants voluntary appearance in the
action shall be equivalent to service of
summons. The inclusion in a motion to
dismiss of other grounds aside from lack of
jurisdiction over the person of the defendant
shall not be deemed a voluntary appearance.
General rule: Defendant's voluntary
appearance in the action shall be
equivalent to service of summons.
Exception: Special appearance to file a
motion to dismiss.
Delos Santos vs. Montesa (1993): Any
mode of appearance in court by a
defendant or his lawyer is equivalent to
service of summons, absent any
indication that the appearance of counsel
for petitioner is precisely to protest the
jurisdiction of the court over the person of
the defendant.
Importance of return of service:
Return of service of summons
immediately shifts burden of
evidence from plaintiff to
 defendant to prove that there is no
service of summons since there
presumption of regularity.
Thus, without return of service, the
burden stays with the plaintiff.
Exception: Doctrine of substantial
compliance. If defendant actually
received summons and complaint
despite all these technicalities (of lack
of return of service).
Atkins vs. Domingo: But if the defendant
was declared in default on the original
complaint and the plaintiff subsequently
filed an amended complaint, new
summons must be served on the
defendant on the amended complaint, as
the original complaint was deemed
withdrawn upon such amendment.

Proof of service of summons if personal or

substituted service was used:
Rule 14, Sec.18. Proof of service.The proof of
service of a summons shall be made in writing
by the server and shall set forth the manner,
place, and date of service; shall specify any
papers which have been served with the
process and the name of the person who
received the same; and shall be sworn to when
made by a person other than a sheriff of his
deputy.

Proof of service of summons if service by

publication was used:
Rule 14, Sec.19. Proof of service by publication.
If the service has been made by publication,
service may be proved by the affidavit of the
printer, or his foreman or principal clerk, or
the editor, business or advertising manager, to
which affidavit a copy of the publication shall
be attached, and by an affidavit showing the
deposit of a copy of the summons and order
for publication in the post office, postage
prepaid, directed to the defendant by
registered mail to his last known address.

Q: What is the effect of non-service or

irregular service of summons?
A: Unless the defendant voluntarily
submits to the jurisdiction of the court,
non-service or irregular service of
summons renders null and void all
subsequent proceedings and issuances
in the action from the order of default
up to and including the judgment by
default and the order of execution.

Ong Peng vs. Custodio: If the defendant

has already been served with summons
on the original complaint, no further
summons is required on the amended
complaint if it does not introduce new
causes of action.
III. Specific Incidents of the Case
This section discusses the following
topics:
A. Definition, Form and Contents of
Pleadings
B. Pleadings the Plaintiff May File
C. Pleadings the Defendant May File
D. Notice of Dismissal of Complaint
E. Amended Complaint
F. Supplemental Complaint
G. Deposition
H. Written Interrogatories
I. Request for Admission
J. Production or Inspection of Document
or Things
K. Physical and Mental Examination
L. Refusal to Comply with Modes of
Discovery
M. Extension of Time to File Responsive
Pleading
N. Bill of Particulars
O. Motion to Dismiss
A. Definition, Form and Contents of
Pleadings
Rule 6, Sec.1. Pleadings defined.Pleadings
are the written statements of the respective
claims and defenses of the parties submitted
to the court for appropriate judgment.
A motion to dismiss in not a pleading.
However, there are motions that actually
seek judgment like a motion for judgment
on pleadings (Rule 34) and motion for
summary judgment (Rule 35).
1. Caption include:
a. courts name,
b. actions title (names of parties),
and
c. docket number.
2. Body:
a. designation of pleading,
b. allegations of claims and/or
defenses,
c. relief prayed for, and
d. date of pleading.
3. Signature and address of counsel.
Paragraphs in the body must be
numbered, and each paragraph
number must contain a single set of
circumstances.
Headings are used when more than
one cause of action, use "1st cause of
action," 2nd cause of action," etc.
General prayer for other relief as may
be deemed just and equitable may be
added but other reliefs must be
specific.
Every pleading shall be dated.
The address of the counsel must not
be a P.O. box.
Q: What does the signature of counsel
signify?
A: Counsels signature is a certification
that:
1. He has read the pleading;
2. To the best of his knowledge,
information and belief there is good
ground to support it; and
3. It is not interposed for delay.

Pleading vs. Motion: An unsigned pleading produces no

legal effect. However, the court may
Pleading Motion allow such deficiency to be remedied if it
Submit a Apply for an shall appear that the same was due to
claim/defense order not inadvertence and not intended for delay.
Purpose
for appropriate included in
judgment judgment
May be Cannot be
B. Pleadings the Plaintiff May File
initiatory initiatory
Always filed C. Pleadings the Defendant May File
When May be filed even
before
filed after judgment
judgment D. Notice of Dismissal of the
Kinds Complaint
allowed
Only 9 kinds Many kinds
by the Dismissal is effected not by motion but by
Rules mere notice before the service of either:
1. The answer;
Form and Contents of Pleadings: 2. A motion for summary judgment.
The court has no discretion whether or
not to dismiss the case because upon
plaintiffs filing of notice, the court shall
issue an order dismissing the case.
General rule: The dismissal is without
prejudice.
Exception: If the notice of dismissal
provides that it is with prejudice.
Serrano vs. Cabrera: The dismissal is still
with prejudice even it the notice of
dismissal does not so provide, where such
notice is premised on the fact of payment
by defendant of the claim involved.
Q: What is the two-dismissal rule?
A: If the plaintiff has previously dismissed
an action based on or including the same
claim, the notice operates as adjudication
on the merits.
E. Amended Complaint
How to amend pleadings:
Rule 10, Sec.1. Amendments in general.
Pleadings may be amended by adding or
striking out an allegation or the name of any
party, or by correcting a mistake in the name
of a party or a mistaken or inadequate
allegation or description in any other respect,
so that the actual merits of the controversy
may speedily be determined, without regard to
technicalities, and in the most expeditious and
inexpensive manner.
Amendments may be by:
Adding an allegation of a party;
Adding the name of a party;
Striking out an allegation of a party;
Striking out the name of a party;
Correcting a mistake in the name of a
party; and
Correcting a mistake or inadequate
allegation or description in any other
respect.
Q: What is the purpose of amending
pleadings?
A: That the actual merits of the
controversy may speedily be determined,
without regard to technicalities, and in
the most expeditious and inexpensive
manner.
Barfel Development vs. CA (1993): As a
general policy, liberality in allowing
amendments is greatest in the early
stages of a law suit, decreases as it
progresses and changes at times to a
strictness amounting to a prohibition.
This is further restricted by the condition
that the amendment should not prejudice
the adverse party or place him at a
disadvantage.
Form of amendment:
Rule 10, Sec.7. Filing of amended pleadings.
When any pleading is amended, a new copy of
the entire pleading, incorporating the
amendments, which shall be indicated by
appropriate marks, shall be filed.
Effect of amendment:
Rule 10, Sec.8. Effect of amended pleadings.
An amended pleading supersedes the pleading
that it amends. However, admissions in
superseded pleadings may be received in
evidence against the pleader; and claims and
defenses therein not incorporated in the
amended pleading shall be deemed waived.
The amendment supersedes the
amended pleading.
Claims and defenses in superseded
pleading which are not incorporated
in the amended pleading are deemed
waived.
Admissions made in the superseded
pleading may still be received in
evidence against the pleader.
Kinds of amendments:
1. Formal amendments
2. Substantial amendments
a. Matter of right of the party
b. Matter of discretion of the court
Formal amendments:
A defect in the designation of the
parties and other clearly clerical
errors may be summarily corrected by
the court or by motion.
May be made at any stage of the
action, provided that no prejudice is
caused to the adverse party.
Substantial amendment as a matter of
right:
Rule 10, Sec.2. Amendments as a matter of
right.A party may amend his pleading once
as a matter of right at any time before a
responsive pleading is served or, in the case of
a reply, at any time within 10 days after it is
served.
Substantial amendment as a matter of
discretion:
Rule 10, Sec.3. Amendments by leave of court.
Except as provided in the next preceding
Section, substantial amendments may be
made only upon leave of court. But such leave
may be refused if it appears to the court that
the motion was made with intent to delay.
Orders of the court upon matters provided in
this Section shall be made upon motion filed
in court, and after notice to the adverse party,
and an opportunity to be heard.
Requisites for amendments by leave of
court:
1. Motion filed in court;
2. Notice to the adverse party; and
3. Opportunity to be heard afforded to the
adverse party.
Instances when amendment by leave of
court may not be allowed:
1. If the cause of action, defense or theory
of the case is changed.
2. If amendment is intended to confer
jurisdiction to the court.
3. If amendment is for curing a premature
or non existing cause of action.
4. If amendment is for purposes of delay.
PNB vs. Florendo (1992): If the court has
no jurisdiction in the subject matter of
the case, the amendment of the complaint
cannot be allowed so as to confer
jurisdiction on the court over the
property.
Metropolitan Bank vs. Presiding Judge
(1990): Admitting an amended complaint
in intervention is a matter addressed to
the courts discretion, subject only to the
limitations that amendments should not
substantially change the cause of action
or alter the theory of the case or made to
delay the action. Once exercised, it
cannot be disturbed on appeal, except in
case of abuse thereof.
Amendment to conform to evidence:
Rule 10, Sec.5. Amendment to conform to or
authorize presentation of evidence.When
issues not raised by the pleadings are tried
with the express or implied consent of the
parties, they shall be treated in all respects as
if they had been raised in the pleadings. Such
amendment of the pleadings as may be
necessary to cause them to conform to the
evidence and to raise these issues may be
made upon motion of any party at any time,
even after judgment; but failure to amend does
not affect the result of the trail of these issues.
If evidence is objected to at the trial on the
ground that it is not within the issues made by
the pleadings, the court may allow the
pleadings to be amended and shall do so with
liberality if the presentation of the merits of
the action and the ends of substantial justice
will be subserved thereby. The court may
grant a continuance to enable the amendment.
F. Supplemental Complaint
Rule 10, Sec.6. Supplemental pleadings.
Upon motion f a party the court may, upon
reasonable notice and upon such terms as are
just, permit him to serve a supplemental
pleading setting forth transactions,
occurrences or events which have happened
since the date of the pleading sought to be
supplemented. The adverse party may plead
thereto within 10 days from notice of order
admitting the supplemental pleading.
A supplemental pleading is one which
sets forth transactions, occurrences or
events which have happened since the
date of the pleading sought to be
supplemented.
It is made upon motion of a party with
reasonable notice and upon terms as
are just.
Asset Privatization Trust vs. CA: The
cause of action stated in the
supplemental complaint must be
the same as that stated in the
original complaint. Otherwise, the
court should not admit the
supplemental complaint.
Shoemart vs. CA (1990): A
supplemental complaint/pleading
supplies deficiencies in aid of an
original pleading, not to entirely
substitute the latter. Unlike in an
amended complaint, the original
complaint exists side by side with the
supplemental complaint.

Grounds for Disciplinary Action on
Counsel Regarding Pleadings:
1. Deliberately filing an unsigned
pleading;
2. Deliberately signing a pleading in
violation of the Rules;
3. Alleging scandalous/Indecent matter in
the pleading;
4. Failing to promptly report a change of
his address.
G. Deposition
Q: What is the primary function of a
deposition?
A: Jonathan Landoil vs. Mangudadatu
(2006): Deposition is chiefly a mode of
discovery, the primary function of
which is to supplement the pleadings
for the purpose of disclosing the real
points of dispute between the parties
and affording an adequate factual
basis during the preparation for trial.
The liberty of a party to avail of such
modes of discovery is unrestricted if the
matters inquired into are relevant and not
privileged, and the inquiry is made in
good faith and within the bounds of the
law. Limitations would arise if the
examination is conducted in bad faith; or
in such a manner as to annoy, embarrass
or oppress the person under examination;
or when the inquiry touches upon the
irrelevant or encroaches upon the
recognized domains of privilege. Under
certain conditions and for certain limited
purposes, it may be taken even after trial
has commenced and may be used without
the deponent being actually called to the
witness stand.
General rule: Dasmarinas Garments, Inc.
vs. Reyes (1993): A deposition is not
generally supposed to be a substitute
for the actual testimony in open court
of a party or witness. If the witness is
available to testify, he should be
presented in court to testify. If available to
testify, a partys or witness deposition is
inadmissible in evidence for being
hearsay.
Exceptions: The exceptions to the
inadmissibility of such deposition are
provided for in Rule 23, Sec.4, as follows:
1. Any deposition may be used by any
party for the purpose of contradicting
or impeaching the testimony of
deponent as a witness;
2. The deposition of a party or of any one
who at the time of taking the
deposition was an officer, director, or
managing agent of a public or private
corporation, partnership, or
association which is a party may be
used by an adverse party for any
purpose;
3. The deposition of a witness, whether
or not a party, may be used by any
party for any purpose if the court
finds:
i. that the witness is dead; or
ii. that the witness resides at a
distance more than one hundred
(100) kilometers from the place of
trial or hearing, or is out of the
Philippines, unless it appears that
his absence was procured by the
party offering the deposition; or
iii. that the witness is unable to
attend to testify because of age,
sickness, infirmity, or
imprisonment; or
iv. that the party offering the
deposition has been unable to
procure the attendance of the
witness by subpoena; or
v. upon application and notice, that
such exceptional circumstances
exist as to make it desirable, in
the interest of justice and with due
regard to the importance of
presenting the testimony of
witnesses orally in open court, to
allow the deposition to be used;
and
4. If only part of a deposition is offered in
evidence by a party, the adverse party
may require him to introduce all of it
which is relevant to the part
introduced, and any party may
introduce any other parts.
Before whom deposition may be taken:
General Rule: Depositions may be taken
before any judge, notary public, or any
person authorized to administer oaths
designated by the parties by stipulation.
Exceptions: In our jurisdiction,
depositions in foreign countries may be
taken:
1. On notice before a secretary of
embassy or legation, consul general,
consul, vice consul, or consular agent
of the Republic of the Philippines;
2. Before such person or officer as may
be appointed by commission or under
letters rogatory; or
3. Before any person authorized to
administer oaths as stipulated in
writing by the parties.
No deposition shall be taken before a
person who is:
1. a relative within the sixth degree of
consanguinity or affinity, or
2. employee or counsel of any of the
parties, or who is a relative within the
same degree, or employee of such
counsel; or
3. who is financially interested in the
action.
Procedure for taking depositions:
After jurisdiction has been
obtained over any defendant or over
the property subject of the action,
but before the answer is filed:
by a motion to take deposition
and serve reasonable notice in
writing to every other party in the
action.
after an answer is filed, no
leave of court is required thus,
the party seeking to take
deposition may file a notice to take
deposition and serve reasonable
notice in writing to every other
party in the action.
Upon court approval for the taking of
deposition, the court upon motion
seasonally made by any party or the
by the person to be examined for good
cause shown, may issue orders for the
protection of parties and deponents
from annoyance, embarrassment or
oppression.
Deposition by oral examination:
The officer before whom the deposition
is to be taken shall put the witness
on oath and shall personally, or by
some one acting under his direction
and in his presence, record the
testimony of the witness. The
testimony shall be taken by
stenographic notes unless the
parties agree otherwise.
All objections made at the time of the
examination to the qualifications of
the officer taking the deposition, or to
the manner of talking it, or to the
evidence presented, or to the conduct
of any party, and any other objection
to the proceedings, shall be noted by
the officer upon the deposition.
Evidence objected to shall be taken
subject to the objections.
In lieu of participating in the oral
examination, parties served with
notice of taking a deposition may
transmit written interrogatories to the
officers, who shall propound them the
witness and record the answers
verbatim.
Depositions before action:
Purpose: To perpetuate the testimony
of witnesses for probable use in the
event of further proceedings in said
court.
Procedure:
1. File a verified petition in the court of
the place of the residence of any
expected adverse party.
2. The petition shall be entitled in the
name of the petitioner and shall show:
i. that the petitioner expects to be a
party to an action in a court of the
Philippines but is presently unable
to bring it or cause it to be
brought;
ii. the subject matter of the expected
action and his interest therein;
iii. the facts which he desires to
establish by the proposed
testimony and his reasons for
desiring to perpetuate it;
iv. the names or a description of the
persons he expects will be adverse
parties and their addresses so far
as known; and
v. the names and addresses of the
persons to be examined and the
substance of the testimony which
he expects to elicit from each, and
 shall ask for an order authorizing
the petitioner to take the
depositions of the persons to be
examined named in the petition
for the purpose of perpetuating
their testimony.
3. Notice and service to each person
named in the petition as an expected
adverse party, together with a copy of
the petition, stating that the petitioner
will apply to the court, at a time and
place named therein, for the order
described in the petition.
4. At least twenty (20) days before the
date of the hearing, the court shall
cause notice thereof to be served on
the parties and prospective deponents
in the manner provided for service of
summons.
5. If the court is satisfied that the
perpetuation of the testimony may
prevent a failure or delay of justice, it
shall make an order:
i. designating or describing the
persons whose deposition may be
taken and specifying the subject
matter of the examination
ii. whether the depositions shall be
taken upon oral examination or
written interrogatories
6. The procedure for taking deposition
by oral examination or written
interrogatories will be governed by
Rule 23 on depositions de bene esse.
H. Deposition by Written
Interrogatories
Party desiring to take the deposition of
any person upon written
interrogatories 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
or descriptive title and address of the
officer before whom the deposition is
to be taken.
Within 10 days after service of
written interrogatories, a party so
served may serve cross-
interrogatories upon the party
proposing to take the deposition.
Within 5 days after service of
cross-interrogatories, the latter may
serve re-direct interrogatories upon
a party who has served cross-
interrogatories.
Within 3 days after being served
with re-direct interrogatories, a
party may serve recross-
interrogatories upon the party
proposing to take the deposition.
Scope of examination:
Rule 23, Sec.2. Scope of examination.Unless
otherwise ordered by the court as provided in
sec.16 or 18 (protection of parties and order to
terminate) otherwise ordered by the court as
provided by section 16 or 18 of this Rule, the
deponent may be examined regarding any
matter, not privileged, which is relevant to the
subject of the pending action, whether relating
to the claim or defense of any other party,
including the existence, description, nature,
custody, condition, and location of any books,
documents, or other tangible things and the
identity and location of persons having
knowledge of relevant facts.
A deposition may be taken:
regarding any matter,
not privileged, and
relevant to the subject of the action.
Rule 21, Sec.5. Subpoena for depositions.
Proof of service of a notice to take a deposition,
as provided in secs. 15 and 25 of Rule 23,
shall constitute sufficient authorization for the
issuance of subpoenas for the persons named
in said notice by the clerk of the court of the
place in which the deposition is to be taken.
The clerk shall not, however, issue a subpoena
duces tecum to any prson without an order of
the court.
A copy of the notice and copies of all
interrogatories served shall be
delivered by the party taking the
deposition to the officer designated in
the notice, who shall proceed
promptly, by reading the questions to
the deponent, subject to objections.
Examination and cross-examination
of deponents may proceed as
permitted at the trial under the rules
on presentation of evidence.
Motion to limit or terminate examination:
At any time during the taking of the
deposition,
On motion or petition of any party
or of the deponent, and
 Upon a showing that the examination
is being conducted in bad faith or in
such manner as unreasonably to
annoy, embarrass, or oppress the
deponent or party,
The court in which the action is
pending or RTC of the place where the
deposition is being taken may order
the officer conducting the examination
to cease forthwith from taking the
deposition, or may limit the scope and
manner of the taking of the deposition
for the protection of parties and
deponents.
Submission to witness, changes, signing:
When the testimony is fully
transcribed, the deposition shall be
submitted to the witness for
examination and shall be read to or
by him, unless such examination and
reading are waived by the witness
and by the parties.
Any changes in form or substance
which the witness desires to make
shall be entered upon the
deposition by the officer with a
statement of the reasons given by
the witness for making them.
The deposition shall then be signed
by the witness, unless the parties by
stipulation waive the signing or the
witness is ill or cannot be found or
refuses to sign.
If the deposition is not signed by the
witness, the officer shall sign it and
state on the record the fact of the
waiver or of the illness or absence of
the witness or the fact of the refusal to
sign together with the reason be given
therefore, if any
The deposition may then be used as
fully as though signed, unless on a
motion to suppress, the court holds
that the reasons given require
rejection of the deposition.
Certification and filing by officer:
Rule 23, Sec.20. Certification and filing by
officer.The officer shall certify on the
deposition that the witness was duly sworn to
by him and that the deposition is a true record
of the testimony given by the witness. He shall
then securely seal the deposition in an
envelope indorsed with the title of the action
and marked Deposition of (here insert the
name of witness) and shall promptly file it
with the court in which the action is pending
or send it by registered mail to the clerk
thereof for filing.
Rule 23, Sec.21. Notice of filing.The officer
taking the deposition shall give prompt notice
of its filing to all the parties.
Rule 23, Sec.22. Furnishing copies.Upon
payment of reasonable charges therefor, the
officer shall furnish a copy of the deposition to
any party or to the deponent.
Effect of substitution of parties:
Rule 23, Sec. 5. Effect of substitution of parties.
Substitution of parties does not affect the
right to use depositions previously taken; and,
when an action has been dismissed and
another action involving the same subject is
afterward brought between the same parties or
their representatives or successors in interest,
all depositions lawfully taken and duly filed in
the former action may be used in the latter as
if originally taken therefore.
Effect of talking depositions:
Rule 23, Sec.7. Effect of taking depositions.A
party shall not be deemed to make a person
his own witness for any purpose by taking his
deposition.
General Rule: Introduction in evidence of
deposition or any part thereof for any
purpose makes the deponent the witness
of the party introducing the deposition.
Exception: If the purpose if to contradict
or impeach the deponent.
Q: What is the only instance when leave
of court is always necessary in taking a
deposition?
A: Where the deponent is in jail.
Pp. vs. Hubert Webb (1999): A
deposition, in keeping with its nature
as a mode of discovery, should be
taken before and not during trial. In
fact, rules on criminal practice
particularly on the defense of alibi, which
is respondents main defense in the
criminal proceedings against him in the
court belowstates that when a person
intends to rely on such a defense, that
person must move for the taking of the
deposition of his witnesses within the
time provided for filing a pre-trial motion.
The use of discovery procedure in
criminal cases is directed to the sound
discretion of the trial judge. The
deposition taking can not be based nor
can it be denied on flimsy reasons.
Discretion has to be exercised in a
reasonable manner and in consonance
with the spirit of the law.
Grounds for questioning the deposition at
any time:
Lack of notice to parties
Deposition officer is disqualified
Lack of relevance, materiality and
competence of the deposition to the
action
Error in the manner of taking the
deposition
Error in the form of the deposition
Manner of preparing the deposition
Deposition pending appeal:
Procedure:
1. During the pendency of an appeal,
the court in which judgment was
rendered may allow the taking of
depositions of witnesses to perpetuate
their testimony in the event of further
proceedings in the said court.
2. In such case the party who desires to
perpetuate the testimony may make a
motion in the said court for leave
to take the depositions, upon the
same notice and service thereof as if
the action was pending therein.
3. The motion shall state
i. the names and addresses of the
persons to be examined and the
substance of the testimony which
he expects to elicit from each, and
ii. the reason for perpetuating their
testimony.
7. Order allowing the deposition: If
the court finds that the perpetuation
of the testimony is proper to avoid a
failure or delay of justice, it may make
an order allowing the deposition to be
taken.
8. Rule 23 applies on the manner or
conduct of the deposition.
Written Interrogatories to Parties:
Procedure:
Either:
By leave of court after jurisdiction
has been obtained over any
defendant or over the property
which is the subject of the action,
or
Without such leave after an
answer has been served, any party
desiring to elicit material and
relevant facts from any adverse
parties shall file and serve upon
the latter written interrogatories to
be answered by the party served
or, if the party served is a public
or private corporation or a
partnership or association, by any
officer thereof competent to testify
in its behalf.
The interrogatories shall be answered
fully in writing and shall be signed
and sworn to by the person making
them.
The party upon who the
interrogatories have been served shall
file and serve a copy of the answers on
the party submitting the
interrogatories within fifteen (15) days
after service thereof unless the court
on motion and for good cause shown,
extends or shortens the time.
The answers would be deferred
when objections to any interrogatories
is presented to the court within ten
(10) days after service thereof, with
notice as in case of a motion.
Number of Interrogatories:
Rule 25, sec.4. Number of interrogatories.No
party may, without leave of court, serve more
than one set if interrogatories to be answered
by the same party.
SCOPE OF INTERROGATORIES: any
matter,
not privileged and
which is relevant to the subject of the
pending action,
whether relating to the claim or defense of
any other party,
including the existence, description,
nature, custody, condition, and
location of any books, documents, or
other tangible things and
the identity and location of persons
having knowledge of relevant facts

