Anda di halaman 1dari 181

Re

m
ed
ial
La
w
Sources

Rules of Court
Jurisprudence
Criminal Procedure ByRiano
Evidence ByRiano
UST Golden Notes
Judge Marinas’ Class Discussion (Civil Procedure)
Atty. Gayya’s Class Discussion (Remedial Law Review)
Atty. Mangallay’s Class Discussion and Notes (Crim Pro)
Prosecutor Elmer Sagsago’s Class Discussion and Notes (Evidence)

© Gironella – Macadatar 2017


Contents
General Principles ................................................................................................................................................................................................................................................. 1
Concept of Law ...................................................................................................................................................................................................................................................... 1
Judicial Power and the Role of Judiciary......................................................................................................................................................................................................... 1
Rule Making Power of the Supreme Court.............................................................................................................................................................................................. 2
Concept of Courts........................................................................................................................................................................................................................................... 2
Civil Jurisdiction ....................................................................................................................................................................................................................................................4
Concept of Jurisdiction ........................................................................................................................................................................................................................................4
Jurisdiction over the Subject Matter .........................................................................................................................................................................................................4
Jurisdiction Over The Parties ...................................................................................................................................................................................................................... 5
Jurisdiction Over The Issues ........................................................................................................................................................................................................................ 6
Jurisdiction Over The Res or Property in Litigation ............................................................................................................................................................................. 6
Power of the Congress to Define, Prescribe, and Apportion the Jurisdiction of Courts............................................................................................................. 6
Kinds of Jurisdiction ............................................................................................................................................................................................................................................. 6
Specific Jurisdiction of Court ............................................................................................................................................................................................................................. 7
Supreme Court ................................................................................................................................................................................................................................................. 7
Court of Appeals ............................................................................................................................................................................................................................................. 7
Sandiganbayan ................................................................................................................................................................................................................................................. 8
Regional Trial Court ...................................................................................................................................................................................................................................... 8
Municipal Trial Court.................................................................................................................................................................................................................................... 9
Courts of Muslim Mindanao........................................................................................................................................................................................................................ 9
Other Special Courts .................................................................................................................................................................................................................................... 10
The 1987 Rules of Civil Procedure.................................................................................................................................................................................................................... 11
General Provisions ................................................................................................................................................................................................................................................ 11
Applicability .................................................................................................................................................................................................................................................... 11
Cases Covered by the Rules ........................................................................................................................................................................................................................ 11
Inception of an Action ......................................................................................................................................................................................................................................... 11
Commencement of Action ........................................................................................................................................................................................................................... 11
Concept of Ordinary Civil Action and cause of action ........................................................................................................................................................................ 11
Concept of Venue .......................................................................................................................................................................................................................................... 13
Filing of Complaint....................................................................................................................................................................................................................................... 13
The Law on Pleadings ......................................................................................................................................................................................................................................... 13
Definition of Pleadings ................................................................................................................................................................................................................................ 13
Parts of a Pleading ......................................................................................................................................................................................................................................... 13
Kinds of pleadings other than a complaint ............................................................................................................................................................................................ 15
Manner of Making Allegations in Pleadings ......................................................................................................................................................................................... 17
Rules Regarding the Effect of Failure to Plead ..................................................................................................................................................................................... 17
Rules on Amendment of Pleadings........................................................................................................................................................................................................... 17
Rules on the filing and service of Pleadings / Judgment / Final Orders / Resolutions .............................................................................................................. 17
The Rules on Parties to Civil Actions ............................................................................................................................................................................................................ 17
Parties to a Civil Action .............................................................................................................................................................................................................................. 17
The Rules on Summons...................................................................................................................................................................................................................................... 17
Significance of Service of Summons; In rem vs. In Personam Actions ............................................................................................................................................ 17
Modes of Service of Summons ................................................................................................................................................................................................................... 17
Other Rules ..................................................................................................................................................................................................................................................... 17
Effect of lack of Summons........................................................................................................................................................................................................................... 17
The Rules on Motions ........................................................................................................................................................................................................................................ 17
Motions in General ....................................................................................................................................................................................................................................... 17
Some Motions under the Rules on Civil Procedure ................................................................................................................................................................................... 17
Omnibus Motion Rules ............................................................................................................................................................................................................................... 17
Motion for Leave ........................................................................................................................................................................................................................................... 17
Motion to Declare Defendant in Default ................................................................................................................................................................................................ 17
Motion for Bill of Particulars ..................................................................................................................................................................................................................... 17
Motion to Dismiss......................................................................................................................................................................................................................................... 17
Motion to Intervene ..................................................................................................................................................................................................................................... 19
Dismissal by the Plaintiff .................................................................................................................................................................................................................................. 20
Dismissal upon notice by plaintiff / as a matter of right ................................................................................................................................................................... 20
Dismissal upon motion of plaintiff / judicial discretion .................................................................................................................................................................... 20
Dismissal due to fault of plaintiff:............................................................................................................................................................................................................. 21
The Rules On Pre Trial ....................................................................................................................................................................................................................................... 21
Concept, Nature and Purpose ................................................................................................................................................................................................................... 21
Matters to consider during Pre-Trial ...................................................................................................................................................................................................... 21
Effects of failure to appear during Pre-Trial .......................................................................................................................................................................................... 21
Pre-trial Brief .................................................................................................................................................................................................................................................. 21
Pre- Trial Order ............................................................................................................................................................................................................................................. 21
Pre – Trial In Criminal Cases .................................................................................................................................................................................................................... 22
Modes of Discovery ............................................................................................................................................................................................................................................ 22
Nature, Rationale, Importance, Purpose and Scope ........................................................................................................................................................................... 22
Kinds................................................................................................................................................................................................................................................................ 22
Upon showing for good cause and upon motion is required for an order for the production or inspection of documents or things ............................... 30
May be issued upon ex parte application .................................................................................................................................................................................................... 30
Can only be directed to a party ....................................................................................................................................................................................................................... 30
May be directed to a non-party ...................................................................................................................................................................................................................... 30
The Rules on Trial Proper .................................................................................................................................................................................................................................32
CONCEPT AND DEFINITION ................................................................................................................................................................................................................32
THE RULES ON COMPUTATION OF TIME.................................................................................................................................................................................... 34
THE RULES ON SUBPOENA.................................................................................................................................................................................................................. 34
ADMINISTRATIVE CIRCULAR NO. 3-99 (January 15, 1999) .......................................................................................................................................................35
TRIAL BY COMMISSIONER ...................................................................................................................................................................................................................36
THE RULE ON CONSOLIDATION AND SEVERANCE.................................................................................................................................................................38
Adjudication ..........................................................................................................................................................................................................................................................38
CONCEPT AND REQUIREMENTS ......................................................................................................................................................................................................38
KINDS OF JUDGMENT AND DEFINITION....................................................................................................................................................................................... 41
PROMULGATION OF JUDGMENT .................................................................................................................................................................................................... 42
Remedies against Judgment and Final Orders ........................................................................................................................................................................................... 43
Before finality of judgment and final orders ......................................................................................................................................................................................... 43
After finality of judgment and final orders............................................................................................................................................................................................ 56
Ways of attacking a final judgment ......................................................................................................................................................................................................... 57
Execution ............................................................................................................................................................................................................................................................... 57
Basic Concepts and Doctrines ................................................................................................................................................................................................................... 57
Kinds of Execution ...................................................................................................................................................................................................................................... 58
Effect of Total or Partial Reversal or Annulment of the Executed Judgment ............................................................................................................................. 60
How Final Judgments and Orders are Executed ................................................................................................................................................................................. 60
Execution in Case of Death of Party ........................................................................................................................................................................................................ 61
Grounds to Quash Writ of Execution .................................................................................................................................................................................................... 62
Specific Rules ................................................................................................................................................................................................................................................ 62
Properties Exempt from Execution ........................................................................................................................................................................................................ 66
Provisional Remedies ......................................................................................................................................................................................................................................... 66

© Gironella – Macadatar 2017 | General Principles 4


Concept and Purpose .................................................................................................................................................................................................................................. 66
Common Requirements ..............................................................................................................................................................................................................................67
Deposit as Provisional Remedy .................................................................................................................................................................................................................67
Preliminary Attachment ..............................................................................................................................................................................................................................67
Preliminary Injunction.................................................................................................................................................................................................................................72
Receivership ...................................................................................................................................................................................................................................................76
Replevin ........................................................................................................................................................................................................................................................... 77
Support / Alimony Pendente Lite .............................................................................................................................................................................................................79
Special Civil Actions .......................................................................................................................................................................................................................................... 80
Interpleader .................................................................................................................................................................................................................................................... 81
Declaratory Relief and Similar Remedies .............................................................................................................................................................................................. 82
Review on Judgement and Final Orders or Resolutions of the COMELEC and the COA...................................................................................................... 84
Certiorari, Prohibition, Mandamus ........................................................................................................................................................................................................ 86
Quo Warranto................................................................................................................................................................................................................................................87
Expropriation ................................................................................................................................................................................................................................................ 88
Foreclosure of Real Estate Mortgage....................................................................................................................................................................................................... 91
Partition / Actio Communi Dividendo ................................................................................................................................................................................................... 92
Forcible Entry and Unlawful Detainer .................................................................................................................................................................................................. 94
Contempt ....................................................................................................................................................................................................................................................... 96
Criminal Procedure ............................................................................................................................................................................................................................................112
Basic Concepts ....................................................................................................................................................................................................................................................112
Jurisdiction ...........................................................................................................................................................................................................................................................112
Jurisdiction over the Subject Matter / Nature of the Offense / offense charged .........................................................................................................................112
Jurisdiction over the territory / Venue ...................................................................................................................................................................................................112
Jurisdiction over the Person of the accused ..........................................................................................................................................................................................113
Injunction to Restrain Criminal Prosecution.......................................................................................................................................................................................113
Criminal Jurisdiction of Courts ......................................................................................................................................................................................................................113
MTC, MCTC, and MeTC ..........................................................................................................................................................................................................................113
Regional Trial Court ...................................................................................................................................................................................................................................113
Sandiganbayan ..............................................................................................................................................................................................................................................113
Rule 110 – Prosecution of Offenses................................................................................................................................................................................................................ 114
Institution of Criminal Action ................................................................................................................................................................................................................ 114
Prosecution of the Criminal Action ....................................................................................................................................................................................................... 114
Intervention of the offended party in the prosecution of the criminal action .............................................................................................................................115
Prosecution of private crimes ...................................................................................................................................................................................................................115
The Complaint and Information ..............................................................................................................................................................................................................116
Venue of Criminal Action .......................................................................................................................................................................................................................... 117
Amendment and Substitution of the Complaint or Information....................................................................................................................................................118
AMENDMENT ......................................................................................................................................................................................................................................118
SUBSTITUTION ...................................................................................................................................................................................................................................118
Rule 111 – Prosecution of Civil Action .......................................................................................................................................................................................................... 119
Independent Civil Actions:.......................................................................................................................................................................................................................120
Prejudicial Question ...................................................................................................................................................................................................................................120
Effect of Acquittal on Civil Liability .......................................................................................................................................................................................................121
Effect of death of the accused on the Civil Action ..............................................................................................................................................................................121
Rule 112 – Preliminary Investigation ............................................................................................................................................................................................................ 122
Inquest Proceedings ................................................................................................................................................................................................................................... 123
Review ............................................................................................................................................................................................................................................................ 126

© Gironella – Macadatar 2017 | General Principles 5


Warrant of Arrest ....................................................................................................................................................................................................................................... 126
Rule 113 – Arrest ................................................................................................................................................................................................................................................. 126
In Flagrante Delicto .................................................................................................................................................................................................................................... 128
Hot Pursuit ................................................................................................................................................................................................................................................... 128
Remedies / Summary .................................................................................................................................................................................................................................. 129
Rule 126 – Searches and Seizure .................................................................................................................................................................................................................... 129
Rule 114 – Bail ..................................................................................................................................................................................................................................................... 134
Hold Departure Order and Bureau of Immigration Watchlist....................................................................................................................................................... 138
Rule 115 – Rights of the Accused ................................................................................................................................................................................................................... 138
Rule 116 – Arraignment and Plea ................................................................................................................................................................................................................... 141
Plea Bargaining: ...........................................................................................................................................................................................................................................148
Improvident plea of guilty: ...................................................................................................................................................................................................................... 144
Rule 117 – Motion to Quash ........................................................................................................................................................................................................................... 144
Rule 118 – Pre - Trial.......................................................................................................................................................................................................................................... 147
Alternative Dispute Resolution (ADR) ................................................................................................................................................................................................149
Rule 119 – Trial....................................................................................................................................................................................................................................................149
Discharge of accused to be state witness ..............................................................................................................................................................................................151
Order of trial: ................................................................................................................................................................................................................................................ 152
Reopening of the proceedings: ................................................................................................................................................................................................................ 157
Trial in Absentia: ......................................................................................................................................................................................................................................... 152
Demurrer to Evidence ................................................................................................................................................................................................................................ 152
Rule 120 – Judgment .........................................................................................................................................................................................................................................154
Promulgation of judgment: ....................................................................................................................................................................................................................... 155
Post-Conviction Remedies.............................................................................................................................................................................................................................. 157
Rule 121 – New Trial or Consideration ........................................................................................................................................................................................................ 157
Rule 122 - Appeal ............................................................................................................................................................................................................................................... 158
MODES OF APPEAL (Flowcharts) ....................................................................................................................................................................................................... 160
Rule 123 – Procedure in the Municipal Trial Court ..................................................................................................................................................................................161
Rule 124 – Procedure in the Court of Appeals ............................................................................................................................................................................................161
Rule 125 – Procedure in the Supreme Court .............................................................................................................................................................................................. 162
Rule 127 – Provisional Remedies in Criminal Cases ................................................................................................................................................................................ 162
Evidence ............................................................................................................................................................................................................................................................... 174
Rule 128: General Provisions .......................................................................................................................................................................................................................... 174
ADMISSIBILITY OF EVIDENCE ........................................................................................................................................................................................................... 174
Revised Rules on Summary Procedure ........................................................................................................................................................................................................ 165
Civil Cases ..................................................................................................................................................................................................................................................... 165
Judicial Affidavit Rule ...................................................................................................................................................................................................................................... 167
Rules of Procedure for Environmental Law Cases ................................................................................................................................................................................... 169
Rules of Procedure for Small Claims ............................................................................................................................................................................................................ 170

© Gironella – Macadatar 2017 | General Principles 6


How are remedial laws implemented in our system of government? They are
General Principles implemented through the judicial system, including the prosecutory service of
courts and quasi-judicial agencies.
Concept of Law
Judicial Power and the Role of Judiciary
The term law may be understood in two concepts:
1. General or abstract sense (derecho) JUDICIAL POWER:
 the science of moral rules, founded on the rational nature of
man, which govern his free activity, for the realization of the Section 1, Art. VIII, 1987 Constitution
individual and social ends, of a nature both demandable and
reciprocal. Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may
be established by law.
2. Specific or material sense (ley)
 juridical proposition or an aggregate of juridical propositions, Judicial power includes the duty of the courts of justice to settle actual controversies involving
promulgated and published by the competent organs of the
rights which are legally demandable and enforceable, and to determine whether or not there has
State in accordance with the Constitution.
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government.
REMEDIAL LAW: It is a branch of public law, which prescribes the procedural
rules to be observed in litigations, whether civil, criminal, or administrative, and in
CONSTITUTIONAL GUARANTEES on JUDICIAL INDEPENDENCE:
special proceedings, as well as the remedies or reliefs available in each case.
 It is also known as procedural law.
Supreme Court as a Constitutional Body
 Another name is adjective law

Section 4 (1), Art. VIII, 1987 Constitution


Substantive vs. Remedial Law:
Section 4. (1) The Supreme Court shall be composed of a Chief Justice and fourteen Associate
Substantive Law Remedial Law Justices. It may sit en banc or in its discretion, in division of three, five, or seven Members. Any
Part of the law which creates, Refers to the legislation vacancy shall be filled within ninety days from the occurrence thereof.
defines or regulates rights providing means or methods
concerning life, liberty or whereby causes of action may Impeachment
property or the powers of be effectuated, wrongs
agencies or instrumentalities for redressed and relief obtained Section 2, Art. XI, 1987 Constitution
the administration of public (also known as Adjective Law).
affairs. Section 2. The President, the Vice-President, the Members of the Supreme Court, the Members of
Creates vested rights. Does not create vested rights the Constitutional Commissions, and the Ombudsman may be removed from office on
Prospective in application. Retroactive in application impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft
Cannot be enacted by the The Supreme Court is expressly and corruption, other high crimes, or betrayal of public trust. All other public officers and
Supreme Court. empowered to promulgate employees may be removed from office as provided by law, but not by impeachment.
procedural rules.
Minimum original and appellate jurisdiction of the SC
SIGNIFICANCE OF REMEDIAL LAW: It plays a vital role in the administration
of justice. It lies at the very core of procedural due process, which means a law Section 5, Art. VIII, 1987 Constitution
which hears before it condemns, which proceeds upon inquiry and renders
judgment only after trial, and contemplates an opportunity to be heard before Section 5. The Supreme Court shall have the following powers:
judgment is rendered.
(1) Exercise original jurisdiction over cases affecting ambassadors, other public
SOURCES OF REMEDIAL LAW: ministers and consuls, and over petitions for certiorari, prohibition, mandamus,
1. Constitution quo warranto, and habeas corpus. (Original)
2. Different laws creating the judiciary, defining and allocating jurisdiction
to courts of different levels (2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or
3. Procedural laws and rules promulgated by the Supreme Court the Rules of Court may provide, final judgments and orders of lower courts in:
4. Circulars (Appellate)
5. Administrative orders a. All cases in which the constitutionality or validity of any treaty,
6. Internal rules international or executive agreement, law, presidential decree,
7. Court decisions proclamation, order, instruction, ordinance, or regulation is in question.
b. All cases involving the legality of any tax, impost, assessment, or toll, or
any penalty imposed in relation thereto.
c. All cases in which the jurisdiction of any lower court is in issue.

© Gironella – Macadatar 2017 | General Principles 1


d. All criminal cases in which the penalty imposed is reclusion perpetua or
higher. (e) All cases in which only an error or question of law is The system of pleading used in the Philippines is the Code pleading following the
involved. system observed in some states of the United States. This system is based on
codified rules or written set of procedure as distinguished from common law
Appellate jurisdiction of the SC may not be increased by law procedure (Marquez vs. Valera)
without its advice and concurrence
Adversarial System vs. Inquisitorial
Section 2 in rel. to Section (2), Art. VIII, 1987 Constitution
Uniform Procedure in Trial Courts
Section 2. The Congress shall have the power to define, prescribe, and apportion the jurisdiction of
the various courts but may not deprive the Supreme Court of its jurisdiction over cases The procedure in the Municipal Trial Courts shall be the same as in the Regional
enumerated in Section 5 hereof. Trial Courts, except:
a. where a particular provision expressly or impliedly applies only to either of
said courts, or
No law shall be passed reorganizing the Judiciary when it undermines the security of tenure of its
b. in civil cases governed by the Rule on Summary Procedure.
Members.

Concept of Justiciability:
Administrative power of the SC over all lower courts and their
personnel / Security of tenure of members of the Judiciary
Justiciable Questions v Political Questions

The Members of the Supreme Court and judges of lower courts shall hold office during good
Justiciable Question
behavior until they reached the age of seventy years or become incapacitated to discharge the
 calls upon the duty of the courts to settle actual controversies wherein
duties of their office. The Supreme Court en banc shall have the power to discipline judges of lower there are rights involved which are generally demandable and
courts, or order their dismissal by a vote of a majority of the Members who actually took part in enforceable
the deliberations on the issues in the case and voted thereon.  one which is proper to be examined or decided in courts of justice
because its determination would not involve an encroachment upon the
Rule Making Power of the Supreme Court legislative or executive power

Vs. Judicial Legislation: Political Question


 one which, under the Constitution, is to be decided by the people in
Limitations on the Rule Making Power of the Supreme Court: their sovereign capacity, or in regard to which full discretionary
1. It shall provide a simplified and inexpensive procedure for the speedy authority has been delegated to the legislative or executive branch of the
disposition of cases. government
2. The rules must be uniform for all the courts of the same grade.  concerned with issues dependent upon the wisdom, not the validity or
3. The rules must not diminish, increase or modify substantive rights legality, of a particular measure or a contested act

The power of judicial Review


Power of the Supreme Court to Amend and Suspend Procedural Rules:
Requisites:
The Supreme Court may suspend the application of the Rules of Court in the 1) that the question must be raised by the proper party;
interest of just and expeditious proceedings because the rules were precisely 2) that there must be an actual case or controversy;
adopted with the primary objective of enhancing fair trial and expeditious justice. 3) that the question must be raised at the earliest possible opportunity;
and,
PEA vs. Yuico, GR 140486: the Court has had occasions to suspend 4) that the decision on the constitutional or legal question must be
its own rules, or to except a particular case from its operation, necessary to the determination of the case itself
whenever the purposes of justice require it.8 Strong compelling
reasons, such as serving the ends of justice and preventing a Role of Judiciary
miscarriage thereof, can warrant a suspension of the rules.9 While  To settle actual controversies involving rights which are legally
there is a crying need to unclog court dockets, on the one hand, demandable and enforceable;
there is, on the other hand, an incomparable demand for resolving  To determine whether there has been grave abuse of discretion
disputes fairly and equitably. amounting to lack or excess of jurisdiction by any branch of the
government
Liberal Construction Rule:
Concept of Courts
These Rules shall be liberally construed in order to promote their objective of
securing a just, speedy and inexpensive disposition of every action and proceeding.

System of Code pleadings vs. Common Law System:


© Gironella – Macadatar 2017 | Judicial Power and the Role of Judiciary 2
COURT: an organ of the government, belonging to the judicial department, whose by public officers or employees including those in GOCCs in relation to
function is the application of laws to controversies brought before it and the their office.
public administration of justice
Fourth Level (Supreme Court)
Court Judge
Entire body in which the judicial Only an officer or member of 2. SPECIAL COURTS
power is vested the court  Sandiganbayan
May exist without a present judge There may be a judge without  CTA
a court  Shari’a District Courts
Disqualification of a judge does May be disqualified  Shari’a Circuit Courts
not affect the court
3. QUASI COURTS OR QUASI JUDICIAL AGENCIES - CSC
Classifications of Philippine courts:
Constitutional Court vs Statutory Court
1. REGULAR COURTS
Constitutional Court Statutory Court
First Level (MTCs, MeTCs, MCTCs, MTCCs) Created by the constitution Created by law
1. criminal actions involving e.g. SC e.g. CTA
a. violations of city or municipal ordinances committed within Cannot be abolished by May be abolished by Congress by
their respective territorial jurisdiction Congress without amending the just simply repealing the law
b. offenses punishable with imprisonment not exceeding 6 years Constitution which created those courts
irrespective of the amount of fine and regardless of other
imposable accessory or other penalties, and Courts of Law and Equity
2. civil actions including ejectment, recovery of personal property with a
value of not more than P300,000 outside MM or does not exceed Courts of Law Courts of Equity
P400,000 in MM; Any tribunal duly Any tribunal administering justice outside
administering the the law, being ethical rather than jural and
Second Level (RTCs, Family Courts) laws of the land belonging to the sphere of morals rather
(1) courts of general jurisdiction; than of law. It is grounded on the precepts
(2) incapable of pecuniary estimation, or of conscience and not on any sanction of
(3) involving title to or possession of real property where the assessed value positive law, for equity finds no room for
of the property exceeds P20,000 outside MM or exceeds P50,000 in application where there is law.
MM, except actions for ejectment (forcible entry and unlawful Decides a case Adjudicates a controversy according to
detainer), or according to what the common precepts of what is right and
(4) where the demand exclusive of interest, damages of whatever kind, the promulgated just without inquiring into the terms of
attorney’s fees, litigation expenses, and cost, or the value of the personal law is the statutes
property or controversy exceeds P300,000 outside MM or exceeds
P400,000 in MM. Courts of Original and Appellate Jurisdiction
(5) to review cases appealed from courts of the first level;
Courts of Original Courts of Appellate jurisdiction
Third Level (Court of Appeals, Sandiganbayan) jurisdiction
1. CA is an appellate court, reviewing cases appealed to it from the RTC, Courts exercising Superior Courts reviewing and
on questions of fact or mixed questions of fact and law. jurisdiction in the first deciding cases previously decided
2. Appeals to it decided by the RTC in the exercise of original jurisdiction instance by a lower court
are a matter of right; appeals with respect to cases decided by the RTC
in the exercise of its appellate jurisdiction are a matter of discretion. Courts of General and Special Jurisdiction
3. Occasionally, CA may act as a trial court, as in actions praying for the
annulment of final and executor judgments of RTCs on the ground of Courts of General jurisdiction Courts of Special jurisdiction
extrinsic fraud subsequently discovered, against which no other
Takes cognizance of all cases , Takes cognizance of special
remedies lies.
civil or criminal, of a particular jurisdiction for a particular
nature, or courts whose purpose, or are clothed with
Sandiganbayan has jurisdiction over:
judgment is conclusive until special powers for the
1. all criminal and civil cases involving graft and corrupt practices act
modified or reversed on direct performance of specified
2. Such other offenses committed by public officers and employees
attack, and who are competent duties, beyond which they
including those in GOCCs in relation to their office.
to decide on their own have no authority of any kind
3. It also has exclusive appellate jurisdiction over final judgments,
jurisdiction
resolutions, or orders of RTCs whether in the exercise of their own
original or appellate jurisdiction over criminal and civil cases committed

© Gironella – Macadatar 2017 | Judicial Power and the Role of Judiciary 3


Superior and Inferior Courts
Error of Jurisdiction Error of Judgment
Superior Inferior One where the court, officer One that the court may commit
courts which have the power of those which, in relation to or quasi-judicial body acts in the exercise of jurisdiction; it
review or supervision over another court, are lower in rank without or in excess of includes errors of procedure or
another and lower court and subject to review and jurisdiction, or with grave mistakes in the court’s findings
supervision by the latter abuse of discretion
Renders a judgment void or Does not make the court’s
Courts of Record and Not of Record at least voidable decision void
Correctible by certiorari Correctible by appeal
Courts of Record: These are courts whose proceedings are enrolled and which are There is an exercise of The court acted with jurisdiction
bound to keep written records of all trials and proceedings handled by them. R.A. jurisdiction in the absence of but committed procedural errors
No. 6031 mandates all Municipal Trial Courts to be courts of record. jurisdiction in the appreciation of the facts or
the law
Courts Not of Record – courts which are not required to keep a written record or
transcript of proceedings held therein How jurisdiction is conferred and determined

PRINCIPLE OF JUDICIAL HIERARCHY It is conferred by substantive law.


A higher court will not entertain direct resort to it unless the redress desired
cannot be obtained in the appropriate courts. The Supreme Court is a court of last Instances in which jurisdiction cannot be conferred
resort and must so remain if it is to satisfactorily perform assigned to it. 1. By the administrative policy of any court;
2. A court’s unilateral assumption of jurisdiction;
DOCTRINE OF NON-INTERFERENCE OR DOCTRINE OF JUDICIAL 3. An erroneous belief by the court that it has jurisdiction;
STABILITY 4. By the parties through a stipulation e.g. contract;
Courts of equal and coordinate jurisdiction cannot interfere with each other’s 5. The agreement of the parties acquired through, or waived, enlarged or
orders. Thus, the RTC has no power to nullify or enjoin the enforcement of a writ diminished by, any act or omission of the parties;
of possession issued by another RTC. The principle also bars a court from 6. Parties silence, acquiescence or consent
reviewing or interfering with the judgment of a co-equal court over which it has no
appellate jurisdiction or power of review. Doctrine of Primary Jurisdiction, exhaustion of administrative
remedy
Exception: The doctrine does not apply where a third party claimant is involved
Doctrine of Primary Jurisdiction: Courts will not resolve a controversy involving
DOCTRINE OF JUDICIAL SUPREMACY a question which is within the jurisdiction of an administrative tribunal, especially
 The doctrine recognizing that the judiciary is vested with the power to where the question demands the exercise of sound administrative discretion
annul the acts of either the legislative or the executive or of both when requiring the special knowledge and experience of said tribunal in determining
not conformable to the fundamental law. technical and intricate matters of fact
 The power of judicial review under the Constitution.
Doctrine of Ancillary Jurisdiction: It involves the inherent or implied powers of
the court to determine issues incidental to the exercise of its primary jurisdiction.
Civil Jurisdiction
Will the failure to exhaust administrative remedies affect the jurisdiction of
Concept of Jurisdiction the court?

Jurisdiction overthe Subject Matter General Rule: No. It is not jurisdictional but the case will be dismissed on the
ground of lack of cause of action. It only renders the action premature.
It is the power to deal with the general subject involved in the action, and means
not simply jurisdiction of the particular case then occupying the attention of the Exception: Before a party may be allowed to invoke the jurisdiction of the courts, he
court but jurisdiction of the class of cases to which the particular case belongs. is expected to have exhausted all means of administrative redress

Jurisdiction vs. Exercise of Jurisdiction Exceptions to the Exceotion:


1. Question raised is purely legal;
Jurisdiction is the authority to hear and decide cases. 2. When the administrative body is in estoppels;
3. When the act complained of is patently illegal;
Exercise of jurisdiction is any act of the court pursuant to such authority, which 4. When there is need for judicial intervention;
includes making decisions. 5. When the respondent acted in disregard of due process;
6. When the respondent is the alter-ego of the President, bear the implied
Error of Jurisdiction vs. Error of Judgment or assumed approval of the latter;

© Gironella – Macadatar 2017 | Civil Jurisdiction 4


7. When irreparable damage will be suffered; reason of public policy (Filipinas Shell Petroleum Corp. v. Dumlao, G.R. No. L-
8. When there is no other plain, speedy and adequate remedy; 44888, Feb. 7, 1992).
9. When strong public interest is involved; and
10. In quo warranto proceedings 3. A party who invokes the jurisdiction of the court to secure affirmative
relief against his opponents cannot repudiate or question the same after
Principle of adherence of jurisdiction failing to obtain such relief

Jurisdiction, once attached, cannot be ousted by subsequent happenings or events Effect of estoppel on objections to jurisdiction
although of a character which would have prevented jurisdiction from attaching in
the first instance, and the court retains jurisdiction until it finally disposes of the The active participation of a party in a case is tantamount to recognition of that
case. court’s jurisdiction and will bar a party from impugning the court’s jurisdiction.
 This only applies to exceptional circumstances.
Exceptions:
1. Where a subsequent statute expressly prohibits the continued exercise Jurisdiction Over The Parties
of jurisdiction;
2. Where the law penalizing an act which is punishable is repealed by a Jurisdiction over the Complainant or Plaintiff:
subsequent law;  It is acquired from the moment of filing the complaint, petition or
3. When accused is deprived of his constitutional right such as where the initiatory pleading.
court fails to provide counsel for the accused who is unable to obtain
one and does not intelligently waive his constitutional right; Jurisdiction over the Defendant:
4. Where the statute expressly provides, or is construed to the effect that It is acquired either:
it is intended to operate as to actions pending before its enactment; a. By his voluntary appearance in court and his submission to its authority
5. When the proceedings in the court acquiring jurisdiction is terminated, b. By service of summons
abandoned or declared void; c. Other coercive process upon him
6. Once appeal has been perfected;
7. Curative statutes Note: Jurisdiction over the defendant is not essential in actions in rem or quasi in
rem as long as the court has jurisdiction over the res
Note: Jurisdiction being a matter of substantive law, the established rule is that
statute in force at the time of the commencement of the action determines Jurisdiction Over the Subject Jurisdiction Over the Person
jurisdiction. Matter
Determined by the allegations of Acquired by the filing of the
Objections to jurisdiction over the subject matter; when raised the complaint petition in case of the plaintiff
or by arrest, by valid service of
Effect of lack of jurisdiction over the subject matter: Note: Tenancy relationship is summons or voluntary
 the court shall dismiss it not presumed and it is not submission to the court’s
enough that it is alleged. There authority in case of the
The court may on its own initiative object to an erroneous jurisdiction and may ex must be evidence to prove that defendant
meromotu take cognizance of lack of jurisdiction at any point in the case and has a it exists and that all its elements
clearly recognized right to determine its own jurisdiction are established.

When Raised: at any stage of the proceedings

Conferred by law which may be It is sometimes made to depend,


Note: Jurisdiction can be questioned even for the first time on appeal
either the Constitution or a indirectly at least, on the party’s
statute volition
Exceptions:
Cannot be conferred by the GR: The appearance of the
1. Estoppel by laches.
agreement of the parties, by defendant in whatever form is
contract or by parties’ silence or submission to the jurisdiction
SC barred a belated objection to jurisdiction that was raised only after an adverse
acquiescence of the court
decision was rendered by the court against the party raising the issue of
jurisdiction and after seeking affirmative relief from the court and after
EX: If the appearance is to
participating in all stages of the proceedings(Tijam v. Sibonghanoy, G.R. No. L-
object or question the court’s
21450, Apr. 15, 1968).
jurisdiction

2. Public policy
Note: In criminal cases,
jurisdiction over the accused is
One cannot question the jurisdiction which he invoked, not because the decision is
always required
valid and conclusive as an adjudication, but because it cannot be tolerated by

© Gironella – Macadatar 2017 | Concept of Jurisdiction 5


Sharuff vs. Bubla, 12 SCRA 79: Petitioner insists that the certificate, is an action in rem.
respondent court acquired no jurisdiction over the person of
respondent Bubla. We find this to be without merit. It is settled law In an action in personam, jurisdiction over the person of the
in this jurisdiction that a court may acquire jurisdiction over the defendant is necessary for the court to validly try and decide the
person of a party either by his voluntary appearance in court case. In a proceeding in rem or quasi in rem, jurisdiction over the
demanding affirmative relief or by having him served with summons person of the defendant is not a prerequisite to confer jurisdiction
within the territorial jurisdiction of the Philippines. Bubla was the on the court, provided that the latter has jurisdiction over the res.
plaintiff in Civil Case No. 33461 filed against the herein petitioner.
By filing his complaint, therefore, Bubla submitted voluntarily to Jurisdiction over the res is acquired either (a) by the seizure of the
the jurisdiction of the respondent court and the latter acquired such property under legal process, whereby it is brought into actual
jurisdiction even if, as a matter of fact, Bubla had never been able to custody of the law, or (b) as a result of the institution of legal
enter the Philippines. proceedings, in which the power of the court is recognized and
made effective.
Jurisdiction Over The Issues
The herein petition to establish illegitimate filiation is an action in
It is the power of the court to try and decide issues raised in the pleadings of the rem. By the simple filing of the petition to establish illegitimate
parties or by their agreement in a pre-trial order or those tried by the implied filiation before the RTC, which undoubtedly had jurisdiction over
consent of the parties. the subject matter of the petition, the latter thereby acquired
 It may also be conferred by waiver or failure to object to the jurisdiction over the case. An in rem proceeding is validated
presentation of evidence on a matter not raised in the pleadings essentially through publication. Through publication, all interested
parties are deemed notified of the petition.
Pe vs. IAC, 195 SCRA 137: Time and again, We stress that "courts
of justice have no jurisdiction or power to decide a question not in If at all, service of summons or notice is made to the defendant, it is
issue." A judgment going outside the issues and purporting to not for the purpose of vesting the court with jurisdiction, but
adjudicate something upon which the parties were not heard is not merely for satisfying the due process requirements.
merely irregular, but extrajudicial and invalid.
Power of the Congress to Define, Prescribe, and Apportion the
Thus, the lower court erred in discussing novation, an issue which Jurisdiction of Courts
is neither raised in the pleadings nor material to the controversy.
The Congress shall have the power to define, prescribe, and apportion the jurisdiction of the
Jurisdiction Over The Res or Property in Litigation various courts but may not deprive the Supreme Court of its jurisdiction over cases enumerated in
Section 5 hereof.
It is acquired either by:
1. The seizure of the property under legal process.
Kinds of Jurisdiction
2. As a result of the institution of legal proceedings, in which the power of
the court is recognized and made effective.
I. ORIGINAL vs. APPELLATE
3. The court by placing the property of thing under its custody
(custodialegis) - attachment of property.
Original when actions or proceedings are originally filed with it.
4. The court through statutory authority conferring upon it the power to
deal with the property or thing within the court’s territorial jurisdiction
Appellate when it has the power of review over the decisions or orders of a lower
- suits involving the status of the parties or suits involving the property
court
in the Philippines of non-resident defendants.

