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10 2005 CENTRALIZED BAR OPERATIONS

CIVIL PROCEDURE
RULE 1
GENERAL PROVISIONS (B)
ACTION IN ACTION IN ACTION
Statutes regulating the procedure of REM PERSONAM QUASI IN REM
courts will be construed as applicable to
actions pending and undetermined at the Directed Directed Directed
time of their passage so long as vested against the against against
rights will not be impaired. thing itself particular particular
persons persons
Under the 1987 Constitution, the rule-
Judgment is Judgment is Judgment
making power of the Supreme Court has binding on the binding only binding upon
the following limitations: whole world upon parties particular
1. shall provide a simplified and impleaded or persons, but
inexpensive procedure for the their the real motive
speedy disposition of cases; successors in is to deal with
2. Uniform for all courts of the interest real property
same grade, and or to subject
3. Shall not diminish, increase or said property
modify substantive rights (Art. to certain
claims.
VIII Sec. 5[5]).
Ex. Land Ex. action to Ex. Unlawful
registration recover detainer or
Section 3. Cases governed. case; probate damages; forcible entry;
ACTION CLAIM proceedings action for judicial
for allowance breach of foreclosure of
An ordinary suit in a A right possessed by of a will. contract mortgage.
court of justice one against another

One party prosecutes The moment said


another for the claim is filed before a The distinction is important in
enforcement or court, the claim is determining the EFFECT of the
protection of a right converted into an judgment.
or the prevention or action or suit.
redress of a wrong. (C)
REAL PERSONAL MIXED
CLASSIFICATION OF ACTIONS. ACTION ACTION ACTION
(A) Ownership or personal property is Both real and
ORDINARY CIVIL SPECIAL CIVIL possession of sought to be personal
ACTION ACTION real property is recovered or where properties are
involved damages for breach involved
of contract are
Governed by ordinary Also governed by sought
rules ordinary rules but Founded on Founded on privity Founded on
SUBJECT to specific privity of of contract both
rules prescribed (Rules estate
62 to 71). ex. Accion Ex. Action for a sum ex. Accion
reinvidicatoria of money publiciana
Formal demand of Special features not with a claim
for damages
one’s legal rights in a found in ordinary civil
court of justice in the actions
manner prescribed by The distinction is significant in the
the court or by the determination of venue. With respect to
law mixed actions, the rules on venue of real
actions shall govern, i.e., where the real
property is located.

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT


CHAIRPERSONS
Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda
Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-
EDP), Anna Margarita Eres (VC-Logistics) Jonathan
Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law),
Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial
Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)
11 2005 CENTRALIZED BAR OPERATIONS

(D)
LOCAL ACTION TRANSITORY Section 6. Construction.
ACTION
General Rule: Liberal construction .
Must be brought in a Generally, must be Exceptions:
particular place, in brought where the a. reglementary periods
the absence of an party resides b. rule on forum shopping
agreement to the regardless of where
contrary the cause of action
arose
RULE 2
Ex. Action to recover Ex. Action to recover CAUSE OF ACTION
real property sum of money
Section 2. Cause of Action, defined.
Section 5. Commencement of action. Essential elements of cause of action
1. Existence of a legal right of the
An action is commenced by: plaintiff;
1. filing of the complaint (the date of 2. Correlative legal duty of the
the filing determines whether or not defendant to respect one’s right;
the action has already prescribed); 3. Act or omission of the defendant
and in violation of the plaintiff’s
2. payment of the requisite docket fees legal right; and
(determined on the basis of the 4. Compliance with a condition
amount of the claim including the precedent.
damages indicated in body or the
prayer of the pleading) CAUSE OF ACTION RIGHT OF ACTION
delict or wrongful act remedial right or right
It is not simply the filing of the or omission committed to relief granted by
by the defendant in law to a party to
complaint or the appropriate initiatory
violation of the institute an action
pleading but also the payment of the primary rights of the against a person who
prescribed docket fee that vests a trial plaintiff has committed a delict
court with jurisdiction over the subject or wrong against him
matter or nature of the action. The reason for the the remedy or means
action afforded or the
The court may allow the payment of the consequent relief
deficient docket fee within a reasonable the formal statement right that is given –
period but not beyond the applicable of alleged facts the right to litigate
prescriptive or reglementary period. because of the
occurrence of the
alleged facts
An action can be commenced by filing
Determined by facts determined by
the complaint by registered mail. In as alleged in the substantive law
which case, it is the date of mailing that complaint and not the
is considered as the date of filing, and prayer therein
not the date of the receipt thereof by
the clerk of court. RELIEF REMEDY SUBJECT
MATTER
The date of the filing of an amended the redress, the the thing,
complaint joining additional defendant is protection, procedure or wrongful act,
the date of the commencement of the award or type of contract or
action with regard to such additional coercive action which property which
defendant. measure which may be is

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT


CHAIRPERSONS
Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda
Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-
EDP), Anna Margarita Eres (VC-Logistics) Jonathan
Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law),
Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial
Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)
San Beda College of Law
12

MEMORY AID IN REMEDIAL LAW

the breach total,” hence there can only


be one action for damages (Blossom &
Co. vs. Manila Gas Corp., 55 Phil. 226)

the plaintiff availed of by directly Section 5. Joinder of causes of action.


prays the court the plaintiff involved in the Rule in this section is PERMISSIVE and the
to render in his as the means action, plaintiff can always file a separate
favor as a to obtain the concerning
action for each cause of action.
consequence of desired which the
the delict relief wrong has
committed by been done and Par. (a): The joinder of causes of action
the defendant with respect may involve the same or different
to which the parties. If the joinder involved different
controversy parties, it must comply with Sec. 6 Rule
has arisen. 3, thus, there must be a question of fact
or law common to both parties joined
Section 4. Splitting a single cause of arising out of the same or series of
action, effect of. transactions.

SPLITTING OF CAUSE OF ACTION – is the Par. (b) requires that: only causes of
practice of dividing one cause of action action in ordinary civil actions may be
into different parts and making each joined, obviously because they are
part subject of a separate complaint. subject to the same rules.

Applies NOT only to complaints but also Par. (c) As long as one cause of action
to counterclaims and crossclaims. falls within the jurisdiction of the RTC,
the case can be filed there even if the
MTC has jurisdiction over the others.
Remedy against splitting a single cause
of action: Pars. (d) embodies the TOTALITY RULE
A. Motion to dismiss on the ground of: Section 33 BP129, as amended by RA
 Litis pendentia, if the first 7691 - Where there are several claims or
complaint is still pending (Rule causes of actions between the same or
16, Sec. 1[e]); or different parties, embodied in the same
 Res judicata, if any of the complaint, the amount of the demand
complaints is terminated by final shall be the totality of the claims in all
judgment (Rule 16, Sec. 1[f]) the causes of actions, irrespective of
whether the causes of action arose out
B. An answer alleging either of the of the same or different transactions.
above-cited grounds as affirmative
defense (Rule 16, Sec. 6) SPLITTING OF JOINDER OF
CAUSE OF ACTION CAUSES OF ACTION
General Rule on Divisible Contract
A contract to do several things at several There is a single cause Contemplates several
times is divisible, and judgment for a of action causes of action
single breach of a continuing contract is
PROHIBITED. Causes ENCOURAGED.
not a bar to a suit for a subsequent
multiplicity of suits Minimizes multiplicity
breach. and double vexation of suits and
on the part of the inconvenience on the
Doctrine of Anticipatory Breach defendant parties
Even if the contract is divisible in its
performance and the future periodic
deliveries are not yet due, if the obligor Section 6. Misjoinder of causes of
has already manifested his refusal to action.
comply with his future periodic Not a ground for dismissal of an action. A
obligations, “the contract is entire and misjoined cause of action may be

REMEDIAL LAW COMMITTEE


 CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan,
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
13 2005 CENTRALIZED BAR OPERATIONS

severed and proceeded with separately. the party entitled to the avails of the
suit.
There is no sanction against non-joinder
of separate causes of action since a
plaintiff needs only a single cause of
action to maintain an action. Impleading the beneficiary as a party in
the suit is now mandatory, in cases
RULE 3 allowed to be prosecuted or defended by
PARTIES TO CIVIL ACTIONS a representative.

Section 1. Who may be parties; CLASSIFICATION OF PARTIES IN


plaintiff and defendant. INTEREST
1. Indispensable parties – those without
REQUIREMENTS FOR A PERSON TO BE A whom no final determination can be had
PARTY TO A CIVIL ACTION: of an action. (must be joined)
1. he must be a natural or juridical
person or an entity authorized by 2. Necessary (or proper) parties – those
law; who are not indispensable but ought to
2. he must have a legal capacity to sue; be parties if complete relief is to be
and accorded as to those already parties, or
3. he must be the real party in interest. for a complete determination or
settlement of the claim subject of the
PLAINTIFFS- Those having an interest in action. (may or may not be joined)
the subject matter of the action or in
obtaining the relief demanded. 3. Representative parties – someone
acting in fiduciary capacity. Maybe a
DEFENDANTS: trustee, guardian, executor or
1. persons who claim an interest in the administrator, or a party authorized by
controversy or the subject thereof law or these Rules.
adverse to the plaintiff; or
An agent acting in his own name and for
2. who are necessary to a complete the benefit of an undisclosed principal
determination or settlement of the may sue or be sued without joining the
questions involved therein; or principal except when the contract
involves things belonging to the principal
3. all those who ordinarily should be
joined as plaintiffs but who do not 4. Pro forma parties – those who are
consent thereto, the reason required to be joined as co-parties in
therefore being stated in the suits by or against another party as may
complaint. be provided by the applicable
substantive law or procedural rule such
Neither a dead person nor his estate may as in the case of spouses under Sec. 4.
be a party plaintiff in a court action…
Considering that capacity to be sued is 5. Quasi parties – those in whose behalf
correlative of the capacity to sue, to the a class or representative suit is brought.
same extent, a decedent does not have
the capacity to be sued and may not be Section 5. Minor or incompetent
named a party defendant in a court persons.
action (Ventura vs. Militante 316 SCRA
226). Under the present rule, a person need
not be judicially declared to be
Section 3. Representatives as parties. incompetent in order that the court may
appoint a guardian ad litem. It is enough
REAL PARTY IN INTEREST – the party that he be alleged to be incompetent.
who stands to be benefited in the suit or The suit can be brought by or against the
minor or incompetent person personally
2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT
CHAIRPERSONS
Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda
Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-
EDP), Anna Margarita Eres (VC-Logistics) Jonathan
Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law),
Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial
Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)
San Beda College of Law
14

MEMORY AID IN REMEDIAL LAW

BUT with the assistance of his parents or JOINT DEBTORS – indispensable party
guardian. with respect to own share and a
necessary party with respect to the
share of the others.

Section 6. Permissive joinder of


parties.
SOLIDARY DEBTORS – either is
PERMISSIVE JOINDER – the aggregate indispensable and the other is not even a
sum of all the claims, determines the necessary party because complete relief
jurisdiction of the court. may be obtained from either.

Requisites of permissive joinder of Section 9. Non-joinder of necessary


parties. parties to be pleaded.
1. Right to relief arises out of the same
transaction or series of transactions; The non-inclusion of a necessary party
2. There is a question of law or fact may be excused only on meritorious
common to all the plaintiffs or grounds.
defendants; and
3. Such joinder is not otherwise The court may order the inclusion of the
proscribed by the provisions of the omitted necessary party if jurisdiction
Rules on jurisdiction and venue. over his person may be obtained by
ordering plaintiff to file an amended
SERIES OF TRANSACTIONS – transactions complaint impleading the necessary
connected with the same subject of the party therein as co-defendant.
action.
The only sanction for failure to implead
INDISPENSABLE NECESSARY a necessary party when ordered by the
PARTIES PARTIES court and jurisdiction can be obtained
over said party is a waiver of the claim
The action cannot The action can against him. This is considered as an
proceed unless they proceed even in the exception to the provision on penalties
are joined absence of some imposed on a disobedient party under
necessary parties Sec. 3 of Rule 17 which would have
entailed the dismissal of the complaint
No valid judgment if The case may be
indispensable party is determined in court
itself.
not joined but the judgment
therein will not Section 11. Misjoinder and non-joinder
resolve the entire of parties.
controversy if a
necessary party is not Neither misjoinder nor non-joinder of
joined parties is a ground for dismissal of the
action.
They are those with They are those whose
such an interest in the presence is necessary
Objections to defects in parties should
controversy that a to adjudicate the
final decree would whole controversy but be made at the earliest opportunity – the
necessarily affect their whose interests are so moment such defect becomes apparent –
rights so that the court far separable that a by a MOTION TO STRIKE THE NAMES OF
cannot proceed final decree can be THE PARTIES impleaded.
without their presence made in their absence
without affecting If there is misjoinder, a separate action
them should be brought against the party
misjoined.

REMEDIAL LAW COMMITTEE


 CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
15 2005 CENTRALIZED BAR OPERATIONS

The absence of an indispensable party


renders all subsequent actions of the Service of summons upon a defendant
court null and void for want of authority whose identity is unknown may be made
to act, not only as to the absent parties by publication in a newspaper of general
but even as to those present. circulation in accordance with Section 14
of Rule 14.

Section 12. Class suit.


Section 15. Entity without juridical
REQUISITES OF A CLASS personality as defendant.
/REPRESENTATIVE SUIT.
1. subject matter of the They may be sued under the name by
controversy is one of common or which they are generally known, but
general interest to many they cannot sue under such name for
persons; lack of juridical personality.
2. parties affected are so numerous
that it is impracticable to bring The service of summons may be effected
them all before the court; upon all the defendants by serving upon
3. parties bringing the class suit are any of them, or upon the person in
sufficiently numerous or charge of the office or place of business
representative of the class and maintained under such name. (Sec. 8,
can fully protect the interests of Rule 14)
all concerned.
INSTANCES WHERE SUBSTITUTION OF
Class Suit Permissive Joinder PARTIES IS PROPER:
of Parties
There is one single There are multiple A. Death of party; duty of counsel (Sec.
cause of action causes of action 16)
pertaining to separately belonging This provision applies where the claim is
numerous persons to several persons. not thereby extinguished as in cases
involving property and property rights
such as:
Section 14. Unknown identity or name 1. recovery of real and personal
of defendant. property against the estate.
2. enforcement of liens on such
Requisites: properties
1. there is a defendant 3. recovery for an injury to person
2. his identity or name is unknown or property by reason of tort or
3. fictitious name may be used delict committed by the
because of ignorance of deceased.
defendant’s true name and said
ignorance is alleged in the In this case, the heirs will be substituted
complaint for the deceased OR if no legal
4. identifying description may be representative is named then the court
used: sued as unknown owner, will order the opposing party to procure
heir, devisee, or other the appointment of an executor or
designation administrator for the estate of the
5. amendment to the pleading deceased.
when identity or true name is
discovered In case of minor heirs, the court may
6. defendant is the defendant being appoint a guardian ad litem for them.
sued, not a mere additional
defendant The substitute defendant need not be
summoned. The ORDER OF
2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT
CHAIRPERSONS
Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda
Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-
EDP), Anna Margarita Eres (VC-Logistics) Jonathan
Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law),
Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial
Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)
San Beda College of Law
16

MEMORY AID IN REMEDIAL LAW

SUBSTITUTION shall be served upon the 1. The action must primarily be for
parties substituted for the court to recovery of money, debt, or
acquire jurisdiction over the substitute interest thereon, and not where
party the money sought therein is
merely incidental thereto.

2. The claim, subject of the action,


arose from a contract, express or
implied, entered into by the
If there is failure to notify the fact of decedent in his lifetime or the
death: the case may continue and liability for which had been
proceedings will be held valid, and assumed by or is imputable to
judgment will bind the successors in him.
interest.
If defendant dies before entry of final
B. Death or separation of a party who judgment in the court where it was
is a public officer (Sec. 17) pending at that time, the action shall
not be dismissed but shall be allowed to
The action may be maintained by and continue until entry of final judgment
against his successor. thereon.

The action contemplated here is one However, execution shall not issue in
brought against the public officer in his favor of the winning party. It should be
official capacity. filed as a claim against the estate of the
decedent.
C. Supervening Incompetence or
incapacity of a party (Sec. 18) Section 21. Indigent party.
The action shall continue to be
prosecuted by or against him, personally Indigent – one who has no property or
or assisted by the corresponding income sufficient for his support aside
guardian. from his labor, even if he is self-
supporting when able to work and in
D. Transfer of interest (Sec. 19) employment. He need not be a pauper
Substitution of parties in this section is to entitle him to litigate in forma
NOT mandatory, it being permissible to pauperis.
continue the action by or against the
original party in case of transfer of While the authority to litigate as
interest pendente lite. Unless the an indigent party may be granted upon
substitution by or the joinder of the an ex parte application and hearing, it
transferee is required by the court, may be contested by the adverse party
failure to do so does not warrant the at any time before judgment is
dismissal of the case. A transferee rendered.
pendente lite is a proper, and not an
indispensable party. RULE 4
VENUE OF ACTIONS
The case will be dismissed if the interest
of plaintiff is transferred to defendant VENUE – the place where an action must
UNLESS there are several plaintiffs, in be instituted and tried.
which case, the remaining plaintiffs can
proceed with their own cause of action. VENUE JURISDICTION

Section 20. Action on contractual Place where the action Power of the court to
money claims. is instituted hear and decide a case

Requisites: May be waived Jurisdiction over the


subject matter and

REMEDIAL LAW COMMITTEE


 CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
17 2005 CENTRALIZED BAR OPERATIONS

over the nature of the


action is conferred by
law and cannot be
waived

Procedural Substantive

May be changed by the Cannot be the subject


written agreement of of the agreement of
the parties the parties

The rule on VENUE IS NOT APPLICABLE


in cases Means of waiving venue:
1) Where a specific rule or law 1. failure to object via motion to
provides otherwise; or dismiss
2) The parties have validly agreed 2. affirmative relief sought in the
in writing before the filing of the court where the case is filed
action on the exclusive venue 3. voluntary submission to the
thereof (Sec. 4). court where the case is filed
4. laches
Requisites for venue to be exclusive
1. A valid written agreement Section 3. Venue of actions against
2. Executed by the parties before non-residents.
the filing of the action; and
3. Exclusive nature of the venue. RULES
1. NON-RESIDENT FOUND IN THE
In the absence of qualifying or restrictive PHIL. –
words, venue stipulation is merely a. for personal actions –
permissive meaning that the stipulated where the plaintiff
venue is in addition to the venue resides; and
provided for in the rule (Polytrade Corp. b. for real actions – where
vs. Blanco 30 SCRA 187) the property is located.
2. NON RESIDENT NOT FOUND IN
Section 1. Venue of real actions. THE PHIL. –
An action may be filed only
If property is located at the boundaries when the case involves:
of two places: file one case in either a. Personal status of
place at the option of the plaintiff. plaintiff – venue: where
plaintiff resides;
If case involves two properties located b. Any property of said
in two different places: defendant located in the
1. If the properties are the object Phil. – venue: where the
of the same transaction, file it in property or any portion
any of the two places. thereof is situated or
2. If they are the subjects of two found.
distinct transactions, separate
actions should be filed in each The Supreme Court has the power to
place unless properly joined. order a change of venue to prevent a
miscarriage of justice.
Section 2. Venue of personal actions.
RESIDENCE – the place where the party Dismissal of Action for Improper Venue
actually resides with continuity and The court may not motu propio dismiss a
consistency, whether permanent or complaint on the ground of improper
temporary, at the time the action is venue. An exception is provided in
instituted. Section 4 of the Revised Rule on
Summary Procedure.