Consequence of failure to serve written
interrogatories:
Rule 25, Sec.6. Effectof failure to serve written
interrogatories.Unless thereafter allowed by
the court for good cause shown and to prevent
a failure of justice, a party not served with
written interrogatories may not be compelled
by the adverse party to give testimony in open
court, or to give a deposition pending appeal.
A party may loss the right of securing
the testimony of a witness if written
interrogatories should have sufficed to
elicit information in the first place.
This promotes the use of written
interrogatories and other modes of
discovery to speed up the trial
process.
Consequences of refusal to answer the set
of interrogatories:
Rule 29, Sec.1. Refusal to answer.If a party
or other deponent refuses to answer any
question upon oral examination, the
examination may be completed on other
matters or adjourned as the proponent of the
question may prefer. The proponent may
thereafter apply to the proper court of the
place where the deposition is being taken, for
an order to compel an answer. The same
procedure may be availed of when a party or a
witness refuses to answer any interrogatory
submitted under Rule 23 or 25.
If the application is granted, the court shall
require the refusing party or deponent to
answer the question or interrogatory and if it
also finds that the refusal to answer was
without substantial justification, it may
require the refusing party or deponent or the
counsel advising the refusal, or both of them,
to pay the proponent the amount of the
reasonable expenses incurred in obtaining the
order, including attorneys fees.
If the application is denied and the court finds
that it was filed without substantial
justification, the court may required the
proponent or the counsel advising the filing of
the application, or both of them, to pay to the
refusing party or deponent the amount of the
reasonable expenses incurred in opposing the
application, including attorneys fees.
The party serving the interrogatories
may apply to the court for an order to
compel an answer.
If court also finds that the refusal to
answer was without substantial
justification, it may require the
refusing party or deponent or the
counsel advising the refusal, or both
of them, to pay the proponent the
amount of the reasonable expenses
incurred in obtaining the order,
including attorneys fees.
Contempt for refusal to comply with
an order of the court to compel an
answer.
Q: What is the basis for punishing a
person for indirect contempt in refusing
to answer interrogatories?
A: The basis is Rule 71, Sec.3(b) and not
Rule 29, Sec.2 because Rule 29 refers
only to depositions.
List of other consequences of refusal to
answer set of interrogatories, as
enumerated in Rule 29, Sec.3:
Subject of discovery deemed
admitted or established.
Party prohibited from introducing
contradictory evidence.
Striking out pleadings or parts
thereof.
Staying further proceedings until
the order is obeyed, or dismissing the
action or proceeding or nay party
thereof.
Rendering a judgment by default
against the disobedient party.
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.
(RULE 29,SECTION 3c)
I. Request for Admission by Parties
Rule 26, Sec.1. Request for admission.
At any time
At any time after issues have been
joined, a party may file and serve upon
any other party a written request for the
admission by the latter of:
the genuineness of any material
and relevant document described in
and exhibited with the request, or
the truth of any material and
relevant matter of fact set forth in
the request.
Each of the matters of which an
admission is requested shall be deemed
admitted unless, within a period
designated in the request, which shall not
be less than 15 ays after service thereof,
or within such further time as the court
may allow on motion, the party to whom
the request is directed files and serves
upon the party requesting the admission
a sworn statement either:
denying specifically the matters of
which an admission is requested or
setting forth in detail the reasons
why he cannot truthfully either
admit or deny those matters.
Objections to any request for admission:
Submitted to the court by the party
requested within the period for and
prior to the filing of his sworn
statement denying or admitting the
matter.
Compliance with the request for
admission shall be deferred until such
objections are resolved, which
resolution shall be made as early as
practicable.
Effect of admission:
Any admission made by a party
pursuant to such request is for the
purpose of the pending action only
and shall not constitute an admission
by him for any other purpose nor may
the same be used against him in any
other proceeding.
The court may allow the party making
an admission under the Rule, whether
express or implied, to withdraw or
amend it upon such terms as may
be just.
Effect of failure to file and serve request
for admission:
A party who fails to file and serve a
request for admission on the adverse
party of material and relevant facts at
issue shall not be permitted to present
evidence on such facts.
Duque vs. CA (2002): The request for
admission must be served on the
party and not on counsel. This is an
exception to the general rule that
notices shall be served upon counsel
and not upon the party.
The facts should be, or ought to be,
within the personal knowledge of the
party not served with request for
admission.
Court may allow party which failed to
serve request for admission to present
evidence on the fact only for good
cause shown and to prevent failure of
justice.
J. Production or Inspection of
Documents or Things
This mode of discovery does not mean
that the person who is required to
produce the document or the thing
will be deprived of its possession even
temporarily.
It is enough that the requesting party
be given the opportunity to inspect or
copy or photograph the document.
Subpoena duces tecum:
Process requiring a person to bring
with him any books, documents,
documents, or other things under his
control or possession.
Orders any party to produce and
permit the inspection and copying
or photographing, by or on behalf
of the moving party, of any
designated documents, papers,
books, accounts, letters,
photographs, objects or tangible
things, not privileged, which
constitute or contain evidence
material to any matter involved in
the action and which are in his
possession, custody or control, or
Orders any party to 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.
Subpoena duces tecum cannot be
issued without a prior subpoena
ad testificandum.
Directed to any person.
Issued by a court before whom the
witness is required to attend, or court
where the deposition is to be taken I
or where the the action is pending.
 May be issued to a clerk or body
authorized by law or any justice of the
Supreme Court or CA in any case or
investigation pending within the
Philippines
Issued upon motion (application with
notice to the other party) except that a
request to a clerk, etc. requires no
notice.
Grounds for quashal of subpoena duces
tecum:
Unreasonable
Oppressive
Irrelevant
The person in whose behalf the
subpoena is issued fails to advance
the reasonable costs of the production
thereof
No good cause shown
Consequences of disobeying a subpoena:
constitutes contempt of the court from
which the subpoena is issued.
K. Physical and Mental Examination
Procedure:
1. Move for the issuance of an order for
examination.
2. Requisites for issuance or an order:
i. The lis mota of the case is the
physical or mental condition of a
party and not of a witness
ii. Good cause for the examination
iii. Notice to the party to be examined
iv. Specific physician
v. Enumerated/specified scope of
examination
3. Court in which the action is pending
may in its discretion issue the order
for examination.
Report of findings:
If requested by the party examined,
the party causing the examination to
be made shall deliver to him a copy of
a detailed written report of the
examining physician setting out his
findings and conclusions.
After such request and delivery, the
party causing the examination to be
made shall be entitled upon request to
receive from the party examined a like
report of any examination, previously
or thereafter made, of the same
mental or physical condition.
If the party examined refuses to
deliver such report, the court on
motion and notice may make an order
requiring delivery on such terms as
are just, and if a physician fails or
refuses to make such a report the
court may exclude his testimony if
offered at the trial.
Waiver of privilege:
By requesting and obtaining a report
of the examination so ordered or by
taking the deposition of the examiner,
the party examined waives any
privilege he may have in that action or
any other involving the same
controversy, regarding the testimony
of every other person who has
examined or may thereafter examine
him in respect of the same mental or
physical examination.
Physician-patient privilege is
inapplicable because the results of
the examination are intended to be
made public.
Such examination is not necessary to
treat or cure the patient but to assess
the extent of injury or to evaluate his
physical or mental condition.
L. Refusal to Comply with Modes of
Discovery
Rule 29, Sec.1. Refusal to answer.If a party
or other deponent refuses to answer any
questions upon oral examination, the
examination may be completed on other
matters or adjourned as the proponent of the
question may prefer. The proponent may
thereafter apply to the proper court of the
place where the deposition is being taken, for
an order to compel an answer. The same
procedure may be availed of when a party or
witness refuses to answer any interrogatory
submitted under Rule 23 or 25.
If the application is granted, the court shall
require the refusing party or deponent to
answer the question or interrogatory and if it
also finds that the refusal to answer was
without substantial justification, it may
require the refusing party or deponent to
answer the questions or interrogatory and if it
also finds that the refusal to answer was
without substantial justification, it may
require the refusing party or deponent or the
counsel advising the refusal, or both of them,
to pay the proponent the amount of the
reasonable expenses incurred in obtaining the
order, including attorneys fees.
If the application is denied and the court finds
that it was filed without substantial
justification, the court may require the
proponent or the counsel advising the filing of
the application, or both of them, to pay to the
refusing party or deponent the amount of the
reasonable expenses incurred in opposing the
application, including attorneys fees.
The examination may be completed on
other matters or adjourned as the
proponent of the question may prefer.
The proponent may thereafter apply
for a motion for the issuance of an
order to compel an answer to the
proper court of the place where the
deposition is being taken, for an order
to compel an answer.
Rule 29, Sec.2. Contempt of court.If a party
or other witness refuses to be sworn or refuses
to answer any question after being directed to
do so by the court of the place in which the
deposition is being taken, the refusal may be
considered as contempt of that court.
Q: Does Rule 29, Sec.2 contemplate Rule
25?
A: Prof. Avena believes that Sec. 2 does
not comtemplate Rule 25 on
interrogatories because of the phrase by
the court of the place in which the
deposition is being taken.
Q: How then will you cite a party or
witness for contempt?
A: Apply for an order to compel an answer
and once an order is issued, you can use
Rule 71, Sec.3(b) as basis for holding a
party or other witness for contempt.
Other consequences of refusal to comply
with modes of discovery as set forth in
Rule 28, Sec.3:
The aggrieved party may apply for:
1. 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.
2. An order:
i. refusing to allow the
disobedient party to support or
oppose designated claims or
defenses or
ii. prohibiting him from
introducing in evidence
designated documents or things or
items of testimony or
iii. prohibiting from introducing
evidence of physical or mental
condition.
3. An order:
i. striking out pleadings or parts
thereof or
ii. staying further proceedings
until the order is obeyed or
iii. dismissing the action or
proceeding or any part thereof or
iv. rendering a judgment by default
against the disobedient party.
4. 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.
Rule 29, Sec.4. Expenses on refusal to admit.
If a party after being served with a request
under Rule 26 refuses to admit the
genuineness of any document or the truth of
any matter of fact, serves a sworn denial
thereof and if the party requesting the
admission thereafter proves the genuineness
of such document or the truth of any such
matter of fact, he may apply to the court for an
order requiring the other party to pay him the
reasonable expenses incurred in making such
proof, including attorney's fees. Unless the
court finds that there were good reasons for
the denial or that admissions sought were of
no substantial importance, such order shall be
issued.
Rule 29, Sec.5. Failure of a 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 exceed the amount or be different in kind from
proper service of such interrogatories, the that prayed for nor award unliquidated
court on motion and notice, may strike out all damages.
or any part of any pleading of that party, or (e) Where no defaults allowed.If the
dismiss the action or proceeding or any part defending party in an action for annulment or
thereof, or enter a judgment by default against declaration of nullity of marriage or for legal
that party, and in its discretion, order him to separation fails to answer, the court shall
pay reasonable expenses incurred by the order the prosecuting attorney to investigate
other, including attorney's fees. whether or not a collusion between the parties
exists, and if there is no collusion, to intervene
Rule 29, Sec.6. Expenses against the Republic for the State in order to see to it that the
of the Philippines.Expenses and attorney's evidence submitted is not fabricated.
fees are not to be imposed upon the Republic
of the Philippines under this Rule Q: What is default?
A: Default is the failure of the defendant
Sec.6 applies to all provisions in Rule 29 to answer within the proper period. It is
requiring a non-compliant party or not his failure to appear nor his
witness (who represents the Republic in failure to present evidence.
an official capacity) to pay.
Order of default vs. Judgment by default:
M. Extension of Time to File Judgment by
Order of default
Responsive Pleading default
Order issued by Rendered by
Default: the court on the court
plaintiffs motion, following a
Rule 9, Sec.3. Default, declaration.If the
for failure of the default order
defending party fails to answer within the time Reason
defendant to file or after it
allowed therefore, the court shall, upon motion
his responsive received ex-
of the claiming party with notice to the
pleading parte plaintiffs
defending party, and proof of such failure,
seasonably evidence
declare the defending party in default.
Nature Interlocutory Final
Thereupon, the court shall proceed to render
judgment granting the claimant such relief as Non-appealable Appealable
his pleading may warrant, unless the court in
its discretion requires the claimant to submit Elements of a valid declaration of default:
evidence. Such reception of evidence may be 1. Court validly acquired jurisdiction
delegated to the clerk of court. over the defendants person, either
(a) Effect of order of default.A party in default by service of summons or voluntary
shall be entitled to notice of subsequent appearance;
proceedings but not to take part in the trial.
2. Defendant fails to answer within the
(b) Relief from order of default.A party
declared in default may at any time after
time allowed therefor;
notice therefore and before judgment file a 3. Motion to declare the defendant in
motion under oath to set aside the order of default;
default upon proper showing that his failure to 4. Notice to the defendant by serving
answer was due to fraud, accident, mistake or upon him a copy of such motion;
excusable negligence and that he has a 5. Proof of such failure to answer.
meritorious defense. In such case, the order of
default may be set aside on such terms and Cases where no defaults are allowed:
conditions as the judge may impose in the
1. Annulment of marriage
interest of justice.
(c) Effect of partial default.When a pleading 2. Declaration of nullity of marriage;
asserting a claim states a common cause of 3. Legal Separation
action against several defending parties, some 4. In special civil actions of certiorari,
of whom answer and the others fail to do so, prohibition and mandamus where a
the court shall try the case against all upon comment instead of an answer is
the answers thus filed and render judgment required to be filed.
upon the evidence presented.
(d) Extent of relief to be awarded.A judgment Effect of order of default:
rendered against a party in default shall not
1. Party in default loses standing in
court as a party litigant.
His failure to answer operates as a
waiver of right to take part in the trial,
of being heard, and of presenting
evidence in his favor.
If the defendant was declared in
default upon an original complaint,
the filing of the amended complaint
resulted in the withdrawal of the
original complaint. Hence, the
defendant was entitled to file answer
to the amended complaint as to which
he was not in default.
2. The court shall proceed to render
judgment granting the claimant 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.
3. The party in default shall be entitled
to notice of subsequent proceedings
but not to take part in the trial.
A party in default is entitled to notice of:
1. Motion to declare him in default,
2. Order declaring him in default,
3. Subsequent proceedings, and
4. Service of final orders and judgments.
Relief from order of default:
Before judgment, a party declared in
default may file a motion under oath to
set aside the order of default upon proper
showing that:
1. His failure to answer was due to
fraud, accident, mistake or excusable
negligence; and
2. He has a meritorious defense.
In such case, the order of default may be
set aside on terms and conditions as
justice requires.
Effect of partial default:
General effect: If the pleading asserting
a claim states a common cause of action
against several defending parties, and
some of the defending parties answer
while the others fail, the court shall try
the case against all defendants upon the
answers filed and render judgment upon
the evidence presented.
Exception: If the defense is personal to
the one who answered; in which case, it
will not benefit those who did not answer.
Extent of relief to be awarded:
The award shall not exceed the
amount or be different in kind
from that prayed for nor award
unliquidated damages.
Rationale: It is presumed that where
the relief demanded is greater or
different in kind, defendant would not
have allowed himself to be declared in
default.
Datu Samad Mangelen vs. CA (1992):
In a judgment based on evidence
presented ex parte, judgment should
not exceed the amount or be different
in kind from that prayed for. On the
other hand, in a judgment where an
answer was filed but defendant did
not appear at the hearing, the award
may exceed the amount or be different
in kind from that prayed for.
Failure to appear at pre-trial:
Plaintiff fails to appear: Cause for
dismissal of the action which will be
with prejudice, unless otherwise
ordered by the court.
Defendant fails to appear: Cause to
allow plaintiff to present evidence ex
parte, and court to render judgment
on the basis thereof.
Malanyaon vs. Sunga (1992): Where
the failure to appear at the pre-trial
hearing was uncontrovertedly due to
illness, the default order may be set
aside on the ground of accident over
which petitioner had no control. Also,
the order of arrest was illegal as there
is nothing in the ROC which
authorizes such a consequence of a
default order.
Remedies from order of default:
1. From notice of the order of default
but before judgment:
i. Motion to set aside order of
default; and
ii. In proper case, a petition for
certiorari under Rule 65 assailing
the order of default for having
been issued with lack of
 jurisdiction or grave abuse of
discretion amounting to lack of
jurisdiction.
2. After judgment but before its
finality:
i. Motion for reconsideration under
Rule 37, Section 1,
ii. Motion for new trial under Rule
37, Section 1, and
iii. Appeal under Rule 41, Section 1.
The defendant may also appeal
from the judgment rendered
against him as contrary to the
evidence or the law, even if he did
not present a petition to set aside
the order of default.
Tan vs. CA (1997): If the judgment has
already been rendered when the
defendant discovered the default, but
before the same became final and
executory. It should be filed within the
period for perfecting an appeal. Timely
filing thereof interrupts the 15-day
reglementary period for an appeal. It is
required that defendant file first a motion
to lift order of default to regain is
standing.
MERALCO vs. La Campana Food Products
(1995): A judgment by default is a final
disposition of the case and is appealable.
Oriental Media vs. CA (1995): A petition
for certiorari under Rule 65, although not
a substitute for an available or lost
appeal, may be invoked while the orders
of the lower court are issued without or in
excess of jurisdiction. Judgment by
default being appealable, appeal should
be perfected within 15 days from receipt
of copy of order denying MFR of default
judgment.
Ramnani v. CA (1993): A satisfactory
showing by the movant of the existence of
fraud, accident, mistake or excusable
neglect is an indispensable requirement
for the setting aside of a judgment of
default or the order of default. A
meritorious defense is only one of the two
conditions. The meritorious defense must
concur with the satisfactory reason for
the non-appearance of the defaulted
party. If there is no such reason, the
appropriate remedy is an ordinary appeal
under Rule 41, Sec. 2.
Boticano vs. Chu (1987): The jurisdiction
was properly acquired by the TC over the
defendants person; he was therefore
properly declared in default for not having
filed any answer. Despite his failure to file
a motion to set aside the declaration of
default, he has the right to appeal the
default judgment. But in the appeal, only
the evidence of the petitioner may be
considered, respondent not having
adduced any defense evidence.
3. After judgment has become final
and executory:
i. Petition for relief from order [Rule
38, Sec. 1 and 2],
ii. In a proper case and within the
prescribed period, petition for
certiorari under Rule 65, and
iii. In proper cases and within the
prescribed periods, petition for
annulment of judgment under
Rule 47.
Extension of Time to File Responsive
Pleading:
Rule 20. Calendar of Cases
Sec.1. Calendar of cases.The clerk of court,
under the direct supervision of the judge, shall
keep a calendar of cases for pre-trial, for trial,
those whose trials were adjourned or
postponed, and those with motions to set for
hearing. Preference shall be given to habeas
corpus cases, election cases, special civil
actions, and those required by law.
Sec.2. Assignment of cases.The assignment
of cases to the different branches of a court
shall be done exclusively by raffle. The
assignment shall be done in open session of
which adequate notice shall be given so as to
afford interested parties the opportunity to be
present.
Rule 22. Computation of Time
Sec.1. How to compute time.In computing
any period of time prescribed or allowed by
these Rules, or by order of the court, or by any
applicable statute, the day of the act or event
from which the designated period of time
begins to run is to be excluded and the date of
performance is included. If the last day of the
period, as thus computed, falls on a Saturday,
a Sunday, or a legal holiday in the place where
the court sits, the time shall not run until the
next working day.
Sec.2. Effect of interruption.Should an act be
done which effectively interrupts the running
of the period, the allowable period after such
interruption shall start to run on the day after
notice of the cessation of the cause thereof.
The day of the act that caused the interruption
shall be excluded in the computation of the
period.
The granting of a motion to extend the
time to plead is addressed to the
sound discretion of the court. The
court can extend but not shorten
the period to plead as fixed by the
Rules.
An order granting the motion for
extension of time to file responsive
pleading effectively interrupts the
running of the reglementary period.
The allowable period after such
interruption shall start to run on the
day the extended period expires.
AM. No. 00-2-14-SC: If the same (last day)
falls on a weekend or legal holiday, the
allowable period will start to run on the next
working day.
N. Bill of Particulars
Rule 12, Sec.1. When applied for; purpose.
Before responding to a pleading, a party may
move for a definite statement or for a bill of
particulars of any matter which is not averred
with sufficient definiteness or particularity to
enable him properly to prepare his responsive
pleading. If the pleading is a reply, the motion
must be filed within 10 days from service
thereof. Such motion shall point out the
defects complained of, the paragraphs wherein
they are contained, and the details desired.
Q: What is a bill of particulars?
A: It is a detailed explanation respecting
any matter which is not averred with
sufficient definiteness or particularity in
the complaint as to enable a party to
properly prepare his responsive pleading
or to prepare for trial.
It is filed by the plaintiff pursuant to a
court order issued upon granting a
motion for a bill of particulars filed by
the defendant before the latter files an
answer. In said motion, the defendant
prays for a more definite statement of
matters which are not averred with
sufficient definiteness in the
complaint.
Galeon vs. Galeon: An action cannot
be dismissed on the ground that
the complaint is vague or
indefinite. The remedy of the
defendant is to move for a bill of
particulars or avail of the proper mode
of discovery.
Purpose of bill of particulars: To
inform the adverse party more
specifically of the precise nature and
character of the cause of action or
defense alleged in the pleading, with
the view of enabling him to prepare
properly his responsive pleading or to
prepare for trial.
Tantuico, Jr. vs. Republic (1991): The
purpose of a BOP is to define clarify
particularize/limit/circumscribe the
issues in the case to expedite the trial
and assist the court. The only
question to be resolved in a motion for
a bill of particulars is whether or not
the allegations in the complaint
averred with sufficient definiteness
particularity to enable the movant to
properly prepare his responsive
pleading and to prepare for trial.
A BOP becomes part of the pleading for
which it was intended:
Rule 12, Sec.6. Bill a part of pleading.A bill
of particulars becomes part of the pleading for
which it is intended.
When to apply for a bill of particulars:
Before responding to a pleading
If the pleading is a reply, within 10
days from service thereof
What a motion for a bill of particulars
point out:
1. The defects complained of,
2. The paragraph wherein they are
contained, and
3. The details desired.
Court action on motion:
Rule 12, Sec.2. Action by the court.Upon the
filing of the motion, the clerk of court must
immediately bring it to the attention of the
court which may either deny or grant it
outright, or allow parties the opportunity to be
heard.
Court may:
1. Deny;
2. Grant the motion outright;
3. Allow the parties the opportunity to be
heard.
Compliance with order:
Rule 12, Sec.3. Compliance with order.If the
motion is granted, either in whole or in part,
the compliance therewith must be effected
within 10 days from notice of order, unless a
different period is fixed by the court. The bill of
particulars or a more definite statement
ordered by the court may be filed either in a
separate or in an amended pleading, serving a
copy thereof on the adverse party.
Within 10 days from notice of order,
the bill of particulars or a more
definite statement should be
submitted (unless court fixes a
different period).
Bill of particulars filed either as a
separate pleading or as an amended
pleading, a copy of which must be
served on the adverse party.
Effect of non-compliance:
Rule 12, Sec.4. Effect of non-compliance.If
the order is not obeyed, or in case of
insufficient compliance therewith, the court
may order the striking out of the pleading or
the portions thereof to which the order was
directed or make such other order as it deems
just.
Rule 17, Sec.3. Dismissal due to fault of the
plaintiff.If, for no justifiable cause, the
plaintiff fails to appear on the date of the
presentation of his evidence in chief on the
complaint, or to prosecute his action for an
unreasonable length of time, or to comply with
these Rules or any order of the court, the
complaint may be dismissed upon motion of
the defendant or upon the courts own motion,
without prejudice to the right of the defendant
to prosecute his counterclaim in the same or
in a separate action. This dismissal shall have
the effect of an adjudication upon the merits,
unless otherwise declared by the court.
Rule
1. In case of non-compliance or
insufficient with the order for a bill of
particulars, the court:
i. May order the striking out of the
pleading (or portion thereof) to
which the order is directed;
ii. Make such order as it may deem
just.
2. If the plaintiff fails to obey, his
complaint may be dismissed with
prejudice unless otherwise ordered by
the court or the dismissal may be
considered as adjudication upon the
merits.
3. If defendant fails to obey, his answer
will be stricken off and his
counterclaim dismissed, and he will
be declared in default upon motion of
the plaintiff.
Stay of period to file responsive pleading:
Rule 12, Sec.5. Stay of period to file responsive
pleading.After service of the bill of
particulars or of a more definite pleading, or
after notice of denial of his motion, the moving
party may file his responsive pleading within
the period to which he was entitled at the time
of filing his motion, which shall not be less
than 5 days in any event.
A motion for BOP interrupts the period to
file an answer:
1. If the motion is granted: 15 days to
file answer.
2. If the motion is denied: File answer
within the period the movant is
entitled to, which should not be less
than 5 days.
O. Motion to Dismiss
Q: What is a motion to dismiss?
A: It is a remedy of the defendant, or the
responding party in general, which
attacks the entire pleading and seeks
its dismissal based on:
1. Grounds which are patent on the face
of the complaint;
2. Defenses available to the defendant at
the time of the filing of the complaint.
It hypothetically admits the facts
stated in the complaint.
It is not a responsive pleading. It is
not a pleading at all.
 It is subject to the omnibus motion
rule since it is a motion that attacks a
pleading.
Hence, it must raise all objections
available at the time of the filing
thereof.
General rule: A court may not motu
propio dismiss a case, unless a motion to
that effect is filed by a party.
Exceptions:
1. Cases where the court shall dismiss a
case motu propio, as when it appears
in the pleadings that
i. Court has no jurisdiction over the
subject matter,
ii. Litis pendencia is present
iii. Action is barred by res judicata
iv. Action is barred by the statute of
limitations.
2. Failure to prosecute;
3. Dismissal of case under summary
procedure after examination of the
pleadings.
Types of dismissal of action:
1. Motion to dismiss before answer
under Rule 16;
2. Motion to dismiss under Rule 17:
i. Upon notice by plaintiff;
ii. Upon motion by plaintiff;
iii. Due to fault of plaintiff.
3. Demurrer to evidence after plaintiff
has completed the presentation of his
evidence under Rule 33;
4. Dismissal of an appeal.
A motion to dismiss shall be
proved/disproved according to the
rules of evidence.
The hearing shall be conducted as an
ordinary hearing and the parties shall
be allowed to present evidence, except
when the motion is based upon failure
of the complaint to state a cause of
action.
When the MTD is based on facts not
appearing of record, the court may
hear the matter on affidavits or
depositions.
Rule 16, Sec.1. Grounds.Within the time for
but before filing the answer to the complaint
or pleading asserting a claim, a motion to
dismiss may be made on any of the following
grounds:
(a) That the court has no jurisdiction over the
person of the defending party;
(b) That the court has no jurisdiction over the
subject matter of the claim;
(c) That venue if improperly laid;
(d) That the plaintiff has no legal capacity to
sue;
(e) That there is another action pending
between the same parties for the same cause;
(f) That the cause of action is barried by a
prior judgment or by the statute of limitations;
(g) That the pleading asserting the claim states
no cause of action;
(h) That the claim or demand set forth in the
plaintiffs pleading has been paid, waived,
abandoned, or otherwise extinguished;
(i) That the claim on which the action is
founded is unenforceable under the provisions
of the statute of frauds; and
(j) That a condition precedent for filing the
claim has not been complied with.
1. LOJ over the defendants person;
2. LOJ over the subject matter of the
claim;
3. Improper venue;
4. Plaintiffs lack of legal capacity to sue;
5. Litis pendentia;
6. Res judicata;
7. Prescription;
8. Failure to state a cause of action;
9. Extinguished claim;
10. Unenforceable claim under the
Statute of Frauds;
11. Non-compliance with a condition
precedent for filing claim.
Lack of jurisdiction over the defendants
person:
The objection of LOJ over the person
on account of lack of service or
defective service of summons, must be
raised:
At the very first opportunity;
Before any voluntary appearance
is made.
Laus vs. CA (1993): If a defendant had
not been properly summoned, the
period to file a motion to dismiss for
lack of jurisdiction over his person
does not commence to run until he
voluntarily submits to the jurisdiction
of the court.
 Delos Santos vs. Montesa (1993):
Appearance of counsel is equivalent to
summons, unless such is made to
protest the jurisdiction of the court
over the person of the defendant. If
grounds other than invalid service of
summons are raised, it cannot be
considered as a special appearance.
Lack of jurisdiction over the subject
matter of the claim:
If the complaint shows on its face
lack of jurisdiction, the court may
dismiss the case outright instead of
hearing the motion.
A motion to dismiss on the ground of
lack of jurisdiction over the subject
matter may be raised either:
Before answer;
After answer is filed;
After hearing had commenced;
At any stage of the proceeding,
even for the first time on appeal
and even if no such defense is
raised in the answer.
Improper venue:
Diaz vs. Adiong (1993): Unless and
until the defendant objects to the
venue in a motion to dismiss prior to
a responsive pleading, the venue
cannot truly be said to have been
improperly laid since, for all practical
intents and purposes, the venue
though technically wrong may yet be
considered acceptable to the parties
for whose convenience the rules on
venue had been devised. Improper
venue may be waived and such waiver
may occur by laches.
HSBC vs. Sherman (1989): A judicata on the action under
stipulation between the parties as to
venue does not preclude the filing of
suits in the residence of
plaintiff/defendant under Rule 4, Sec.
2(b). In the absence of
qualifying/restrictive words which
would indicate that a specific place
alone is the venue, an agreement as to
venue is merely permissive and there
is no waiver of right to pursue remedy
in other courts.
If the court erroneously denies the
motion to dismiss, the remedy is
prohibition.
Plaintiffs lack of legal capacity to sue:
The plaintiff lacks legal capacity to
sue:
When he does not possess the
necessary qualification to appear
at the trial (e.g. when he plaintiff
is not in the full exercise of his
civil rights);
When he does not have the
character which he claims, which
is a matter of evidence (e.g. when
he is not really a duly appointed
administrator of an estate).
Lack of legal capacity to sue refers
to plaintiffs disability; while lack
of legal personality to sue refers to
the fact that the plaintiff is not a
real party in interest, in which
case the ground for dismissal
would be that the complaint states
no cause of action.
Litis pendentia:
In the case of Anderson Group v. CA
(1997), the Court laid down the
following requisites for litis pendencia
to exist:
1. Identity of parties;
2. identity of rights asserted and
relief prayed for;
3. Relief founded on the same facts
and the same basis;
4. Identity in the 2 proceedings
should be such that any judgment
which may be rendered in the
other action will amount to res
consideration.
It is not required to allege that there
be a prior pending case. It is sufficient
to allege and prove the pendency of
another case, even if same had been
brought later.
It does not require that the later case
be dismissed in favor of the earlier
case.
To determine which case should be
abated, apply:
1. The More Appropriate Action Test;
2. The Interest of Justice Test, taking
into account:
i. Nature of the controversy;
ii. Comparative accessibility of the
court to the parties;
iii. Other similar factors.
Vitrionics Computers vs. RTC (1993): In
both tests, the parties good faith shall be
taken into consideration. The 1st case
shall be abated if it is merely an
anticipatory action or defense against an
expected suit. The 2nd case will not be
abated if it is not brought to harass.
Res Judicata:
Requisites:
1. Former judgment rendered by a court
having jurisdiction over the subject
matter and over the parties;
2. Judgment must be a final judgment;
3. Judgment must be on the merits;
4. There must be identity of parties, of
subject matter and of the causes of
action.
For res judicata to apply, absolute
identity of parties is not required
because substantial identity is
sufficient.
Inclusion of additional parties will not
affect the application of the principle
of res judicata.
There can be res judicata without
a trial, such as in a judgment on
the pleadings; a summary
judgment; or an order of dismissal
under Rule 17, Sec.3.
DBP vs. Pundogar (1993): The test of
identity of cause of action lies not in the
form of the action but on whether or not
the same evidence would support and
establish the former and the present
causes of action.
Rationale:
Nabus vs. CA (1991): The sum and
substance of the whole doctrine is that a
matter once judicially decided is finally
decided because of:
1. Public policy and necessity makes it
the interest of the State that there
should be an end to litigation;
2. The hardship on the individual that
he should be vexed twice for the same
cause.
In Abalos vs. CA (1993) two concepts of
res judicata were explained:
1. Bar by prior judgment Judgment on
the merits in the 1st case constitutes
an absolute bar to the subsequent
action not only as to every matter
which was offered and received to
sustain or defeat the claim/demand,
but also to any other admissible
matter which might have been offered
for that purpose and to all matters
that could have been adjudged in that
case.
2. Conclusiveness of judgment Where
the 2nd action between the parties is
upon a different claim/demand, the
judgment in the 1st case operates as
an estoppel only with regard to those
issues directly controverted, upon the
determination of which the judgment
was rendered.
Statute of limitations:
Prescription applies only when the
complaint on its face shows that
indeed the action has already
prescribed.
If the fact of prescription is not
indicated on the face of the complaint
and the same may be brought out
later, the court must defer decision on
the motion until such time as proof
may be presented on such fact of
prescription.
Complaint states no cause of action:
Failure to state a Lack of cause of
cause of action action
Ground for a motion
to dismiss
Insufficiency in the Insufficiency in the
allegations in the factual basis of the
pleading action
Failure to state a cause of action
(not lack of cause of action) is the
ground for a motion to dismiss.
The failure to state a cause of action
must be evident on the face of the
complaint itself.
 Test: Assuming the allegations and
statements to be true, does the
plaintiff have a valid cause of
action?
A motion to dismiss based upon the
ground of failure to state a cause of
action imports a hypothetical
admission by the defendant of the
facts alleged in the complaint. If the
court finds the allegations of the
complaint to be sufficient but doubts
their veracity, it must deny the motion
to dismiss and require the defendant
to answer and to proceed to try the
case on its merits.
A complaint containing a premature
cause of action may be dismissed for
failure to state a cause of action.
Tanpinco vs. IAC (1992): If the suit is
not brought against the real party-in-
interest, a motion to dismiss may be
filed on the ground that the complaint
states no cause of action.
Extinguished claim:
That the claim/demand set forth in the
plaintiff's pleading has been paid,
waived, abandoned or otherwise
extinguished.
Non-compliance with a condition
precedent:
Non-compliance with PD 1508
(Katarungang Pambarangay Law) may
result in dismissal of the case on the
ground of non-compliance with a
condition precedent.
Pleading the grounds as affirmative
defenses:
Rule 16, Sec.6. Pleading grounds as
affirmative defenses.If no motion to dismiss
has been filed, any of the grounds for
dismissal provided for in this Rule may be
pleaded as affirmative defense in the answer
and, in the discretion of the court, a
preliminary hearing may be had thereon as if a
motion to dismiss had been filed.
The dismissal of the complaint under this
section shall be without prejudice to the
prosecution in the same or separate action of
a counterclaim pleaded in the answer.
Dismissal of the complaint under Rule 16,
Sec. 6 is without prejudice to the
prosecution (in the same or in a separate
action) of a counterclaim pleaded in the
answer.
Hearing on the motion to dismiss:
Rule 16, Sec.2. Hearing of motion.At the
hearing of the motion, the parties shall submit
their arguments on the questions of law and
their evidence on the questions of fact involved
except those not available at that time. Should
the case go to trial, the evidence presented
during the hearing shall automatically be part
of the evidence of the party presenting the
same.
During the hearing of the motion, parties
shall submit:
1. Their arguments on questions of law;
2. Their evidence on questions of fact,
except those not available at that
time. If the case goes to trial, such
evidence presented shall
automatically be part of the evidence
of the party who presented them.
Action of the court:
Rule 16, Sec.3. Resolution of moton.After the
haring, the court may dismiss the action or
claim, deny the motion, or order the
amendment of the pleading.
The court shall not defer the resolution of the
motion for the reason that the ground relied
upon is not indubitable.
In every case, the resolution shall state clearly
and distinctly the reasons therefor.
A. After the hearing, the court may
either:
Dismiss the action/claim;
Deny the motion to dismiss;
Order the amendment of
pleadings.
B. The courts resolution on the motion
to dismiss must clearly and distinctly
state the reasons therefore.
C. The court cannot defer the resolution
of the motion to dismiss for the reason
that the ground relied upon is not
indubitable.
Effects of dismissal:
Rule 16, Sec.5. Effect of dismissal.Subject to
the right of appeal, an order granting a motion
to dismiss based on pars. (f), (h) and (i) of
section 1 hereof shall bar the filing of the same
action or claim.
General rule: The action/claim may be
refiled.
Exception: The action cannot be refilled
(although subject to appeal) if it was
dismissed on any of the following
grounds:
1. Res judicata;
2. Prescription;
3. Extinguishment of the claim/demand;
4. Unenforceability under the Statute of
Frauds.