II. EXCLUSIVE vs. CONCURRENT


Lucas vs. Lucas, 650 SCRA 667: was the service of summons
jurisdictional? The answer to this question depends on the nature of
Exclusive precludes the idea of co-existence and refers to jurisdiction possessed to
petitioner’s action, that is, whether it is an action in personam, in
the exclusion of others.
rem, or quasi in rem.

Concurrent is the power of different courts to take cognizance of the same subject
An action in personamis lodged against a person based on personal
matter
liability; an action in rem is directed against the thing itself instead
of the person; while an action quasi in rem names a person as
III. ORIGINAL EXCLUSIVE vs. ORIGINAL CONCURRENT
defendant, but its object is to subject that person's interest in a
property to a corresponding lien or obligation.
IV. GENERAL vs. SPECIAL

A petition directed against the "thing" itself or the res, which


Courts of general jurisdiction are those with competence to decide on their own
concerns the status of a person, like a petition for adoption,
jurisdiction and take cognizance of all cases, civil and criminal, of a particular
annulment of marriage, or correction of entries in the birth
nature.

© Gironella – Macadatar 2017 | Kinds of Jurisdiction 6


2. Civil Service Commission
Courts of special (limited) jurisdiction have special jurisdiction only for a 3. Quasi-judicial agencies (file with the CA first)
particular purpose or are clothed with special powers for the performance of 4. RTC and lower courts;
specified duties beyond which they have no authority of any kind
b. Petitions for issuance of writ of kalikasan
Specific Jurisdiction of Court With the Court of Appeals and Regional Trial Court
1. Petitions for habeas corpus and quo warranto; and
Supreme Court 2. Petitions for issuance of writs of certiorari, prohibition
and mandamus against the lower courts or other bodies
En Banc Cases: With the CA, RTC and Sandiganbayan
1. Petitions for the issuance of writ of amparo
a. All cases involving the constitutionality of a treaty, international or executive 2. Petition for writ of habeas data, where the action
agreement, or law; involves public data or government office
b. Cases involving the constitutionality, application or operation of presidential 3. Petitions for habeas corpus and quo warranto; and
decrees, proclamations, orders, instructions, ordinances and other 4. Petitions for issuance of writs of certiorari, prohibition
regulations; and mandamus against the lower courts or other bodies
c. A case where the required number of vote in a division is not obtained; With the Regional Trial Court
d. A doctrine or principle laid down in a decision rendered en banc or by Actions affecting ambassadors and other public ministers and
division is modified, or reversed; consuls
e. All other cases required to be heard en banc under the Rules of Court
Court of Appeals
Exclusive Original:
Petitions for issuance of writs of certiorari, prohibition and Exclusive Original:
mandamus against the following: Actions for annulment of judgments of RTC based upon extrinsic
1. Court of Appeals fraud or lack of jurisdiction
2. Commission on Elections En Banc Appellate:
3. Commission on Audit
1. Final judgments, decisions, resolutions, orders, awards of:
4. Sandiganbayan
a. RTC
Appellate: i. In the exercise of its original jurisdiction;
1. Appeal by petition for review on certiorari: ii. In the exercise of its appellate jurisdiction;
a. Appeals from the CA b. Family Courts;
b. Appeals from the CTA; c. RTC on the appealed first to the CA;
c. Appeals from RTC exercising original jurisdiction in the d. Appeals from RTC in cases appealed from MTCs
following cases: which are not a matter of right.
i. If no question of fact is involved and the case involves: 2. Appeal from MTC in the exercise of its delegated
a) Constitutionality or validity of treaty, jurisdiction (R.A. 7691).
international or executive agreement, law, 3. Appeals from Civil Service Commission;
presidential decree, proclamation, order, a. Appeals from quasi-judicial agencies questions of
instruction, ordinance or regulation constitutionality, validity of tax, jurisdiction
b) Legality of tax, impost, assessments, or toll, or involving questions of fact, which should be
penalty in relation thereto 4. under Rule 43;
c) Cases in which jurisdiction of lower court is in 5. Appeals from the National Commission on Indigenous
issue Peoples (NCIP); and
ii. All cases in which only errors or questions of law are 6. Appeals from the Office of the Ombudsman in
involved. administrative disciplinary cases
Concurrent:
2. Special civil action of certiorari – filed within 30 days
With the Supreme Court
against the COMELEC / COA
1. Petitions for issuance of writs of certiorari, prohibition
Concurrent:
and mandamus against the following:
With the Court of Appeals: a. NLRC under the Labor Code.
a. Petitions for issuance of writs of certiorari, prohibition and b. Civil Service Commission
mandamus against the following c. Quasi-judicial agencies
1. NLRC under the Labor Code. d. RTCs and other lower courts.
2. Petitions for issuance of writ of kalikasan
Note: The petitions must first be filed with the CA, otherwise, they
With Supreme Court and Regional Trial Court
shall be dismissed.
1. Petitions for habeas corpus and quo warranto; and

© Gironella – Macadatar 2017 | Specific Jurisdiction of Court 7


2. Petitions for the issuance of writs of certiorari,
prohibition and mandamus against the lower courts (3) Members of the judiciary without prejudice to the
With the SC, RTC and Sandiganbayan provisions of the Constitution;
1. Petitions for the issuance of writ of amparo
2. Petition for writ of habeas data, where the action (4) Chairmen and members of the Constitutional
involves public data or government office Commissions, without prejudice to the provisions of the
Constitution; and
Sandiganbayan
(5) All other national and local officials classified as Grade
’27’ and higher
Exclusive Original:
Cases involving violations of:
Provided, That the Regional Trial Court shall have exclusive
a. EO No. 1 (Creating the PCGG);
original jurisdiction where the information:
b. EO No. 2 (Illegal Acquisition and Misappropriations of
a) does not allege any damage to the government or any
Ferdinand Marcos, Imelda Marcos their close relatives,
bribery; or
subordinates, business associates, dummies, agents or
b) alleges damage to the government or bribery arising from
nominees);
the same or closely related transactions or acts in an
c. EO No. 14 [Cases involving the ill-gotten wealth of the
amount not exceeding P1,000,000.00
immediately mentioned persons (Marcos and dummies)];
Appellate:
and
Appeals from final judgments, resolutions or orders of the RTC,
d. EO No. 14-A (amendments to EO No. 14)
whether in the exercise of their original or appellate jurisdiction, in
cases involving public officials or employees not otherwise
Where one or more of the accused are officials occupying the
mentioned in the preceding enumeration.
following positions in the government, whether in a permanent,
Concurrent:
acting or interim capacity, at the time of the commission of the offense:
With the Supreme Court
(1) ―Officials of the executive branch occupying the positions Petitions for certiorari, prohibition, mandamus, habeas corpus,
of regional director and higher, otherwise classified as injunction and other ancillary writs in aid of its appellate
Grade ’27’ and higher, of the Compensation and Position jurisdiction, including quo warranto arising in cases falling under
Classification Act of 1989 (Republic Act No. 6758), Executive Order Nos. 1, 2, 14 and 14-A.
specifically including: With Supreme Court, CA and Regional Trial Court
a. Provincial governors, vice-governors, members Petitions for the issuance of writ of amparo and writ of habeas data.
of the sangguniangpanlalawigan, and
provincial treasurers, assessors, engineers, and Q: Governor Charles of Tarlac was charged with indirect bribery
other provincial department heads: before the Sandiganbayan for accepting a car in exchange for the
b. City mayors, vice-mayors, members of the award of a series of contracts for medical supplies.
sangguniangpanlungsod, city treasurers, TheSandiganbayan, after going over the information, found the
assessors, engineers, and other city department same to be valid and ordered the suspension of Charles. The latter
heads; contested the suspension claiming that under the law (Sec. 13, R.A.
c. Officials of the diplomatic service occupying 3019), his suspension is not automatic upon the filing of the
the position of consul and higher; information and his suspension under Sec. 13, R.A. 3019 is in conflict
d. Philippine army and air force colonels, naval with Sec. 5 of the Decentralization Act of 1967 (R.A. 5185). The
captains, and all officers of higher rank; Sandiganbayan overruled Charles’ contention stating that the
e. Officers of the Philippine National Police while suspension under the circumstances is mandatory. Is the court's
occupying the position of provincial director ruling correct?
and those holding the rank of senior
superintendent and higher; A: Yes. Charles’ suspension is mandatory, although not automatic.
f. City and provincial prosecutors and their It is mandatory after the determination of the validity of the
assistants, and officials and prosecutors in the information in a pre-suspension hearing. The purpose of the
Office of the Ombudsman and special suspension is to prevent the accused public officer from frustrating
prosecutor; or hampering his prosecution by intimidating or influencing
g. Presidents, directors or trustees, or managers witnesses or tampering with evidence or from committing further
of government-owned or controlled acts of malfeasance while in office. (2001 Bar Question)
corporations, state universities or educational
institutions or foundations. Regional Trial Court

(2) Members of Congress and officials thereof classified as Exclusive Original:


Grade ’27’ and higher 1. Actions in which the subject of litigation is incapable of

© Gironella – Macadatar 2017 | Specific Jurisdiction of Court 8


pecuniary estimation;
2. Actions involving title to or possession of real property or Where there are several claims or causes of actions between the same or different
any interest therein where the assessed value exceeds parties embodied in one complaint, the amount of the demand shall be the totality
P20,000 or P50,000 in Metro Manila, except forcible of the claims in all causes of action irrespective of whether the causes of action
entry and unlawful detainer; arose out of the same or different transaction
3. Actions in admiralty and maritime jurisdiction where
demand or claim exceeds P300,000 or P400,000 in Metro Municipal Trial Court
Manila;
4. Matters of probate, testate or intestate, where gross value Exclusive Original
of estate exceeds P300,000 or P400,000 in Metro Manila; 1. Actions involving personal property where the value of
5. Cases not within the exclusive jurisdiction of any court, the property does not exceed P300,000 or, in Metro
tribunal, person or body exercising judicial or quasi- Manila P400,000;
judicial function; 2. Actions for claim of money where the demand does not
6. Civil actions and special proceedings falling within exceed P300,000 or, in Metro Manila P400,000;
exclusive original jurisdiction of Juvenile and Domestic 3. Probate proceedings, testate or intestate, where the value
Relations Court and Court of Agrarian Reforms; of the estate does not exceed P300,000 or, in Metro
7. Other cases where the demand, exclusive of interest, Manila P400,000;
damages, attorney’s fees, litigation expenses and costs, or
value of property in controversy exceeds P300,000 or Note: In the foregoing, claim must be exclusive of interest, damages,
P400,000 in Metro Manila; and attorney’s fees, litigation expense, and costs
8. Intra-corporate controversies under Sec. 5.2 of the
Securities and Regulation Code. 4. Actions involving title to or possession of real property or
Appellate: any interest therein where the value or amount does not
General Rule: All cases decided by lower courts (MTC etc.) in their exceed P20,000 or, in Metro Manila P50,000 exclusive of
respective territorial jurisdictions. interest damages, attorney’s fees, litigation expense, and
costs; (2008 Bar Question)
Exceptions: Decisions of lower courts in the exercise of delegated 5. Maritime claims where the demand or claim does not
jurisdiction. exceed P300,000 or, in Metro Manila P400,000
Concurrent: 6. Inclusion or exclusion of voters
With the Supreme Court, SB and CA 7. Those covered by the Rules on Summary Procedure:
1. Writ of amparo a. Forcible entry and unlawful detainer;
2. Writ of habeas data b. Other civil cases except probate where the
With Supreme Court total amount of the plaintiff’s claims does not
exceed P100,000 or, in Metro Manila P200,000
Actions affecting ambassadors and other public ministers and
exclusive interest and costs (as amended by
consuls
A.M. No. 02-11-09-SC).
With Supreme Court and Court of Appeals
8. Those covered by the Rules on Small Claims - where the
1. Certiorari, prohibition and mandamus against lower
value of the claim does not exceed Two Hundred
courts and bodies;
Thousand Pesos (P200,000.00) exclusive of interest and
2. Habeas corpus and quo warranto;
costs.
With Municipal Trial Court
Delegated
Cases involving enforcement or violations of environmental and Cadastral or land registration cases covering lots where:
other related laws, rules and regulations a. There is no controversy or opposition;
b. Contested but the value does not exceed P100,000
Test to determine whether an action is capable of pecuniary estimation: Special
Petition for habeas corpus in the absence of all RTC judges in the
The criterion is the nature of the principal action or the remedy sought. If it is
province or city
primarily for the recovery of a sum of money, the claim is considered capable of
pecuniary estimation, and whether jurisdiction is in the MTCs or in the RTCs
Courts of Muslim Mindanao
would depend on the amount of the claim.

Shari'a District Courts


However, where the basic issue is something other than the right to recover a sum
of money, where the money claim is purely incidental to, or a consequence of, the
principal relief sought like specific performance suits and in actions for support, or Exclusive Original
for annulment of a judgment or foreclosure of mortgage, such actions are incapable (1) All cases involving custody, guardianship, legitimacy,
of pecuniary estimation, and are cognizable exclusively by the RTCs paternity and filiation arising under the Code of Muslim
Personal Laws;
Aggregate or Totality Rule (2) All cases involving disposition, distribution and

© Gironella – Macadatar 2017 | Specific Jurisdiction of Court 9


settlement of estate of deceased Muslims, probate of
wills, issuance of letters of administration or Cases which can be heard by the Agama Arbitration Council
appointment of administrators or executors regardless of 1. Dispute brought about by wife’s exercise of tafwid (when a husband has
the nature or aggregate value of the property delegated to the wife the right to effect a divorce at the time of the
(3) Petitions for the declaration of absence and death for the celebration of the marriage or thereafter)
cancellation or correction of entries in the Muslim 2. Dispute brought about by husband’s exercise of talaq (when divorce is
Registries mentioned in Title VI, Book Two of the Code effected by the husband in a single repudiation of his wife during her
of Muslim Personal Laws; nonmenstrual period within which he has totally abstained from carnal
(4) All actions arising from the customary contracts in which relation with her)
the parties are Muslims, if they have not specified which 3. Dispute brought about by husband’s intention to contract a subsequent
law shall govern their relations; and marriage and the wife objects
(5) All petitions for mandamus, prohibition, injunction, 4. Dispute arising from husband’s refusal to give consent to wife’s exercise
certiorari, habeas corpus, and all other auxiliary writs of profession or occupation or engagement in lawful business
and processes in aid of its appellate jurisdiction. 5. Dispute brought about by a commission of an offense against customary
Concurrent with all Civil Courts law which can be settled without formal trial.
(1) Petitions by Muslim for the constitution of a family
home, change of name and commitment of an insane Other Special Courts
person to an asylum;
(2) All other personal and legal actions not mentioned in FAMILY COURTS
paragraph 1 (d) wherein the parties involved are Muslims
except those for forcible entry and unlawful detainer, Exclusive Original
which shall fall under the exclusive jurisdiction of the (1) Petitions for guardianship, custody of children, habeas
Municipal Circuit Court; and corpus in relation to minor;
(3) All special civic actions for interpleader or declaratory (2) Petitions for adoption of children and its revocation;
relief wherein the parties are Muslims or the property (3) Complaints for annulment and declaration of nullity of
involved belongs exclusively to Muslims. marriage and those relating to marital status and
property relations of spouses or those living together
Shari'a Circuit Courts under different status and agreements; and petitions for
dissolution of conjugal partnership of gains;
Original (4) Petitions for support and/or acknowledgment;
1. All cases involving offenses defined and punished under (5) Summary judicial proceedings under the Family Code of
Presidential Decree No. 1083; the Philippines;
(6) Petitions for declaration of status of children as
2. All civil actions and proceedings between parties who are abandoned, dependent or neglected children, petitions
Muslims or have been married in accordance with Article for voluntary or involuntary commitment of children, the
13 of Presidential Decree No. 1083 involving disputes suspension, termination, or restoration of parental
relating to: authority and other cases cognizable under PD 603, EO
i. Marriage; and other related laws; and
ii. Divorce recognized under Presidential Decree No. (7) Petitions for the constitution of the family home
1083;
iii. Betrothal or breach of contract to marry COMMERCIAL COURTS
iv. Customary dowry (mahr);
v. Disposition and distribution of property upon Cases previously falling within the original exclusive jurisdiction of the SEC, now
divorce; within the Original exclusive jurisdiction of the RTCs designated as commercial
vi. Maintenance and support, and concolotary courts.
gifts(mut'a); and
vii. Restitution of marital rights.
3. All cases involving disputes relative to communal
properties.

Shari'a Appellate Courts

Agama Arbitration Council

The Shari’a District Court or the Shari’a Circuit Court may constitute an Agama
Arbitration Council to settle certain cases amicably and without formal trial. The
Council is composed of the Clerk of Court as Chairperson and a representative of
each of the conflicting parties.

© Gironella – Macadatar 2017 | Specific Jurisdiction of Court 10


SPECIAL PROCEEDINGS: Remedy by which a party seeks establish a status, a
The 1987 Rules of Civil right, or a particular fact.

Procedure Civil Action Special Proceedings


 Where a party  Where his purpose is to seek the
General Provisions litigant seeks to appointment of a guardian for an
recover property insane person, his remedy is a
Applicability from another, his special proceeding to establish the
remedy is to file an fact or status of insanity calling for
These Rules shall apply in all the courts, except as otherwise provided by the action. an appointment of guardianship.
Supreme Court  To protect a right  To establish a status, a right or a
and prevent or particular fact.
Exceptions: redress a wrong.  may involve a right but there need
a. election cases  Involves a right not be a violation of this right
b. land registration and a violation of  Specific kinds of special
c. cadastral such right. proceedings are found in Rule 71 -
d. naturalization 109
e. insolvency proceedings
f. other cases not provided for except by analogy or in a suppletory Inception of an Action
character

Commencement of Action
Cases Covered by the Rules
A civil action is commenced by the filing of the original complaint in court.
CIVIL ACTIONS: One by which a party sues another for the enforcement or
protection of a right, or the prevention or redress of a wrong.
In case where there are Additional Defendant: If an additional defendant is
impleaded in a later pleading, the action is commenced with regard to him on the
 Ordinary Civil Action: Formal demand of one’s legal rights in a court of
date of the filing of such later pleading, irrespective of whether the motion for its
justice in the manner prescribed by the court or by law.
admission, if necessary, is denied by the court.
o Governed by ordinary rules.

Docket Fees:
Provisional Remedies:
1. Preliminary attachment
In Manchester v. Court of Appeals, it was held that a court acquires jurisdiction over
2. Preliminary injunction
any case only upon the payment of the prescribed docket fee.
3. Receivership
4. Replevin
The strict application of thisrule was, however, relaxed two (2) years after in the
5. Support pendente lite
case of Sun Insurance Office, Ltd. v. Asuncion, wherein the Court decreed that where
the initiatory pleading is not accompanied by the payment of the docket fee, the
 Special Civil Action: It has special features not found in ordinary civil
court may allow payment of the fee within a reasonable period of time, but in
actions.
no case beyond the applicable prescriptive or reglementary period. This ruling
o It is governed by ordinary rules but subject to specific rules
was made on the premise that the plaintiff had demonstrated his willingness to
prescribed under Rules 62-71.
abide by the rules by paying the additional docket fees required.
Interpleader
Declaratory relief and similar remedies
Review of judgments and final orders or
Concept of Ordinary Civil Action and cause of action
resolutions of the COMELEC and COA
Certiorari, prohibition, mandamus CAUSE OF ACTION: the act or omission by which a party violates the rights of
Quo warranto another
Expropriation
Foreclosure of Real Estate Mortgage Requisites:
Partition 1. The existence of a legal right of the plaintiff
Forcible entry and unlawful detainer 2. A correlative duty of the defendant to respect one’s right
Contempt 3. An act or omission of the defendant in violation of the plaintiff’s right.

CRIMINAL ACTION:One by which the State prosecutes a person for an act or Nature: predicated on substantive law or on quasi-delicts under the NCC
omission punishable by law.
Basis: the allegations of the plaintiff in the complaint
 Not affected by affirmative defenses

© Gironella – Macadatar 2017 | The 1987 Rules of Civil Procedure 11


 That means that realty or interest therein is the
RIGHT OF CAUSE OF ACTION: Remedial right or right to relief granted by law subject matter of the action.
to a party to institute an action against a person who has committed a delict or
wrong against him It is important that the matter in litigation must also involve any of the following
issues:
Requisites: 1. Title to
1. There must be a good cause (existence of a cause of action) 2. Ownership
2. A compliance with all the conditions precedent to the bringing of the 3. Possession
action 4. Partition
3. The action must be instituted by the proper party. 5. Foreclosure of mortgage
6. Any interest in real property.
Nature: It is procedural in character is the consequence of the violation of the right
of the plaintiff Venue: court where the property or portion thereof is located

Basis: the plaintiff’s cause of action b. Personal: Personal property is sought to be recovered or
 Affected by affirmative defenses where damages for breach of contract are sought
 Founded on privity of contract such as damages,
Note: There is no right of action where there is no cause of action. claims of money, etc.

Failure to state cause of action vs No cause of action Venue: the place where the plaintiff or any of the principal plaintiffs resides or any
of the defendants resides, at the election of the plaintiff
Failure to state cause of action No cause of action  in the case of a non-resident defendant, where he may be found
Insufficiency in the allegations Failure to prove or establish by
of the complaint evidence one’s stated cause of III. As to Object
action a. In Personam: A proceeding to enforce personal rights and
Raised in a motion to dismiss Raised in a demurrer to obligations brought against the person
under Rule 16 before a evidence under Rule 33 after the  An action to impose a responsibility or liability
responsive pleading is filed plaintiff has rested his case upon a person directly
Determined only from the Resolved only on the basis of  Jurisdiction over the person of the defendant is
allegations of the pleading and the evidence he has presented in required
not from evidentiary matters support of his claim  Judgment is binding only upon parties impleaded
or their successors-in-interest
Test of the sufficiency of a cause of action: Examples:
1. Action for specific performance
1. Whether or not admitting the facts alleged, the court could render a 2. Action for breach of contract
valid verdict in accordance with the prayer of the complaint 3. Action for ejectment
2. The sufficiency of the statement of cause of action must appear on the 4. Action for a sum of money; for damages
face of the complaint and its existence is only determined by the
allegations of the complaint b. In Rem: A proceeding to subject the property of such persons
to the discharge of the claims assailed.
Note: The truth or falsity of the allegations is beside the point because the  A proceeding to determine the state or condition of
allegations in the complaint are hypothetically admitted. Thus a motion to a thing
dismiss on the ground of failure to state a cause of action, hypothetically admits  Directed against the thing itself; directed against
the matters alleged in the complaint the whole world
 Jurisdiction over the person of the defendant is not
CLASSIFICATION OF CIVIL ACTIONS: required. Jusrisdiction over the RES is required
through publication in a newspaper of general
I. As to Nature circulation.
a. Ordinary – see discussion under ―concept of ordinary civil Examples:
action‖ 1. Probate proceeding
b. Special 2. Cadastral proceeding
3. Land registration proceeding
II. As to Cause or Foundation
a. Real: When it affects title to or possession of a real property, Splitting a single cause of action vs Consolidation of cases vs Severance:
or an interest therein
 When it is founded upon the privity of a real SPLITTING: It is the act of instituting two or more suits on the basis of the same
estate. cause of action

© Gironella – Macadatar 2017 | Inception of an Action 12


 The filing of one or a judgment upon the merits in any one action is
available as a ground for the dismissal of the others. 1. Right to relief arises out of the same transaction or series of transactions
o LitisPendencia (connected with the same subject matter of the suit);
o Res Judicata 2. There is a question of law or fact common to all the plaintiffs or
 The rule against splitting a single cause of action applies not only defendants; and
to complaints but also to counterclaims and cross-claims. 3. Joinder is not otherwise provided by the provisions of the Rules on
jurisdiction and venue
Illustration: An action for forcible entry should include not only the plea for restoration of
possession but also claims for damages arising out of the forcible entry. COMPULSORY JOINDER OF INDISPENSABLE PARTIES: Parties in interest
without whom no final determination can be had of an action shall be joined either
CONSOLIDATION:When actions involving a common question of law or fact are as plaintiff or as defendants
pending before the court, it may order a joint hearing or trial of any or all the
matters in issue in the actions, it may order all the actions consolidated Concept of Venue

SEVERANCE: The court, in furtherance of convenience or to avoid prejudice, may Real actions: proper court which has jurisdiction over the area wherein the real
order a separate trial of any claim, cross-claim, counterclaim or third-party property involved, or a portion thereof is situated
complaint, or any separate issue or of any number of claims, cross-claims,  actions affecting title to or possession of real property, forcible entry
counterclaims, third-party complaints or issues. and detainer

Totality Rule: Where there are several claims or causes of actions between the Personal actions: where the plaintiff or any principal plaintiffs resides, or where
same or different parties embodied in one complaint, the amount of the demand the defendant or any of the principal defendants resides
shall be the totality of the claims in all causes of action irrespective of whether the  in the case of a non-resident defendant, where he may be found, at the
causes of action arose out of the same or different transaction, the aggregate election of the plaintiff
amount shall determine the jurisdiction of the court
Actions against non-residents: if the action affects the personal status of the
Joinder vs. Misjoinder: plaintiff, or any property of said defendant located in the Philippines, the action
may be commenced and tried in the court of the place where the plaintiff resides,
Rules on proper joinder of action: or where the property or any portion thereof is situated or found
1. Proper joinder of parties
2. Shall not include special civil action or actions governed by special rules When rules are not applicable
3. Rule on venue a. Cases where a specific rule or law provides otherwise
4. Totality Rule b. Where the parties have validly agreed in writing before the filing of the
action on the exclusive venue thereof
PROPER JOINDER OF PARTIES: It is the assertion of as many causes of action a
party may have against another in one pleading alone Filing of Complaint

NON-JOINDER: A party is not joined when he is supposed to be joined but is not COMPLAINT: The complaint is the pleading alleging the plaintiff’s cause or
impleaded in the action. causes of action.
 The names and residences of the plaintiff and defendant must be stated
MISJOINDER: A party is misjoined when he is made a party to the action in the complaint.
although he should not be impleaded
The Law on Pleadings
Effect of misjoinder: not a ground for dismissal of an action
 A misjoined cause of action may, on motion of a party or on the initiative
Definition of Pleadings
of the court, be severed and proceeded with separately.

Pleadings are the written statements of the respective claims and defenses of the
Note: There is no sanction against a non-joinder of several causes of action since a
parties submitted to the court for appropriate judgment.
plaintiff needs only a single cause of action to maintain an action.
 Neither misjoinder and non-joinder of parties is ground for dismissal of
Note: Pleadings cannot be oral because they are clearly described as ―written‖
an action.
statements.
 Parties may be dropped or added by order of the court on motion of any
party or on its own initiative at any stage of the action and on such
terms as are just. Parts of a Pleading

PERMISSIVE JOINDER: All persons against whom any right to relief, in respect CAPTION:The caption sets forth
to the same transaction/s, may join as plaintiffs or be joined as defendants in one 1. The name of the court,
complaint, where any question of law or fact common to all such plaintiffs or to all 2. the title of the action, and
such defendants may arise in the action 3. The docket number if assigned.

© Gironella – Macadatar 2017 | The Law on Pleadings 13


13. Petition for indirect contempt
Title of the action:It should indicate the names of the parties. They shall all be 14. Petition for appointment of general guardian
named in the original complaint or petition but in subsequent pleadings, it shall be 15. Petition for leave to sell or encumber property of an estate by a guardian
sufficient if the name of the first party on each side be stated with an appropriate 16. Petition for the declaration of competency of a ward
indication when there are other parties. 17. Petition for habeas corpus
18. Petition for change of name
SIGNATURE and ADDRESS:The complaint must be signed by the plaintiff or 19. Petition for voluntary judicial dissolution of a corporation;
counsel representing him indicating his address. 20. Petition for correction or cancellation of entries in Civil Registry. (1996
Bar Question)
Note: This address should not be a post office box. An unsigned pleading produces
no legal effect. Effects of lack of verification:A pleading required to be verified but lacks the proper
verification shall be treated as an unsigned pleading
In case of deficiency:However, the court may, in its discretion, allow such deficiency - Hence, it produces no legal effect
to be remedied if it shall appear that the same was due to mere inadvertence and - It does not necessarily render the pleading defective.
not intended for delay. - It is only a formal and not a jurisdictional requirement.
- The requirement is a condition affecting only the form of the pleading
Disciplinary Actions:Counsel who: and non-compliance therewith does not necessarily render it fatally
1. deliberately files an unsigned pleading, or defective
2. signs a pleading in violation of this Rule, or
3. alleges scandalous or indecent matter therein, or How to cure lack of verification:The absence of verification may be corrected by
4. fails to promptly report to the court a change of his address
requiring an oath.

VERIFICATION AND CERTIFICATION AGAINST FORUM SHOPPING:


Certification of Non Forum Shopping:

Verification:
Nature:It is a mandatory requirement in filing a complaint and other initiatory
pleadings asserting a claim or relief
How:It is verified by an affidavit.

Who executes certification against forum-shopping?It is the plaintiff or principal party


This affidavit declares that the:
who executes the certification under oath.
1. Affiant has read the pleading; and
- It must be signed by the party himself and cannot be signed by his
2. Allegations therein are true and correct of his personal knowledge or
counsels.
based on authentic records
- It is the plaintiff who is in the best position to know whether he or it
actually filed or caused the filing of a petition.
Necessity of verification: it is not necessary except when otherwise specifically
required by law or rule, pleadings need not be under oath, verified or accompanied
by affidavit Undertakings:

1. That the party has not commenced or filed any claim involving the same
Significance of Verification:it is intended to secure an assurance that the allegations in
issues in any court, tribunal, or quasi-judicial agency and, to the best of
a pleading are true and correct and not the product of the imagination or a matter
his knowledge, no such other action or claim is pending
of speculation, and that the pleading is filed in good faith. The absence of a proper
2. That if there is such other pending action or claim, a complete statement
verification is cause to treat the pleading as unsigned and dismissible
of the present status thereof
3. That if he should therefore learn that the same or similar action or claim
Pleadings that should be verified:
has been filed or is pending, he shall report that fact within five days
therefrom to the court wherein his aforesaid complaint or initiatory
1. Petition for relief from judgment
pleading has been filed
2. Petition for review from the RTCs to the CA
3. Petition for review from the CTA and quasi-judicial agencies to the CA
Effects of non-compliance with the rule on certification:It is not curable by mere
4. Appeal by certiorari from the CA to the SC
amendment and shall be a cause for the dismissal of action
5. Petition for annulment of judgments or final orders and resolutions
6. Complaint for injunction
Note: When the case is dismissed due to non-compliance with the certification,
7. Application for appointment of receiver
filing fees cannot be recovered.
8. Application for support pendente lite
9. Petition for certiorari against the judgments, final orders or resolutions
Effects of non-compliance with the undertakings of submission of false certification:It has the
of constitutional commissions
same effect as the submission of false certification. Hence, such failure shall
10. Petition for certiorari, prohibition, mandamus, quo warranto
constitute indirect contempt of court without prejudice to the corresponding
11. Complaint for expropriation
administrative and criminal sanctions.
12. Complaint for forcible entry or unlawful detainer

© Gironella – Macadatar 2017 | The Law on Pleadings 14


Effects of willful and deliberate forum shopping:It shall be a ground for summary
dismissal. This dismissal is with prejudice and shall constitute direct contempt as Affirmative defenses – allegation of a new matter which while hypothetically
well as cause for administrative sanctions admitting the material allegations in the pleading would nevertheless prevent or
bar recovery by the claiming party. It is in the nature of confession and avoidance
Is belated filing allowed by the courts?
Negative defenses – specific denial of the material facts or facts alleged in the
General Rule: No. The lack of certification against forum shopping is generally not pleading essential to establish the plaintiff’s cause of action
curable by the submission thereof after the filing of the petition.
Negative pregnant - A denial which does not qualify as a specific denial. It is
Exceptions: In certain exceptional circumstances, however, the Court has allowed conceded to be actually an admission.
the belated filing of the certification. In Loyola v. Court of Appeals, et al. (245 - It is a form of denial which, at the same time, involves an affirmative
SCRA 477 [1995]), the Court considered the filing of the certification one day after implication favorable to the opposing party.
the filing of an election protest as substantial compliance with the requirement.
Where a fact is alleged with some qualification or modifying language and the
Q: Mayor Miguel, Mayor of City Koronadal, filed an action against denial is conjunctive, a negative pregnant exists, and only the qualification or
RD Corporation for the annulment of the deed of absolute sale over modification is denied, while the fact itself is admitted.
several real properties of City of Koronadal alleging irregularities
thereto with the RTC. The said deed of absolute sale was COUNTER – CLAIM: It is any claim which a defending party may have
authorized by Mayor Miguel’s predecessor, Mayor de Jesus. The against an opposing party. It partakes of a complaint by the defendant against the
RTC dismissed the petition because the certification against forum plaintiff
shopping was signed by the City Legal Officer of City of Koronadal - A counterclaim may be asserted against an original counter-claimant
and not by Mayor Miguel. Is the RTC correct? and a cross-claim may also be filed against an original cross-claimant.

