REMEDIAL LAW REVIEW 2010-2011
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DISCLAIMER: I didnt have time to read this so Im sure there are lots
of typos/grammatical errors. Sorry about that. There are a few gaps
in the notes from when I zoned out/was absent or couldnt type fast
enough. Anyway, hope you find these notes useful. If there are any
corrections, please let me know asap! Good luck everyone
11.22.10
DEFAULT
If the DEFENDING party fails to file a responsive pleading
(answer) can be declared in default
o Not limited to a complaint
o Also applies to counter-claim, third etc. see Sec 2 Rule 6
o All these pleadings assert a claim
o Rule 11 Sec 1 15 day period applies to complaint,
answer to third fourth party etc complaint. If you do
not serve summons, the period to file responsive
pleadings does not yet start to run.
The answer should be filed within 10 days from the service of
the pleading asserting a counterclaim or a cross-claim in this
case, there is no need to serve summons so you dont need 15
days! They are already parties to the action.
Amended complaint (as a matter of right) 15 days from
receiving a copy thereof
Amended complaint (with leave of court) 10 days from
receipt of the order of the court granting the amended
complaint
Filing of a reply is OPTIONAL, but if one is filed, should be filed
within 10 days
Process to have a party declared in default:
J. Britanico
1. Motion by the claiming party to declare the defending
party in default
This is not necessarily the defendant, because if
the defendant files a counterclaim and the
plaintiff does not answer, the plaintiff can be
declared in default
2. Notice to the defending party (comply w/ Rule 15 on
motions, this is a litigated motion and should be set for
hearing)
3. Order of default
Remedies available to a party declared in default:
o Before judgment: the defending party can have the
motion to set aside the order of default or certiorari
under Rule 65 (but this is only for certain circumstances)
e.g. if you file 1 day late the court should
probably overlook the technicality
o After judgment but before finality:
motion for new trial
appeal
motion for reconsideration
Between these periods, a party can also file for bill of particulars
MOTIONS
What is a motion?
o Application for relief other than a pleading
A pleading is not the same as a motion this is an express
provision Sec 1 Rule 15
Motion basically relates to an incident in the proceeding, it is
not usually based on the merits of an action
o e.g. motion for extension of time, bill of particulars etc
Rule 41 Sec 1
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o No appeal may be taken from etc..
o Motions cannot be appealed because youre asking the
court for something but it is not related to the merits of
the case
o Note that motion for certiorari etc are not appealable
because these are discretionary
o Hence the definition that a motion is an application for
relief other than a pleading
Requirements:
o Must be in writing (sec 2)
o Must state the grounds upon which it is based (sec 3)
o If required by rules/need to prove facts accompanied
with affidavits and other papers (sec 3)
Kinds of motions
o Motion ex parte addressed to the discretion to the
court, not prejudicial to adverse party, no hearing
needed
o Motion of course (motions in due course) not required
to be in writing! Made in the due course of the
proceeding
e.g. 132 motion when grounds become reasonably
apparent such as: (as stated by Justice Gesmundo)
During cross ex, Mr. Witness what did you saw?
The accused is a carpenter!
Objection! Question not responsive! Motion to
strike!
o Litigated motion made with notice to the adverse
party, who should be given an opportunity to oppose
o Special motion addressed to discretion of the court
e.g. rule 28 physical/mental examination
J. Britanico
3 day Notice Rule: Every written motion required to be heard
and the notice of the hearing thereof shall be served in such a
manner as to ensure its receipt by the other party at least
three (3) days before the date of hearing, unless the court for
good cause sets the hearing on shorter notice.
o Without being set for hearing, motion is a mere scrap of
paper and should be consigned to the dust bin
Exception: Rule 35 Sec 3: summary judgment.
10 day Notice Rule: The motion shall be served at least 10 days
before the time specified for the hearing.
Before filing a motion, it must be served on the adverse party.
Rule 15 Sec 6
o Preference is PERSONAL service
Motion day: Rule 15 Sec 7 Friday
o Rule 20 Sec 1: motions to set for hearing should be
included in the calendar. Motions are usually set on
Friday.
Omnibus Motion Rule: Rule 15 Sec 8 subject to sec 1 rule 9, In
a motion attacking a pleading, order, judgment or proceeding,
include all objections available
o Rule 9 Sec 1: All defenses not raised deemed waived
Motion for leave Rule 15 Sec 9: motion for leave to file a
pleading shall be accompanied by a pleading or motion to be
admitted
BILL OF PARTICULARS
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 to properly to prepare his responsive pleading. If the
pleading is a reply, the motion must be filed within ten (10) days
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from service thereof. Such motion shall point out the defects For foreign juridical persons period is 30 days from receipt by
complained of, the paragraphs wherein they are contained, and the foreign corporation not by the government agency (Rule 11
the details desired. Sec 2)
Bill of particulars is filed when the allegations in the pleading are
vague MOTION TO DISMISS
In certain instances, motion to dismiss is not the remedy, the
Within what period must you file an MTD?
remedy is a motion for bill of particulars
o Within the time for filing an answer or responsive
o Counterpart in crimpro, also called a bill of particulars
pleading
What should the court do as soon as the motion is filed?
o May be 15, 30, 60, depending on who the defendant is
o Clerk of court must immediately bring it to attention of
Grounds for MTD: (Rule 16 Sec 1)
the court
o No jurisdiction over person of defending party
So the court can examine the pleading and deny
o No jurisdiction SM
it outright
o Venue improper
If there is merit, the court can set it for hearing
o P has no legal capacity
The party may respond to it directly by filing a separate
pleading, or the party can amend its pleading and incorporate o Another action pending between the same parties for
the same cause
If youre a defending party and want to stall o Failure to state cause of action
o Claim/demand are extinguished
After you are served with summons o Unenforceable under statute of frauds
File a motion for b of p, because this SUSPENDS the period o Lack of condition precedent
within which to file a responsive pleading When can the court can act motu proptio:
After this.. file a motion to dismiss! (to delay) o Lack of jurisdiction, prescription, litis pendentia, res
If the MTD is denied, then file a motion to extend time to file judicata, prescription
answer
o If allowed, you still have the remainder of time but this Venue is Improperly Laid
is in no case less than 5 days
How do you determine issues on proper venue?
11.23.2010 o Nature of the action
o Stipulation or agreement
Service summons by publication: in no case less than 60 days o Residence of the parties especially in personal actions

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o When there is a specific law or rules that provides for E.g. in case of breach of contract the action shall
venue be filed exclusively in the court of Makati
e.g. Rule 66 Sec 7 Quo Warranto (exclusively, solely, only.. nowhere else
What is the rule when several parcels of land are subject of an except..)
action located in different places?
o It depends!
o If they are the subject of the same contract, any court
o If they are the subject of different contracts, each
property, 1 court of jurisdiction
What if the defendant is a domestic corporation and there is a
personal action arising from a contract, what is the venue?
o Principal place of business as stated in the AOI
What if the plaintiff is a foreign corporation and wants to sue
one of the parties in the Philippines arising from breach of
contract?
o Residence of the defendant
What about if a person sues a sole proprietorship arising from
breach of contract? What is the venue?
o A sole proprietorship is not a juridical entity, so it should
be the residence of the plaintiff
What about partnership?
o Rule 3 Sec 15
o May be sued under the name by which they are
generally or commonly known
o As far as venue is concerned it would depend on what
the action is
What about this rule on stipulation on parties?
o Parties may agree in writing in the contract or
agreement
o Executed before the action should arise
o The terminology must be restrictive or qualifying

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Plaintiff has no legal capacity to use Which should be dismissed?

Rule 8 Sec 4
o Things which must be averred
Capacity to sue or be sued,
Authority to sue or be sued in a representative
capacity, or
Legal existence of an organized association of
persons that is made a party
Capacity to sue or be sued the party is not suffering from any
disqualification such as minority, civil interdiction, limited legal
personality, incompetence, insanity
What allegation is required if the party is a foreign private
juridical entity?
o Must allege that it is duly licensed to do business in the
Philippines, even if it turns out during trial that it is not
in fact authorized
o Or that it is a foreign corp suing on a single isolated
transaction
Litis Pendentia
Rule 2 Sec 3+ 4: two or more suits instituted on the basis of the
same cause of action
Rationale: avoid multiplicity of suits and avoid double jeopardy..
no person shall be twice vexed for the same cause of action
Requisites:
o Identity of parties OR the parties represent the same
interest in the same action
o Identity of cause of action
o Judgment in one is res judicata in the other
o Choose the action in which all the issues may be
litigated! The other action should be dismissed
Difference between res judicata & litis pendentia
o Litis pendentia doesnt require prior action, there must
be a pending action
o Res judicata requires a final and executory judgment
What is the conclusivity of judgment?
o Rule 39 Sec 47
a (applies to actions in rem)
b (res judicata proper; preclusion of claims
cannot re-litigate)
c (preclusion of issues any issue relating
thereto cannot be litigated in another action)
11.25.2010
Res Judicata
requisites of res judicata:
o identity of parties
o identity as to cause of action
o identity as to issues
o identity as to subject matter of the action
o previous final judgment on the merits
o court rendering judgment has jurisdiction over the
subject matter of the action
final = final and executory
o Rule 36 Sec 2: Upon the lapse of the period to appeal or
to file an MR, the judgment shall be entered by the clerk
in the book of entries of judgments. The date of finality

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of the judgment or final order shall be deemed to be the
date of its entry.
Judgment based on the merits: (definition)
It is erroneous to say that judgment based on the merits means
that there was trial/facts threshed out. Example of dismissal on
the merits without trial:
o Rule 17 Sec 1 + 3 (dismissal upon notice by plaintiff +
dismissal due to fault of plaintiff)
o Rule 18 Sec 5 (failure to appear on part of plaintiff
during pre-trial)
GR probate court cant determine ownership over the property
except for purposes of inventory or if the parties agree that the
probate court can decide. If probate court decides without the
parties agreeing, the decision is merely provisional and cannot
be considered res judicata. But if the parties agree, it is
considered res judicata.
Judgment on a compromise with respect to res judicata:
immediately final + executory! As a general rule, you cannot
appeal. To question the validity, (e.g. fraud attended execution)
annul the judgment first. For purposes of another litigation over
the same parties, and the same subject matter, you can invoke
res judicata
Failure to State Cause of Action
Cause of action: the act or omission by which a party violates a
right of another (Rule 2 Sec 2)
Requisites of a Cause of Action:
o There must be a right on the part of the plaintiff
o Correlative duty of defendant to respect right
o Act or omission on part of the defendant violating the
right of the plaintiff or resulting in breach of contract
J. Britanico
When a defendant files an MTD based on this ground, what is
the nature of this?
o The defendant hypothetically admits the allegations
except:
Legal Conclusions
Unliquidated damages
o Can the court consider facts not alleged in the
complaint?
NO. The court cannot consider evidence
aliunde, it may only consider allegations on the
complaint, it cannot consider extraneous facts,
except:
where there is no dispute as to the due
execution of the document
jurisprudence because courts are
obliged to take judicial notice
annexes, motions and evidence
presented outside of the pleading but
presented during the hearing of the
motion (Rule 16 Sec 2)
evidence presented during the hearing
on provisional remedies
Rule 133 Sec 7 tells you how evidence on motion is presented as
in cases for MNT based on FAME when the court is unhappy
with the evidence on record, it can require additional affidavits
or depositions. This also applies in MTD when the court can
require parties to appear to prove the grounds of the MTD.
Usually this evidence is automatically reproduced in the trial so
you dont have to recall the witnesses.
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RANDOM NOTES: o You shouldnt use the date of the original complaint as
the basis of prescription but the date of the later
Rule 2 Sec 6: Misjoinder of causes of action NOT a ground for pleading. The action may not have prescribed on the
dismissal, the remedy is to sever the issue and continue date of the original complaint, but it may have
Misjoinder of parties is also NOT a ground for dismissal, parties prescribed on the date of the later pleading.
may be joined or severed as provided by the court Prescriptive period:
For purposes of the amended complaint, plaintiff can amend on o Actions concerning movables 8 years
anything including vesting jurisdiction for so as long as no o Real actions over immovables 30 years
responsive pleading has been filed. Even if a MTD has been filed, o Mortgage 10 years
you can still amend as a matter of right because an MTD is NOT o Written contract 10 years
a responsive pleading. o Obligations created by law 10 years
o If the MTD
o Judgment 10 years
Claim has been extinguished Which of the following must be brought within one year?
o Defamation
These are in the nature of affirmative defenses o Unlawful detainer
In these instances there may be a preliminary hearing if in o Recision of contract
answer (Rule 16 Sec 6) o Specific performance
o No MTD filed, any of the grounds for dismissal may be Can prescription be invoked against the state?
pleaded as an affirmative defense in the answer and at o No
the discretion of the court and a preliminary hearing Sources of extinguishment of obligations: (See Art 1231 NCC)
may be had o Payment/Performance
o Loss of the thing due
Barred by the Statute of Limitations
o Condonation/remission of the debt
Prescription: Rights may be acquired or lost through the passage o Confusion/merger of the rights of creditor and debtor
of time o Compensation
Found in the Civil Code: o Novation
o (memorize these grounds daw) o Annulment, rescission, fulfillment of resolutory
Example of when prescription is important: Rule 1 Sec 4 2 nd condition
sentence: additional defendant impleaded in a later pleading, o Prescription
the action is commenced with regard to him on the date of the
filing of such later pleading