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT


CHAIRPERSONS
Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda
Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-
EDP), Anna Margarita Eres (VC-Logistics) Jonathan
Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law),
Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial
Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)
San Beda College of Law
18

MEMORY AID IN REMEDIAL LAW

Filing of verified
complaint with the The Court should not dismiss the
MTC complaint or counterclaim if they are
not verified. The requirement is merely
a formal one, and not jurisdictional. It
court may court may should therefore simply direct the party
summon the dismiss the case
defendant outright concerned to have it verified.

RULES ON PROHIBITED PLEADINGS / MOTIONS


UNDER THE RULE ON SUMMARY
W/in 10 days If Defendant fails to PROCEDURE.
from receipt of answer in 10 days – 1. Motion to dismiss the complaint
summons, The court, motu propio
defendant or on plaintiff’s
or to quash the complaint or
answers, motion, may render information except on the
incoporating judgment based on ground of lack of jurisdiction
compulsory facts alleged in the over the subject matter or
counterclaim or complaint w/o
crossclaim, and prejudice to
failure to comply with prior
serves a copy on R9, S3 (c) barangay conciliation (referral to
plaintiff the Lupon)
SUMMARY PROCEDURE 2. Motion for a bill of particulars
SUMMARY PROCEDURE 3. Motion for a new trial or for
IN CIVIL CASES reconsideration of a judgment or
for reopening of trial
Answer to If plaintiff fails to
4. Petition for relief from judgment
counterclaim appear in prelim
and crossclaim conference, complaint 5. Motion for extension of time to
w/in 10 days may be dismissed. file pleadings, affidavits, or any
Defendant entitled to other paper
decision based on his
6. Memoranda
counterclaim. All
crossclaims dismissed. 7. Petition for certiorari,
Preliminary mandamus, or prohibition
conference w/in 30 against any interlocutory order
days after last
answer is filed
issued by the court
8. Motion to declare defendant in
If sole defendant default
fails to appear, 9. Dilatory motions for
plaintiff entitled to postponement
W/in 5 days after
judgment based on
conference, court
complaint and
10. Reply
issues record of 11. Third party complaints
preliminary what is proved
conference therein 12. Interventions

The filing of a prohibited pleading will


not suspend the period to file an answer
W/in 10 days from
or to appeal.
receipt of order,
submission by the
parties of affidavits Although a motion to dismiss is a
and position papers prohibited pleading, its filing after the

REMEDIAL LAW COMMITTEE


Rendition of judgment
 CHAIRPERSON : Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae
w/in 30 Jocelyn
Ventura, days fromZabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
receipt
Special of last
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
affidavit, or w/in 15
days after last
clarificatory paper
19 2005 CENTRALIZED BAR OPERATIONS

answer had already been submitted does 2. that no conciliation or


not constitute a pleading prohibited by settlement has been reached OR
the summary rules. What the rules unless the settlement has been
proscribe is a motion to dismiss that repudiated by the parties
would stop the running of the period to thereto.
file an answer and cause undue delay.

While a motion to declare the defendant


in default is prohibited by the rules on
summary procedure, the plaintiff may
nevertheless file a motion to render CASES NOT COVERED BY THE
judgment as may be warranted when the KATARUNGANG PAMBARANGAY LAW:
defendant fails to file an answer.
1. Where one party is the
The issuance of the pre-trial order is an government or any subdivision or
important part of the summary instrumentality thereof;
procedure because it is its receipt by the 2. Where one party is a public
parties that begins the ten-day period to officer or employee, and the
submit the affidavits and other dispute relates to the
evidence. performance of his official
functions;
TRIAL PROCEDURE IN CIVIL CASES 3. Offenses punishable by
imprisonment exceeding 1 year
No trial date is set. No testimonial or a fine exceeding P5,000.00;
evidence is required nor cross- 4. Offenses where there is no
examination of witnesses allowed. All private offended party;
that is required is that within (10) days 5. Where the dispute involves real
from receipt by the parties of the properties located in different
court’s pre-trial order, they shall submit cities or municipalities UNLESS
(1) the affidavits of their witnesses (2) the parties thereto agree to
and other evidence on the factual issues submit their differences to
set forth in the pre-trial order, Together amicable settlement by an
with their position papers setting forth appropriate lupon;
the law and the facts relied upon by 6. Disputes involving parties who
them. actually reside in barangays of
different cities or municipalities,
Judgments of inferior courts in cases EXCEPT where such barangay
governed by summary procedure are units adjoin each other and the
appealable to the RTC. parties thereto agree to submit
their differences to amicable
The decision of the RTC in civil cases settlement by an appropriate
under this rule, including ejectment lupon;
cases, are IMMEDIATELY executory. 7. Such other classes of disputes
which the President may
KATARUNGANG PAMBARANGAY LAW determine in the interest of
(Title One, Book III, RA 7160) justice.

No complaint, petition, action, or However, the court may, at any time


proceeding involving any matter within before trial, motu proprio refer the case
the authority of the lupon shall be filed to the lupon concerned for amicable
or instituted directly in court or any settlement, non criminal cases not
other government office for adjudication falling within the authority of the
UNLESS latter.
1. there has been a confrontation
between the parties before the While the dispute is under mediation,
lupon chairman or pangkat, AND conciliation, or arbitration, the
2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT
CHAIRPERSONS
Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda
Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-
EDP), Anna Margarita Eres (VC-Logistics) Jonathan
Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law),
Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial
Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)
San Beda College of Law
20

MEMORY AID IN REMEDIAL LAW

prescriptive periods for offenses and the respondents reside at the


cause of action under existing laws shall election of the complainant
be interrupted upon filing of the 3. Disputes involving real property
complaint with the punong barangay. or any interest therein- where
real property or larger portion
thereof is situated

THE PARTIES MAY GO DIRECTLY TO


COURT IN THE FOLLOWING INSTANCES: 4. Disputes arising at the
1. Where the accused is under WORKPLACE where the
detention; contending parties are employed
2. Where the person has otherwise or at the INSTITUTION where
been deprived of personal such parties are enrolled for
liberty calling for habeas corpus study – in the barangay where
proceeding; such workplace or institution
3. Where the actions are coupled located.
with provisional remedies such
as preliminary injunction, CHART ON KATARUNGANG PAMBARANGAY, SEE
PAGE 22.
attachment, delivery of
personal property, and support
pendente lite; and PROCEDURE IN REGIONAL TRIAL
4. Where the action may otherwise COURTS
be barred by the statute of
limitations. RULE 6
KINDS OF PLEADINGS
The parties may, at any stage of the Section 1. Pleadings defined.
proceedings, agree in writing to have the
matter in dispute decided by arbitration PLEADINGS – the written allegations of
by either the Punong Barangay or the parties of their respective claims and
Pangkat. In such case, arbitrational defenses submitted to the court for
hearings shall follow order of appropriate judgment.
adjudicative trials.
A motion to dismiss is NOT a pleading.
The settlement and arbitration It is the allegations or averments in the
agreement may be repudiated on the pleading that determines the jurisdiction
ground that consent is vitiated by fraud, of the court and the nature of the
violence, or intimidation. Such action.
repudiation shall be sufficient basis for
the issuance of the certification for filing
a complaint in court or any government PLEADING MOTION
office for adjudication.
It relates to the cause An application for an
RULES ON VENUE UNDER THE of action; interested order not included in
KATARUNGANG PAMBARANGAY LAW in the matters to be the judgment
1. Disputes between residents of included in the
the same barangay shall be judgment.
brought for settlement before
lupon of said barangay May be initiatory Cannot be initiatory as
2. Residents of different barangays they are always made
in a case already filed
within the same city or
in court
municipality – in the barangay
where the respondent or any of Always filed before May be filed even

REMEDIAL LAW COMMITTEE


 CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
21 2005 CENTRALIZED BAR OPERATIONS

judgment after judgment

Section 3. Complaint.
COMPLAINT – is a concise statement of
the ultimate facts constituting the
plaintiff’s cause or causes of action,
with

a specification of the relief sought, but


it may add a general prayer for such 2 kinds of defenses that may be set
further relief as may be deemed just or forth in the answer:
equitable. a. AFFIRMATIVE DEFENSES –
allegation of a new matter which
ULTIMATE FACTS - essential facts while hypothetically admitting the
constituting the plaintiff’s cause of material allegations in the pleading,
action. would nevertheless prevent or bar
recovery by him. It is in the nature
What are NOT ultimate facts: of Confession and Avoidance
1. Evidentiary or immaterial facts. b. NEGATIVE DEFENSES – specific
denial of the material facts or facts
2. Legal conclusions, conclusions or alleged in the pleading
inferences of facts from facts
not stated, or incorrect Insufficient denial or denial amounting
inferences or conclusions from to admissions:
facts stated. 1. General denial
2. Denial in the form of a
3. The details of probative matter negative pregnant
or particulars of evidence,
statements of law, inferences Section 6. Counterclaim
and arguments.
COUNTERCLAIM – any claim which a
4. An allegation that a contract is defending party may have against an
valid or void is a mere conclusion opposing party.
of law.
Nature of counterclaim: A counterclaim
TEST OF SUFFICIENCY: if upon is in the nature of a cross-complaint.
admission or proof of the facts being Although it may be alleged in the
alleged, a judgment may be properly answer, it is not part of the answer.
given. A fact is essential if it cannot be Upon its filing, the same proceedings are
stricken out without leaving the had as in the original complaint. For this
statement of the cause of action reason, it must be answered within ten
insufficient. (10) days from service.

Section 4. Answer Section 7. Compulsory Counterclaim

ANSWER – the pleading where the RULES ON COUNTERCLAIM


defendant sets forth his affirmative or A counterclaim before the MTC must be
negative defenses. within the jurisdiction of said court,
both as to the amount and nature
thereof (De Chua vs. IAC).

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT


CHAIRPERSONS
Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda
Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-
EDP), Anna Margarita Eres (VC-Logistics) Jonathan
Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law),
Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial
Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)
San Beda College of Law
22

MEMORY AID IN REMEDIAL LAW

Filing of complaint
KATARUNGANG PAMBARANGAY
w/ the Punong PROCEDURE
Barangay (PB)
W/in the next working day At any time during the
Proceedings…

Issuance of Parties agree to


summons to submit the
the parties dispute for
arbitration
and the
witnesses

Arbitration Hearings
Mediation (hearing)

Failure of Settlement
mediation
efforts

Execution Repudiation of Award to be


Constitu- w/in 6 arbitration made after the
tion of the months from agreement lapse of the
Pangkat date thereof within 5 days period to
from date of repudiate and
agreement w/in 10 days
thereafter
Pangkat convenes not
later than 3 days
from its constitution
and summons the
Execution w/in
parties
6 months from
the date of the
Pangkat must
award
arrive at a Conciliation
settlement
w/in 15 days
(hearing)
from the day
it convenes
Repudiation of
Settlement settlement w/in 10 Note: Repudiation shall
days from date only be allowed on ground
thereof of vitiation of consent by
fraud, violence or
intimidation.
Execution w/in 6
months from the Failure of Conciliation
date of settlement ISSUANCE OF hearings at the Pangkat
REMEDIAL LAW COMMITTEE
CERTIFICATION FOR Level and of Arbitration
 CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (CivilFILING OF Alnaiza
Procedure); A hearings
Hasiman (Special shall and
Civil Actions also lead to
COMPLAINT
Special Proceedings); Jeenice de Sagun (Criminal Procedure); ElaineINMasukat
COURT(Evidence) the issuance of
certification for filing a
complaint in court.
23 2005 CENTRALIZED BAR OPERATIONS

DOCTRINE OF ANCILLARY JURISDICTION Section 8. Cross-claim


In an original action before the RTC, the CROSS-CLAIM – any claim by one party
counterclaim may be considered against a co-party arising out of the
compulsory regardless of the amount transaction or occurrence that is the
(Sec. 7, Rule 6 ). subject matter either of the original
action or counterclaim.
If a counterclaim is filed in the MTC in
excess of its jurisdictional amount, the If it is not set up in the action, it is
excess is considered waived (Agustin vs. barred, except:
Bacalan). In Calo vs. Ajax Int’l, the 1. when it is outside the jurisdiction of
remedy where a counterclaim is beyond the court or;
the jurisdiction of the 2. if the court cannot acquire
jurisdiction over third parties whose
MTC is to set off the claims and file a presence is necessary for the
separate action to collect the balance. adjudication of said cross-claim.

COMPULSORY PERMISSIVE In which case, the cross-claim is


COUNTERCLAIM COUNTERCLAIM considered permissive.

One which arises out It does not arise out of The dismissal of the complaint carries
of or is necessarily nor is it necessarily with it the dismissal of a cross-claim
connected with the connected with the which is purely defensive, but not a
transaction or subject matter of the cross-claim seeking affirmative relief.
occurrence that is the opposing party’s
subject matter of the claim.
opposing party’s
claim. Cross Claim Counterclaim 3rd-party
Complaint
It does not require for It may require for its
its adjudication the adjudication the Against a co- Against an Against a
presence of third presence of third party opposing party person not a
parties of whom the parties over whom the party to the
court cannot acquire court cannot acquire action
jurisdiction. jurisdiction.
Must arise out May arise out of Must be in
It is barred if not set It is NOT barred even of the or be necessarily respect of
up in the action. if not set up in the transaction connected with the
action. that is the the transaction opponent’s
subject matter or that is the claim
Need not be Must be answered, of the orig. subject matter (Plaintiff)
answered; no default. otherwise, the action or of a of the opposing
defendant can be counterclaim party’s claim, in
declared in default. therein. which case, it is
called a
compulsory
GENERAL RULE: A compulsory
counterclaim, or
counterclaim not set up in the answer is it may not, in
deemed barred. which case it is
called a
EXCEPTION: If it is an after-acquired permissive
counterclaim, that is, such claim counterclaim.
matured after filing of the answer. In
this case, it may be pleaded by filing an Section 10. Reply.
amended answer or a supplemental
answer or pleading. REPLY - the response of the plaintiff to
the defendant’s answer.

EFFECT OF FAILURE TO REPLY: new


facts that were alleged in the answer are
2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT
CHAIRPERSONS
Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda
Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-
EDP), Anna Margarita Eres (VC-Logistics) Jonathan
Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law),
Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial
Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)
San Beda College of Law
24

MEMORY AID IN REMEDIAL LAW

deemed controverted. Hence, the filing Summons to new party (third, fourth,
of the reply is optional except for the etc.) is needed for the court to obtain
denial of the genuineness and due jurisdiction over his person, since he is
execution of an actionable document not an original party.
used as defense in the answer.
Where the trial court has jurisdiction
Section 11. Third (fourth, etc.) – party over the main case, it also has
complaint. jurisdiction over the third party
complaint, regardless of the amount
THIRD (FOURTH,ETC.) – PARTY involved as a third party complaint is
COMPLAINT – a claim that a defending merely auxiliary to and is a continuation
party may, with leave of court, file of the main action (Republic v. Central
against a person not a party to the Surety & Insurance Co. L-27802, Oct. 26,
action for contribution, indemnity, 1968).
subrogation or any other relief, in
respect of his opponent’s claim. Section 12. Bringing new parties.

THIRD-PARTY COMPLAINT IN Distinguished from 3rd-party complaint:


COMPLAINT INTERVENTION A 3rd-party complaint is proper when not
one of the third-party defendants
Brings into the action Same therein is a party to the main action. But
a third person who if one or more of the defendants in a
was not originally a counterclaim or cross-claim is already a
party. party to the action, then the other
necessary parties may be brought in
Initiative is with the Initiative is with a
person already a party non-party who seeks
under this section.
to the action. to join the action.
RULE 7
TESTS to determine whether the third- PARTS OF A PLEADING
party complaint is in respect of
plaintiff’s claim: Section 3. Signature and address.
1. Where it arises out of the same The signature of the counsel is a
transaction on which the certification that:
plaintiff’s claim is based, or, 1. That he has read the pleading;
although arising out of another 2. There is good ground to support
or different transaction, is it; and
connected with the plaintiff’s 3. It is not interposed for delay
claim; Only the original copies must be signed.
2. Whether the third-party UNSIGNED PLEADING may be stricken
defendant would be liable to the out as sham and false, and the action
plaintiff or to the defendant for may proceed as though the pleading has
all or part of the plaintiff’s claim not been served. It has no legal effect.
against the original defendant;
and Section 4. Verification.
3. Whether the third-party
defendant may assert any Pleadings need NOT be verified EXCEPT
defenses which the third-party when otherwise provided by the law or
plaintiff has or may have to the rules.
plaintiff’s claim.
A verification must now be based on
Leave of court to file a third-party personal knowledge or based on
complaint may be obtained by motion authentic records.
under Rule 15.

REMEDIAL LAW COMMITTEE


 CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
25 2005 CENTRALIZED BAR OPERATIONS

ULTIMATE FACTS: those which directly


Section 5. Certification against forum form the bases of the right sought to be
shopping. enforced or the defense relied upon.
If the ultimate facts are NOT alleged,
FORUM SHOPPING – the filing of a two or the cause of action would be
more cases based on the same cause of insufficient.
action in different courts for the purpose
of obtaining a favorable decision in Section 4. Capacity.
either.
Capacity to sue and be sued
Test to determine the presence of either personally or in representative
forum-shopping: whether in the two (or capacity must be specifically averred by
more) cases pending, there is identity of the party suing or being sued, and
(a) parties, (b) rights or causes of action, specifically denied by the party
and (c) reliefs sought. questioning such capacity.

The certificate is to be executed by Capacity is challenged by


petitioner, and not by counsel. specific denial, motion to dismiss or bill
of particulars.
Required ONLY for complaints or
initiatory pleadings. Section 5. Fraud, mistake, condition of
the condition
Certificate of non-forum shopping is not
required in a compulsory counterclaim FACTS THAT MAY BE AVERRED
(UST Hosp. vs. Surla). GENERALLY:
1. Conditions precedent (BUT there
EFFECT OF FAILURE TO COMPLY: must still be an allegation that
1. Not curable by amendment of the specific condition precedent
said pleading has been complied with,
2. shall be cause for the dismissal otherwise, it will be dismissed
of the case, without prejudice, for failure to state a cause of
unless otherwise provided, upon action)
motion and after hearing 2. Malice, intent, knowledge, or
other condition of the mind
EFFECT OF SUBMISSION OF FALSE 3. Judgments of domestic or
CERTIFICATION OR NON-COMPLIANCE foreign courts, tribunals, boards,
WITH THE UNDERTAKINGS THEREIN: or officers (no need to show
1. indirect contempt jurisdiction)
2. administrative and criminal 4. Official document or act
actions
FACTS THAT MUST BE AVERRED
EFFECT OF WILFULL AND DELIBERATE PARTICULARLY:
FORUM SHOPPING: 1. Circumstances showing fraud or
1. shall be ground for summary mistake in all averments of
dismissal of the case with fraud or mistake
prejudice; 2. Capacity
2. direct contempt.
ACTIONABLE DOCUMENT – written
RULE 8 instrument upon which the action or
MANNER OF MAKING ALLEGATIONS IN A defense is based.
PLEADING

Pleadings should state ultimate facts


essential to the right of action.