A: Yes. It is the mayor, not the City Legal Officer, who has the Compulsory Counterclaim Permissive Counterclaim
authority to file suits for the recovery of funds and property on One which arises out of or is It does not arise out of nor is it
behalf of the city even without the prior authorization from the necessarily connected with the necessarily connected with
Sanggunian. Here, Mayor Miguel had the authority to institute the transaction or occurrence that is the subject matter of the
action against RD Corporation. However, being the proper party to the subject matter of the opposing opposing party’s claim
file such suits, Mayor Miguel must necessarily be the one to sign the party’s claim
certification against forum-shopping, and not the City Legal Officer, It does not require for its It may require for its
who, despite being an official of the City, was merely its counsel adjudication the presence of third adjudication the presence of
and not a party to the case (City of Caloocan v. CA, G.R. No. parties of whom the court cannot third parties over whom the
145004, May 3, 2006). acquire jurisdiction court cannot acquire
jurisdiction
Kinds of pleadings Barred if not set up in the action Not barred even if not set up
in the action
1. Complaint Need not be answered; No default Must be answered,:
2. Counterclaim Otherwise, default
3. Cross-claim Not an initiatory pleading. Initiatory pleading.
4. Third party claim Need not be accompanied by a Must be accompanied by a
5. Reply certification against forum certification against forum
6. Answer shopping and certificate to file shopping and whenever
7. Complaint in intervention action by the required by law, also a
LupongTagapamayapa. certificate tofile action by the
COMPLAINT: It is a concise statement of the ultimate facts constituting the LupongTagapamayapa
plaintiff’s cause or causes of action, with a specification of the relief sought, but it The court has jurisdiction to Must be within the
may add a general prayer for such further relief as may be deemed just or equitable. entertain both as to the amount jurisdiction of the court where
and nature the case is pending and
Note: A pleading alleging the plaintiff’s cause or causes of action. The names and cognizable by regular courts of
residences of the plaintiff and defendant must be stated. justice otherwise, defendant
will have to file it in separate
ANSWER: It is the pleading where the defendant sets forth his affirmative or proceeding which requires
negative defenses. It may likewise be the response to a counterclaim or a cross- payment of docket fee
claim.
Note: A plaintiff who fails or who chooses not to answer a compulsory
Note: An answer is a compulsory pleading. This pleading may be an answer to the counterclaim may not be declared in default, principally because the issues raised
complaint, an answer to counter claim or an answer to a cross-claim

© Gironella – Macadatar 2017 | The Law on Pleadings 15


in the counterclaim are deemed automatically joined by the allegations of the Exceptions: If it is not asserted through oversight, inadvertence, or excusable
complaint negligence, it may still be set up with leave of court by amendment of the
- In an original action before the RTC, the counterclaim may be pleadings.
considered compulsory regardless of the amount
THIRD (FOURTH, ETC) PARTY COMPLAINTS:A third (fourth, etc.) party
Effect of the dismissal of a complaint on the counterclaim: complaint is a claim that a defending party may, with leave of court, file against a
person not a party to the action, called the third (fourth, etc.) party defendant, for
1. If no motion to dismiss has been filed, any of the grounds for dismissal contribution, indemnity, subrogation or any other relief, in respect of his
under rule 16 may be pleaded as an affirmative defense in the answer, opponent's claim.
and in the discretion of the court, a preliminary hearing may be had
thereon as if a motion to dismiss has been filed. Third Party complaint vs. Bringing in New Parties:
After hearing, when the complaint is dismissed, the
counterclaim, compulsory or permissive is not dismissed. A third-party complaint is proper when not one of the third-party defendants therein
2. When the plaintiff himself files a motion to dismiss his complaint after is a party to the main action.
the defendant has pleaded his answer with a counterclaim. If the court
grants the motion, the dismissal shall be limited to the complaint. Whereas in bringing in new parties, if one or more of the defendants in a counterclaim
It shall be without prejudice to the right of the defendant to or cross-claim is already a party to the action, then the other necessary parties may
prosecute his counterclaim in a separate action unless within be brought in under the rules on bringing in new parties
15 days from notice of the motion, manifests his preference to
have his counterclaim resolved in the same action (Sec. 2, Reason; Need of Leave of Court:To obviate delay in the resolution of the
Rule 17). complaint such as when the third-party defendant cannot be located; or
3. When the complaint is dismissed through the fault of the plaintiff and unnecessary issues may be introduced; or the introduction of a new and separate
at a time when a counterclaim has already been set up controversy.
the dismissal is without prejudice tothe right of the
defendant to prosecute his counterclaim in the same or Tests to determine whether the third-party complaint is in respect of plaintiff’s
separate action claim:
1. Whether it arises out of the same transaction on which the plaintiff’s
Q: Fe filed a suit for collection of P387,000 against Ramon in the claim is based, or, although arising out of another or different
RTC of Davao City. Aside from alleging payment as a defense, transaction, is connected with the plaintiff’s claim;
Ramon in his answer set up counterclaims for P100,000 as damages 2. Whether the third-party defendant would be liable to the plaintiff or to
and P30,000 as attorney's fees as a result of the baseless filing of the the defendant for all or part of the plaintiff’s claim against the original
complaint, as well as for P250,000 as the balance of the purchase defendant; and
price of the 30 units of air conditioners he sold to Fe. Suppose that 3. Whether the third-party defendant may assert any defenses which the
instead of alleging payment as a defense in his answer, Ramon filed third-party plaintiff has or may have to the plaintiff’s claim.
a motion to dismiss on that ground, at the same time setting up his
counterclaims, and the court grants his motion. What will happen Note: Where the trial court has jurisdiction over the main case, it also has
to his counterclaims? jurisdiction over the third party complaint, regardless of the amount involved as a
third-party complaint is merely auxiliary to and is a continuation of the main
A: Since Ramon filed only a motion to dismiss, not an answer, the action
dismissal of the complaint would also bring about the dismissal of - A third party complaint is not proper in an action for declaratory relief.
his counterclaims but he can file a separate action for his permissive - The court is vested with the discretion to allow or disallow a party to an
counterclaims. The compulsory counterclaims are deemed waived action to implead an additional party. Thus, a defendant has no vested
when he filed a motion to dismiss the complaint instead of right to file a third party complaint
answering the same (Financial Building Corp. v. Forbes Park
Association, Inc., G.R. No. 133119, Aug. 17, 2000). (2008 Bar
Q: Abby obtained a favorable judgment against UNICAP for a sum
Question)
of money. For failure to get full payment, Abby went after
UNICAP’s debtor Ben. Ben is a policy holder of Insular. The court’s
CROSS – CLAIMS: sheriff then served a notice of garnishment to Insular over several
1. A claim by one party against a co-party; account receivables due to Ben. Insular refused to comply with the
2. It must arise out of the subject matter of the complaint or of the order alleging adverse claims over the garnished amounts. The trial
counterclaim; and court ordered Insular to release to Abby the said account
3. The cross-claimant is prejudiced by the claim against him by the receivables of Ben under the policies. Insular then filed a petition for
opposing party. certiorari with the CA alleging that the trial judge gravely abused
his discretion when he issued the garnishment order despite its
Effect if a cross-claim was not set up: adverse claim on the garnished amounts. The CA gave due course to
the petition and annulled the order of the trial court. Is the Court of
General Rule: Barred if not set up. (Sec.2, Rule 9) Appeals correct?

© Gironella – Macadatar 2017 | The Law on Pleadings 16


Modes of Service of Summons
A: No. Neither an appeal nor a petition for certiorari is the proper
remedy from the denial of a third-party claim. Since the third-party
claimant is not one of the parties to the action, he could not, strictly Other Rules
speaking, appeal from the order denying its claim, but should file a
separate reinvindicatory action against the execution creditor or a
complaint for damages against the bond filed by the judgment
Effect of lack of Summons
creditor in favor of the sheriff. The rights of a third-party claimant
should be decided in a separate action to be instituted by the third
person (Solidum v. CA, G.R. No. 161647, June 22, 2006).

COMPLAINT IN INTERVENTION:An intervention pleading filed for the The Rules on Motions
purpose of asserting a claim against either or all of the original parties.
Motions in General
REPLY:

Necessity of reply: it is not necessary


- If a party does not file such reply. All the new matters that were alleged Some Motions under the Rules on Civil Procedure
in the answer are deemed controverted
Omnibus Motion Rules
Exceptions
1. Where the answer alleges the defense of usury in which case a reply
under oath should be made. Otherwise, the allegation of usurious
Motion for Leave
interest shall be deemed admitted.
2. Where the defense in the answer is based on an actionable document, a
reply under oath pursuant to Sec. 8 of Rule 8 must be made. Otherwise,
the genuineness and due execution of the document shall be deemed Motion to Declare Defendant in Default
admitted.

Motion for Bill of Particulars


Manner of Making Allegations in Pleadings

Motion to Dismiss

Rules Regarding the Effect of Failure to Plead Definition

 It is a litigated motion.
 If you file a motion to dismiss you waived your right to interpose a
Rules on Amendment of Pleadings
counterclaim. Therefore if you have a counterclaim that is potent do not
file a motion to dismiss, file an answer with counterclaim using your
ground for motion to dismiss as affirmative defenses.
Rules on the filing and service of Pleadings / Judgment / Final
Orders / Resolutions Purpose

The Rules on Parties to Civil Actions Time to file

Parties to a Civil Action Within the time for but before filing the answer to the complaint or pleading
asserting a claim

Who must file

The Rules on Summons


Form and Contents
Significance of Service of Summons; In rem vs. In Personam
Actions Procedure in Hearing

© Gironella – Macadatar 2017 | The Rules on Parties to Civil Actions 17


Hearing of motion: At the hearing of the motion, the parties shall submit their  Under the law it is held that while lack of jurisdiction over the person of
arguments on the questions of law and their evidence on the questions of fact the defendant may be duly and seasonably raised, his voluntary
involved except those not available at that time. appearance in court without qualification is a waiver of such defense.

Should the case go to trial, the evidence presented during the hearing shall LACK OF JURISDICTION OVER THE SUBJECT
automatically be part of the evidence of the party presenting the same. MATTER OF THE ACTION

Resolution of Motion: After the hearing, the court may: This ground is not waivable. It can be raised anytime on the proceedings.
 Dismiss the action or claim
 deny the motion, or; Note: Under the law, jurisdiction over the subject matter is conferred by law and
 Order the amendment of the pleading. determined by the allegations in the complaint regardless of whether or not the
plaintiff is entitled to recover upon all or some of the claims asserted therein.
Note: The court shall not defer the resolution of the motion for the reason that the
ground relied upon is not indubitable. Exceptions: Estoppel by laches.
Where a party invokes the jurisdiction of a court to obtain affirmative relief, and it
In every case, the resolution shall state clearly and distinctly the reasons therefor. failed, he cannot therefor repudiate such jurisdiction.

Specific Grounds / Effects of grant or denial / Remedies While the issue of jurisdiction may be raised at anytime, he is estopped as it is
tantamount to speculating on the fortunes of litigation.
If the motion is denied: the movant shall file his answer within the balance of the
period to which he was entitled at the time of serving his motion Also where the other party knows the lack of jurisdiction but filed a counterclaim.
o but not less than 5 days in any event
o Computed from his receipt of the notice of the denial. VENUE IMPROPERLY LAID
o Proceed then to trial
NO LEGAL CAPACITY TO SUE
Remedies:
o If decision is adverse, appeal therefrom and raise as error the denial of LITIS PENDENTIA / LIS PENDENS / DOCTRINE OF
the motion to dismiss. AUTERACTION PENDANT
o If there is grave abuse of discretion amounting to lack or excess of
jurisdiction, certiorari or prohibition may lie under Rule 65. Requisites:
o If there is unlawful neglect of the performance of an act which the law a. Identity of the parties
specifically enjoins, mandamus is the proper remedy. b. Identity of rights asserted and reliefs prayed for, being founded on the
same facts
If the pleading is ordered to be amended: he shall file his answer within the c. Identity with respect to the two preceding particulars, such that any
period prescribed judgment that may be rendered in the pending case would amount to
o counted from service of the amended pleading red adjudicate in the other case.
o Unless the court provides a longer period.
ACTION BARRED BY PRIOR JUDGMENT / RES
Effect of dismissal JUDICATA

Bar the refiling of the same action or claim STATUTE OF LIMITATIONS


An order granting a motion to dismiss based on:
1. That the cause of action is barred by a prior judgment or by the statute FAILURE OF THE COMPLAINT TO STATE A CAUSE
of limitations OF ACTION
2. That the claim or demand set forth in the plaintiff's pleading has been
paid, waived, abandoned, or otherwise extinguished Curable by amendment
3. That the claim on which the action is founded is enforceable under the
provisions of the statute of frauds CLAIM OR DEMAND HAS BEEN PAID, WAIVED,
ABANDONED, OR OTHERWISE EXTINGUISHED
If the dismissal is without prejudice: the plaintiff may re-file the complaint.
STATUTE OF FRAUDS
If the dismissal is with prejudice: the plaintiff may file an appeal.
NON – COMPLAINCE OF A CONDITION PRECEDENT
LACK OF JURISDICTION OVER THE PERSON OF THE
DEFENDANT Pleading the grounds for a motion to dismiss as affirmative defenses

 This ground is waivable especially if there is a voluntary appearance. When: If no motion to dismiss has been filed

© Gironella – Macadatar 2017 | Some Motions under the Rules on Civil Procedure 18
What: any of the grounds for dismissal provided for in this Rule may be pleaded as d. So situated as to be adversely affected by a distribution or
an affirmative defense in the answer other disposition of the property in the custody of the court
or of an officer thereof
Hearing: in the discretion of the court, a preliminary hearing may be had thereon as 3. Intervention will not unduly delay or prejudice the adjudication of the rights
if a motion to dismiss had been filed. of original parties; and
4. Intervenor’s rights may not be fully protected in a separate proceeding
Effect of the Dismissal: shall be without prejudice to the prosecution in the same or
separate action of a counterclaim pleaded in the answer. Legal interest: It must be one that is actual and material, direct and of an
immediate character, not merely contingent or expectant so that the intervenor
Vs. motion to quash in criminal cases will either gain or lose by the direct legal operation of the judgment.

Demurrer to evidence and demurrer to evidence in criminal cases Vs. interpleader

Rule 33 (Demurrer to Intervention Interpleader


Rule 16 (Motion to Dismiss) An ancillary action An original action
Evidence)
Grounded on preliminary Based on insufficiency of Proper when the intervenor has legal Presupposes that the plaintiff
objections evidence interest in the matter in litigation, or has no interest in the subject
May be filed by any defending May be filed only by the in the success of either of the parties, matter of the action or has
party against whom a claim is defendant against the or an interest against both, or is so interest therein, which in
asserted in the action complaint of the plaintiff situated as to be adversely affected by whole or in part, is not
Should be filed within the time May be filed only after the a distribution or other disposition of disputed by the other parties
for but prior to the filing of the plaintiff has completed the property in the custody of the court. to the action.
answer presentation of his evidence Defendants are already original Defendants are being sued
parties to the pending suit precisely to implead them
If denied, defendant answers, or If denied, defendant may present
else he may be declared in evidence. If granted, but on
default. Who may intervene
appeal the order of dismissal is
If granted, plaintiff may appeal or if reversed, the defendant loses
A person who has a legal interest in:
subsequent case is not barred, he his right to present evidence
1. the matter in litigation, or
may re-file the case
2. in the success of either of the parties, or
3. an interest against both, or
Motion to Intervene 4. is so situated as to be adversely affected by a distribution or other
disposition of property in the custody of the court or of an officer
Concept and Nature thereof may

It is a legal proceeding by which a third person is permitted by the court to How: with leave of court
become a party by intervening in a pending action after meeting the conditions
and requirement set by the Rules of Court. What the court will consider:
1. Whether or not the intervention will unduly delay or prejudice the
This person who intervenes is one who is not originally impleaded in the action. adjudication of the rights of the original parties, and
2. Whether or not the intervenor's rights may be fully protected in a
- An intervention should not alter the theory of both parties separate proceeding.
- Never an independent action but ancillary and supplemental to the
existing litigation Time to intervene
- It is merely optional and permissive
May be filed at any time before rendition of judgment by the trial court
Exception:
- When intervention has been allowed and the complaint-in-intervention Intervention after judgment:
has already been filed before plaintiff’s action had been expressly
dismissed General rule: After rendition of judgment, a motion to intervene is barred,
even if the judgment itself recognizes the right of the movant.
Requisites:
1. There must be a motion for intervention filed before rendition of judgment by Exception:
the trial court 1. With respect to indispensable parties, intervention may be allowed even
2. The movant must show in his motion that he has: on appeal;
a. Legal interest in the matter in controversy; 2. When the intervenor is the Republic;
b. Legal interest in the success of either of the parties;
c. Legal interest against both parties; or

© Gironella – Macadatar 2017 | Some Motions under the Rules on Civil Procedure 19
3. Where necessary to protect some interest which cannot otherwise be Dismissal by the Plaintiff
protected, and for the purpose of preserving the intervenor’s right to
appeal;
Dismissal upon notice by plaintiff / as a matter of right
4. May be allowed during the pendency of the appeal, where the interest of
justice so required.
How: by filing a notice of dismissal

Required form
When to file: at any time before service of the answer or of a motion for summary
judgment.
A copy of the pleading-in-intervention shall be attached to the motion and served
on the original parties.
Nature of the dismissal: the dismissal is without prejudice

Pleadings-in-intervention
Exception:
1. Where the notice of dismissal so provides.
Complaint-in-intervention: if he asserts a claim against either or all of the
2. Where the plaintiff has previously dismissed the same case in a court of
original parties.
competent jurisdiction twice [two dismissal rule].
3. Even where the notice of dismissal does not provide that it is with
Answer-in-intervention: if he unites with the defending party in resisting a claim
prejudice but it is premised on the fact of payment by the defendant of
against the latter.
the claim involved.

Answer to complaint-in-intervention: shall be filed within 15 days from notice of


Note: the court will not exercise its discretion but it will issue an order confirming
the order admitting the same, unless a different period is fixed by the court.
the dismissal.

How to assail a complaint–in-intervention


TWO DISMISSAL RULE:
- Operates as adjudication upon the merits when filed by a plaintiff who
Show that the intervenor does not qualify in the given requisites for the filing of a
has once dismissed in a competent court an action based on or including
Motion to Intervene (See no. 2 requisite)
the same claim.
Effects
Elements:
1. Plaintiff dismissed an action twice
If Granted
2. The action is based OR includes the same claim or cause of action
3. The same was filled in a court of competent jurisdiction.
- The third party becomes a party to the suit either as one of the plaintiffs
or one of the defendants.
Note: the two dismissal rule is not self-executing. It is up to the defendant to
invoke it.
Nature: A grant of motion to intervene is interlocutory

Dismissal upon motion of plaintiff / judicial discretion


Remedy: Anyone who objects can file a petition for certiorari for improper granting
of intervention
How: by filing a motionwith leave of court

If denied, Remedies
When to file: after the service of an answer

- Mandamus will not lie except in case of grave abuse of discretion


Counterclaim by the Defendant: If a counterclaim has been pleaded by a
- Denial of the motion does not constitute res judicata
defendant prior to the service upon him of the plaintiff’s motion for dismissal, the
- File a separate action dismissal shall be limited to the complaint.

Notes: The dismissal shall be without prejudice to the right of the defendant to prosecute
 Intervention is not allowed in land registration cases. File an opposition his counterclaim in:
to the action. Land registration cases are proceedings in rem. 1. a separate action
2. Unless within 15 days from notice of the motion he manifests his
Things to consider in resolving intervention: preference to have his counterclaim resolved in the same action.
The Ground    
The right to speedy, efficient and Nature of the dismissal: Unless otherwise specified in the order, a dismissal shall
   
effective trial be without prejudice.
The possibility of separately prosecuting
   
his claims or defenses by the intervenor Note: A class suit shall not be dismissed or compromised without the approval of
Deny or Grant D D G D/G the court.

© Gironella – Macadatar 2017 | Dismissal by the Plaintiff 20


Dismissal due to fault of plaintiff: To whom it is served: shall be served on counsel, or on the party who has no
counsel.
When: - The counsel served with such notice is charged with the duty of
1. If, for no justifiable cause, the plaintiff fails to appear on the date of the notifying the party represented by him.
presentation of his evidence in chief on the complaint, or
2. to prosecute his action for an unreasonable length of time, or Effects of failure to appear during Pre-Trial
3. to comply with these Rules or any order of the court
It shall be the duty of the parties and their counsel to appear at the pre-trial.
How: the complaint may be dismissed upon motion of the defendant or upon the
court's own motion, When nonappearance may be excused:
- without prejudice to the right of the defendant to prosecute his 1. if a valid cause is shown therefor or
counterclaim in the same or in a separate action. 2. if a representative shall appear in his behalf
 fully authorized in writing to enter into an:
Effect of the dismissal: This dismissal shall have the effect of an adjudication i. amicable settlement
upon the merits, unless otherwise declared by the court. ii. to submit to alternative modes of dispute
resolution, and
The plaintiff’s failure to appear at the trial after he has presented his iii. to enter into stipulations or admissions of facts and
evidence and rested his case does not warrant the dismissal of the of documents
case on the ground of failure to prosecute. It is merely a waiver of his
right to cross-examine and to object to the admissibility of evidence Effect of failure to appear:
(Jalover v. Ytoriaga, G.R. No. L-35989, Oct. 28, 1977).  The failure of the plaintiff to appear - cause for dismissal of the action.
o The dismissal shall be with prejudice, unless other-wise
The Rules On Pre Trial ordered by the court.
 Failure on the part of the defendant - allow the plaintiff to present his
evidence ex parte and the court to render judgment on the basis thereof.
Concept, Nature and Purpose
Pre-trial Brief
It is a procedural device by which the court is called upon, after the filing of the
last pleading, to compel the parties and their lawyers to appear before it, and
The parties shall file with the court and serve on the adverse party, in such manner
negotiate an amicable settlement or otherwise make a formal statement and
as shall ensure their receipt thereof at least 3 days before the date of the pre-trial,
embody in a single document the issues of fact and law involved in the action, and
their respective pre-trial briefs
such other matters as may aid in the prompt disposition of the action (Herrera,
Vol. I, p. 1074, 2007 ed.)
Contents:
(a) A statement of their willingness to enter into amicable settlement or
When conducted: After the last pleading has been served and filed
alternative modes of dispute resolution, indicating the desired terms
thereof;
Duty of the Plaintiff: to promptly move ex parte that the case be set for pre-trial
(b) A summary of admitted facts and proposed stipulation of facts;
(c) The issues to be tried or resolved;
Nature: it is mandatory
(d) The documents or exhibits to be presented stating the purpose thereof;
(e) A manifestation of their having availed or their intention to avail
Matters to consider during Pre-Trial
themselves of discovery procedures or referral to commissioners; and
(f) The number and names of the witnesses, and the substance of their
The court shall consider:
respective testimonies.

(a) The possibility of an amicable settlement or of a submission to alternative


Note: Failure to file the pre-trial brief shall have the same effect as failure to appear
modes of dispute resolution;
at the pre-trial.
(b) The simplification of the issues;
(c) The necessity or desirability of amendments to the pleadings;
Pre- Trial Order
(d) The possibility of obtaining stipulations or admissions of facts and of
documents to avoid unnecessary proof;
It is an order issued by the court reciting the actions taken, the facts stipulated and
(e) The limitation of the number of witnesses;
the evidence marked during the pre-trial conference. Such order binds the parties
(f) The advisability of a preliminary reference of issues to a commissioner;
and limits the trial to those matters not disposed of.
(g) The propriety of rendering judgment on the pleadings, or summary judgment,
or of dismissing the action should a valid ground therefor be found to exist;
When issued:within 10 days after the termination of the pre-trial.
(h) The advisability or necessity of suspending the proceedings; and
(i) Such other matters as may aid in the prompt disposition of the action.
Contents:
1. Actions taken during the pre-trial conference;
NOTICE OF PRE – TRIAL:

© Gironella – Macadatar 2017 | The Rules On Pre Trial 21


2. Facts stipulated; - It shorten the period of litigation
3. Admissions made; - Speed up adjudication
4. Evidence marked; and
5. Number of witnesses to be presented and the schedule of trial
Scope:
Pre – Trial In Criminal Cases 1. To serve as a device, along with pre-trial hearing to narrow and clarify the
basic issues between the parties
Pre-trial in civil case Pre-trial in criminal case 2. As a device for ascertaining the facts relative to those issues
It is set when the plaintiff It is ordered by the court and no
moves ex parte to set the case for motion to set the case for pre- Nature:
pre-trial trial is required from either the - these modes are cumulative not alternative or mutually exclusive
prosecution or the defense - Discovery still applies even if motion for bill of particulars was denied
The motion to set the case for The pre-trial is ordered by the - Available to criminal cases except interrogatories to parties and deposition
pre-trial is made after the last court after arraignment and before action
pleading has been served and within 30 days from the date the
filed court acquires jurisdiction over Limitations:
the person of the accused. 1. Those matters which are privileged
It considers the possibility of an It does not include the possibility 2. Those under protection order
amicable settlement as an of amicable settlement of 3. The modes of discovery must not be conducted in bad faith
important objective. criminal liability as one of its
purposes Kinds
Requires the proceeding during All agreements or admissions
the preliminary conference to be made or entered during the pre- Modes of discovery under the Rules of Court:
recorded in the ―minutes of trial conference shall be reduced 1. Depositions pending actions (Rule 23) - deposition de bene esse
preliminary conference‖ to be in writing and signed by both the 2. Depositions before action or pending appeal (Rule 24) - deposition
signed by both parties and/or accused and counsel, otherwise, perpetuam rei memoriam
counsel. The rule allows either they cannot be used against the 3. Interrogatories to parties (Rule 25)
the party or his counsel to sign accused 4. Admission by adverse party (Rule 26)
the minutes 5. Production or Inspection of documents or things (Rule 27)
Sanctions for non-appearance in The sanctions in a criminal case 6. Physical or mental examination of persons (Rule 28)
a pre-trial are imposed upon the are imposed upon the counsel for
plaintiff and the defendant in a the accused or the prosecutor  DEPOSITIONS
civil case
Specifically required to be Specifically required to be
submitted in a civil case (Sec. 6, submitted in a civil case (Sec. 6,
Rule 18) Rule 18)

Modes of Discovery

Nature, Rationale, Importance, Purpose and Scope

Discovery: is a device employed by a party to obtain information about relevant


matters on the case from the adverse party in preparation for trial.
- The device may be used by all parties to the case.

Purpose: to permit mutual knowledge before trial of all relevant facts gathered by
no parties so that either party may compel the other to disgorge facts whatever he
has in his possession.
- Designed to serve as an additional device aside from a pretrial.
- Not for the purposes of fishing evidence
- Can be utilize in civil and in criminal procedure

Importance: to disgorge whatever facts he has in his possession. - It is the taking of testimony of any person, whether he be a party or not, but at
the instance of a party to the action
- Advances the stage at which the disclosure can be compelled from the time of - This testimony is taken out of court.
trial to the period proceding to it, thus reducing the possibility of surprise.

© Gironella – Macadatar 2017 | Modes of Discovery 22


Affidavit Deposition
Under oath Under oath - The manner of taking is not subject to stipulations
It is executed ex parte without any There is opportunity to
opportunity for the other parties to attend and cross examine Deposition upon oral examination:
attend and cross examined the affiant
It is hearsay and inadmissible in Admissible in evidence Requirements:
evidence
Exception to the hearsay A party desiring to take the deposition of any person upon oral examination shall
rule give to every party to the action a reasonable notice in writing, which contains the
following:
Two Kinds:
1. Deposition De Bene Esse 1. The time and place for taking the deposition
2. Deposition in perpetuam rei memoriam 2. The name and address of each person to be examined, if known; if not known
, there must be a general description sufficient to identify him or the
Two methods: particular class or group to which he belongs.
1. An oral examination
2. A written interrogatory Protection orders before examination:

Used: How: upon motion seasonably made by any party or by the person to be
1. In a pending action examined and for good cause shown
2. A future action
3. For use in a pending appeal Orders that the court may make for the protection of parties and deponents:
1. That the deposition shall not be taken;
 Deposition de bene esse 2. That it may be taken only at some designated place other than that
stated in the notice;
Leave of court: 3. That it may be taken only on written interrogatories;
4. That certain matters shall not be inquired into;
- leave of court is not required after an answer has been served 5. That the scope of the examination shall be held with no one present
- Leave of court is required before the service of an answer but after jurisdiction except the parties to the action and their officers or counsel;
has been acquired over any defendant or over property subject an action 6. That after being sealed, the deposition shall be opened only by order of
the court, or that secret processes, developments, research need not be
Ex abudanticautela (out of abundant caution) - does not make an answer less of closed;
an answer 7. That the parties shall simultaneously file specified documents or
information enclosed in sealed envelopes to be opened as directed by the
court; or
Who can avail:
8. The court may make any other order which justice requires to protect the
party or witness from annoyance, embarrassment, or oppression
- The testimony of any person, whether a party or not, may be taken, at the
instance of any party, by depositions upon oral examination or written
Deposition taking proper:
interrogatories.
- Unequivocally, the rule does not make any distinction or restriction as to
Direct and cross examination:
who can avail of deposition.

The deponent may be examined or cross examined following the procedures for
Scope of Examination:
witnesses in a trial.

The deponent may be examined regarding:


He may be asked questions on direct, cross, re-direct, or re-cross.
a) any matter, not privileged (ultimate and evidentiary facts)
b) which is relevant to the subject of the pending action, whether relating
He has the same rights a witness and may be impeached like a court witness.
to the claim or defense of any other party,
c) including the existence, description, nature, custody, condition, and
Record of Examination: oath: objections:
location of any books, documents, or other tangible things and
d) The identity and location of persons having knowledge of relevant facts.
Guidelines:
e) Not covered by a protective order of the court

1. The officer before whom the deposition is taken shall put the witness on
Deposition of prisoner: his deposition may be taken only with leave of court and
oath.
upon such terms as the court may prescribed
2. The testimony of the witness or deponent must be recorded and be taken
stenographically, unless the parties agreed otherwise.
Manner:
3. All objections made at the time of the examination shall be noted.

© Gironella – Macadatar 2017 | Modes of Discovery 23


4. Evidence objected to shall be taken but subject to the objections
When the testimony is fully transcribed, the deposition shall be submitted to the
witness for examination and shall be read to or by him.
Option of parties NOT participating in the Oral Examination:
Unless such examination and reading are waived by the witness and by the
In lieu of participating in the oral examination, parties may serve with notice of parties.
taking a deposition may transmit written interrogatories to the officers, who shall
propound them to the witness and record the answers verbatim. Changes:
Any changes in form or substance which the witness desires to make shall be
The officer before whom the deposition is taken has no authority to rule on the entered upon the deposition by the officer.
objections interposed during the course of the deposition. - With a statement of the reasons given by the witness for making them.

Objections to be noted: Signing:


1. Qualifications of the officer taking the deposition; The deposition shall then be signed by the witness
2. Manner of taking the deposition; - unless the parties by stipulation waive the signing or
3. Evidence presented; - The witness is ill or cannot be found or refuses to sign.
4. Conduct of any party; or
5. Any other objection to the proceedings If the deposition is not signed by the witness, the officer shall sign it and state on
the record the fact of the waiver or of the illness or absence of the witness or the
Motion to Terminate / Limit Examination: fact of the refusal to sign together with the reason given therefor, if any, and the
deposition may then be used as fully as though signed
When: at any time during the taking of the deposition
Remedy: Motion to suppress
How: on motion or petition of any party or of the deponent - the court holds that the reasons given for the refusal to sign require rejection of
the deposition in whole or in part
Grounds: the examination is:
1. being conducted in bad faith or Certification and filing:
2. in such manner as unreasonably to annoy, embarrass or oppress the
deponent or party Officer:
3. The information is privileged The officer shall certify on the deposition that the witness was duly sworn to by
4. The information is not relevant and not material to the case him and that the deposition is a true record of the testimony given by the witness.

What court: the court in which the action is pending of the RTC of the place 1. He shall then securely seal the deposition in an envelope indorsed with the
where the deposition is being taken title of the action and marked "Deposition of (here insert the name of
witness)" and
Order: the officer conducting the examination to cease from taking the deposition 2. shall promptly file it with the court in which the action is pending or send it
or may limit the scope and manner of the taking of the deposition by registered mail to the clerk thereof for filing. (20, R24)

When terminated: resumed only after the order of the court in which the action is Notice of filing - The officer taking the deposition shall give prompt notice of its
pending filing to all the parties.

The court may impose upon either party or upon the witness the requirement to Uses:
pay such costs or expenses as the court may deemed reasonable
Against:
Motion to terminate Vs. Protection Order: a. Against any party who was present or represented at the taking of the
deposition, or
Protection Order (Sec. 16, Motion to Terminate or Limit b. Against one who had due notice of the deposition
Rule 23) Examination (Sec. 18, Rule 23)
Provides protection to the Provides such protection during the When:
party or witness before the taking of deposition. 1. at the trial or
taking of deposition. 2. upon the hearing of a motion or
The Motion is filed with the Motion or petition is filed in the 3. An interlocutory proceedings
court in which the action is court in which the action is
pending. pending or the RTC of the place May be used for the following purpose:
where the deposition is being
taken. 1. For contradicting or impeaching the testimony of the deponent as a witness

Submission to witness; signing:

© Gironella – Macadatar 2017 | Modes of Discovery 24


2. For any purpose by the adverse party where the deponent is a party or, at the or impose conditions therefor or to terminate the process on motion and upon a
time of taking the deposition was an officer, director p, or managing agent of showing that it is being conducted in bad faith
a public or private corporation, partnership, or association which is a party
2. Such person or officer as may be appointed by commission or letters rogatory
3. By any purpose by any party, whether the deponent is a witness, whether or
not a party, if the courts finds that: - leave of court is necessary

a. The witness is dead Commission Letters Rogatory


b. That the witness resides more than 100 kilometers from the These are just documents in order to perpetuate the testimony of a
place of trial or hearing, or is out of the Philippines, unless it deponent
appears that his absence was procured by the party offering Deponent no longer within the jurisdiction of a country
the deposition An instrument issued by Is a formal communication from a
c. That the witness is unable to attend or testify because of age, the court of Justice, or domestic court in which an action is
sickness, infirmity p, or imprisonment other competent tribunal pending to a foreign court requesting
d. That the party offering the deposition has been unable to to authorize a person to that the testimony of a witness residing
procure the attendance of witnesses by subpoena take depositions, or do in such foreign jurisdiction be taken
e. When exceptional circumstances exists, upon application any act by authority is under the direction of the court
and notice. such court or tribunal. addressed and transmitted to the court
making the request.
4. If only part of a deposition is offered in evidence by a party, the adverse party Issued to a non -judicial Issued to the appropriate judicial
may require him to introduce all of it which is relevant to the part introduced, foreign officer who will officer of the foreign country who
and any party may introduce any other parts. directly take the will direct somebody in saidforeign
testimony. country to take down testimony.
Effects of substitution: Applicable rules of Applicable rules of procedure are
procedure are those of those of the foreign court requested
It does not affect the right to use the depositions previously taken. the requesting court. to act.
Resorted to if permission Resorted to if the execution of the
"Carry - Over" Principle:
of the foreign country is commission is refused in the foreign
given. country. Or when there is no legation
when an action has been dismissed and another action involving the same subject
office
is afterward brought between the same parties or their representatives or
successors in interest, all depositions lawfully taken and duly filed in the former
3. A person authorized to administer oaths by written stipulation of the parties
action may be used in the latter as if originally taken therefor.