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Failure to comply with Conditions Precedent o Note: if the remaining period is longer than 5 days,
thats the period he has to file. But if the remaining
e.g. barangay conciliation, earnest effort to compromise period is less than 5 days, the period becomes 5 days
between family members
Rule 16 Sec 5
Unenforceable under the Statue of Frauds
Cannot re-file if: (PURE)
See Art 1403 NCC o Prescription
Should be in writing in order to be enforceable o Unenforceable under the statue of frauds
o e.g. sale of real property should be in a public o Res judicata
instrument o Extinguished claim
o e.g. donation must be accepted in writing
Do NOT confuse with parole evidence Rule 16 Sec 6

Rule 16 Sec 3 If a complaint is dismissed on this ground does not dismiss the
counterclaim pleaded in the answer
What may court do after hearing on MTD? Compare w/ Rule 17 Sec 2 + 3
o Grant
o Deny
o Order amendment of pleading Rule 16 Rule 17
What is meant by indubitable in the provision? Not open to No need to manifest intention to Need to manifest intention to
question. This is because in the past courts could refuse to rule continue with counterclaim continue with counterclaim w/in
on the MTD. This is no longer allowed. This is because in this 15 days
case it is the defendant Since this is filed at the
Rule 16 Sec 4 who already deliberated instance of the plaintiff,
on what he plans to do the defendant is granted
The filing of an MTD suspends the period to file a responsive
with his counterclaim the 15 days from notice
pleading
to decide if he wants to
This is similar to the filing of a motion for bill of particulars
continue w/
If the MTD denied, the party can file an answer within the
counterclaim
remaining period, which in no case shall be less than 5 days

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ANSWER
When are issues joined in a civil action?
o When an answer is filed
When are issues joined in a criminal action?
o During arraignment, because there is no responsive
pleading to an information
When should an answer be filed?
o Rule 14 Sec 12
o Rule 11 Sec 2
o Service upon resident agent 15 days
o Service upon government agency 30 days
o Service via publication 60 days
Note that the rule on liberality should NOT be applied to
periods, as these are mandatory and should be strictly complied
with.. otherwise you will delay the proceedings
Note that answer does not necessarily apply to complaint, may
also be counter-claim, cross-claim etc. it should be filed in
response to a pleading that asserts a claim against him
Rule 9 Sec 1:
o Defenses and objections not pleaded either in an MTD
or in the Answer are deemed waived
o Because of this you have an option to plead in MTD or in
the Answer
o Exceptions: res judicata, prescription, jurisdiction over
the SM and litis pendentia
Under Rule 8 the requirements:
Section 1
o Answer should also state the ultimate facts relied on for
claim/defense
J. Britanico
o If defense is a matter of law, state the specific provision
of law and say why it is applicable
Section 2
o Conflicting defenses may be raised in answer based on
alternative defenses
o See Section 10 re: specific denial. Cant just specifically
deny the allegations, must specify reason you are
denying it
E.g. defendant denies allegations in paragraph 1
2 3 because (then state reason of denial like
payment etc)
o Also see Rule 6 Sec 5 affirmative + negative defenses
I WAS ABSENT, SORRY!
MODES OF DISCOVERY
Note circular which concerns due date on Sunday!
Rule 23 25 and 26 do not require leave of court unless an
answer has not yet been filed
But 27 and 28 need leave of court
Rule 23
Two purposes:
o mode of discovery
o testimonial evidence
Depositions may initially be a mode of discovery, and may be
used for testimonial evidence
Even if file motion for Bill of Particulars, and same granted/
denied, can still avail of modes
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Modes are CUMULATIVE, can avail of all of them and technically
at any stage of the proceeding
Most are resorted to prior to trial but there is nothing in the
rules that will prevent a party from taking a deposition in the
course of a trial, even in the course of the execution of
judgment
Two kinds of depositions: depositions in bene esse, in
perpetuam rei memoriam
o Court may in its discretion prohibit the taking of the
deposition
o Liberal application of rules but still subject to limitations
Bad faith etc.
Sec 2 of Rule 23
o Can examine deponent whether party on ANY MATTER
Restrictions:
not privileged
must show some relevance (not as strict
as in Rule 128), but what is asked
should be germane to purpose
Sec 16 (Protective Orders prior to taking
of Depositions)
Sec 8 (Protective Orders while
Depositions going on)
What is privileged/not privileged?
o Rule 130 Sec 4 privileged communications cannot be
the subject of depositions
Even the location of persons/document can be subject of the
deposition the idea is to be able to determine prior to trial
whether a particular person has possession of
documents/information which may be relevant to the trial
J. Britanico
Any party can ask that their deposition be taken. If they dont
know anything, dont call them as witnesses at trial. If their
knowledge is adverse to you, dont use them as witnesses.
*Sec 4 important:
o use will be based on whether or not deponent is party
to the action
o if NOT a party, can only use the deposition to IMPEACH
the witness
e.g. prior inconsistent statement Sec 13 Rule
132
o exception: if you call an adverse party, you can use the
deposition for ANY purpose; not only for purposes of
impeachment, but also as your own evidence!
Taking a deposition is like an advance trial, so
its a good idea to take the deposition of the
adverse party since at that time he has not been
coached as a witness and because he will testify
under oath. You can use the deposition as direct
evidence! You can also use the deposition to
impeach the adverse party
o Paragraph c applies whether or not the witness is a
party. The deposition of a witness, whether or not a
party, may be used by any party for any purpose if the
court finds that:
The witness is dead
The witness resides at a distance more than
100km from the trial or hearing (this was also
taken up under subpoena viatory rights!)
Witness is unable to attend because of age,
sickness, infirmity or imprisonment
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The party offering the deposition unable
procure attendance by subpoena
NOTE: the party asking for the
deposition cannot procure
unavailability of the witness
Exceptional circumstances
See Rule 132 Sec 17
The reference to Rule 132 is because of the mention in Sec 3
that the USE of deposition must comply with the rules on
admissibility in evidence, which is Rule 132
Section 6: Substitution of parties - depositions taken by previous
party may be used
Section 7: if a party takes the deposition of another, he cannot
be compelled to call the deponent as a witness
o E.g. if the party finds out that the deponent doesnt
know anything/knowledge is adverse, cannot be made
to call as witness
o NOTE: deadmans statute in evidence
Section 8: if you use the deposition for a purpose other than
impeaching a witness, you should make the deponent your
witness!
o Unless you are using the deposition of the adverse
party, because you cannot be compelled to make the
adverse party your witness
o Note: For purposes of USE of deposition, must
distinguish whether deponent party or not
Depositions may be taken in Philippines, outside of the
Philippines or in Foreign Jurisdiction
o In Phil:
Judge
Notary public
J. Britanico
Person authorized to admin oath if agreed upon
by party in writing
Can a barangay captain take a deposition?
the o If he is allowed under local government code to
administer oaths, he can be authorized to take the
deposition
Outside the Philippines (with leave of court)
o Commission request that a particular person is
designated to take the deposition of a deponent
situated in that foreign jurisdiction
If the deponent doesnt show up before the
commission there is nothing you can do because
the commission doesnt have compulsory
powers
NOTE: the commission person CANNOT rule on
the objections. He/she can only note them
down.
However, the rules provide that objections not
raised at the first opportunity are deemed
waived
Objections Re: rules of admissibility, raise at the
time the deposition is being offered into
evidence
o Letters Rogatory
Before you can resort to this you must show the
failure of the commission!
This is based on reciprocity..
Leave of court is needed because the court should determine
whether the same info can be gathered from other witnesses
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who are in the Philippines because then you can procure The manner by which the deposition may be taken is similar to
appearance through subpoena Rule 23 and the use is practically the same
Must be NECESSARY + CONVENIENT o Differences: when it is to be taken and the objective of
How do you procure testimony if within 100km? the taking
o Subpoena!
How do you procure testimony of a witness outside the
Philippines?
o Through a commission/ letters rogatory
Disqualifications: against the DEPONENT up to the 6 th degree
(2nd cousins)
Formal requirements:
o What should deposing officer do?
Take it stenographically unless agree otherwise
In one case, was made directly using typewriter,
the other party objected but the SC disagreed
and allowed the deposition
The other way to take depositions is through written
interrogatories
o Instead of oral examination of the deponent outside the
Philippines, you can resort to written interrogatories
o Here there is an exchange of questioning

Rule 24

Deposition BEFORE action

This pertains to a situtation wherein you anticipate that the
litigation will arise later, and you know of a person who has
knowledge, so you decide to take his deposition to preserve his
testimony
This is only available in CIVIL cases not criminal cases (Sec 1)
But Sec 7 deposition pending appeal is applicable to criminal +
civil actions

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Rule 25
These do not require leave of court
These are practically in the in the nature of judicial admissions
and do not need to be offered as evidence because they are
furnished to the court and form part of the records of the
proceedings
o Note Rule 35 Sec 1 can use depositions in motion for
summary judgments
Note Sec 4
Rule 27
This is more useful than a subpoena!
Because you can procure the document BEFORE trial instead of
getting it during the trial
Can you ask for exhumation of a cadaver under Rule 27?
o Yes, a cadaver is a THING! But if the person is still alive,
that will fall under Rule 28 (examination of persons)
Rule 28
<zoned out>
Rule 29
If a person refuses to comply with modes of discovery, you can
have the person cited in contempt
If a person refuses to have himself physically/mentally examined
can he be held in contempt?
o NO because in the hierarchy of rights, the right to
privacy is superior!
12.01.10
TRIAL (RULE 30)
Difference between trial and hearing
o Hearing is more broad than trial
o Trial primarily involves the presentation of evidence
o Remember that in certain cases there can be hearing
and judgment WITHOUT trial
E.g. Motion for summary judgment, judgment
on pleadings. In these cases there is no trial but
there is a hearing.
What is an adjournment?
o When the business for that day is done
What is a postponement?
o ..?
o Based on lack or absence of evidence
o Difference between postponement and continuance?
Essentially NO distinction, just a different
nomenclature
But it is different from adjournment
Is there a specific period for trial?
o Not more than one month for each adjournment or
total of three months
Where should court conduct its trial?
o Rule 135 Sec 7 in open court and so far as convenient
in a regular court room. All other acts or proceedings
may be done by judge in chambers
o NOTE: pre-trial can be conducted in the chambers of
judge