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT


CHAIRPERSONS
Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda
Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-
EDP), Anna Margarita Eres (VC-Logistics) Jonathan
Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law),
Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial
Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)
San Beda College of Law
26

MEMORY AID IN REMEDIAL LAW

Two permissible ways of pleading an 5. prescription;


actionable document: 6. want or illegality of
1. By setting forth the substance of consideration; or
such document in the pleading 7. estoppel
and attaching said document
thereto as an annex (contents of BUT the following defenses are
the document annexed are waived:
controlling, in case of variance a. forgery in the signature;
in the substance of the b. want of authority of an agent or
document set forth in the corporation;
pleading and in the document c. want of delivery; or
attached); or d. the party charged signed the
2. By setting forth said document instrument in some other
verbatim in the pleading. capacity

Where the actionable document is Section 10. Specific Denial


properly alleged, the failure to
specifically deny under oath the same THREE WAYS OF MAKING A SPECIFIC
results in: DENIAL:
1. The admission of the 1. By specifically denying each
genuineness and due execution material allegation of the other
of said document, EXCEPT that party and, whenever possible,
an oath is not required: setting forth the substance of
a. When the adverse party was the matters relied upon for such
not a party to the denial;
instrument; and 2. Part admission or part denial;
b. When an order for the 3. By an allegation of lack of
inspection of the original knowledge or information
document was not complied sufficient to form a belief as to
with. the truth of the averment in the
2. The document need not be opposing party’s pleading (must
formally offered in evidence. be made in good faith).

GENUINENESS A denial must not be general. A general


That the document is not spurious, denial is regarded as an admission of the
counterfeit, or of different import on its facts stated in the complaint and
face from the one executed by the entitles plaintiff to a judgment on the
party, or that the party whose signature pleadings.
it bears has signed it and that at the
time it was signed it was in words and NEGATIVE PREGNANT – a form of denial
figures exactly as set out in the which at the same time involves an
pleadings. affirmative implication favorable to the
opposing party; It is in effect, an
DUE EXECUTION admission of the averment to which it is
That the document was signed directed; It is said to be a denial
voluntarily and knowingly by the party pregnant with an admission of the
whose signature appears thereon. substantial facts in the pleading
responded to.
Defenses that the opposing party may
set up even after failure to deny under Section 11. Allegation not specifically
oath: denied deemed admitted.
1. Mistake;
2. fraud; GENERAL RULE: Allegations NOT
3. compromise; specifically denied deemed admitted
4. payment; (such as allegations of usury in the

REMEDIAL LAW COMMITTEE


 CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
27 2005 CENTRALIZED BAR OPERATIONS

complaint, and the authenticity and due appealable


execution of actionable documents).
EXCEPTIONS: NO default may be declared in the
1. Allegations as to the amount of following actions:
unliquidated damages 1. Annulment of marriage
2. Immaterial allegations; 2. Declaration of nullity of
3. Incorrect conclusions of fact. marriage
3. Legal Separation
RULE 9 4. Special civil actions of certiorari,
EFFECT OF FAILURE prohibition and mandamus where
TO PLEAD comment instead of an answer is
required to be filed
Section 1. Defenses and objections not
pleaded. The court cannot motu proprio declare a
GENERAL RULE: Defenses and objections defendant in default. For defendant to
that are not pleaded in a MOTION TO be declared in default, the plaintiff
DISMISS or in the answer are deemed must:
waived. 1. File a MOTION to declare
EXCEPTIONS (not waived even if not defendant in default
raised): 2. Prove that summons have been
1. Lack of jurisdiction over the properly served on the
subject matter defendant
2. Litis pendentia 3. Prove that the defendant really
3. Res judicata failed to answer within the
4. Prescription of the action proper period.

These defenses may be raised at any CAUSES OF DEFAULT


stage of the proceedings even for the 1. Failure to answer within the
first time on appeal EXCEPT that lack of proper period
jurisdiction over the subject matter may 2. Non-compliance with the order
be barred by laches. (Tijam vs. of the court to file a bill of
Sibonghanoy). particulars or in case of
insufficient compliance
The presence of these grounds therewith (Rule 12, Section 4)
authorizes the court to motu proprio 3. Refusal to comply with the
dismiss the claims. These grounds must, modes of discovery (Rule 29,
however, appear from the pleadings or Section 3, par. c)
the evidence on record. 4. Failure to furnish plaintiff with a
copy of the answer
Section 3.
If the defendant was declared in default
DEFAULT – the failure of the defendant upon an original complaint, the filing of
to answer within the proper period. It is the amended complaint resulted in the
not his failure to appear nor failure to withdrawal of the original complaint,
present evidence. hence, the defendant was entitled to
file answer to the amended complaint as
to which he was not in default.
ORDER OF JUDGMENT BY
EFFECT OF ORDER OF DEFAULT:
DEFAULT DEFAULT
issued by the court, Rendered by the court
1. While the party in default cannot
on plaintiff’s motion following a default take part in the trial, he is
for failure of the order or after it nonetheless entitled to notice of
defendant to file his received, ex parte, subsequent proceedings.
responsive pleading plaintiff’s evidence. 2. He may still be called on as a
seasonably. witness, in behalf of the non-
Interlocutory - not Final – appealable defaulting defendants.
2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT
CHAIRPERSONS
Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda
Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-
EDP), Anna Margarita Eres (VC-Logistics) Jonathan
Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law),
Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial
Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)
San Beda College of Law
28

MEMORY AID IN REMEDIAL LAW

2. some of the defending parties


answer and the others fail to do
DEFAULT so
3. the answer interposes a common
defense
After the
lapse of time
to file an EFFECT OF PARTIAL DEFAULT: The
Motion denied:
answer, the
Defendant
court will try the case against ALL
plaintiff may
allowed to file an defendants upon the answer of some
move to
declare the answer EXCEPT where the defense is personal to
defendant in the one who answered, in which case, it
default will not benefit those who did not
answer.
Defendant
answers REMEDY FROM JUDGMENT BY DEFAULT
Motion granted: (FLOW CHART)
Court issues order
of default and
renders judgment, Judgment by default
or require plaintiff
to submit evidence
ex parte.

Motion for new trial or reconsideration at


any time after service of judgment by
Court default and within 15 (30) days therefrom
maintains
Before judgment order of
by default is default
rendered, Failure to file motion for new trial/
defendant may: Denial of said motion
move to set aside
order of default
upon showing: PARTIAL
FAME Perfect appeal from said judgment by
He has a default within the balance of said
meritorious 15 (30) - day period
defense
Avail of Rule 65 in
proper cases

Failure to appeal without


defendant’s faulk
Presentation
of plaintiff’s
evidence ex-
Court sets aside parte Petition for relief from judgment within
order of default and 60 days from notice of the judgment but
defendant is allowed within 6 months from entry thereof
to file an answer
EXTENT OF RELIEF TO BE
If plaintiff If plaintiff
proves his fails to prove
allegations, his allega- Annulment of Judgment
judgment by tions, case is under Rule 47
Case set for default. dismissed. AWARDED IN A JUDGMENT BY
pre-trial DEFAULT:
Shall not exceed the amount OR be
DEFAULT: different in kind from that prayed for
1. The pleading asserting a claim NOR award unliquidated damages.
states a common cause of action
against several defending parties
RULE 10

REMEDIAL LAW COMMITTEE


 CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
29 2005 CENTRALIZED BAR OPERATIONS

AMENDED AND SUPPLEMENTAL the express or implied consent of the


PLEADINGS parties
- but failure to amend does NOT affect
AMENDMENTS the result of the trial of these issues
Section 1. Amendments in general.
2ND PART: refers to amendment to
When the complaint is amended, 2 authorize presentation of evidence if
situations may arise: evidence is objected to at the trial on
1. If the complaint merely corrects the ground that it is not within the issues
or modifies the original made by the pleadings.
complaint, then the action is
deemed commenced upon the SUPPLEMENTAL PLEADINGS
filing of the original complaint; A cause of action which accrued after
2. If the amended complaint the filing of the original complaint may,
alleges a new cause of action, in the discretion of the court, be
then that cause of action is pleaded in a supplemental complaint if
deemed commenced upon the there was a valid subsisting cause of
filing of the amended action at the time the original complaint
complaint. was filed.

Section 2. Amendments as a matter of


right. AMENDED SUPPLEMENTAL
PLEADING PLEADING
Amendment for the first time is a matter
of right before a responsive pleading is Refers to facts Refers to facts arising
filed, or in case of a Reply, within 10 existing at the time of after the filing of the
days after it was served. the commencement original pleading.
of the action.
Since a motion to dismiss is NOT a
responsive pleading, an amendment may Take the place of the Taken together with
be had even if an order of dismissal has original pleading. the original pleading.
been issued as long as the amendment is
made before order of dismissal becomes Can be made as a Always with leave of
final. matter of right as court
when no responsive
pleading has yet been
Section 3. Amendments by leave of filed
court.

Instances when amendment by leave of Section 7. Filing of amended pleadings.


court may not be allowed:
1. When cause of action, defense The amended pleading supersedes the
or theory of the case is changed; original pleading.
2. Amendment is intended to
confer jurisdiction to the court; An amendment which merely
3. Amendment to cure a premature supplements and amplifies facts
or non-existing cause of action; originally alleged in the complaint
4. Amendment for purposes of relates back to the date of the
delay. commencement of the action and is not
Section 5. Amendment to conform to barred by the statute of limitations
or authorize presentation of evidence. which expired after service of the
original complaint.
1ST PART: refers to amendment to EFFECT OF AMENDED PLEADING:
conform to evidence when issues NOT 1. Admissions in the superseded
raised by the pleadings are tried with pleading can still be received in
evidence against the pleader;

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT


CHAIRPERSONS
Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda
Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-
EDP), Anna Margarita Eres (VC-Logistics) Jonathan
Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law),
Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial
Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)
San Beda College of Law
30

MEMORY AID IN REMEDIAL LAW

2. Claims or defenses alleged


therein but not incorporated or The court may extend the time to file
reiterated in the amended the pleadings BUT may NOT shorten
pleading are deemed waived. them.

The amended or superseded, original The 15-day period begins to run from
pleading is not expunged but remains on receipt of summons.
the record although the admission of the
amended pleading amounts to Section 3. Answer to amended
withdrawal of the original pleading. complaint.
1. If the filing of an amended
RULE 11 complaint is a matter of right -
WHEN TO FILE RESPONSIVE PLEADINGS within 15 days from service of
the amended complaint.
Answer to the complaint 2. If the filing of the amended
1. Within 15 days after service of complaint is NOT a matter of
summons, UNLESS a different period right – within 10 days counted
is fixed by the Court (Sec. 1) from notice of the court order
admitting the same.
2. In case the defendant is a foreign
private juridical entity: If no new answer is filed by the
a. if it has a resident agent – defendant in case an amendment has
within 15 days after service been made after he had filed his answer,
of summons to him the original answer of the defendant
b. if it has no resident agent, may serve as the answer to the amended
but it has an agent or officer complaint, and hence, cannot be
in the Philippines – within 15 declared in default.
days after service of
summons to said agent or Section 5. Answer to third (fourth,
officer etc.)-party complaint.
c. if it has no resident agent The third-party defendant is served with
nor agent nor officer – in summons just like the original
which case service of defendant, hence, he also has 15, 30, 60
summons is to be made on days from service of summons, as the
the proper government case may be, to file his answer.
office which will then send a
copy by registered mail to Section 7. Answer to supplemental
the home office of the complaint.
foreign private corporation – Leave of court is required in filing, the
within 30 days after receipt court may fix a different period for
of summons by the home answering the supplemental complaint in
office of the foreign private lieu of the reglementary 10-day period.
entity.
Section 10. Omitted counterclaim or
3. In case of service of summons by cross-claim.
publication – within the time The pleader may set up a counterclaim
specified in the order granting leave or cross-claim by amendment before
to serve summons by publication, judgment when he fails to set it up by
which shall NOT be less than 60 days reason of oversight, inadvertence, or
after notice (Rule 14, Sec.15). excusable neglect ort when justice
requires. Leave of court is necessary.
4. In case of a non-resident defendant
on whom extraterritorial service of RULE 12
summons is made, the period to BILL OF PARTICULARS
answer should be at least 60 days.

REMEDIAL LAW COMMITTEE


 CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
31 2005 CENTRALIZED BAR OPERATIONS

BILL OF PARTICULARS- a more definite 2. If plaintiff, his compliant will be


statement of any matter which appears stricken off and dismissed (Rule
vague or obscure in a pleading. 12, sec. 4; Rule 17, sec. 3)

PURPOSE: to aid in the preparation of a 3. If defendant, his answer will be


responsive pleading. stricken off and his counterclaim
dismissed, and he will be
Motion for bill of particulars must be declared in default upon motion
filed within the reglementary period for of the plaintiff (Rule 12, sec. 4;
the filing of a responsive pleading. The Rule 17, sec. 4; Rule 9, sec. 3).
filing of a motion if sufficient in form
and substance, will interrupt the time to
plead. RULE 13
FILING AND SERVICE OF PLEADINGS,
The motion for bill of particulars may be JUDGMENTS AND OTHER PAPERS
granted in whole or in part as not all the
allegations questioned by the movant Notice given to a party who is duly
are necessarily ambiguous as to require represented by counsel is a nullity,
clarification. unless service thereof on the party
himself was ordered by the court or the
A bill of particulars may be filed either technical defect was waived.
in a separate or an amended pleading.
A bill of particulars becomes part of the
pleading which it supplements. Section 3. Manner of filing.
1. Personally
EFFECTS OF MOTION 2. by registered mail
1. If the motion is granted, the
movant can wait until the bill of Filing by mail should be through the
particulars is served on him by registry service which is made by deposit
the opposing party and then he of the pleading in the post office, and
will have the balance of the not through other means of
reglementary period within transmission.
which to file his responsive
pleading. If registry service is not available in the
locality of either sender or addressee,
2. If his motion is denied, he will service may be done by ordinary mail.
still have such balance of the
reglementary period to do so, If a private carrier is availed of by the
counted from service of the party, the date of actual receipt by the
order denying his motion. In court of such pleading and not the date
either case, he will have at least of delivery to the carrier, is deemed to
5 days to file his responsive be the date of the filing of that
pleading. pleading.

Effect of non-compliance: NOTE: PERSONAL and SUBSTITUTED


1. If the Order is not obeyed or in service as applied to pleadings have a
case of insufficient compliance different meaning compared to summons
therewith, the court: under Rule 14.
a. may order the striking
out of the pleading or
the portion thereof to
which the order is
directed; or
b. make such order as it MODES OF SERVICE
may deem just. PLEADINGS
1. PERSONAL SERVICE
2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT
CHAIRPERSONS
Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda
Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-
EDP), Anna Margarita Eres (VC-Logistics) Jonathan
Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law),
Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial
Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)
San Beda College of Law
32

MEMORY AID IN REMEDIAL LAW

a. Delivering personally a copy to Complete upon expiration of 10


the party or his counsel or; days after mailing, unless the
b. Leaving a copy in counsel’s court provides otherwise.
office with his clerk or with a
person having charge thereof or; 3. Service by registered mail:
c. Leaving the copy between 8 a.m. a. Complete upon actual receipt by
and 6 p.m. at the party’s or the addressee; or
counsel’s residence, if known, b. After 5 days from the date he
with a person of sufficient age received the 1st notice of the
and discretion residing therein--- postmaster, whichever date is
if no person found in his office, earlier.
or if his office is unknown, or if
he has no office. Section 12. Proof of filing.
Filing is proved by its existence in the
2. SERVICE BY MAIL record of the case.
If no registry service is available in the
locality, of either sender or addressee, If it is not in the record, and:
service may be done by ordinary mail. If filed personally: proved by the
written or stamped acknowledgment of
3. SUBSTITUTED SERVICE its filing by the clerk of court on a copy
Delivering the copy to the clerk of court of the same; or
with proof of failure of both personal
and service by mail.  If filed by registered mail: proved by
-the registry receipt and the affidavit of
JUDGMENTS, FINAL ORDERS, the person who did the mailing.
RESOLUTIONS (Sec.9)
1. By personal service; or Section 13. Proof of service
2. By registered mail; 1. Proof of personal service:
3. By publication, if party is a. Written admission of the party
summoned by publication and served; or
has failed to appear in the b. Official return of the server; or
action. c. Affidavit of the party serving.

They can be served only under the three 2. Proof of service by ordinary mail:
modes. Affidavit of the person mailing;

They CANNOT be served by substituted


service. 3. Proof of service by registered mail:
a. Affidavit, and
NOTE: A resort to modes other than by b. Registry receipt issued by the
personal service must be accompanied mailing office.
by a written explanation why the
service or filing was not done personally Section 14. Notice of lis pendens.
(Sec. 11).
LIS PENDENS - a notice of a pendency of
Section 10. Completeness of service. the action between the parties involving
title to or right of possession over real
1. Personal service property.
a. by handling a copy to defendant;
or It serves as a warning to all persons,
b. tendering him copy if he refuses; prospective purchasers or
c. complete upon actual delivery encumbrancers of the property in
litigation to keep their hands off the
2. Service by ordinary mail: property in litigation unless they are

REMEDIAL LAW COMMITTEE


 CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
33 2005 CENTRALIZED BAR OPERATIONS

prepared to gamble on the result of the Section 3. By whom served.


proceedings. Summons may be served by:
1. Sheriff
The defendant may also record a notice 2. Sheriff’s deputy, or
of lis pendens when he claims an 3. Other proper court officers, or
affirmative relief in his answer. 4. For justifiable reasons, by any
suitable person authorized by
Notice of lis pendens CANNOT be the court issuing the summons.
cancelled on an ex parte motion or upon
the mere filing of a bond by the party on Enumeration is EXCLUSIVE.
whose title the notice is annotated, as
section 14 provides that such ALIAS SUMMONS – issued when original
cancellation may be authorized ONLY has not produced its effect because it is
upon order of court, after proper defective in form or manner of service,
showing that: and when issued, supersedes the first
1. The notice is for the purpose of (Section 5).
molesting the adverse party; or
2. It is not necessary to protect the KINDS OF SERVICE OF SUMMONS:
rights of the party who caused it 1. personal service
to be recorded. 2. substituted service
3. by publication
RULE 14
SUMMONS In actions in personam where the
defendant cannot be served with
PURPOSE OF SUMMONS: summons personally or by substituted
1. to acquire jurisdiction over the service, the case must first be converted
person of the defendant, and; into an in rem or quasi in rem action by
2. to give notice to the defendant attaching the property of the defendant
that an action has been found in the Philippines before summons
commenced against him. can be served by publication. If no
property can be found, the action shall
EFFECT OF NON-SERVICE: Unless there be archived but shall not be dismissed.
is waiver, non-service or irregular (Citizens Surety vs. Court Appeals)
service renders null and void all
subsequent proceedings and issuances in SERVICE OF SUMMONS ON DIFFERENT
the action from the order of default up ENTITIES
to and including the judgment by default
and the order of execution. Service on entity Upon any or all
w/o juridical defendants being sued
Where the defendant has already been personality under common name; or
person in charge of office
served with summons on the original
complaint, no further summons is Service upon
In case of minors: by
required on the amended complaint if it minors and
serving upon the minor,
does not introduce new causes of action. incompetents
regardless of age, AND
upon his legal guardian, or
But where the defendant was declared in also upon either of his
default on the original complaint and the parents.
plaintiff subsequently filed an amended In case of incompetents:
complaint, new summons must be served by serving on him
on the defendant on the amended personally AND upon his
legal guardian, but not
complaint, as the original complaint was upon his parents, unless
deemed withdrawn upon such when they are his legal
amendment. guardians
IN ANY EVENT, if the
minor or incompetent has
no legal guardian, the
2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT
CHAIRPERSONS
Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda
Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-
EDP), Anna Margarita Eres (VC-Logistics) Jonathan
Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law),
Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial
Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)
San Beda College of Law
34