The court will grant the commission. The clerk of court will forward the commission and the
Effect of Taking deposition:
questions to the DFA. The DFA will forward the same to the country where the deposition shall be
taken.
It does not, by reason of such deposition, make such person the witness of said
party.
Letters Rogatory:
Persons before whom depositions may be taken: - The power to issue is inherent.
- It is not dependent on court rules and or statute alone but rests also upon
Within the Philippines international goodwill toward each other.
- In the language of the country where it is taken.
1. Before a judge
2. Notary public Disqualified to take depositions:
3. Before any person authorized to administer oaths if the parties so stipulate in 1. A relative within the sixth degree of consanguinity or affinity, or employee or
writing counsel of any of the parties
2. A relative within the same degree, or employee of such counsel
Outside of Philippines 3. One financially interested in the action

1. A secretary of an embassy or legation, consul general, consul, vice consul, or Deposition vs. Bill of Particulars
consular agent of the Philippines
Déposition: witness's sworn out-of-court testimony. It used to gather
- Leave of court is not necessary. information as part of the discovery process and, in limited circumstances,
may be used at trial.
The court intervenes when: a party moves to enlarge or shorten the time stated in - The witness being deposed is called the "deponent."
the notice or upon notice and good cause shown, to prevent the deposition taking - Depositions usually do not directly involve the court.

© Gironella – Macadatar 2017 | Modes of Discovery 25


Bill of Particulars: It is designed to clarify ambiguities in a pleading or to state 2. The name and descriptive title and address of the officer before whom the
with sufficient definiteness allegations in a pleading. It is therefore directed to a deposition is to be taken.
pleading.
Cross interrogatories:
Use of Deposition: - Serve by the party served with the interrogatories
- Must be within 10 days from servic of the written interrogatories
Effect of using the deposition of a person:
Re-direct interrogatories
The introduction of the deposition or any part thereof, makes the deponent the
- within 5 days
witness of the party introducing the deposition.

Re-cross interrogatories
Exception:
- within 3 days from the service of the re-direct interrogatories
1. The deposition was introduced to impeach or contradict the witness
2. If the deposition introduced was the deposition of an opposing part
Officers to take responses and prepare records:

Objections to admissibility
A copy of the notice and copies of all interrogatories served shall be delivered by
the party taking the deposition to the officer designated in the notice
Subject to the provisions of Section 29 of this Rule, objection may be made at the
trial or hearing to receiving in evidence any deposition or part thereof for any
Then he shall proceed promptly to take the testimony of the witness in response to
reason which would require the exclusion of the evidence if the witness were then
the interrogatories and to prepare, certify, and file or mail the deposition, attaching
present and testifying.
thereto the copy of the notice and the interrogatories received by him.

Rebutting deposition
Notice of filing and furnishing copies:

At the trial or hearing, any party may rebut any relevant evidence contained in a
1. When a deposition upon interrogatories is filed, the officer taking it
deposition whether introduced by him or by any other party
shall promptly give notice thereof to all the parties, and;
2. May furnish copies to them or to the deponent upon payment of
Effect of failure to attend \ Subpoena:
reasonable charges therefor.

Failure to attend of party giving notice


Orders for the protection of parties and deponents:

 If the party giving the notice of the taking of a deposition fails to attend
When: After the service of the interrogatories and prior to the taking of the
and proceed therewith
testimony of the deponent
 another attends in person or by counsel pursuant to the notice
Who: the court in which the action is pending
Consequences:The court may order the party giving the notice to pay such other
party the amount of the reasonable expenses incurred by him and his counsel in so
Condition:
attending, including reasonable attorney's fees.
1. on motion promptly made by a party or a deponent, and
2. for good cause shown,
Failure of party giving notice to serve subpoena
Order:
 If the party giving the notice of the taking of a deposition of a witness 1. may make any order specified in Sections 15 (Deposition upon oral
fails to serve a subpoena upon him examination, notice, time and place), 16 (Orders for the protection of
 the witness because of such failure does not attend, parties and deponents) and 18 (Motion to Terminate or limit
 if another party attends in person or by counsel because he expects the examination) which is appropriate and just or
deposition of that witness to be taken, 2. An order that the deposition shall not be taken before the officer
designated in the notice or
Consequences: the court may order the party giving the notice to pay such other 3. That it shall not be taken except upon oral examination.
party the amount of the reasonable expenses incurred by him and his counsel in so
attending, including reasonable attorney's fees. Effects or errors and irregularities:
Deposition upon written interrogatories:

- Waivable
Service and Notice:
- Unless, written objection is promptly served
notice
As to

upon the party giving the notice


Served the interrogatories upon every other party with a Notice stating the:
1. Name and address of the person who is to answer them

© Gironella – Macadatar 2017 | Modes of Discovery 26


Petition, contents
- Waivable
disqualification

- Unless made before the taking of the deposition


The petition shall be entitled in the name of the petitioner and shall show:
of officer

begins or as soon thereafter as the


As to

disqualification becomes known or could be


discovered with reasonable diligence (a) That the petitioner expects to be a party to an action in a court of the
Philippines but is presently unable to bring it or cause it to be brought;
(b) The subject matter of the expected action and his interest therein;
- not waived by failure to make them before or (c) The facts which he desires to establish by the proposed testimony and
during the taking of the deposition his reasons for desiring to perpetuate it;
competency or
relevancy of

- Unless the ground of the objection is one which (d) The names or a description of the persons he expects will be adverse
evidence

might have been obviated or removed if parties and their addresses so far as known; and
presented at that time
(e) The names and addresses of the persons to be examined and the
substance of the testimony which he expects to elicit from each, and
shall ask for an order authorizing the petitioner to take the depositions
of the persons to be examined named in the petition for the purpose of
Grounds: perpetuating their testimony.
 in the manner of taking the deposition,
As to oral examination and other

 in the form of the questions or answers,


 in the oath or affirmation, or Notice and Service Requirements
 in the conduct of the parties and errors of any
kind which might be obviated, removed, or cured
-
particulars

The petitioner shall serve a notice upon each person named in the
if promptly prosecuted
petition as an expected adverse party
- waivable - Together with a copy of the petition,
- unless reasonable objection thereto is made at - Stating that the petitioner will apply to the court, at a time and place
the taking of the deposition
named therein, for the order described in the petition.

When: At least 20 days before the date of the hearing


- Waivable
- unless served in writing upon the party Court’s Duty: the court shall cause notice thereof to be served on the parties and
interrogatories
As to form of

propounding them within the time allowed for prospective deponents in the manner provided for service of summons.
written

serving succeeding cross or other interrogatories


and within 3 days after service of the last
interrogatories authorized Order and Examination

Condition: If the court is satisfied that the perpetuation of the testimony may
prevent a failure or delay of justice,
- waivable
As to manner of

- Unless a motion to suppress the deposition or


preparation

some part thereof is made with reasonable


promptness after such defect is, or with due What Order:
diligence might have been, ascertained. 1. It shall make an order designating or describing the persons whose
deposition may be taken and
2. Specifying the subject matter of the examination and
3. Whether the depositions shall be taken upon oral examination or
 Deposition in perpetuam rei memoriam written interrogatories.

Coverage The depositions may be taken in accordance with Rule 23 before the hearing.

What testimony: Reference to court


1. A person who desires to perpetuate his own testimony or
2. that of another person - For the purpose of applying Rule 23 to depositions for perpetuating testimony,
- each reference therein to the court in which the action is pending shall be
Subject matter: regarding any matter that may be cognizable in any court of the deemed to refer to the court in which the petition for such deposition was filed
Philippines
Use of Deposition
What to file: may file a verified petition
- it would be admissible in evidence,
Venue: in the court of the place of the residence of any expected adverse party.

© Gironella – Macadatar 2017 | Modes of Discovery 27


- it may be used in any action involving the same subject matter sub-sequently Not served upon the adverse party It is served directly upon
brought in accordance with the provisions of sections 4 (Use of depositions) directly. They are instead delivered to the parties
and 5 (Effect of substitution of parties) of Rule 23. the officer designated in the office

 Deposition Pending Appeal

The service of written interrogatories is a mode of deposition


When:
separate and distinct from interrogatories to parties.
a) If an appeal has been taken from a judgment of a court, including the
Court of Appeals in proper cases, or
b) before the taking of an appeal if the time therefor has not expired
Scope

Where to file: Direct, cross, redirect, re-cross Only one set of


- the court in which the judgment was rendered interrogatories

How to file: Binding effect


In such case the party who desires to perpetuate the testimony may
To anyone who is present during the Only to the parties
- Make a motion in the said court for leave to take the depositions,
deposition
- Upon the same notice and service thereof as if the action was pending therein.

Time to Answer
Contents of the motion:
(a) The names and addresses of the persons to be examined and the No fixed time Within 15 days unless
substance of the testimony which he expects to elicit from each, and extended or reduce by the
(b) The reason for perpetuating their testimony. court

 INTERROGATORIES Through motion or petition Through a motion

How Can be availed of more than once Once as a general rule

- By filing and serving upon the adverse party written interrogatories to be


answered by the party served. Vs. Bill of Particulars
- if the party served is a public or private corporation or a partnership or
Interrogatories Bill of Particulars
association, by any officer thereof competent to testify in its behalf Interrogatories to parties are Designed to clarify ambiguities in
- through motion not directed to a particular a pleading or to state with
pleading. Instead, they seek to sufficient definiteness allegations
Who can avail disclose all material and in a pleading. It is therefore
relevant facts from a party directed to a pleading
- any party desiring to elicit material and relevant facts from any adverse parties
Answer to the interrogatories
Against who
The interrogatories shall be:
- Any adverse party a) Answered fully in writing and
b) Shall be signed and sworn to by the person making them.
Vs. deposition upon written interrogatories
When to file and serve a copy of the answers: within 15 days after service
thereof
Written Interrogatories in a Interrogatories to
deposition Parties - Unless the court on motion and for good cause shown, extends or shortens the
time.
Deponent
Objection to interrogatories
Party or ordinary witness Party only
When to present: within 10 days after service thereof, with notice as in case of a
Service motion;

Effect: answers shall be deferred until the objections are resolved, which shall be
at as early a time as is practicable.

Leave of court:

© Gironella – Macadatar 2017 | Modes of Discovery 28


General Rule: It is not necessary after answer has been served, for the first set of Implied Admission
interrogatories.
General Rule: Each of the matters of which an admission is requested shall be
Exception: It is necessary before answer has been served because, at that time, the deemed admitted
issues are not yet joined and the disputed facts are not yet clear.
Exception: the party to whom the request is directed files and serves upon the
Number of interrogatories party requesting the admission a sworn statement either:
(1) Denying specifically the matters of which an admission is requested or
General rule: No party may serve more than one set of interrogatories to be (2) Setting forth in detail the reasons why he cannot truthfully either admit
answered by the same party. or deny those matters.

Exception: more than one if there is with leave of court Note: if the answer was signed and sworn to by the counsel – it is already a
sufficient compliance
Scope and use
Period:
Matter: the deponent may be examined regarding: 1. within a period designated in the request, which shall not be less than
15 days after service thereof, or
a) any matter, not privileged, which is relevant to the subject of the 2. within such further time as the court may allow on motion
pending action, whether relating to the claim or defense of any other
party, A request for admission is not proper where the subject matters thereof are the
b) including the existence, description, nature, custody, condition, and same as the ultimate facts alleged in the requesting party's complaint for which the
location of any books, documents, or other tangible things and requested party had already denied in his answer.
c) The identity and location of persons having knowledge of relevant facts. - a party should not be required to make a second denial of those already denied
on his answer to the complaint
Use: same with depositions
Objectionsto any request for admission:
Effect of failure to serve written interrogatories - shall be submitted to the court by the party requested
- within the period for and prior to the filing of his sworn statement
General Rules: a party not served with written interrogatories may not be - his compliance therewith shall be deferred until such objections are resolved
compelled by the adverse party to:
a. give testimony in open court, or Effect of Admission
b. to give a deposition pending appeal
- for the purpose of the pending action only and
Exception: allowed by the court for good cause shown and to prevent a failure of - shall not constitute an admission by him for any other purpose
justice
- nor may the same be used against him in any other proceeding

 ADMISSION BY ADVERSE PARTY


Withdrawal

Request for admission The court may allow the party making an admission under the Rule, whether
express or implied, to withdraw or amend it upon such terms as may be just.
When:
- At any time after issues have been joined - File a motion to be relieved of the effects of his admission

How: Effect of Failure to file and serve request


- a party may file and serve upon any other party a written request for the
admission by the latter General Rule: a party who fails to file and serve a request for admission on the
adverse party of material and relevant facts at issue which are, or ought to be,
Matter: within the personal knowledge of the latter, shall not be permitted to present
1. Of the genuineness of any material and relevant document described in evidence on such facts.
and exhibited
2. With the request or of the truth of any material and relevant matter of Exception: allowed by the court for good cause shown and to prevent a failure of
fact set forth in the request. justice

Copies of the documents shall be delivered with the request unless copies have Consequence for failure to answer request for admission:
already been furnished.
- The facts or documents are deemed admitted
- It must be served directly with the parties

© Gironella – Macadatar 2017 | Modes of Discovery 29


 PRODUCTION AND INSPECTION OF DOCUMENTS OR for trial issuance intends to present in
THINGS evidence the witness or the
things subject thereof
Motion for production or inspection; order A mode of discovery Means of compelling production
of evidence
How: Upon motion of any party showing good cause Issued only upon motion with Ex parte application
notice to the adverse party
Order: the court in which an action is pending may
(a) order any party to produce and permit the inspection and copying or Acts permitted
photographing, by or on behalf of the moving party, of any designated
documents, papers, books, accounts, letters, photographs, objects or Limitations:
tangible things, not privileged, which constitute or contain evidence 1. Should not be privileged;
material to any matter involved in the action and which are in his 2. Should constitute or contain evidence material to any matter involved in
possession, custody or control, or the action and which are in his (the party ordered) possession, custody,
(b) Order any party to permit entry upon designated land or other property or control (Sec. 1, Rule 27); and
in his possession or control for the purpose of inspecting, measuring, 3. In the petition, the papers and documents to be produced must be
surveying, or photographing the property or any designated relevant sufficiently described.
object or operation thereon.
In criminal procedure
The order shall specify the time, place and manner of making the inspection and
taking copies and photographs, and may prescribe such terms and conditions as How: Upon motion of the accused showing good cause and with notice to the
are just. parties, the court

Privileged Documents: What: in order to prevent surprise, suppression, or alteration


(Section 24, Rule 130) Privileged Communications:
1. Communication between husband and wife Action: may order the prosecution to produce and permit the inspection and
2. Communication between attorney and client copying or photographing of any written statement given by the complainant and
3. Communication between physician and patient other witnesses in any investigation of the offense conducted by the prosecution or
4. Communication between priest and penitent other investigating officers, as well as any designated documents, papers, books,
5. Communication of public officers involving public interest accounts, letters, photographs, objects or tangible things not otherwise privileged,
which constitute or contain evidence material to any matter involved in the case
Others: and which are in the possession or under the control of the prosecution, police, or
1. Editors may not be compelled to disclose the source of published news other law investigating agencies.
2. Voters may not be compelled tp disclose for whom they voted
3. Trade secrets  PHYSICAL AND MENTAL EXAMINATION
4. Information contained in tax census returns
5. Bank deposits When may be ordered

Vs. unreasonable searches - In an action in which the mental or physical condition of a party is in
controversy
Unreasonable Searches - Discretionary on the part of the court
- A search of an individual or his/her premises (including an automobile) and/or - Applicable to parties only and not to witnesses
seizure of evidence found in such a search by a law enforcement officer without
a search warrant and without "probable cause" to believe evidence of a crime is
Example:
present.
1. An action for annulment of a contract where the ground relied upon is insanity
2. A petition for guardianship of a person alleged to be insane
Production or inspection of
Subpoena DucesTecum 3. An action to recover damages for personal injury where the issue is the extent of the
documents or things
Upon showing for good cause May be issued upon ex parte injuries of the plaintiff
and upon motion is required for application
an order for the production or Which court: the court in which the action is pending
inspection of documents or
things Order: order him to submit to a physical or mental examination by a physician.
Can only be directed to a party May be directed to a non-party
It is a pre-trial discovery device It is a process used during trial Note: Since the results of the examination are intended to be made public, the
intended to obtain facts or proper and contemplates that same are not covered by the physician-patient privilege.
documents in order to prepare the party applying for its
Order of examination

© Gironella – Macadatar 2017 | Modes of Discovery 30


Remedy: The proponent may thereafter apply to the proper court of the place
How made: where the deposition is being taken, for an order to compel an answer.
1. Only on motion for good cause shown and
2. upon notice to the party to be examined and to all other parties, The same procedure may be availed of when a party or a witness refuses to answer
any interrogatory submitted under Rules 23 or 25.
Contents of the notice: the time, place, manner, conditions and scope of the
examination and the person or persons by whom it is to be made. If the application is granted:
1. the court shall require the refusing party or deponent to answer the
Report of findings question or interrogatory and
2. if it also finds that the refusal to answer was without substantial
When: If requested by the party examined justification, it may require the refusing party or deponent or the
counsel advising the refusal, or both of them, to pay the proponent the
What: the party causing the examination to be made shall deliver to him a copy of amount of the reasonable expenses incurred in obtaining the order,
a detailed written report of the examining physician setting out his findings and including attorney's fees.
conclusions.
If the application is denied:
After such request and delivery, the party causing the examination to be made - and the court finds that it was filed without substantial justification,
shall be entitled upon request to receive from the party examined a like report of - The court may require the proponent or the counsel advising the filing of the
any examination, previously or thereafter made, of the same mental or physical application, or both of them, to pay to the refusing party or deponent the
condition. amount of the reasonable expenses incurred in opposing the application,
including attorney's fees.
If the party examined refuses to deliver such report, the court on motion and
notice may make an order requiring delivery on such terms as are just Contempt of court

If a physician fails or refuses to make such a report the court may exclude his When:
testimony if offered at the trial. 1. Party or other witness refuses to be sworn or
2. refuses to answer any question after being directed to do so by the court
Waiver of privilege of the place in which the deposition is being taken

How: Party refuses to obey an order: the court may make such orders in regard to the
1. By requesting and obtaining a report of the examination so ordered or refusal as are just, and among others the following:
2. by taking the deposition of the examiner
(a) An order that the matters regarding which the questions were asked, or
Matter: The party examined waives any privilege he may have in that action or any the character or description of the thing or land, or the contents of the paper, or
other involving the same controversy, regarding the testimony of every other the physical or mental condition of the party, or any other designated facts shall be
person who has examined or may thereafter examine him in respect of the same taken to be established for the purposes of the action in accordance with the claim
mental or physical examination. of the party obtaining the order;

General rule: a party is not entitled to the result of examination (b) An order refusing to allow the disobedient party to support or oppose
designated claims or defenses or prohibiting him from introducing in evidence
Unless: he request to be given copies designated documents or things or items of testimony, or from introducing
evidence of physical or mental condition;
Effect: he cannot present any medical certificate contrary to what was stated in
the medical certificate that was given to him. (c) An order striking out pleadings or parts thereof, or staying further
proceedings until the order is obeyed, or dismissing the action or proceeding or
Rationale: with such knowledge the adverse party may fabricate the result of the any part thereof, or rendering a judgment by default against the disobedient party;
medical certificate contrary to the medical certificate given to him and

Remedy: do not ask a copy, instead submit himself to a medical examination, and (d) In lieu of any of the foregoing orders or in addition thereto, an order
use it when the former medical examination was presented as evidence directing the arrest of any party or agent of a party for disobeying any of such
orders except an order to submit to a physical or mental examination.
 SANCTIONS AND PENALTIES
Expenses on refusal to admit
Refusal to answer
- He may apply to the court for an order requiring the other party to pay him the
- The examination may be completed on other matters or adjourned as the reasonable expenses incurred in making such proof, including attorney's fees.
proponent of the question may prefer.

© Gironella – Macadatar 2017 | Modes of Discovery 31


- Unless the court finds that there were good reasons for the denial or that 6. Where, the parties agree in writing, upon the facts involved in the
admissions sought were of no substantial importance, such order shall be litigation, and submit the case for judgment on the facts agreed upon,
issued. without the introduction of evidence. If however, there is no agreement
as to all the facts in the case, trial may be held only as to the disputed
Failure of party to attend or serve answers facts

How: on motion and notice Trial Hearing


Reception of evidence and Not confined in trial but embraces
What: the court; other processes. several stages of litigation, including
1. May strike out all or any part of any pleading of that party, or the pre-trial stage.
2. dismiss the action or proceeding or any part thereof, or The period for the Does not necessarily imply
3. enter a judgment by default against that party, and introduction of evidence presentation of evidence in open court
4. in its discretion, order him to pay reasonable expenses incurred by the by both parties. but the parties are afforded the
other, including attorney's fees. opportunity to be heard.

Expenses against the Republic of the Philippines. Calendar of cases

Expenses and attorney's fees are not to be imposed upon the Republic of the The clerk of court, under the direct supervision of the judge, shall keep a calendar
Philippines under this Rule. of cases:
1. for pre-trial,
The Rules on Trial Proper 2. for trial,
3. those whose trials were adjourned or postponed, and
4. Those with motions to set for hearing.
Concept and Definition
Cases which are given preference
Trial: An examination, usually involving the offering of testimony before a
competent tribunal according to establish procedures, of facts or law put in
Preference shall be given to:
issue in a cause for the purpose of determining such issue.
1. habeas corpus cases,
- The judicial process of investigating and determining the legal
2. election cases,
controversies, starting with the production of evidence by the plaintiff and
3. special civil actions, and
ending with his closing arguments.
4. Those so required by law.

Notice of trial
Assignment of cases, only by raffle if multi sala court

When: Upon entry of a case in the trial calendar


The assignment of cases to the different branches of a court shall be done
exclusively by raffle.
Clerk's duty: the clerk shall notify the parties of the date of its trial

The assignment shall be done in open session of which adequate notice shall be
Duration: in such manner as shall ensure his receipt of that notice at least 5 days
given so as to afford interested parties the opportunity to be present.
before such date

Order of trial
Is trial necessary?
General Rule: When an issue exists, trial is necessary. Decision should not be made
The trial shall be limited to the issues stated in the pre-trial order and shall
without trial. proceed as follows:
Exceptions: There is no need for trial in the following cases:
1. Where the pleadings of the parties tender no issue at all, a judgment on (a) The plaintiff shall adduce evidence in support of his complaint;
the pleadings may be directed by the court (Rule 34);
2. Where from the pleadings, affidavits, depositions and other papers, (b) The defendant shall then adduce evidence in support of his defense,
there is actually no genuine issue, the court may render a summary counterclaim, cross-claim and third-party complaint;
judgment (Rule 35);
3. Where the parties have entered into a compromise or an amicable (c) The third-party defendant, if any, shall adduce evidence of his defense,
settlement either during the pre-trial or while the trial is in progress counterclaim, cross-claim and fourth-party complaint;
(Rule 18; Art. 2028, NCC);
4. Where the complaint has been dismissed with prejudice (Sec. 5, Rule (d) The fourth-party, and so forth, if any, shall adduce evidence of the material
16; Sec. 3, Rule 17; last. par., Sec. 5, Rule 7); facts pleaded by them;
5. Where the case falls under the operation of the Rules on Summary
Procedure (Rule 17);

© Gironella – Macadatar 2017 | The Rules on Trial Proper 32


(e) The parties against whom any counterclaim or cross-claim has been pleaded, When: During the hearing or trial of a case
shall adduce evidence in support of their defense, in the order to be prescribed by
the court; What: any statement made by the judge shall be made of record in the
stenographic notes.
(f) The parties may then respectively adduce rebutting evidence only, unless the
court, for good reasons and in the furtherance of justice, permits them to adduce Matter:
evidence upon their original case; and 1. with reference to the case, or
2. to any of the parties, witnesses or counsel
(g) Upon admission of the evidence, the case shall be deemed submitted for
decision, unless the court directs the parties to argue or to submit their respective Suspension of actions
memoranda or any further pleadings.
- Shall be governed by the provisions of the Civil Code.
If several defendants or third-party defendants, and so forth, having separate - Willingness to discuss a possible compromise
defenses appear by different counsel, the court shall determine the relative order of
presentation of their evidence. Judge to receive evidence; delegation to clerk of court

Note: General rule: The judge of the court where the case is pending shall personally
- This order of trial applies to a regularly controverted claim. (Reverse order of receive the evidence to be adduced by the parties.
trial)
- This will not apply if the answer admits the defendant's obligation as Exception: the court may delegate the reception of evidence to its clerk of court
alleged in the complaint but special defenses are alleged who is a member of the bar:
 plaintiff does not have to present evidence since judicial admissions 1. in default or
do not require proof, and 2. ex parte hearings, and
 it should be the defendant who should forthwith present evidence 3. In any case where the parties agree in writing.
in support of his special defenses.
- This order of trial will also not apply if there was a separate trial of the Limitation of the power: The clerk of court shall have no power to rule on
counterclaim, cross-claim, third-party complaint, etc.… or if the court for objections to any question or to the admission of exhibits
special reasons otherwise directs. - note the objection and report it to the court

Agreed statement of facts Objections :


- shall be resolved by the court upon submission of his report and the
Form: in writing transcripts within 10 days from termination of the hearing

What: The parties to any action may agree upon the facts involved in the Additional evidence
litigation, and submit the case for judgment on the facts agreed upon, without the - may be offered at the rebuttal stage:
introduction of evidence.
Provided:
Partial: If the parties agree only on some of the facts in issue, the trial shall be held 1. if it was newly discovered, or
as to the disputed facts in such order as the court shall prescribe. 2. omitted through mistake or inadvertence, or
3. where the purpose is to correct evidence previously offered,
Note: 4. Subject to the discretion of the court.
- Counsel cannot stipulate on what their respective evidence consists of
and ask that judgment be rendered on the basis of such stipulation. Adjournments and postponements
- Stipulations of facts are not permitted in actions for annulment of marriage,
legal separation, declaration of nullity of marriage General Rule: A court may adjourn a trial from day to day, and to any stated time,
as the expeditious and convenient transaction of business may require
Stipulation of facts in civil cases vis-a-vis criminal cases:
Limitation: shall have no power to adjourn a trial for a longer period than one
Civil Cases Criminal Cases month for each adjournment, nor more than three months in all
May be signed by the counsel Must be signed both by the
alone who has a special power of counsel and the accused. Exception: when authorized in writing by the Court Administrator or the
attorney. Supreme Court.
May be made verbally or in Strict. It must always be in
writing. writing. - are addressed to the sound discretion of the court and
- In the absence of grave abuse of discretion, cannot be controlled by mandamus.
Statement of judge
Requisites of motion to postpone trial for absence of evidence

© Gironella – Macadatar 2017 | The Rules on Trial Proper 33


Subpoena Summons
A motion to postpone a trial on the ground of absence of evidence can be granted An order to appear and testify or Order to answer complaint
only upon: to produce books and documents
May be served to a non-party Served on the defendant
1. affidavit showing the materiality or relevancy of such evidence, and Needs tender of kilometrage, Does not need tender of
2. That due diligence has been used to procure it. attendance fee and reasonable cost kilometrage and other fees
of production fee
Note: But if the adverse party admits the facts to be given in evidence, even if he
objects or reserves the right to object to their admissibility, the trial shall not be Kinds
postponed.
Subpoena DucesTecum:
Requisites of motion to postpone trial for illness of party or counsel - To appear and bring the papers and documents.
- It is a process requiring a person to bring with him any books, documents, or
A motion to postpone a trial on the ground of illness of a party or counsel may be
other things under his control.
granted if it appears:
Subpoena Ad Testificandum:
1. upon affidavit or sworn certification that the presence of such party or
- To appear and testify
counsel at the trial is indispensable and
- It is a process requiring a person to attend and to testify at the hearing or the
2. That the character of his illness is such as to render his non-attendance
trial of an action, or at any investigation conducted by competent authority, or
excusable.
for the hearing of his deposition.

The Rules on Computation of time


Blanket subpoena ducesTecum:
- provides occasions for fishing expedition
How to compute time

Contents
- The day of the act or event from which the designated period of time begins to
run is to be excluded and the date of performance included. A subpoena shall state:
1. the name of the court and
- If the last day of the period, as thus computed, falls on a Saturday, a Sunday, or 2. the title of the action or investigation
a legal holiday in the place where the court sits, the time shall not run until the 3. It shall be directed to the person whose attendance is required, and
next working day. 4. In the case of a subpoena ducestecum, it shall also contain a reasonable
description of the books, documents or things demanded which must
Effect of interruption appear to the court prima facie relevant.

- The allowable period after such interruption shall start to run on the day after
Who issues

notice of the cessation of the cause thereof.


The subpoena may be issued by:
- The day of the act that caused the interruption shall be excluded in the a) the court before whom the witness is required to attend;
computation of the period b) the court of the place where the deposition is to be taken;
c) the officer or body authorized by law to do so in connection with
The Rules on Subpoena investigations conducted by said officer or body; or
d) Any Justice of the Supreme Court or of the Court of Appeals in any case or
I. Concept, nature, purpose and limitation investigation pending within the Philippines.

- It is used during trial.


Who may be subpoenaed, exceptions

- No subpoena can be issued in the absence of an action pending in court. Subpoena to a prisoner: the judge or officer shall examine and study carefully
such application to determine whether the same is made for a valid purpose.
Definition
Exception:
Subpoena is a process directed to a person requiring him to attend and to testify at 1. Witness residing more than 100 kilometers with the place where he
the hearing or the trial of an action, or at any investigation conducted by shall testify
competent authority, or for the taking of his deposition. 2. Detention prisoner
3. When Authority from the Supreme Court is needed, to be brought
It may also require him to bring with him any books, documents, or other things outside, for appearance or attendance in any court: prisoner sentenced:
under his control, in which case it is called a subpoena ducestecum. a. to death,
b. reclusion perpetua or
Subpoena vs. Summons:
© Gironella – Macadatar 2017 | The Rules on Trial Proper 34
c. life imprisonment and 4. The witness fees and kilometrage allowed by these Rules were not
d. who is confined in any penal institution tendered when the subpoena was served.
Subpoena ad testificandum
Service of subpoena
Grounds:
How: made in the same manner as personal or substituted service of summons. 1. that the witness is not bound thereby
2. the witness fees and kilometrage allowed by these Rules were not
The original shall be exhibited and a copy thereof delivered to the person on whom tendered when the subpoena was served.
it is served, tendering to him the fees for one day's attendance and the kilometrage
allowed by these Rules IV. Failure to respond to a subpoena

Exception: when a subpoena is issued by or on behalf of the Republic of the General Rule:
Philippines or an officer or agency thereof, the tender need not be made.  The court or judge issuing the subpoena may issue warrant of arrest
to the sheriff or his deputy to arrest the witness and bring him
Purpose: to allow the witness a reasonable time for preparation and travel to the before the court or officer where his attendance is required and
place of attendance.
 the cost of such warrant and seizure of such witness shall be paid
Cost of Production: by the witness if the court issuing it shall determine that his
- If the subpoena is ducestecum, the reasonable cost of producing the books, failure to answer the subpoena was willful and without just cause.
documents or things demanded shall also be tendered.
Before the witness can be arrested it must be shown to the court or judge
If a person is present in court, is there a need for subpoena in order for that:
him to testify? 1. There was a proof of service of the subpoena.
2. The witness failed to appear.
No! A person present in court before a judicial officer may be required to
testify as if he were in attendance upon a subpoena issued by such court of Exceptions:
officer. a. Arrest and contempt against a witness shall not apply to a witness
who resides more than 100 kilometers from his residence to the place
II. Vs. produce order and detention mittimus and search warrant in criminal where he is to testify by the ordinary course of travel.
cases
Viatory Right:
Production order:  Viatory right of a witness is applicable only in civil cases!
- producetheprisonerincourtataspecifiedtimeandplace  Right of a witness not to be compelled by subpoena

Detention Mittimus b. Arrest and contempt will not apply to a detention prisoner if no
- a court order directing a sheriff or other police officer to escort a convict to a permission of the court in which his case is pending was obtained.
prison
- can command a jailer to safely keep a felon until he or she can be transferred to Sanctions for unjustifiable failure to obey subpoena
a prison
- deemed a contempt of the court from which the subpoena is issued.
Search Warrant - If the subpoena was not issued by a court, the disobedience thereto shall
- a court order issued by a judge or magistrate judge that authorizes the law be punished in accordance with the applicable law or Rule
enforcement officers to conduct a search of a person or location for evidence of
a crime and to confiscate evidence if it is found. Remedy in order to obtain the testimony of a witness exempt
from subpoena
III. Quashing a subpoena, grounds
- Get their depositions using the different modes of discovery.
Subpoena ducestecum
Administrative Circular No. 3-99 (January 15, 1999)
How: upon motion promptly made
When: at or before the time specified therein
The session hours of all RTCs and MTCs

Grounds:
1. if it is unreasonable and oppressive, or
- From 8:30 A.M. to noon and from 2:00 P.M. to 4:30 P.M. from Monday to
2. the relevancy of the books, documents or things does not appear, or Friday.
3. If the person in whose behalf the subpoena is issued fails to advance the
reasonable cost of the production thereof. Morning:

© Gironella – Macadatar 2017 | The Rules on Trial Proper 35


- devoted to the conduct of trial c) Waiver

Afternoon: utilized for Judges’ Duty


(1) The conduct of pre-trial conferences;
(2) Writing of decisions, resolutions, or orders; or 1. The judge must keep a calendar of cases submitted for decision, noting
(3) the continuation of trial on the merits, whenever rendered necessary therein the exact day, month and year when the 90-day period is expire.
2. In criminal cases, the judge will do well to announce in open court at the
In multi-sala courts in places where there are few practicing lawyers termination of the trial the date of the promulgation of the decision, which
should be set within 90 days from the submission of the case for decision.
- The schedule may be modified upon request of the Integrated Bar of the 3. All Judges must scrupulously observe the period prescribed in Section 15,
Philippines Article VIII of the Constitution.
- such that one-half of the branches may hold their trial in the morning and the
other half in the afternoon. Trial By Commissioner

Schedule of Motions Who is a commissioner


- on Friday afternoons, or
- if Friday is a non-working day, in the afternoon of the next business day.
"Commissioner" includes a referee, an auditor and an examiner.

A person to whom a case pending in court is referred, for him to take testimony,
Exception: Except those requiring immediate action
hear the parties and report thereon to the court, and upon whose report, if
confirmed, judgment is rendered.
 Judges must be punctual at all times.