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o Remember: Exclusion of the public under Rules of
Evidence. Trial may be held in the chambers because of
the nature of the testimony. Also remember the rules on
examination of a child witness can be a closed circuit
television.
Requisites of motion to postpone trial because of absence of
evidence:
o Filed on motion supported by affidavit
Material and relevant evidence
Due diligence in procure it
o This refers to all kinds of evidence: testimonial, object
and real
E.g. if you subpoena records and the officer
does not give them to you, or if the person you
need is a prisoner in detention
o Problem with this rule is that there should be an
affidavit showing that the evidence is material and
relevant. This should be known to the court because of
the exclusionary rule related to pre-trial.
Postponement because of illness of party/counsel:
o Motion stating the ground with affidavit or sworn
certification showing:
Presence of party/counsel indispensable
Character of illness renders non-attendance
excusable
o Note: in civil cases, you can have trial even without the
party present, especially after pre-trial. What matters it
the absence of counsel, since the party cannot
represent himself
o Is the absent party required to submit medical
certificate in all cases?
J. Britanico
No because it can be an affidavit or sworn
certification
o It should be the affidavit of the doctor!
o Note: Under Rule 141 Sec 4 h, fee for filing of a motion
for postponement is five hundred pesos
o Note: this rule does NOT apply to criminal cases because
it is covered under Sec 2 Rule 119
o Court would not ordinarily accept the illness of the
handling lawyer because there is usually another lawyer
in the firm who can represent the party
Order of Trial:
o (Differentiate with Rule 132 Sec 4 order of
examination of witnesses: direct, cross, re-direct, re-
cross)
o Rule 30 Sec 5 refers to the order of PRESENTATION OF
EVIDENCE
Plaintiff present evidence on complaint
Note that if the evidence being
presented is testimonial evidence, you
must abide by order of examination of
witness mentioned in Rule 132 Sec 4.
This should be followed for each
witness presented.
Rule 132 Sec 35 When to offer:
o Testimony, at the time witness
is called
o Documentary/object evidence,
after presentation of
testimonial. Should also be
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done orally unless allowed by
court to be in writing.
Correlate w/ Rule 17 Sec 3 dismissal due
to fault of plaintiff
o But if the defendant doesnt
show up?
o Note Rule 30 Sec 5 g upon
admission of the evidence
refers to both the parties who
must have rested their case (so
the court can render judgment)
o Also read Rule 36 Sec 1
Defendant
o SUMMARY: plaintiff presents evidence, makes formal
offer, court makes ruling on evidence of plaintiff, after all
parties present evidence, court makes another ruling,
then technically can render judgment. But prior to that
the court can require the parties to submit their
respective memoranda. Note that the submission of the
memoranda is NOT mandatory but is discretionary.
o If the court requires the submission of memoranda and
the party fails to do so, what is the effect?
NOTHING! The court cannot refuse to issue
judgment, so the court should render judgment.
The submission of memoranda is a privilege
granted by the court! So if the party doesnt file
a memorandum, the court is still bound to
render judgment. In practice you should submit
this memoranda because this may be used as
the draft of the decision of the court.
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o If there are several defendants, during pre-trial you will
agree on the sequence of the presentation of evidence
to avoid confusion
Agreed statement of facts:
o See Rule 128 Sec 1, evidence defined the main
purpose of trial is to see through the conflicting facts.
Because if there is no conflict in the pleadings or if there
are no factual controversies, there is no need to go to
trial.
o This is in addition to the stipulations agreed upon during
pre-trial. The agreement should be made in writing. The
parties may submit the case for judgment on the facts.
o E.g. During pre-trial the party refuses to admit the due
execution of the document. During trial, the party can
change their mind and can choose to stipulate the due
execution of the document and then submit the case for
judgment
o This is different from the stipulation in the course of the
proceedings. If during the proceeding parties decide
that there is no need for the witness to testify, can just
stipulate and excuse the witness. Then the stipulation
forms part of the records of the case WITHOUT the
parties agreeing in writing.
These stipulations during the trial are already
recorded! There is no need for the parties to
sign the transcript. They are admitted!!
In the case of Sec 6, they are made prior to the
trial in addition to the facts agreed upon during
pre-trial, since they are not yet part of the
records of the case, they should agree in writing
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o NOTE: stipulations not applicable in legal separation and
annulment of marriage (possibly also in recognition of
illegitimate child, Sir is not sure)
Statement of the judge:
o Same as Rule 132 Sec 2 Proceedings to be recorded.
Entire proceedings of a trial or hearing, including
questions propounded to a witness and statements
made by the judge..
o Statements made by the judge made with reference to
the case should be recorded.
o NOTE: Rule 5 which requires the proceedings in all
courts should be the same, because all courts are courts
of record so the statements of judges should always be
recorded!
o How should it be recorded?
By means of shorthand/stenotype/other means
sanctioned by the court
Rule 136 Sec 17 pro tanto deemed modified
because all courts now are courts of record, so
CONSOLIDATION OR SEVERANCE (RULE 31)
you can ignore this rule haha
Suspension of actions:
o Because parties may settle amicably so there is no need
to prolong trial
o Article 2030:
Willingness to discuss a possible compromise
expressed by one or both parties
If it appears one of the parties before
commencement offered to compromise but the
other party rejected this
Reception of evidence:
o GR: judge must personally receive the evidence
J. Britanico
Reason: Rule 133 Sec 1 Preponderance of
Evidence court should consider manner of
witness testifying, probability of their testimony
being true etc. in order to comply with this,
judge should personally receive the evidence!
Otherwise it is difficult for him observe the
manner of the witness testifying.
NOTE: in adoption cases it is MANDATORY for
the judge to personally receive the evidence
o EXCEPT: delegation to Clerk of Court (member of bar)
Default
Ex parte hearing
e.g. Rule 18 Sec 5 Failure of defendant
to appear at pre-trial shall be cause to
allow the plaintiff to present his
evidence ex parte and the court to
render judgment
Agreement of the parties in writing
What is consolidation?
o involves several actions having a common question of
law or fact which may be jointly tried.
Purpose:
o To avoid multiplicity of suits
o Guard against oppression or abuse
o Prevent delay
o Clear congested dockets
o Simplify the work of the trial court
o Save unnecessary costs and expenses
o To avoid conflicting decisions
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Ways of consolidation of cases: o E.g. partition, the commissioners determine the aliquot
o by recasting the cases already instituted shares of the heirs
o by consolidation by proper or by consolidating existing
cases Clerk of Court Receive Evidence Commissioner Receive Evidence
o by test-case method Must be lawyer Not need to be lawyer
Can NOT rule on objections CAN rule on objections
NOTE: if the cases are pending in different courts you During trial Even after judgment final
need the authorization of the SC Can a commissioner cite a party for contempt?
Parties may be different but the Courts may still consolidate the o Yes through the court who referred him
cases, the requirement is that there is a common question of Are the commissioners entitled to compensation?
law or fact o Yes, to be paid by the defeated party, or the court can
See Rule 111 allowing consolidation of civil and criminal actions order that it be apportioned between the parties
In some cases, the consolidation of the civil and criminal actions
is MANDATORY DEMURRER TO EVIDENCE (Rule 33)
o E.g. Rule 111 Sec 1b BP 22 GR the concept is that there is only judgment after full blown
o RA7975 sec4 (jurisdiction of the sandiganbayan) trial (aka after both parties have presented evidence)
Modifies rule 111 sec 5. Deemed instituted by BUT in certain instances, there can be judgment..:
the institution of the criminal action, no o After partial presentation of evidence
reservation allowed. Automatic consolidation. This is where the demurrer to evidence comes
Severance opposite of consolidation in
o Even if there is no presentation of evidence
TRIAL BY COMMISSIONER (Rule 32) o Full presentation of parties evidence
Commissioner: the one referred by the Court to receive Demurrer to evidence: after the plaintiff presents his evidence
evidence and rests his case, the defendants ask the court to render
Need commissioners because sometimes the evidence is judgment because the plaintiff has no right to relief
technical in nature Differentiate:
Two kinds of trial by commissioner:
o By consent or agreement of the parties Demurrer to evidence MTD failure to state cause of
o By order of the court action
Note you can still have trial by commissioners AFTER judgment Based on the evidence Based on the allegations on the
for purposes of execution presented by the plaintiff complaint

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Failure to PROVE cause of action Failure to STATE cause of action You need to distinguish, because there can be judgment w/ no
Because of insufficiency Because of insufficiency reception of evidence (no trial), but there is a hearing!
of EVIDENCE of ALLEGATIONS Also, under Rule 16: when certain grounds are invoked and the
case is dismissed, it is in effect a judgment
This is allowed because the plaintiff claims he has a cause of o Rule 16 Sec 3 in every case the resolution shall state
actions, so he must prove that he has a cause of action! clearly and distinctly the reasons therefore (in resolution
of motion).
12.02.2010 o Rule 40 Sec 1 appeal from final judgment that
disposes of a cases
What is judgment? In rule 16 there can be an adjudication even though there is only
o The ruling by the court of competent jurisdiction which a hearing, but no trial. This is because section 3 says hearing of
determines the rights and obligations of the parties to a motion and it also mentions affirmative defenses wherein
the action there needs to be a preliminary hearing (sec 6)
o FINAL adjudication by the court o If granted there is already an adjudication
What are the kinds of judgment? However it is also possible that there can be partial trial or
o Judgment on compromise partial presentation of evidence and there can already be an
o On ??? adjudication, as in Rule 33 Demurrer
o On the merits What constitutes last pleading: depends on the number of
o Summary judgment parties in the action and the number of pleadings filed
o Clarificatory judgment After a pre-trial, the court may render judgment on pleadings or
o Judgment on the pleadings summary judgment. If this is the case, there is also an
o Conditional judgment adjudication w/o trial. There is no presentation of evidence.
o Judgment nunc pro tunct Judgment may be arrived at and there can be partial hearing,
o Special judgment partial trial or a full blown trial. It depends on the kind of
o Judgment pro hac vice judgment the party is seeking
Judgment that you cannot take as a precedent Judgment on the pleadings:
ruling o Based purely on the pleadings, partial hearing
The classification of judgment depends on the kinds of Summary judgment:
proceedings of the court o No trial at all, basis of judgment is the affidavits,
In the rules beginning Rule 33-35, there is a demurrer to admissions etc
evidence. That kind of ruling is in the nature of a judgment. Demurrer to evidence:

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o There should be partial trial because it is required that o Annulment of marriage/ Nullity of marriage
the plaintiff present his evidence o Legal separation
Default: Who may ask for judgment on the pleadings?
o No trial but there is hearing (ex parte) o The plaintiff
The judgment contemplated on the rule on judgment is one that
is arrived after FULL BLOWN TRIAL, meaning both parties were
able to present their respective evidence

JUDGMENT ON THE PLEADINGS (RULE 34)

When the answer fails to raise an issue or otherwise admits the
material allegations of the adverse party
o Note: answer expected from defending party. This can
also apply to cross-claim, counterclaim etc.
E.g. A v. B, B files counterclaim, A files an answer, but the answer
fails to tender an issue, there can be judgment on the pleadings
Similarly there can be a default on the counterclaim, cross-claim,
third-party etc complaint
Example of when the answer fails to tender an issue/otherwise
admits the material allegations:
o If there is a general denial or insufficient denial
o e.g. based on the manner of making allegations in the
pleadings:
such as in Rule 8 Sec 10 lack of
knowledge/insufficient information to form a
belief and has the effect of a denial
However, if in his answer the defendant admits that he owes the
plaintiff but cannot pay the amount, this is different from an
affirmative defense which hypothetically admits facts, but at the
same time raises new issues. In this case judgment on pleadings
is NOT allowed because the defense raises an issue.
What may not be the subject of judgment on the pleadings?

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SUMMARY JUDGMENTS (RULE 35)
There is no trial, no presentation of evidence but the court
renders judgment but there is NO GENUINE ISSUE
o no genuine issue no genuine issue as to triable
facts, no necessity to present evidence because factual
issues are sham or contrived
Is there a limitation as to what may be subject of summary
judgment?
o ?
Summary judgments are also possible w/ respect to
counterclaim, cross-claim, third-party etc., for as long as there is
a pleading that asserts a claim
Who may ask for summary judgment?
o Both parties! Summary judgments are NOT limited to
the claiming party. Defending party may also ask for
summary judgment.
In lieu of trial, the judgment will be based on affidavits,
depositions, admissions etc.
When can the claiming party file for a summary judgment?
o After an answer filed, because this is the only time that
you can determine that the matters raised in the
pleadings are sham, fictitious, contrived
What about the defending party?
o At any time!
Does this apply to modes of discovery?
o Yes, when the defending party asks for deposition, they
may be taken at any time (Rule 23)
What may be the subject/what may be adjudicated in summary
judgment?
o Two stages:
J. Britanico
Party file a motion for summary judgment, it is
required that there be hearing. This is AN
EXCEPTION TO THE 3 DAY NOTICE RULE. Hearing
must be set at least 10 days before the hearing.
This is to give the adverse party a chance to file
countervailing affidavits
When there is a motion, the court will first
determine the propriety of rendering summary
judgment (determine w/n there is a triable
issue)
If no trialable issue, can render summary
judgment. If there is an issue, proceed to trial!
In summary judgment the court can already determine w/n
there is liability to pay damages, so should the court still go to
trial?
o Yes! To determine the amount of damages. Because
damages require proof. You cannot controvert w/n you
are liable, but you can contest the AMOUNT of the
damages you need to pay.
Note Sec 4 when cases not fully adjudicated
Is a summary judgment appealable?
o There is a controversy!!
o In one case: partial judgment not appealable (IGNORE)
o More RECENT case: appealable!
The failure of the plaintiff/claiming party to file a controverting
affidavit does NOT amount to an admission of the pleading of
the party asking for a summary judgment
o The option given to the adverse party to file
controverting affidavits is not mandatory! This is
because the motion for summary judgment will still be
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heard by the court whether or not the party submits the
affidavits.
There is a sanction if you try to procure summary judgment
using affidavits in bad faith (which is basically perjury)
Judgment may be rendered when there is partial presentation of
evidence, or when there is partial trial, which starts with..
o Rule 9 Sec 3, Default
The judge has two options:
Render judgment granting the relief as
his pleading may warrant no
hearing at all
The court in its discretion requires the
claimant to submit evidence (ex parte)
this is PARTIAL hearing and PARTIAL
reception of evidence
o Rule 33, Demurrer
(can file demurrer only after the evidence has
been FORMALLY offered, and the court has
MADE a ruling on the plaintiffs formal offer of
evidence) before this, the filing of demurrer
is premature
test of sufficiency of evidence in civil action:
quantum of evidence rule 133 Sec 1
If denied: proceed to trial. Defendant presents
evidence
If granted: the action is dismissed. This is
considered to be a final adjudication on the
merits and is APPEALABLE
NOTE: if on appeal the order granting
the demurrer is reversed, the defendant
J. Britanico
is deemed to have waived his right to
present evidence
This means that judgment will be
rendered solely on the basis of the
plaintiffs evidence, which will result in
deciding that there is preponderance of
evidence because there was error on
the part of the TC in granting demurrer
JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF (RULE 36)
Usually after a full blown trial
Can the judge refuse to render judgment?
o NCC Article 9: judge will not refuse to render judgment
based on silence, obscurity or insufficiency of laws
o Even if there is no provision in the NCC, the judge would
still need to render judgment because our courts are
courts of EQUITY
Formal requirements of judgment:
o In writing (no verbal/oral judgment because all courts
now are courts of record)
o Personally and directly prepared by the judge
o Signed by the judge
This is only required in all courts except the
Supreme Court! Because the Supreme Court can
issue MINUTE RESOLUTIONS (this is different
from a memorandum decision)
o Filed with the Clerk of Courts
Substantial requirement of judgment:
o Stating the clearly and distinctly the facts and the law on
which it is based
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12.06.2010
JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF (RULE 36)
Continued..