MEMORY AID IN REMEDIAL LAW

 demands a relief
plaintiff must obtain the which consists
appointment of a guardian wholly or in part in
ad litem for him. excluding the
defendant from
any interest in any
Service upon Serve on officer having property within the
prisoner management of the jail or Phil; or
prison  property of
defendant has
Service upon To the president, been attached in
domestic private managing partner, general the Phil.
juridical entity manager, corporate
ENTITY secretary, treasurer, or Mode of service
in-house counsel. a. with leave of court
NOTE: Service upon a served outside the
person other than those Phil. By personal
mentioned is invalid and service; or
does not bind the b.with leave of court
corporation. The serve by publication
enumeration is in a newspaper of
EXCLUSIVE. general circulation,
in which case copy of
Service upon Serve on resident agent ; the summons and
foreign private or if none; on gov’t order of court must
juridical entity official designated by law; also be sent by
or registered mail to
on any officer or agent of the last known
the corporation within the address of
Philippines. defendant; or
c. any other manner the
Service upon in case defendant is the court deem
public Republic of the sufficient.
corporations Philippines - by serving
upon the Solicitor General
in case of a province, city Service upon a Substituted service or
or municipality, or like resident with leave of court,
public corporations – by temporarily out of personal service out of
serving on its executive the Phil. the Phil. as under
head, or on such other extraterritorial service
officer or officers as the
law or the court may Service upon an With leave of court, by
direct. unknown publication in a
defendant or newspaper of general
Extraterritorial Requisites whose circulatiuon
service a. defendant does whereabouts are
not reside or is unknown
not found within
the Phil.
b. he action either: Section 20. Voluntary appearance.
 affects the personal
status of plaintiff; Any form of appearance in court, by the
 relates to or the defendant, by his agent authorized to do
subject of which is so, or by attorney, is equivalent to
property within the service of summons EXCEPT where such
Philippines in appearance is precisely to object to the
which defendant jurisdiction of the court over the person
has a lien or
of the defendant.
interest;

Inclusion in a motion to dismiss of other


grounds aside from lack of jurisdiction

REMEDIAL LAW COMMITTEE


 CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
35 2005 CENTRALIZED BAR OPERATIONS

over the person of the defendant shall notice or jointly submitted by


NOT be deemed a voluntary the parties, and
appearance. 4. Motions for summary judgment
which must be served at least 10
RULE 15 days before its hearing
MOTIONS 5. Non-litigated motions.

Section 5. Notice of hearing.


MOTION – is an application for relief NOTICE OF HEARING shall:
other than by a pleading. 1. Be addressed to all parties
concerned
GENERAL RULE: Motions must be in 2. Specify the time and date of the
writing. hearing which must not be later
EXCEPTION: Those made in open court than 10 days after the filing of
or in the course of hearing or trial. the motion

KINDS OF MOTIONS NOTE: Any motion that does not comply


with Sections 4, 5 and 6 of this Rule is a
a. motion EX PARTE- made without mere scrap of paper, should not be
the presence or a notification to the accepted for filing and, if filed, is not
other party because the question entitled to judicial cognizance and does
generally presented is not not affect any reglementary period
debatable. involved for the filing of the requisite
pleading.
b. motion OF COURSE – where the
movant is entitled to the relief or Omnibus Motion Rule - All available
remedy sought as a matter of grounds for objection in attacking a
discretion on the part of the court. pleading, order, judgment, or
proceeding should be invoked at one
c. LITIGATED motion – one made with time, otherwise, they shall be deemed
notice to the adverse party to give waived.
an opportunity to oppose.
Motion for leave to file a pleading or
d. SPECIAL motion- motion addressed motion shall be accompanied by the
to the discretion of the court. pleading or motion sought to be
admitted, otherwise, the latter will be
GENERAL RULE: A motion cannot pray denied.
for judgment.
EXCEPTIONS: RULE 16
1. Motion for judgment on the MOTION TO DISMISS
pleadings
2. Motion for summary judgment A Motion to Dismiss is NOT a responsive
3. Motion for judgment on pleading.
demurrer to evidence.
Section 1. Grounds.
Section 4. Hearing on motion. 1. No jurisdiction over the person
3-DAY NOTICE RULE of the defending party
GENERAL RULE: Service of the copy of 2. No jurisdiction over the subject
motions should be made in such a matter of the claim
manner as shall ensure its receipt at 3. Improper venue
least 3 days before the hearing. 4. No legal capacity to sue
EXCEPTIONS: 5. Litis pendentia
1. Ex parte motions 6. Res judicata
2. Urgent motions 7. Prescription
3. Motions agreed upon by the 8. States no cause of action
parties to be heard on shorter
2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT
CHAIRPERSONS
Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda
Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-
EDP), Anna Margarita Eres (VC-Logistics) Jonathan
Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law),
Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial
Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)
San Beda College of Law
36

MEMORY AID IN REMEDIAL LAW

9. Claim or demand has been paid, 1. Those cases where the court may
waived, abandoned, or otherwise dismiss a case motu proprio
extinguished (Sec. 1, Rule 9)
10. Claim is unenforceable under the 2. Such ground appears in the
Statute of Frauds allegations of the complaint or in
11. Non-compliance with a condition plaintiff’s evidence
precedent for filing claim
REQUISITES OF LITIS PENDENTIA
1. Parties to the action are the
same
MOTION TO DISMISS MOTION TO DISMISS
2. There is substantial identity in
UNDER RULE 16 UNDER RULE 33 the cause of action and relief
(demurrer to sought
evidence) 3. The result of the first action is
determinative of the second in
Grounded on based on insufficiency any event and regardless of
preliminary of evidence. which party is successful
objections.
Motion to dismiss may be filed in either
may be filed by any May be filed only by suit, not necessarily in the one instituted
defending party the defendant against first.
against whom a claim the complaint of the
is asserted in the plaintiff.
action. REQUISITES OF RES JUDICATA
1. Previous final judgment
should be filed within May be filed only after 2. Jurisdiction over the subject
the time for but prior the plaintiff has matter and the parties by the
to the filing of the completed the court rendering it
answer of the presentation of his 3. Judgment upon the merits
defending party to the evidence. 4. In a case prosecuted between
pleading asserting the same parties
claim against him. 5. Involving the same subject
matter
If denied, defendant If denied, defendant
6. Same cause of action
answers, or else he may present evidence
may be declared in if granted, plaintiff
default appeals and the Order There could be res judicata without a
If granted, plaintiff of the dismissal is trial, such as in a judgment on the
may appeal or if reversed, the pleadings (Rule 34); a summary
subsequent case is not defendant loses his judgment (Rule 35); or an order of
barred, he may re-file right to present dismissal under Section 3 of Rule 17.
the case evidence.
When the ground for dismissal is that the
Effect of motion to dismiss: A motion to complaint states no cause of action,
dismiss hypothetically admits the truth such fact can be determined only from
of the facts alleged in the complaint. the facts alleged in the complaint.

However, such admission is limited only Where the plaintiff has not exhausted
to all material and relevant facts which all administrative remedies, the
are well pleaded in the complaint. complaint not having alleged the fact of
such exhaustion, the same may be
An action cannot be dismissed on a dismissed for failure to state a cause of
ground not alleged in the motion even if action.
said ground is provided for in Rule 16.
Non-compliance with P.D. 1508
EXCEPT: (Katarungang Pambarangay Law) may
result to dismissal of the case on the

REMEDIAL LAW COMMITTEE


 CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
37 2005 CENTRALIZED BAR OPERATIONS

ground of non-compliance with a answer runs from his receipt of the


condition precedent. amended pleading.

An action cannot be dismissed on the


ground that the complaint is vague or
indefinite. The remedy of the defendant Section 5. Effect of dismissal
is to move for a bill of particulars or GENERAL RULE: The action or claim may
avail of the proper mode of discovery. be refiled.
EXCEPTION: The action cannot be
GENERAL TYPES OF A MOTION TO refiled if it was dismissed on any of
DISMISS these grounds:
1. motion to dismiss before answer 1. Res judicata;
under Rule 16 2. Prescription;
2. motion to dismiss under Rule 17 3. Extinguishment of the claim
a. upon notice by plaintiff or demand;
b. upon motion of plaintiff 4. Unenforceability under the
c. due to fault of plaintiff Statute of Frauds.
3. motion to dismiss on demurrer to
evidence after plaintiff has rested Section 6. Pleading grounds as
his case under Rule 33 affirmative defenses.
4. motion to dismiss the appeal filed If no motion to dismiss had been filed,
either in the lower court (Rule any of the grounds for dismissal provided
41,Sec. 13) or in the appellate for in Rule 16, INCLUDING IMPROPER
court (Rule 50, Sec.1 ). VENUE, may be pleaded as affirmative
defenses and preliminarily heard in the
discretion of the court.
EFFECTS OF REMEDY
Dismissal under this section – WITHOUT
ACTION ON MTD prejudice to the prosecution in the same
Order granting motion Appeal from the order or separate action of a COUNTERCLAIM
to dismiss is final of dismissal pleaded in the answer
order
Order denying the Certiorari and
motion to dismiss is prohibition if there is
RULE 17
interlocutory grave abuse of DISMISSAL OF ACTIONS
discretion amounting
to lack or excess of Section 1. Dismissal upon notice by
jurisdiction under Rule plaintiff.
65
Dismissal is effected not by motion but
by mere NOTICE of dismissal which is a
Section 4. Time to plead. matter of right BEFORE the defendant
has answered or moved for a summary
Defendant is granted only the balance of judgment.
the reglementary period to which he was
entitled at the time he filed his motion But notice of dismissal requires an order
to dismiss, counted from his receipt of of the court confirming the dismissal.
the denial order, but not less than 5 days Such dismissal is WITHOUT PREJUDICE,
in any event. EXCEPT:
1. Where the notice of dismissal so
The same rule of granting only the provides;
balance of the period is followed where 2. Where the plaintiff has previously
the court, instead of denying the motion dismissed the same case in a
to dismiss, orders the amendment of the court of competent jurisdiction
pleading challenged by the motion, in (TWO-DISMISSAL RULE);
which case, the balance of the period to 3. Even where the notice of dismissal
does not provide that it is with
2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT
CHAIRPERSONS
Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda
Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-
EDP), Anna Margarita Eres (VC-Logistics) Jonathan
Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law),
Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial
Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)
San Beda College of Law
38

MEMORY AID IN REMEDIAL LAW

prejudice but it is premised on Section 3. Dismissal due to fault of


the fact of payment by the plaintiff.
defendant of the claim
involved. CAUSES FOR DISMISSAL
1. Plaintiff fails to appear for no
Section 2. Dismissal upon motion of justifiable cause on the date of
plaintiff. the presentation of his evidence
in chief on the complaint
Where the plaintiff moves for the 2. Plaintiff fails to prosecute his
dismissal of his complaint to which a action for an unreasonable
counterclaim has been interposed, the length of time (NOLLE
dismissal shall be limited to the PROSEQUI)
complaint. 3. Plaintiff fails to comply with
these Rules or any order of the
Such dismissal shall be without prejudice court. Unjustifiable inaction on
to the right of the defendant to either: the part of plaintiff to have the
1. Prosecute his counterclaim in a case set for trial is a ground for
separate action, dismissal for failure to
prosecute.
In this case, the court should
render the corresponding order Complaint may be dismissed
granting and reserving his right 1. Upon motion of the defendant,
to prosecute his claim in a or
separate complaint. 2. Upon court’s own motion.

-OR- Dismissal shall have the effect of an


ADJUDICATION UPON THE MERITS
2. To have the same resolved in the (WITH PREJUDICE), unless otherwise
same action. declared by the court.

In such case, defendant must


manifest such preference to the
trial court within 15 days from
SECTION 2 SECTION 3
notice to him of plaintiff’s
motion to dismiss. Dismissal is at the Dismissal is not
instance of the procured by plaintiff
These alternative remedies of the plaintiff; though justified by
defendant are available to him causes imputable to
REGARDLESS OF WHETHER HIS him;
COUNTERCLAIM IS COMPULSORY OR
PERMISSIVE. Dismissal is a matter Dismissal is a matter
of procedure, without of evidence, an
Dismissal under this rule is WITHOUT prejudice unless adjudication on the
otherwise stated in merits;
PREJUDICE, EXCEPT:
the order of the court
1. When otherwise stated in the or on plaintiff’s
motion to dismiss; motion to dismiss his
2. When stated to be with own complaint;
prejudice in the order of the
court. Dismissal is without Dismissal is without
prejudice to the right prejudice to the right
The approval of the court is necessary in of the defendant to of the defendant to
the dismissal or compromise of a class prosecute his prosecute his
suit. counterclaim in a counterclaim on the
separate action unless same or separate
w/in 15 days from action.
notice of the motion

REMEDIAL LAW COMMITTEE


 CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
39 2005 CENTRALIZED BAR OPERATIONS

he manifests his
intention to have his
counterclaim resolved
in the same action

RULE 18 EFFECT OF NON-APPEARANCE OF


PRE-TRIAL PLAINTIFF:
Cause for dismissal of the action, with
PRE-TRIAL- a mandatory conference and prejudice, unless otherwise ordered by
personal confrontation before the judge the court.
between the parties and their respective
counsel. EFFECT OF NON-APPEARANCE OF
DEFENDANT:
The plaintiff must promptly move ex Cause to allow the plaintiff to present
parte that the case be set for pre-trial , evidence ex parte and the court to
and this he must do upon the service and render judgment on the basis thereof.
filing of the last pleading.
Pre-trial brief. It is the mandatory duty
The pre-trial and trial on the merits of of the parties to seasonably file their
the case must be held on separate pre-trial briefs under the conditions and
dates. with the sanctions provided therein.

When non-appearance of a party may Failure to file pre-trial brief has the
be excused (Sec.4): same effect as failure to appear at the
1. If a valid cause is shown pre-trial.
therefore
2. If a representative shall appear Record of pre-trial. The contents of the
in his behalf fully authorized in PRE-TRIAL order shall control the
writing to: subsequent course of the action, UNLESS
a. Enter into an amicable modified before trial to prevent
settlement manifest injustice.
b. Submit to alternative modes
of dispute resolution A party is deemed to have waived the
c. Enter into stipulations or delimitations in a pre-trial order if he
admissions of facts and of failed to object to the introduction of
documents evidence on an issue outside of the pre-
trial order, as well as in cross-examining
A special authority for an attorney to the witness in regard to said evidence.
compromise is required under Sec. 23,
Rule 138. Under Art. 1878 (c) of the FOR CHART ON PRE-TRIAL PLS. SEE THE NEXT
Civil Code, a special power of attorney PAGE.
is required.

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT


CHAIRPERSONS
Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda
Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-
EDP), Anna Margarita Eres (VC-Logistics) Jonathan
Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law),
Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial
Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)
San Beda College of Law
40

MEMORY AID IN REMEDIAL LAW

FACTORS TO BE CONSIDERED BY THE


COURT
1. Whether or not the intervention
will unduly delay or prejudice
the adjudication of the rights of
the original parties;
PRE-TRIAL

No Amicable Failure to
Settlement Settlement Appear

Agreements
made by parties; If plaintiff is If defendant
Amendments to Absent, when is absent,
pleading; so required to court may
Schedule of trial attend, the hear evidence
court may of plaintiff
dismiss the ex parte
case

TRIAL

If evidence is insufficient to
prove plaintiff’s cause of
Court action or defendant’s
renders counterclaim, court rules in
decision favor of either one or
dismisses the case
2.
2.
Whether or not the intervenor’s
rights may be fully protected in
a separate proceeding.
RULE 19
INTERVENTION The interest which entitles a person to
intervene in a suit must be on the
WHO may intervene? matter in litigation and of such direct
and immediate character that the
1. One who has legal interest in the intervenor will either gain or lose by the
matter in litigation direct legal operation and effect of the
2. One who has legal interest in the judgment.
success of either of the parties,
3. One who has an interest against
both parties
4. One who is so situated as to be INTERVENTION INTERPLEADER
adversely affected by a
An ancillary action. An original action.
distribution or other disposition
of property in the custody of the Proper in any of the Presupposes that the
court or of an officer thereof. four situations plaintiff has no

REMEDIAL LAW COMMITTEE


 CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
41 2005 CENTRALIZED BAR OPERATIONS

mentioned in this interest in the subject SUBPOENA AD TESTIFICANDUM – a


Rule. matter of the action process directed to a person requiring
or has an interest him to attend and to testify at the
therein, which in hearing or the trial of an action, or at
whole or in part, is not
any investigation conducted by
disputed by the other
parties to the action. competent authority, or for the taking of
his deposition.

Defendants are Defendants are being SUBPOENA DUCES TECUM – a process


already original sued precisely to directed to a person requiring him to
parties to the pending implead them bring with him books, documents, or
suit other things under his control.