Trial - Clerks of courts cannot be commissioners

1. Unless the docket of the court requires otherwise, not more than 4 cases Delegation to Clerk of Trial by Commissioner
shall be scheduled for trial daily. Court
2. The Presiding Judge shall make arrangements with the prosecutor and Delegation is made during Commissioner can be appointed even
the PAO so that a relief prosecutor and a PAO attorney are always trial. after the case has become final and
available in case the regular prosecutor or PAO attorneys are absent. executory.
3. Contingency measures must likewise be taken for any unexpected Clerk of court must be a Commissioner need not be a lawyer.
absence of the stenographer and other support staff assisting in the trial. lawyer.
4. The issuance and service of subpoenae shall be done in accordance with Clerk of court cannot rule Commissioner can rule on objections
Administrative Circular No. 4 dated 22 September 1988. on objections or on the or on admissibility of evidence.
5. The judge shall conduct trial with utmost dispatch, with judicious admissibility of evidence.
exercise of the court’s power to control trial proceedings to avoid delay.
6. The judge must take notes of the material and relevant testimonies of What is the rule on trial by commissioner?
witnesses to facilitate his decision-making. General Rule: Discretionary upon the courts.
7. The trial shall be terminated within ninety (90) days from initial
hearing. Appropriate disciplinary sanctions may be imposed on the Exception:
judge and the lawyers for failure to comply with this requirement due to a. Expropriation (Rule 67);
causes attributable to them. b. Partition (Rule 69);
c. Settlement of estate of a deceased person in case of contested claims; and
Exception: in drugs cases trial dates – 60 days from date of filing. Decision – 15 days d. Submission of accounting by executors or administrator.
from submission
How
8. Each party is bound to complete the presentation of his evidence within
the dates assigned to him. After the lapse of said dates, the party is 1. By written consent of both parties, the court may order any or all of the issues
deemed to have completed the presentation of evidence. However, upon in a case to be referred to a commissioner: (reference by consent)
verified motion based on compelling reasons, the judge may allow a a. to be agreed upon by the parties or
party additional trial dates in the afternoon; provided that said b. To be appointed by the court
extension will not go beyond the three-month limit computed from the
first trial date except when authorized in writing by the Court 2. When the parties do not consent, the court may, upon the application of
Administrator, Supreme Court. either or of its own motion, direct a reference to a commissioner (Reference
ordered on motion)
Reset / Cancellation / prolonging trial; penalties
a) Pay What are binding issues: question of facts not question of law
b) Deduction from trial dates

© Gironella – Macadatar 2017 | The Rules on Trial Proper 36


Failure of parties to appear before commissioner
Powers and functions of a commissioner
When a party fails to appear at the time and place appointed the commissioner
may: a. The commissioner has and shall exercise the power to regulate the
1. Proceed ex parte or, proceedings in every hearing before him and
2. in his discretion, adjourn the proceedings to a future day, b. To do all acts and take all measures necessary or proper for the efficient
performance of his duties under the order.
 Giving notice to the absent party or his counsel of the adjournment. c. He may issue subpoenas and subpoenas ducestecum,
d. swear witnesses, and
Refusal of witness e. Unless otherwise provided in the order of reference, he may rule upon
the admissibility of evidence.
Deemed contempt of the court which appointed the commissioner, when the
witness refuses: The trial or hearing before him shall proceed in all respects as it would if held
a. to obey a subpoena issued by the commissioner or before the court
b. to give evidence before him
Commissioner’s report
Oath of commissioner
When:
Before entering upon his duties the commissioner shall be sworn to a faithful and a. Upon the completion of the trial or
honest performance thereof b. hearing or
c. proceeding before the commissioner
Rationale
What: he shall file with the court his report in writing upon the matters
The expertise of the appointed commissioner is needed to settle the submitted to him by the order of reference.
controversy
 When his powers are not specified or limited, he shall set forth his
Who will appoint findings of fact and conclusions of law in his report.
 He shall attach thereto all exhibits, affidavits, depositions, papers and
- By the court the transcript, if any, of the testimonial evidence presented before him.

Applicable instances– valid referral even without the consent of the  Notice to parties of the filing of report
parties
When: Upon the filing of the report
1. When the trial of an issue of fact requires the examination of a long
account on either side, in which case the commissioner may be directed What: the parties shall be notified by the clerk,
to hear and report upon the whole issue or any specific question
involved therein; Objection: they shall be allowed 10 days within which to signify grounds of
objections to the findings of the report, if they so desire.
2. When the taking of an account is necessary for the information of the
court before judgment, or for carrying a judgment or order into effect. Note: Objections to the report based upon grounds which were available to the
parties during the proceedings before the commissioner, other than objections to
3. When a question of fact, other than upon the pleadings, arises upon the findings and conclusions therein, set forth, shall not be considered by the court
motion or otherwise, in any stage of a case, or for carrying a judgment or unless they were made before the commissioner.
order into effect.
 Hearing upon report
Order of reference; contents
When: Upon the expiration of the period of 10 days (objections)
When a reference is made, the clerk shall forthwith furnish the commissioner with
a copy of the order of reference. What: the report shall be set for hearing

The order may: Court’s action: after which the court shall issue an order:
1. specify or limit the powers of the commissioner, and  adopting,
2. may direct him to report only upon particular issues, or  modifying, or
3. to do or perform particular acts, or  rejecting the report in whole or in part, or
4. to receive and report evidence only and  recommitting it with instructions, or
5. may fix the date for beginning and closing the hearings and  requiring the parties to present further evidence before the
6. For the filing of his report. commissioner or the court

© Gironella – Macadatar 2017 | The Rules on Trial Proper 37


Stipulations as to findings. What: The court may order a separate trial of any claim, cross-claim,
counterclaim, or third-party complaint, or of any separate issue or of any number
When the parties stipulate that a commissioner's findings of fact shall be final, of claims, cross-claims, counterclaims, third-party complaints or issues.
only questions of law shall thereafter be considered.
Adjudication
Compensation of commissioner
Concept and Requirements
The court shall allow the commissioner such reasonable compensation as the
circumstances of the case warrant, to be taxed as costs against the defeated party,
- Judgment contrary to the express provisions of law is erroneous but it is
or apportioned, as justice requires.
not void
- Once it becomes final and executory, it is binding and effective as any
The Rule on Consolidation and Severance
judgment and though erroneous, will be enforced as a valid judgment in
accordance with its dispositions.
Consolidation

Responsibility of courts and judges


Requisites:
1. When actions involving a common question of law or fact are pending
No judge or court shall decline to render judgment by reason of the:
before the court
1. silence,
2. There must be at least 2 actions pending before the same court
2. obscurity or
3. insufficiency of the laws. (Article 9, NCC)
 it may order a joint hearing or trial of any or all the matters in issue in
the actions;
Basis:
 it may order all the actions consolidated, and
 laws of suppletory application
 it may make such orders concerning proceedings therein as may tend to
 decision of the Court of Appeals
avoid unnecessary costs or delay
 customs
 applies to both civil and criminal cases
 foreign decisions

Ways of consolidating cases


The ponencia

Recasting the Cases Consolidation Test-Case Method


- It is the decision of the court
Proper
Reshaping of the It is a joint trial By hearing only the
Constitutional requirement on judgments
cases by amending with joint principal case and
the pleading, decision, the suspending the hearing
Conclusion of the Supreme Court:
dismissing some cases retaining on the other cases until
- Shall be reached in consultation before the case is assigned to a Member
cases and retaining their original judgment has been
for the writing of the opinion of the Court.
only one case. There docket rendered in the
must be joinder of numbers. principal case. The
Non Participation: Any Member who:
causes of action and cases retain their
a. Took no part, or
of parties. original docket
b. dissented, or
numbers
c. abstained from a decision or resolution

What is the rule on consolidation of cases?


Effect: must state the reason therefor

General Rule:Consolidation is discretionary upon the court to avoid multiplicity of


Applicability: The same requirements shall be observed by all lower collegiate
suits, guard against oppression or abuse, prevent delay, clear congested dockets,
courts.
and simplify the work of the trial court and save unnecessary costs and expenses.
Requirement for a decision:
Exceptions: Consolidation becomes a matter of duty when:
- Express therein clearly and distinctly the facts and the law on which it
1. If two or more cases are pending before the same judge; or
is based.
2. If filed with the different branches of the same RTC and one of such cases has
not been partially tried.
Petition for review or motion for reconsideration of a decision:
- The court shall not refused due course or denied without stating the
Separate trials
legal basis therefor.

Purpose: in furtherance of convenience or to avoid prejudice


Requirements; Judgment

© Gironella – Macadatar 2017 | Adjudication 38


Sin Perjuicio Judgment:
CIVIL CASE: - Contains only the fallo
 Rendition of judgments and final orders: - No ratio decidendi, no findings and holdings
- Void judgment
Requirements:
a. shall be in writing Nunc pro tunc (now for then) amendment of judgment:
b. personally and directly prepared by the judge, - Its only function is to record some act of the court which was done at a
c. stating clearly and distinctly the facts and the law on which it is based, former time, but which was not then recorded, in order to make the
d. signed by him, and record speak the truth, without any changes in substance or in any
e. filed with the clerk of the court material respect.
- In short – amended decision
CRIMINAL CASE:
- It is a valid decision?
 Judgment definition and form. o It depends
 When the amendment is only clerical or
Judgment is the adjudication by the court that the accused is guilty or not guilty typographical the decision is valid
of the offense charged and the imposition on him of the proper penalty and civil  When the amendment affects substantive right the
liability, if any. decision is invalid

Requirements: Obiter dictum:


a. It must be written in the official language,
- Opinion of a judge in a judgment which is not relevant to the case
b. personally and directly prepared by thejudge and
- Does not necessarily form part of the decision
c. signed by him and
- ―by the way‖
d. shall contain clearly and distinctly a statement of the facts and the law
upon which it is based.
Findings:
Note: The case should be decided on its totality - Established evidentiary facts in the decision
- Basis of the decision
Note: it is the filing of the signed decision with the Clerk of Court, and not its
pronouncement in open court that constitute rendition of judgment Holding:
- Decision of the court in appreciating the facts
Language: must be in the official language – Filipino or English.
Per Curiam:
 Two Parts of Judgment - ―by the court‖
- defining a decision of an appeals court as a whole in which no judge is
1. The body of the judgment or the ratio decidendi identified as the specific author.
2. The dispositive portion of the judgment or fallo - Whole decision of the collegiate courts and he Supreme Court
- The ponente is unanimous
Note:
 The body of the decision is not part of the judgment that is subject to NotatuDignum:
execution but the fallo because it is the latter which is the judgment of - the presumption of regularity in the performance of a judges functions
the court - hence, bias, prejudice and even undue interest cannot be presumed,
 The fallo should state whether the complaint of petition is granted or especially weighed against a judges sacred allegation under oath of office
denied, the specific relief granted or the costs to administer justice without respect to any person and do equal right
to the poor and the rich
Rule, conflict between the dispositive portion of the decision and the body:
Fallo:
General rule:The dispositive portion controls irrespective of what appears in the
- The dispositive portion of the judgment
body of the decision.
- It is part of the judgment which actually settles and declares the rights
and obligations of the parties, finally definitively, and authoritatively
Exception:
1. Where the inevitable conclusion from the findings of fact in the opinion
Ratio Decidendi:
is so indubitable and clear as to show that there was mistake in the
- The body of the judgment which states the facts and the law upon the
dispositive portion OR;
decision was based
2. Where explicit discussion and settlement of the issue is found in the
body of the decision.
Minute resolutions:
Some concepts

© Gironella – Macadatar 2017 | Adjudication 39


- Mean the Supreme Court agrees with or adopts the findings and Judgment by confession:
conclusions of the lower court, that is, that the latter’s decision sought - is not a plea but an affirmative and voluntary act of the defendant
to be reviewed and set aside is correct. himself
- When the appeal is found to be filed to interpose for delay - The court exercises a certain amount of supervision over the entry of
- Applies with the CA and RTC judgment, as well as equitable jurisdiction over their subsequent status.
- Rendered by the court when the parties expressly agrees to the other
Memorandum decisions: party’s claim
- A one liner decision affirming the decision and attaching the decision of
the court a quo Some Rules
- to be valid, such memorandum decision should actually embody the
factual findings and legal conclusions in an annex attached to and made Period to render Judgment:
an integral part of the decision.
Within 24 months from date of
Supplemental decisions: submission
Supreme Court
- Does not take the place of or extinguish the original decision; it only
serves to bolster or add something to the primary decision. Unless reduced by the Supreme Court
All lower collegiate 12 months
Rule of immutability of judgment vs. doctrine of total nullity: courts
All other lower 3 months
RIJ: a final judgment may no longer be altered, amended or modified, even if the courts
alteration, amendment or modification is meant to correct what is perceived to be
an erroneous conclusion of fact or law and regardless of what court, be it the When is a case submitted for decision:
highest Court of the land, rendered it.
- Upon the filing of the last pleading, brief, or memorandum required by
DTN: the decision is void thus it cannot be executed even if the judgment is the Rules of Court or by the court itself.
already final and executory
Note: Despite the expiration of the applicable mandatory period, the court,
Stare decisis et non quietamovere without prejudice to such responsibility as may have been incurred in consequence
- That once the case is decided by the Supreme Court as the final arbiter thereof, shall decide or resolve the case or matter submitted thereto for
of any justifiable controversy one way or another, then another case determination, without further delay.
involving exactly the same point at issue should be decided in the same
manner. When does a judgment become final:

Law of the case doctrine: - If no appeal or motion for new trial or reconsideration is filed within the
- When a court decides upon a rule of law, that decision should continue time provided in these Rules
to govern the same issues in subsequent stages in the same case. - Upon the lapse of 15 days from the date of notice to the party of such
- Applies in a situation where an appellate court has made a ruling on a judgments, if such party does not employ valid remedies to toll the
question on appeal and thereafter remands the case to the lower court running of such period.
for further proceedings; the question settled by the appellate court - The judgment or final order shall forthwith be entered by the clerk in
becomes the law of the case at the lower court and in any subsequent the book of entries of judgments.
appeal. - The date of finality of the judgment or final order shall be deemed to be
- It means that whatever is irrevocably established as the controlling legal the date of its entry.
rule or decision between the same parties in the same case continues to
be the law of the case, whether correct on general principles or not, so Effect of final and executory judgment
long as the facts on which the legal rule or decision was predicated
continue to be the facts of the case before the court General rule: once judgment becomes final and executory it becomes immutable
and unalterable.
Judgment on consent:
- is one where the provisions and terms of which are settled and agreed Exception:judgment maybe change in cases of:
upon by the parties to the action, and which is entered in the record by 1. Typographical error
the consent of the court. 2. Void judgment
3. Judgment nunc pro tunc.
There must be an unqualified agreement among the parties to be bound by the
judgment on consent before said judgment may be so entered and the court does Rules of interpretation of judgment:
not have the power to supply terms, provisions or essential details not previously
agreed to by the parties. Judgment for or against one or more of several parties:

© Gironella – Macadatar 2017 | Adjudication 40


Judgment may be given for or against one or more of several plaintiffs and for or Who files: either the plaintiff or defendant (when the reply admits the
against one or more of several defendants. truthfulness of the defenses)

When justice so demands, the court may require the parties on each side to file Oppositions: The adverse party may serve opposing affidavits, depositions, or
adversary pleadings as between themselves and determine their ultimate rights admissions at least 3 days before the hearing.
and obligations.
Ground: if the pleadings, supporting affidavits, depositions, and admissions on
Several judgments: file, show that there is no genuine issue as to any material fact and that the moving
When: In an action against several defendants party is entitled to a judgment as a matter of law.
- Specific denials or affirmative defenses are in truth set out in the answer
What: the court may, when a several judgment is proper, render judgment against but the issues thus arising from the pleadings are sham, fictitious or not
one or more of them, leaving the action to proceed against the others. genuine, as shown by affidavits, depositions, or admissions.

Separate judgments: Exception: the amount of damages


When:
1. When more than one claim for relief is presented in an action SUMMARY:
2. at any stage Judgment on the Summary judgments
pleadings
What: the court, upon a determination of the issues material to a particular claim
Answer does not tender an There is an issue tendered in the
and all counterclaims arising out of the transaction or occurrence which is the
issue answer, but it is not genuine or
subject matter of the claim, may render a separate judgment disposing of such
real issue as may be shown by

Answer
claim.
affidavits and depositions that
there is no real issue and that the
The judgment shall terminate the action with respect to the claim so disposed of
party is entitled to judgment as a
and the action shall proceed as to the remaining claims.
matter of right
Movants must give a 3-day Opposing party is given 10 days
In case a separate judgment is rendered the court by order may stay its
Notice

notice of hearing notice


enforcement until the rendition of a subsequent judgment or judgments and may
prescribe such conditions as may be necessary to secure the benefit thereof to the
party in whose favor the judgment is rendered. Entire case may be May only be partial
Terminati

terminated
on

Judgment against entity without juridical personality: May be interlocutory or on the


- The judgment shall set out their individual or proper names, if known. On the merits merits
Only the plaintiff or the Either the plaintiff or the
Who can file

Kinds of Judgment and Definitions defendants as far as the defendant may file it
counterclaim, cross-claim
Without reception of evidence or third-party complaint is
concerned can file the same
Judgment on the Pleading Based only on the Based on the pleadings, affidavits,
Basis of the
judgment

pleadings alone, hence, depositions, and admissions


Grounds: only on the complaint and
1. Where an answer fails to tender an issue (factual and legal), or the answer
2. otherwise admits the material allegations of the adverse party's pleading
3. or the answer is negative pregnant
With partial reception of evidence
How: on motion by the plaintiff
Judgment by Default
Exception:
1. Actions for declaration of nullity or When: defending party fails to answer within the time allowed
2. annulment of marriage or
3. for legal separation, How: upon motion of the claiming party with notice to the defending party, and
proof of such failure
Summary Judgment
Thereupon, the court shall proceed to render judgment granting the claimant such
Time to file: The motion shall be served at least 10 days before the time specified relief as his pleading may warrant, unless the court in its discretion requires the
for the hearing. claimant to submit evidence.

Such reception of evidence may be delegated to the clerk of court.

© Gironella – Macadatar 2017 | Adjudication 41


Ex parte Presentation of evidence Promulgation of judgment in Civil cases:

- It shall be the duty of the parties and their counsel to appear at the pre- Trial Courts:
trial. - None! Judgment, final orders are served or handed to the parties, not
- Failure on the part of the defendant shall be cause to allow the plaintiff promulgated.
to present his evidence ex parte and the court to render judgment on the - The service is either personal or registered.
basis thereof.
- Includes Rule 17 - due to the fault of the plaintiff Appellate courts:
- Yes! But the type of promulgation is not the same as the promulgation
Judgment on demurrer to evidence contemplated in criminal cases.
- Promulgation is done in the appellate courts when the Clerk of Court
When: After the plaintiff has completed the presentation of his evidence will announced that the #rd Division of the SC or CA rendered a
decision on the case of … and on the day of…
How: the defendant may move for dismissal of the action
In an election contest between Mr. Palma and Mr. Monsod, the
Ground: that upon the facts and the law the plaintiff has shown no right to relief. COMELEC En Banc unanimously resolved the dispute in favor of
Monsod.couCOMELEC Commissioner Garci participated in the
If his motion is denied: deliberation of the said resolution. Howevr, on the resolution of the
- He shall have the right to present evidence. said dispute was promulgated by the COMELEC EnBanc,Garci was
no longer a member of the COMELEC En Banc. Mr. Palma contends
If the motion is granted but on appeal the order of dismissal is reversed: that the decision was null and void because Garci, who was part of
- he shall be deemed to have waived the right to present evidence the resolution of the case, was no longer connected with the
COMELEC. Is Mr. Palma Correct?
Ordinary judgment / Judgment on the Merits
Answer: NO. a decision becomes binding only after it is
- There is full blown trial promulgated. Consequently, if at the time of the promulgation of a
decision or resolution, a member of a collegiate court who had earlier
Judgment based on Compromise agreement signed or registered his vote has vacated his office; his vote is
automatically withdrawn or cancelled. The resolution in this case
Nature: not appealable and has the effect of res judicata from the moment it is remains valid because it is still supported by majority of the
rendered. COMELEC En Banc

As a rule, a judgment upon compromise is immediately executory in the absence of Promulgation of judgment in Criminal cases:
a motion to set the same aside on the ground of fraud, mistake, etc., and if such
motion is made and denied, appeal may be taken from such order of denial. The judgment is promulgated by:
1. Reading it in the presence of the accused and any judge of the court in
Lack of consent to the compromise agreement: the remedy is: which it was rendered.
1. to move for its reconsideration and 2. However, if the conviction is for a light offense, the judgment may be
2. to appeal from the judgment if the motion is denied; or pronounced in the presence of his counsel or representative.
3. If the judgment is already final and executory, to file petition for relief 3. When the judge is absent or outside of the province or city, the
under Rule 38. judgment may be promulgated by the clerk of court.

Against a person who is not a party to the compromise agreement: Remedy: Confined or detained in another province or city:
- He may file an original petition for certiorari to quash the writ of - the judgment may be promulgated by the executive judge of the RTC
execution. having jurisdiction over the place of confinement or detention
- How: upon request of the court which rendered the judgment.
He could not move to have the compromise set aside and then appeal from the
order denying the motion since he is not a party to the compromise or the Accused tried in absentia:
judgment therein.  Because he jumped bail or
- A petition for relief would be an adequate remedy as the execution was  Escaped from prison
already being carried out.
- The notice to him shall be served at his last known address.
Promulgation of Judgment
Accused fails to appear at the scheduled date of promulgation of judgment
In civil cases vs. in criminal, promulgation of judgment in absentia in despite notice:
criminal cases

© Gironella – Macadatar 2017 | Adjudication 42


- the promulgation shall be made by recording the judgment in the Remedies against Judgment and Final Orders
criminal docket and
- Serving him a copy thereof at his last known address or thru his counsel.

Judgment is for conviction and the failure of the accused to appear was
without justifiable cause:
- He shall lose the remedies available in these rules against the judgment
and the court shall order his arrest.

Remedies: when to file


- Within 15 days from promulgation of judgment, however, the accused
may surrender and file a motion for leave of court to avail of these
remedies.
- He shall state the reasons for his absence at the scheduled promulgation
and if he proves that his absence was for a justifiable cause, he shall be
allowed to avail of said remedies within fifteen (15) days from notice.

Before what court and before whom

- The court, who heard and tried the case Before finality of judgment and final orders

Q: what if the judge who rendered the judgement is not the judge who heard the Motion for Reconsideration
case, can there be a valid judgment?
- It is a litigated motion
A: YES. There is no requirement in the rules that requires the same.
Time to file: Within the period for taking an appeal - this is within 15 days from
General Rule: a case once raffled the receipt of the notice of the judgment or final order.

Who are covered by the Rules on Judgments? Note: A motion to extend the reglementary period for filing a motion for
- Courts or Records [RTC and MTC] reconsideration is not authorized.

Supreme Court: Where to file: The motion shall be filed with the trial court, i.e., the court which
- Is not compelled to adopt a definite and stringent rule on how its rendered the judgment.
judgments shall be framed.
- It has the discretion to decide whether a ―minute resolution‖ should be Who files: losing or winning party
used in lieu of ―full blown decision‖ in any particular case
Grounds:
A minute resolution of dismissal of a petition for review on certiorari constitutes 1. The damages awarded are excessive
adjudication on the merits of the controversy or subject matter of the petition. 2. the evidence is insufficient to justify the decision or final order, or
3. the decision or final order is contrary to law.
Since the grant of a petition for review on certiorari is not a matter of right but of
sound judicial discretion, there is accordingly no need to fully explain the court’s Form: in writing
denial.
Contents:
Book of entries of judgment The motion shall:
1. state the factual or legal ground or grounds
Judgment and entries book 2. shall point out specifically the findings or conclusions of the judgment
 The clerk shall keep a judgment book containing a copy of each or final order which are:
judgment rendered by the court in order of its date, and a. not supported by the evidence or
 a book of entries of judgments containing at length in chronological b. which are contrary to law
order entries of all final judgments or orders of the court. o making express reference to the testimonial or
documentary evidence or
The record shall contain the dispositive part of the judgment or final order and o to the provisions of law alleged to be contrary to
shall be signed by the clerk, within a certificate that such judgment or final order such findings or conclusions
has become final and executory.
Notice: A written notice of which shall be served by the movant on the adverse
party.

© Gironella – Macadatar 2017 | Remedies against Judgment and Final Orders 43


Action upon the motion: If the court finds that excessive damages have been Vs. Intrinsic Fraud:
awarded or that the judgment or final order is contrary to the evidence or law, it
may amend such judgment or final order accordingly. Refers to the acts of a party at the trial which prevented a fair and just
determination of the case and which could have been litigated and determined at
Resolution of motion: shall be resolved within 30 days from the time it is the trial or adjudication of the case, such as falsification, false testimony and so
submitted for resolution. forth, and does not constitute a ground for new trial.

Note: No party shall be allowed a second motion for reconsideration of a judgment MISTAKE:
or final order - Mistake generally refers to mistakes of fact but may also include
- the motion must come from the same party mistakes of law where in good faith; the defendant was misled in the
case.
Remedy against order denying a motion for reconsideration: - Constitutive act of mistake of law: a mistake as to the scope and extent
- An order denying a motion for reconsideration is not appealed, the of the coverage of an ordinance, or a mistake as to the effect of a
remedy being an appeal from the judgment or final order. compromise agreement upon the need for answering a complaint.
- In the appeal, assign as one of the errors the denial of the Motion for
Reconsideration. Note: As a general rule, a client is bound by the mistakes of his counsel. Only when
the application of this general rule would result in serious injustice should an
Motion for New Trial / Berry Rule exception hereto be applied.

- It is a litigated motion EXCUSABLE NEGLIGENCE:


- If granted there will be a hearing - It must be excusable and generally imputable to the party.
- But the negligence of counsel is binding on the client just as the latter is
Time to file: Within the period for taking an appeal, that is within 15 or 30 days bound by the mistakes of his lawyer.
from notice of the judgment. - However, negligence of the counsel may also be ground for new trial if it
was so great that the party was prejudiced and prevented from fairly
Contents: presenting his case or where the party may be unjustly deprived of his
The motion shall be made: property. (extra ordinary or gross negligence)
1. in writing
2. stating the ground or grounds therefor ACCIDENT:
3. a written notice of which shall be served by the movant on the adverse - Defined as an event that takes place without one’s foresight or
party. expectation; an undersigned, sudden, and unexpected event.
- In an accident, a party claiming the benefit of an accident must not be
Grounds: negligent.
1. Fraud, accident, mistake or excusable negligence(FAME)
which ordinary prudence could not have guarded against Example:
and by reason of which such aggrieved party has probably - An illness may be considered an accident.
been impaired in his rights; or
- Loss or delay in the mails may be deemed an accident.
- Notices were sent to a wrong lawyer
2. Newly discovered evidence

Effect of granting the motion: the entire proceeding will be vacated and there
First Ground:
will be new trial de novo.

FRAUD:
Second Ground:
- Only extrinsic fraud can be ground for new trial.
- Fraud as a ground for new trial must be extrinsic or collateral that is, it Requisites: for newly discovered evidence to warrant new trial:
is kind of fraud which prevented the aggrieved party from having trial or a. Must have been discovered after trial;
presenting his case to the court, or was used to procure the judgment b. Could not have been discovered and produced at the trial despite
without fair submission of the controversy. reasonable diligence;
- There is denial of the right to due process c. And if presented would probably alter the result of the action.
 Material and relevant and not merely corroborative or
Acts Constitutive of Collateral fraud: commutative
1. Acts intended to keep the unsuccessful party away from the court by a
false promise of compromise. How to prove:
2. Acts which purposely keeps the unsuccessful party ignorant of the suit. A motion for new trial shall be proved in the manner provided for proof of motion.
3. An act where the attorney fraudulently pretends to represent a party
and connives at his defeat, or corruptly sells out his client’s interest

© Gironella – Macadatar 2017 | Remedies against Judgment and Final Orders 44


1. First Ground - supported by affidavits of merits which may be rebutted by A Motion for New Trial is considered as pro-forma where:
affidavits and an affidavit supporting the FAME. 1. It is based on the same ground as that raised in a preceding motion for
new trial or reconsideration which has already been denied.
Affidavit of merits:executed by those who have knowledge of FAME. It must be 2. It contains the same arguments and manner of discussion appearing in
under oath. the prior opposition to the motion to dismiss and which motion was
- It recites the nature and character of FAME on which the motion is granted.
based. 3. The new ground alleged in the second motion for new trial already
- It serves as the court’s jurisdictional basis to entertain a petition or existed, was available and could have been alleged in the first motion for
motion new trial which was denied.
4. It is based on the ground of insufficiency of evidence or that the
NOTE: If these grounds were used in a motion to lift order of Default it cannot be judgment is contrary to law but does not specify the supposed defects in
used as a ground for trial de novo where the circumstances are the same. the judgment.
5. It is based on the ground of fraud, mistake or excusable negligence but
does not specify the facts constituting the grounds and/ or is not
2. Second Ground - shall be supported by affidavits of the witnesses by
accompanied by an affidavit of merits. Note that fraud and mistake must
whom such evidence is expected to be given, or by duly authenticated
be alleged with particularity.
documents which are proposed to be introduced in evidence.

NOTE: A party can avail of the remedy of Motion for New Trial even though a
Effect of granting the motion: no new trial de novo, previous proceedings are
Motion for Reconsideration is pending, provided that any grounds for motion for
carried over plus additional evidence.
new trial is present. Ergo, Motion for Reconsideration and Motion for New trial is
- The judgment may either affirm or reverse the previous proceedings
not mutually exclusive.

Note: the recorded evidence taken upon the former trial, insofar as the same is
What shall be the first to be entertained?
material and competent to establish the issues, shall be used at the new trial
- The Motion for New Trial because there is a possibility that the decision
without retaking the same
sought to be reconsidered can be vacated.

Period to resolve the motion: shall be resolved within 30 days from the time it is
Vs. Reopening of civil cases
submitted for resolution.

- Litigated motion
 Second motion for new trial:
- In civil case, it is not a remedy before finality of judgment
General Rule:A motion for new trial shall include all grounds then available - In criminal case, it is a remedy before finality of judgment
- Those not so included shall be deemed waived.
Time to file: Must be filed after the trial but before decision.
- Apply the omnibus motion rule

Who can file: any party


Exception: A second motion for new trial, based on a ground neither existing nor
available when the first motion was made
How: through a motion by a party or motuproprio
Effect of order for partial new trial:
Grounds:
When less than all of the issues are ordered retried, the court may:
1. Either enter a judgment or final order as to the rest, or - Any ground because it is discretionary upon the court.
2. stay the enforcement of such judgment or final order until after the new - In the intent of justice
trial.
Effect if the Motion for Re-opening of Trial is granted:
Remedy against order denying a motion for new trial: - The case is not deemed submitted for decision
- An order denying a motion for new trial is not appealed, the remedy
being an appeal from the judgment or final order. Effect if the Motion for Re-opening of Trial is denied:
- Appeal the decision and assign as one of the error the denial of the
Effect of filing a Motion for New Trial: Motion for Re-opening of trial.
- It suspends the running of the period to appeal, but does not extend the
time within which an appeal must be perfected hence if denied, the A motion for reopening, unlike a motion for new trial, is not specifically mentioned
movant is entitled to fresh period of 15 days to file his appeal from the and prescribed as a remedy by the Rules of Court. There is no specific provision in
receipt of the order denying the Motion for New Trial. the Rules of Court governing motions to reopen. It is albeit a recognized
procedural recourse or device, deriving validity and acceptance from long,
Note: A pro forma motion for new trial or reconsideration shall not toll the established usage.
reglementary period of appeal.
- A scrap paper without legal and binding effect Motion for new trial in
Reopening of a case
civil or criminal actions

© Gironella – Macadatar 2017 | Remedies against Judgment and Final Orders 45


A may be applied for and controlled by no other rule than that of the
granted only upon specific, paramount interests of justice, resting An interlocutory order is not appealable until after the rendition of the judgments
well-defined grounds, set entirely in the sound judicial discretion of on the merits.
forth respectively in Rules a Trial Court; and its concession, or denial,
37 (Section 1) and 121 by said Court in the exercise of that 4. An order disallowing or dismissing an appeal.
(Section 2). discretion will not be reviewed on appeal 5. An order denying a motion to set aside a judgment by consent,
unless a clear abuse thereof is shown. confession or compromise on the ground of fraud, mistake, or duress, or
any other ground vitiating consent.
Appeal 6. An order of execution.
7. A judgment or final order for or against one or more of several parties or
 General Principles is separate claims, counterclaims, cross-claim, and third party
complaints, while the main case is pending, unless the court allows an
Nature of the Right to appeal: appeal therefrom.
- The right to appeal is neither a natural right nor a part of due process. 8. An order dismissing an action without prejudice.
- It is merely a statutory privilege and may be exercised only in the
manner and in accordance with the provisions of law. When motion for reconsideration or new trial a precondition to
- Thus, one who seeks to avail of the right to appeal must comply with the perfection of the appeal
the requirements of the Rules. - cases involving custody of minors
- Failure to do so often leads to the loss of the right to appeal. - Writ of Habeas corpus in relation to the custody of
- The period to appeal is fixed by both statute and procedural rules. BP minors
129, as amended, provides: - Annulment of voidable marriage
- Declaration of absolute nullity of void marriages
Sec. 39. Appeals. The period for appeal from final orders, resolutions, - Legal separation
awards, judgments, or decisions of any court in all these cases shall be
fifteen (15) days counted from the notice of the final order, resolution, Cristobal vs. CA: NO motion for extension of time to file a motion
award, judgment, or decision appealed from. Provided, however, that in for reconsideration or new trial with the MTC, RTC and the CA.
habeas corpus cases, the period for appeal shall be (48) forty-eight hours Such motion may be filed on only in cases pending with the SC as a
from the notice of judgment appealed from. court of last resort which may, in its sound discretion, grant or deny
the extension requested. The illness of a counsel is not a valid
Basic guidelines ground to for asking an extension.
a. No trial de novo shall be made.
b. There can be no new parties; Remedy on matters which are not appealable:
c. There can be no change of theory - The aggrieved party may file the appropriate special civil action under
d. There can be no new matters Rule 65
e. There can be amendments of pleadings to conform to the evidence
submitted before the trial court
Canada vs. All Commodities Marketing Corp., GR No. 146141,
f. The liability of solidarity defendant who did not appeal is not affected
October 17, 2008:
by appeal of solidarity debtor
As a rule, no question will be entertained on appeal unless it has been
g. Appeal by guarantor does not inure to the principal
raised in the court below. Points of law, theories, issues and arguments
h. In ejectment cases, the RTC cannot award to the appellant on his
not brought to the attention of the lower court ordinarily will not be
counterclaim more than the amount of damages beyond the jurisdiction
considered by a reviewing court because they cannot be raised for the
of the MTC
first time at that late stage.
i. The appellate court cannot dismiss the appealed case for failure to
prosecute because the case must be decided on the basis of the record
Exception - Section 8, Rule 51 in essence provides that the court may consider an
error raised on appeal provided the same falls within any of the following
Who may appeal:
categories:
- Only parties to a case can appeal.
1. It is an error that affects the jurisdiction over the subject matter.
2. It is an error that affects the validity of the judgment appealed from.
What do you call the parties on appeal:
3. It is an error which affects the proceedings.
o Appellant - the one who appealed the case.
4. It is an error closely related to or dependent on an assigned error and
o Appellee - the one who responds to the appeal.
properly argued in the brief.
5. It is a plain and clerical error.
When appeal is not applicable:
1. An order denying a motion for new trial or reconsideration
If a judgment is appealed and reverse in favor of the appellant, is the judgment
2. An order denying a petition for relief or any similar motion seeking relief
binding upon a party who did not appeal?
from judgment.
3. An interlocutory order.