What are the parts of the judgment?

o Opinion why you find the evidence lacking/sufficient,
the narration of facts, statement of the law in question
o Fallo/dispositive portion the adjudication, this is what
will be executed, so ordered
o Signature of the judge
o Body
If there is a conflict between opinion and the fallo, the fallo
should prevail
o EXCEPT if ?
If a judge is about to write a decision and is transferred, he is
allowed to write the decision provided the parties file a
manifestation that the same judge be allowed to write the
decision, AND provided he is transferred to a court of the same
grade or category
Rule 135 Sec 9 when judge in province transferred to another
court and can send the decision by registered mail
Rule 131 Sec 3 (m) (n) (o) presumption of regularity of official
duty, court or judge acting in the Phil in the lawful exercise of
jurisdiction; all matters w/in an issue
Rule upon judgment upon the compromise when approved by
the court, final and executory
o Remedy: first have judgment/compromise nullified
What constitutes promulgation of judgment?
o The filing of the decision w/ the clerk of court, NOT the
signing of the decision.
Can a judgment be orally promulgated?

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o NO. The judgment must be in writing.
What completes promulgation of a judgment?
o Rule 13 Sec 9 service of judgments, final orders or
resolutions must be served either personally or by
registered mail
o Decision is filed w/ clerk of court, then clerk of court
causes the service of the decision personally or through
registered mail (note this is different from criminal
actions)
o Prior to that point the judge may do anything he wants,
he can recall the decision, he change it etc. because
there is no rendition of judgment and there is no
promulgation yet
PROMULGATION: when sent via registered mail, date received
considered
FILING PLEADINGS: date sent is considered
Judgment contrary to law is still a valid judgment unless it is
attacked by an aggrieved party
What is your remedy if the judgment is ambiguous?
o File a motion for clarification
Amended vs supplemental judgment
o Amended judgment vacates the original judgment. This
can be done before finality of judgment
o Supplement judgment does not supersede the original
judgment, it only adds to it
Before finality, only clerical errors can be amended
What can be changed after finality?
o Court still has jurisdiction w/ respect to the execution
stage
Exceptions to immutability of judgment
o Clerical errors
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o Nunc pro tunc actions that could have been done but
were not done, and are now being done
o Void judgments
What is a supplemental decision?
o Does not supersede the original decision but only adds
to it
o This is similar to amended + supplemental pleadings
How do you attack a judgment?
o Can it be attacked collaterally?
Generally, NO, except:
Lack of jurisdiction
When does a judgment become final + executory?
o Rule 36 Sec 2 if the period provided to file an appeal
lapses and no appeal/MR/NMT is filed, judgment is final
and executory and should be entered into the book of
judgment
What is the period within w/c to appeal?
o 15 days (ordinary actions) or 30 days (if a record on
appeal is required, multiple appeals may be allowed)
EXCEPT
o Rule 102 in relation to Rule 41 appeal from habeas
corpus w/in 48 hours from notice of judgment/final
order
When should the entry in the book of judgment be made?
o Date of finality deemed date of entry even if entry made
much much later than date of finality
o Date of entry is important in the following
circumstances:
Relief from judgment 6 days 6 months from
the date of entry
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Rule 39 Sec 6 Execution by motion or by
independent action. The reckoning date is w/in
5 years from the date of entry
Rule 36 Sec 6 of the NCC revival of judgment.
Reckoning time w/in 5 years from date of entry.
Rule 136 Section 9. Book of Entries the clerk shall keep a
judgment book containing a copy of each judgment and book of
entry containing the dispositive portion
Sec 3: Judgment for or against one or more of several parties.
o For or against several plaintiffs, and for or against one or
more of several defendants
o But this does not apply to solidary debtors
Sec 4: Several judgment
o NOTE: Here only defendants are several. This is different
from Section 3, where plaintiffs are several and
defendants may or may not be several.
o Read w/ Rule 41 Sec 1 (f) + Rule 31 Sec 2 + Rule 39 Sec
2b
Judgment of support does NOT become final and executory
Sec 5: Separate judgments
Sec 6: Judgment against entity without juridical personality
o Read w/ Rule 3 Sec 15
Post-judgment remedies available to aggrieved party
o Depends on when you want to avail of it!
o BEFORE finality of judgment or final order:
Motion for reconsideration this will toll the
period for appeal. But if denied, there will be
FRESH PERIOD within which to appeal.
J. Britanico
Motion for new trial this will toll the period
for appeal. But if denied, there will be FRESH
PERIOD within which to appeal.
Appeal w/in 15/30 days
(can avail of both MR and MNT)
o AFTER finality of judgment or final order:
Relief from judgment/final order
Annulment of judgment
Petition for certiorari
Collateral attachment of judgment
12.07.2010
NEW TRIAL OR RECONSIDERATION (RULE 37)
Who may file a motion for reconsideration?
o Any aggrieved party (either plaintiff/defendant)
In some instances the prevailing party still seeks for
reconsideration if he does not feel the judgment rendered is not
sufficient. Thats why the rule says aggrieved party and not
prevailing party
Sec 1: within the period for taking an appeal. You can find this in
Rule 40/41.
NOTE: it is prohibited to file a motion for extension of time to
file MR/MNT. In rule 11 we learned that you can seek
extensions.
o Rule 11 Sec 11: extension of time to plead. Upon motion
and such terms as may be just, court may extend the
time to plead
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o This section is EXPRESSLY inapplicable to MR/MNT. Rule
40 Sec 2 last sentence. No motion for extension of time
to file a motion for new trial/recon shall be allowed. This
is the same as in Rule 41 Sec 3.
NOTE: a second motion for reconsideration is PROHIBITED. A
party is only entitled to one MR.
This rule applies to judgments that are final but not yet
executory.
The grounds are:
o FAME.
This is the second time. FAME is also in Rule 9
Sec 3.
FAME in rule 9 is the same as in rule 37
When FAME is a ground:
o Default, Rule 9 Sec 3
o MR/MNT Rule 37 Sec 1
o Relief from Judgment Rule 38 Sec 1
** NOTE: FAME always requires that the petition is accompanied by
an affidavit of merit **
When you speak of fraud, what is the fraud that is
contemplated?
o Extrinsic Fraud.
o E.g. if a witness testifies but perjures during a trial is this
the fraud that will be a ground for an MR or MNT?
No. This is not extrinsic fraud, it is intrinsic fraud
or collateral fraud.
o Extrinsic fraud is when the judgment seems to be alright
but outside of that, there is something wrong..?
When you say accident, what is contemplated?
o E.g. Where a party was not able to present his evidence
because did not receive notice. Or a party declared in
default because he was the address was wrong. Or file
an answer which gets lost in the mail.
What about mistake? Whose mistake is contemplated?
o Mistake of FACT not mistake of law
o E.g. in one case the SC forgave a party because he
thought there were only 30 days in October.
What about negligence?
o Refers to excusable neglect of the party. What is
excusable depends on each case.
o Note that generally, negligence of counsel is binding
UNLESS it was so great that the party was prejudiced
o Note that this does not refer to gross negligence
In these motions especially for MNT, you have to submit two
affidavits:
o Affidavit of merit (constituting FAME this must be
specified in particular, cannot be averred generally)
o Affidavits of meritorious cause of action or meritorious
defense
When are affidavits of merit not necessary?
o When NOT based on FAME
o Basis of NT is lack of jurisdiction SM
o Basis of NT is lack of jurisdiction defendant
o Motion is sham because it failed to comply w/ Rule 15
NO notice of hearing
o In judgments on default even before answer is filed
What is a pro forma motion?
o When there is no affidavit of merit, or when the affidavit
of merit does not substantiate the claim of FAME etc.

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e.g. when the circumstances constituting the
ground of fraud is not specified with peculiarity
e.g. reiterates the same evidence presented in
trial
e.g. DOES NOT COMPLY W/ RULE 15 no
notice of hearing
o Does it toll the period?
No, expressly provided in law.
If pleading says motion for new trial but the ground specified
is for motion for reconsideration, should the court allow the
pleading?
o Yes, the court should treat the motion as an MR
Requisites for newly discovered evidence for NT:
o Discovered after trial
o Could not have been discovered + produced at trial w/
reasonable diligence
o Evidence would alter the result of the action
o Must also be accompanied by affidavits
Witnesses etc which are in the nature of the
synthesis of the evidence sought to be
presented or if documents, attach the
documents
Motion for New Trial Motion for Reopening
After promulgation of judgment After each party rests its case
but before the rendition of
judgment
J. Britanico
Rule 37 Rule 132 Sec 9 recalling
witness
Basic requirements of both MNT/MR:
o Should be in writing
o Should state the grounds
o Written notice of which served by the movant on the
adverse party
Jurisprudence: when you serve a copy of the
motion on the adverse party, for purposes of
the filing of the MR, the date given to the
adverse party should be the reckoning period
o Should comply w/ rule on proof of motions
Rule 133 Sec 7 evidence on motion. When
court not satisfied w/ facts appearing on record,
court may direct that matter be heard wholly or
partly on oral testimony/depositions
What is an affidavit?
o Statement of facts verified and under oath so person
can be held liable for perjury
What is the effect of filing a MNT?
o Tolling the reglementary period to file an appeal
o If denied: file an appeal within 15 days, can NO LONGER
file for certiorari
Rule 37 Sec 9: an order denying a motion for
new trial or reconsideration is not appealable,
the remedy being an appeal from the judgment
or final order
Appeal should be on the judgment, not on the
denial of the MNT
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o If granted: judgment is vacated, and there is trial de o Rule 38 only available in the SAME COURT that rendered
novo. ( the judgment that is final and executory
Rule 37 Sec 7 o Rule 47 at least w/ trial court but filed w/ CA only
The evidence presented at the previous trial will available in HIGHER COURT
be disregarded; the trial de novo will be Can you avail of relief from judgment if it is based on
confined to the newly discovered evidence. BUT compromise? Considering the judgment is immediately final and
in rendering the decision, the evidence executory
originally presented and the new evidence will o Yes because if the grounds are still FAME
be considered together. But if the new evidence Example of other proceeding
is still not sufficient, the old judgment will be o Order of execution
practically the same as the new one. Sec 2 vs Sec 1
What happens when a motion for reconsideration is granted? o Sec 2: deprived of an opportunity to appeal, within the
o The court will re-evaluate w/n the damages awarded are period to appeal b/c of FAME
excessive, and w/n the evidence presented is sufficient E.g. not yet receive but the record shows that it
(Rule 37 Sec 1) was already received
o Note: only those matters raised in the motion should be Sec 3: time for filing petition
reconsidered by the court o Remember Rule 36 Sec 2 date of finality = date of the
Partial new trial or reconsideration: entry regardless of when the actual physical entry was
o Sec 8 Note if they are severable made by the Clerk of Court.
Effect of order for partial new trial o Is this period extendible?
o See Rule 31 Sec 2 Both periods must be complied with
NOTE: in the SUPREME COURT you can ask the court for an o 60 days from date of ACTUAL knowledge
extension to file a MOTION FOR RECONSIDERATION. The SC can What if notice served through counsel? Notice
even suspend the rules. to counsel is notice to party
UNLESS counsel incompetent??
Relief from Judgment Reckoned from date of actual
knowledge of party
Available after the judgment has become final and executory o 6 month period from date of entry
DOUBLE CHECK Whats the difference between Rule 38 and o Must be verified
Rule 47? o Is it an initiatory pleading?