Effect of dismissal on periods for

pleading:
If motion to dismiss was denied
Movant must file his answer within
the balance of the period under Rule
11 to which he was entitled at the
time of serving his motion to dismiss
(but not less than 5 days).
If pleading is ordered to be amended
Movant must file his answer within
the period under Rule 11, counted
from service of the amended pleading
(unless the court gives a longer
period).

Motion to dismiss based on the following

grounds may be filed even after filing an
answer: [Rule 9, Sec. 1]
1. LOJ over subject-matter;
2. Litis pendentia;
3. Res judicata;
4. Prescription.
IV. Joinder of Issues 4. Specific denial under oath Contests
the authenticity or due execution of
This section would discuss the following: an actionable document.
A. Answer 5. Negative pregnant Denial pregnant
1. Time to Plead with an admission.
2. Observance of Period
3. Failure to Plead
B. Counterclaim
Definition of negative pregnant in
1. Definition Philamgen vs. Sweet Lines (1993): It is a
2. Permissive vs. Compulsory denial pregnant with the admission of the
3. Rules substantial facts in the pleading
responded to which are not squarely
A. Answer denied. It is in effect an admission of the
averment it is directed to.
Q: What is an answer?
A: The pleading where the defendant sets Insufficient denials or denials amounting
forth his affirmative/negative defenses. It to admissions:
may also be the response to a 1. General denial;
counterclaim or a cross-claim. 2. Negative pregnant.