Section 2. By whom issued


Section 2. Time to intervene. WHO may issue
At any time before rendition of 1. Court before whom the witness
judgment by the trial court. is required to attend
2. Court of the place where the
JUSTIFICATION: Before judgment is deposition is to be taken
rendered, the court, for good cause 3. Officer or body authorized by
shown, may still allow the introduction law to do so in connection with
of additional evidence and that is still investigations conducted by said
within the liberal interpretation of the officer or body
period for trial. 4. Any Justice of the SC or of the
CA in any case or investigation
Since no judgment has yet been pending within the Philippines.
rendered, the matter subject of the
intervention may still be readily resolved SUBPOENA TO A PRISONER – must be for
and integrated in the judgment disposing a valid purpose; if prisoner required to
of all claims in the case. appear in court is sentenced to death,
reclusion perpetua or life imprisonment
REMEDIES FOR THE DENIAL OF and is confined in prison – must be
INTERVENTION: authorized by the SC.
1. APPEAL
2. MANDAMUS if there is grave Section 4. QUASHING A SUBPOENA.
abuse of discretion A. Subpoena DUCES TECUM may be
If there is improper granting of quashed upon proof that:
intervention, the remedy of the party is 1. It is unreasonable and
certiorari. oppressive;
2. The articles sought to be
RULE 21 produced do not appear prima
SUBPOENA facie to be relevant to the
issues;
3. The person asking for the
subpoena does not advance the
SUBPOENA SUMMONS cost for the production of the
an order to appear and Order to answer
articles desired.
testify or to produce complaint
books and documents
may be served to a Served on the B. Subpoena AD TESTIFICANDUM may
non-party defendant be quashed if the witness is not bound
needs tender of does not need tender thereby.
kilometrage, of kilometrage and
attendance fee and other fees In EITHER case, the subpoena may be
reasonable cost of quashed for failure to tender the witness
production fee fees and kilometrage allowed by the
Rules.
2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT
CHAIRPERSONS
Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda
Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-
EDP), Anna Margarita Eres (VC-Logistics) Jonathan
Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law),
Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial
Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)
San Beda College of Law
42

MEMORY AID IN REMEDIAL LAW

4. Admission by adverse party (Rule


GENERAL RULE 26).
a. The court which issued the 5. Production or inspection of
subpoena may issue a warrant documents, or things (Rule 27).
for the arrest of the witness and 6. Physical and mental examination
make him pay the cost of such of persons (Rule 28).
warrant and seizure, if the court
should determine that his Discovery before answer.
disobedience was willful and It is only in the exceptional or unusual
without just cause (Sec. 8); case that the need for discovery arises,
or that it should be allowed before
b. The refusal to obey a subpoena service of answer.
without adequate cause shall be
deemed a contempt of the court Modes of Discovery are intended to be
issuing it (Sec.9). CUMULATIVE, and not alternative nor
Exceptions: mutually exclusive.
Provisions regarding the compelling of
attendance (Sec. 8) and contempt (Sec. Discovery is NOT MANDATORY but failure
9) does not apply where: to avail carries sanctions in Rules 25 and
26.
a. Witness resides more than 100
km from his residence to the
place where he is to testify by RULE 23
the ordinary course of travel, DEPOSITIONS PENDING ACTION
generally, by overland
transportation (VIATORY DEPOSITION – is a written testimony of a
RIGHT). witness given in the course of a judicial
proceeding in advance of the trial or
b. Permission of the court in which hearing upon oral examination or in
the detention prisoner’s case is response to written interrogatories and
pending was not obtained. where an opportunity is given for cross-
examination.
RULES OF DISCOVERY
DISCOVERY - is the procedure by which Depositions are intended as a means to
one party in an action is enabled to compel disclosure of facts resting in the
obtain before trial knowledge of relevant knowledge of a party or other person,
facts and of material evidence in the which are relevant in a suit/proceeding.
possession of the adverse party or of a
witness. CLASSIFICATIONS OF DEPOSITIONS
1. Depositions on ORAL
Rationale of discovery: to enable the EXAMINATION and Depositions
parties to obtain the fullest possible upon WRITTEN
knowledge of the issues and evidence INTERROGATORIES
long before the trial to prevent such trial 2. Depositions DE BENE ESSE -
from being carried on in the dark. those taken for purposes of a
pending action (Rule 23) ; and
Modes of discovery under the Rules of 3. Depositions IN PERPETUAM REI
Court MEMORIAM - those taken to
1. Depositions pending action (Rule perpetuate evidence for
23). purposes of anticipated action,
2. Depositions before action or or in the event of further
pending appeal (Rule 24). proceedings in a case on appeal,
3. Interrogatories to parties (Rule and to preserve it against danger
25). of loss (Rule 24).

REMEDIAL LAW COMMITTEE


 CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
43 2005 CENTRALIZED BAR OPERATIONS

WHEN TAKEN 3. Not restricted by a protective


WITH LEAVE OF COURT order
1. after jurisdiction has been
obtained over any defendant or Certiorari will not lie against an order
over the property which is the admitting or rejecting a deposition in
subject of the action and evidence, the remedy being an appeal
BEFORE answer. from the final judgment.
2. Deposition of a person confined
in prison. Section 7. Effect of taking depositions.

A party shall not be deemed to make a


WITHOUT LEAVE OF COURT person his own witness for any purpose
AFTER answer AND deponent is not by taking his deposition because
confined in prison. depositions are taken for discovery and
not for use as evidence.
Section 4. Use of depositions.
Where the witness is available to testify Exception: If a party offers the
and the situation is not one of those deposition in evidence, then he is
excepted under Sec. 4, his deposition is deemed to have made the deponent his
inadmissible in evidence and he should witness (Sec.8)
be made to testify.
Exception to the Exception: Unless the
It can be used as evidence by a party for deposition is that of any adverse party,
any purpose under the specific and unless, of course, the deposition is
conditions in Sec. 4. used for impeaching or contradicting the
deponent (Sec.8).

DEPONENT USE Section 10 and 11. Persons before


whom depositions may be taken.
Any person By any party for
contradicting or WITHIN THE PHILIPPINES:
impeaching the 1. judge
testimony of deponent 2. notary public
as witness
3. any person authorized to
A party or any one By an adverse party for
administer oaths, as stipulated
who at the time of any purpose by the parties in writing
the deposition was
an OFFICER, OUTSIDE THE PHILIPPINES:
DIRECTOR, or 1. on notice, before a secretary of
MANAGING AGENT of embassy or legation, consul
a public or private general, consul, vice-consul, or
corp., partnership, consular agent of the Phil.
or association which 2. before such person or officer as
is a party
may be appointed by commission
Witness, whether or By any party for any
or letters rogatory
not a party purpose if the court 3. any person authorized to
finds the 5 instances administer oaths, as stipulated
occurring by the parties in writing

Section 12. Commission or letters


SCOPE OF INQUIRY IN DEPOSITIONS: rogatory.
1. Matter which is relevant to the
subject of the pending action;
2. Not privileged COMMISSION LETTERS ROGATORY
Issued to a non- Issued to the
2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT
CHAIRPERSONS
Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda
Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-
EDP), Anna Margarita Eres (VC-Logistics) Jonathan
Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law),
Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial
Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)
San Beda College of Law
44

MEMORY AID IN REMEDIAL LAW

judicial foreign officer appropriate judicial


who will directly take officer of the foreign Section 6. Use of deposition.
the testimony country who will direct
somebody in said If deposition is taken under this Rule, it
foreign country to take
may be used in any action involving the
down testimony
SAME SUBJECT MATTER subsequently
Applicable rules of Applicable rules of
procedure are those of procedure are those of brought.
the requesting court the foreign court
requested to act Section 7. Depositions pending appeal.
Resorted to if Resorted to if the Sec. 7 is the procedure in perpetuating
permission of the execution of the testimony AFTER JUDGMENT IN THE RTC
foreign country is commission is refused in and DURING THE PENDENCY OF AN
given the foreign country APPEAL.
Leave of court is not Leave of court is
necessary necessary
Section 18. Motion to terminate or
limit examination. RULE 25
INTERROGATORIES TO PARTIES
MAY BE FILED:
1. any time during the taking of the PURPOSE of Written Interrogatories: to
deposition elicit facts from any adverse party
2. on motion or petition of any (answers may also be used as admissions
party or of the deponent; or of the adverse party)
3. upon showing that the
examination is conducted in : Written interrogatories and the answers
a. bad faith thereto must both be FILED and SERVED.
b. in such manner as
unreasonably to annoy,
embarrass, or oppress
the deponent or party Interrogatories Bill of Particulars
A party may properly A party may properly
seek disclosure of seek disclosure only of
matters of proof matters which define
RULE 24
which may later be the issues and become
DEPOSITIONS BEFORE ACTION OR made a part of the a part of the
PENDING APPEAL records as evidence. pleadings.

Depositions under this Rule are also A party may serve written
taken conditionally, to be used at the interrogatories:
trial only in case the deponent is not 1. WITHOUT LEAVE OF COURT –
available. after answer has been served,
for the first set of
Depositions under this Rule do not prove interrogatories.
the existence of any right and the 2. WITH LEAVE OF COURT – before
testimony perpetuated is not in itself answer has been served
conclusive proof, either of the existence (REASON: at that time, the
of any right nor even of the facts to issues are not yet joined and the
which they relate, as it can be disputed facts are not yet clear,
controverted at the trial in the same when more than one set of
manner as though no perpetuation of interrogatories is to be served.)
testimony was ever had. However, in the
absence of any objection to its taking, A judgment by default may be rendered
and even if the deponent did not testify against a party who fails to answer
at the hearing, the perpetuated written interrogatories
testimony constitutes prima facie proof
of facts referred to in the deposition.

REMEDIAL LAW COMMITTEE


 CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
45 2005 CENTRALIZED BAR OPERATIONS

Only one set of interrogatories by the As to Scope As to Scope


same party is allowed. Leave of court is Direct, cross, redirect, only one set of
necessary for succeeding sets of re-cross interrogatories
interrogatories.
Interrogatories Interrogatories
no fixed time 15 days to answer
Section 6. Effect of failure to serve
unless extended or
written interrogatories. reduced by the court

Rule 25 and Rule 26 are directed to the


party who fails and refuses to RESORT to
the discovery procedures, and should not RULE 26
be confused with the provisions of Rule ADMISSION BY ADVERSE PARTY
29 which provides for sanctions or other
consequences upon a party who refuses Section 1. Request for admission.
or fails to COMPLY with discovery
procedures duly availed of by opponent. PURPOSE OF written request for
admission is to expedite trial and relieve
the parties of the costs of proving facts
which will not be disputed on trial and
The justification for this provision is that the truth of which can be ascertained by
the party in need of relevant facts reasonable inquiry.
having foregone the opportunity to
inquire into the same from the other When request may be made: at any time
party through means available to him, he after the issues have been joined.
should not thereafter be permitted to
unduly burden the latter with courtroom What request may include
appearances or other cumbersome 1. Admission of the genuineness of
processes. any material and relevant
document described in and
Unless a party had been served written exhibited with the request.
interrogatories, he may not be 2. Admission of the truth of any
compelled by the adverse party: material and relevant matter of
1. to give testimony in open court, fact set forth in the request.
or 3. Under this rule, a matter of fact
2. give a deposition pending not related to any documents
appeal. may be presented to the other
party for admission or denial.
The only exception is when the court
allows it for GOOD CAUSE shown and to Section 2. Implied Admission.
prevent a failure of justice. The effect of a FAILURE to make a reply
to a request for admission is that each of
the matters of which an admission is
Depositions Upon Interrogatories to
requested is deemed admitted.
Written Parties under Rule
Interrogatories to 25
A sworn statement either denying
Parties under Rule
specifically each matter or setting forth
23 Sec. 25
in detail the reasons why he cannot
As to Deponent As to Deponent
Party or ordinary party only truthfully admit or deny those matters
witness must be filed and served upon the party
requesting the admission.
As to Procedure As to Procedure
With intervention of no intervention.
Section 3. Effect of admission.
the officer authorized Written
by the Court to take interrogatories are
USE: An admission under this section is
deposition directed to the party for the purpose of the pending action
himself only and cannot be used in other
proceedings.
2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT
CHAIRPERSONS
Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda
Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-
EDP), Anna Margarita Eres (VC-Logistics) Jonathan
Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law),
Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial
Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)
San Beda College of Law
46

MEMORY AID IN REMEDIAL LAW

are not covered by the physician-patient


The party who fails or refuses to request privilege.
the admission of facts in question is
prevented from thereafter presenting Section 4. Waiver of privilege.
evidence thereon UNLESS otherwise
allowed by the court (Sec.5). Where the party examined requests and
obtains a report on the results of the
examination the consequences are:
RULE 27 1. he has to furnish the other party
PRODUCTION OR INSPECTION OF a copy of the report of any
DOCUMENTS OR THINGS previous or subsequent
examination of the same
Production of documents affords more physical and mental condition,
opportunity for discovery than a AND
subpoena duces tecum because in the 2. he waives any privilege he may
latter, the documents are brought to the have in that action or any other
court for the first time on the date of involving the same controversy
the scheduled trial wherein such regarding the testimony of any
documents are required to be produced. other person who has so
The TEST to be applied in determining examined him or may thereafter
the relevancy of the document and the examine him.
sufficiency of their description is one of
reasonableness and practicality. RULE 29
REFUSAL TO COMPLY WITH MODES OF
PRODUCTION OR SUBPOENA DUCES DISCOVERY
INSPECTION OF TECUM
DOCUMENTS OR SANCTIONS
THINGS 1. Contempt;
Essentially a mode of means of compelling 2. Payment of reasonable fees;
discovery production of evidence 3. The matters regarding which the
The Rules is limited to may be directed to a questions were asked, character
the parties to the person whether a or description of land et al., be
action party or not taken to be in accordance with
The order under this may be issued upon an the claim of party obtaining the
Rule is issued only ex parte application.
order;
upon motion with
notice to the adverse 4. Prohibition on the refusing party
party to produce evidence or support
or oppose designated claims or
defenses;
5. Striking out pleadings, order the
RULE 28 dismissal of the action or stay
PHYSICAL AND MENTAL EXAMINATION the action until compliance or to
OF PERSONS render judgment by default.
6. Order the arrest of the refusing
party except in cases of physical
The mental condition of a party is in or mental examination.
controversy in proceedings for
GUARDIANSHIP over an imbecile or RULE 30
insane person, while the physical TRIAL
condition of the party is generally
involved in PHYSICAL INJURIES cases. TRIAL – judicial process of investigating
and determining the legal controversies
Since the results of the examination are starting with the production of evidence
intended to be made public, the same by the plaintiff and ending with his
closing arguments.

REMEDIAL LAW COMMITTEE


 CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
47 2005 CENTRALIZED BAR OPERATIONS

render his non-attendance


GENERAL RULE: when an issue exists, excusable.
trial is necessary. Decision should not be
made without trial. Section 5. Order of trial unless
EXCEPTIONS: when there may be directed by the court.
judgment without trial:
1. Judgment on the Pleading
(Rule 34)
2. Summary Judgment (Rule 35)
3. Judgment on Compromise
4. Judgment by Confession
5. Dismissal with Prejudice
(Rule 17)

Section 3. Requisites of motion to


postpone trial for absence of evidence.

There must be an affidavit showing:


1. materiality or relevance of such
evidence; and Unless the court for special reasons
2. due diligence in procuring it. otherwise directs, the trial shall be
limited to the issues stated in the pre-
If the adverse party admits the facts for trial order.
which evidence is to be presented, the
trial will not be postponed. Section 6. Agreed statements of facts.
This is known as STIPULATION OF FACTS
Section 4. Requisites of motion to and is among the purposes of a pre-trial.
postpone trial for illness of party or
counsel. The parties may also stipulate verbally in
There must be an affidavit or sworn open court. Such stipulations are binding
certification showing: unless relief therefrom is permitted by
1. presence of party or counsel at the court on good cause shown, such as
the trial is indispensable; and error or fraud.
2. character of his illness is such as
to But counsel cannot stipulate on what
Plaintiff presents their respective EVIDENCE consists of
evidence and ask that judgment be rendered on
the basis of such stipulation.

Defendant presents Defendant files Stipulations of facts are not permitted in


evidence to demurrer to actions for ANNULMENT OF MARRIAGE
support his evidence and for LEGAL SEPARATION.
defense/countercla
im/crossclaim/ Section 8. Suspension of actions.
third party Art. 2030 of the Civil Code. Every civil
complaint
action or proceeding shall be suspended
1. If willingness to discuss a
possible compromise is
expressed by one or both
Third If court If court parties; or
party grants denies
defendant motion: motion:
2. If it appears that one of the
presents Renders Continues parties, before the
eidence, if dismisal with commencement of the action or
any hearing proceeding, offered to discuss a

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT


CHAIRPERSONS
RebuttalMaricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda
EvidenceTolentino(VC-Acads),
by After
Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-
PartiesEDP), Anna Margarita Presentation
Eres (VC-Logistics)
of Jonathan
Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law),
evidence:
Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial
Law), Jinky Ann Uy (Remedial oral
Law),arguments
Jackie Lou Bautista (Legal Ethics)
submission of
DECISION memoranda
San Beda College of Law
48

MEMORY AID IN REMEDIAL LAW

possible compromise but the 1. by RECASTING THE CASES


other party refused the offer. ALREADY INSTITUTED,
conducting only one hearing and
Section 9. Judge to receive evidence; rendering only one decision;
delegation to clerk of court. 2. by CONSOLIDATING THE EXISTING
GENERAL RULE: the judge must himself CASES and holding only one
personally receive and resolve the hearing and rendering only one
evidence of the parties. decision; and
However, the reception of such 3. by HEARING ONLY THE PRINCIPAL
evidence may be delegated under the CASE and suspending the hearing
following conditions: on the others until judgment has
1. The delegation may be made been rendered in the principal
only in defaults or ex parte case. (TEST-CASE METHOD)
hearings, or an agreement in
writing by the parties. Consolidation of cases on appeal and
2. The reception of evidence shall assigned to different divisions of the SC
be made only by the clerk of and the CA is also authorized. Generally,
that court who is a member of the case which was appealed later and
the bar. bearing the higher docket no. is
3. Said clerk shall have no power to consolidated with the case having the
rule on objections to any lower docket no.
question or to admission of
evidence or exhibits; and
4. He shall submit his report and RULE 32
transcripts of the proceedings, TRIAL BY COMMISSIONER
together with the objections to
be resolved by the court, within COMMISSIONER- a person to whom a
10 days from the termination of cause pending in court is referred, for
the hearing. him to take testimony, hear the parties
and report thereon to the court, and
RULE 31 upon whose report, if confirmed,
CONSOLIDATION OR SEVERANCE judgment is rendered.
Reference to a commissioner may be had
GENERAL RULE: Consolidation is by the written consent of both parties.
discretionary upon the court
EXCEPTIONS: Consolidation becomes a Situations when reference to a
matter of duty when: Commissioner may be made on motion
1. if the cases are pending before (Sec.2):
the same judge OR 1. Examination of a long account
2. if filed with different branches 2. Taking of an account is
of a court and one of such cases necessary
has NOT been partially tried. 3. Question of fact, other than
upon the pleading arises; or
REQUISITES FOR CONSOLIDATION: 4. Carrying a judgment or order
1. When actions involving a into effect.
common question of law or fact,
and Disobedience to a subpoena issued by
2. The actions are pending before the commissioner is deemed a contempt
the same court of the court which appointed the latter.
if filed with DIFFERENT
courts, authorization from RULE 33
the SC is necessary. DEMURRER TO EVIDENCE

3 WAYS OF CONSOLIDATING CASES: Section 1. Demurrer to evidence.

REMEDIAL LAW COMMITTEE


 CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
49 2005 CENTRALIZED BAR OPERATIONS

is reversed by the jeopardy sets-in


appellate court, it will
DEMURRER TO MOTION TO DISMISS decide the case on the
EVIDENCE basis of the plaintiff’s
It is presented after presented before a evidence with the
the plaintiff has responsive pleading consequence that the
rested his case (answer) is made by defendant already loses
the defendant his right to present
The ground is based it may be based on any evidence no res
on insufficiency of of those enumerated judicata in dismissal
evidence in Rule 16 due to demurrer
if court denies if court denies the
demurrer, defendant demurrer:
2 Scenarios
will present his If demurrer was with
evidence leave, accused may
MOTION DENIED MOTION GRANTED present his evidence
If the demurrer was
BUT REVERSED ON without leave,
APPEAL accused can no
Movant shall have the Movant is deemed to longer present his
right to present his have waived his right evidence and submits
evidence to present evidence. the case for decision
The decision of the based on the
appellate court will prosecution’s
be based only on the evidence
evidence of the
plaintiff as the
defendant loses his JUDGMENT ON DEMURRER TO EVIDENCE
right to have the case is a judgment rendered by the court
remanded for
dismissing a case upon motion of the
reception of his
evidence. defendant, made after plaintiff has
denial is order of the court is rested his case, on the GROUND that
INTERLOCUTORY. Sec. an ADJUDICATION ON upon the facts presented by the plaintiff
1 , Rule 36 (that THE MERITS, hence, and the law on the matter, plaintiff has
judgment should state the requirement in not shown any right to relief.
clearly and distinctly Sec. 1, Rule 36
the facts and the law should be complied RULE 34
on which it is based), with. JUDGMENT ON THE PLEADINGS
will not apply.
The denial is NOT
appealable.
A judgment on the pleadings must be on
motion of the claimant. (NO
SUPPORTING PAPERS ARE REQUIRED
CIVIL CASES CRIMINAL CASES BECAUSE EVERTHING IS BASED ON THE
Defendant need not ask leave of court is PLEADINGS.)
for leave of court; necessary so that the
accused could HOWEVER, if at the pre-trial the court
present his evidence
finds that a judgment on the pleadings is
if the demurrer is
denied proper, it may render such judgment
if the court finds if the court finds the motu proprio.
plaintiff’s evidence prosecution’s
insufficient, it will evidence insufficient, GROUNDS:
grant the demurrer by it will grant the 1. Answer fails to tender an issue
dismissing the demurrer by because of:
complaint. The rendering judgment a. general denial of the
judgment of dismissal is acquitting the material allegations of
appealable by the accused. Judgment of the complaint;
plaintiff. If plaintiff acquittal is not
appeals and judgment appeallable; double

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT


CHAIRPERSONS
Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda
Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-
EDP), Anna Margarita Eres (VC-Logistics) Jonathan
Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law),
Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial
Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)
San Beda College of Law
50

MEMORY AID IN REMEDIAL LAW

b. insufficient denial of the 2. Defendant: he can move for


material allegations of summary judgment at anytime, that
the complaint ; or is, anytime after filing and service of
2. Answer admits material the complaint even before he
allegations of the adverse answers
party’s pleading
The motion for summary judgment must
• By moving for judgment on the be supported by (1) affidavit, (2)
pleading, plaintiff waives his claim depositions of the adverse party or a
for unliquidated damages. Claim for third party, or (3) admissions of the
such damages must be alleged and adverse party, all intended to show that:
proved. a. there is no genuine issue as to
any material fact, except
NO JUDGMENT ON THE PLEADINGS IN damages which must always be
ACTIONS FOR proved, and
1. Declaration of nullity of b. the movant is entitled to a
marriage judgment as a matter of law.
2. Annulment of marriage
3. Legal Separation The summary judgment may be a
judgment on the merits, in which case,
an appeal may be taken therefrom.