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NO. It is a contingent claim based on the original
action.
Docket fees? Certification of non-forum
shopping? Sir did not really answer? But James
said No and No.
Can there be default?
NO default. See Rule 38 Sec 6. After the
period to file an answer has lapsed, the
court is required to hear the petition for
relief
o Tehnically there are 2 stages:
Hear the petition, determine whether or not the
petition for relief should be granted, examine
the affidavits of merits.
If petition is sham (lost right to appeal
b/c of own fault) then you should deny.
If petition has merit, grant.
NOTE: in petition should allege not just
FAME but also that you have good cause
of action or defense
If granted, hear the main case as if a new trial
was granted
What is an injunction?
o To forestall the proceedings.
o If you dont file injunction, writ of execution may be
issued! This is because the judgment is already final and
executory.
NOTE: NO SUMMONS in petition for relief. In lieu of this, there is
an ORDER TO ANSWER. This is in any manner which the court
may direct w/ copies of petition and affidavits. Can be
personally or by mail.
J. Britanico
Can you appeal the order granting/denying petition for relief?
o Rule 41 Sec 1 a: no appeal denying a petition from relief
of judgment
o Remedy: CERTIORARI Rule 45
Sec 7: if petition granted, the appeal will be as if timely filed
Appeal
Judgment is final but not yet executory
Always remember the doctrine of hierarchy of courts
Which courts have appellate jurisdiction?
o All courts except the first level courts
What is the nature of an appeal?
o It is a statutory right, a privilege granted by law
When you see appeal, that basically means review. Thats why
when you look at the courts, the first two are trial courts. In the
constitution the rules must be uniform in all courts of the same
ground. RTC and MunTC are the same level because they are
both trial courts.
Sandiganbayan is both a trial court and an appellate court.
SB SC because three heads are better than one in RTC there
is only 1 judge, in SB there are three.
Weirdest situation CTA division appeal to CTA en banc. So
you appeal your own decision.
12.08.10
Appeal
What is an appeal?
o Remedy given to an aggrieved party, resort to a superior
court to review the decision of the lower court
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Purpose: review of errors of fact or law in the JUDGMENT
o NOT errors of jurisdiction
Error of jurisdiction correctible by certiorari under Rule 65
When is appeal a matter of right?
o Generally, appeal is NOT a matter of right. but once
granted, cannot deprive a party of that right. appeal
from the initial judgment from a lower court to a
superior court.
Ex Rule 40 appeal first level rtc is a matter of
right
RTC appellate is in original jurisdiction
The rest are called discretionary appeals
Petition for review and appeal by certiorari are
called discretionary appeals
Rule 45 Sec 6: Section 6. Review 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 thereof. The
following, while neither controlling nor fully
measuring the court's discretion, indicate the
character of the reasons which will be considered:
(a) When the court a quo has decided a question of
substance, not theretofore determined by the
Supreme Court, or has decided it in a way probably
not in accord with law or with the applicable
decisions of the Supreme Court; or
(b) 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. (4a)
J. Britanico
The acceptance of discretionary appeals depends on the
appellate court
Can the TC refuse to give due course to the appeal?
o No it is upon the appellate court to say that. Appellate
court has the right to determine w/n it should be
entertained.
Who can appeal?
Requisites:
o Must have real interest in the case
E.g. A filed a case against B, C filed to intervene,
denied, after judgment can C appeal? NO!
o The party must be aggrieved or prejudiced by the
decisions
With respect to appeals as regards party, dont forget Rule 3 Sec
16 this may not be the right provision
o There can still be substitution of parties even at the
appellate level
What may be appealed as a matter of right?
o First level courts
What is a judgment?
o Order by court which on the merits disposes of the
action with finality
o Grants the relief prayed for in the action!
If it doesnt, its not a judgment. Thats why
there are instances in the proceedings that are
not appealable
What is a final order?
o E.g. in expropriation an order that the property may be
taken for public purpose
Second issue is just compensation this order
is also appealable
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o E.g. in partition can appeal whether partition is proper
Second issue is how it should be partitioned
this order is also appealable
o Rule 109 Sec 1
Appeals allowed:
Allows/disallow a will
Who are lawful heirs + distributive share
Etc
Note: 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 motion for new trial or reconsideration;
(b) An order denying a petition for relief or any similar motion
seeking relief from judgment;
(c) An interlocutory order;
(d) An order disallowing or dismissing an appeal;
(e) 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;
(f) An order of execution;
(g) 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
(h) An order dismissing an action without prejudice.
In all the above instances where the judgment or final order is not
appealable, the aggrieved party may file an appropriate special civil
action under Rule 65. (n)
J. Britanico
The above are interlocutory orders and are not appealable. The
proper remedy is certiorari under rule 65 because of GADLEJ.
Exceptions to final judgment rule:
o If this judgment finally puts an end to a particular
action, can appeal within the time under the rules
o Exceptions:
Multiple appeals
Rule 41 Sec 1 (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;
E.g. A filed action against B, B files third
party complaint against C, court renders
judgment saying B liable, w/ regard to
third party complaint, court renders a
separate judgment saying C is liable to B
for whatever B owes A. Only B appeals.
Whats the effect of the appeal by B?
o Decision between B + C final
o Decision between A + B still
appeal
o This is because C did not pursue
an appeal
o
Taking an appeal v. perfecting an appeal
o Perfecting = complied w/ requirements of court
Notice of appeal file w/in 15 day period,
deemed perfected if there is nothing to be done
on his part
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Record on appeal mere filing is NOT
perfecting the appeal , you also need the
APPROVAL of the record on the appeal within
the period for filing an appeal
These are important because it determines the
residual power of the court
Rule 41 Sec 9: Perfection of appeal; effect
thereof. A party's appeal by notice of appeal
is deemed perfected as to him upon the filing of
the notice of appeal in due time.
A party's appeal by record on appeal is
deemed perfected as to him with respect to the
subject matter thereof upon the approval of the
record on appeal filed in due time.
In appeals by notice of appeal, the court
loses jurisdiction over the case upon the
perfection of the appeals filed in due time and
the expiration of the time to appeal of the other
parties.
In appeals by record on appeal, the court
loses jurisdiction only over the subject matter
thereof upon the approval of the records on
appeal filed in due time and the expiration of
the appeal of the other parties.
In either case, prior to the transmittal of the
original record or the record on appeal, the
court may issue orders for the protection and
preservation of the rights of the parties which
do not involve any matter litigated by the
appeal, approve compromises, permit appeals
of indigent litigants, order execution pending
appeal in accordance with 2 of Rule 39, and
J. Britanico
allow withdrawal of the appeal. (9a)
Rule 38 Section 2: Discretionary execution.
(a) Execution of a judgment or 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. (2a)
o In bullet points: (O-PAPA)
Order execution pending appeal
Issue orders for the preservation
Approve compromise
Permit appeal by an indigent
Rule 3 Sec 21:
Section 21. Indigent party. A party may
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be authorized to litigate his action, claim or
defense as an indigent if the court, upon an
ex parte application and hearing, is satisfied
that the party is one who has no money or
property sufficient and available for food,
shelter and basic necessities for himself and
his family.
Such authority shall include an
exemption from payment of docket and
other lawful fees, and of transcripts of
stenographic notes which the court may
order to be furnished him. The amount of
the docket and other lawful fees which the
indigent was exempted from paying shall be
a lien on any judgment rendered in the case
favorable to the indigent, unless the court
otherwise provides.
Any adverse party may contest the
grant of such authority at any time before
judgment is rendered by the trial court. If
the court should determine after hearing
that the party declared as an indigent is in
fact a person with sufficient income or
property, the proper docket and other
lawful fees shall be assessed and collected
by the clerk of court. If payment is not made
within the time fixed by the court, execution
shall issue or the payment thereof, without
prejudice to such other sanctions as the
court may impose. (22a)
Allow withdrawal of the appeal
J. Britanico
NOTE: these requirements on appeals are MANDATORY. This is
because appeals are not a matter of right. The requirements are:
o Period
o Payment of docket fees
When do you reckon the period to appeal?
o Rule 13 Sec 9
Section 9. Service of judgments, final orders, or resolutions.
Judgments, final orders or resolutions shall be served either
personally or by registered mail. When a party summoned by
publication has failed to appear in the action, judgments, final
orders or resolutions against him shall be served upon him also
by publication at the expense of the prevailing party. (7a)
o If represented by counsel, service by counsel is the
serving date. If not by counsel, service on party is the
reckoning date. If a counsel withdraws without the
approval of the court, service upon him is valid because
counsel should be w/ consent of client and court. If
moved address and not inform the court, service to old
address is valid. Should file manifestation of changed
address.
How do you compute the hours?
o Rule 22
o If it falls on Sat, Sun, holiday, file on next business day
What is a record on appeal?
o Manner of filing an appeal in special civil actions and
special proceedings
o E.g. P filed notice on appeal today, and then D files an
MR or MNT the next day, can he do this?
This is allowed because the appeal is only
deemed perfected as to the plaintiff. The
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defendant has a different right compared to the
plaintiffs right to appeal. In this scenario, TC
must not give due course to appeal, but must
first rule upon the MR or MNT of the defendant.
(double check)
What is a notice of appeal?
o Manifestation to the court that you are appealing to a
superior court
Contents of a notice of appeal. Rule 41 Sec 5:
Section 5. Notice of appeal. The notice of appeal shall
indicate the parties to the appeal, specify the judgment or final
order or part thereof appealed from, specify the court to which
the appeal is being taken, and state the material dates showing
the timeliness of the appeal. (4a)
o Bullet points:
Parties
Judgment/final order appealed from
Court to which appeal is taken
Material dates showing timeliness
o Note that you should specify who is appealing e.g.
plaintiff - appellant, defendant appellee
o Notice of Appeal must be served and filed to give him
opportunity to oppose. The appellant may have made
misrepresentations as to timeliness etc.
Read: Elepante v. Madayag (habeas corpus filed after 15 days)
NOTE: you can extend the period for making a record appeal,
but you CANNOT extend the period for taking an appeal
o If multiple appeals, record of appeal is needed, period is
30 days. If you cannot finish the record of appeal within
the period, you can ask for an extension. You must ask
for the extension between the 30 day period.
J. Britanico
Contents of a record on appeal:
o Rule 41 Sec 6
Section 6. Record on appeal; form and contents thereof. The
full names of all the parties to the proceedings shall be stated in
the caption of the record on appeal and it shall include the
judgment or final order from which the appeal is taken and, in
chronological order, copies of only such pleadings, petitions,
motions and all interlocutory orders as are related to the
appealed judgment or final order for the proper understanding
of the issue involved, together with such data as will show that
the appeal was perfected on time. If an issue of fact is to be
raised on appeal, the record on appeal shall include by reference
all the evidence, testimonial and documentary, taken upon the
issue involved. The reference shall specify the documentary
evidence by the exhibit numbers or letters by which it was
identified when admitted or offered at the hearing, and the
testimonial evidence by the names of the corresponding
witnesses. If the whole testimonial and documentary evidence
in the case is to be included, a statement to that effect will be
sufficient without mentioning the names of the witnesses or the
numbers or letters of exhibits. Every record on appeal exceeding
twenty (20) pages must contain a subject index. (6a)
o Basically, everything relevant to that particular issue
that you are appealing.
Example: settlement of the will, issue on grant
of allowance of the will
Record on appeal should contain copy
of the will, testimony of witnesses on
allowance/disallowance, order of court
granting the allowance
Example: appointment of executor
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Record on appeal should contain those Rule 40 Sec 8:

relevant to the issue on the Section 8. Appeal from orders dismissing case without trial; lack
appointment of jurisdiction. If an appeal is taken from an order of the
Example: expropriation, court granted b/c use lower court dismissing the case without a trial on the merits, the
for public use Regional Trial Court may affirm or reverse it, as the case may be.
Record on appeal should include In case of affirmance and the ground of dismissal is lack of
documents showing validity of the jurisdiction over the subject matter, the Regional Trial Court, if it
expropriation. Do NOT include has jurisdiction thereover, shall try the case on the merits as if
documents on valuation. the case was originally filed with it. In case of reversal, the case
Record on appeal must be APPROVED by the court shall be remanded for further proceedings.
o A copy should be furnished on the adverse party so he If the case was tried on the merits by the lower court without
can question it. jurisdiction over the subject matter, the Regional Trial Court on
Parties may have JOINT record on appeal to save time and appeal shall not dismiss the case if it has original jurisdiction
money. thereof, but shall decide the case in accordance with the
When is record on appeal allowed? preceding section, without prejudice to the admission of
o Special proceedings amended pleadings and additional evidence in the interest of
o Expropriation justice. (n)
o Partition 1st paragraph NO trial. if lower had no jurisdiction and RTC has
o Foreclosure real estate mortgage jurisdiction, conduct trial. 2nd paragraph, and lower court has no
jurisdiction, will decide using evidence but can allow amended
Rule 40 pleading