© Gironella – Macadatar 2017 | Remedies against Judgment and Final Orders 46


General rule: In the appellate proceedings, the reversal of the judgment on appeal of the judgment. The Supreme Court ruled in one case that this fresh period of
is binding only on the parties in the appealed case and does not affect or inure to appeal is applicable in criminal cases.
the benefit of those who did not join or were not made parties to the appeal.
Yu vs. Samsun Tatad:
Exception: where the interest of those who appealed and those who did not are
interwoven and dependent on each other as to be inseparable such that a reversal Does the fresh period rule apply to appeals in criminal cases?
to one operates as a reversal as to all.
Yes. While Neypes involved the period to appeal in civil cases, the
Remedy if an action was dismissed without prejudice: Court’s pronouncement of a "fresh period" to appeal should equally
- Not appeal but to file another action or move for Motion for apply to the period for appeal in criminal cases under Section 6 of
Reconsideration. Rule 122 of the Revised Rules of Criminal Procedure, for the
following reasons:
Remedy of denial of a Motion for Execution:
- Appeal because the subject matter of the motion is final and executory. First, BP 129, as amended, the substantive law on which the Rules
of Court is based, makes no distinction between the periods to
May an order of execution be appealed? appeal in a civil case and in a criminal case." Ubilex non
General rule: No because it is final. Final and executory judgments cannot be distinguitnecnosdistingueredebemos. When the law makes no
appealed. distinction, the Court also ought not to recognize any distinction.

Exceptions: It can be appealed when- Second, the provisions of Section 3 of Rule 41 of the 1997 Rules of
1. When the terms of the judgment are varied. Civil Procedure and Section 6 of Rule 122 of the Revised Rules of
2. When the terms of the judgment are not clear and there is room for Criminal Procedure, though differently worded, mean exactly the
interpretation. same. There is no substantial difference between the two provisions
insofar as legal results are concerned – the appeal period stops
 Final order vs. Interlocutory Order: running upon the filing of a motion for new trial or reconsideration
and starts to run again upon receipt of the order denying said
Final order Interlocutory order motion for new trial or reconsideration. It was this situation that
disposes of the subject matter in its Does not dispose of a case Neypes addressed in civil cases. No reason exists why this situation
entirety or terminates a particular completely, but leaves in criminal cases cannot be similarly addressed.
proceeding or action leaving nothing something more to be
else to be done but to enforce by adjudicated upon. Third, while the Court did not consider in Neypes the ordinary
execution what has been determined by appeal period in criminal cases under Section 6, Rule 122 of the
the court Revised Rules of Criminal Procedure since it involved a purely civil
The term ―final‖ judgment or order a court order is merely case, it did include Rule 42 of the 1997 Rules of Civil Procedure on
signifies a judgment or an order which interlocutory in character if it petitions for review from the RTCs to the CA, and Rule 45 of the
disposes of the case as to all the parties, leaves substantial 1997 Rules of Civil Procedure governing appeals by certiorari to this
reserving no further questions or proceedings yet to be had in Court, both of which also apply to appeals in criminal cases, as
directions for future determination. connection with the provided by Section 3 of Rule 122 of the Revised Rules of Criminal
controversy Procedure.
it is basically provisional in
its application  MODES OF APPEAL

 Fresh Period Rule o ORDINARY APPEAL

The movant has a fresh period of 15 days from receipt or notice of the order Appeal From Judgment of First Level CourtsRULE 40
denying or dismissing the motion for reconsideration within which to file a notice
of appeal. - An appeal from a judgment or final order of a Municipal Trial Court may
be taken to the Regional Trial Court exercising jurisdiction over the
This new period becomes significant if either a motion for reconsideration or a area to which the former pertains.
motion for new trial has been filed but was denied or dismissed.
Appeal From Judgment of RTC in the Exercise of its Original
Obviously the 15 day period may be availed of only if either motion is filed; Jurisdiction:RULE 41
otherwise, the decision becomes final and executory after the lapse of the original
appeal period provided in Rule 41, as held in the case of Neypes vs. CA [Sept. 14, - An appeal from a judgment or final order of the Regional trial Court,
2005]. exercising original jurisdiction, to the Court of appeals

The Neypes ruling shall not be applied where no motion for new trial or motion for COMMON PROVISIONS:
reconsideration has been filed in which case the 15 day period shall run from notice
© Gironella – Macadatar 2017 | Remedies against Judgment and Final Orders 47
Issues to be raised on appeal: d) order execution pending appeal in accordance with 2 of Rule 39, and
- Questions of fact or mixed questions of fact and law e) allow withdrawal of the appeal.

When to appeal: Efforts to complete the records fail:


- Notice of Appeal: Within 15 days after notice to the appellant of the - he shall indicate in his letter of transmittal the exhibits or transcripts
judgment or final order appealed from. not included in the records being transmitted to the appellate court,
- Record on appeal: within 30 days after notice of the judgment or final - the reasons for their non-transmittal, and
order. - the steps taken or that could be taken to have them available

To whom the Notice of Appeal is addressed: Dismissal of appeal:


- It must be addressed to the other party and not to the clerk of court. When: Prior to the transmittal of the original record or the record on appeal to the
- If addressed to the clerk of court, the court will not entertain the appeal appellate court
and the reglementary period to file an appeal will not be tolled. What: The trial courts may motupropio or on motion dismiss the appeal for
having been taken out of time.
Interruption of the Period to Appeal: by a timely motion for new trial or
reconsideration. Ordinary Appeal Petition for Review
- No motion for extension of time to file a motion for new trial or A matter of right Discretionary
reconsideration shall be allowed. All the records are elevated from No records are elevated unless
the court of origin the court decrees it
Within what period and to whom should the appellant pay the appeal fees: Notice or record on appeal is filed Filed with the CA
- Within the period for taking an appeal with the court of origin
- the appellant shall pay to the clerk of court of the court which rendered As to duration of residual powers: As to duration of residual powers:
the judgment or final order appealed from, Until the records are transmitted Until the CA gives due course
- The full amount of the appellate court docket and other lawful fees. to the appellate court. to the petition.

How to appeal: Residual Jurisdiction of the court:


- The appeal is taken by filing a notice of appeal.
The concept of residual jurisdiction is available at a stage in which the court is
Where to file notice of appeal: normally deemed to have lost jurisdiction over the case or the subject matter
- with the court that rendered the judgment or final order appealed from involved in the appeal. There is no residual jurisdiction to speak of where no
appeal or petition has even been filed.
Contents of the notice of appeal:
1. indicate the parties to the appeal, When:
2. the judgment or final order or part thereof appealed from, and a. Issue orders for the protection and preservation of the rights of the
3. State the material dates showing the timeliness of the appeal. parties which do not involve any matter litigated by the appeal.
b. Approve compromise agreements by parties after judgment has been
Approval of record on appeal: rendered,
If no objection is filed by the appellee within 5 days from receipt of a copy thereof, c. Permit appeals of indigent litigants.
the trial court: d. Order execution pending appeal
1. may approve it as presented or e. Allow withdrawal of appeal.
2. Upon its own motion or at the instance of the appellee, may direct its
amendment by the inclusion of any omitted matters which are deemed o PETITION FOR REVIEW:
essential to the determination of the issue of law or fact involved in the
appeal. Appeal From Judgment of the RTC in the Exercise of its Appellate
Jurisdiction: RULE 42
Time to amend: within ten (10) days from receipt
How appeal taken;
Joint record on appeal: - file a verified petition for review
- Where both parties are appellants, they may file a joint record on appeal - paying at the same time to the clerk of said court the corresponding
within the time fixed by section 3 of this Rule, or that fixed by the court. docket and other lawful fees, depositing the amount of P500.00 for
costs, and
- furnishing the Regional Trial Court and the adverse party with a copy of
Residual Jurisdiction of the Court: the petition.
a) Orders for the protection and preservation of the rights of the parties
which do not involve any matter litigated by the appeal, Where to appeal: with the Court of Appeals
b) approve compromises,
c) permit appeals of indigent litigants, Time for filing: shall be filed and served within 15 days from:

© Gironella – Macadatar 2017 | Remedies against Judgment and Final Orders 48


a) Notice of the decision sought to be reviewed or  within a period of 15 days from notice.
b) of the denial of petitioner's motion for new trial or reconsideration filed
in due time after judgment. The case shall be deemed submitted for decision: upon the filing of the last
pleading or memorandum required by these Rules or by the court itself.
Form and contents:
The petition shall be filed in 7 legible copies, with the original copy intended for Appeal From Judgment of Quasi-Judicial Bodies:RULE 43
the court being indicated as such by the petitioner, and shall:
(a) State the full names of the parties to the case, without impleading the Scope: from judgments or final orders of the:
lower courts or judges thereof either as petitioners or respondents;  Court of Tax Appeals and
(b) Indicate the specific material dates showing that it was filed on time;  any quasi-judicial agency in the exercise of its quasi-judicial functions
(c) set forth concisely a statement of the matters involved, the issues o the Civil Service Commission,
raised, the specification of errors of fact or law, or both, allegedly o Central Board of Assessment Appeals,
committed by the RTC, and the reasons or arguments relied upon for o Securities and Exchange Commission,
the allowance of the appeal; o Office of the President,
(d) be accompanied by clearly legible duplicate originals or true copies of o Land Registration Authority,
the judgments or final orders of both lower courts, certified correct by o Social Security Commission,
the clerk of court of the RTC, the requisite number of plain copies o Civil Aeronautics Board,
thereof and of the pleadings and other material portions of the record o Bureau of Patents,
as would support the allegations of the petition. o Trademarks and Technology Transfer,
o National Electrification Administration,
 There must be a certificate of non-forum shopping o Energy Regulatory Board,
o National Telecommunications Commission,
Effect of failure to comply with requirements: regarding the payment of the o Department of Agrarian Reform under Republic Act No.
docket and other lawful fees, the deposit for costs, proof of service of the petition, 6657,
and the contents of and the documents o Government Service Insurance System,
- sufficient ground for the dismissal thereof o Employees Compensation Commission,
o Agricultural Invention Board,
Comment on the petition: o Insurance Commission,
When to file: within 10 days from notice, o Philippine Atomic Energy Commission,
o Board of Investments,
Dismissal of the Petition; grounds: o Construction Industry Arbitration Commission, and
1. If it finds the same to be patently without merit, o Voluntary arbitrators authorized by law.
2. prosecuted manifestly for delay, or
3. That the questions raised therein are too insubstantial to require Cases not covered: judgments or final orders issued under the Labor Code of the
consideration. Philippines.

Contents of comment: The comment of the respondent shall be filed in 7 legible Where to appeal: to the Court of Appeals
copies, accompanied by certified true copies of such material portions of the record
referred to therein together with other supporting papers and shall Issues to be raised on appeal: questions of fact, of law, or mixed questions of fact
(a) state whether or not he accepts the statement of matters involved in and law.
the petition;
(b) point out such insufficiencies or inaccuracies as he believes exist in Period of appeal: within 15 days from:
petitioner's statement of matters involved but without repetition; and  notice of the award, judgment, final order or resolution, or
(c) state the reasons why the petition should not be given due course. A  from the date of its last publication, if publication is required by law
copy thereof shall be served on the petitioner. for its effectivity, or
 of the denial of petitioner's motion for new trial or reconsideration
When the petition shall be given Due course:
- When the Court of Appeals finds prima facie that the lower court has Motion for reconsideration: Only 1 motion for reconsideration shall be allowed.
committed an error of fact or law that will warrant a reversal or
modification of the appealed decision How appeal taken: by filing a verified petition for review.

Elevation of record: within 15 days from notice, Contents of the petition: The petition for review shall
Whenever the Court of Appeals deems it necessary a) State the full names of the parties to the case, without impleading the court
or agencies either as petitioners or respondents;
Submission for decision: b) Contain a concise statement of the facts and issues involved and the grounds
If the petition is given due course, the Court of Appeals may set the case for: relied upon for the review;
1. oral argument or c) be accompanied by a clearly legible duplicate original or a certified true copy
2. require the parties to submit memoranda of the award, judgment, final order or resolution appealed from, together with

© Gironella – Macadatar 2017 | Remedies against Judgment and Final Orders 49


certified true copies of such material portions of the record referred to therein
and other supporting papers; and Decision of the Office of the President - appeal to the Ca under
d) Contain a sworn certification against forum shopping. Rule 43
e) The petition shall state the specific material dates showing that it was filed
within the period fixed herein. o APPEAL BY CERTIORARIRULE 45

Effect of failure to comply with requirements: sufficient ground for the From what court: from a judgment or final order or resolution of the:
dismissal.  Court of Appeals,
 the Sandiganbayan,
Action on the petition: The Court of Appeals may require the respondent to file a  the Regional Trial Court or
comment on the petition not a motion to dismiss  other courts whenever authorized by law

When to file: within 10 days from notice Filing of petition with Supreme Court: file with the Supreme Court a verified
petition for review on certiorari.
Dismissal of the case:
a) if it finds the same to be patently without merit, Issue: The petition shall raise only questions of law which must be distinctly set
b) prosecuted manifestly for delay, or forth.
c) that the questions raised therein are too unsubstantial to require
consideration. Time for filing; extension: within 15 days from notice of the judgment or final
order or resolution appealed from, or of the denial of the petitioner's motion for
Contents of comment. —The comment shall new trial or reconsideration filed in due time after notice of the judgment.
a) Point out insufficiencies or inaccuracies in petitioner's statement of
facts and issues; and Extension: On motion duly filed and served, with full payment of the docket and
b) State the reasons why the petition should be denied or dismissed. other lawful fees and the deposit for costs before the expiration of the
reglementary period, the Supreme Court may for justifiable reasons grant an
When given Due course.: when the Court of Appeals finds prima facie that the extension of 30 days only within which to file the petition.
court or agency concerned has committed errors of fact or law that would warrant
reversal or modification of the award, judgment, final order or resolution sought to Contents of petition:
be reviewed (a) state the full name of the appealing party as the petitioner and the adverse
party as respondent, without impleading the lower courts or judges thereof
Finding of facts: The findings of fact of the court or agency concerned, when either as petitioners or respondents;
supported by substantial evidence, shall be binding on the Court of Appeals. (b) indicate the material dates showing when notice of the judgment or final
order or resolution subject thereof was received, when a motion for new
Effect of appeal: The appeal shall not stay the award, judgment, final order or trial or reconsideration, if any, was filed and when notice of the denial
resolution sought to be reviewed unless the Court of Appeals shall direct thereof was received;
otherwise upon such terms as it may deem just. (c) set forth concisely a statement of the matters involved, and the reasons or
arguments relied on for the allowance of the petition;
Mode of appeal (d) be accompanied by a clearly legible duplicate original, or a certified true
copy of the judgment or final order or resolution certified by the clerk of
RTC sitting as special agrarian court: court of the court a quo and the requisite number of plain copies thereof,
 petition for review under Rule 42 not through an and such material portions of the record as would support the petition; and
ordinary appeal under Rule 41 (e) contain a sworn certification against forum shopping

RTC sitting as special commercial courts Dismissal or denial of petition: The failure of the petitioner to comply with any of
 corporate rehabilitation and intra corporate controversy the requirements
 To the CA through petition for review under Rule 43
Note: The Supreme Court may on its own initiative deny the petition on the
All appeals from the decisions of the Ombudsman in ground that:
administrative disciplinary cases are taken to the Court of Appeals 1. the appeal is without merit, or
by way of petition for review under Rule 43. 2. is prosecuted manifestly for delay, or
3. that the questions raised therein are too unsubstantial to require
Decision of a voluntary arbitrator - Rule 43 to the CA consideration.

Secretary of Justice - Rule 65 with the CA Nature of the power to review:


 A review is not a matter of right, but of sound judicial discretion
Except: penalty of the offense is reclusion perpetua appeal to the  will be granted only when there are special and important reasons
Office of the President thereof

© Gironella – Macadatar 2017 | Remedies against Judgment and Final Orders 50


The following indicate the character of the reasons which will be considered: Stays the judgment Does not stay the judgment or
(a) When the court a quo has decided a question of substance, not theretofore sought to be appealed order subject of the petition

Effect
determined by the Supreme Court, or has decided it in a way probably not unless enjoined or restrained
in accord with law or with the applicable decisions of the Supreme Court;
or
(b) When the court a quo has so far departed from the accepted and usual The parties are the The tribunal, board, officer
course of judicial proceedings, or so far sanctioned such departure by a original parties with the exercising judicial or quasi-
lower court, as to call for an exercise of the power of supervision. appealing party as the judicial functions is impleaded

Parties
petitioner and the adverse as respondent
Due course; elevation of records: If the petition is given due course, the Supreme party as respondent
Court may require the elevation of the complete record of the case or specified without impleading the
parts thereof within 15 days from notice. lower court or its judge
Filed with the SC Filed with the RTC, CA, SC

Juris
Rule applicable to both civil and criminal cases:
 The mode of appeal prescribed in this Rule shall be applicable to both
civil and criminal cases
 except in criminal cases where the penalty imposed is  Cognate Rules
o death
o reclusion perpetua or o Stay of execution; exception
o life imprisonment.
GR: Judgment is not vacated by appeal, but is merely stayed and may be affirmed,
Q: Can a case decided by the RTC in the exercise of its appellate modified or reversed or findings of facts or conclusions of law may be adopted by
jurisdiction be appealed by way of a petition for review on certiorari reference.
under Rule 45?
Exception: Not applicable to civil cases under the Rules on Summary Procedure
A: No, where a case is decided by the RTC in the exercise of its which provides that the decision of the RTC in civil cases governed by said Rule
appellate jurisdiction, regardless of whether the appellant raises including forcible entry and unlawful detainer cases, shall be immediately
questions of fact, of law or mixed questions of fact and law, the executory without prejudice to a further appeal that maybe taken therefrom.
appeal shall be brought to the CA by filing a petition for review
under Rule 42 (Quezon City v. ABS-CBN Broadcasting o Question of facts vs. question of law
Corporation, GR No. 166408 October 6, 2008).
Question of law Question of fact
vs. petition for review under Rule 65: Exists when there is a doubt or exists when the doubt of
controversy as to what the law is on difference arises as to the
Rule 45 Rule 65 a certain state of facts. truth of falsehood of facts
Mode of appeal which Special civil action; an original One test whether the appellate court can determine the issue raised
seek to reviews final action. without reviewing or evaluating the evidence, in which case it is a
judgments and orders question of law, otherwise it will be a question of fact.
Nature

It may be directed against an Question of law must not involve the


interlocutory order or matters examination of the probative value of
where no appeal may be taken the evidence presented.
from
A continuation of the Not part of the appellate o Notice of appeal vs. record on appeal
appellate process over the process but an independent
original case action Notice of Appeal Record on Appeal
Deemed perfected as to him upon the Required only in Special
filing of the notice of appeal. Proceedings and other cases
Raises question of law Raises question of jurisdiction
If decision is made by the courts of of multiple or separate
Issues

1st level, notice of appeal need not appeals.


state the court to which the appeal is Deemed perfected as to him
being taken (Sec.3, Rule 40) because with respect to the subject
It shall be filed within 15 It shall be filed not later than there is only one court to which it matter thereof upon its
days from notice of 60 days from notice of shall be made – RTC approval. (30 days is the
Regele
Period

judgment or final order judgment, order or resolution period for filing, only the
appealed from sought to be assailed or from If decision is made by the RTC in its court may approve the
denial of MR or MNT original jurisdiction, notice of appeal record on appeal beyond
to the RTC must disclose where that period)

© Gironella – Macadatar 2017 | Remedies against Judgment and Final Orders 51


appeal is to be taken. (Sec 5, rule 41) f) Every record on appeal exceeding 20 pages must contain a subject
index.

o Perfection of appeal; its effect

Period available is 15 days before the Period available is 15 days Perfection of appeal;
judgment becomes final and executor before the judgment - Notice of Appeal:upon the filing of the notice of appeal in due time.
becomes final and executor
- Record on Appeal:upon the approval of the record on appeal filed in due
time.

If required, the appellant has 30 days If required, the appellant


Effects:
to file and serve both notice and has 30 days to file and serve
Notice of appeal - the court loses jurisdiction over the case upon the
record on appeal. both notice and record on
perfection of the appeals
appeal.
Record on appeal - the court loses jurisdiction only over the subject
matter thereof upon the approval of the records on appeal

Except in civil cases decided under the Rule on Summary Procedure, the appeal
When record of appeal is required:
shall stay the judgment or final order unless the Court of Appeals, the law, or these
1. special proceedings and
Rules shall provide otherwise.
2. In other cases of multiple or separate appeals.

The remedy if a party whose notice of appeal is denied by the trial


Republic vs. Nishina, November 15, 2010: record on appeal is not
court, although such notice is filed within the period thereof, is to
necessary in proceedings involving cancellation of birth record and
file a motion for reconsideration is such order, and if the court
change if surname in the civil registry.
denies such motion, to file a petition for certiorari under Rule 65.

Zayco vs. Hinlo, April 16,2008: an order appointing an administrator of a


Failure to pay the full amount of the appellate court docket fee
deceased person's estate is a final determination of the rights of the
and other lawful fees is a ground for the dismissal of the appeal.
parties in connection with the administration, management and
Does appellant's failure to pay automatically result in the
settlement of the decedent' s estate ; hence, it is a final order and
dismissal of the appeal?
thus appealable. In special proceedings, such as appointment of an
administrator, record on appeal is required and is to be filed, along
Not automatic. The dismissal is discretionary on the part of the
with the notice of appeal, within 30 days from notice of the
appellate court. The appellate court may extend the time for the
judgment or final order appealed from.
payment if the appellant can show that there is justifiable reason
like FAMEN or similar supervening casualty, without fault in his
NOTE: no appeal shall be allowed from the appointment of special
part.
administrator. Remedy: certiorari

Duty of clerk of court of the lower court upon perfection of appeal: Within 30
It also includes an appeal from:
days after perfection, it shall be the duty of the clerk of court of the lower court:
1. Order of expropriation in eminent domain proceedings.
2. Judgment for recovery of property or partition with accounting.
(a) To verify the correctness of the original record or the record on appeal, as the
3. Judgment for or against one or more of several defendants leaving the
case may be aid to make certification of its correctness;
action to proceed against the others.
(b) To verify the completeness of the records that will be, transmitted to the
4. Foreclosure of mortgage.
appellate court;
(c) If found to be incomplete, to take such measures as may be required to
Forms and Contents:
complete the records, availing of the authority that he or the court may
a) The full names of all the parties to the proceedings shall be stated in the
exercise for this purpose; and
caption of the record on appeal and
(d) To transmit the records to the appellate court.
b) it shall include the judgment or final order from which the appeal is
taken and,
(2009) The filing of a motion for the reconsideration of the trial
c) in chronological order, copies of only such pleadings, petitions, motions
court’s decision results in the abandonment of a perfected appeal.
and all interlocutory orders as are related to the appealed judgment or
final order for the proper understanding of the issue involved,
SUGGESTED ANSWER:
d) together with such data as will show that the appeal was perfected on
FALSE. The trial court has lost jurisdiction after perfection of the
time.
appeal and so it can no longer entertain a motion for reconsideration.
e) If an issue of fact is to be raised on appeal, the record on appeal shall
include by reference all the evidence, testimonial and documentary,
ALTERNATIVE ANSWER: FALSE, because the appeal may be
taken upon the issue involved.
perfected as to one party but not yet perfected as to the other party

© Gironella – Macadatar 2017 | Remedies against Judgment and Final Orders 52


who may still file a motion for reconsideration without
abandonment of his right of appeal even though the appeal of the SUGGESTED ANSWER: By notice of appeal, within 15 days from
case is perfected already as to the other party. notice of judgment or final order appealed from, to the Court of
Appeals;
(2012) Where and how will you appeal the following:
(b) Judgment of the RTC denying his client’s petition for a writ of habeas data?
(1) An order of execution issued by the RTC. (1%)
SUGGESTED ANSWER: By verified petition for review on certiorari
SUGGESTED ANSWER: A petition for certiorari under Rule 65 under Rule 45, with the modification that appellant may raise
before the Court of Appeals. questions of fact or law or both, within 5 work days from date of
notice of the judgment or final order to the Supreme Court (Sec. 19,
ALTERNATIVE ANSWER: The mode of elevation may be either by A.M. No. 08-1-16-SC).
appeal (writ of error or certiorari), or by a special civil action of
certiorari, prohibition, or mandamus. (Banaga vs. Majaducon cited in (c) Order of a family court denying his client’s petition for habeas corpus in
General Milling Corporation-Independent Labor Union vs. General relation to custody of a minor child?
Milling Corporation, G.R. No. 183122, June 15, 2011, Perez, J.).
SUGGESTED ANSWER: By notice of appeal, within 48 hours from
(2) Judgment of RTC denying a petition for Writ of Amparo. (1%) notice of judgment or final order to the Court of appeals (Sec. 14,
R.A. No. 8369 in relation to Sec. 3, Rule 41, Rules of Court).
SUGGESTED ANSWER: Any party may appeal from the final
judgment or order to the Supreme Court by way of a petition for (d) Order of the RTC denying his client’s petition for certiorari questioning the
review on certiorari under Rule 45 of the Rules of Court. the period Metropolitan Trial Court’s denial of a motion to suspend criminal proceedings?
of appeal shall be five (5) working days from the date of notice of the
adverse judgment, and the appeal may raise questions of fact or law SUGGESTED ANSWER: By notice of appeal, within 15 days from
or both. (sec. 19, Rule on Writ of Amparo, A.M. No. 07-9-12-SC, 25 notice of the final order, to the Court of appeals (Majestrado vs.
September 2007). People, 527 SCRA 125 [2007]).

(3) Judgment of MTC on a land registration case based on its delegated (e) Judgment of the First Division of the Court of Tax Appeals affirming the RTC
jurisdiction. (1%) decision convicting his client for violation of the National Internal Revenue Code?

SUGGESTED ANSWER: The appeal should be filed with the Court SUGGESTED ANSWER:
of Appeals by filing a Notice of Appeal within 15 days from notice of By petition for review filed with the court of Tax Appeals (CTA) en
judgment or final order appealed from. (Sec. 34, Batas PambansaBlg. banc, within 30 days from receipt of the decision or ruling in
129, or the Judiciary Reorganization Act of 1980, as amended by question (Sec. 9 [b], Rule 9, Rev. Rules of CTA).
Republic Act No. 7691, March 25, 1994).
(2008) After receiving the adverse decision rendered against his
(4) A decision of the Court of Tax Appeal's First Division. (1%) client, the defendant, Atty. Sikat duly filed a notice of appeal. For his
part, the plaintiff timely filed a motion for partial new trial to seek an
SUGGESTED ANSWER: The decision of the Court of Tax Appeals increase in the monetary damages awarded. The RTC instead
Division may be appealed to the CTA en banc. The decisions of the rendered an amended decision further reducing the monetary
Court of Tax Appeals are no longer appealable to the Court of awards. Is it necessary for Atty. Sikat to file a second notice of appeal
Appeals. Under the modified appeal procedure, the decision of a after receiving the amended decision?
division of the CTA may be appealed to the CTA en banc. The
decision of the CTA en banc may in turn be directly appealed to the SUGGESTED ANSWER: Yes, it is necessary for Atty. Sikat to file a
Supreme Court by way of a petition for review on certiorari under second notice of appeal after receiving the amended decision. In
Rule 45 on questions of law. (Section 11, R.A. 9282, March 30, 2004). Magdalena Estate vs. Caluag (11 SCRA 333 [1964]), the Court ruled
that a party must re-take an appeal within fifteen [15) days from
(2009) On July 15, 2009, Atty. Manananggol was served copies of receipt of the amended ruling or decision, which stands in place of
numerous unfavorable judgments and orders. On July 29, 2009, he the old decision. It is in effect, a new decision.
filed motions for reconsideration which were denied. He received the
notices of denial of the motions for reconsideration on October 2, Problem: X filed a complaint for collection of sum of money against
2009, a Friday. He immediately informed his clients who, in turn, H and W with the RTC. In their answer, W admitted the load, but
uniformly instructed him to appeal. How, when and where should he H denied liability on the ground that his wife, not being the
pursue the appropriate remedy for each of the following: administrator, had no authority to bind the conjugal partnership. X
filed a motion for partial judgment based on W's admission, which
(a) Judgment of a Municipal Trial Court (MTC) pursuant to its delegated the trial court granted in a partial judgment dated May 14, 1996.
jurisdiction dismissing his client’s application for land registration? Counsel for H and W received a copy of the partial judgment on

© Gironella – Macadatar 2017 | Remedies against Judgment and Final Orders 53


May 21, 1996. Pretrial and trial were held against H. On June 2, 1997, RTC gave due course to the appeal. The CA denied the appeal and
the trial court rendered judgment ordering H to pay the amount of affirmed decision of the RTC. Is the RTC correct in giving due
the loan plus interest. Counsel for H and W received a copy of this course to the appeal? Is the Ca correct in affirming the decision of
judgment on June 6, 1997. In June 19, 1997, H, through counsel, filed the RTC?
a notice of appeal. On June 25, 1997, W, through another counsel,
appealed from both judgments promulgated on May 14, 1996 and Answer: No. The RTC is not correct. The family code provides that
June 2, 1997, by filing her own notice of appeal. The trial court judgment of the court in Summary judicial proceedings is
dismissed W's appeal on the ground that it was filed out of time. Is immediately final and executory. Thus, there is no reglementary
the dismissal correct? When should the period to appeal period within which to perfect an appeal because judgments
commence to run? rendered in Said summary proceedings are immediately final and
executory.
Answer: The partial judgement dated May 14, 1996 was rendered by
the trial court only with respect to one issue. It was, therefore, The CA erred in affirming the decision of the RTC. An appellate
merely interlocutory because it leaves other things for the trial court court acquires no jurisdiction to review a judgement which, by
to do and does not decide with finality the rights and obligations of express provision of law, is immediately final and executory. The
the parties. Being interlocutory, the partial judgement is not CA should have dismissed the appeal outright in that ground.
appealable. It must be appealed together with the judge,net dated
Arjun's 2, 1997. Problem: Because of the failure of the spouses A and L to pay their
loan which was secured by a mortgage of a land, the metropolitan
The period to appeal commence to run on June 6, 1997? When bank foreclosed the real estate mortgage extrajudicially. The
counsel for H and W received a copy of the judgment dated June 2, mortgaged property was sold at the public auction on January 8,
1997. Although W's appeal was filed beyond the 15-day period 1998 to the bank itself as the highest bidder. A certificate of sale was
(reckoned from June 2, 1997), still her husband H filed his notice of executed by the sheriff in favor of the bank on January 14, 1998 and
appeal on June 19, or at least 13 days from June 6. H and W, having was registered with the RD on January 27, 1998. On December 29,
been jointly sued under a common cause of action, the appeal made 1998, the bank wrote to the spouses that the one year redemption
by H inured to the benefit of W. The notice appeal filed by W was a period of the property would expire on January 19, 1999. Instead of
superfluity. Hence, the dismissal of W's appeal is not correct. redeeming the property the spouses filed with the RTC on January
19, 1999 a complaint against the bank and the sheriff for annulment
Problem: Plaintiff filed a complaint for specific performance against of the extrajudicial sale. In their complaint (CC 3454), the spouses
defendant city government with the RTC. In Due time, the alleged that the bank bloated their obligation by including
defendant filed its answer signed by a private lawyer, not the city excessive interest. Charges etc. after the expiration of the one year
legal officer. Plaintiff filed a motion to declare defendant in default redemption period, the bank consolidated its ownership. On July
arguing that the city legal officer is the only authorized officer 23, 1999, the bank filed a petition for writ of possession.
under the LGC. The trial court denied the motion. Plaintiff moved
for reconsideration, but its MR was likewise denied. Plaintiff 1. Does the CC 3454 constitute prejudicial question?
elevated the matter to the CA via a petition for certiorari under Rule
65. The CA dismissed the petition outright because the person who No. A prejudicial question ones into play in a situation where a civil
signed the verification did not appear to be authorized by the action and a criminal action are both pending, and there exists in
petitioner. Petitioner filed a MR, but it was denied. Petitioner filed the civil action an issue that must be preemptive oh resolved before
with the SC a petition for certiorari under Rule 65. Is the petition the criminal action may proceed. In the case, there is no criminal
he proper remedy? action.

A: No, the resolutions of the CA which petitioner seeks to nullify 2. The filing of CC 3454 before he expiration of the
are order of dismissal. An order of dismissal is a final order which is redemption period equivalent to a formal offer to redeem,
a proper subject of an appeal, not certiorari. If what is deign assailed and does it have the effect of preserving their right to
is a decision, final order or resolution of the CA, then appeal to the redeem?
SC is by means of a verified affidavit for review on certiorari under
Rule 45. It is not equivalent to a formal offer to redeem, and it does not have
the effect of preserving their right to redeem. It does not suspend
In cases where appeal is available, certiorari will not prosper even if the period to redeem.
the ground therefore is grave abuse of discretion.
EXCEPT - if the action is one to enforce the repurchase of the
Problem: BL filed with the RTC (FC) a petition for the declaration foreclosed property - has th effect of preserving the rights of the
of the presumptive death of her absent absent. After publication mortgagor to redeemed.
and hearing, the court rendered judgment granting the petition and
declaring the presumptive death of BL's husband. Within 15 days 3. May the court issue the writ of possession
from receipt of the decision, the SolGen filed a notice of appeal. The notwithstanding the pendency of the action for
annulment

© Gironella – Macadatar 2017 | Remedies against Judgment and Final Orders 54


conducted by the bureau of lands. After the survey, the bureau of
Yes. The proceedings in a petition for the issuance of a writ of lands submitted its report, showing that D had encroached on 89
possession. After the lapsed of the redemption period, is summary square meters of P's lot. In due time the RTC rendered judgment in
in nature. The trial court is mandated to issue the writ of possession favor of P, reversing the MTC judgment.
upon the expiration of the period of redemption without the After the judgment become final, D filed an action for annulment of
redemptioner having redeemed the property. judgment with the CA on the ground of extrinsic fraud. He argued
that the order of relocation survey is irregular. He cited section 7
4. If the court issues the writ of possession and the spouses Rule 40 which provides that RTC shall decide the case on the basis
wants to assail the issuance of said writ, what is their of the entire record of the proceedings had in the court of origin and
remedy? such memoranda as are file. Is D correct?

Appeal by writ of error (writ of error simply means ordinary A: No. The conduct of the survey was not instigated by P, but upon
appeal). Assuming that the trial court erred in issuing the writ of the order of the RTC, besides, the parties and their lawyers agreed
possession, it's error is an error of judgment correctible only by to the relocation survey. The relocation survey is a factual issue
ordinary appeal. Rule 65 is not the proper remedy. which is a proper question for the RTC to inquire into. The result of
the survey is not ipso facto binding upon the parties even if they
Herrera vs. Ballos: the MTC dismissed the case for lack of consented to the survey, but only form part of the proofs on which
jurisdiction, and the RTC reversed the dismissal but rendered the RTC may base its decision.
judgment ejecting the defendants from the parcel of land involved,
and condemning them to pay damages and attorney's fees. This is
not correct. In case of reversal, the case shall be remanded to the
MTC for further proceedings.

In case the order of dismissal is affirm: the RTC, if it has jurisdiction


over the subject matter of the action p, shall try the case on the
merits as if the case was originally filed with it.