Motion to Dismiss Motion for


judgment on the SUMMARY JUDGMENT JUDGMENT
pleadings JUDGMENT ON THE BY DEFAULT
PLEADINGS (Rule 9)
Filed by a defendant Filed by the plaintiff Based on the based solely on based on the
to a complaint, if the answer raises pleadings, the pleadings. complaint and
counterclaim, cross- no issue. depositions, evidence, if
claim or 3rd-party admissions presentation is
complaint and affidavits required.
Available to generally Available to
both plaintiff available only plaintiff.
If the complaint states no cause of and defendant to the plaintiff,
action, a motion to dismiss should be unless the
filed and not a motion for judgment on defendant
the pleading. presents a
counterclaim.
There is The answer no issues as no
no genuine fails to tender answer is filed
RULE 35
issue between an issue or by the
SUMMARY JUDGMENTS the parties, there is an defending
i.e. there may admission of party.
SUMMARY JUDGMENT be issues but material
One granted by the court for the prompt these are allegations.
disposition of civil actions wherein it irrelevant
clearly appears that there exists NO 10-day notice 3-day notice 3-day notice
genuine issue or controversy as to any required required rule applies.
material fact. May be On the merits On the merits
interlocutory
or on the
Who can File merits
1. Plaintiff: he must wait for the
answer to be filed and served, and
thus for the issue to be joined, RULE 36
before he can move for summary JUDGMENTS, FINAL ORDERS AND ENTRY
judgment. THEREOF

REMEDIAL LAW COMMITTEE


 CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
51 2005 CENTRALIZED BAR OPERATIONS

1. To make corrections of
clerical errors, not
JUDGMENT- final consideration and substantial amendments, as
determination by a court of the rights of by an amendment nunc pro
the parties, upon matters submitted to it tunc.
in an action or proceeding. 2. To clarify an ambiguity
which is borne out by and
The date of finality of the judgment or justifiable in the context of
final order shall be deemed to be the the decision.
date of its entry. 3. In judgments for support,
which can always be
REQUISITES OF A JUDGMENT: amended from time to time.
1. It should be in writing, personally
and directly prepared by the judge
2. Must state clearly and distinctly the MANNER OF ATTACKING JUDGMENTS:
facts and the law on which it is
based 1. Direct attack
3. It should contain a dispositive part a. before finality
and should be signed by the judge 1. motion for new trial or
and filed with the clerk of court. reconsideration;
2. appeal
PROMULGATION- the process by which a b. after finality
decision is published, officially 1. relief from judgment, rule
announced, made known to the public or 38
delivered to the clerk of court for filing, 2. annulment of judgment,
coupled with notice to the parties or Rule 47.
their counsel.
2.Collateral attack
MEMORANDUM DECISION- a decision of
the appellate court which adopts the
findings and the conclusion of the trial
court.
JUDICIAL COMPROMISE
PROMULGATION OF JUDGMENT
• A judgment based on a
compromise which has the force
Court Renders Decision
of law and is conclusive between
parties.
• Not appealable.
Filing appeal within
Losing Party 15/30 days from
A JUDGMENT is considered RENDERED notice of judgment
Upon filing of the signed decision. This
includes an amended decision because
an amended decision is a distinct and
separate judgment and must follow the Accepts Within 15/30 days
established procedural rule. decision from notice of
without further judgment:
contest Motion for
The power to amend a judgment is reconsideration; or
inherent to the court before judgment motion for new trial
becomes final and executory.
Court
After judgment has become executory, maintains
the court cannot amend the same decision
Court grants motion:
1.modifies decision; or
EXCEPT: 2.grants new trial
If no appeal is
taken or did
not avail of
2005 CENTRALIZED BAR OPERATIONSremedies, EXECUTIVE COMMITTEE AND SUBJECT
CHAIRPERSONS judgment
Maricel Abarentos (Over-all Chairperson), Ronaldbecomes Jalmanzar
final (Over-all Vice Chair), Yolanda
Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo
Losing party may
and executory(VC-Finance), Elaineappeal
Masukat (VC-
within the
EDP), Anna Margarita Eres (VC-Logistics) Jonathan
Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla remaining period
(Civil Law),
Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial
Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)
San Beda College of Law
52

MEMORY AID IN REMEDIAL LAW

Section 4. Several judgments.


Several judgment is proper where the Two kinds of judgment by confession
liability of each party is clearly 1. A judgment by COGNOVIT
separable and distinct from his co- ACTIONEM – here, the defendant
parties such that the claims against each after service instead of entering
of them could have been the subject of a plea, acknowledged and
separate suits, and the judgment for or confessed that the plaintiff’s
against one of them will not necessarily cause of action was just and
affect the other. rightful.
2. A judgment by CONFESSION
A several judgment is NOT proper in RELICTA VERIFICATIONE – after
actions against solidary debtors. pleading and before trial, the
defendant both confessed the
Section 6. Separate Judgments plaintiff’s cause of action and
Proper when more than one claim for withdrew or abandoned his plea
relief is presented in an action and a or other allegations, whereupon
determination as to the issues material judgment was entere against him
to the claim has been made. The action without proceeding to trial.
shall proceed as to the remaining
claims.
Judgment upon Judgment by
Compromise Confession
The provisions and An affirmative and
Judgment NUNC PRO TUNC (literally terms are settled and voluntary act of the
agreed upon by the defendant himself.
means “now for then”)
parties to the action, The court exercises a
• rendered to enter or record such and which is entered certain amount of
judgment as has been formerly in the record by the supervision over the
rendered but has not been consent of the court. entry of judgment.
entered as thus rendered
• its only function is to record Clarificatory Judgment
some act of the court which was rendered by the court, upon motion,
done at a former time, but when a judgment previously rendered is
which was not then recorded, in ambiguous and difficult to comply with.
order to make the record speak
the truth, without any changes AMENDED OR SUPPLEMENTAL
in substance or any material CLARIFIED DECISION
respect. JUDGMENT

Judgment upon Agreement or It is an entirely new Does not take the


Compromise decision and place of or extinguish
A compromise agreement between the supersedes the the original judgment
parties to a case on which the decision original judgment
of the court was based has upon the
parties the effect and authority of res Court makes a Serves to bolster or
thorough study of the add to the original
judicata. It is immediately executory.
original judgment and judgment
renders the amended
Judgment by Confession and clarified judgment
Judgment upon confession is one which only after considering
is rendered against a party upon his all the factual and
petition or consent. It usually happens legal issues
when the defendant appears in court and
confesses the right of the plaintiff to RULE 37
judgment or files a pleading expressly NEW TRIAL OR RECONSIDERATION
agreeing to the plaintiff’s demand.

REMEDIAL LAW COMMITTEE


 CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
53 2005 CENTRALIZED BAR OPERATIONS

it may amend such


Order denying judgment or final order
motion for new trial accordingly

Second motion for new trial REQUISITES for NEWLY-DISCOVERED


based on grounds not existing or EVIDENCE
available when 1st motion was 1. Must have been discovered after
filed trial
2. Could not have been discovered
Appeal from the judgment or
and produced at the trial
final order and assign as one of 3. If presented, would alter the
the errors the denial of the result of the action
motion for new trial 4. Otherwise it is called
FORGOTTEN EVIDENCE.
An order denying a motion for new trial
A motion suspends or tolls the running of
is not appealable.
the reglementary period for appeal
except when the same is pro-forma.
NEW TRIAL - the rehearing of a case
already decided by the court but before
PRO-FORMA MOTION - when it does not
the judgment rendered thereon becomes
comply with Rule 15 and Rule 37, e.g. it
final and executory, whereby errors of
does not point out specifically the
law or irregularities are expunged from
findings or conclusions of the judgment
the record, or new evidence is
as are contrary to law, making express
introduced, or both steps are taken.
reference to the testimonial or
Purpose: to set aside the judgment or
documentary evidence or to the
final order and grant a new trial.
provisions of law alleged to be contrary
to such findings or conclusions, and is
WHEN to file: within period for taking
merely intended to delay the
appeal.
proceedings OR if there is no affidavit of
merit.
WHERE to file: with the trial court
which rendered the questioned
Section 6. Effect of granting of motion
judgment.
for new trial
When motion is granted, the original
MOTION FOR A NEW MOTION FOR
judgment is thereby vacated and the
TRIAL RECONSIDERATION
action stands for trial de novo, but the
The grounds are: fraud, The grounds are: the
accident, mistake or damages awarded are recorded evidence taken upon the
excusable negligence or excessive, that the former trial so far as the same is
newly discovered evidence is insufficient material and competent to establish the
evidence which could to justify the decision issues, shall be used at the new trial
not, with reasonable or final order, or that taking the same.
diligence, have the decision or final
discovered and produced order is contrary to The order denying a motion for new trial
at the trial, and which if law. is NOT appealable.
presented would
probably alter the result
Second motion may be Second motion from
MOTION FOR NEW MOTION FOR
allowed same party is TRIAL REOPENING OF THE
prohibited TRIAL
If a new trial is granted if the court finds that Specifically Not mentioned in the
the trial court will set excessive damages mentioned in the Rules but is
aside the judgment or have been awarded or Rules nevertheless a
final order that the judgment or recognized procedural
final order is contrary recourse or device
to the evidence or law, deriving validity and
2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT
CHAIRPERSONS
Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda
Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-
EDP), Anna Margarita Eres (VC-Logistics) Jonathan
Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law),
Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial
Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)
San Beda College of Law
54

MEMORY AID IN REMEDIAL LAW

acceptance from long o DIRECT ATTACK – when the


established usage validity of the judgment
NOTE: It is actually itself is the main issue of the
mentioned in the Rules action, a petition for
of Criminal Procedure
certiorari and action to
Proper only after May properly be
promulgation of presented only after annul judgment on the
judgment either or both the ground of extrinsic fraud or
parties have formally lack of jurisdiction
offered and closed o COLLATERAL ATTACK – if the
their evidence before judgment can be resisted in
judgment any other action in which it
Based upon specific Controlled by no other is involved.
grounds set forth rule than the
under Rule 37 in civil paramount interests of
cases and Rule 121 in justice, resting entirely
criminal cases on the sound discretion RULE 37 RULE 38
of a trial court, the Available BEFORE Available AFTER
exercise of which judgment becomes judgment has become
discretion will not be final and executory final and executory
reviewed on appeal Applies to Applies to judgments,
UNLESS a clear abuse JUDGMENTS or FINAL final orders and other
thereof is shown ORDERS only proceeding:

1.Land Registration
MOTION FOR RECONSIDERATION 2.Special Proceedings
Purpose: To reconsider or amend 3. Order of Execution
judgment or final order
GROUNDS: GROUNDS:
WHEN to file: within period for taking an i. FAME FAME
appeal ii. Newly discovered
evidence
WHERE to file: with the trial court WHEN AVAILED OF: WHEN AVAILED OF:
which rendered the judgment or final Within the time to within 60 days from
order sought to be reconsidered appeal knowledge of the
judgment AND
RULE 38
RELIEF FROM JUDGMENTS, ORDERS, OR within 6 months from
entry of judgment
OTHER PROCEEDINGS
If denied, the order If denied, the order
of denial is NOT denying a petition for
REMEDIES AGAINST FINAL AND appealable, hence relief is NOT
EXECUTORY JUDGMENTS OR ORDERS remedy is appeal appealable; the
from the judgment remedy is appropriate
1. Petition for Relief from civil action under Rule
Judgment (Rule 38) 65
2. Annulment of judgments or final Legal remedy Equitable remedy
orders or resolutions (Rule 47) on Motion need not be Petition must be
the ground of: verified verified
o Extrinsic fraud, to be filed
within 4 years from the TWO HEARINGS UNDER RULE 38
discovery of the fraud; 1. Hearing to determine whether
o Lack of jurisdiction, before the judgment should be set aside
it is barred by laches or 2. If yes, a hearing on the merits of
estoppel the case.
3. Direct or collateral attack
against a void or voidable The period fixed by Rule 38 is non-
judgment extendible and is never interrupted.

REMEDIAL LAW COMMITTEE


 CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
55 2005 CENTRALIZED BAR OPERATIONS

particular proceedings or action, leaving


RULE 39 nothing to be done by the court but to
EXECUTION, SATISFACTION AND enforce by execution what has been
EFFECT OF JUDGMENTS determined.
EXECUTION OF JUDGMENT
EXECUTION – remedy provided by law
for the enforcement of a final judgment.

AGAINST WHOM ISSUED: execution can


only issue against a party and not against
one who has not had his day in court.

WRIT OF EXECUTION: judicial writ


issued to an officer authorizing him to
execute the judgment of the court.

ESSENTIAL REQUISITE OF A WRIT OF


EXECUTION: a writ of execution to be TEST TO DETERMINE WHETHER A
valid, must conform strictly to the JUDGMENT OR ORDER IS FINAL OR
decision or judgment which gives it life. INTERLOCUTORY: The test is whether
the judgment or order leaves nothing
It cannot vary the terms of the judgment more for the court to do with respect to
it seeks to enforce the merits of the case.

FINAL JUDGMENT OR ORDER- one which SPECIAL JUDGMENT – one that requires
disposes of the whole subject matter or the performance of an act OTHER THAN:
1. The payment of money; and
Judgment is If the winning 2. The sale of real or personal
executed by party does not property
motion within move for Section 1. Execution Upon Judgments
5 years from execution w/in
date of its 5 years but
and Final Orders.
entry before 10
years from the EXECUTION ISSUES AS A MATTER OF
date of entry RIGHT:
of judgment, 1. on motion
Execution is a the same can 2. upon a judgment or order that
matter of right only be revived disposes of the action or
after by means of a proceeding AND
expiration of new action / 3. upon expiration of the period to
period to petition
appeal therefrom and NO appeal
appeal and no has been duly perfected.
appeal is
perfected terminates the GENERAL RULE: court cannot refuse
execution
Discretionary UNLESS:
execution upon
1. Execution is UNJUST OR
good reasons
stated in a
IMPOSSIBLE
special order 2. Equitable grounds like a CHANGE
after due IN SITUATION of the parties
hearing which makes execution
inequitable
3. Judgment NOVATED by parties
4. Execution is enjoined
Sheriff enforces writ of execution 5. Judgment has become DORMANT

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT


CHAIRPERSONS
Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda
Losing party is made to indemnify
Tolentino(VC-Acads), Jennifer Angthru:
(VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-
EDP), Anna Margarita Eres (VC-Logistics) Jonathan
payment with interest;
Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law),
levy and sale
Charmaine of personal
Torres (Taxationproperty;
Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial
levy Jinky
Law), and sale
AnnofUyreal property;
(Remedial Law), Jackie Lou Bautista (Legal Ethics)
delivery of personal and real property
San Beda College of Law
56

MEMORY AID IN REMEDIAL LAW

QUASHAL OF WRIT PROPER WHEN:


1. Improvidently issued The court may, in its discretion, order an
2. Defective in substance execution before the expiration of the
3. Issued against the wrong party time within which to appeal provided:
4. Judgment already satisfied 1. There is a motion for execution
5. Issued without authority filed by the winning party
2. There is notice of said motion to
Section 2. Discretionary Execution the adverse party; and
3. There are good reasons stated in
a special order after due
DISCRETIONARY EXECUTION AS A hearing.
EXECUTION MATTER OF RIGHT
GENERAL RULE: an order of execution is
NOT appealable otherwise there would
May issue before Period to appeal has be no end to the litigation between the
the lapse of period already lapsed and parties.
to appeal no appeal is EXCEPTIONS:
perfected 1. When the terms of the judgment
are not very clear;
Discretionary upon Ministerial duty of
the court; there is the court PROVIDED
2. When the order of execution
inquiry on whether there are no varies with the tenor of the
there is GOOD supervening events judgment.
REASON for
execution Section 4. Judgments NOT Stayed By
Appeal
1. INJUNCTION
2. RECEIVERSHIP
3. ACCOUNTING
4. SUPPORT
GROUNDS FOR EXECUTION PENDING 5. Such other judgments
APPEAL: declared to be immediately
1. Insolvency of the judgment executory unless otherwise
debtor. ordered by the trial court.
2. Wastage of asset by judgment
debtor. Section 6. Execution By Motion Or
Independent Action.
Section 3. Stay of Discretionary
Execution. The party against whom an MODE OF ENFORCEMENT
execution is directed may file a 1. By motion within 5 years from
supersedeas bond to stay discretionary date of its entry
execution. 2. By independent action after 5
years from entry AND before it is
SUPERSEDEAS BOND- one filed by a barred by statute of limitations
petitioner and approved by the court
before the judgment becomes final and Judgment for support does not become
executory and conditioned upon the dormant, thus it can always be executed
performance of the judgment appealed by motion.
from in case it be affirmed wholly or in
part. 5-year period may be extended by the
conduct of judgment debtor.
Supersedeas bond guarantees
satisfaction of the judgment in case of A revived judgment is a new judgment
affirmance on appeal, not other things thus another 5/10-year period to
like damage to property pending the execute and revive is given the party.
appeal

REMEDIAL LAW COMMITTEE


 CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
57 2005 CENTRALIZED BAR OPERATIONS