Mode of appeal is an ordinary appeal Rule 42

NOTE: habeas corpus is NOT included in this rule because it is an
exception since it is only when no RTC judges available
Where the first level court decides the case under the doctrine
of delegated jurisdiction, the appeal is to be to the CA. this is an
express provision of BP 129
o E.g. In land registration cases, value not exceed 100k,
appealable to the CA. (this is in the outline on
jurisdiction! MEMORIZE!)
Is this a matter of discretion?
o Yes because only the first appeals are a matter of right.
Rule 43 appeal from decision for quasi-judicial bodies. Also a
petition for review! But different from Rule 43
How do you pursue a petition for review?
o Verified petition
o Pay lawful docket fees

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o Certification of non-forum shopping because this is
discretionary and is an initiatory pleading! (comply w/
Rule 7 parts of a pleading for initatory pleading)
o Within 15 days from notice of the petition
o But this period is extendible for 15 days if there is a
compelling reason
Why are 7 seven copies needed in Section 2?
o Because in the court of appeals there are 3 justices in a
division. If there is a special division of 5 made, youll
have to request for additional copies. This will take time.
of course there should be one copy for the archives.
o In the SC you need 18 copies. But there are 15 justices. 5
members in the division so you should only be required
for 6, but what if it goes to en banc? Youll need extra
copies.
You must attach legible copies of duplicate originals OR certified
true copy, certified by clerk of court of the quasi-judicial bodies
o If not the petition will be dismissed.
NOTE: no transmittal of records unlike in ordinary appeal
(Section 7)
Section 7. Elevation of record. Whenever the Court of
Appeals deems it necessary, it may order the clerk of court of
the Regional Trial Court to elevate the original record of the case
including the oral and documentary evidence within fifteen (15)
days from notice. (n)
NOTE: deems it necessary
What is a comment?
o Rule 42 Section 5
Section 5. Contents of comment. The comment of the
respondent shall be filed in seven (7) legible copies,
accompanied by certified true copies of such material portions
J. Britanico
of the record referred to therein together with other supporting
papers and shall (a) state whether or not he accepts the
statement of matters involved in the petition; (b) point out such
insufficiencies or inaccuracies as he believes exist in petitioner's
statement of matters involved but without repetition; and (c)
state the reasons why the petition should not be given due
course. A copy thereof shall be served on the petitioner. (a)
Note perfection! Also residual jurisdiction of the court in the
interim.
Section 8. Perfection of appeal; effect thereof. (a) Upon the
timely filing of a petition for review and the payment of the
corresponding docket and other lawful fees, the appeal is
deemed perfected as to the petitioner.
The Regional Trial Court loses jurisdiction over the case upon the
perfection of the appeals filed in due time and the expiration of
the time to appeal of the other parties.
However, before the Court of Appeals gives due course to the
petition, the Regional Trial Court may issue orders for the
protection and preservation of the rights of the parties which do
not involve any matter litigated by the appeal, approve
compromises, permit appeals of indigent litigants, order
execution pending appeal in accordance with section 2 of Rule
39, and allow withdrawal of the appeal. (9a, R41)
(b) Except in civil cases decided under the Rule on Summary
Procedure, the appeal shall stay the judgment or final order
unless the Court of Appeals, the law, or these Rules shall provide
otherwise. (a)
Because the provisions says without necessarily giving due
course, how do you know the court gave due course to your
petition?
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o Normally the court issues a resolution stating that
petition is given due course and requiring the parties to
submit memorandum
o But most of the time, you know the petition is given due
course when you receive the decision
o Until you receive the decision, the court has residual
jurisdiction
o When the court that the petition is given due course, it
does not mean that the petitioner won. It means that
the case will be decided on the merits
After this, you go to the SC by certiorari under Rule 45
12.13.10
Cannot just say affirm a toto must state facts on which based
Rule 43
Appeals from quasi-judicial bodies to the CTA
CTA division appeal to CTA en banc
Since quasi-judicial bodies, essentially what are they
performing?
o Administrative bodies performing quasi-judicial
functions, part of the executive branch
In reference to Office of the President and appeals to CA, what
does this refer to?
o These are w/ respect to cases where the admin office
under OP exercises quasi-judicial functions. You appeal
under Rule 43
J. Britanico
o This is DIFFERENT from when President exercises
executive power follow consti w/c provides from
CERTIORARI e.g. validity of executive order
final order or resolution
o the decisions of the admin bodies are final + executory
no provision that says that you appeal from NLRC. So in this
sense, it could be final and executory. But by reason of the
consti, which says that courts can review actions of other
bodies. The remedy in NLRC cases is CERTIORARI under Rule 45.
This is different from petition for review under Rule 43.
Of all the consti commissions, there is one office whose decision
is appealable to CA under Rule 43, this is CSC
o This is because the CSC is makulit b/c they were trying
to supplant the decision of the SC.
What would be the basis of the review of judgment from quasi-
judicial bodies?
o Fact or law or both
What may be raised?
o see Sec 10
Section 10. Due course. If upon the filing of the comment or
such other pleadings or documents as may be required or
allowed by the Court of Appeals or upon the expiration of the
period for the filing thereof, and on the records the Court of
Appeals finds prima facie that the court or agency concerned
has committed errors of fact or law that would warrant reversal
or modification of the award, judgment, final order or resolution
sought to be reviewed, it may give due course to the petition;
otherwise, it shall dismiss the same. The findings of fact of the
court or agency concerned, when supported by substantial
evidence, shall be binding on the Court of Appeals. (n)
Note that prima facie means on its face that there is error in
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terms of fact or law
o As a GR the court will not disturb the findings of facts of
these courts
o This means it should be grave abuse of discretion but
not that falling under Rule 65
o See also Rule 133 Sec 5 Substantial Evidence
o Must show:
grave abuse or
that the decision is NOT supported by
SUBSTANTIAL EVIDENCE
Absent the prima facie showing, the appeal will not prosper
Appeal w/in 15 days from denial, publication or denial MR MNT
Can extend by 15 days but need to pay full docket fee; generally
not extend after except for 15 days most compelling reason
This is different from certiorari b/c no extension allowed
Appeal will not stay the judgment or order unlike petition for
review (Rule 42)
o Sec 12 Rule 43 v. Sec 8b Rule 42
o If its rule 42 appeal from RTC in appellate jurisdiction,
appeal will stay the judgment
o If its rule 43 filing of the petition will NOT stay
judgment, unless CA orders otherwise
o This may be done by availing of provisional remedies,
PRELIMINIARY INJUNCTION or TRO (Rule 58). When you
file petition for review under 43 ask for TRO or
injunction in the prayer so stay the execution of the
judgment
Number of copies are the same.
Take note that the docket fees are paid to the APPELLATE
COURT. In ordinary appeals, pay docket fees to original court,
the CoC is required to submit to appellate court proof of
J. Britanico
payment
Transmittal of records from lower court/ quasi-judicial records is
discretion
Rule 44
How many briefs are required?
o Appellants brief and the appellees brief and reply brief
o There are NO MEMORANDUM (only in petitions for
reviews + rule 45)
In ordinary appeal, there are no changes in title except for
appellee/appellant, assumption that lawyers are the same as in
TC
Sec 3 Rule 44
Section 3. Order of transmittal of record. If the original record
or the record on appeal is not transmitted to the Court of
Appeals within thirty (30) days after the perfection of the
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. (3a, R46)
Read w/ Sec 10 Rule 41 duties of CoC when appealed to CA
o Transmission of record, evidence + transcript of
stenographic notes
o The period w/in which he must transmit
Once records are transmitted to the CA , no mention in Rule
44 and 41.. there are now 3 CAs in the Philippines. CA CDO
(Mindanao) + CA Cebu (visayas) so if youre practicing, make
sure you transmit the records to the appropriate CA
Once the records are complete, the CoC of the CA will notify the
appellant that the records are complete and at their disposal
w/in 45 days receipt of notice file appellants brief
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Section 8. Appellee's brief. Within forty-five (45) days from
receipt of the appellant's brief, the appellee shall file with the
court seven (7) copies of his legibly typewritten, mimeographed
or printed brief, with proof of service of two (2) copies thereof
upon the appellant. (11a, R46)
Appellant: File 7 copies, 2 copies to adverse party
o Reckoning for appellees brief is from RECEIPT OF
APPELLANTs BRIEF. The CA will NOT notify the appellee
b/c the rule says!
o Appellee should file w/in 45 days
o If not do so, court will consider you to have waived
appellees brief so the appellant will win
Reply Brief w/in 20 days. This time the receipt of the appellees
brief is the reckoning point. The period is shorter b/c it will only
cover the things in the appellees brief not covered in appellants
brief
See Rule 46 Sec 1 + 2
Section 1. Title of cases. In all cases originally filed in the
Court of Appeals, the party instituting the action shall be called
the petitioner and the opposing party the respondent. (1a)
Section 2. To what actions applicable. This Rule shall apply to
original actions for certiorari, prohibition, mandamus and quo
warranto.
Except as otherwise provided, the actions for annulment of
judgment shall be governed by Rule 47, for certiorari,
prohibition and mandamus by Rule 65, and for quo warranto by
Rule 66. (n)
Sec 10 Rule 44
Section 10. Time of filing memoranda in special cases. In
certiorari, prohibition, mandamus, quo warranto and habeas
corpus cases, the parties shall file in lieu of briefs, their
J. Britanico
respective memoranda within a non-extendible period of thirty
(30) days from receipt of the notice issued by the clerk that all
the evidence, oral and documentary, is already attached to the
record. (13a, R46)
The failure of the appellant to file his memorandum within the
period therefor may be a ground for dismissal of the appeal. (n)
Gesmundo: Sec 10 Rule 44 should be placed in Sec 46. Sec 10
refers to original actions in the CA but not in ordinary appeals
Sec 11 Rule 43
Section 11. Several appellants or appellees or several counsel
for each party. Where there are several appellants or
appellees, each counsel representing one or more but not all of
them shall be served with only one copy of the briefs. When
several counsel represent one appellant or appellee, copies of
the brief may be served upon any of them. (14a, R46)
When there are several appellants/appellees, one counsel
represent all, only give one notice. If several counsel, copies may
be served on any of them
Sec 12 Rule 43
Rule 15 motions must be set for hearing. This requirement
DOES NOT APPLY IN APPEALLANT COURTS. This includes CA + SC.
For example, you file motion for extension of time.. there is no
motion to set this for hearing in the appellate courts b/c it is the
responsibility of the division clerk of court to put in the agenda.
Whether you set it for motion or not, division clerk of court will
put it in the agenda, including motion for extension of time
Change of theory: when case is tried upon theory, cannot be
permitted to change otherwise would be unfair to the adverse
party
o EXCEPT: if the adverse party can answer the new theory
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w/o the presentation of new evidence (d) Unauthorized alterations, omissions or additions in the
Contents of appellants brief approved record on appeal as provided in section 4 of Rule 44;
o Subject index (e) Failure of the appellant to serve and file the required number
o Assignment of errors of copies of his brief or memorandum within the time provided
o Statement of the case by these Rules;
o Statement of the facts (f) Absence of specific assignment of errors in the appellant's
o Clear and concise statement of issues fact/law brief, or of page references to the record as required in section
o Argument 13, paragraphs (a), (c), (d) and (f) of Rule 44;
o Relief (g) Failure of the appellant to take the necessary steps for the
o Copy of the judgment correction or completion of the record within the time limited
Contents of appellees brief by the court in its order;
o Subject index (h) Failure of the appellant to appear at the preliminary
conference under Rule 48 or to comply with orders, circulars, or
o Counter-statement of facts
directives of the court without justifiable cause; and
o Arguments
(i) The fact that the order or judgment appealed from is not
Sec 1 Rule 50 (d)
appealable. (1a)
o Unauthorized alterations, omissions, or additions in the
o NOTE: these grounds are when the court can dismiss
approved record on appeal as provided in Sec 4 of Rule
MOTU PROPIO
44
This is also in Rule 41 Sec 1: no appeal in a b c d e f g. the proper
remedy is certiorari
Rule 50
Take the necessary steps to complete the record. If there is a
Sec 1
transcript of records of stenographic notes, obtain these it can
Section 1. Grounds for dismissal of appeal. An appeal may be
be submitted.
dismissed by the Court of Appeals, on its own motion or on that
Sec 2:
of the appellee, on the following grounds:
Section 2. Dismissal of improper appeal to the Court of Appeals.
(a) Failure of the record on appeal to show on its face that the
An appeal under Rule 41 taken from the Regional Trial Court
appeal was taken within the period fixed by these Rules;
to the Court of Appeals raising only questions of law shall be
(b) Failure to file the notice of appeal or the record on appeal
dismissed, issues purely of law not being reviewable by said
within the period prescribed by these Rules;
court. Similarly, an appeal by notice of appeal instead of by
(c) Failure of the appellant to pay the docket and other lawful
petition for review from the appellate judgment of a Regional
fees as provided in section 5, Rule 40 and section 4 of Rule 41;
Trial Court shall be dismissed. (n)
(Bar Matter No. 803, 17 February 1998)
An appeal erroneously taken to the Court of Appeals shall not