Two kinds of defenses that may be set 1. Time to Plead

forth in the answer:
1. Affirmative defenses Allegations of Answer to Complaint and Third-Party
new matters which, while (Fourth-Party, etc.) Complaint: Fifteen
hypothetically admitting the material (15) days after service of summons,
allegations in the claimants pleading, unless a different period is fixed by
would nevertheless prevent/bar the court.
recovery by him. It incudes: However, under Rule 16, Sec.4, if a
i. Fraud, motion to dismiss is denied, the
ii. Prescription, movant shall file his answer within
iii. Release, the balance of the period provided by
iv. Pyment, Rule 11 to which he was entitled at
v. And any other matter by way of the time of serving his motion, but not
confession and avoidance. less than five (5) days in any event,
2. Negative defenses Specific computed from his receipt of the
denials of the material facts alleged notice of the denial. If the pleading is
in the pleading of the claimant ordered to be amended, he shall file
essential to his cause of action. his answer within the period
prescribed by Rule 11 counted from
Kinds of denial: service of the amended pleading,
1. Specific denial Specifies each unless the court provides a longer
material allegation of fact the truth of period.
which he does not admit, and sets
forth the substance of the matters Answer of a defendant foreign private
upon which he relies to support his juridical entity:
denial. when summons is served upon a
2. Denial with qualification - Specifies so resident agent: Fifteen (15) days
much of it as is true and material, after service summons.
and deny the remainder. when summons is served on the
3. Specific denial for lack of government official designated to
knowledge/information sufficient to receive the same: Thirty (30) days
form as belief as to the truth of a from receipt by the latter of the
material averment made in the summon.
complaint.
Answer to Amended Complaint,
Amended Counterclaim, Amended Cross-
claim and Amended Third-Party (Fourth- Exceptions: lack of jurisdiction over
Party, etc) Complaint: the subject matter, litis pendentia, res
amended complaint was filed as a judicata and prescription.
matter of right: Fifteen (15) days after
being served with a copy thereof; and B. Counterclaim
amended complaint was filed with
leave of court: Ten (10) days from 1. Definition of a counterclaim
notice of order admitting the amended Any claim which a defending party
complaint. may have against an opposing party.
A counterclaim is in the nature of a
Answer to counterclaim or cross-claim: cross complaint. Although it may be
within ten (10) days from service alleged in the answer, it is not part of
the answer. Upon its filing, the same
Reply: within ten (10) days from service proceedings are had as in the original
of the pleading responded to. complaint. For this reason, it must be
answered 10 days from service.
Answer to supplemental complaint:
within ten (10) days from notice of the 2. Permissive vs. Compulsory:
order admitting the same, unless a Compulsory Permissive
different period is fixed by the court. counterclaim counterclaim
One which arises
Answer to Complaint-in-Intervention: out of or is It does not arise
within fifteen (15) days from notice necessarily out of nor is it
connected with the necessarily
2. Observance of Period transaction or connected with the
occurrence that is subject matter of
Alvero vs. Dela Rosa (1946): While the the subject matter the opposing
rules are liberally construed, the of the opposing party's claim.
provisions on reglementary periods are party's claim.
strictly applied for they are deemed Does not require May require for its
indispensable to the prevention of for its adjudication adjudication the
needless delays and necessary to the the presence of presence of third
orderly and speedy discharge of judicial third parties of parties over whom
business. whom the court the court cannot
cannot acquire acquire
FJR Garment Industries v. CA (1984): jurisdiction. jurisdiction.
Strict compliance with said periods is Not barred even if
mandatory and imperative. Barred if not set up
not set up in the
in the action.
action.
3. Failure to Plead Must be answered,
Rule 9, Sec.1. Defenses and objections not Need not be otherwise, the
pleaded.Defenses and objections not answered; no defendant can be
pleaded either in a motion to dismiss or in the default. declared in
answer are deemed waived. However, when it
default.
appears from the pleadings or the evidence on
record that the court has no jurisdiction over Sun Insurance vs. Asuncion: A
the subject matter, that there is another permissive counterclaim requires the
action pending between the same parties for payment of docket fees.
the same cause, or that the action is barred by Gojo vs. Goyala: A plaintiff who fails
a prior judgment or by statute of limitation, or chooses not to answer a
the court shall dismiss the claim. compulsory counterclaim may not be
General rule: Defenses and declared in default, principally
objections not pleaded either in a because the issues raised in the
motion to dismiss or in the answer, counterclaim are deemed
are deemed waived.
 automatically joined by the allegations
in the complaint.
Requisites of a compulsory counterclaim:
1. It must arise out of, or be necessarily
connected with, the transaction or
occurrence that is the subject matter
of the opposing party's claim;
2. It does not require for its adjudication
the presence of 3rd parties of whom
the court cannot acquire jurisdiction;
3. It must be within the courts
jurisdiction.
Rule 11, Sec.9. Counteclaim or cross-claim
arising after answer.A counterclaim or a
cross-claim which either matured or was
acquired by a party after serving his pleading
may, with the permission of the court, be
presented as a counterclaim or a cross-claim
by supplemental pleading before judgment.
General rule: A compulsory counterclaim
not set up in the answer is deemed
barred.
Exception: If it is a counterclaim which
either matured or was acquired by a party
after serving his answer. In this case, it
may be pleaded by filing a supplemental
answer or pleading before judgment.
The filing of a motion to dismiss and
the setting up of a compulsory
counterclaim are incompatible
remedies.
In the event that a defending party
has a ground for dismissal and a
compulsory counterclaim at the same
time, he must choose only one
remedy. If he decides to file a motion
to dismiss, he will lose his
counterclaim. But if he opts to set up
his counterclaim, he may still plead
his ground for dismissal as an
affirmative defense in his answer.
BA Finance v. Co (1993): If any of the
grounds to dismiss under Rule 17,
Sec.3 arise, the proper recourse for a
defendant who desires to pursue his
compulsory counterclaim in the same
proceeding is not a motion to dismiss.
Instead, he should only move to have
the plaintiff declared non-suited on
the complaint so that the latter can no
longer present his evidence thereon,
and simultaneously move that he be
declared as in default on the
compulsory counterclaim, and reserve
the right to present evidence ex parte
on his compulsory counterclaim.
If there is a dismissal of action due to
plaintiffs fault then it shall be without
prejudice to the defendants right to
prosecute his counterclaim in the
same/separate action.
Test to determine whether a counterclaim
is compulsory or permissive: logical
relationship test:
Meliton v. CA: Where conducting separate
trials of the respective claims would entail
substantial duplication of effort and time
and involves many of the same factual
and legal issues.
Remedies:
Rule 11, Sec.10. Omitted counterclaim or cross-
claim.When a pleader fails to set up a
counterclaim or cross-claim through oversight,
inadvertence, or excusable neglect, or when
justice requires, he may, by leave of court, set
up the counterclaim or cross-claim by
amendment before judgment.
Remedy for failure to raise a compulsory
counterclaim: None. A compulsory
counterclaim not set up is considered
barred.
For failure to raise a compulsory
counterclaim because of oversight,
inadvertence, etc: With leave of court,
counterclaim may be set up by
amendment before judgment.
Remedy of main action fails:
BA Finance v. Co: Motion to declare
plaintiff non-suited in the main action
and as in default in the counterclaim.
3. Rules
Rule 11, Sec.8. Existing counterclaim or cross-
claim.A compulsory counterclaim or a cross-
claim that a defending party has at the time
he files his answer shall be contained therein.
How to raise counterclaims:
1. Included in the answer:
General rule: A compulsory
counterclaim or a cross-claim that a
defending party has at the time he
 files his answer shall be contained
therein.
Exception: Pleadings may be amended
under Rule 11, Sec.10.
2. After the answer: Counterclaims or
cross-claims arising after the answer,
with the courts permission, may be
presented as a counterclaim/cross-
claim by supplemental pleading before
judgment.

A counterclaim before the MTC must

be within the jurisdiction of said court
both as to the amount and nature.
In an original action before the RTC,
the counterclaim may be considered
compulsory regardless of the amount.
Agustin v. Bacalan: If a counterclaim
is filed in the MTC in excess of its
jurisdictional amount, the excess is
considered waived.
In Calo v. Ajax, the remedy where a
counterclaim is beyond the
jurisdiction of the MTC is to set off the
claims and file a separate action to
collect the balance.
V. Pre-Trial
This section would discuss the following on
the pre-trial:
A. Concept
B. Purpose
C. Some Rules
D. Pre-trial Order
1. Concept of pre-trial
A mandatory conference and personal
confrontation before the judge between
the parties litigant and their
representative counsels, called by the
court after the joinder of issues in a case
or after the last pleading has been filed
and before trial, for the purpose of
settling the litigation expeditiously or
simplifying the issues without sacrificing
the necessary demands of justice.
2. Purpose
Rule 18, Sec.2. Nature and purpose.The pre-
trial is mandatory. The court shall consider:
a. The possibility of an amicable settlement
or of a submission to alternative modes of
dispute resolution;
b. The simplification of the issues;
c. The necessity or desirability of
amendments to the pleadings;
d. The possibility of obtaining stipulations or
admissions of facts and of documents to
avoid unnecessary proof;
e. The limitation of the number of witnesses;
f. The advisability of a preliminary reference
of issues to a commissioner;
g. The propriety of rendering judgment on
the pleadings, or summary judgment, or of
dismissing the action should a valid
ground therefore be found to exist;
h. The advisability or necessity of suspending
the proceedings; and
i. Such other matters that may aid in the
prompt disposition of the action.
Caltex vs. CA (1992): Pre-trial is primarily
intended to make certain that all issues
necessary to the disposition of a case are
properly raised. Thus, to obviate the
element of surprise, parties are expected
to disclose at a pre-trial conference all
issues of law and fact which they intend
to raise at the trial, except such as may
involve privileged or impeaching matters.
The determination of issues at a pre-trial
conference bars the consideration of other
questions on appeal.
When pre-trial is conducted:
Rule 18, Sec.1. When conducted.After the
last pleading has been served and filed, it shall
be the duty of theplaintiff to promptly move ex
parte that the case be set for pre-trial.
Calalang vs. CA (1993): A pre-trial cannot
validly be held until the last pleading has
been filed, which last pleading may be the
plaintiff's reply, except where the period
to file the last pleading has lapsed.
Discretion to declare a party non-suited
in pre-trial conference must not be
abused. Unless a party is so negligent,
irresponsible, contumacious, or dilatory
as to provide substantial grounds for
dismissal for non-appearance, the court
should consider lesser sanctions which
would still amount to achieving the end
desired.
3. Some Rules
Notice of pre-trial:
Rule 18, Sec.3. Notice of pre-trial.The notice
of pre-trial shall be served on counsel, or on
the party who has no counsel. The counsel
served with such notice is charged with the
duty of notifying the party represented by him.
Notice of pre-trial shall be served on
counsel, or on the party who has no
counsel.
Counsel served with such notice has a
duty to notify the party he represents.
Appearance of parties:
Rule 18, Sec.4. Appearance of parties.It shall
be the duty of the parties and their counsel to
appear at the pre-trial. The non-appearance of
a party may be excused only if a valid cause is
shown therefore or if a representative shall
appear in his behalf fully authorized in writing
o 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.
A partys non-appearance may be
excused only if either:
1. Valid cause is shown for it;
2. A representative appears 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.
Citibank vs. Chua (1993): SC
admonishes the courts against
precipitate orders of default as they
have the effect of denying the party
the chance to be heard. There are
instances when parties may properly
be defaulted, but such is the
exception rather than the rule and
should be used only in clear cases of
obstinate refusal or inordinate neglect
to comply with court orders.
Pre-trial brief:
Rule 18, Sec.6. Pre-trial brief.The parties
shall file with the court and serve on the
adverse party, in such manner as shall ensure
their receipt thereof at least 3 days before the
date of pre-trial, their respective pre-trial
briefs which shall contain, among other:
a. A statement of their willingness to enter
into amicable settlement or alternative
modes of dispute resolution, indicating the
desired terms thereof;
b. A summary of admitted facts and
proposed stipulation of facts;
c. The issues to be tried or resolved;
d. The documents or exhibits to be
presented, stating the purpose thereof;
e. A manifestation of their having availed or
their intention to avail themselves of
discovery procedures or referral to
commissioners; and
f. The number and names of the witnesses,
and the substance of their respective
testimonies.
Failure to file the pre-trial brief shall have the
same effect as failure to appear at the pre-
trial.
Important: Failure to file the pre-trial
brief shall have the same effect as failure
to appear at the pre-trial.
4. Pre-Trial Order
Rule 18, Sec.7. Record of pre-trial.The
proceedings in the pre-trial shall be recorded.
Upon the termination thereof, the court shall
issue an order which shall recite in detail the
matters taken up in the conference, the action
taken thereon, the amendments allowed to the
pleadings, and the agreements or admission
made by the parties as to any of the matters
considered. Should the action proceed to trial,
the order shall explicitly define and limit the
issue to be tried. The contents shall control
the subsequent course of the action, unless
modified before trial to prevent manifest
injustice.
The pre-trial proceedings shall be
recorded.
Upon termination of such
proceedings, the court shall issue the
pre-trial order.
Pre-trial orders contents:
1. Matters taken up in the conference;
2. Action taken thereon;
3. Amendments allowed on the
pleadings;
4. Agreements/admissions made by the
parties as to any matters considered;
5. Should the action proceed to trial, the
explicit definition and limit of the
issues to be tried.
Consequence of pre-trial order:
The contents of the order shall control the
subsequent course of the action, unless
modified before trial to prevent manifest
injustice.
Goldloop Properties vs. CA (1992): Upon
manifestation of the parties of their
willingness to discuss a compromise, the
trial court should order the suspension of
the proceedings to allow them reasonable
time to discuss and conclude an amicable
settlement. If despite all efforts exerted by
the trial court and the parties the
settlement conference still fails, then the
action should have continued as if no
suspension had taken place.
VI. Trial
Notice of trial:
Rule 30, Sec.1. Notice of trial.Upon entry of a
case in the trial calendar, the clerk shall notify
the parties of the date of its trial in such a
manner as shall ensure his receipt of that
notice at least 5 days before such date.
Adjournments and postponements:
Rule 30, Sec.2. Adjournments and
postponements.A court may adjourn a trial
from day to day, and to any stated time, as the
expeditious and convenient transaction of
business may required, but shall have not
power to adjourn a trial for a longer period
than one month for each adjournment, nor
more than 3 months in all, except when
authorized in writing by the Court
Administrator, Supreme Court.
General rule: The court may adjourn a
trial from day to day to any stated time,
as the expeditious and convenient
transaction of business may require.
Exception: Court may not adjourn for
longer than 1 month for each
adjournment, nor more than 3 months in
all.
Exception to exception: When
authorized in writing by the SC Court
Administrator.
Ground and requisite for motion to
postpone:
Rule 30, Sec.3. Requisites of motion to
postpone trial for absence of evidence.A
motion to postpone trial on the ground of
absence of evidence can be granted only upon
affidavit showing the materiality or relevancy
of such evidence, and that due diligence has
been used to procure it. But if the adverse
party admits the facts to be given in evidence,
even if he objects or reserves the right to
object to their admissibility, the trial shall not
be postponed.
Rule 30, Sec. 4. Requisites of motion to
postpone trial for illness of party or counsel.A
motion to postpone trial on the ground of
illness of a party or counsel may be granted if
it appears upon affidavit or sworn certification
that the presence of such party or counsel at
the trial is indispensable and that the
character of his illness is such as to render his
non-attendance excusable.
For absence of evidence an affidavit
showing the following is necessary:
1. The materiality/relevancy of such
evidence;
2. That due diligence has been used to
procure the evidence.
But if the adverse party admits the facts
to be given in evidence, trial shall not be
postponed even if he objects or reserves
the right to object to their admissibility.
For illness of party/counsel an affidavit
or sworn certification containing the
following is necessary:
1. That the presence of such party or
counsel at the trial is indispensable;
2. That the character of his illness is
such as to render his nonattendance
excusable.
Conduct of trial:
Rule 30, Sec.5. Order of trial.Subject to the
provisions of sec.2 of Rule 31, and unless the
court for special reaspons otherwise directs,
the trial shall be limited to the issues stated in
the pre-trial order and shall proceed as
follows:
(a) The plaintiff shall adduce evidence in
support of his complaint;
(b) The defendant shall then adduce evidence
in support of his defense, counterclaim, cross-
claim and third-party complaint;
(c) The third-party defendant, if any, shall
adduce evidence of his defense, counterclaim,
cross-claim and fourth-party complaint;
(d) The fourth-party, and so forth, if any, shall
adduce evidence of the material facts pleaded
by them;
(e) 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;
(f) The parties may then respectively adduce
rebutting evidence only, unless the court, for
good reasons and iin furtherance of justice,
permits them to adduce evidence upon their
original case; and
(g) 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.
If several defendants or third-party
defendants, and so forth, having separate
defenses appear by different counsel, the court
shall determine the relative order of
presentation of their evidence.
General rule: Trial shall be limited to the
issues stated in the pre-trial order.
Exceptions:
1. Provisions on separate trials.
2. When for special reasons the court
directs otherwise.
General order of trial:
1. Plaintiff shall adduce evidence in
support of his claim;
2. Defendant shall adduce evidence in
support of his defense, counterclaim,
cross-claim and third-party
complaint;
3. Third-party defendant (if any) shall
adduce evidence of his defense,
counterclaim, cross-claim and fourth-
party complaint;
4. Fourth-party (and so forth) shall
adduce evidence of the material facts
pleaded by them;
5. Parties, whom any counterclaim or
cross-claim has been pleaded, shall
adduce evidence in support of their
defense, in the order prescribed by the
court.
6. Parties may then respectively adduce
rebutting evidence only.
Exception to general order: When the
court permits them to adduce evidence
upon their original case, for good reasons
and in furtherance of justice.
Upon admission of 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.
If several defendants or third-party
defendants having separate defenses
appear by different counsel, the court
shall determine the relative order of
presentation of their evidence.
Agreed statement of facts:
Rule 30, Sec.6. Agreed statement of facts.
The parties to any action may agree, in
writing, upon the facts involved in the
litigation, and submit the case for judgment
on the facts agreed upon, without the
introduction of evidence.
If the parties agree only on some of the facts in
issue, the trial shall be held as to the disputed
facts in such order as the court shall
prescribe.
Parties may agree in writing upon the
facts involved in the litigation, and
submit the case for judgment without
introduction of evidence.
If the parties agree to only some of the
facts in issue, trial shall be held as to
the disputed facts in such order as
the court shall prescribe.
Statement of the judge:
Rule 30, Sec.7. Statement of judge.During
the hearing or trial of the case any statement
made by the judge with reference to the case,
or to any of the parties, witnesses or counsel,
shall be made of record in the stenographic
notes.
Suspension of actions:
Rule 30, Sec.8. Suspension of actions.The
suspension of actions shall be governed by the
provisions of the Civil Code.
Reception of evidence:
Rule 30, Sec. 9. Judge to receive evidence;
delegation to clerk of court.The judge of the
court where the cases is pending shall
personally receive the evidence to be adduced
by the parties. However, in default or ex parte
hearings, and in any case where the parties
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 of court 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 transcripts
within 10 days from termination of the
hearing.
General rule: The judge of the court
where the case is pending shall personally
receive the evidence to be adduced by the
parties.
Exception: The court may delegate the
reception of evidence to its clerk of court
who is a member of the bar in:
1. Default hearings;
2. Ex parte hearings;
3. Cases where parties agree in writing.
The clerk of court has no power to
rule on objections to any
question/admission of exhibits.
Objections shall be resolved by the
court upon submission of the clerks
 report and transcripts of stenographic
notes within 10 days from termination
of the hearing.
Trial by commissioner:
Rule 32, Sec.1. Reference by consent.By
written consent of both parties, the court may
order any or all of the issues in a case to be
referred to a commissioner to be agreed upon
by the parties or to be appointed by the court.
As used in these Rules, the word
commissioner includes a referee, an auditor
and an examiner.
Rule 30, Sec.2. Refence ordered on motion.
When the parties do not consent, the court
may, upon the application of either or its won
motion, direct a reference to a commissioner
in the following cases:
(a) When the trial of an issue of fact requires
the examination of a long account on either
side, in which case the commissioner may be
directed to hear and report upon the whole
issue or any specific questions involved
therein;
(b) When the taking of an account is necessary
for the information of the court before
judgment, or for carrying a judgment or order
into effect;
(c) When a question of fact, other than upon
the pleadings, arises upon motion or
otherwise, in any stage of a case, or for
carrying a judgment or order into effect.
Q: Who is a commissioner?
A: A commissioner includes a referee, an
auditor or an examiner.
Kinds of trial by commissioner:
1. Reference by consent of both parties.
2. Reference ordered on motion when:
i. Trial of an issue of fact requires
the examination of a long account
on either side.
ii. Taking of an account is necessary
for the courts information before
judgment, or for carrying
judgment/order into effect.
iii. A question of fact, other than
upon the pleadings, arises in any
stage of a case or for carrying a
judgment/order into effect.
Order of reference:
When a reference is made, the clerk
shall furnish the commissioner with a
copy of the order of reference. The
order may specify or limit the
commissioners power, and may direct
him to report only upon particular
issues, or to do or perform particular
acts, or to receive and report evidence
only.
The commissioner shall set a time or
place for the first meeting and shall
notify parties or counsels.
Upon completion of the trial or
hearing, the commissioner shall file a
written report with the court.
The clerk shall notify parties of the
filing of the report. The parties 10
days to object to the reports findings.
After the 10 days, the report shall be
set for hearing. The court may issue
an order adopting/modifying/rejecting
the report or part of it.
When parties stipulate that the
Commissioner's findings of fact are
final, only questions of law shall
thereafter be considered.
Consolidation and severance:
Rule 31. Consolidation or severance
Sec. 1. Consolidation.When actions involving
a common question of law or fact are pending
before the court, it may order a joint hearing
or trial of any or all the matters in issue in the
actions; it may order all the actions
consolidated; and it may make such orders
concerning proceedings therein as may tend to
avoid unnecessary costs or delay.
Sec.2. Separate trials.The court, in
furtherance of convenience or to avoid
prejudice, may order a separate trial of any
claim, cross-claim, counterclaim, or third-
party complaint, or of any separate issue or of
any number of claims, cross-claims,
counterclaims, third-party complaints or
issues.
Consolidation:
When actions involving common question
of law/fact are pending before the court,
it may:
1. Order a joint hearing/trial of any/all
the matters in issue in the actions;
2. Order all the actions consolidated;
3. Make such orders concerning the
proceedings as to avoid unnecessary
costs or delay.
PCGG v. Sandiganbayan (1992): Where a
case has been partially tried before one
judge, the consolidation of the same with
another related case pending before
another judge who had no opportunity to
observe the demeanor of the witness
during trial makes the consolidation not
mandatory.