Section 7. Execution In Case Of Death purposes or the execution sale. The levy
Of Party. on execution shall create a lien in favor
If the obligor dies AFTER entry but or the judgment creditor over the right,
BEFORE LEVY on his property, execution title and interest of the judgment debtor
will be issued for recovery of real or in such property at the time of the levy.
personal property or enforcement of a
lien thereon. But for a sum of money, The levy on execution creates a lien in
judgment cannot be enforced by writ but favor of the judgment creditor subject
as a claim against his estate/probate to prior liens and encumbrances.
proceedings.
GARNISHMENT - act of appropriation by
If he dies AFTER a VALID LEVY has been the court when property of debtor is in
made, execution sale proceeds. the hands of third persons
Section 8. Issuance, Form and Contents
of a Writ of Execution. The garnishee or the 3rd person who is in
possession of the property of the
Remedies in an order granting or judgment debtor is deemed a forced
denying the issuance of a writ of intervenor.
execution
Appeal is the remedy for an order
denying the issuance of a writ of
execution.
ATTACHMENT GARNISHMENT
Refers to corporeal refers to money,
Section 10. Execution Of Judgments
property in the stocks, credits and
For Specific Act. possession of the other incorporeal
If party REFUSES TO VACATE PROPERTY, judgment debtor. property which belong
remedy is NOT contempt. The Sheriff to judgment debtor
must oust the party. But if demolition is but is in the possession
involved, there must be a special order. or under the control of
a third person
If party REFUSES TO DELIVER, sheriff will
take possession and deliver it to winning
party. Section 16. Proceedings Where
Property Claimed By Third Person.
When the party REFUSES TO COMPLY,
court can appoint some other person at REMEDIES of THIRD PARTY CLAIMANT
the expense of the disobedient party and
the act done shall have the same effect 1. Summary hearing before the
as if the required party performed it, court which authorized the
the disobedient party incurs no liability execution;
for contempt. 2. TERCERIA or third party claim
filed with the sheriff;
Section 11. Execution of Special 3. Action for damages on the bond
Judgments. posted by judgment creditors; or
When judgment requires the 4. Independent reinvidicatory
performance of any act other than for action.
money and delivery of property.
The remedies are cumulative and may be
The writ of execution shall be served resorted to by third party claimant
upon the party required to obey the independently of or separately from the
same and such party may be punished others.
for contempt if he disobeys.
If winning party files a bond, it is only
LEVY - act by which an officer sets apart then that the sheriff can take the
or appropriates a part of the whole of property in his possession. IF NO BOND,
the property of the judgment debtor for cannot proceed with the sale.
2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT
CHAIRPERSONS
Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda
Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-
EDP), Anna Margarita Eres (VC-Logistics) Jonathan
Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law),
Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial
Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)
San Beda College of Law
58

MEMORY AID IN REMEDIAL LAW

SALE ON EXECUTION The period of redemption is NOT


Notice of sale is required before levied suspended by an action to annul the
property can be sold at public auction foreclosure sale.
(Sec. 15).
CAN REDEMPTION BE PAID IN OTHER
Remedy against an irregular sale is FORMS THAN CASH?
MOTION TO VACATE OR SET ASIDE THE YES. The rule is liberality in allowing
SALE to be filed in the court which redemption (aid rather than defeat the
issued the writ. right) and it has been allowed in the
case of a cashier’s check, certified bank
REDEMPTION (Secs. 27 & 28) checks and even checks.
Right of Redemption:
1. Personal Property – NONE; sale is The offer to redeem must be
absolute accompanied with a bona fide tender or
2. Real Property – there is a right of delivery of the redemption price.
redemption
However, a formal offer to redeem with
WHO may redeem (Sec. 27) a tender is not necessary where the right
Only the following: to redeem is exercised through the filing
a. Judgment obligor, or his of a complaint to redeem in the courts,
successor in interest, in whole or within the period to redeem.
any part of the property; OR
b. Redemptioner who is a creditor RIGHTS OF THE JUDGMENT DEBTOR:
having a: 1. Remain in possession of the
1) Lien by attachment on property
the property sold 2. Collect rents and profits
subsequent to the lien 3. Cannot be Ejected
under which the 4. Use the property in the same
property was sold, manner it was previously used
2) Lien by judgment on the 5. Make necessary repairs
property sold subsequent
to the lien under which Section 33. Deed and possession to be
the property was sold; given at expiration of redemption
3) Lien by mortgage on the period; by whom executed or given.
property sold subsequent
to the lien under which
the property was sold. The PURCHASER is entitled to a
CONVEYANCE AND POSSESSION of the
WHEN CAN REDEMPTION BE MADE? property if there is no redemption. He is
substituted to and acquires all the
BY THE JUDGMENT OBLIGOR: Within one rights, title, interest and claims of the
(1) year from the date of registration of judgment obligor to the property at the
the certificate of sale. time of levy.

BY THE REDEMPTIONER: The deed of conveyance is what


1. Within one year from the date of operates to transfer to the purchaser
registration of the certificate of whatever rights the judgment debtor
sale; or had in the property. The certificate of
2. Within sixty days from the last sale after execution sale merely is a
redemption by another memorial of the fact of sale and does
redemptioner not operate as a conveyance.
If the judgment obligor redeems, no
further redemption is allowed (Sec. The purchaser acquires no better right
29). than what the judgment debtor has in

REMEDIAL LAW COMMITTEE


 CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
59 2005 CENTRALIZED BAR OPERATIONS

the property levied upon. Thus, if the satisfaction of the judgment


judgment debtor had already transferred (Section 37)
the property executed prior to the levy
and no longer has an interest in the 4. If the court finds the earnings
property, the execution purchaser of the judgment debtor are
acquires no right. more than sufficient for his
family’s needs, it may order
WHEN A THIRD PERSON IS IN POSSESSION, payment in installments
The procedure is for the court to order a (Section 40)
hearing and determine the nature of
such adverse possession. 5. The court may appoint a
receiver for the property of the
judgment debtor not exempt
Section 34. Recovery of price if sale is from execution or forbid a
not effective; revival of judgment. transfer or disposition or
interference with such property
THE PURCHASER MAY RECOVER THE (Section 41)
PURCHASE PRICE WHEN
1. The purchaser or his successor- 6. If the court finds that the
in-interest FAILS TO RECOVER judgment debtor has an
POSSESSION of the property or; ascertainable interest in real
2. Purchaser after having acquired property either as mortgagor,
possession is evicted due to: mortgagee, or otherwise, and
a. Irregularities in the his interest can be ascertained
proceedings concerning the without controversy, the court
sale. may order the sale of such
b. Reversal or setting aside of interest. (Section 42)
judgment.
c. The fact that the property 7. If the person alleged to have
was exempt from execution. the property of the judgment
d. A third person has vindicated debtor or be indebted to him,
his claim to the property. claims an adverse interest in
the property, or denies the
REMEDIES OF THE JUDGMENT CREDITOR debt, the court may authorize
IN AID OF EXECUTION the judgment-creditor to
institute an action to recover
1. If the execution is returned the property, forbid its transfer
unsatisfied, he may cause and may punish disobedience
examination of the judgment for contempt (Section 43)
debtor as to his property and
income (Section 36) Section 46. When Principal Bound By
Judgment Against Surety.
2. He may cause examination of The principal is bound by the same
the debtor of the judgment judgment from the time he has notice of
debtor as to any debt owed by the action or proceeding and has been
him or to any property of the given an opportunity at the surety’s
judgment debtor in his request, to join the defense.
possession (Section 37)
Section 47. Effect Of Judgment Or
3. If after examination, the court Final Orders.
finds that there is property of Refers to judgments which are
the judgment debtor either in considered as conclusive and may be
his own hands or that of any rebutted directly by means of relief from
person, the court may order the judgment or annulment of judgment or
property applied to the indirectly by offering them in evidence
under the parole evidence rule.
2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT
CHAIRPERSONS
Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda
Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-
EDP), Anna Margarita Eres (VC-Logistics) Jonathan
Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law),
Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial
Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)
San Beda College of Law
60

MEMORY AID IN REMEDIAL LAW

corrected. The only grounds are lack of


Par (A) refers to rule ON RES JUDICATA jurisdiction, collusion or fraud.
in judgments IN REM
Par. (C) is known as “conclusiveness of
judgment” or rule of AUTER ACTION
JUDGMENT or EFFECT: CONCLUSIVE PENDENT
FINAL ORDER AS TO
CONCLUSIVENESS
Against a specific Title to the thing OF JUDGMENT Appeal decision of MTC by filing notice of
appeal and pay appellate court docket
thing • has the effect
fee in the same MTC within 15 days from
of preclusion receipt of judgment
Probate of a will or Will or administration only of issues.
administration of However, ONLY prima
• parties in both actions may be
the estate of a facie evidence of the
deceased person death of the testator the same but the
causes of action 15 days from perfection of appeal,
or intestate MTC clerk transmits record to RTC
are different.
In respect to the Condition, status or
personal, political, relationship of the
or legal condition or person BAR BY FORMER CONCLUSIVENESS
Notice to partiesOF
that an appeal is being
status of a JUDGMENT taken from the decision of MTC
JUDGMENT
particular person
There is identity of There is ONLY identity of
parties, subject PARTIES AND SUBJECT
Par (B) is referred to as “bar by former matter and causes Within
MATTER15 days from notice of appeal:
 appellant submits memorandum to
judgment” or RES JUDICATA in of action
the RTC
judgments IN PERSONAM  appellee files his own memorandum
The first judgment The first15judgment
days from isreceipt of appellants
RES JUDICATA - final judgments on the constitutes as an conclusive only as to
memorandum
merits by a court of competent ABSOLUTE BAR TO matters directly adjudged
ALL MATTERS and actually litigated in
jurisdiction is conclusive as to the rights directly adjudged the first action. Second
of the parties or their privies in all later and those that actionIf can
uncontested,
be prosecuted. Any party may
suits on points determined in the former judgment is appeal by filing a
might have been entered in the petition for
judgment. adjudged. book of entries review with the
RTC
REQUISITES:
1. A FINAL judgment or order Section 48. Effect Of Foreign Judgment
2. JURISDICTION over the subject Or Final Orders:
matter and the parties by the
court rendering it
3. Judgment UPON THE MERITS THE EFFECT OF FOREIGN JUDGMENTS
4. Between the two cases: Provided that the foreign tribunal had
IDENTITY OF PARTIES jurisdiction:
IDENTITY OF SUBJECT MATTER
IDENTITY OF CAUSE OF ACTION 1. IN CASE OF JUDGMENT AGAINST
A SPECIFIC THING, the judgment
THERE IS IDENTITY OF CAUSE OF ACTION is CONCLUSIVE upon the TITLE
when the two actions are based on the TO THE THING;
same delict or wrong committed by the 2. IN CASE OF A JUDGMENT
defendant even if the remedies are AGAINST A PERSON, the
different. judgment is PRESUMPTIVE
EVIDENCE of a right as between
Under the doctrine of res judicata, no the parties and their successors-
matter how erroneous a judgment may in-interest by a subsequent title.
be, once it becomes final, it cannot be

REMEDIAL LAW COMMITTEE


 CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
61 2005 CENTRALIZED BAR OPERATIONS

In both instances, the judgment may be 2. The notice of appeal must


repelled by evidence of want of indicate:
jurisdiction, notice, collusion, fraud or a. parties
clear mistake of law or fact. b. judgment or final order
appealed from
RULE 40 c. material date showing
APPEAL FROM MUNICIPAL TRIAL timeliness of appeal
COURTS TO THE REGIONAL TRIAL 3. A copy served on the adverse
COURTS party.
4. Payment in full of docket fees
APPEAL FROM MTC TO RTC and other lawful fees

ORDINARY APPEAL - an appeal by notice


of appeal from a judgment or final order ORDINARY APPEAL PETITION FOR
of a lower court on questions of fact and REVIEW
law. Matter of right Discretionary
All the records are No records are
APPEAL TO THE RTC elevated from the elevated unless the
• Mode of Appeal – Notice of Appeal court of origin court decrees it
within fifteen (15) days from receipt Notice of record on Filed with the CA
appeal is filed with
of decision.
the court of origin
• After an appeal to the RTC has been
perfected, the MTC loses its By Record on appeal:
jurisdiction over the case and any 1. for special proceedings such as
motion for the execution of the probate; and
judgment should be filed with the 2. in such other cases where
RTC. multiple appeals are allowed as
• The Summary Rules no longer apply in partition and in
when the cases is on appeal. expropriation.
Section 2. When to Appeal. Section 4. Perfection of Appeal; effect
1. Within 15 days after notice of thereof.
judgment or final order;
2. Where a record on appeal is Appeal is deemed perfected:
required, within 30 days from 1. by notice of appeal: as to him,
notice of judgment or final order upon the filing of the notice of
by filing a notice of appeal and a appeal in due time;
record on appeal; 2. by record on appeal: as to him,
3. Period to appeal shall be upon the approval of the record
interrupted by a timely motion on appeal filed in due time.
for new trial or reconsideration.
4. No motion for extension of time Effect of a perfected appeal:
to file a motion for new trial or The court loses jurisdiction upon the
reconsideration shall be perfection or approval of appeal and
allowed. when the period of appeal for other
parties expire.
Section 3. How to Appeal. Residual power of the court prior to the
By Notice of Appeal: transmittal of the original record or
1. File a notice of appeal with the record on appeal:
trial court.
2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT
CHAIRPERSONS
Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda
Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-
EDP), Anna Margarita Eres (VC-Logistics) Jonathan
Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law),
Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial
Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)
San Beda College of Law
62

MEMORY AID IN REMEDIAL LAW

1. to issue orders for the APPEALABLE CASES


preservation of the rights of the 1. Judgments or final orders that
parties which do not involve completely disposes of the case.
matters litigated by appeal; 2. A particular matter in a
2. to approve compromise prior to judgment declared by the Rules
the transmittal of the record; to be appealable.
3. permit appeal by an indigent;
4. order execution pending appeal NON APPEALABLE CASES
under Rule 39, Sec.2 ( motion 1. Order dismissing an action without
for execution was filed before prejudice
the expiration of the period to 2. Order of Execution
appeal; 3. Judgments or final orders for or
against one or more of several
5. allow withdrawal of the appeal. parties or in separate claims while
the main case is pending
4. Orders disallowing or dismissing an
Appeal
5. Interlocutory orders
6. Orders denying:
Section 8. Appeal from orders a. Petition for relief;
dismissing case without trial; lack of b. Motion for new trial or
jurisdiction reconsideration; and
c. Motion to Set aside a
judgment, by consent,
If lower court dismissed case without confession or compromise
trial on the merits: on the ground of fraud,
RTC may: mistake, duress or any
1. Affirm, or ground vitiating consent.
2. Reverse, in which case, it shall
remand the case for further Remedy in cases where appeal is not
proceedings. allowed
Special civil action of certiorari or
If dismissal is due to lack of jurisdiction prohibition if there is lack or excess of
over the subject matter: jurisdiction or grave abuse of discretion
RTC may: or mandamus if there is no performance
1. Affirm; if RTC has jurisdiction, of duty.
shall try the case on the merits
as if the case was originally filed INTERLOCUTORY ORDER – An order
with it, or which does not dispose of the case but
2. Reverse, in which case, it leave something else to be done by the
remand the case for further trial court on the merits of the case.
proceedings.
A judgment based on compromise is not
If the case was tried on the merits by appealable and is immediately
the lower court without jurisdiction executory.
over the subject matter:
RTC shall not dismiss the case if it has Section 2. Modes of appeal.
original jurisdiction, but shall decide the
case, and shall admit amended pleadings Ordinary Petition for Petition for
or additional evidence. appeal review review on
(appeal by writ [Rule 42] certiorari
of error) [Rule 45]
RULE 41
Case is decided Case is The case
APPEAL FROM REGIONAL
by the RTC in decided by raises only a
TRIAL COURTS its original the MTC. question of
jurisdiction Appealed to law
Appealed to the the RTC.

REMEDIAL LAW COMMITTEE


 CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
63 2005 CENTRALIZED BAR OPERATIONS

CA Petition for 5. submit the record for approval


review with with notice on the adverse party
the CA
The period to appeal is MANDATORY and
JURISDICTIONAL. Failure to appeal on
File a notice of File a verified File a verified
time makes the decision final and
appeal or a petition for petition for
record on review with review on executory and deprives the appellate
appeal with the the CA. Pay certiorari with court of jurisdiction.
court of origin the docket the SC (R 45)
(RTC) and give and lawful Pay docket However in few instances the court has
a copy to the fees, and P and lawful allowed due course to such appeals on
adverse party. 500 as deposit fees and P 500 strong and compelling reasons of
for costs with for costs. justice.
the CA. Submit proof
Furnish RTC of service of a
and adverse copy to the
party copy of lower court
such (R 42). and adverse
party.

RULE 42
Within 15 days Within 15 days Within 15 PETITION FOR REVIEW FROM THE
from the notice from notice of days from REGIONAL TRIAL COURTS TO THE
of the judgment the decision notice of the COURT OF APPEALS
for notice of to be judgment or
appeal and reviewed or order or
Petition for review is not a matter of
within 30 days from the denial of the
for records on denial of a MR MR or new right but discretionary on the CA. It may
appeal. The or new trial. trial. only give due course to the petition if it
period for filing shows on its face that the lower court
is interrupted has committed an error of fact and/or
by a timely law that will warrant a reversal or
motion for modification of the decision or judgment
reconsidera- sought to be reviewed; OR dismiss the
tion or new petition if it finds that it is patently
trial.
without merit, or prosecuted manifestly
for delay, or the questions raised therein
Section 7. Approval of record on are too unsubstantial to require
appeal. consideration.
Procedure if the appeal is through a It is merely discretionary on the CA to
record on appeal order the elevation of the records. This
is because until the petition is given due
1. file record on appeal course, the trial court may still issue a
2. appellee may file an objection warrant of execution pending appeal and
within 5 days from his receipt in some cases such as ejectment and
thereof those of Summary Procedure, the
3. if there is no objection the court judgments are immediately executory. It
may: is only when the CA deems it necessary
• approve it as presented; OR that the Clerk of the RTC will be ordered
• direct its amendment on its to elevate the records of the case.
own or upon the motion of
the adverse party
4. if an amendment is ordered the RULE 43
appellant must redraft the APPEALS FROM THE COURT OF TAX
record within the time ordered APPEALS AND THE QUASI-JUDICIAL
or if there is no time, within 10 AGENCIES TO THE CA
days from receipt
2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT
CHAIRPERSONS
Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda
Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-
EDP), Anna Margarita Eres (VC-Logistics) Jonathan
Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law),
Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial
Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)
San Beda College of Law
64

MEMORY AID IN REMEDIAL LAW

Judgments and final orders or resolutions


of the NLRC are reviewable by the Ordinary appeals Certiorari, Prohibition,
COURT OF APPEALS in an original action Mandamus, Quo
for certiorari under Rule 65 (St. Martin Warranto and Habeas
Corpus cases
Funeral Home vs. NLRC, Sept. 16, 1998).