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be transferred to the appropriate court but shall be dismissed
outright. (3a)
If you chose the wrong mode of appeal, to the wrong court, the
appeal will be dismissed and this will not toll the period of the
running of final judgment. The appellate court cannot refer the
case to the proper court.
Note Sec 3 withdrawal of appeal
Rule 51
(for this section, he mostly asked the person reciting to read the
codal)
Sec 1 Rule 51
Ordinary Appeals remember BRIEFS
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) Where such a 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.
In original actions and petitions for review petition,
comment, sometimes reply
1) Where no 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 main 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. (n)
J. Britanico
Petition for review: petitions are basically petition, comment,
sometimes reply. Thereafter memorandum. After this the case is
deemed ready for judgment or resolution.
It is prohibited to file pleadings in the SC when not required. If
you want to file pleading, need leave of court. Rejoinder is
prohibited in the SC.
When a case is appealed to the CA, it will be raffled once to a
division. The purpose is for completion of records. This will
signal the filing of briefs, notice of briefs. When the briefs are
completed, the case will be raffled again for decision.
Unlike in petitions, there is NO SECOND RAFFLE. The court that
receives the petition makes the decision.
In the CA cannot render adjudication of cases EN BANC. This
is also true for Sandiganbayan. But in CTA and SC there is en
banc.
SC: Initially there are 3 Justices, if one dissents, borrow 2 more
Justices and make it a special division. The majority would then
be at least 3.
Sec 6: from the appellate court, the CA will only
abandon/modify the judgment of the TC, if the error in the
judgment of the TC is one that substantially affects the rights of
the parties (harmless error rule)
Sec 7:
o Remember the discussion on parties
Sec 8: this is a variant on the change of theory on appeal. This
does NOT apply in criminal cases. This is because in criminal
cases, the ENTIRE case is open for review and the appellate
court can consider matters not raised previously.
Sec 10 will come into play ONLY if no further appeal made to SC
under Rule 45, but if there is MNT or MR etc the rule will not
apply
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o Rule 39 Sec 1 2nd paragraph:
Section 1. Execution upon judgments or final orders.
Execution shall issue as a matter of right, or 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. (1a)
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 obligee, 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, when
the interest of justice so requires, direct the court of origin
to issue the writ of execution. (n)
o Entry + finality only if no further appeals by parties
Note Sec 11 last paragraph in some cases, judgment may be
executed notwithstanding pending appeal. In this case it issued
directly by Court of Appeals. Unlike when there is a point in
time when the records are not transmitted to the CA, TC still has
residual jurisdiction.
Rule 52 + 53
Nothing new, we took this up before w/ Rule 37
The periods are the same as w/ Rule 45, 15 days.
No second MR
Sec 4 the filing of the MR stays the execution of judgment
Sec 1 Rule 53 duration of the period: it depends on when appeal
is deemed perfected!
Section 1. Period for filing; ground. At any time after the
J. Britanico
appeal from the lower court has been perfected and before the
Court of Appeals loses jurisdiction over the case, a party may file
a motion for a new trial on the ground of newly discovered
evidence which could not have been discovered prior to the trial
in the court below by the exercise of due diligence and which is
of such a character as would probably change the result. The
motion shall be accompanied by affidavits showing the facts
constituting the grounds therefor and the newly discovered
evidence. (1a)
o The first period is 15 days. But you can file second MNT
if the ground is MNT.
o BUT In the CA, the period may e different. The law
states w/in period of perfecting the appeal up to time
loses jurisdiction. One may be longer than the other.
Deemed perfected after lapse of period to pursue an
appeal! Under Rule 37 its only w/in 15 day period.
o The ground is only newly discovered evidence. There is
NO FAME. This is because the remedy would be Rule 38
(petition for relief), or if there is fraud it would rule 47
(annulment of judgment)
Under rule 53, the court itself must receive newly discovered
evidence
Sec 4 Rule 53.. can ask for affidavits, if not satisfied, have affiant
presented in the court
Rule 54
All the rules on internal business are in the internal rules of the
CA. the internal rules show raffles, resignation etc etc
Rule 49
Now hearings in the SC are w/ respect to habeas data, writ of
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amparo etc. so this rule isnt really used anymore
Oral argument based on where there is lack of clarity in
pleadings but this is usually threshed out in the CA
Rule 48
This is the same as pre-trial in a lower court
Seldom practiced rule
There is preliminary conference in the CA
Rule 46 will be taken up w/ SCA
12.14.10
Rule 45
Appeal by certiorari
o Also known as petition for review on certiorari. Do not
confuse w/ certiorari under rule 65 original special
civil action
Although rule 45 provided in Rule 41 is a mode of appeal, what
makes it diff from an ordinary appeal?
o Its a matter of discretion but also.. it involves ONLY
QUESTIONS OF LAW
o Hence it is also known as the writ of error
This is because it is filed w/ the SC, and the SC is NOT a trier of
fact. It is a court of last resort, whose main function is to
interpret the law. The factual issues are left to lower courts
When the appeal is by certiorari, the SC will not disturb the
factual findings of the lower courts
The ONLY exception is in criminal cases, ordinary appeal b/c of
People v. Mateo, no more automatic appeal to the SC (appeal to
J. Britanico
CA, CA renders judgment but does not enter and certify to the
SC). Note amendment in 122.
Judgment by the SB, penalty is less than death, the appeal to
the SC is by Rule 45
Conviction by TC appeal to SC by Rule 45
Question of fact v. question of law
o Law facts are no longer in dispute, but the question is
how to apply law to given facts
o Fact question is to the truth/falsity of the facts, the
SC should not review
E.g. w/n there is preponderance of evidence.
You are asking the court to weigh sufficiency of
evidence. Question of fact.
Rule: factual findings are binding on the SC
o EXCEPTIONS: (SEE RULE 3 INTERNAL RULES OF SC)
memorize daw
CA @ variance w/ the TC
Absurd or impossible
Misapprehension of facts by the TC
There is GAD in the appreciation of facts
Conclusion a finding grounded entirely on
speculation, surmises, conjectures
CA in making finding went beyond the issues of
the case
w/o citation of specific evidence on which they
are based
facts in petition as well as in main and reply
briefs not disputed by the respondents
facts of CA is premised on the supposed
absence of evidence and is contracted by the
evidence on record
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When may you file a petition for review under Rule 45?
o w/in 15 days from notice of the judgment by the CA
o service may be by personal service/registered mail,
either way, reckon from date of receipt
is this period extendible?
o YES. You can file a motion for extension to file petition
for review w/in the 15 day period. cannot extend
something that has already attached. In practice, also
pay docket + attach copy of decision you want to appeal
from. Also, furnish adverse copy of motion to extend
time so they dont file motion to execute judgment.
o Present rules: filing for petition for review + certiorari
STAYS the execution of judgment. SC now issues STATUS
QUO ORDER. (different from TRO/injunction). This
retroacts to the time of the FILING OF THE PETITION. In
other words, if there was partial payment, under a
status quo order this should be returned, unlike in the
TRO. Also, a status quo order has no expiry date. Unlike
a TRO which has a lifetime of 20 days. No action shall
be taken until further action by the SC they can put
this in the status quo order
18 legible copies should be filed
o Extra copies b/c there is no distinction btwn division and
en banc cases. Instead of requiring parties to file
pleadings again
Contents:
o Full name of the appealing party same as in original
action
o Do NOT implead the court that rendered the judgment
This is different from Rule 65
J. Britanico
Because it is the responsibility of the
respondent to ---???
NOTE: in 65, you need a TRO, so you need the
court to be a respondent so the TRO can be
directed at the court to direct that court to issue
the TRO. This is different from R45 b/c there is
no need for a TRO so the court doesnt need to
be impleaded
o Dates: (MATERIAL DATE RULE)
Date filing MNT/MR
Date of denial MNT/MR
Date of receipt of judgment/final
order/resolution
o Concise statement of matters + reasons and arguments
relied on for the allowance of the petition
o Clearly legible duplicate original or certified true copy of
the judgment/order/resolution
Should be certified by the CoC. (if by CSC, it
should be the CoC of the CSC, if the COMELEC,
the CoC of the COMELEC)
o Sworn certification against forum shopping
This is basically a petition. You need this is
initiatory pleading + petitions.
When may it be denied?
o Yes, may be done motu propio or on motion of
respondent.
Rule 56, 5: Grounds for dismissal of appeal
(petition for review on certiorari is included)
Rule 45, 5: Dismissal or denial of petition
Both are grounds for the dismissal and both
may be done motu propio by the Court
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What may the petitioner raise as grounds for the appeal?
o Rule 45, 6 (only 2 grounds)
Section 6. Review 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 thereof. The
following, while neither controlling nor fully measuring the
court's discretion, indicate the character of the reasons which
will be considered:
(a) When the court a quo has decided a question of substance,
not theretofore determined by the Supreme Court, or has
decided it in a way probably not in accord with law or with the
applicable decisions of the Supreme Court; or
(b) 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
Court a quo refers to the CA
In R 45 Sec 6 a)
when the petition raises a NOVEL issues not decided
before by the SC
when the Court a quo has DEVIATED from the rulings/law
of the SC
In R 45 Sec 6 b)
did not follow the procedure set forth
e.g. no decision, no trial, judge just said after pre-
trial Ill make a decision! CA said.. TAMA!
Is it enough that you just recite these grounds
o Must show specific circumstances/situations where the
ground(s) was/were committed. Its not sufficient to
allege. Must show in your petition the facts as to when
the grounds were committed.
J. Britanico
Aside from the basic pleadings, what may be required?
o Briefs + memorandum
NOTE WHEN MEMORANDUM NOT REQUIRED ordinary
appeal. b/c what is required is BRIEFS
What happens if the petition is given due course?
o The SC may allow the filing of memoranda
Section 8. Due course; elevation of records. If the petition is
given due course, the Supreme Court may require the elevation
of the complete record of the case or specified parts thereof
within fifteen (15) days from notice. (2a)
READ:
Laguna mets v.
Dongdong v. SB
Rule 39
GR No 55076 who may redeem properties
When judgment is final + executory vary depending on w/n
appeal was pursued.
Execution: process provided by law for the enforcement of a
final judgment. Fruit of litigation.
Purpose of execution is to enforce the judgment so that there
can be satisfaction
The last part of a civil action is a proclusion of claim and
proclusion of issues res judicata!
Section 47. Effect of judgments or final orders. The effect of a
judgment or final order rendered by a court of the Philippines,
having jurisdiction to pronounce the judgment or final order,
may be as follows:
(a) In case of a judgment or final order against a specific thing,
or in respect to the probate of a will, or the administration of
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the estate of a deceased person, or in respect to the personal,
political, or legal condition or status of a particular person or his
relationship to another, the judgment or final order is conclusive
upon the title to the thing, the will or administration or the
condition, status or relationship of the person, however, the
probate of a will or granting of letters of administration shall
only be prima facie evidence of the death of the testator or
intestate;
(b) In other cases, the judgment or final order is, with respect to
the matter directly adjudged or as to any other matter that
could have been missed in relation thereto, conclusive between
the parties and their successors in interest, by title subsequent
to the commencement of the action or special proceeding,
litigating for the same thing and under the same title and in the
same capacity; and
(c) In any other litigation between the same parties or their
successors in interest, that only is deemed to have been
adjudged in a former judgment or final order which appears
upon its face to have been so adjudged, or which was actually
and necessarily included therein or necessary thereto. (49a)
Execution judgment/final order:
o Kinds:
As a matter of right (ministerial)
Discretionary
Sec 1 pertains to execution as a matter of right. The court has
no choice but to execute. There should be a motion made by the
party. There should not be any appeal taken.
Judgment final:
o Judgment by TC, and no one appeals
o But in Sec 1 R 39, the situation contemplated is that
which is after the lapse of the reglementary period to
J. Britanico
file an appeal and no appeal is file and no MR etc, the
judgment becomes final and executory by operation of
law
BUT you still need to file a MOTION for
execution
nd
Sec 1, 2 pgrph if appeal duly perfected and finally resolved.
o At what stage is the appeal perfected? Depends on what
extent the appeal was taken by the aggrieved party. If
the party was happy after the CA and did not file under
Rule 45, judgment is already final since the party opted
not to file a further appeal under Rule 45
Case may start at the first level court! Can appeal to RTC, can
appeal to CA.. it depends on what point in time the appeal is
FINALLY RESOLVED. When the appeal is finally resolved by the
appellate court (be it CA or SC) it can be subject of a writ of
execution
NOTE: the motion for issuance for writ of execution is filed in
the court of origin NOT in the appellate court w/c final resolved
the appeal
Experience has shown before you can ask for writ of execution,
appellate court must send back to the court of origin the records
of the case! This is because during appeal, the entire records are
transmitted. This is especially true in cases of record on appeal.
NOTE: R 45 doesnt require that all the records be transmitted to
the SC. BUT the SC may in its discretion require the transmission
of the entire record. Once the judgment is rendered by the CA
and it has become final and executory, meaning no appeal