Severance of trial:
The court may issue separate trials for
convenience or to avoid prejudice:
1. Of any claim, cross-claim,
counterclaim or 3rd-party complaint;
2. Of any separate issue;
3. Of any number of claims, cross-
claims, counterclaims, 3rd-party
complaints or issues.
VII. Judgment
This section discusses the following topics on
judgment:
A. Concept and Requirements
B. Kinds and Definitions
1. With Reception of Evidence
2. Without Reception of Evidence
C. Summary Judgments
D. Ordinary Judgment
A. Concept and Requirements
Q: What is judgment?
A: The final ruling by a court of
competent jurisdiction regarding the
rights and obligations of the parties or
other matters submitted to it in an
action/proceeding.
Parts of a judgment:
1. Opinion of the court: It contains the
findings of facts and conclusions of
law;
2. Disposition of the case: The final and
actual disposition of the rights
litigated (i.e. the dispositive part);
3. Signature of the judge.
Requisites of a valid judgment:
Rule 36, Sec.1. Rendition of judgments and
final orders.A judgment 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 y
him, and filed with the clerk of court.
1987 Constitution:
Art.8, Sec.14. No decision shall be rendered by
any court without expressing therein clearly
and distinctly the facts and the law on which
it is based.
No petition for review or motion for
reconsideration of a decision of the court shall
be refused due course or denied without
stating the legal basis therefor.
1. Court or tribunal must be with
authority to hear and determine
the matter before it.
2. Court must have jurisdiction over
the parties and the subject matter.
3. Parties must have been given an
opportunity to adduce evidence in
their behalf.
4. Acosta v. COMELEC: Evidence must
have been considered by the
tribunal in deciding the case.
5. Judgment must be in writing,
personally and directly prepared
by the judge
6. Judgment must state clearly the
facts and the law upon which the
decision is based, signed by the
judge and filed with the clerk of
court.
Corpus vs. Sandiganbayan: A verbal
judgment is, under the law, ineffective.
Chan vs. CA: A decision need not be a
complete recital of the evidence
presented. So long as the factual and
legal bases are distinctly and clearly set
forth, the judgment is valid.
Interpretation of the judgment:
Where the judgment is difficult to
execute because of ambiguity in its
terms, the remedy of the party is to
file a motion for clarificatory
judgment and not to assail the
judgment as void.
General rule: Where there is a
conflict between the body and the
dispositive portion (fallo) of the
decision, the dispositive portion
controls.
Exception: As stated in Poland
Industrial vs. National Development
Co.: Where the inevitable conclusion
from the body of the decision is so
clear that there was a mistake in the
dispositive portion, the body of the
decision will prevail.
B. Kinds of Judgments and Definitions
1. With Reception of Evidence
Q: Explain judgment upon the merits.
A: It is one that is rendered after
consideration of the evidence submitted
by the parties during the trial of the case.
Several judgments:
Rule 36, Sec.4. Several judgments.In an
action against several defendants, the court
may, when a several judgment is proper,
render judgment against one or more of them,
leaving the action to proceed against the
others.
Q: When is several judgments proper?
A: It is proper when the liability of each
party is clearly separate and distinct from
his co-parties such that the claims
against each of them could have been the
subject of separate suits, and the
judgment for or against one of them will
not necessarily affect the other.
Separate judgments:
Rule 36, Sec.5. Separate judgments.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 counterclaims arising
out of the transaction or occurrence which is
the subject matter of the claim, may render a
separate judgment disposing of such claim.
The judgment 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 judgment is
rendered, the court by order may stay its
enforcement until the rendition of a
subsequent judgment or judgments and may
prescribe such conditions as may be
necessary to secure the benefit thereof to the
party in whose favor the judgment is rendered.
Rule 36, Sec.3. Judgment for or against one or
more of several parties.Judgment may be
given for or against one or more of several
plaintiffs, and for or against one or more
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.
Rule 36, Sec.6. Judgment against entity
without juridical personality.When judgment
is rendered against two or more persons sued
as an entity without juridical personality, the
judgment shall set out their individual or
proper names, if known.
It is proper when more than one
claim for relief is presented in an
action for the determination as to the
issues material to the claim has been
made.
The judgment shall terminate the
action with respect to the claims
disposed of, and shall proceed as to
the remaining claims.
The court may stay its enforcement
until rendition of subsequent
judgments, and may prescribe
conditions to secure the judgments
benefits.
Judgment may be given for or against
one or more of several plaintiffs or
defendants. The court may require
the parties on each side to file
adversary pleadings as between
themselves.
If judgment is rendered against two
or more persons sued as an entity
without juridical personality, the
judgment shall set out their
individual names (if known).
Partial reception of evidence:
Judgment by default: When the
defendant is declared in default, the
court shall proceed to render
judgment a granting the claimant
such relief as his pleading may
warrant, unless the court in its
discretion requires the claimant to
submit evidence.
Judgment on demurrer to evidence:
The defendant may file a demurrer to
evidence after the plaintiff has
completed the presentation of his
evidence on the ground that upon the
facts and the law the plaintiff has
shown no right to relief. If the motion
is denied, the defendant shall have
the right to present his evidence. If it
is granted but on appeal is reversed,
he shall be deemed to have waived the
right to present evidence.
2. Without Reception of Evidence
Judgment upon compromise: It is one
conferred on the basis of a compromise
agreement entered into between the
parties. It is immediately executory in the
absence of a motion to set aside on the
ground of fraud, accident, mistake and
excusable negligence.
Judgment upon confession: It is one
rendered by the court when a party
expressly agrees to the other partys claim
or acknowledges the validity of the claim such pleading. However, in actions for
against him. declaration of nullity or annulment of
marriage or for legal separation, the material
Judgment upon Judgment by facts alleged in the complaint shall always be
compromise confession proved.
The provisions and An affirmative and Judgment on the pleadings: Where an
terms are settled by voluntary act of the answer fails to tender an issue or
the parties to the defendant himself. otherwise admits the material allegations
action. of the adverse partys pleading, the court,
Judgment is Court exercises on motion of that party, direct judgment
entered in the certain amount of
on such pleading. However, in actions for
record by consent f supervision over the
the court. entry of judgment. declaration of nullity or annulment of
marriage or for legal separation, the
Kinds of judgment by confession: material facts alleged in the complaint
1. Judgment by cognovit actionem: shall always be provided.
After service, the defendant, instead of
entering a plea, acknowledged and Summary judgment: When there is no
confessed that the plaintiffs cause of genuine issue of material fact, except as
action was just and rightful. to the amount of damages, the court may
2. Judgment by confession relicta issue a judgment based on supporting
verificatione: After pleading and affidavits, depositions or admissions.
before trial, the defendant both: (a)
confessed the plaintiffs cause of Q: When may motion for summary
action and (b) withdrew his plea or judgment be filed?
other allegations, whereupon A: By plaintiff: at any time after an
judgment was entered against him answer has been served or by defendant:
without proceeding to trial. At any time

Remedy against judgment by consent, Estrada v. Consolacion (1976): The test for
confession or compromise is to first file a the propriety of a motion for summary
motion to set it aside; if denied, file the judgment is whether the pleadings,
appropriate petition under Rule 65. affidavits and exhibits in support of the
motion are sufficient to overcome the
C. Summary Judgments opposing papers and to justify the
findings that, as a matter of law, there is
Judgment on the no defense to the action or the claim is
Summary judgment clearly meritorious.
pleadings
May be filed by either
the plaintiff or Filed by the plaintiff Jugador vs. De Vera (1954): Summary
defendant judgment may include a determination of
Ground: answer fails the right to damages but not the amount
to tender an issue or of damages.
Ground: no genuine otherwise admits the
issue of material fact material allegations in Wagner, Barnes vs. Luzon Surety (1954):
the adverse partys
The court cannot also impose attorneys
pleading
Decision: based on fees in a summary judgment in the
Decision: based on absence of proof as to the amount thereof.
pleadings, supporting
the complaint and
affidavits, depositions
answer
and affidavits No genuine issue of material fact:
Fletcher vs. Krise (1941): Mere denials
Rule 34, Sec.1. Judgment on the pleadings. unaccompanied by any fact.
Where an answer fails to tender an issue, or In the same case it was mentioned,
otherwise admits the material allegations of that there is no genuine issue of
the adverse partys pleading, the court may, material fact when all facts are within
on motion of that party, direct judgment on judicial knowledge of the court.
D. Ordinary Judgment