A party adversely affected by a decision


or ruling of the CTA en banc may file Filed within 45 days within 30 days
with the Supreme Court a verified
petition for review on certiorari pursuant
Contents specified Shorter, briefer, only
to Rule 45 (Sec. 12, RA 9282). by Rules one issue involved - no
subject index or
assignment of errors just
facts and law applicable

RULE 44
ORDINARY APPEALED CASES
RULE 45
APPEAL BY CERTIORARI TO THE
Section 9. Appellant’s reply brief. SUPREME COURT

Failure to file appellant's brief on time is


a ground for dismissal of the appeal.
RTC, Sandiganbayan or CA
If a motion to dismiss an appeal has been renders decision
filed, it suspends the running of the
period for filing the appellant brief, as
the same would be unnecessary should
the motion be granted. Any party files a petition for review on
certiorari w/in 15 days from notice of
final judgment or order of lower court
The failure of the appellant to make
or notice of denial of motion for
specific assignment of errors in his brief reconsideration or new trial
or page references to the record as
required in this section is a ground for
dismissal of his appeal.
Appellant serves copies of petition on
Section 15. Questions that may be adverse parties and to the lower court,
raised on appeal. and pay the corresponding docket fees

The appeal can raise only questions of


law or fact that
1. were raised in the court below; SC may dismiss the petition or require
and the appellee to comment
2. are within the issues framed by Section 1. Filing of petition
the parties thereon. with Supreme Court
If given due course, parties may
BRIEF vs. MEMORANDUM submit memoranda

BRIEF MEMORANDUM SC may affirm, reverse, or modify


judgment of the lower court

REMEDIAL LAW COMMITTEE


 CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
65 2005 CENTRALIZED BAR OPERATIONS

Appeals to the SC can be taken from a petitioner’s main and reply


judgment or final order or resolution of briefs are not disputed by the
the CA, the Sandiganbayan, the RTC or respondents;
such other courts as maybe authorized 10. The findings of fact of the CA is
by law and only by verified petition for premised on the supposed
review on certiorari on questions of law evidence and is contradicted by
except only in appeals from judgments the evidence on record;
of the RTC in criminal cases wherein the 11. When certain material facts and
penalty imposed is life imprisonment or circumstances have been
reclusion perpetua which shall be overlooked by the trial court
elevated by ordinary appeal, or wherein which, if taken into account,
the death penalty is imposed which is would alter the result of the
subject to automatic review. case in that they would entitle
the accused to acquittal.

GENERAL RULE: the findings of fact of


the CA are final and conclusive and QUESTIONS OF LAW QUESTIONS OF
cannot be reviewed on appeal to the FACT
SC. doubt or controversy doubt or difference
as to what the law is arises as to the truth
EXCEPTIONS to CONCLUSIVENESS OF on certain facts or falsehood of facts,
FACTS: or as to probative
value of the evidence
1. When the finding is grounded presented
entirely on speculations, surmise if the appellate court the determination
or conjecture; can determine the involves evaluation or
2. When inference made is issue raised without review of evidence
manifestly absurd, mistaken or reviewing or
impossible; evaluating the
evidence
3. When the judgment is premised
Can involve questions query invites the
on a misrepresentation of facts;
of interpretation of calibration of the
4. When there is grave abuse of the law with respect whole evidence
discretion in the appreciation of to certain set of facts considering mainly the
facts; credibility of
5. When the findings of fact are witnesses, existence
conflicting; and relevancy of
6. When the CA in making its specific surrounding
findings went beyond the issues circumstances and
of the case and the same is relation to each other
and the whole
contrary to both the admissions
probabilities of the
of appellants and appellees; situation
7. When the findings of fact of the
CA are at variance with those of
the trial court, the SC has to
review the evidence in order to
Certiorari under Rule 45 vs. certiorari
arrive at the correct findings
under Rule 64/65 ( special civil action)
based on the record;
8. When the findings of fact are
conclusions without citation of
specific evidence on which they CERTIORARI UNDER CERTIORARI UNDER
are based; RULE 45 RULE 64/65
9. When the facts set forth in the
petition as well as in the
2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT
CHAIRPERSONS
Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda
Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-
EDP), Anna Margarita Eres (VC-Logistics) Jonathan
Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law),
Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial
Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)
San Beda College of Law
66

MEMORY AID IN REMEDIAL LAW

petition is based on petition raises the RULE 46


questions of law issue as to whether ORIGINAL CASES
the lower court acted
without jurisdiction or
Section 2. To what actions applicable.
in excess of
jurisdiction or with
grave abuse of Under B.P. Blg. 129, the CA has original
discretion jurisdiction to issue writs of mandamus,
prohibition, certiorari, habeas corpus
It is a mode of appeal Special civil action and quo warranto, and auxiliary writs or
processes, whether or not they are in aid
Involves the review of Directed against an of its appellate jurisdiction, and it has
the judgment award interlocutory order of exclusive original jurisdiction over
or final order on the the court or where actions for annulment of judgments of
merits there is no appeal or Regional Trial Courts.
any other plain,
speedy or adequate
remedy

Section 4. Jurisdiction over person,


Must be made within filed not later than 60 how acquired.
the reglementary days from notice of JURISDICTION IS ACQUIRED:
period judgment, order or
resolution appealed 1. Over the PETITIONER - by filing
from of the petition.
2. Over the RESPONDENT - by the
Stays the judgment or Unless a writ of
service on the latter of the order
order appealed from preliminary injunction
or temporary or resolution indicating the
restraining order is courts initial action on the
issued does not stay petition and NOT by the service
the challenged on him of the petition or by his
proceeding voluntary submission.

The petitioner and the The parties are the Section 5. Action by the court.
respondent are the aggrieved party
original parties to the against the lower PROCEDURAL OUTLINE (original cases
action, and the lower court or quasi-judicial
in the Court of Appeals)
court or quasi-judicial agency and the
agency is not prevailing parties 1. Filing of the petition
impleaded 2. Order to acquire jurisdiction
over respondents OR Outright
Motion for Motion for dismissal for failure to comply to
reconsideration is not reconsideration or for requirements also form and
required new trial is required payment of docket and other
If a motion for legal fees.
reconsideration or new 3. Require respondents to file
trial is filed, the COMMENT within 10 days from
period shall not only
be interrupted but
NOTICE
another 60 days shall 4. Court may require the filing of a
be given to the REPLY or such other pleadings as
petitioner ( SC Admin. it may deem necessary
Matter 002-03 ) 5. Determination of FACTUAL
ISSUES, the court may delegate
The court is in the Court exercises the reception of evidence on
exercise of its original jurisdiction such issues to any of its
appellate jurisdiction members.
and power of review

REMEDIAL LAW COMMITTEE


 CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
67 2005 CENTRALIZED BAR OPERATIONS

RULE 47
ANNULMENT OF JUDGMENTS OR FINAL Section. 5. Action by the court.
ORDERS AND RESOLUTIONS Two stages:
1. A preliminary evaluation of the
Annulment of judgment is a remedy in petition for prima facie merit
law independent of the case where the therein, and
judgment sought to be annulled was 2. The issuance of summons as in
rendered and may be availed of though ordinary civil cases and such
the judgment has been executed. appropriate proceedings
thereafter as contemplated in
One important condition for the Sec. 6.
availment of this remedy - the petitioner
failed to move for new trial in, or appeal The rule allows the CA to dismiss the
from, or file a petition for relief against, petition outright as in special civil
or take other appropriate remedies actions.
assailing the questioned judgment or
final order or resolution through no fault For the court to acquire jurisdiction over
attributable to him. the respondent, the rule requires the
issuance of summons should prima facie
If he failed to avail of those other merit be found in the petition and the
remedies without sufficient justification, same is given due course.
he cannot resort to annulment provided RULE 48
in this Rule, otherwise he would benefit
PRELIMINARY CONFERENCE
from his own inaction or negligence.
Section 3. Binding effect of the results
Grounds for ANNULMENT OF
of the conference
JUDGMENT
1. extrinsic fraud or collateral
In the CA, this procedural device may be
fraud;
availed of not only in original actions but
2. lack of jurisdiction;
also in cases on appeal wherein a new
trial was granted on the ground of newly
Extrinsic fraud shall not be a valid
discovered evidence. The CA can act as a
ground if it was availed of, or could have
trier of facts, hence the preliminary
been availed of, in a motion for new
conference authorized is a convenient
trial or petition for relief.
adjunct to such power and function.
EXTRINSIC OR COLLATERAL FRAUD is
RULE 49
any fraudulent act of the prevailing
ORAL ARGUMENT
party in the litigation which is
committed outside of the trial of the
Section 3. No hearing or oral argument
case, whereby the defeated party has
for motions
been prevented from exhibiting fully and
fairly presenting his side of the case.
Motions in the SC and the CA do not
contain notices of hearing as no oral
arguments will be heard in support
EXTRINSIC LACK OF thereof; and if the appellate court
FRAUD JURISDICTION desires to hold a hearing thereon, it will
itself set the date with notice to the
Period of 4 years from Before it is barred parties.
Filing discovery by laches or
action estoppel RULE 50
DISMISSAL OF APPEAL
Effect of Trial court Original action
judgment will try the may be refiled Section 1. Grounds for dismissal of
case appeal
2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT
CHAIRPERSONS
Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda
Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-
EDP), Anna Margarita Eres (VC-Logistics) Jonathan
Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law),
Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial
Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)
San Beda College of Law
68

MEMORY AID IN REMEDIAL LAW

With the exception of Section 1 (b)


dismissal of an appeal is directory and But this rule does not apply to
not mandatory. resolutions rendered in connection with
the case wherein no rationale has been
Other grounds for the dismissal of an expounded on the merits of that action.
appeal are:
1. by agreement of the parties, as Section 5. Form of Decision
where the case was amicably The requirement for the statement of
settled by them. facts and the law refers to a decision or
2. where the appealed case has for that matter a final resolution. The
become moot or academic. same are not required on minute
3. where the appeal is frivolous or resolutions since these usually dispose of
dilatory. the case not on its merits but on
procedural or technical considerations.
Section 2. Dismissal of improper appeal
Although the court may, if it feels
to the Court of Appeals
necessary, briefly discuss the matter on
the merits in an extended resolution.
No transfer of appeals, erroneously
taken to it or to the Court of Appeals,
whichever of these tribunals has
appropriate appellate jurisdiction, will
be allowed. Also, elevating such appeal
With respect to petitions for review and
by the wrong mode of appeal shall be a
motions for reconsideration, the
ground for dismissal.
Constitution merely requires a statement
A resolution of the Court of Appeals
of the legal basis for the denial thereof
dismissing the appeal and remanding the
or refusal of due course thereto. The
case to the trial court for further
court may opt, but it is not required to
proceedings is merely interlocutory,
issue an extended resolution thereon.
hence a motion for its reconsideration
filed year later may be entertained and
granted Section 6. HARMLESS ERROR
The court, at every stage of the
proceeding, must disregard any error or
Section 3. Withdrawal of Appeal defect which does not affect the
substantial rights of the parties such as
Court of Appeals may dismiss the appeal error in admission or exclusion of
outright even without motion. The evidence or error or defect in the ruling
remedy if dismissed for improper appeal or order.
is to refile it in the proper forum but has
to be within the prescribed period. Section 8. Questions that may be
decided
RULE 51 Only errors claimed and assigned by a
JUDGMENT party will be considered by the court,
except errors affecting its jurisdiction
Law of the Case – the opinion delivered over the subject matter. To this
on a former appeal. It means that exception has now been added errors
whatever is once irrevocably affecting the validity of the judgment
established, as the controlling legal rule appealed from or the proceedings
or decision between the same parties in therein.
the same case, continues to be the law
of the case, whether correct on general Even if the error complained of by a
principles or not, so long as the facts on party is not expressly stated in his
which such decision was predicated assignment of errors but the same is
continue to be the facts before the closely related to or dependent on an
court. assigned error and properly argued in his

REMEDIAL LAW COMMITTEE


 CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
69 2005 CENTRALIZED BAR OPERATIONS

brief such error may now be considered In criminal cases where the penalty
by the court. imposed is death or reclusion perpetua,
an appeal made to the Supreme Court is
RULE 52 through a notice of appeal filed with the
MOTION FOR RECONSIDERATION RTC in all other cases, an appeal made
to the supreme court is through a
The rules now prohibit a second motion petition for review on certiorari.
for reconsideration.
PROVISIONAL REMEDIES
Sec. 3 provides a time limit of 90 days Also known as ancillary or auxiliary
for the resolution of a motion for remedies, are writs and processes
reconsideration filed with the Court of available during the pendency of the
Appeals from the date the same was action which may be resorted to by a
submitted for resolution, which is litigant to preserve and protect certain
normally the filing of the last pleading rights and interests therein pending
required by the rules of court or the rendition, and for purposes of the
expiration of such period. ultimate effects, of a final judgment in
the case.
Rules now requires the service of the
motion to the adverse party

RULE 53 The following are the provisional


NEW TRIAL remedies provided for in the Rules of
Court
Filing of a motion for new trial is at any 1. Preliminary Attachment (Rule
time after the perfection of the appeal 57)
from the decision of the lower court and 2. Preliminary Injunction (Rule 58)
before the Court of Appeals loses 3. Receivership (Rule 59)
jurisdiction over the case 4. Replevin (Rule 60)
5. Support Pendente Lite (Rule 61)
The ground is newly discovered evidence
which could not have been discovered PD 1818 prohibits the issuance of
prior to the trial in the court below by injunctive writs not only against
the exercise of due diligence and of such government entities but also against any
character as would probably alter the person or entity involved in the
result. execution, implementation, and
operation of government infrastructure
RULE 56 projects.
PROCEDURE IN THE SUPREME COURT
RULE 57
A. ORIGINAL CASES PRELIMINARY ATTACHMENT
Rule specifically states what cases may
be originally filed with the Supreme The proper party may have the property
Court of the adverse party attached at the
1. petition for certiorari, commencement of the action or at any
prohibition, mandamus, quo time before entry of judgment.
warranto, habeas corpus;
2. disciplinary proceedings against WHEN issued
members of the judiciary and
attorneys 1. In actions for recovery of a
3. cases affecting ambassadors, specified sum of money or
other public ministers and damages, except moral and
consuls exemplary, on a cause of action
arising from law, contract,
B. APPEALED CASES Mode of Appeal
2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT
CHAIRPERSONS
Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda
Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-
EDP), Anna Margarita Eres (VC-Logistics) Jonathan
Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law),
Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial
Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)
San Beda College of Law
70

MEMORY AID IN REMEDIAL LAW

quasi-contract, delict or quasi- 1. applicant is entitled to the relief


delict against a party about to demanded; or
depart from the Phils. with 2. commission, continuance or non-
intent to defraud his creditors; performance of the act
complained of would work
2. In actions for recovery of money injustice to the applicant if not
or property embezzled or enjoined; or
fraudulently converted to his 3. the acts sought to be enjoined
own use by a public officer, or probably violates the rights of
an officer of a corp., or an the applicant respecting the
attorney, factor, broker, agent subject of the action and
or clerk, in the course of his tending to render the judgment
employment as such, or by any ineffectual.
person in a fiduciary capacity;
Section 5.
3. In actions to recover property There must be prior notice to the person
unjustly taken or concealed, sought to be enjoined and a hearing
when the property or any of its before preliminary injunction may be
part, has been concealed or granted.
disposed of to prevent its being
found by the applicant or any If great or irreparable injury would
authorized person; result to the applicant, the court may
issue ex parte a temporary restraining
4. In actions against a person guilty order, effective only for 20 days from
of fraud in incurring or service on the party sought to be
performing an obligation upon enjoined.
which the action is based;
If the matter is of extreme urgency and
5. In actions against a party who the applicant will suffer grave injustice
has removed or disposed of his and irreparable injury, the judge may
property, or is about to do so, issue a TRO effective only for 72 hours
with intent to defraud his from issuance. Its effectivity may be
creditors; extended after conducting a summary
hearing w/in the 72-hrs period until the
6. In actions against non-residents application for preliminary injunction
not found in the Phils., or on can be heard.
whom summons is served by
publication. The total period of effectivity of the
TRO shall not exceed 20 days, including
the 72 hours.
RULE 58
PRELIMINARY INJUNCTION If application is denied or not resolved
within said period, the TRO is deemed
Preliminary Injunction – an order granted automatically vacated.
at any stage of an action or proceeding
prior to the judgment requiring a party Effectivity of TRO is not extendible.
or a court, agency or a person to refrain There is no need of a judicial declaration
from a particular act or acts. to that effect.

PRELIMINARY MANDATORY Injunction – A TRO issued by the CA or any of its


an order requiring the performance of a members is effective for 60 days from
particular act or acts. service on the party sought to be
enjoined.
Grounds

REMEDIAL LAW COMMITTEE


 CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
71 2005 CENTRALIZED BAR OPERATIONS

A TRO issued by the SC or a member 4. when appointment of receiver is


therof is effective until further orders. the most convenient and feasible
means of preserving,
GROUNDS FOR OBJECTION administering or disposing of the
1. insufficiency; property in litigation.
2. if injunction would cause
irreparable damage to the A person who refuses or neglects to
person enjoined while the deliver property within his control and
applicant can be fully which is the subject of the action to the
compensated for such damages, receiver may be punished for contempt
PROVIDED the former files a and liable to the receiver for the money
BOND. or the value of the property PLUS
damages.
Distinctions
The receiver shall also file a bond before
entering upon his duties separate from
INJUNCTION PROHIBITION
the bond filed by the applicant.
directed against a Directed against a
party in the action court, tribunal or a
person exercising RULE 60
judicial powers REPLEVIN
does not involve Based on the ground
jurisdiction of the that the court against The sheriff shall retain the property for
court whom the writ is 5 days. Within such period, the adverse
sought had acted party may object to the sufficiency of
without or in excess of the applicant’s bond or surety or he may
jurisdiction file a counter-bond.

it may be the main Always the main After 5 days and the adverse party failed
action itself or just a action to object or his counter-bond is
provisional remedy insufficient, the sheriff shall deliver the
property to the applicant.

Distinctions
RULE 59
RECEIVERSHIP
REPLEVIN ATTACHMENT
WHEN MAY BE GRANTED
1. applicant has an interest in the May be sought only Available even if
property or fund subject of the when the principal recovery of property is
proceeding and such property is action is recovery of only incidental to the
in danger of being lost or personal property. relief sought.
materially injured unless a
receiver is appointed; Can be sought only when May be resorted to even
defendant is in actual if the property is in
2. in foreclosure of mortgage, when
possession of the possession of a third
the property is in danger of property. person.
being wasted or dissipated and
that its value is probably CANNOT be availed of Can be AVAILED of even
insufficient to discharge the when property is in if property is in
mortgage debt or that it has custodia legis CUSTODIA LEGIS.
been agreed upon by the parties;
3. after judgment, to preserve the Available before Available from
property during the pendency of defendant answers commencement but
an appeal or to dispose of it before entry of
accdg. to the judgment or to aid judgment
execution;

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT


CHAIRPERSONS
Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda
Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-
EDP), Anna Margarita Eres (VC-Logistics) Jonathan
Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law),
Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial
Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)
San Beda College of Law
72

MEMORY AID IN REMEDIAL LAW

Bond is DOUBLE the Bond is FIXED by the


value of the property court

RULE 61
SUPPORT ‘PENDENTE LITE’

When may be applied for: at the


commencement of the action or at any
time before judgment or final order.

Failure to comply with an order granting


support pendente lite may warrant the
issuance of an order of execution against
the non-complying party. He may
likewise be liable for contempt.

See matrix on provisional remedies


more detailed information.

REMEDIAL LAW COMMITTEE


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