After a relocation survey, P found that a portion of his lot is


occupied by D. P then filed a case of ejectment against D with the
MTC which, in due time, rendered judgment dismissing the
complaint because, according to it, D did not encroach on the lot. P
appealed the judgment to the RTC. With concurrence of the parties
and their lawyers, the RTC judge ordered a relocation survey to be

SUMMARY:
PERIOD OF APPEAL
IF MR OR MNT WAS
MODE OF APPEAL PERIOD OF APPEAL ISSUES THAT MAY BE RAISED
FILED (Neypes
Doctrine)
Ordinary Appeal (MTC to RTC) Rule 40
a. Notice of Appeal Within 15 days after notice to the appellant of Within 15 days from Questions of fact or mixed questions
the judgment or final order appealed receipt of the order of fact and law.
denying the motion.

b. Record of Appeal Within 30 days after notice of the judgment or


final order

Ordinary Appeal (RTC to CA): Original Jurisdiction Rule 41

a. Notice of Appeal Within 15 days after notice to the appellant of Within 15 days from Questions of fact or of law or mixed
the judgment or final order appealed receipt of the order question of fact and law that has been
denying motion for raised in the court below and is within

© Gironella – Macadatar 2017 | Remedies against Judgment and Final Orders 55


b. Record of Appeal Within 30 days after notice of the judgment or reconsideration or new the issues framed by the parties
final order trial.

Note: appeal in habeas corpus cases shall be


taken within 48 hours from notice of the
judgment or final order appealed from

Petition for Review (RTC to CA) ; Appellate Jurisdiction Rule 42


Within 15 days from notice of the decision to be Within 15 days from Questions of fact, of law, or mixed
reviewed or from the denial of a MR or new receipt of the order questions of fact and law
trial denying motion for
reconsideration or new
Note: The court may grant an additional period trial.
of 15 days provided the extension is sought:
a. Upon proper motion; and
b. Upon payment of the full amount of the
docket and other lawful fees before the
expiration of the reglementary period.

Petition for Review (Quasi- Judicial Bodies to CA) Rule 43


Within 15 days from receipt of judgment or Within 15 days from Questions of fact, of law, or mixed
final order or of last publication receipt of the order questions of fact and law
denying motion for
reconsideration or new
trial.
Petition for Review on Certiorari Rule 45
1. RTC to SC Within 15 days from notice of the judgment, Within 15 days from Only questions of law
final order or resolution appealed from receipt of the order
2. CA to SC denying motion for
Note: The SC may for justifiable reason grant reconsideration or new
3. Sandiganbayan to SC an extension of 30 days only within which to trial
file the petition provided:
4. CTA en banc to SC a. There is a motion for extension of time
duly filed and served;
5. Appeals from a b. There is full payment of the docket and
judgment or final order in other lawful fees and the deposit for costs;
a petition for a writ of and
amparoand writ of habeas c. The motion is filed and served and the
data to the SC payment is made before the expiration of
the reglementary period

months after such judgment or final order was entered, or such proceeding was
After finality of judgment and final orders taken

Relief From Judgment or Final Orders Contents: must be accompanied with affidavits showing the fraud, accident,
mistake, or excusable negligence relied upon, and the facts constituting the
A legal remedy whereby a party seeks to set aside judgment or final order rendered petitioner's good and substantial cause of action or defense, as the case may be.
against him by a court whenever he was unjustly derived of a hearing or was
prevented from taking an appeal because of FAME. Order to file an answer: If the petition is sufficient in form and substance to
- An equitable remedy allowed only in exceptional cases justify relief, the court in which it is filed, shall issue an order requiring the adverse
parties to answer the same.
Time for filing petition: filed within 60 days after the petitioner learns of the
judgment, final order, or other proceeding to be set aside, and not more than 6 Time to file an answer: within 15 days from the receipt thereof

© Gironella – Macadatar 2017 | Remedies against Judgment and Final Orders 56


Preliminary injunction pending proceedings:  Alleged therein with particularity the facts and the law relied upon for
- for the preservation of the rights of the parties, annulment
- upon the filing by the petitioner of a bond in favor of the adverse party,  As well as those supporting the petitioner's good and substantial cause
- conditioned that if the petition is dismissed or the petitioner fails on the of action or defense, as the case may be.
trial of the case upon its merits, he will pay the adverse party all damages  The petitioner shall also submit together with the petition affidavits of
and costs that may be awarded to him by reason of the issuance of such witnesses or documents supporting the cause of action or defense
injunction or the other proceedings following the petition,  Certificate of non-forum shopping
- such injunction shall not operate to discharge or extinguish any lien
which the adverse party may have acquired upon, the property, of the Action by the court:
petitioner.  Should the court find no substantial merit in the petition, the same may
be dismissed outright with specific reasons for such dismissal.
Proceedings after answer is filed:  Should prima facie merit be found in the petition, the same shall be
given due course and summons shall be served on the respondent.
- the court shall hear the petition and
- if after such hearing, it finds that the allegations thereof are not true, the
Procedure: The procedure in ordinary civil cases shall be observed.
petition shall be dismissed;
- but if it finds said allegations to be true, it shall set aside the judgment or
Effect of judgment: A judgment of annulment shall set aside the questioned
final order or other proceeding complained of upon such terms as may be
judgment or final order or resolution and render the same null and void, without
just.
prejudice to the original action being refiled in the proper court.
- However, where the judgment or final order or resolution is set aside on
Procedure where the denial of an appeal is set aside: the lower court shall be
the ground of extrinsic fraud, the court may on motion order the trial
required to give due course to the appeal and to elevate the record of the appealed
court to try the case as if a timely motion for new trial had been granted
case as if a timely and proper appeal had been made.
therein.

Annulment of Judgment
Suspension prescriptive period: The prescriptive period for the refiling of the
aforesaid original action shall be deemed suspended from the filing of such original
Coverage: This Rule shall govern the annulment by the Court of Appeals of
action until the finality of the judgment of annulment.
judgments or final orders and resolutions in civil actions of Regional Trial Courts
- for which the ordinary remedies of new trial, appeal, petition for relief or
Note: However, the prescriptive period shall not be suspended where the
other appropriate remedies are no longer available through no fault of the
extrinsic-fraud is attributable to the plaintiff in the original action.
petitioner.

Relief available: The judgment of annulment may include the award of:
Grounds for annulment:
 Damages
1. extrinsic fraud
 attorney's fees
2. lack of jurisdiction.
 other relief.

Note: Extrinsic fraud shall not be a valid ground if it was availed of, or could have
Already been executed: the court may issue such orders of restitution or other relief as
been availed of, in a motion for new trial or petition for relief. (n)
justice and equity may warrant under the circumstances.

Period for filing action:


 extrinsic fraud - within 4 years from its discovery;
Ways of attacking a final judgment
 lack of jurisdiction - before it is barred by laches or estoppel.
Direct Attack

Where to file:
It is an independent action must be filed to challenge the validity of judgment
whose nullity is not patent on its face
Judgment of RTC Judgment of MTC
Filed with the CA Filed with the RTC
Collateral Attack
Basis – It has exclusive original Basis – RTC as a court of general
jurisdiction over said action under jurisdiction under Sec. 19 (6), BP
It is made in another action to obtain a different relief; an attack on the judgment is
Sec. 9 (2), BP 129 129
made as an incident in said action. This is proper only when the judgment, on its
CA may dismiss the case outright; RTC has no such discretion. It is
face is null and void, as where it is patent that the court which rendered such
it has the discretion on whether or required to consider it as an
judgment has no jurisdiction
not to entertain the petition. ordinary civil action.

What to file: commenced by filing a verified petition


Execution

Contents of petition: Basic Concepts and Doctrines

© Gironella – Macadatar 2017 | Execution 57


- It is a remedy provided by law for the enforcement or satisfaction of a Manner of Enforcing:
final judgment. (a) Against the property of the judgment obligor - to satisfy the judgment,
with interest, out of the real or personal property of such judgment
Distinguish final judgments for purposes of appeal from final judgments for obligor;
purposes of execution: (b) If it be against real or personal property in the hands of personal
representatives, heirs, devisees, legatees, tenants, or trustees of the
Final Judgments for Final Judgments for purposes of judgment obligor, to satisfy the judgment, with interest, out of
purposes of appeal execution such property;
Dispose of, adjudicate, Becomes final and executory by (c) If it be for the sale of real or personal property to sell such property
or determine the right of operation of law. describing it, and apply the proceeds in conformity with the
the parties. judgment, the material parts of which shall be recited in the writ of
Still subject to appeal After lapse of period to appeal and no execution;
appeal was perfected, no further action (d) If it be for the delivery of the possession of real or personal
can be had. property, to deliver the possession of the same, describing it, to the
Execution of judgment Execution of judgment a matter of right. party entitled thereto, and to satisfy any costs, damages, rents, or
not a matter of right. profits covered by the judgment out of the personal property of the
person against whom it was rendered, and if sufficient personal
Exception; as to the rule that only final judgment become executory: property cannot be found, then out of the real property; and
1. An order granting support pendente lite
2. A judgment by an inferior court against the defendant in a forcibly entry NOTE: no appeal may be taken from an order of execution.
and unlawful detainer which is affirmed by the RTC unless the defendant
appeals, files a bond and pays monthly rental Remedy: Certiorari – Rule 65
3. Injunction
4. Receivership After a judgment become final and executory in the Supreme Court, is there a
need to remand the records of the case for purposes of execution:
WRIT OF EXECUTION: - NO. All the law requires is that the appeal be duly perfected and finally
- It is a judicial writ issued to an officer authorizing him to execute the resolved before execution may be applied.
judgment of the court.
Return of writ of execution: The writ of execution shall be returnable to the
Lifetime of the writ: The writ is enforceable within 5 years from the entry of court issuing it immediately after the judgment has been satisfied in part or in full.
judgment
When the judgment must be satisfied: within 30 days.
Portion of the judgment that must be executed:
- Dispositive portion Failure: the officer shall report to the court and state the reason therefor

Exception: Duration of the writ: Such writ shall continue in effect during the period within
1. When there is ambiguity or uncertainty in the dispositive portion which the judgment may be enforced by motion.
2. Where extensive and explicit discussion and settlement of the issue is
found in the body of the decision Report: The officer shall make a report to the court every 30 days on the
proceedings taken thereon until the judgment is satisfied in full, or its effectivity
Address to: the ex officio sheriff not to the judgment obligor expires.

How issued: upon motion Kinds of Execution


- Even if final and immediately executory there must be a motion
MINISTERIAL EXECUTION / Execution as a Matter of Right / of
The writ of execution shall / Contents: Course
(1) issue in the name of the Republic of the Philippines from the court which
granted the motion;  Upon a judgment or order that disposes of the action or proceeding
(2) state the name of the court, the case number and title, the dispositive upon the expiration of the period to appeal therefrom if no appeal has
part of the subject judgment or order; and been duly perfected.
(3) require the sheriff or other proper officer to whom it is directed to
enforce the writ according to its terms, Where to apply:in the court of origin

Note: The motion for execution and the writ of execution must state specifically By whom: on motion of the judgment obligee
the amount of interest, costs, damages, rents, or profits due as of the date of
issuance of the writ, aside from the principal obligation. How issued: Execution shall issue upon motion
 Must comply with the 3 day notice rule, and 10 hearing rule

© Gironella – Macadatar 2017 | Execution 58


anew to the Regional Trial Court.
When issued:
1. The judgment has become final and executory Anama vs. Court of Appeals, GR no. 187021, January 25, 2012:

Note: Once a decision becomes final and executory, it is the ministerial duty of the Argument:
presiding judge to issue a writ of execution except in certain cases, as when Petitioner argues that the respondents failed to substantially
subsequent events would render execution of judgment unjust (Mangahas vs. comply with the rule on notice and hearing when they filed their
Paredes, GR 157866, Feb. 14, 2007). motion for the issuance of a writ of execution with the RTC.

2. Judgment debtor has renounced or waived his right to appeal; Ruling:


3. The period for appeal has lapsed without an appeal having been filed; Elementary is the rule that every motion must contain the
4. Having been filed, the appeal has been resolved and the records of the mandatory requirements of notice and hearing and that there must
case have been returned to the court of origin be proof of service thereof. The Court has consistently held that a
motion that fails to comply with the above requirements is
May the court which rendered the judgment refuse to issue writ of execution: considered a worthless piece of paper which should not be acted
upon. The rule, however, is not absolute. There are motions that can
General Rule: The court cannot refuse execution. be acted upon by the court ex parte if these would not cause
prejudice to the other party. They are not strictly covered by the
Remedy: mandamus rigid requirement of the rules on notice and hearing of motions.

Exception/ when execution shall e denied when execution shall e denied: The motion for execution of the Spouses Co is such kind of motion.
1. When the judgment has already been executed by the voluntary It cannot be denied that the judgment sought to be executed in this
compliance thereof by the parties case had already become final and executory. As such, the Spouses
2. When the judgment has been novated by the parties Co have every right to the issuance of a writ of execution and the
- Such as entering into a compromise RTC has the ministerial duty to enforce the same.
- Allowed even if there is already a judgment
3. When a petition for relief is filed and a preliminary injunction is granted DISCRETIONARY Execution
4. When the judgment sought to be executed is conditional
5. When facts and circumstances transpire which would render execution When:
inequitable or unjust 1. Execution pending appeal;
6. When execution is sought more than 5 years from its entry without the 2. Execution of several, separate or partial judgments
judgment having been revived;
7. When execution is sought against property exempt from execution How Construed:
- Must be strictly construed
When there is novation or compromise agreement after final
judgment and one of the parties did not follow the undertaking in Requisites:
the novation or compromise agreement – the remedy will be file a 1. There must be a motion filed by the prevailing party with notice to the
motion for writ of execution – execute now the final judgment adverse party;
2. There must be a hearing of the motion for discretionary execution;
San Buenaventura vs. Migrino, A.M. No. P-08-2574, January 22, 3. There must be good reasons to justify the discretionary execution; and
2014: the delay in the execution of the judgment could not be 4. The good reasons must be stated in a special order
wholly attributed to the respondent, but also to Acting Presiding
Judge Ongpauco as it concerned judicial orders issued by her. Good reasons:
- That favorable judgment may yield to an empty victory.
It must be pointed out that the subject decision in Civil Case No. - An order for immediate execution of the judgment on the ground that
6798 had already become final and executory. In fact, an entry of the appeal was frivolous and interposed only for delay is a serious error
judgment was already issued by the Supreme Court where the case  The authority to dismiss it is with the appellate court
was elevated. Hence, as such, execution of the said decision should - Filing of a bond by the successful party – not a good reason
have been issued as a matter of right. - Financial distress – not a good reason

Instead of immediately ordering the execution of the final judgment,  Execution of a judgment or final order pending appeal:
Judge Ongpauco allowed the case to drag on through several
resettings of the hearings of the case on such grounds as (1) the How: On motion of the prevailing party with notice to the adverse party
defendant not being around; (2) the records of the case were not yet
in the court’s possession; (3) the granting of the defendant’s motion Where to file:
and manifestation to submit his comment/opposition to plaintiff’s  in the trial court while it has:
motion for execution; (4) the records of the case had been elevated  jurisdiction over the case and

© Gironella – Macadatar 2017 | Execution 59


 is in possession of either the original record or the record on  Real Action – where the property is situated
appeal  Personal Action – where the plaintiff or defendant resides
 After the trial court has lost jurisdiction the motion for execution
pending appeal may be filed in the appellate court. Exception: (through motion after the lapsed of 5 years)
1. Delays in the execution of the judgment were through causes
 Execution of several, separate or partial judgments: attributable to the judgment debtor or when the delay is incurred for his
benefit.
 may be executed under the same terms and conditions as execution of a 2. By agreement
judgment or final order pending appeal
Effect:suspend the running of the prescriptive period to enforce the judgment
Stay of discretionary execution: upon approval by the proper court of a sufficient
supersedeas bond filed by the party against whom it is directed When the 5 and 10 year periods do not apply:
1. Special proceedings – does not prescribed
Effect of Total or Partial Reversal or Annulment of the Executed 2. Judgment for support – obligation is continuing

Judgment
Revival of Judgment:

The trial court may, on motion, issue such orders of restitution or reparation of
 This means that from the date of the finality of judgment, no motion was
damages as equity and justice may warrant under the circumstances.
filed for the execution of said judgment, thus the need for its
enforcement by action.
Q: In a complaint filed by Granger for rescission and damages, the
RTC ruled against JP Latex, defendant. On Aug. 5, 2006, Granger
When to file: The action to revive a judgment must be filed within 10 years from
moved for the execution pending appeal of the decision. Upon
the date of judgment became final because an action to enforce a judgment
receipt of the decision, JP Latex filed a motion for reconsideration
prescribes in 10 years from the finality of the judgment.
(MR). The RTC granted the execution ―pending appeal‖ without
acting on the motion for reconsideration. Is the order of the trial
Nature of the revived judgment: A revived judgment is deemed a new judgment
court correct?
separate and distinct from the original judgment.

A: No. Discretionary execution is allowed only when the period to


How enforced: may also be enforced by motion within 5 years from the date of its
appeal has commenced but before the trial court loses jurisdiction
entry or through an independent action after the lapsed of 5 years
over the case. The period to appeal where a motion for
 thereafter by action before it is barred by the statute of limitations.
reconsideration has been filed commences only upon the receipt of
 Effect: as if perpetual
the order disposing of the MR. The pendency of a MR, therefore,
prevents the running of the period to appeal.
RUFA A. RUBIO vs. LOURDES ALABATA, G.R. No. 203947,
February 26, 2014
The MR filed by JP Latex had not been acted upon by the RTC
before it ruled on the motion for execution ―pending appeal.‖ The
Facts:
pendency of the MR has prevented the period to appeal from even
The prior case before the RTC-43 involved a reconveyance of a parcel
commencing. The period within which a party may move for an
of land in favor of the rightful owners, the heirs of one
execution pending appeal of the RTC’s decision has not yet started.
AgapitoAlagadmo. Petitioners, in instituting the case against
Thus, where there is pending MR, an order of execution pending
respondent, showed their desire and resolve to pursue and take back
appeal is improper and premature. (JP Latex Technology, Inc. v.
what was rightfully theirs. Eventually, they succeeded in obtaining
Ballons Granger Balloons, Inc., et. al., G.R. No. 177121, Mar. 16, 2009)
justice and won back what was theirs. For their sufferings, the trial
court saw it fit to also assess moral damages and exemplary damages
How Final Judgments and Orders are Executed
against respondent.

When the case was elevated by respondent to the CA, the PAO
Modes of execution of judgment:
continued to represent petitioners’ cause. As it was an appealed case,
the matter was referred to, and handled by, SAC-PAO in Manila.
 Execution on Motion: within 5 years from the date of its entry.
For reasons known only to her, the respondent withdrew her appeal,
Where to file: court where the decision was rendered which resulted in the RTC-43 Decision becoming final and
executory. The petitioners, however, never knew of this because
 Execution by Independent Action: if the five year period has elapsed when they followed up the case with PAO-Dumaguete, they were
and before it is barred by statute of limitations informed that the appeal was still pending.

Where to file: RTC – incapable of pecuniary estimation


It appears from the records that a copy of the Entry of Judgment was
Venue: depends whether real action or personal action sent to Atty. Ma. Lourdes Naz, the SAC-PAO lawyer in charge of

© Gironella – Macadatar 2017 | Execution 60


their case, who had resigned. Unfortunately, she failed to inform
petitioners of the said entry of judgment before her resignation in General Rule: An appeal perfected in due time stays the execution of a judgment.
November 1997.
Exceptions: There are judgments which by express provision of law not stayed by
It was only in November 2007, when petitioners actually discovered appeal:
that their victory was already final after their nephew secured a copy 1. Those judgments which by express provision of the rules are
of the entry of judgment from RTC-43. immediately executor and are not stayed by appeal
 injunction,
Ruling:  receivership,
An action for revival of judgment is governed by Article 1144 (3),  accounting and
Article 1152 of the Civil Code and Section 6, Rule 39 of the Rules of  support unless the court rule otherwise.
Court. Thus, “Art. 1144. The following actions must be brought within ten years 2. Those judgments that have become the object of discretionary execution
from the time the right of action accrues: x x (3) Upon a judgment
Defenses available in an action for enforcement:
Article 1152 of the Civil Code states: 1. Prescription;
2. Satisfaction of claim; and
Art. 1152. The period for prescription of actions to demand the fulfillment of 3. Counterclaims
obligations declared by a judgment commences from the time the judgment became
(2009) M was renting an apartment unit in the building owned by
final.”
J. When M failed to pay six months’ rent, J filed an ejectment suit.
The MTC rendered judgement in favor of J, who then filed a motion
To allow a strict application of the rules, however, would result in an
for the issuance of a writ of execution. The MTC issued the writ.
injustice to petitioners considering (1) that respondent decided not
to contest the RTC-43 decision and withdrew her appeal and (2)
(a) How can M stay the execution of the MTC judgment?
that no fault could be attributed to petitioners.

SUGGESTED ANSWER: Execution shall issue immediately upon


No prejudice is caused to respondent because she withdrew her
motion, unless M
appeal. Withdrawing her appeal means that she respected the RTC-
(a) perfects his appeal to the RTC,
43 Decision, which voided the "Declaration of Heirship and Sale,"
(b) files a sufficient supersedeas bond to pay the rents, damages and
dismissed respondent’s counterclaim, and ordered her to reconvey
costs accruing up to the time of the judgment appealed from, and
the entire subject property to petitioners and to pay moral and
(c) deposits monthly with the RTC during the pendency of the
exemplary damages plus the cost of suit. Since the decision became
appeal the amount of rent due from time to time
final and executory, she has been in possession of the property which
rightfully belongs to petitioners. She will continue to hold on to the
(b) M appealed to the RTC, which affirmed the MTC decision. M
property just because of a technicality.
then filed a petition for review with the CA. The CA dismissed the
petition on the ground that the sheriff had already executed the
Due to the peculiarities of this case, the Court, in the exercise of its
MTC decision and had ejected M from the premises, thus rendering
equity jurisdiction, relaxes the rules and decides to allow the action
for the revival of judgment filed by petitioners. the appeal moot and academic. Is the CA correct?

SUGGESTED ANSWER: NO. The CA is not correct. The dismissal


of the appeal is wrong, because the execution of the RTC judgment
and Executory
Decision;Final

Grant / Deny

Grant / Deny
Motion for

Revival of
execution

Judgment
writ of

is only in respect of the eviction of the defendant from the leased


premises. Such execution pending appeal has no effect on the
merits of the ejectment suit which still has to be resolved in the
Feb 1, 2010 Feb 1, 2015  Feb 1, 2015  (*) pending appeal. Rule 70, Sec. 21 of the Rules provides that the RTC
Feb 1, 2010 Feb 2, 2015  Feb 2, 2015  judgment against the defendant shall be immediately executor,
Feb 1, 2010 Jan 20, 2014  Feb 1, 2020  ―without prejudice to a further appeal‖ that may be taken therefrom
Feb 1, 2010 Feb 1, 2020  Feb 2, 2020 (**)
*no cause of action yet –premature Execution in Case of Death of Party
**stature of limitation – extinguishes the right
In case of the death of the judgment obligee: upon the application of his:
May the period to execute the judgment be stayed? Yes:  executor or
1. by agreement of the parties;  administrator, or
2. by injunction; or  successor in interest;
3. by taking an appeal or writ of error.
In case of the death of the judgment obligor: against his executor or
What is the effect of an appeal to the execution of the judgment? administrator or successor in interest, if:

© Gironella – Macadatar 2017 | Execution 61


a. the judgment be for the recovery of real or personal property, or
b. the enforcement of a lien thereon.  By demanding from the judgment obligor the immediate payment of the
full amount stated in the writ of execution and all lawful fees.
In case of the death of the judgment obligor, after execution is actually levied
upon any of his property: The judgment obligor shall pay in:
 the same may be sold for the satisfaction of the judgment obligation,  cash,
 The officer making the sale shall account to the corresponding executor  certified bank check payable to the judgment obligee, or
or administrator for any surplus in his hands.  any other form of payment acceptable to the judgment obligee

(2009) C sued D for collection of a sum of money. During the trial, If the judgment obligee or his authorized representative is not present to
but after the presentation of plaintiff’s evidence, D died. Atty. Cruz, receive payment: the judgment obligor shall deliver the aforesaid payment to the
D’s counsel, then filed a motion to dismiss the action on the ground executing sheriff – turnover it to the clerk of court or if not practicable, deposit
of his client’s death. The court denied the motion to dismiss and, said amounts to a fiduciary account in the nearest government depository bank of
instead, directed counsel to furnish the court with the names and the RTC of the locality.
addresses of D’s heirs and ordered That the designated
administrator of D’s estate be substituted as representative party. (b) Satisfaction by levy / Execution Sale
After trial, the court rendered judgment in favor of C. When the
decision had become final and executory, C moved for the issuance Levy: It is the act by which an officer sets apart or appropriates a part of the whole
of a writ of execution against D’s estate to enforce his judgment of the property of the judgment debtor for purposes of the execution sale.
claim. The court issued the writ of execution. Was the court’s
issuance of the writ of execution proper? Explain. Resorted when: upon demand, the judgment obligor cannot pay the whole
amount in cash, certified bank checks or any other mode of payment acceptable to
SUGGESTED ANSWER: No, the issuance of a writ of execution by the judgment creditor.
the court is not proper and is in excess of jurisdiction, since the
judgment obligor is already dead when the writ was issued. The Option of the Judgment obligor: to immediately choose which property or part
judgment for money may only be enforced against the estate of the thereof may be levied upon, sufficient to satisfy the judgment.
deceased defendant in the probate proceedings, by way of a claim
filed with the probate court. C should enforce that judgment in his If the judgment obligor does not exercise the option:
favor in the settlement proceedings of the estate of D as a money  the officer shall first levy on the personal properties, if any
claim in accordance with the Rule 86 or Rule 88 as the case may be.  then on the real properties if the personal properties are insufficient to
answer for the judgment.
Grounds to Quash Writ of Execution
Note: The sheriff shall sell only a sufficient portion of the personal or real property
of the judgment obligor which has been levied upon.
1. When the writ of execution varies the judgment;
2. When there has been a change in the situation of the parties making the
Notice of sale of property on execution: Before the sale of property on execution,
execution inequitable or unjust;
notice thereof must be given as follows:
3. When execution is sought to be enforced against a property exempt from
execution;
(a) Perishable property, by posting written notice of the time and place of the
4. When it appears that the controversy has never been submitted to the
sale in 3 public places
judgment of the court;
5. When the terms of the judgment are not clear enough and there remains
Place of posting: Preferably in conspicuous areas of the:
room for interpretation thereof;
 municipal or city hall
6. When it appears that the writ of execution has been improvidently
issued;  post office
7. When it appears that the writ of execution is defective in substance, or is  public market in the municipality or city where the sale is to take place,
issued against the wrong party, or that the judgment debt has been paid
or otherwise satisfied or the writ is issued without authority Time: For such time as may be reasonable, considering the character and condition
of the property;

Specific Rules
(b) Other personal property, by posting a similar notice in the 3 public places
above-mentioned for not less than 5 days;
Execution of judgments for money:

(c) Real property, by posting for 20 days in the 3 public places abovementioned a
1. Immediate payment on demand
similar notice particularly
2. Satisfaction by levy
3. Garnishment
Assessed value of the property exceeds P50,000: by publishing a copy of the
notice once a week 2 consecutive weeks in one newspaper selected by raffle,
(a) Immediate payment on demand: whether in English, Filipino, or any major regional language published, edited and

© Gironella – Macadatar 2017 | Execution 62


circulated or, in the absence thereof, having general circulation in the province or 2. If desired, execute and deliver to him a certificate of sale.
city;
Note: The sale conveys to the purchaser all the rights which the judgment obligor
Note:In all cases, written notice of the sale shall be given to the judgment obligor, at had in such property as of the date of the levy on execution or preliminary
least 3 days before the sale attachment.

Contents of the Notice: Conveyance to purchaser of personal property not capable of manual
1. Description of the Property delivery: the officer making the sale must:
2. the place where the property is to be sold - may be agreed upon by the  Execute and deliver to the purchaser a certificate of sale.
parties
Note: Such certificate conveys to the purchaser all the rights which the judgment
If no agreement: obligor had in such property as of the date of the levy on execution or preliminary
 Not capable of manual delivery: office of the clerk of court of the RTC or attachment.
the MTC which issued the writ of or which was designated by the
appellate court. Conveyance of real property; Upon a sale of real property, the officer must give to
 Personal property capable of manual delivery: the sale shall be held in the the purchaser a certificate of sale containing:
place where the property is located.
(a) A particular description of the real property sold;
3. date (b) The price paid for each distinct lot or parcel;
4. Exact time of the sale which should not be earlier than nine o'clock in the (c) The whole price paid by him;
morning and not later than two o'clock in the afternoon. (d) A statement that the right of redemption expires 1 year from the date of the
registration of the certificate of sale.
HOW PROPERTY SOLD ON EXECUTION
Registration: Such certificate must be registered in the registry of deeds of the
All sales of property under execution must be made at public auction, to the highest place where the property is situated.
bidder, to start at the exact time fixed in the notice.
Duty of the Sheriff:
NOTE: After sufficient property has been sold to satisfy the execution, no more 1. file with the Register of Deeds a copy of the order, description of the
shall be sold attached property and notice of attachment
2. Leaving with the occupant of the property copy of the same order,
When there is excess property: it shall be promptly delivered to the judgment description and notice.
obligor or his authorized representative, unless otherwise directed by the judgment
or order of the court. Certificate of sale where property claimed by third person: the certificate of
sale to be issued by the sheriff shall make express mention of the existence of such
Who may direct manner and order of sale: The judgment obligor, if present at the third-party claim.
sale, may direct the order in which property, real or personal shall be sold, when
such property consists of several known lots or parcels which can be sold to REDEMPTION:
advantage separately.
Who may redeem real property so sold:
Prohibition: Neither the officer conducting the execution sale, nor his deputies, can
become a purchaser, nor be interested directly or indirectly in any purchase at such a. The judgment obligor; or his successor in interest in the whole or any part of
sale. the property;
b. Redemptioner: A creditor having a lien by virtue of an attachment, judgment
Refusal of purchaser to pay: the officer may again sell the property to the highest or mortgage on the property sold, or on some part thereof, subsequent to the
bidder and shall not be responsible for any loss occasioned thereby; lien under which the property was sold.

Liability of the refusing purchaser: pay into the court the amount of such loss, When to redeem: may redeem the property at any time within 1 year from the
with costs, and may punish him for contempt if he disobeys the order date of the registration of the certificate of sale
 The amount of such payment shall be for the benefit of the person
entitled to the proceeds of the execution How to redeem: by paying the purchaser the:
1. amount of his purchase
Judgment obligee as purchaser (alone): he need not pay the amount of the bid if it 2. with the per centum per month interest thereon in addition, up to the
does not exceed the amount of his judgment. time of redemption
 If it does, he shall pay only the excess. 3. together with the amount of any assessments or taxes which the
purchaser may have paid thereon after purchase
Conveyance to purchaser of personal property capable of manual delivery: 4. Interest on such last named amount at the same rate;
the officer making the sale must:
1. Deliver the property to the purchaser

© Gironella – Macadatar 2017 | Execution 63


5. if the purchaser be also a creditor having a prior lien to that of the  The possession of the property shall be given to the purchaser or last
redemptioner, other than the judgment under which such purchase was redemptioner by the same officer unless a third party adversely to the
made, the amount of such other lien, with interest. judgment obligor.

Note: in case redeem by a redemptioner: Property so redeemed may again be Recovery of price if sale not effective:
redeemed within 60 days after the last redemption
Instances: If the purchaser of real property sold on execution, or his successor in
Notice to be given: Written notice of any redemption must be given to the officer interest, fails to recover the possession thereof, or is evicted therefrom, in
who made the sale and a duplicate filed with the registry of deeds of the place consequence of:
1. irregularities in the proceedings concerning the sale, or
Effect of redemption by judgment obligor: If the judgment obligor redeems he 2. because the judgment has been reversed or set aside, or
must make the same payments 3. because the property sold was exempt from execution, or
 Whereupon, no further redemption shall be allowed and he is restored to 4. because a third person has vindicated his claim to the property
his estate.
Remedy:
Duty of the person to whom the redemption payment is made: must execute and (1) he may on motion in the same action or in a separate action recover from
deliver to him a certificate of redemption acknowledged before a notary public or the judgment obligee the price paid, with interest, or so much thereof as
other officer authorized to take acknowledgments of conveyances of real property. has not been delivered to the judgment obligor,
(2) he may, on motion, have the original judgment revived in his name for
Where to file the certificate: filed and recorded in the registry of deeds of the place the whole price with interest, or so much thereof as has been delivered
in which the property is situated and the registrar of deeds must note the record to the judgment obligor.
thereof on the margin of the record of the certificate of sale.
Effect of the revived judgment: the same force and effect as an original judgment
To whom payments on redemption made: may be made to the: would have as of the date of the revival and no more.
 purchaser or
 redemptioner, or If after the period of redemption the judgment obligor or any person authorized to
 to the officer who made the sale. possess the property refuse to vacate the premises – the remedy of the higher
bidder or purchaser is to file an ejectment case.
Proof required of redemptioner:
 copy of the judgment or final order under which he claims the right to (c) Garnishment of debts and credits
redeem, certified by the clerk of the court wherein the judgment or final
order is entered Garnishment: It is the act of appropriation by the court when the property of the
 if he redeems upon a mortgage or other lien, a memorandum of the record debtor is in the hands of third persons.
thereof, certified by the registrar of deeds, or an original or certified copy
of any assignment necessary to establish his claim; Note: The garnishee or the third person who is in the possession of the property of
 an affidavit executed by him or his agent, showing the amount then the judgment debtor is deemed a forced intervenor.
actually due on the lien.
Attachment Garnishment
Manner of using premises pending redemption; a person in possession of the Refers to corporeal Refers to money, stocks, credits and other
property at the time of the sale, or entitled to possession afterwards, during the property in the incorporeal property which belong to the
period allowed for redemption, to continue to use it in the same manner in which it possession of the judgment debtor but is in the possession
was previously used, or to use it in the ordinary course of husbandry; or to make the judgment debtor. or under the control of a third person.
necessary repairs to buildings thereon while he occupies the property.
Levy shall be made by serving notice upon the person owing such debts or having
Waste restrained: Until the expiration of the time allowed for redemption, the in his possession or control such credits to which the judgment obligor is entitled.
court may, as in other proper cases, restrain the commission of waste on the
property by injunction, on the application of the purchaser or the judgment obligee, Duty of the Garnishee:
with or without notice;  Make a written report to the court within 5 days from service of the
notice of garnishment stating whether or not the judgment obligor has
Rents, earnings and income of property pending redemption: shall belong to the sufficient funds or credits to satisfy the amount of the judgment.
judgment obligor until the expiration of his period of redemption.  If not, the report shall state how much funds or credits the garnishee
holds for the judgment obligor.
IN case of no redemption: the purchaser is entitled to a conveyance and possession
of the property. Delivery of the garnished amount: shall be delivered directly to the judgment
 the purchaser or redemptioner shall be substituted to and acquire all the obligee within 10 working days from service of notice on said garnishee requiring
rights, title, interest and claim of the judgment obligor to the property as such delivery
of the time of the levy.  except the lawful fees which shall be paid directly to the court.