The Civil Code (in Art.9) states that no

judge should decline to render
judgment by reason of the silence,
obscurity, or insufficiency of the law.
People vs. Escober (1988): The
decision must set out the facts alleged
by the contending parties, the
conclusions deduced there from and
the opinion formed on the issues
raised. Only then can the judge
intelligently set forth the legal grounds
and consideration proper in his
opinion for the due determination of
the case.
People vs. Derpo (1988): The court is
not required to state in its decision all
the facts found in the records. It is
enough that the court states the facts
and law on which its decision is
based.
VII. Remedies
A. Kinds
1. Before Finality
The following are the remedies before
finality of judgment:
1. Motion for Reconsideration
2. Motion for New Trial
3. Appeal
2. After Finality
Petition for Relief from Judgment
Q: Define relief from judgment.
A: It is a legal remedy whereby a party
seeks to set aside a judgment rendered
against him by a court whenever he is
unjustly deprived of a hearing or was
prevented from taking an appeal because
of fraud, accident, mistake or excusable
negligence.
Francisco vs. Puno: A party who has filed
a timely motion for new trial or motion for
reconsideration can no longer file a
petition for relief from judgment after his
motion has been denied. These remedies
are mutually exclusive. It is only in
appropriate cases where a party aggrieved
by the judgment has not been able to file
a motion for new trial or motion for
reconsideration that a petition for relief
can be filed.
Grounds:
Rule 38, Sec.1. Petition for relief from
judgment, order, or other proceedings.When a
judgment or final order is entered, or any
other proceeding is thereafter taken against a
party in any court through fraud, accident,
mistake, or excusable negligence, he may file
a petition in such court and in the same case
praying that the judgment, order or proceeding
be set aside.
Rule 38, Sec.2. Petition for relief from denial of
appeal.When a judgment of final order is
rendered by any court in a case, and a party
thereto, by fraud, accident, mistake, or
excusable negligence, has been prevented from
taking an appeal, he may file a petition in
such court and in the same case praying that
the appeal be given due course.
Under both grounds, the petition shall
be filed in the same court which
rendered the judgment and in the very
same case.
Prayer in petition for relief from judgment:
1. That the judgment/order/proceeding
be set aside;
2. That the appeal be given due course.
When to file:
Rule 38, Sec.3. Time for filing petition; contents
and verification.A petition provided for in
either of the preceding sections of this Rules
must be verified, filed within 60 days after the
petitioner learns of the judgment, final order,
or other proceeding to b set aside, and not
more than 6 months after such judgment 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 petitioners good
and substantial cause of action or defense, as
the case may be.
Within 60 days from knowledge of
judgment or order or proceedings to
be set aside.
Not more than 6 months from the
entry of such judgment or order or
proceeding.
Both periods must concur. They are
also non-extendible and never
interrupted.
Form and content of petition:
1. Must be verified;
2. Must be accompanied by an affidavit
showing the fraud, accident, mistake
or excusable negligence relied upon;
3. The affidavit of merit accompanying
the petition must also show the facts
constituting the petitioners good and
substantial cause of action or defense.
An affidavit of merit serves as the
jurisdictional basis for the court to
entertain a petition for relief. However,
it is not a fatal defect to warrant
denial of the petition so long as the
facts required to be set out also
appear in the verified petition.
When an affidavit of merit is not
necessary:
1. When there is lack of jurisdiction
over the defendant;
 2. When there is lack of jurisdiction
over the subject matter;
3. When judgment was taken by
default;
4. When judgment was entered by
mistake or was obtained by fraud;
or
5. Other similar cases.
Two hearings in a petition for relief from
judgment:
1. Hearing to determine whether or not
the judgment should be set aside;
2. If #1 is in the affirmative, hearing
upon the merits of the case.
Other remedies after finality of judgment:
1. Action to Annul a Judgment
2. Certiorari
3. Collateral Attack of a Judgment that
is Void on its Face
B. Reconsideration and New Trial
1. Rules
Provisions common to motion for new
trial and motion for reconsideration.:
When to file:
Rule 37, Sec.1. Grounds of and period for filing
motion for new trial or reconsideration.Within
the period for taking an appeal, the aggrieved
party may move the trial court to set aside the
judgment or final order and grant a new trial
for one or more of the following causes
materially affecting the substantial rights of
said party:
(a) Fraud, accident, mistake or excusable
negligence which ordinary prudence could not
have guarded against and by reason of which
such aggrieved party has probably been
impaired in his rights; or
(b) Newly discovered evidence, which could
not, with reasonable diligence, have discovered
and produced at the trial, and which if
presented would probably alter the result.
Within the same period, the aggrieved party
may also move for reconsideration upon the
grounds that the damages awarded are
excessive, that the evidence is insufficient to
justify the decision or final order, or that the
decision or final order is contrary law.
Motion must be filed within the period
for appeal.
The period for appeal is within 15
days after notice to the appellant of
the judgment or final order appealed
from.
The 15-day period is deemed to
commence upon receipt by the
counsel of record, which is considered
notice to the parties. Service upon
the parties themselves is
prohibited and is not considered
as official receipt of judgment.
No motion for extension of time shall
be allowed.
Where a ROA is required, the
appellant shall file:
1. a notice of appeal, and
2. record on appeal within 30 days
from notice of the judgment or
final order.
A record on appeal is required only in:
1. Special proceedings;
2. Other cases of multiple or separate
appeals.
Effect of filing:
The filing of a timely motion interrupts
the period to appeal.
Fresh period rule:
Neypes vs. CA (2005): If the motion is
denied, the movant has a fresh period of
15 days from receipt or notice of the order
denying the motion for new trial or
motion for reconsideration within which
to file an appeal. This applies to Rules 40,
41, 42, 43 and 45.
Resolution of the motion:
Rule 37, Sec.4. Resolution of motion.A
motion for new trial or reconsideration shall be
resolved within 30 days fromteh time it is
submitted for resolution.
Rule 37, Sec.9. Remedy against order denying
a motion for new trial or reconsideration.An
order denying a motion for new trial or
reconsideration is now appealable. (As
modified by AM 07-7-12)
The motion shall be resolved within
30 days from the time it is submitted
for resolution.
 No appeal may be taken from an order
denying a motion for reconsideration
or new trial.
Remedy if motion is denied:
1. To appeal from the judgment or
final order itself.
2. The order denying the motion for
new trial or reconsideration may
itself be assailed by a petition for
certiorari under Rule 65.
Habaluyas vs. Japson (1986): A
motion for new trial or reconsideration
is not a prerequisite to an appeal, a
petition for review or a petition for
review on certiorari. And since the
purpose is to expedite the final
disposition of cases, a strict but
prospective application of said ruling
is in order.
Rule 37, Sec.2. Contents of motion for new trial
or reconsideration.The motion shall be made
in writing stating the ground or grounds
therefor, a written notice of which shall be
served by the movant on the adverse party.
A motion for new trial shall be proved in the
manner provided for proof of motions. A
motion for the cause mentioned in paragraph
(a) of the preceding section shall be supported
by affidavits of merits which may be rebutted
by affidavits. A motion for the cause
mentioned in paragraph (b) shall be supported
by affidavits of the witnesses by whom such
evidence is expected to be given, or by duly
authenticated documents which are proposed
to be introduced in evidence.
A motion for reconsideration shall point out
specifically the findings or conclusions of te
judgment or final order which are not
supported by the evidence or which are
contrary to law, making express reference to
the testimonial or documentary evidence or to
the provisions of law alleged to be contrary to
such findings or conclusions.
A pro forma motion for new trial or
reconsideration shall not toll the reglementary
period of appeal.
2. Motion for Reconsideration
A motion for reconsideration under
Rule 37 is directed against a judgment
or final order.
It is not the motion for
reconsideration of interlocutory order,
which often precedes a petition for
certiorari under Rule 65.
It does not apply to cases that fall
under Summary Procedure.
Grounds for a motion for reconsideration:
1. The evidence is insufficient to justify
the decision;
2. The damages awarded are excessive;
3. The decision or final order is contrary
to law.
Form and content of a motion for
reconsideration:
Motion for reconsideration must be in
writing, a written notice of which
must be served on the adverse
party.
It is not sufficient to mention the
ground relied upon. It is necessary for
the motion for reconsideration to
point out specifically the findings
or conclusions of the judgment or
final order which are not
supported by the evidence or which
are contrary to law, making express
reference to the testimonial or
documentary evidence or to the
provisions of law alleged to be
contrary to such findings or
conclusions.
Non-compliance with this requirement
would reduce the motion to a mere
pro forma motion, which shall not toll
the period for appeal.
Effects:
Rule 37, Sec.3. Action upon motion for new
trial or reconsideration.The trial court may
set aside the judgment or final order and grant
a new trial, upon such terms as may be just,
or may deny the motion. If the court finds that
excessive damages have been awarded or that
the judgment or final order is contrary to the
evidence or law, it may amend such judgment
or final order accordingly.
Grant of motion for reconsideration:
the court may amend the judgment or
final order accordingly.
The amended judgment is in the
nature of a new judgment, which
supersedes the original judgment.
 Denial of motion for reconsideration:
the judgment or final order shall
stand as is.
Rule 37, Sec.7. Partial new trial or
reconsideration.If the grounds for a motion
under this Rule appear to the court to affect
the issues as to only a part, or less than all of
the matter in controversy, or only one, or less
than all, of the parties to it, the court may
order a new trail or grant reconsideration as to
such issues if severable without interfering
with the judgment or final order upon the rest.
If the court finds that a motion affects
less than all of the matters in controversy
or less than all of the parties to it, the
order may grant a motion for
reconsideration as to such issues if
severable without interfering with the
judgment or final order upon the rest.
XXX
Single motion rule:
Rule 37, Sec.5. Second motion for new trial.A
motion for new trial shall include all grounds
then available and those not so included shall
be deemed waived. A second motion for new
trial based on a ground not existing or
available when the first motion was made, may
be filed within the time herein provided
excluding the time during which the first
motion had been pending.
No party shall be allowed a second motion for
reconsideration of a judgment or final order.
A party shall not be allowed to file a
second motion for reconsideration of a
judgment or final order.
The prohibition on a second motion
does not apply to a motion for
reconsideration of an interlocutory
order.
3. Motion for New Trial
The aggrieved party may move the trial
court to set aside the judgment or final
order and grant a new trial for one or
more of the following causes materially
affecting the substantial rights of the said
party:
1. FAME (Extrinsic Fraud, Accident,
Mistake or Excusable Negligence)
which ordinary prudence could not
have guarded against and by reason
of which the aggrieved party has
probably been impaired in his rights.
i. The motion shall be supported by
affidavits of merit. Non-compliance
with this requirement would
reduce the motion to a mere pro
forma motion.
ii. The affidavits of merit must show
the facts (not mere conclusions or
opinions) constituting the valid
cause of action or defense which
the movant may prove in case a
new trial is granted. Otherwise, if
the complaint is after all
groundless or the defense is
ineffective, a new trial would serve
no purpose.
2. Newly discovered evidence, which he
could not, with reasonable diligence,
have discovered and produced at the
trial, and which if presented would
probably alter the result.
i. The motion shall be supported by:
affidavits of the witnesses by
whom such evidence is expected
to be given; and/or duly
authenticated documents which
are proposed to be introduced in
evidence.
ii. Non-compliance with this
requirement would reduce the
motion to a mere pro forma
motion.
Tumang vs. CA: Newly discovered
evidence may and does commonly refer to
evidence already in existence prior to or
during trial but which could not have
been secured and presented during the
trial despite reasonable diligence on the
part of the litigant.
Extrinsic fraud: any fraudulent scheme
executed by the prevailing party outside
of the trial against the losing party who,
because of such fraud, was prevented
from presenting his side of the case.
Intrinsic fraud: acts of a party during
the trial which does not affect the
presentation of the case.
Accident: an event that occurs without
ones foresight or expectation.
Mistake: generally, mistakes of facts or
law where, in good faith, the defendant
was misled in a case.
Effects:
Grant of motion for new trial: the
original judgment shall be vacated,
and the action shall stand for trial de
novo. The recorded evidence upon the
former trial shall be used at the new
trial without retaking them (if they are
material and competent).
Denial of motion for new trial: the
judgment or final order shall stand as
is if the court finds that a motion
affects the issues of the case as to
only a part or less than all of the
matters in controversy, or only one or
less than all of the parties to it, the
order may grant a reconsideration as
to such issues if severable without
interfering with the judgment or final
order upon the rest.
Rule 37, Sec.8. Effect of order for partial new
trial.When less than all of the issues are
ordered retried, the court may either enter a
judgment or final order as to the rest, or stay
the enforcement of such judgment or final
order until after the new trial.
The effect of this order is a partial new
trial.
When there is an order for partial new
trial, the court may either enter a
judgment or final order as to the rest,
or stay the enforcement of such
judgment or final order until after the
new trial.
X
When a second motion for new trial is
permissible: a motion for new trial shall
include all grounds then available. Those
not so included are deemed waived.
However, when a ground for new trial was
not existing or available when the first
motion was made, a second motion for
new trial may be filed.
C. Appeal
RULE 41 (as amended by A.M. 07-07-
12, 2007)
SECTION 1. Subject of appeal. An appeal
may be taken from a judgment 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 petition
for relief or any similar motion
seeking relief from judgment;
b. An interlocutory order;
c. An order disallowing or
dismissing an appeal;
d. An order denying a motion
to set aside a judgment by consent,
confession or compromise on the
ground of fraud, mistake or duress,
or any other ground vitiating
consent;
e. An order of execution;
f. A judgment or final order
for or against one or more of several
parties or in separate claims,
counterclaims, cross-claims and
third-party complaints, while the
main case is pending, unless the
court allows an appeal therefrom;
and
g. An order dismissing an
action without prejudice.
In any of the foregoing circumstances, the
aggrieved party may file an appropriate
special civil action as provided in Rule 65.
SIGNIFICANCE OF THE AMENDMENT:
An order denying motion for new trial or
reconsideration is NOW APPEALABLE!
Perfection of appeal:
Balgami vs. CA (2004): Perfection of an
appeal in the manner and within the
period laid down by law is mandatory and
jurisdictional.
Rationale: Appeal is merely a statutory
privilege, and may be exercised only
in the manner and in accordance with
the provisions of the law. It is neither
a natural right nor a part of due
process.
Effect of failure to perfect appeal:
1. Defeats a partys right to appeal.
2. Precludes appellate court from
acquiring jurisdiction.
Camposagrado vs. Camposagrado (2005):
Failure to pay the appellate court docket
fee within the reglementary period confers
only a discretionary (not mandatory)
power to dismiss the proposed appeal.
Such discretion should consider all
attendant circumstances and must be
exercised with a view to substantial
justice.
Republic v. Bermudez-Lorino (2005):
Appellate court has no jurisdiction to
review a judgment which is immediately
final and executory by express provision
of law.
Rationale: Appeal is merely a privilege
conferred by law upon the litigants.
Medina vs. CA (1992): A party cannot
change the theory on appeal. Only issues
pleaded in the lower court and properly
raised may be resolved by the appellate
court.
Espina vs. CA (1992): However, issues
which are inferred from or necessarily
connected with the issue properly raised
and pleaded may be resolved by the
appellate court.
D. Modes of Appeal
1. MTC to RTC
Rule 40, Sec.1. Where to appeal.An appeal
from a judgment or final order of a MTC may
be taken to the RTC exercising jurisdiction
over the area to which the former pertains.
The title of the case shall remain as it was in
the court of origin, but the party appealing the
case shall be further referred to as the
appellant and the adverse party the appellee.
Appeal from a judgment or final order
of a MTC may be taken to the RTC
exercising jurisdiction over the area
which the former pertains through
notice of appeal or in special
proceedings and in other cases of
multiple or separate appeals by record
on appeal.
The other provisions governing appeal
from RTC to CA so long as they are
not inconsistent are applicable to
appeal from MTC to RTC.
2. MTC to RTC to CA
Rule 42. Sec.1. How appeal taken; time for
filing.A party desiring to appeal from a
decision of the RTC rendered in the exercise of
its appellate jurisdiction may file a verified
petition for review with the CA, paying at the
same time to the clerk of said court the
corresponding docket and other lawful fees,
depositing the amount of P500.00 for costs
and furnishing the RTC and the adverse party
with a copy of the petition. The petition shall
be filed and served within 15 days from notice
of the decision sought to be reviewed or of the
denial of petitioners motion for new trial or
reconsideration filed in due time after
judgment. 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 CA may grant an additional period
of 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 15 days.
Rule 42 applies to an appeal of an
RTC decision rendered in exercise of
appellate jurisdiction.
Petitioner in a petition for review in
CA or SC must submit a certificate of
non-forum shopping with the petition.
However, this rule is relaxed where
there is need to conduct a review. In
those instances, petitioner may
comply with the requirement after he
has filed the petitions.
3. MTC to RTC to CA to SC
Rule 41. Sec.2(c). Appeal by certiorari.In all
cases where only questions of law are raised or
involved, the appeal shall be to the SC by
petition for review on certiorari in accordance
with rule 45.
Rule 45, Sec.1. Filing of petition with Supreme
Court.A party desiring to appeal by certiorari
from a judgment or final order or resolution of
the CA, the Sandiganbayan, the RTC or other
courts whenever authorized by law, may file
with the SC a verified petition for review on
certiorari. The petition shall raise only
questions of law which must be distinctly set
forth.
Where only questions of law are
raised/involved.
Appeal by certiorari from a judgment
or final order or resolution of CA or
Sandiganbayan or RTC or other
courts whenever authorized by law.
No appeal may be taken from:
1. An order denying a petition for
relief or any similar motion
seeking relief from judgment;
2. An interlocutory order;
3. An order disallowing or dismissing
an appeal;
4. An order denying a motion to set
aside a judgment by consent,
confession or compromise on the
ground of fraud, mistake or
duress, or any other ground
vitiating consent;
5. An order of execution;
6. A judgment or final order for or
against one or more of several
parties or in separate claims,
counterclaims, cross-claims and
third party complaints, while the
main case is pending, unless the
court allows an appeal therefrom;
and
7. An order dismissing an action
without prejudice.
In any of the foregoing circumstances,
the aggrieved party may file an
appropriate special civil action as
provided in Rule 65.
A party desiring to appeal by certiorari
from a judgment, final order or
resolution of the Court of Appeals, the
Sandiganbayan, the Court of Tax
Appeals, the Regional Trial Court or
other courts, whenever authorized by
law, may file with the Supreme Court
a verified petition for review on
certiorari. The petition may include an
application for a writ of preliminary
injunction or other provisional
remedies and shall raise only
questions of law, which must be
distinctly set forth. The petitioner may
seek the same provisional remedies by
verified motion filed in the same
action or proceeding at any time
during its pendency.
Applicability of Rule 45:
Rule 45, Sec.9. Rule applicable to both civil
and criminal cases.The mode of appeal
prescribed in this Rule shall be applicable to
both civil and criminal cases, except in
criminal cases where the penalty imposed is
death, reclusion perpetua or life imprisonment.
Filing of petition:
File with the SC a verified petition for
review on certiorari.
In 18 copies, with the original copy
intended for the court being indicated
as such by the petitioner.
Petition shall raise only questions of
law which must be distinctly set forth.
Contents of petition:
1. Full name of the appealing party
(petitioner) and the adverse party
(respondent).
2. Without impleading the lower court or
judges as petitioners/respondents.
3. Material dates:
i. When notice of the judgment or
final order or resolution subject
thereof was received;
ii. When a motion for new trial or
reconsideration (if any) was filed
and when notice of the denial
thereof was received.
4. Concise statement of the matters
involved, and the reasons/arguments
relied on for the allowance of the
petition;
5. A clearly legible duplicate original, or
a certified true copy of the judgment
or final order or resolution certified by
the clerk of court of the court a quo
and the requisite number of plain
copies thereof, and such material
portions of the record as would
support the petition;
6. Certificate of non-forum shoping.
File petition within 15 days from
notice of the judgment or final order
or resolution appealed from, or of the
denial of the petitioner's motion for
new trial or reconsideration filed in
due time after notice of the judgment.
 On motion duly filed and served, with
full payment of the docket and other
lawful fees and the deposit for costs
before the expiration of the
reglementary period, the SC may for
justifiable reasons grant an extension
of 30 days only within which to file
the petition.
Rule 45, Sec.3. Docket and other lawful fees;
proof of service of petition.Unless he has
theretofore done so, the petitioner shall pay
the corresponding docket and other lawful fees
to the clerk of court of the Supreme Court and
deposit the amount of P500.00 for costs at the
time of the filing of the petition. Proof of
service of a copy thereof on the lower court
concerned and on the adverse party shall be
submitted together with the petition.
Payment of docket and other lawful fees:
Unless he has theretofore done so, the
petitioner shall pay the docket and other
lawful fees to the SC clerk of court and
deposit P500 for costs at the time of the
filing of the petition.
Proof of service of petition:
Proof of service of a copy on the lower
court and on the adverse party shall be
submitted together with the petition.
Dismissal or denial of petition:
Rule 45, Sec.5. Dismissal or denial of petition.
The failure of the petitioner to comply with
any of the foregoing requirements regarding
the payment of the docket and other lawful
fees, deposit for costs, proof of service of the
petition, and the contents of and the
documents which should accompany the
petition shall be sufficient ground for the
dismissal thereof.
The SC may on its own initiative deny the
petition on the ground that the appeal is
without merits, or is prosecuted manifestly for
delay, or that the questions raised therein are
too unsubstantial to require consideration.
Failure of the petitioner to comply
with any of the requirements
regarding the payment of the docket
and other lawful fees, deposit for
costs, proof of service of the petition,
and the contents of and the
documents which should accompany
the petition, shall be sufficient ground
for the dismissal thereof.
SC may on its own initiative deny the
petition on the ground that:
1. The appeal is without merit;
2. The appeal is prosecuted
manifestly for delay;
3. The questions raised therein are
too unsubstantial to require
consideration.
Review is discretionary:
A review is not a matter of right, but
of sound judicial discretion, and will
be granted only when there are special
and important reasons therefore.
The following, while neither
controlling nor fully measuring the
court's discretion, indicate the
character of reasons which will be
considered:
1. When the court a quo has decided
a question of substance, not
theretofore determined by the SC,
or has decided it in a way
probably not in accord with law or
with the applicable decisions of
the SC; or
2. When the court a quo has so far
departed from the accepted and
usual course of judicial
proceedings, or so far sanctioned
such departure by a lower court,
as to call for an exercise of the
power of supervision.
May require pleadings and documents:
Rule 45, Sec.7. Pleadings and documents that
may be required; sanctions.For purposes of
determining whether the petition should be
dismissed or denied pursuant to sec.5 of this
Rule, or where the petition is given due course
under sec.8 hereof, the SC may require or
allow the filing of such pleadings, briefs,
memoranda or documents as it may deem
necessary within such periods and under such
conditions as it may consider appropriate, and
impose the corresponding sanctions in case of
non-filing or unauthorized filing of such
pleadings and documents or non-compliance
with the conditions therefor.
For purposes of determining whether or
not the petition should be dismissed or
denied pursuant to Rule 45, Sec.5, or
where the petition is given due course
under Sec. 8 hereof, the SC may
require/allow the filing of pleadings or
briefs or memoranda or documents as it
may deem necessary, and impose the
sanctions in case of non-filing or
unauthorized filing of such pleadings and
documents or noncompliance with the
conditions therefore.
Due course and elevation of records:
Rule 45, Sec.8. Due course; elevation of
records.If the petition is given due course,
the SC may require the elevation of the
complete record of the case or specified parts
thereof within 15 days from notice.
4. MTC to SC
The remedy is a petition for certiorari
under Rule 65.
This is not an appeal.
5. RTC to CA
Under Rule 41, an appeal of judgment or
final order under that completely disposes
of either:
1. The case;
2. A particular matter in the case, when
declared by ROC to be appealable.
Not appealable under Rule 41:
1. Order denying motion for new trial or
reconsideration;
2. Order denying petition for review or
any similar motion seeking relief from
judgment;
3. Interlocutory order;
4. Order disallowing/dismissing appeal;
5. Order denying motion to set aside
judgment by consent or confession or
compromise on ground of fraud or
mistake or duress or any other
vitiation of consent;
6. Order of execution;
7. While the case is pending, judgment
or final order:
.i For/against one or more of several
parties;
.ii In separate claims, counterclaims,
cross-claims, third-party
complaints.
Exception: If court allows appeal.
8. Order dismissing an action without
prejudice.
In the 8 cases not appealable under Rule
41, the aggrieved party may file a special
civil action under Rule 65.
Interlocutory order:
Definition: Investments, Inc. vs. CA
(1987): If it does not dispose of the
case but leaves something else to be
done by the trial court on the merits
of the case.
For purposes of appeal, an order is
final if it disposes of the entire case.
GSIS vs. Phil. Village Hotel (2004): An
order for partial summary judgment is
an interlocutory order which cannot
be appealed from. The trial court had
not yet rendered a complete final
judgment.
Multiple appeals:
Civil cases which admit of multiple
appeals:
1. Judgment in an action for
recovery or for partition of
property is separately appealable
from the proceedings on that part
of the judgment wherein
accounting for receipts from the
property is ordered as a primary
or incidental relief. When such
accounting is submitted and
either approved or rejected by the
trial court, another appeal lies
therefrom.
2. Special civil actions:
i. Expropriation; (Rule 67)
ii. Judicial partition; (Rule 69)
iii. Judicial foreclosure of
mortgage; (Rule 68)
Special proceedings also admit of
multiple appeals.
Ko vs. PNB (2006): The order of
dismissal due to failure to prosecute
is appealable by notice of appeal
under Rule 41.
Philexport vs. PI (2004): But an order
of dismissal without prejudice is not
appealable under Rule 41.
6. RTC to CA to SC
The remedy is a petition for review on
certiorari under Rule 45.
7. RTC to SC 11. Government Service Insurance
The remedy is a petition for certiorari System (GSIS);
under Rule 65. 12. Insurance Commission;
This is not an appeal. 13. Land Registration Authority (LRA);
14. National Electrification Administration
8. CA to SC (NEA);
The remedy is a petition for review on 15. National Telecommunications
certiorari under Rule 65. Commission (NTC);
16. Office of the President (OP);
9. QJA to CA 17. Philippine Atomic Energy Commission
(PAEC);
Rule 43, Sec.1. Scope.This Rule shall apply 18. Securities and Exchange Commission
to appeals from judgments or final orders of (SEC);
the Court of Tax Appeals and from awards, 19. Social Security Commission (SSC);
judgments, final orders or resolutions of or 20. Voluntary arbitrators authorized by
authorized by any quasi-judicial agency in the law.
exercise of its quasi-judicial functions. Among
these agencies are the Civil Service
Commission, Central Board of Assessment Rule 43, Sec.2. Cases not covered.This Rule
Appeals, Securities and Exchange shall not apply to judgments or final orders
Commission, Civil Aeronautics Board, Bureau issued under the Labor Code of the
of Patents, Trademarks and Technology Philippines.
Transfer, National electrifications Fabian vs. Desierto (1998): NLRC
Administration, Energy Regulatory Board, judgments and final orders or
National Telecommunications Commission, resolutions are now reviewable, in the
Department of Agrarian Reform under R.A. first instance, by the Court of Appeals
6657, Government Service Insurance System, on certiorari under Rule 65, but those
Employees Compensation Commission,
of the Employees Compensation
Agricultural Inventions Board, Insurance
Commission, Philippine Atomic Energy Commission should be brought to the
Commission, Board of Investments, Court of Appeals through a petition
Construction Industry Arbitration for review under this Rule. Also,
Commission, and voluntary arbitrators appeals from the Office of the
authorized by law. Ombudsman in administrative
disciplinary cases are now covered by
Applicability: this Rule.
Appeals from judgments or final orders of RA 9282: Decisions of the CTA are
the CTA and from awards, judgments, now appealable to the SC by petition
final orders or resolutions of or for review on certiorari under Rule 45.
authorized by any quasi-judicial agency Orosa vs. Roa (2006): Resolution of
(QJA) in the exercise of its quasi-judicial DOJ Secretary is not appealable
functions: (arranged alphabetically) under Rule 43. Recourse should be to
1. Agricultural Inventions Board (AIB); the President, instead of the CA,
2. Board of Investments (BOI); under the established principle of
3. Bureau of Patents, Trademarks and exhaustion of administrative
Technology Transfer (BPTTT); remedies.
4. Central Board of Assessment Appeals Exhaustion of administrative
(CBAA); remedies: If an appeal/remedy
5. Civil Aeronautics Board (CAB); obtains or is available within the
6. Civil Service Commission (CSC); administrative machinery, this should
7. Construction Industry Arbitration be resorted to before resort can be
Commission; made to the courts.
8. Department of Agrarian Reform (DAR Villorente vs. Laiya (2005): Under Rule
under RA 6657) 43, Sec. 4 the petition should be filed
9. Employees Compensation within 15 days from:
Commission (ECC); 1. Notice of the final order;
10. Energy Regulatory Board (ERB);
 2. The date of its last publication, if
publication is required by law for
its effectivity;
3. The denial of the petitioners MFR
duly filed according to the
governing law of the court or
agency a quo.
Basmayor v. Atencio (2005): Under
Rule 43, there is no need to implead
the lower court or agency which
rendered the assailed decision.
Coca-cola v. Cabalo (2006):
Submission of the duplicate original
or certified true copy of judgment,
order, resolution or ruling subject of a
petition for certiorari is essential to
determine whether or not the court,
body or tribunal which rendered the
same indeed committed grave abuse
of discretion. Either a legible duplicate
original or certified true copy thereof
shall be submitted. If what is
submitted is a copy, then it is
required that the same is certified by
the proper officer of the court,
tribunal, agency or office involved.
This is to assure that such copy is a
faithful reproduction of the judgment,
order, resolution or ruling subject of
the petition.
10. QJA to CA to SC
Remedy is a petition for review on
certiorari under Rule 45.
11. QJA to SC
Remedy is a petition for certiorari under
Rule 65, which is not an appeal.
E. Rules
1. General Rule
Procedure in the Court of Appeals:
Ordinary appealed cases:
Rule 44, Sec.1. Title of cases.In all cases
appealed to the Court of Appeals under Rule
41, the title of the case shall remain as it was
in the court of origin, but the party appealing
shall be further referred to as the appellant
and the adverse party as the appellee.
Counsels and guardians:
Rule 44, Sec.2. Counsel and guardians.The
counsel and guardians ad litem of the parties
in the court of origin shall be respectively
considered as their counsel and guardians ad
litem in the Court of Appeals. When others
appear or are appointed, notice thereof shall
be served immediately on the adverse party
and filed with the court.
The counsel and guardians ad litem of
the parties in the court of origin shall
be respectively considered as their
counsel and guardians ad litem in the
CA.
When others appear or are appointed,
notice thereof shall be served
immediately on the adverse party and
filed with the court.
Order of transmittal of record:
Rule 44, Sec.3. Order of transmittal of record.
If the original record or the record on appeal is
not transmitted to the Court of Appeals within
30 days after the perfection of appeal, either
party may file a motion with the trial court,
with notice to the other, for the transmittal of
such record or record on appeal.
Case docketing:
Rule 44, Sec.4. Docketing of case.Upon
receiving the original record or the record on
appeal and the accompanying documents and
exhibits transmitted by the lower court, as
well as the proof of payment of the docket and
other lawful fees, the clerk of court of the
Court of Appeals shall docket the case and
notify the parties thereof..
Within 10 days from receipt of said notice, the
appellant, in appeals by record on appeal,
shall file with the clerk of court 7 clearly
legible copies of the approved record on
appeal, together wit ht the proof of service of 2
copies thereof upon the appellee.
Any unauthorized alteration, omission or
addition in the approved record in appeal shall
be a ground for dismissal of the appeal.
Upon receiving the original record or
record on appeal, the accompanying
documents and exhibits transmitted
by the lower court, as well as the
proof of payment of the docket and
other lawful fees, the clerk of the
Court of Appeals shall docket the case
and notify the parties thereof.
Within 10 days from receipt of said
notice, the appellant, in appeals by
record on appeal, shall file with the
clerk of court 7 clearly legible copies
of the approved record on appeal,
 together with the proof of service of 2
copies thereof upon the appellee.
Any unauthorized alteration, omission
or addition in the approved record on
appeal shall be a ground for dismissal
of the appeal.
Record completion:
Rule 44, Sec.5. Completion of record.Where
the record of the docketed case is incomplete,
the clerk of court of the Court of Appeals shall
so inform the court and recommend to it
measures necessary to complete the record. It
shall be the duty of said court to take
appropriate action towards the completion of
the record within the shortest possible time.
Rule 44, Sec.6. Dispensing with complete
record.Where the completion of the record
could not be accomplished within a sufficient
period allotted for said purpose due to
insuperable or extremely difficult cases, the
court, on its own motion or on motion of an of
the parties, may declare that the record and
its accompanying transcripts and exhibits so
far available are sufficient to decide the issues
raised in the appeal, and shall issue an order
explaining the reasons for such declaration.
Where the record of the docketed case
is incomplete, the clerk of the Court of
Appeals shall so inform said court and
recommend to it measures necessary
to complete the record. It shall be the
duty of said court to take appropriate
action towards the completion of the
record within the shortest possible
time.
Where the completion of the record
could not be accomplished within a
sufficient period allotted for said
purpose due to insuperable or
extremely difficult causes, the court
may declare that the record and its
accompanying transcripts and
exhibits so far available are sufficient
to decide the issues raised in the
appeal, and shall issue an order
explaining the reasons for such
declaration.
Appellants brief:
Rule 44, Sec.7. Appellants brief.It shall be
the duty of the appellant to file with the court,
within 45 days from receipt of the notice of the
clerk that all the evidence, oral and
documentary, are attached to the record, 7
copies of his legibly written, mimeographed or
printed brief, with proof of service of 2 copies
thereof upon the appellee.
Important numbers to remember:
File brief within 45 days from receipt
of notice,
File seven copies of the brief,
Serve two copies to appellee and file
proof of service.
Contents of appellants brief:
Rule 44, Sec.13. Contents of appellants brief.
The appellants brief shall contain, in the
order herein indicated, the following:
(a) A subject index of the matter in the brief
with a digest of the arguments and page
references, and a table of cases alphabetically
arranged, textbooks and statutes cited with
references to the pages where they are cited;
(b) An assignment of errors intended to be
urged, which errors shall be separately,
distinctly and concisely stated without
repetition and numbered consecutively;
(c) Under the heading Statement of the Case,
a clear and concise statement of the nature of
the action, a summary of the proceedings, the
appealed rulings and orders of the court, the
nature of the judgment and any other matters
necessary to an understanding of the nature of
the controversy, with page references to the
record;
(d) Under the heading Statement of Facts, a
clear and concise statement in a narrative
form of facts admitted by both parties and of
those in controversy, together with the
substance of proof relating thereto in sufficient
detail to make it clearly intelligible, with page
references to the record;
(e) A clear and concise statement of the issues
of fact or law to be submitted to the court for
its judgment;
(f) Under the heading Argument, the
appellants arguments on each assignment of
error with page references to the record. The
authorities relied upon shall be cited by the
page of the report at which the case begins
and the page of the report on which the
citation is found.
(g) Under the heading Relief, a specification
of the order of judgment which the appellant
seeks; and
(h) In cases not brought up by record on
appeal, the appellants brief shall contain, as
an appendix, a copy of the judgment or final
order appealed from.
Rule 44, Sec.15. Questions that may be raised
on appeal.Whether or not the appellant has
filed a motion for new trial in the court below,
he may include in his assignment of errors
any question of law or fact that has been
raised in the court below and which is within
the issues framed by the parties.
Rule 124, Sec.7. Contents of brief.The briefs
n criminal cases shall have the same contents
as provided in sections 13 and 14 of Rule 44.
A certified true copy of the decision or final
order appealed from shall be appended to the
brief of the appellant.
1. Subject index: Digest of the
arguments and page references, and a
tables of:
i. cases alphabetically arranged and
ii. books and statutes cited,
with references to the pages where
they are cited.
2. Assignment of errors: Errors urged
separately, distinctly and concisely;
stated without repetition and
numbered consecutively.
Whether or not the appellant has filed
a motion for new trial in the court
below, he may include in his
assignment of errors any question of
law or fact that has been raised in the
court below and which is within the
issues framed by the parties.
3. Statement of the case: Clear and
concise statement of the nature of the
action, a summary of the proceedings,
the appealed court rulings and orders,
the nature of the judgment and any
other matters necessary to an
understanding of the nature of the
controversy, with page references to
the record.
4. Statement of facts: Clear and concise
narrative statement of the facts
admitted by both parties and of those
in controversy, together with the
substance of the related proof, in
sufficient detail to make it clearly
intelligible and with page references to
the record.
5. Issues: Clear and concise statement of
issues of fact or law submitted to the
court for its judgment.
6. Argument: Appellants arguments on
each assignment of error, with page
references to the record. The
authorities relied upon shall be cited
by the page of the report at which the
case begins and the page of the report
on which the citation is found.
7. Relief: Specification of the order or
judgment which the appellant seeks.
In cases not brought up by record on
appeal, the appellants brief shall
contain (as an appendix) a copy of the
judgment or final order appealed
from.
8. Attachment: Certified true copy of the
decision or final order appealed from.
Appellees brief:
Rule 44, Sec.8. Appellees brief.Within 45
days from receipt of the appellants brief, the
appellee shall file with the court 7 copies of his
legibly type-written, mimeographed or printed
brief, with proof of service of 2 copies thereof
upon the appellant.
Contents of appellees brief:
Rule 44, Sec.14. Contents of appellees brief.
The appellees brief shall, in the order herein
indicated, the following:
(a) A subject index of the matter in the brief
with a digest of the arguments and page
references, and a table of cases alphabetically
arranged, textbooks and statutes cited with
references to the pages where they are cited;
(b) Under the heading Statement of Facts,
the appellee shall state that the accepts the
statement of facts in the appellants brief, or
under the heading Counter-Statement of
Facts, he shall point out such insufficiencies
or inaccuracies as he believes exist in the
appellants statement of facts with references
to the pages of the record in support thereof,
but without repetition of matters in the
appellants statement of facts; and
(c) Under the heading Argument, the appellee
shall set forth his arguments in the case on
each assignment of error with page references
to the record. The authorities relied on shall The failure of the appellant to file his
be cited by the page of the report at which the memorandum within the period
case begins and the page of the report on therefor may be a ground for
which the citation is found. dismissal of the appeal.