taken, CA transmit to court of origin. If SC is the final court, from
SC to CA, CA to the court of origin. The SC cannot transmit
directly to the court of origin. This transmittal of records caused
undue delay.. as such, the PRESENT RULE is:
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o You can file on motion (Sec 1 2nd pgrph R 39)
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 obligee, 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, when
the interest of justice so requires, direct the court of origin to
issue the writ of execution. (n)
The reason it is directed to the court of origin is because there is
no sheriff in the SC or CA.
Appellate court may direct the court of origin to issue the writ of
execution on the premise that judgment final + executory
Sec 2: Discretionary execution
o GR: cannot file execution until judgment final. This
section is an exception to the GR
o There is final judgment but not yet executory
o Instances:
Must consider when the motion for execution is
FILED, because this motion can be filed in the
court of origin, or in the appellate court.
What is important is that there should be a
good reason
What is good reason?
o E.g. Rule 70 Sec 19
o Insolvency of judgment debtor
o Wastage of assets
o Old age and the person is dying
Remember: appeal perfected upon the transmittal of the
records to the appellate court
J. Britanico
o The rule says appellate court because it may vary at
what stage you ask for execution. Again, it can be after
the CA or after the SC. Note: you can skip the CA and
raise pure questions of law and go directly the SC. It
depends on the mode of the appeal taken.
NOTE: there should be a hearing because this is essentially a
litigated motion. Are you entitled to execution pending final
judgment
Dont forget Sec 2 paragraph b, in relation to 31 consolidation +
severance
Sec 3: Discretionary Execution
o Adverse party may prevent by putting up bond
o Supersedeas bond required! designed to supersede
the order
o What is a bond?
Filed in court to guarantee satifsfaction
Sec 4: Judgments not stayed by appeal
o Without motion, cannot prevent its execution. It must
be satisfied! This is the exception to the general rule
that appeal stays execution
o Injunction
o Receivership
o Accounting
o Support
o Forcible entry/unlawful detainer
12.15.10
When can a writ of execution be quashed?
o Based on dormant judgment
o Judgment novated
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o Writ of execution varies judgment
o Change in the situation of the parties making execution
inequitable/unjust
o Enforced against property exempt from execution
o Controversy never submitted to the judgment of the
court
o When the terms of the judgment are not clear enough
and there remains room for interpretation
o Improvidently issued
o Defective in substance, issued against the wrong party,
judgment debt paid or satisfied, writ issued w/o
authority
o Petition from relief from judgment issued Rule 38
o Annulment of Judgment Rule 47
Sec 5: Effect of reversal of executed judgment
o Remedies if judgment reversed/annulled wholly or
partially
Restitution: bring back to how it was before
Reparation: return value plus damages, or
income if any
Sec 6: execution by motion or by judgment
o How you execute a judgment w/in the first 5 years from
date of entry
Motion within 5 years from date of entry
Action for revival of judgment after 5 years but
before statute of limitations (10 years)
Reason: protect judgment creditors
from unscrupulous debtors who hide
property etc
Limitation: can only enforce what was in
the original judgment since it is only a
J. Britanico
revival
Where to file revival of judgment?
o Subject to Rule 4, it depends on the type of action that
you are filing
o Enfante v. Aran Builders 531 SCRA 123
Can you question the merits of the judgment?
o As a rule, you cannot attack the judgment but you can
attack it in such a way so that it cannot be executed
Rule 132 Sec 29
Any judicial record may be impeached by evidence of
a) want of jurisdiction in the court or judicial officer
b) collusion between the parties or
c) fraud in the part offering the record, in respect to
the proceeding
o Jurisdiction can always be questioned!
How many times can you revive a judgment?
o First revival: 5 years
o Can revive the one above! But it has to be filed within
the 10 year period in the statute of limitations
o After this prescription has set in
Remember that Sec 6 is reckoned from the date of entry (as in
Rule 36 which states that the date of finality is deemed the date
of entry)
Court will only issue writ of execution once
o If still not executed, you can ask for ALIAS writ of
execution
When the reason for non-payment is at behest of debtor, the
period should be suspended. This is because delay is not
attributable to the judgment creditor. The delay will not affect
the effectivity of the writ of execution.
?? Cire facias??? come to court and show why it should not
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be issued
Judgment on a compromise is immediately executory, when
judgment based thereon is rendered, that is the reckoning date
How do you compute the 5 year period?
o Using the civil code. Each year is 365 days. 365 x 5
Sec 7: Execution in case of death of parties
o In Rule 3, party must be substituted
This is because once client dies, attorney client
relationship ceases to exist. The only thing the
attorney can do is inform the court of
substitution
o Paragraph a) judgment obligee dies, his
executor/administrator/successor in interest can
execute the judgment
o Rule 3 Sec 16
Filing a petition for settlement of the estate of
the adverse party
This is the only time when a party w/ an
INCHOATE action can enforce the judgment
In Special Proceedings, this may only be done by
interested parties. Heirs or creditors
o Paligte v. Recos? successors in interest for purposes
of exercising ___ sold on writ of execution
o Paragraph b) judgment obligor dies, the first question is,
what kind of action?
Action and contractual money claims
Rule 3 Sec 20
Section 20. Action and contractual money
claims. When the action is for recovery of
money arising from contract, express or
implied, and the defendant dies before
J. Britanico
entry of final judgment in the court in which
the action was pending at the time of such
death, it shall not be dismissed but shall
instead be allowed to continue until entry of
final judgment. A favorable judgment
obtained by the plaintiff therein shall be
enforced in the manner especially provided
in these Rules for prosecuting claims against
the estate of a deceased person. (21a)
o do not ask for writ of execution,
file a claim against the estate,
Rule 86 Sec 5 and Rule 87 Sec 1
if it is an action for recovery of
real/personal property, the writ of
execution will be enforced against the
administrator/executor of the estate
action for enforcement of a lien e.g.
foreclosure of mortgage
o Paragraph c)
Read w/ Rule 39 Sec 9 b (illustration of levy)
(b) Satisfaction by levy. If the judgment
obligor cannot pay all or part of the obligation in
cash, certified bank check or other mode of
payment acceptable to the judgment obligee,
the officer shall levy upon the properties of the
judgment obligor of every kind and nature
whatsoever which may be disposed, of for value
and not otherwise exempt from execution
giving the latter the option to immediately
choose which property or part thereof may be
levied upon, sufficient to satisfy the judgment. If
the judgment obligor does not exercise the
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option, the officer shall first levy on the personal
properties, if any, and then on the real
properties if the personal properties are
insufficient to answer for the judgment.
If there is already a levy, you can sell the
property on the execution sale. But if there is
execution but no levy, beyond the 5 years, you
cannot enforce the writ of execution. There
must be a writ of execution and levy before the
5 year period
Sec 8:
Section 8. Issuance, form and contents of a writ of execution.
The writ of execution shall:
(1) issue in the name of the Republic of the Philippines from the
court which granted the motion;
o Because it is the sheriff who executes it, and he is the
representative of the state. Since it is a coercive writ, it
should be in the name of the Philippines.
(2) state the name of the court, the case number and title, the
dispositive part of the subject judgment or order; and
o So there is a reference to the specific case
o Because this is part that will be enforced. Verbatim to
prevent confusion and abuse on the part of the sheriff.
3) require the sheriff or other proper officer to whom it is
directed to enforce the writ according to its terms, in the
manner hereinafter provided:
(a) If the execution be against the property of the judgment
obligor, to satisfy the judgment, with interest, out of the real or
personal property of such judgment obligor;
* judgment is against the property, must specify to allow for full
satisfaction of the judgment
J. Britanico
(b) If it be against real or personal property in the hands of
personal representatives, heirs, devisees, legatees, tenants, or
trustees of the judgment obligor, to satisfy the judgment, with
interest, out of such property;
* possible that not in possession of the specific property, may be
in the possession of someone else
(c) If it be for the sale of real or personal property to sell such
property describing it, and apply the proceeds in conformity
with the judgment, the material parts of which shall be recited
in the writ of execution;
* example Rule 69 partition, if you cannot divide the property,
court may order the sale
(d) If it be for the delivery of the possession of real or personal
property, to deliver the possession of the same, describing it, to
the party entitled thereto, and to satisfy any costs, damages,
rents, or profits covered by the judgment out of the personal
property of the person against whom it was rendered, and if
sufficient personal property cannot be found, then out of the
real property; and
*example Rule 70 forcible entry or unlawful detainer. Also
Replevin Rule 60 for the delivery of real or personal property
* take note of the order: sell first personal property, if not
enough, go to real property
(e) In all cases, the writ of execution shall specifically state the
amount of the interest, costs, damages, rents, or profits due as
of the date of the issuance of the writ, aside from the principal
obligation under the judgment. For this purpose, the motion for
execution shall specify the amounts of the foregoing reliefs
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sought by the movant.(8a)
* there should already be a computation on how much should
be satisfied. This is to prevent the sheriff from exercising
discretion
When may writ of possession be issued?
o Extrajudicial foreclosure of REM
o Judicial foreclosure of REM
o Ejectment/unlawful detainer
o Land registration
If they refuse to comply w/ writ of possession, the remedy is
NOT contempt. If it is a structure, then you can file for
demolition but there must be a hearing. If it is for people you
can ask for assistance from the court
Remedy from the denial writ of execution?
o Appeal from a denial of writ of execution
Remedy from the grant of the writ of execution?
How do you execute a judgment for sum of money?
o Demand payment!
o In what manner: cash, certified bank check (sufficient
funds), any other form acceptable (e.g. treasury bonds)
o Also pay all the fees.. sheriffs fees etc, interests, charges
What if the judgment obligee or his authorized representative is
not present to receive payment?
o Deliver everything to the executing sheriff. The sheriff
will turn over everything to the CoC. If not, deposit w/
depositary bank of locality. Land Bank, BSP, Veterans,
Philippine Postal Bank
o Check may not be made payable to the sheriff
Satisfaction by levy
o When do you levy? When an action is for sum of money
and there is deficiency in whole/partial payment, so you
J. Britanico
levy on the property of the judgment obligor. It may be
personal/real property. It may be tangible or non-
tangible.
o What properties? Properties of every kind and nature
can be levied, that may be disposed of for value. But
excluding properties exempt from execution
o Whats the order of disposition on levy? You can ask the
judgment obligor what his preference it
o Remember it must be levied upon for the sale to be
valid
Garnishment of Debts and Credit:
o Garnishment of debt:
o Garnishment of credits:
Examples of financial interest: dividends due on the stock
How do you make the levy?
o Serve notice upon the corporate secretary, who will
note in books
Execution of judgment for specific act:
o Not the same as specific performance
In Section 10, even if the person ties himself to the house, seek
assitance from the court! Not contempt!
10b: go back to court and ask court for special writ of
demolition. The person is a builder in bad faith and is not
entitled to any compensation. If not, get writ of demolition
10c: example replevin. Take back the car! If there are damages
also have to satisfy (E.g. rent for use of vehicle)
11: Execution of special judgment:
o e.g. hereby ordered to issue a permit blah blah. If not
obey, cite in contempt
12: writ of levy is important, judgment obligee takes property
subject to all the existing liens existing at the time of levy. If
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same property subject of sale and subject of REM, the judgment wrong person to redeem. May go into hands of strangers and
obligee takes the property subject to lien. Important when cannot be recovered
obligor insolvent b/c then must apply preference of credits note, right of redemption transferrable but not if for judgment
13: MEMORIZE property exempt from execution. exempt b/c of of money
public policy can you redeem piecemeal? Yes!
real prop depends value Who may use the property during period of redemption?
need notice judg obligor chance to pay Judgment obligor, even the rights to the rents
16 important!!! Subject to execution claimed by 3 rd person After period of redemption expired, purchaser has full title over
not exclusive the property
o 130 days to bring action to vindicate right Revival of judgment 6 v. rule 34
note sec 21: premise that no 3rd party claimant o 6: independent, 5 years lapse, judgment creditor himself
notice of publication of sale on first sale or assignee, reason for filing is because of lapse 5 years
brevi manu 23, not capable of delivery deliver by symbolic o 34: same action, judgment executed, party is not
delivery judgment creditor but highest bidder, reason for filing is
example: machinery attached to an immovable + certificate of deprived of property
sale
25 NOTE D this is different from mortgage w/c is 12 months,
this is 1 year w/c is 365 days
o this sale is merely provisional b/c purchaser has no right
until there is a cerificate of sale saying he is the winning
bidder
o redemption is in the nature of a property right, you can
sell it
who may redeem?
o Redemptioner creditor having lien by virtue of
attachment subsequent to lien under which property
was sold
Recall date of levy important b/c subject to all
existing liens
o Successors-in-interest??
30 proof required of redemptioner. So they dont allow the

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