1. Subject index Several or plurality of appellants,

2. Statement of facts: Statement that appellees and/or counsel:
appellee accepts the statement of facts Rule 44, Sec.11. Several appellants or
in the appellants brief; or appellees or several counsel for each party.
3. Counter-statement of facts: Points out Where there are several appellants or
the insufficiencies or inaccuracies appellees, each counsel representing one or
appellee believes to exist in the more but not all of them shall be served with
appellants statement of facts, with only one copy of the briefs. When several
counsel represent one appellant or appellee,
references to the supporting pages of
copies of the brief may be served upon any of
the record. Matters in the appellants them.
statement of facts should not be
repeated.
Where there are several appellants or
4. Argument: Appellees arguments on
appellees, each counsel representing
each assignment of error, with page
one or more but not all of them shall
references to the record. The
be served with only one copy of the
authorities relied upon shall be cited
briefs.
by the page of the report at which the
When several counsel represent one
case begins and the page of the report
appellant or appellee, copies of the
on which the citation is found.
brief may be served upon any of them.
Reply brief:
Extension of time for filing briefs:
Rule 44, Sec.9. Appellants reply brief.Within
Rule 44, Sec.12. Extension of time for filing
20 days from receipt of the appellants brief,
briefs.Extension of time for the filing of
the appellee shall file with the court 7 copies
briefs will not be allowed, except for good and
of his legibly typewritten, mimeographed or
sufficient cause, and only if the motion for
printed brief, with proof of service of 2 copies
extension is filed before the expiration of the
thereof upon the appellant.
time sought to be extended.
Extension will not be allowed,
Memoranda in special cases:
except for good and sufficient
Rule 44, Sec.10. Time for memoranda in
cause.
special cases.In certiorari, prohibiton,
mandamus, quo warranto and habeas corpus Motion for extension should be filed
cases, the parties shall file, in lieu of briefs, before the expiration of the time
their respective memoranda within a non- sought to be extended.
extendible period of 30 days from receipt of the
notice issued by the clerk that all the The brief:
evidence, oral or documentary, is already In the case of De Liano vs. CA (2001), the
attached to the record. Supreme Court discussed the following:
Purpose of the brief is to present to
The failure of the appellant to file his
the court in concise form the points
memorandum within the period therefore may
be a ground for dismissal of the appeal.. and questions in controversy, and by
fair argument on the facts and law of
In certiorari, prohibition,
the case to assist the court in arriving
mandamus, quo warranto and
at a just and proper conclusion.
habeas corpus cases, the parties
The brief should be so prepared as to
shall be file (in lieu of briefs) their
minimize the labor of the court in the
respective memoranda within a non-
examination of the record upon which
extendible period of 30 days from
the appeal is heard and determined.
receipt of the notice issued by the
Failure to comply with required
clerk that all the evidence is already
contents of appellants brief is cause
attached to the record.
for dismissal of the petition.

Dismissal of appeal:
Rule 50, Sec.1. Grounds for dismissal of
appeal.An appeal may be dismissed Court of
Appeals, on its own motion or on that of
appellee, on the following grounds:
(a) Failure of the record on appeal to show on
its face that the appeal was taken within the
period fixed by these Rules;
(b) Failure to file the notice of appeal of the
record on appeal within the period prescribed
by these Rules;
(c) Failure of the appellant to pay the docket
and other lawful fees as provide in section 5 of
Rule 40 and Section4 of Rule 41;
(d) Unauthorized alterations, omission or
additions in the approved record on appeal as
provided in section 4 of Rule 44;
(e) Failure of the appellant to serve and file the
required number of copies of his brief or
memorandum within the time provided by
these Rules;
(f) Absence of specific assignment of errors in
the appellants brief, or of page references to
the record as required in section 13,
paragraphs (a), (c), (d) and (f) of Rule 44;
(g) Failure of the appellant to take the
necessary steps for the correction or
completion of the record within the time
limited by the court in its order;
(h) Failure of the appellant to appear at the
preliminary conference under Rule 48 or to
comply with orders, circulars, or directives of
the court without justifiable cause; and
(i) The fact that the order or judgment
appealed from is not appealable.
Grounds:
1. Failure of the record on appeal to
show on its face that the appeal
was taken within the period fixed
by the Rules of Court.;
2. Failure to file the notice of appeal or
record on appeal within the period
prescribed by Rules of Court;
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 by the Rules of Court;
6. Absence of specific assignment of
errors in the appellant's brief, or of
page references to the record as
required;
7. Failure of the appellant to take the
necessary steps for the correction or
completion of the record within the
time limited by the court in its order;
8. Failure of the appellant to appear at
the preliminary conference under Rule
48 or to comply with court orders,
circulars or directives without
justifiable cause;
9. The fact that the order/judgment
appealed from is not appealable.
PNB vs. Philippine Milling (1969): CA has
discretion to dismiss or not to dismiss
appeal. Although said discretion must be
a sound one, to be exercised in
accordance with the tenets of justice and
fair play, having in mind the
circumstances obtaining in each case, the
presumption is that it has been so
exercised.
Padasdas vs. CA (1974): Failure to file
appellants brief within the reglementary
period need not necessarily cause
dismissal of appeal where the same was
due to force majeure.
Dismissal of improper appeal:
Rule 50, Sec. 2. Dismissal of improper appeal
to the Court of Appeals.An appeal under Rule
41 taken from the Regional Trial Court to the
Court of Appeals raising only questions of law
shall be dismissed, issues purely of law not
being reviewable by said court. Similarly, an
appeal by notice of appeal instead of by
petition for review from the appellate judgment
of a Regional Trial Court shall be dismissed.
An appeal erroneously taken to the Court of
Appeals shall not be transferred to the
appropriate court but shall be dismissed
outright.
An appeal under Rule 41 taken from
the RTC to the CA raising only
questions of law shall be dismissed;
 issues purely of law not being
reviewable by said court.
Similarly, an appeal by notice of
appeal instead of by petition for review
from the appellate judgment of a RTC
shall be dismissed.
An appeal erroneously taken to the CA
shall not be transferred to the
appropriate court but shall be
dismissed outright.
Atlas Consolidated vs. CA (1991): It is
true that Circular No.2-90 now
prohibits the transfer of appeals
erroneously taken to the SC or CA to
whichever of these tribunals has
appropriate appellate jurisdiction. But
where SC believes that there are
factual issues which must be
resolved, it may, in the exercise of its
sound discretion and considering the
attendant circumstances, either itself
take cognizance of and decide such
issues or refer them to CA for
determination.
Cu-unjieng vs. CA (2006): Nonpayment
of the appellate court docket and
other lawful fees within the
reglementary period as provided
under Rule 41, Sec.4 is a ground for
the dismissal of an appeal under Rule
50, Sec.1(c). The Supreme Court has
invariably sustained the Court of
Appeals dismissal on technical
grounds under the aforequoted
provision unless considerations of
equity and substantial justice present
cogent reasons to hold otherwise.
True, the rules may be relaxed but
only for persuasive and weighty
reasons, to relieve a litigant of an
injustice commensurate with his
failure to comply with the prescribed
procedure.
Hi Dan. Tama ba so far?
Withdrawal of appeal:
Rule 50, Sec.3. Withdrawal of appeal.An
appeal may be withdrawn as of right at any
time before the filing of the appellees brief.
Thereafter, the withdrawal may be allowed in
the discretion of the court.
An appeal may be withdrawn as of right
at any time before the filing of the
appellee's brief. Thereafter, the
withdrawal may be allowed in the
discretion of the court.
Stay of execution:
Rule 70, Sec.19. Immediate execution of
judgment; how to stay same.If judgment is
rendered against the defendant, execution
shall issue immediately upon motion, unless
an appeal has been perfected and the
defendant to stay execution files a sufficient
supersedeas bond, approved by the Municipal
Trial Court and executed in favor of the
plaintiff to pay the rents, damages and accosts
accruing down to the time of the judgment
appealed from, and unless, during the
pendency of the appeal, he deposits with the
appellate court the amount of rent due from
time to time under the contract, if any, as
determined by the judgment of the Municipal
Trial Court. In the absence of a contact, he
shall deposit with the Regional Trial Court the
reasonable value of the use and occupation of
the premises for the preceding month or
period at the rate determined by the judgment
of the lower court on or before the tenth day of
each succeeding month or period. The
supersedeas bond shall be transmitted by the
Municipal Trial Court, with the other papers,
to the clerk of the Regional Trial Court to
which the action is appealed.
All amounts so paid to the appellate court
shall be deposited with said court or
authorized government depositary band, and
shall be held there until the final disposition of
the appeal, unless the court, by agreement of
the interested parties, or in the absence of
reasonable grounds of opposition to a motion
to withdraw, or for justifiable reasons, shall
decree otherwise. Should the defendant fail to
make the payments above prescribed from
time to time during the pendency of the
appeal, the appellate court, upon motion of
the plaintiff, and upon proof of such failure,
shall order the execution of the judgment
appealed from with respect to the restoration
of possession, but such execution shall not be
a bar to the appeal taking its course until the
final disposition thereof on the merits.
After the case is decided by the Regional Trial
Court, any money paid to the court by the
defendant for purposes of the stay of execution
shall be disposed of in accordance with the
provisions of the judgment of the Regional
Trial Court. In any case wherein it appears
that the defendant has been deprived of the
lawful possession of land or building pending
the appeal by virtue of the execution of the
judgment of the Municipal Trial Court,
damages for such deprivation of possession
and restoration of possession may be allowed
the defendant in the judgment of the Regional
Trial Court disposing of the appeal.
Rule 39, Sec.2. Discretionary execution.
(a) Execution of a judgment or a final order
pending appeal.On motion of the prevailing
party with notice to the adverse party filed in
the trial court while it has jurisdiction over the
case and is in possession of either the original
record or the record on appeal, as the case
may be, at the time of the filing of such
motion, said court may, in its discretion, order
execution of a judgment or final order even
before the expiration of the period to appeal.
After the trial court has lost jurisdiction, the
motion for execution pending appeal may be
filed in the appellate court.
Discretionary execution may only issue upon
good reasons to be stated in a special order
after due hearing.
(b) Execution of several, separate or partial
judgments.A several, separate or partial
judgment may be executed under the same
terms and conditions as execution of a
judgment or final order pending appeal.
Sec.21, Revised Rules on Summary Procedure.
Appeal. The judgment or final order shall be
appealable to the appropriate regional trial
court which shall decide the same in
accordance with Section 22 of Batas
Pambansa Blg. 129. The decision of the
regional trial court in civil cases governed by
this Rule, including forcible entry and
unlawful detainer, shall be immediately
executory, without prejudice to a further
appeal that may be taken therefrom. Section
10 of Rule 70 shall be deemed repealed.
Rule 43, Sec.12. Effect of appeal.The appeal
shall not stay the award, judgment, final order
or resolution sought to be reviewed unless the
Court of Appeals shall direct otherwise upon
such terms as it may deem just.
Rule 39, Sec.4. Judgments not stayed by
appeal.Judgments in actions for injunction,
receivership, accounting and support, and
such other judgments as are not 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.
General rule: In ordinary appeals,
execution is stayed.
Exceptions:
1. Decision in forcible entry and
unlawful detainer.
Exception to exception: If
appellant stays immediate
execution by filing a notice of
appeal, supersedeas bond and
depositing in court a monthly
rental or compensation for the
occupation as fixed by the court
which rendered the decision.
2. Decision of the MeTC, MTC or
MCTC or the RTC where execution
pending appeal has been granted
by the court of origin or in a
proper case by the appellate court
upon good reasons to be stated in
the order.
3. Decision of the RTC rendered in
the exercise of its appellate
jurisdiction on cases tried and
decided by the court of origin
under Summary Procedure.
4. Decision of a quasi-judicial agency
under the Rule 43, Sec.12, unless
otherwise provided by the Court of
Appeals;
5. Decision in cases of injunction,
receivership, support and
accounting.
When case is submitted for judgment:
Rule 51, Sec. 1. When case deemed submitted
for judgment.A case shall be deemed
submitted for judgment:
A. In ordinary appeals.
1) Where no hearing on the merits of the main
case is held, upon the filing of the last
pleading, brief, or memorandum required by
the Rules or by the court itself, or the
expiration of the period for its filing.
2) When such hearing is held, upon its
termination or upon the filing of the last
pleading or memorandum as may be required
or permitted to be filed by the court, or the
expiration of the period for its filing.
B. In original actions and petitions for review.
1) Where not comment is filed, upon the
expiration of the period to comment.
2) Where no hearing is held, upon the filing of
the last pleading required or permitted to be
filed by the court, or the expiration of the
period for its filing.
3) Where a hearing on the merits of the amin
case is held, upon its termination or upon the
filing of the last pleading or memorandum as
may be required or permitted to be filed by the
court, or the expiration of the period for its
filing.
1. Where no hearing on the merits of the
main case is held, upon the filing of
the last pleading, brief or
memorandum required by the Rules
of Court or by the court itself, or the
expiration of the period for its filing.
2. Where such a hearing is held, upon
its termination or upon the filing of
the last pleading or memorandum
required or permitted to be filed by
the court, or the expiration of the
period for its filing.
Judgment:
Rule 51, Sec.2. By whom rendered.The
judgment shall be rendered by the members of
the court who participated in the deliberation
on the merits of the case before its assignment
to a member for the writing of the decision.
Rule 51, Sec.3. Quorum and voting in the court.
The participation of all three Justices of a
division shall be necessary at the deliberation
and the unanimous vote of the three Justices
shall be required for the pronouncement of a
judgment or final resolution. If the three
Justices do not reach a unanimous vote, the
clerk shall enter the votes of the dissenting
Justices in the record. Thereafter, the
Chairman of the division shall refer the case,
together with the minutes of the deliberation,
to the Presiding Justice who shall designate
two Justices chosen by raffle from among the
other members of the court to sit temporarily
with them, forming a special division of five
Justices. The participation of all the five
members of the special division shall be
necessary for the deliberation required in
section 2 of this Rules and the concurrence of
a majority of such division shall be required
for the pronouncement of a judgment or final
resolution.
Rule 51, Sec. 4. Disposition of a case.The
Court of Appeals, in the exercise of its
appellate jurisdiction, may affirm, reverse, or
modify the judgment or final order appealed
from, and may direct a new trial or further
proceedings to be had.
Sec.40, BP 129. Form of decision in appealed
cases.Every decision or final resolution of a
court in appealed cases shall clearly and
distinctly state the findings of fact and the
conclusion of law on which it is based, which
may be contained in the decision or final
resolution itself, or adopted by reference from
those set forth in the decision, order, or
resolution appealed from.
Rule 51, Sec. 5. Form of decision.Every
decision or final resolution of the court in
appealed cases shall clearly and distinctly
state the finding of fact and the conclusions of
law on which it is based, which may be
contained in the decision or final resolution
itself, or adopted from those set forth in the
decision, order, or resolution appealed from.
Rule 51, Sec.6. Harmless error.No error in
either the admission or the exclusion of
evidence and no error or defect in any ruling
or order or in anything done or omitted by the
trial court or by any of the parties is ground
for granting a new trial or for setting aside,
modifying, or otherwise disturbing a judgment
or order, unless refusal to take such action
appears to the court inconsistent with
substantial justice. The court at every stage of
the proceedings must disregard any error or
defect which does not affect the substantial
rights of the parties.
Rule 51, Sec.7. Judgment where there are
several parties.In all actions or proceedings,
an appealed judgment may be affirmed as to
some of the appellants, and revered as to
others, and the case shall thereafter be
proceeded with, so far as necessary, as of
separate actions had been begun and
prosecuted; and execution of the judgment of
affirmance may be had accordingly, and costs
may be adjudged in such cases, as the court
shall deem proper.
Rule 51, Sec. 8. Questions that may be
decided.No error which does not affect the
jurisdiction over the subject matter or the
validity of the judgment appealed from or the
proceedings therein will be considered unless
stated in the assignment of errors, or closely
related to or dependent on an assigned error
Rule 51, Sec. 9. Promulgation and notice of
judgment.After the or final resolution 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 copes thereof to be served upon the
parties or their counsel.
It is rendered by the members of the
court who participated in the
deliberation on the merits of the case
before its assignment to a member for
the writing of the decision.
The participation of all 3 Justices of a
division shall be necessary at the
deliberation.
The unanimous vote of the 3 Justices
shall be required for the
pronouncement of a judgment or final
resolution.
If the 3 Justices do not reach a
unanimous vote, the clerk shall enter
the votes of the dissenting Justices in
the record.
The Chairman of the division shall
refer the case (together with the
minutes of the deliberation) to the
Presiding Justice who shall designate
2 Justices chosen by raffle from
among all the other members of the
court to sit temporarily with them,
forming a special division of 5
Justices.
The participation of all the 5 members
of the special division shall be
necessary for the deliberation and the
concurrence of a majority of such
division shall be required for the
pronouncement of a judgment or final
resolution.
The CA, in the exercise of its appellate
jurisdiction, may affirm, reverse or
modify the judgment or final order
appealed from, and may direct a new
trial or further proceedings to be had.
Every decision or final resolution of
the CA in appealed cases shall clearly
and distinctly state the findings of fact
and the conclusions of law on which it
is based, which may be contained in
the decision or final resolution itself,
or adopted from those set forth in the
decision, order or resolution appealed
from.
Harmless error rule: No error in the
admission or exclusion of evidence
and no error or defect in any ruling or
order or in anything done or omitted
by the trial court or of any of the
parties is ground for granting a new
trial or for setting aside, modifying or
otherwise disturbing a judgment or
order, unless refusal to take such
action appears to the court
inconsistent with substantial
justice. The court at every stage of
the proceeding must disregard any
error or defect which does not
affect the substantial rights of the
parties.
In all actions or proceedings, an
appealed judgment may be affirmed
as to some of the appellants and
reversed as to others, and the case
shall thereafter be proceeded with as
if separate actions had been begun
and prosecuted.
No error which does not affect the
jurisdiction over the subject matter
or the validity of the judgment
appealed from or the proceedings
therein will be considered unless
stated in the assignment of errors,
or closely related to or dependent
on an assigned error and properly
argued in the brief.
Exception: The court may pass upon
plain errors and clerical errors.
After the judgment or final resolution
and dissenting or separate opinions
are signed by the Justices taking part,
they shall be delivered for filing to the
clerk. The clerk shall indicate thereon
the date of promulgation and cause
true copies thereof to be served upon
the parties or their counsel.
Procedure in the Supreme Court
(Appealed Cases):
Mode of appeal:
Rule 56, Sec. 3. Mode of appeal.An appeal to
the Supreme Court may be taken only by a
petition for review on certiorari, except in
criminal cases where the penalty imposed is
death, reclusion perpetua or life imprisonment.
Only by a petition for review on
certiorari.
Exception: Criminal cases where the
penalty imposed is death, reclusion
perpetua or life imprisonment.
Procedure:
Rule 56, Sec. 4. Procedure.The appeal shall
be governed by and disposed of in accordance
with the applicable provisions of the
Constitution, laws, Rules 45, 48, sections 1, 2
and 5 to 11 of Rules 51, 52 and this Rule.
Governed by and disposed of in
accordance with the applicable
provisions of the Constitution, laws,
Rules 45, 48, Sec. 1, 2 and 5 to 11 of
Rule 51, 52 and this Rule.
Grounds for dismissal of appeal:
Rule 56, Sec. 5. Grounds for dismissal of
appeal.The appeal may be dismissed motu
proprio or on motion of the respondent on the
following grounds:
(a) Failure to take the appeal within the
reglementary period;
(b) Lack of merit in the petition;
(c) Failure to pay the requisite docket fee and
other lawful fees or to make a deposit for
costs;
(d) Failure to comply with the requirements
regarding proof of service and contents of and
the documents which should accompany the
petition;
(e) Failure to comply with any circular,
directive or order of the Supreme Court
without justifiable cause;
(f) Error in the choice or mode of appeal; and
(g) The fact that the case is not appealable to
the Supreme Court.
1. Failure to take the appeal within the
reglementary period;
2. Lack of merit in the petition;
3. Failure to pay the docket and other
lawful fees or to make a 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 SC
circular/directive/order without
justifiable cause;
6. Error in the choice/mode of appeal;
7. The fact that the case is not
appealable to SC.
Improper appeal:
Rule 56, Sec. 6. Disposition of improper appeal.
Except as provided in section 3, Rule 122
regarding appeals in criminal cases where the
penalty imposed is death, reclusion perpetua
or life imprisonment, an appeal taken to the
Supreme Court by notice of appeal shall be
dismissed.
An appeal by certiorari taken to the Supreme
Court from the Regional Trial Court
submitting issues of fact may be referred to
the Court of Appeals for decision or
appropriate action. The determination of the
Supreme Court on whether or not issues of
facts are involved shall be final.
Rule 122, Sec.3. How appeal taken.
(a) The appeal to the Regional Trial Court, or
to the Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its
original jurisdiction, shall be by notice of
appeal filed with the court which rendered the
judgment or final order appealed from and by
serving a copy thereof upon the adverse party.
(b) The appeal to the Court of Appeals in cases
decided by the Regional Trial Court in the
exercise of its appellate jurisdiction shall be by
petition for review under Rule 42.
(c) The appeal in cases where the penalty
imposed by the Regional Trial Court is
reclusion perpetua or life imprisonment, or
where a lesser penalty is imposed but for
offenses committed on the same occasion or
which arose out of the same occurrence that
gave rise to the more serious offense for which
the penalty of death, reclusion perpetua, or life
imprisonment is imposed, shall be by notice of
appeal to the Court of Appeals in accordance
with paragraph (a) of this Rule.
(d) No notice of appeal is necessary in cases
where the Regional Trial Court imposed the
death penalty. The Court of Apppeals shall
automatically review the judgment as provided
in Section 10 of this Rule.

(e) Except as provided in the last paragraph of
section 13, Rule 124, all other appeals to the
Supreme Court shall be by petition for review
on certiorari under Rule 45.
An appeal taken to the Supreme
Court by notice of appeal shall be
dismissed.
Exception: Appeals in criminal cases
where the penalty imposed is death,
reclusion perpetua or life
imprisonment.
An appeal by certiorari taken to the
SC from the RTC submitting issues of
fact may be referred to the CA for
decision or appropriate action. The
determination of the SC on whether or
not issues of fact are involved shall be
final.
CIVIL PROCEDURE REMEDIAL LAW
Equally divided:
Rule 56, Sec. 7. Procedure if opinion is equally
divided.Where the court en banc is equally
divided in opinion, or the necessary majority
cannot be had, the case shall again be
deliberated on, and if after such deliberation
no decision is reached, the original action
commenced in the court shall be dismissed; in
appealed cases, the judgment or order
appealed from shall stand affirmed; and on all
incidental matters, the petition or motion shall
be denied.
Where the court en banc is equally
divided in opinion, or the necessary
majority cannot be had, the case shall
again be deliberated on.
If after such deliberation no decision
is reached:
1. The original action commenced in
the court shall be dismissed.
2. In appealed cases, the judgment
or order appealed from shall stand
affirmed.
2. Questions of Fact vs. Questions of
Law
In the case of Agote vs. Lorenzo (2005),
the Supreme Court laid down the
following principles:
A question of law does not involve an
examination of the probative value of
the evidence presented by any of the
litigants.
There is a question of law in a given
case when the doubt or difference
arises as to what the law is on a
certain state of facts; there is a
question of fact when the doubt or
difference arises as to the truth or the
falsehood of the facts alleged.
Alsua-Betts vs. CA (1979):
General rule: CAs findings of fact are
final and conclusive and cannot be
reviewed on appeal to the SC, provided
they are borne out by the record or are
based on substantial evidence.
Exception: CAs findings of fact may be
reviewed by the SC on appeal by certiorari
when:
1. Joaquin vs. Navarro: Conclusion is a
finding grounded entirely on
speculations, surmises or conjectures.
2. Luna vs. Linatok: Inference made is
manifestly mistaken, absurd or
impossible.
3. Buyco vs. Pp: There is grave abuse of
discretion in the appreciation of facts.
4. De la Cruz vs. Sosing: Judgment is
based on a misapprehension of facts.
5. Casica vs. Villaseca: The Court of
Appeals findings of fact are
conflicting.
6. Nakpil & Sons vs. CA (1986): The
Court of Appeals, in making its
findings, went beyond the issues of
the case and the same is contrary to
the admissions of both appellant and
appellee.
7. Abellana vs. Dosdos (1965): The Court
of Appeals manifestly overlooked
certain relevant facts not disputed by
the parties and which, if properly
considered, would justify a different
conclusion.
8. Manlapaz vs. CA (1987): The Court of
Appeals findings of fact are contrary
to those of the trial court, or are mere
conclusions without citation of
specific evidence, or where the facts
set forth by the petitioner are not
disputed by the respondent, or where
the findings of fact of the Court of
Appeals are premised on absence of
evidence but are contradicted by the
evidence of record.
Perez-Rosario vs. CA (2005): Rule 65
cannot cure the failure to appeal thru
Rule 45.
3. Notice of Appeal
The notice of appeal shall indicate the
parties to the appeal, the judgment or
final order or part thereof appealed from,
the state the material dates showing the
timeliness of the appeal.
4. Record on Appeal
Required only in:
1. Special proceedings;
2. Multiple or separate appeals where
the law or the Rules of Court so
requires.
Rule 40, Sec.2. When to appeal.The appeal is
taken by filing a notice of appeal with the
court that rendered the judgment 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 30 days
after notice of the judgment 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.
Neypes vs. CA (2005) on the fresh period
rule:
Definition: Period of appeal is
interrupted by a timely motion for new
trial or reconsideration. Motion for
extension of time to file motion for
new trial or reconsideration is not
allowed.
Applicability:
1. Rule 40 on appeals from MTC to
RTC.
2. Rule 42 on petitions for review
from RTC to CA.
3. Rule 43 on appeals from QJA to
CA.
4. Rule 45 on appeals by certiorari to
SC.
Rationale: To standardize the appeal
periods provided in the Rules of Court
and to afford litigants fair opportunity
to appeal their cases, the court deems
it practical to allow a fresh period of
15 days within which to file the notice
of appeal in the Regional Trial Court,
counted from receipt of the order
dismissing a motion for new trial or
reconsideration.
5. Perfection of Appeal
Appeal from MTC to RTC: the rules on
perfection of appeal from RTC to CA
applies.
From the Regional Trial Court to CA:
By notice of appeal: perfected as to
party who filed notice upon filing
of the same in due time
The court loses jurisdiction
over the case upon perfection
of appeal AND expiration of
time to appeal of the other
parties.
By record on appeal: perfected as
to the party who filed appeal and
with respect to the subject matter
thereof upon approval of the
record filed in due time
The court loses jurisdiction
upon approval of the records
on appeal AND expiration of
the time to appeal of the other
parties
From MTC to RTC (appellate
jurisdiction) to CA: upon timely filing
of a petition for review and the
payment of the corresponding docket
and other lawful fees.
The RTC loses jurisdiction upon
perfection of appeals filed in due
time AND the expiration of time to
appeal of other parties.
6. Period to Appeal
From MTC to RTC and from RTC (original)
to CA:
1. By notice of appeal: 15 days from
notice of the judgment or final order
2. By record of appeal: 30 days from
notice of the judgment or final order
3. From MTC to RTC (appellate) to CA:
15 days from notice of the judgment
or final order but the Court of Appeals
may grant a 15 day extension. No
further extension shall be granted
except for the most compelling
 reasons and in no case longer then 15
days.
From RTC (original) to CA to SC and from
MTC to RTC (appellate) to CA to SC and
from CA to SC and from QJA to CA to SC:
15 days from notice of judgment or final
order or from denial of petitioners motion
for reconsideration or new trial. The SC
may grant a 30 day extension for
justifiable reasons.
From QJA to CA: 15 days from notice of
the award, judgment, final order or
resolution or from date of last publication
if required by law. The CA may grant a 15
day extension. No further extension shall
be granted except for the most compelling
reasons and in no case longer then 15
days.
IX. Execution
A. Definition
Pelejo vs. Ca (1982): Execution is a legal
remedy for the enforcement of a
judgment.
B. Kinds
Ministerial Execution:
Rule 39, Sec.1. Execution upon judgments or
final orders.Execution shall issue as a
matter of right, on motion, 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.
If the appeal has been duly perfected and
finally resolved, the execution may forthwith
be applied for in the court of origin, on motion
of the judgment oblige, submitting therewith
certified true copies of the judgment or
judgments or final order or orders sought to be
enforced and of the entry thereof, with notice
to the adverse party.
The appellate court may, on motion in the
same case, with the interest of justice so
requires, direct the court of origin to issue the
writ of execution.
Discretionary execution
Rule 39, Sec.2. Discretionary execution.
(a) Execution of a judgment or a final order
pending appeal.On motion of the prevailing
party with notice to the adverse party filed in
the trial court while it has jurisdiction over the
case and is in possession of either the original
record or the record on appeal, as the case
may be, at the time of the filing of such
motion, said court may, in its discretion, order
execution of a judgment or final order even
before the expiration of the period to appeal.
After the trial court has lost jurisdiction, the
motion for execution pending appeal may be
filed in the appellate court.
Discretionary execution may only issue upon
good reasons to be stated in a special order
after due hearing.
(b) Execution of several, separate or partial
judgments.A several, separate or partial
judgment may be executed under the same
terms and conditions as execution of a
judgment or final order pending appeal.
C. Quasal of Writ of Execution
In the cases of Cobb-Perez vs. Lantin
(1968) and the case of Sandico et al vs.
Piquing et al (1971), the Supreme Court
laid down the following principles:
Quashal of writ of execution is proper
when:
1. it was improvidently issued,
2. it was defective in substance,
3. it is issued against the wrong party,
4. the judgment was already satisfied,
5. it was issued without authority,
6. a change in the situation of the
parties renders the execution
inequitable, or
7. the controversy was never validly
submitted to the court.
D. Execution of Judgments and Final
Orders
Rule 39, Sec.7. Execution in case of death of
party.In case of the death of a party,
execution may issue or be enforced in the
following manner:
(a) In case of the death of the judgment oblige,
upon the application of his executor or
administrator, or successor in interest;
(b) In case of the death of the judgment
obligor, against his executor or administrator
or successor in interest, if the judgment be for
the recovery of real or personal property, or
the enforcement of a lien thereon;
(c) In case of the death of the judgment
obligor, after execution is actually levied upon
any of his property, the same may be sold for
the satisfaction of the judgment obligation,
and the officer making the sale shall account
to the corresponding executor or administrator
for any surplus in his hands.
Rule 39, Sec.6. Execution by motion or by
independent action.A final and executory
judgment or order may be executed on motion
within 5 years form the date of its entry. After
the lapse of such time, and before it is bared
by the statute of limitations, a judgment may
be enforced by action. The revived judgment
may also be enforced by motion within 5 years
from the date of its entry and thereafter by
action before it is barred by the statute of
limitations.
By motion within 5 years from date of
entry of the judgment or final order.
By action after the lapse of 5 years,
before it is barred by the statute of
limitations
E. Specific Rules
Rule 39, Sec.7. Execution in case of death of
party.In case of the death of a party,
execution may issue or be enforced in the
following manner:
(a) In case of the death of the judgment oblige,
upon the application of his executor or
administrator, or successor in interest;
(b) In case of the death of the judgment
obligor, against his executor or administrator
or successor in interest, if the judgment be for
the recovery of real or personal property, or
the enforcement of a lien thereon;
(c) In case of the death of the judgment
obligor, after execution is actually levied upon
any of his property, the same may be sold for
the satisfaction of the judgment obligation,
and the officer making the sale shall account
to the corresponding executor or administrator
for any surplus in his hands.
Rule 39, Sec.20. Refusal of purchaser to pay.
If a purchaser refuses to pay the amount bid
by him for property struck off to him at a sale
under execution, the officer may again sell the
property to the highest bidder and shall not be
responsible for any loss occasioned thereby;
but the court may order the refusing
purchaser to pay into the court the amount of
such loss, with costs, and may punish him for
contempt if he disobeys the order. The amount
of such payment shall be fore the benefit of
the person entitled to the proceeds of the
execution, unless the execution has been fully
satisfied, in which event such proceeds shall
be for the benefit of the judgment obligor. The
officer may thereafter reject any subsequent
bid of such purchaser who refuses to pay.
Rule 39, Sec.14. Return of writ of execution.
The writ of execution shall be returnable to the
court issuing it immediately after the
judgment has been satisfied in part or in full.
If the judgment cannot be satisfied in full
within 30 days after his receipt of the writ, the
officer shall report to the court and state the
reason therefor. Such writ shall continue in
effect during the period within which the
judgment may be enforced by motion. The
officer shall make a report to the court every
30 days on the proceedings taken thereon
until the judgment is satisfied in full, or its
effectivity expires. The returns or periodic
reports shall set forth the whole of the
proceedings taken, and shall be filed with the
court and copies thereof promptly furnished
the parties.
Execution of judgment can only be issued
against:
1. St. Dominic Corp. vs. IAC (1987): a
party to the action
2. Cabreros vs. Tiro, (1988): Their privies
(who are those between whom and
action is deemed binding although
they are not literally parties to the
said action.
3. Lising vs. Plan (1984): an intervenor.
City of Manila vs. CA (1991): A judgment
becomes final and executory by operation
of law, not by judicial declaration
prevailing party is therefore entitled as a
matter of right to writ of execution, and
the issuance thereof is a ministerial duty
and compellable by mandamus.
Soco vs. CA: Even if it is a matter of right,
prevailing party must still file a motion for
a writ of execution.
Effect of death of a party:
1. In case of death of the judgment
creditor or obligee: execution may
issue or be enforced upon application
of his executor, administrator or
successor-in-interest;
2. In case of death of judgment
debtor/obligor:
i. execution may issue or be
enforced against his executor,
administrator or successor-in-
interest if the judgment be for
recovery of real or personal
property, or the enforcement of a
lien thereon if the obligor dies
after entry.
ii. Evangelista vs. La Proveedora, Inc.
(1971): execution may issue or be
enforced against his estate if the
judgment be for recovery of money
claims if the obligor dies before
entry.
3. In case of death of judgment debtor
or obligor, after execution is
actually levied upon any of his
property:
i. the same may be sold for the
satisfaction of the judgment
obligation.
ii. the officer making the sale shall
account to the corresponding
executor or administrator for any
surplus in his hands.
When property subject of execution
contains improvements:
officer shall not destroy, demolish, or
remove said improvements (general
rule)
Exceptions:
1. upon special order of the court,
issued upon petition of the
judgment creditor,
2. after due hearing, or
3. after judgment debtor has failed to
remove the improvements within a
reasonable time fixed by the court
In case of demolition:
Fuentes vs. Leviste (1982): there must
be a special order of demolition
granted upon petition of plaintiff, after
due hearing, and upon defeated
partys failure to remove the
improvements, within reasonable time
given him by court
Lorenzana vs. Cayetano (1977): notice
to demolish must be sent out to the
judgment debtor, not to stranger or
third party to the case
Cua vs. Lecaros (1988): special order
of demolition is not appealable.
should be carried out in manner
consistent with justice and good faith
(Albeltz Investments, Inc. v. CA, 75
SCRA 310, Feb. 28, 1977)
Where premises padlocked
Arcadio vs Ylagan (1986): no need for
sheriffs and plaintiff to secure a break
open order inasmuch as the character of
the writ of execution in their hands
authorized them to break open the said
premises if they could not otherwise
execute its command.

F. Redemption
Rule 39, Sec.27. Who may redeem real
property so sold.Real property sold as
provided in the last preceding section, or any
part thereof sold separately, may be redeemed
in the manner hereinafter provided, by the
following persons:
(a) The judgment obligor, or his successor in
interest in the while or any party of the
property;
(b) A creditor having a lien by virtue of an
attachment, judgment or mortgage on the
property sold, or on some part thereof,
subsequent to the lien under which the
property was sold. Such redeeming creditor is
termed a redemptioner.
Rule 39, Sec.28. Time and manner of, and
amounts payable on, successive redemptions;
notice to be given and filed.The judgment
obligor, or redemptioner, may redeem the
property from the purchaser, at any time
within 1 year from the date of the registration
of the certificate of sale, by paying the
purchaser the amount of his purchase, with
one per centum per month interest thereon in
addition, up to the time of redemption,
together with the amount of any assessments
or taxes which the purchaser may have paid
thereon after purchase, and interest on such
last named amount at the same rate; and if
the purchaser be also a creditor having a prior
line to that of the redemptioner; other than the
judgment under which such purchase was
made, the amount of such other lien, with
interest.
Property so redeemed may again be redeemed
within 60 days after the last redemption upon
payment of the sum paid on the last
redemption, with two per centum thereon in
addition, and the amount of any assessments
or taxes which the last redemptioner may have
paid thereon after redemption by him, with
interest on such last-named amount, and in
addition, the amount of any lines held by said
last redemptioner prior to his own, with
interest. The property may be again, and as a
redemptioner is so disposed, redeemed from
any previous redemptioner within 60 days
after the last redemption, on paying the sum
paid on the last previous redemption, with two
per centum thereon in addition, and the
amounts of any assessments or taxed which
the last previous redemptioner paid after the
redemption thereon, with interest thereon, and
the amount of any liens held by the last
redemptioner prior to his own, with interest.
Written notice of any redemption must be
given to the officer who made the sale and a
duplicate filed with the registry of deeds of the
place, and if any assessment or taxes are paid
by the redemptioner of if he has or acquires
any lien other than that upon which he
redemption was made, notice thereof must n
like manner be given to the officer and filed
with the registry of deeds; if such notice be not
filed, the property may be redeemed without
paying such assessments, taxes or liens.
Rule 39, Sec.29. Effect of redemption by
judgment obligor and a certificate to be
delivered and recorded thereupon; to whom
payments on redemption made.If the
judgment obligor redeems, he must make the
same payments as are required to effect a
redemption by a redemptioner, whereupon, no
further redemption shall be allowed and he is
restored to his estate. The person to whom the
redemption payment is made must execute
and deliver to him a certificate of redemption
acknowledged before a notary public or other
officer authorized to take acknowledgements of
conveyances or real property. Such certificate
must be filed and recorded in the registry of
deeds of the place in which the property is
situated, and the registrar of deeds must note
the record thereof on the margin of the record
of the certificate of sale. The payments
mentioned in this and the last preceding
sections may be made to the purchaser or
redemptioner, or for him to the officer who
made the sale.
Who may redeem:
1. judgment obligor, or
2. his successor in interest in the
whole or any part of the property, or
3. creditor having a lien by virtue of an
attachment, judgment or mortgage on
the property sold, or on some part
thereof, subsequent to the lien under
which the property was sold
(otherwise the redemptioner).
Amounts to paid in case of redemption by
a redemptioner:
purchase price with 1% per month
assessments or taxes paid with 1%
per month
amount of prior lien
the rule does not apply if the one
who redeems is the judgment
 debtor, unless he redeems from a
redemptioner in which case, he
must make the same payments as
redemptioner.

G. Deed of Possession

Rule 39, Sec.33. Deed and possession to be

given at expiration of redemption period; by
whom executed or given.If no redemption be
made within 1 year from the date of the
registration of the certificate of sale, the
purchaser is entitled to a conveyance and
possession of the property; or, if so redeemed
whenever 60 days have elapsed and no other
redemption has been made, and notice thereof
given, and the time for redemption has
expired, the last is entitled to the conveyance
and possession; but in all cases the judgment
obligor shall have the entire period of 1 year
from the date of the registration of the sale to
redeem the property. The deed shall be
executed by the officer making the sale or by
his successor in office, and in the latter case
shall have the same validity as though the
officer make the sale had continued in office
and executed it.

Upon the expiration of the right of redemption,

the purchaser or redemptioner shall be
substituted to and acquire all the rights, title,
interest and claim of the judgment obligor to
the property as of the time of the levy. The
possession of the property shall be given to the
purchaser or last redemptioner by the same
officer unless a third party is actually holding
the property adversely to the judgment obligor.

Guevarra vs. Ramos (1971): Writ of

possession shall issue to the vendee
after the deed of sale has been
executed when it is the judgment
debtor or his successors in interest
who are in possession of the premises,
but where the land is occupied by a
third party, the court should order a
hearing to determine the nature of his
adverse possession.
Olego vs. Rebuena (1979): Writ of
possession is a complement of the
writ of execution. If under the final
judgment the prevailing party
acquires absolute ownership over the
real property involved, the writ may be
issued for him to obtain possession
without need of separate action
against the possessor.