© Gironella – Macadatar 2017 | Execution 64


Two or more garnishees holding deposits or credits sufficient to satisfy the Failure to comply: the officer shall oust all such persons therefrom:
judgment: the judgment obligor, if available, shall have the right to indicate the  with the assistance, if necessary, of appropriate peace officers,
garnishee or garnishees who shall be required to deliver the amount due, otherwise,  employing such means as may be reasonably necessary to retake
the choice shall be made by the judgment obligee. possession,
 place the judgment obligee in possession of such property.
Q: The writ of execution was returned unsatisfied. The judgment
obligee subsequently received information that a bank holds a Any costs, damages, rents or profits awarded by the judgment shall be satisfied in
substantial deposit belonging to the judgment obligor. If the bank the same manner as a judgment for money.
denies holding the deposit in the name of the judgment obligor but
your client's informant is certain that the deposit belongs to the Removal of improvements on property subject of execution; Special Order:
judgment obligor under an assumed name, what is your remedy to
reach the deposit?  litigable motion

A: A motion may be filed for a court order requiring the proper bank Who files: issued upon motion of the judgment obligee
officer to appear in court for examination under oath as to such bank
deposit, and subsequently move for a court order authorizing the When: after the hearing and after the former has failed to remove the same within
filing of an action against such bank for the recovery of the judgment a reasonable time fixed by the court.
obligor’s deposit/interest therein and to forbid a transfer or other
disposition of such deposit/interest within 120 days from notice of When granted: a writ of demolition shall be issued
the order (Secs. 37 and 43).(2008 Bar Question)
The party fails to comply within the time specified: the court may direct the act
Execution of judgments for specific act: to be done at the cost of the disobedient party by some other person appointed by
the court and the act when so done shall have like effect as if done by the party.
Judgments for
Manner of Execution
Specific Act Execution of special judgments:
Conveyance, Court can appoint some other person at the
delivery of deeds, expense of the disobedient party and the  It is a judgment that can be complied with only by the obligor himself.
or other specific act done shall have the same effect as if the  It requires the performance of any other act other than payment of
acts, vesting title. required party performed it. money, or the sale or delivery of real or personal property.
Sale of real and Sell such property and apply the proceeds
personal property in conformity with the judgment. Failure to comply: punishable by contempt by imprisonment.
If the party refuses to deliver, a writ of
execution directing the sheriff to cause the Effect of judgments or final orders:
defendant to vacate is in the nature of a
haberefaciaspossesionemand authorizes the In case of a judgment or final order against a:
Delivery or sheriff to break open the premises where specific thing
the judgment or final order is
restitution of real there is no occupant therein. the administration of the estate
conclusive upon the title to
property of a deceased person
the thing, the will or
If party refuses to vacate property, remedy is not in respect to the personal,
administration or the
political, or legal condition or
contempt. The sheriff must oust the party. condition, status or
status of a particular person or
But if demolition is involved, there must be relationship of the person
his relationship to another
a special order.
in respect to the probate of a will shall only be prima facie
Removal of General Rule: the officer shall not destroy,
or granting of letters of evidence of the death of the
improvements on demolish or remove said improvements
administration testator or intestate
property subject of
execution Exception: upon special order of the court
In other cases
Delivery of The officer shall take possession and deliver
personal property to the party entitled thereto. with respect to the matter conclusive between the parties
directly adjudged or as to any and their successors in interest, by
other matter that could have title subsequent to the
Delivery or restitution of real property:
been missed in relation commencement of the action or
thereto special proceeding, litigating for
The officer shall demand of the person against whom the judgment for the delivery
the same thing and under the same
or restitution of real property is rendered
title and in the same capacity
All persons claiming rights under him to peaceably vacate the property within 3
working days, and restore possession thereof to the judgment obligee Can a foreign judgment be enforce in the Philippine

© Gironella – Macadatar 2017 | Execution 65


 being a member of the family of nation and because of committee and The following property, and no other, shall be exempt from execution:
provided that the foreign tribunal accords the same privilege , yes it can
be enforce in this jurisdiction (a) The judgment obligor's family home as provided by law, or the homestead
 Through an action of enforcement of foreign judgement in which he resides, and land necessarily used in connection therewith;
 It is a special proceeding case (b) Ordinary tools and implements personally used by him in his trade,
 But the defendant in the action can assail the foreign judgment employment, or livelihood;
(c) Three horses, or three cows, or three carabaos, or other beasts of burden,
Effect of foreign judgments or final orders: such as the judgment obligor may select necessarily used by him in his
ordinary occupation;
(a) upon a specific thing:conclusive upon the title to the thing (d) His necessary clothing and articles for ordinary personal use, excluding
jewelry;
BUT: it can be Assail based on the grounds to repel foreign judgments (e) Household furniture and utensils necessary for housekeeping, and used for
 it is in rem that purpose by the judgment obligor and his family, such as the judgment
obligor may select, of a value not exceeding one hundred thousand pesos;
(b) Against a person: presumptive evidence of a right as between the parties and (f) Provisions for individual or family use sufficient for four months;
their successors in interest by a subsequent title (g) The professional libraries and equipment of judges, lawyers, physicians,
 It is in personam pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other
professionals, not exceeding three hundred thousand pesos in value;
Grounds for repelling foreign judgment: (h) One fishing boat and accessories not exceeding the total value of one
 want of jurisdiction hundred thousand pesos owned by a fisherman and by the lawful use of
 want of notice to the party, which he earns his livelihood;
 collusion (i) So much of the salaries, wages, or earnings of the judgment obligor for his
 fraud personal services within the four months preceding the levy as are
 clear mistake of law or fact. necessary for the support of his family;
(j) Lettered gravestones;
(k) Monies, benefits, privileges, or annuities accruing or in any manner
Can a foreign arbitral award be enforced in the Philippines under those rules?
growing out of any life insurance;
Explain briefly
(l) The right to receive legal support, or money or property obtained as such
support, or any pension or gratuity from the Government;
SUGGESTED ANSWER: No, a foreign arbitral award cannot be
(m) Properties specially exempted by law.
enforced in the Philippines under the rules on recognition and
enforcement of foreign judgments. A foreign arbitral award is not a
foreign judgment, and pursuant to the Alternative Dispute
Provisional Remedies
Resolution Act of 2004, in relation to 1958 New York Convention
on the Recognition and Enforcement of Foreign Arbitral Awards, Concept and Purpose
the recognition and enforcement of the foreign arbitral awards shall
be in accordance with the rules of procedure to be promulgated by Provisional Remedies:are writs and processes which are not main actions and are
the Supreme Court. At present, the Supreme Court is yet to dependent for their application upon the existence of a principal action.
promulgate rules of procedure on the subject matter.
Nature:
How about a global injunction issued by a foreign court to prevent dissipation of  provisional means temporary, preliminary or tentative
funds against a defendant therein who has assets in the Philippines? Explain  Not causes of action in themselves but merely adjuncts to a main suit
briefly.  Availed during the pendency of an action

SUGGESTED ANSWER: Example: support pendente lite, main case may be support, annulment of marriage
Yes, a global injunction issued by a foreign court to prevent when there are children that are affected
dissipation of funds against a defendant who has assets in the
Philippines may be enforced in our jurisdiction, subject to our Purposes:
procedural laws. As a general rule, no sovereign is bound to give 1. To preserve or protect the parties rights and interest while the main
effect within its dominion to a judgment or order of a tribunal of action is pending
another country. However, under the rules of comity, utility and 2. To secure the judgment
convenience, nations have established a usage among civilized 3. To preserve the status quo
states by which final judgments of foreign courts of competent 4. To preserve the subject matter of the action
jurisdiction are reciprocally respected and rendered efficacious
under certain conditions that may vary in different countries Court which has the jurisdiction:
- the court which has jurisdiction of the main action
Properties Exempt from Execution
Kinds

© Gironella – Macadatar 2017 | Provisional Remedies 66


1. Preliminary attachment Nature:
2. Preliminary injunction  proceeding in rem
3. Receivership  It is substantially a writ of execution except that it emanates at the
4. Replevin beginning
5. Support pendent lite
Basic purpose: to secure the outcome of the trial, the satisfaction of a pecuniary
The list is not exclusive obligation by virtue of a contract or law or some crime.
 include Rule 127
Distinguish Preliminary attachment from Final attachment
Common Requirements Preliminary Attachment (Rule Final Attachment (Rule 39)
57)
1. There is immediacy for the grant of the provisional remedy It is an auxiliary remedy to give It is a means for the execution
2. Merely temporary security for a judgment still to be of a final judgment.
3. All the remedies requires supporting affidavits rendered.
4. Posting of a bond - to protect the defendant or against whom the There is no sale because the It should always be
provisional remedy is directed against decision has not yet been accompanied by a sale at public
rendered. auction.
Deposit as Provisional Remedy Resorted to at the Available after the judgment in
commencement of the action or the main action had become
DAVID REYES vs. JOSE LIM, G.R. No. 134241. August 11, 2003 at any time before the entry of executory, and for the
judgment, for the temporary satisfaction of said judgment.
Facts: in an action for specific performance and nullification of sale seizure of the property of the
and title plus damages the buyer move that the seller be ordered to adverse party
deposit with the cashier of the trial court the 10M down payment The proceeds of the sale, in cases The proceeds of the sale are
on the land paid by the buyer to prevent the disposition of the allowed, are in custodial egis turned over to the attaching
amount pending resolution of the case creditor

Argument: How construed: strictly against the applicant


Reyes points out that deposit is not among the provisional remedies
enumerated in the Rules of Civil Procedure. Reyes stresses the Classes of attachment
enumeration in the Rules is exclusive. 1. Preliminary attachment - issued upon institution of action which can be
dissolved anytime
Ruling: 2. Garnishment - plaintiff seeks to subject to his claims properties of the
The trial court in the exercise of its equity jurisdiction may validly debtor in the hands of a stranger
order the deposit of the P10 million down payment in court. The
purpose of the exercise of equity jurisdiction in this case is to The court acquire jurisdiction over the garnishee:by service upon him of the
prevent unjust enrichment and to ensure restitution. writ if garnishment

On balance, it is unreasonable and unjust for Reyes to object to the 3. Levy on execution - issued after trial and final judgment to satisfy an
deposit of the P10 million down payment. The application of equity obligation
always involves a balancing of the equities in a particular case, a
matter addressed to the sound discretion of the court. Three stages in attachment
1. Order granting the application
Thus, a court may not permit a seller to retain, pendente lite, money - there is no need of jurisdiction over the person of the
paid by a buyer if the seller himself seeks rescission of the sale defendant
because he has subsequently sold the same property to another
- The issuance is ex parte
buyer.

2. Issuance of the writ


Note: the Rules of Court is not an act of the legislature but under
the Rule Making power of the Supreme Court. Thus the supreme 3. Implementation
court may validly include deposit as one of the provisional remedies
- the law requires that the court must have jurisdiction
- abide the rule on prior or contemporaneous service of
Preliminary Attachment summons

A plaintiff or any proper party may have the property of the adverse party attached The rule will not apply if the purpose of the PA is to acquire
as security for the satisfaction of any judgment that may be recovered jurisdiction over the person of the defendant – there must be

© Gironella – Macadatar 2017 | Provisional Remedies 67


publication 1. may be issued either ex parte or
2. upon motion with notice and hearing

Special function
Q: What is the rationale for allowing the ex parte issuance of a writ
 to acquire jurisdiction over the person of the defendant
of preliminary attatchment?
 Therefore effectively converting the action to personam
to In rem A: An ex parte issuance of the writ is intended to preempt any
possible disposition of property by the adverse property to the
Attachment vs. Garnishment: detriment of the attaching creditor and thus defeat the very purpose
Attachment Garnishment of attachment
Only two parties There are three parties
Officer takes actual possession No actual seizure of property Note: while a writ of attachment may be issued ex parte, a motion to quash the
of the property and a specific and no specific lien is acquired writ may not be granted without reasonable notice to the applicant
lien is acquired - there must be a hearing
Directed against tangibles Usually directed to intangibles
Who issues:
When to file: At the commencement of the action or at any time before entry of 1. The judge of any court in which the action is pending
judgment 2. A Justice of the Court of Appeals
3. A Justice of the Supreme Court
Who may apply: a plaintiff or any proper party
When not issued:
Grounds upon which attachment may issue: 1. party makes deposit or gives a bond

(a) In an action for the recovery of a specified amount of money or damages Amount:equal to that fixed in the order or the value of the property to be attached
as stated by the applicant, exclusive of costs
Exception:
- other than moral and exemplary, on a cause of action arising from law, 2. An action for moral and exemplary damages
contract, quasi-contract, delict or quasi-delict 3. When the indebtedness is secured, EXCEPT
- against a party who is about to depart from the Philippines with intent to a. The plaintiff abandons his security and brings an ordinary
defraud his creditors; action for the recovery of the debt
b. There is foreclosure and the creditor shows by affidavit that
(b) In an action for money or property embezzled or fraudulently misapplied or the proceeds from the sale of the property of the debtor
converted to his own use by a public officer, or an officer of a corporation, or would not be sufficient to answer the obligation
an attorney, factor, broker, agent, or clerk, in the course of his employment as
such, or by any other person in a fiduciary capacity, or for a willful violation of Rule on prior contemporaneous jurisdiction:
duty;
The applicant must serve with summons, the complaint and the affidavit and to
(c) In an action to recover the possession of property unjustly or fraudulently taken, the bond to the defendant
detained or converted, when the property, or any part thereof, has been
concealed, removed, or disposed of to prevent its being found or taken by the Except:
applicant or an authorized person; 1. where the summons cannot be served personally or by substituted
service despite diligent effort
(d) In an action against a party who has been guilty of a fraud in contracting the debt or 2. Defendant is resident of the Philippines temporary absent
incurring the obligation upon which the action is brought, or in the 3. Defendant is non resident
performance thereof; 4. Action is one in rem or quasi in rem

(e) In an action against a party who has removed or disposed of his property, or is Q: Alfred filed an action against Banjo for collection of sum of
about to do so, with intent to defraud his creditors; or money with an ex-parte application for a writ of preliminary
attachment which was granted by the trial court. A notice of
(f) In an action against a party who does not reside and is not found in the garnishment was served by the sheriff upon the bank and summons
Philippines, or on whom summons may be served by publication. was subsequently served upon Banjo. Banjo then filed a motion to
dissolve the writ of preliminary attachment on the ground that the
Note: Insolvency of defendant is not a ground for attachment especially when court did not acquire jurisdiction over his person as the writ was
defendant has not been shown to have committed any act intended to defraud its served ahead of the summons. Resolve the motion.
creditors
A: The motion should be denied. The fact that the writ of
How issued: preliminary attachment was served ahead of the summons did not

© Gironella – Macadatar 2017 | Provisional Remedies 68


affect the jurisdiction of the court over his person. It makes the writ having in his possession or under his control, such credits or other
unenforceable, however, all that is required is to re-serve the writ. personal property, or with his agent, a copy of the writ, and notice that
(2005 Bar Question) the debts owing by him to the party against whom attachment is issued,
and the credits and other personal property in his possession, or under
Note: Where the writ of preliminary attachment had already been implemented, his control, belonging to said party, are attached in pursuance of such
the subsequent service of summons does not confer a retroactive acquisition of writ;
jurisdiction over her person because the law does not allow for retroactivity of a
belated service. 5. The interest of the party against whom attachment is issued in
property belonging to the estate of the decedent - by serving the
Affidavit of merit: executor or administrator or other personal representative of the
decedent with a copy of the writ and notice that said interest is
An order of attachment shall be granted only when it appears by the affidavit of the attached. A copy of said writ of attachment and of said notice shall also
applicant, or of some other person who personally knows the facts, that: be filed in the office of the clerk of the court in which said estate is being
1. a sufficient cause of action exists, settled and served upon the heir, legatee or devisee concerned.
2. that the case is one of those mentioned in section 1 hereof (Grounds)
3. that there is no other sufficient security for the claim sought to be Procedure when the property sought to be attached is in custodialegis: a copy
enforced by the action, and of the writ of attachment shall be filed with the proper court or quasi-judicial
4. that the amount due to the applicant, or the value of the property the agency, and notice of the attachment served upon the custodian of such property.
possession of which he is entitled to recover, is as much as the sum for
which the order is granted above all legal counterclaims. Other pertinent Rules:

Condition of applicant's bond: The party applying for the order must thereafter Effect of attachment of interests in property belonging to the estate of a
give a bond executed to the adverse party in the amount fixed by the court decedent: shall not impair the powers of the executor, administrator, or other
 conditioned that the latter will pay all the costs which may be adjudged personal representative of the decedent over such property for the purpose of
to the adverse party and all damages which he may sustain by reason of administration.
the attachment, if the court shall finally adjudge that the applicant was
not entitled thereto. Examination of party whose property is attached and persons indebted to him
or controlling his property; delivery of property to sheriff: may be required to
Manner of attaching property: The sheriff enforcing the writ shall without delay attend before the court in which the action is pending, or before a commissioner
and with all reasonable diligence attach, to await judgment and execution in the appointed by the court, and be examined on oath respecting the same.
action  The party whose property is attached may also be required to attend for
the purpose of giving information respecting his property, and may be
Recording of attached real or personal property: examined on oath.
 The court may, after such examination, order personal property capable
Real and personal property shall be attached by the sheriff executing the writ in the of manual delivery belonging to him, in the possession of the person so
following manner: required to attend before the court, to be delivered to the clerk of the
court or sheriff on such terms as may be just, having reference to any lien
1. Real property, or growing crops thereon, or any interest therein - by thereon or claim against the same, to await the judgment in the action.
filing with the registry of deeds a copy of the order, together with a
description of the property attached, and a notice that it is attached, or When attached property may be sold after levy on attachment and before
that such real property and any interest therein held by or standing in the entry of judgment: the proceeds of such sale to be deposited in court to abide the
name of such other person are attached judgment in the action.
 by leaving a copy of such order, description, and notice with 1. perishable, or
the occupant of the property, if any, or with such other person 2. that the interests of all the parties to the action will be subserved by the
or his agent if found within the province. sale thereof

2. Personal property capable of manual delivery - by taking and safely Properties exempt from attachment
keeping it in his custody, after issuing the corresponding receipt therefor. 1. Family home
2. Title not in the defendant's name unless it is shown that he has
3. Stocks or shares, or an interest in stocks or shares, of any corporation beneficial interest
or company - by leaving with the president or managing agent thereof, a 3. Laborer's wages except debts incurred for food, clothing and medical
copy of the writ, and a notice stating that the stock or interest of the attention
party against whom the attachment is issued is attached in pursuance of
such writ; REMEDIES OF DEFENDANT:

4. Debts and credits, including bank deposits, financial interest,  Discharge of attachment upon giving counter-bond
royalties, commissions and other personal property not capable of
manual delivery - by leaving with the person owing such debts, or

© Gironella – Macadatar 2017 | Provisional Remedies 69


Counterbondsare replacements of the property formerly attached, and just as the the obligation?
latter, may be levied upon after final judgment.
A: NO. This would entail trial on the merits
 With due notice and hearing
Q: After Defendant AAA’s properties were attached, AAA filed a
Amount: in an amount equal to that fixed by the court in the order of attachment, sufficient counterbond and the trial court discharged the
exclusive of costs. attachment. For having suffered substantial prejudice due to the
unwarranted attachment, the trial court rendered a judgment
Purpose:the cash deposit or the counter-bond shall secure the payment of any ordering plaintiff to pay damages since the latter was not entitled to
judgment that the attaching party may recover in the action. the attachment. AAA moved to charge plaintiff’s attachment bond
and such was objected to by the plaintiff and his sureties on the
New order of attachment: Should such counter-bond for any reason be found to be ground that the counter-bond lifted plaintiff’s attachment bond
or become insufficient, and the party furnishing the same fail to file an additional from all liability. Rule on AAA’s motion.
counter-bond
A: AAA’s motion should be granted since the filing of a counterbond
Q:If there is counter bond, the property attached is released. May it be attached does not constitute a waiver of his right to proceed against the
again in the same proceeding? attachment bond. Furthermore, it is a condition in an attachment
bond that applicant will pay all the costs and damages which may
A: NO. It would have the effect of nullifying, without legal ground, be adjudged to the adverse party.
the previous order of discharge
Satisfaction of judgment out of property attached:
Q: When is a motion to discharge or dissolve attachment not a. By paying to the judgment obligee the proceeds of all sales of perishable or
allowed other property sold in pursuance of the order of the court, or so much as shall
be necessary to satisfy the judgment;
A: A motion to discharge or dissolve attachment is not allowed if b. If any balance remains due, by selling so much of the property, real or
the writ of preliminary attachment is issued upon a ground which is personal, as may be necessary to satisfy the balance, if enough for that
at the same time the applicant's cause of action. The reason is that purpose remain in the sheriff's hands, or in those the clerk of the court;
the hearing on such a motion would be tantamount to trial of the c. By collecting from all persons having in their possession credits belonging to
merits of e action. the judgment obligor, or owing debts to the latter at the time of the
attachment of such credits or debts, the amount of such credits and debts as
determined by the court in the action, and stated in the judgment, and paying
 Discharge of attachment on other grounds: it was improperly or
the proceeds of such collection over to the judgment obligee.
irregularly issued or enforced

Balance due collected upon an execution; Whenever the judgment shall have
 That the bond is insufficient.
been paid, the sheriff, upon reasonable demand, must return to the judgment
obligor the attached property remaining in his hands, and any proceeds of the sale
If the attachment is excessive, the discharge shall be limited to the excess.
of the property attached not applied to the judgment.

What should the court do if a motion for reconsideration is filed on the order
Recovery upon the counter-bond: When the judgment has become executory,
granting the issuance of a writ of attachment?
the surety or sureties on any counter-bond given to secure the payment of the
 The MT is considered as a motion for the discharge of the
judgment shall become charged on such counter-bond and bound to pay the
attachment
judgment obligee upon demand the amount due under the judgment, which
 Should have conducted a hearing or require the
amount may be recovered from such surety or sureties after notice and summary
submissions of counter affidavit
hearing in the same action.

Q: May it be lifted on the ground that there was a compromise Disposition of money deposited: it shall be applied under the direction of the
agreement? court to the satisfaction of any judgment rendered in favor of the attaching party

A: NO. An attachment lien continues until the debt is paid, or until When there is balance: it shall be refunded to the depositor or his assignee.
the judgment is satisfied or the attachment is discharged or vacated.
If the judgment is in favor of the party against whom attachment was issued, the
Q: May a writ of preliminary attachment be lifted by a substitute of whole sum deposited must be refunded to him or his assignee.
the attachment property with another property?
Disposition of attached property where judgment is for party against whom
A: NO. Not allowed. Cannot be discharged except as provided by attachment was issued:
law
What to deliver:
Q: May be discharged on the alleged absence of fraud in contracting

© Gironella – Macadatar 2017 | Provisional Remedies 70


a. all the proceeds of sales and money collected or received by the sheriff, A: NO. If not up yet delivered physically to him, they do not belong
under the order of attachment, and to him and still have the character of public funds.
b. all property attached remaining in any such officer's hands

Q:Defendant, whose property was attached, moved for the


Effect: the order of attachment discharged.
discharge of the attachment, contending that the writ of preliminary
attachment was improperly issued by the court for lack of notice to
Claim for damages:
on him on the plaintiff's application for the issuance of the writ.
(1) on account of improper, irregular or excessive attachment
Rule on the motion.

When to file:before the trial or before appeal is perfected or before the judgment A: motion denied. Notice to the defendant for the issuance is not
becomes executory required since it may be issued ex parte

Notice:with due notice to the attaching party and his surety or sureties

When awarded:Such damages may be awarded only after proper hearing and shall be
included in the judgment on the main case. Q: where the writ of preliminary attachment is issued ex parte, may
levy pursuant to such writ be made before the defendant is
(2) If the judgment of the appellate court be favorable to the party against summoned?
whom the attachment was issued
A: no. Implementation of the writ, issued ex parte cannot be made
When to Claim:he must claim damages sustained during the pendency of the appeal validly unless the defendant is first summoned
by filing an application in the appellate court,
 with notice to the party in whose favor the attachment was issued or his
surety or sureties Problem: De Leon was the registered owner of lot no. 10 covered by
 before the judgment of the appellate court becomes executory. TCT 582. In January 1989, de Leon sold the lot to Du under a deed of
conditional sale. On April 28, 1989, de Leon again sold the same lot
G.R. No. 171124 February 13, 2008 to Caliwag. As a result, TCT 582 was cancelled and TCT 2200 was
ALEJANDRO NG WEE vs. MANUEL TANKIANSEE issued in Favor of Caliwag.

For a writ of attachment to issue under this rule, the applicant Meanwhile, Stronghold insurance filed a civil case against Caliwag
must sufficiently show the factual circumstances of the alleged for allegedly defrauding stronghold. The civil action is accompanied
fraud because fraudulent intent cannot be inferred from the by a prayer for writ of preliminary attachment. On August 7, 1990,
debtor's mere non-payment of the debt or failure to comply with the levy on attachment was annotated at the back of TCT 2200.
his obligation. The applicant must then be able to demonstrate that
the debtor has intended to defraud the creditor. On December 21, 1990, Du filed an action against de Leon and
Caliwag for the annulment of the sale by de Leon in favor Caliwag.
Let it be stressed that the provisional remedy of preliminary Du's action is anchored on her deed of conditional sale.
attachment is harsh and rigorous for it exposes the debtor to
humiliation and annoyance. The rules governing its issuance are, On January 3, 1992, Du caused a notice of lies pendent to be
therefore, strictly construed against the applicant, such that if the recorded and annotated on TCT 2200.
requisites for its grant are not shown to be all present, the court
shall refrain from issuing it, for, otherwise, the court which issues it On February 11, 1991, a decision was handed down in the case of
acts in excess of its jurisdiction. Stronghold, ordering Caliwag to pay Stronghold the sum of P8.6
million. On March 12, 1991, a notice of levy on execution was
PNCC vs. HON. AMALIA F. DY, G.R. No. 156887. October 3, 2005 annotated on TCT 2200. The attached property was sold in public
sale. TCT 2200 was cancelled and TCT 6444 was issued in favor of
What was missing and what should have been alleged in the Stronghold.
affidavit of merit was that the disposition of assets was attended by
the so-called badges of fraud, i.e., inadequate consideration, On August 5, 1992, Du was able to secure a favorable judgment
fictitious sale, etc. As it is, the affidavit does not contain sufficient against de Leon and Caliwag. The judgment become final and
concrete and specific grounds to sustain the issuance of the Writ of executory.
Preliminary Attachment. Mere general averments render the writ
defective and the court that ordered its issuance acted with grave Now, Du files an action against stronghold for the cancellation of
abuse of discretion tantamount to excess of jurisdiction. txt 6444. Du claims priority rights over the property by virtue of her
unregistered deed of conditional sale and her notice of lies pendens
Q: May the salary check of a government officer be garnished? recorded on January 3, 1991.

© Gironella – Macadatar 2017 | Provisional Remedies 71


Q: Who between Du and Stronghold will prevail? 1. Prohibitory - which command a person to refrain from performing a
particular act, To preserve status quo
A: Stronghold will prevail because its notice of levy on attachment 2. Mandatory - which commands the performance of some positive act to
was duly recorded. Although Du bought the property first, his deed correct a wrong from the past, To restore status quo
of conditional sale was not registered. The rule is that an
attachment duly annotated on a certificate of title is superior to the Final injunction: it is one included in the judgement as the relief or part of the
right of a prior but unregistered buyer. relief granted as a result of the action.

Although Du had caused a notice of lies pendens to be annotated Important requisites for the issuance of writ of preliminary injunction:
before the lot was sold in a public sale, still Stronghold has a 1. The existence of a clear and unmistakably right that must be protected
superior right ps because the rule is that the subsequent sale of the 2. An urgent and paramount necessity for the writ to prevent serious
property to the attaching creditor retroacts to the date of levy. damage

Preliminary Injunction Irreparable injury: something that is beyond repair or compensation.

A preliminary injunction is an order granted at any stage of an action or proceeding Q: the Spouses Dungog entered into a contract with Gothong lines
prior to the judgment or final order, requiring a party or a court, agency or a person over a parcel of land which included a lot belonging to Filipe, their
to refrain from a particular act or acts. son, who authorized them to sell. Since the delivery of the land,
Gothong constructed a road right of way through Filipe's lot to
Nature of the power: the grant or denial is discretionary upon the trial court maintain access to the other oar les of land delivered to it. Due to its
failure to pay subsequent installments, the spouses threatened to
Basic purpose: is designed to prevent future injury and maintain the status quo, the cancel the contract and deny its passage through Filipe's lot, hence it
last actual, peaceful and uncontested status preceding the controversy. filed a petition for injunction with prayer for a TRO to maintain the
status quo as the spouses were about to close the right of way. Will
Distinguish a main action for injunction from a preliminary injunction the petition prosper?

A: yes, because Gothong lines has a real right to preserve, that is, the
Injunction as an ancillary
Injunction as a main action status quo ante litem Moran where it had access to lots subject if the
remedy
contract through entrance gate on Filipe's property. The issuance of
Exist as an incident to a Independent action
PI is proper when the plaintiff appears entitled to the relief
principal action
demanded in the complaint and its issuance would preserve the
Seeks to preserve the status Seeks a judgment embodying a final
status quo that existed prior to the filing of the case until the issue in
quo or to prevent future injunction, to enjoin the defendant
their respective rights and obligations under the contract is
wrongs in order to preserve from the commission or continuance
determined after the trial.
and protect certain interests of a specific act, or to compel a
or rights during the particular act in violation of the
Who may grant preliminary injunction: granted by the:
pendency of the action rights of the applicant
1. Court where the action or proceeding is pending.
2. Court of Appeals
Distinctions among a preliminary injunction, prohibition and status quo order:
3. Supreme court
4. A judge of RTC in any action pending before an inferior court within
Injunction Prohibition Status Quo Order
its district
Directed against a Directed against a court, Directed against the adverse
5. Inferior court in proper cases like FEUD within their jurisdiction
party in an action tribunal or person party and is issued by the
exercising judicial court motupropio
Grounds for issuance of preliminary injunction:
powers
Does not involve the Issued on the ground Cease and Desist Order
(a) That the applicant is entitled to the relief demanded, and the whole or part of
jurisdiction of the that the court against intended to maintain the last,
such relief consists in restraining the commission or continuance of the act or
court whom the writ is sought actual, peaceable and
acts complained of, or in requiring the performance of an act or acts either for
acted without or in uncontested state of things
a limited period or perpetually;
excess of jurisdiction preceding the controversy
without requiring the doing
(b) That the commission, continuance or non-performance of the act or acts
or undoing of an act
complained of during the litigation would probably work injustice to the
May be the main Special Civil Action /
applicant; or
action (final Main action
injunction) or
(c) That a party, court, agency or a person is doing, threatening, or is attempting
provisional remedy
to do, or is procuring or suffering to be done some act or acts probably in
violation of the rights of the applicant respecting the subject of the action or
Kinds of Injunction:
proceeding, and tending to render the judgment ineffectual.

© Gironella – Macadatar 2017 | Provisional Remedies 72


1. hearing
Evidence presented in a hearing for the issuance of the writ of preliminary 2. Prior notice to the party or person sought to be enjoined.
injunction:
Exception: great or irreparable injury would result to the applicant before the
The evidence submitted during the hearing is neither conclusive nor complete: only matter can be heard on notice – issue TRO
a "sampling" thereof is needed to give the trial court a fair idea of the justification for
the preliminary injunction, pending decision of the merits of the case. Temporary Restraining Order:

Limitations against the issuance of a writ of Preliminary Injunction: the writ When issued: acted upon only after all parties are heard in a summary hearing
may not issue:
1. Ex parte When Conducted: conducted within 24 hours after the sheriff's return of service
2. Where there is no irreparable injury and/or the records are received by the branch selected by raffle and to which the
3. Against court or tribunal of co-equal rank or quasi-judicial body of co- records shall be transmitted immediately.
equal rank
Effectivity: effective only for a period of 20 days from service on the party or person
As a rule, the RTC cannot enjoin the execution of a judgement of the NLRC. sought to be enjoined.
 The exception is when there is a third party claim.
Exceptions:
4. To transfer possession where title is not clear 1. If issued by the Court of Appeals or a member thereof, effective for 60
days from service on the party or person sought to be enjoined.
Except: FEUD case or in action for recovery where title is clear and cannot be 2. A restraining order issued by the Supreme Court or a member thereof
attacked collaterally shall be effective until further orders.

5. To restrain criminal prosecution Within the said twenty-day period, the court must order said party or person to
6. Against disposing of the case on the merits show cause, at a specified time and place, why the injunction should not be
7. Against consummated acts granted, determine within the same period whether or not the preliminary
8. To retrain collection of taxes injunction shall be granted, and accordingly issue the corresponding order. (Bar
Matter No. 803, 17 February 1998)
Except: where there are circumstances that bear the existence of irreparable injury
Note: the court cannot issue ex parte a status quo order which operate as TRO or
Requirements for the issuance of the writ: A PI or TRO may be granted only injunction
when:
 A second TRO is Void
(a) The application in the action or proceeding is verified, and shows facts
entitling the applicant to the relief demanded; and Remedy: issue an injunction

(b) Unless exempted by the court the applicant files a bond executed to the
Q: Is a second application for preliminary injunction allowed?
party or person enjoined

A: A second application for injunction, which rests in the sound


Amount: to be fixed by the court discretion of the court, will ordinarily be denied unless it is based
on facts unknown at the time of the first application.
To the effect that the applicant will pay to such party or person all damages which
he may sustain by reason of the injunction or TRO if the court should finally decide
Ex Parte TRO:
that the applicant was not entitled thereto.
Ground:if the matter is of extreme urgency and the applicant will suffer grave
Contemporaneous service of summons: The notice shall be preceded, or
injustice and irreparable injury
contemporaneously accompanied, by service of summons, together with a copy of
the complaint or initiatory pleading and the applicant's affidavit and bond, upon
Who issues: the executive judge of a multiple-sala court or the presiding judge of a
the adverse party in the Philippines.
single sala court

Exeptions:
Effectivity: effective for only 72 hours from issuance
1. where the summons could not be served personally or by substituted
service despite diligent efforts,
Thereafter, within the aforesaid 72 hours, the judge before whom the case is
2. the adverse party is a resident of the Philippines temporarily absent
pending shall conduct a summary hearing to determine whether the temporary
therefrom
restraining order shall be extended until the application for preliminary injunction
3. is a nonresident
can be heard.

Requirements of preliminary injunction:

© Gironella – Macadatar 2017 | Provisional Remedies 73


Maximum Period of the TRO: In no case shall the total period of effectivity of the 4. If it appears that the extent of the preliminary injunction or restraining
temporary restraining order exceed 20 days, including the original seventy-two order granted is too great, it may be modified.
hours provided herein. 5. Failed to pay the full bond

Denial of the application for preliminary injunction: the temporary restraining Is it sufficient ground to dissolve an injunction if the defendant posts a bond
order is deemed, automatically vacated. - No, it is not sufficient, the granting or dissolution of the PI is a matter or
discretion of the court.
Note: The effectivity of a TRO is not extendible without need of any judicial
declaration to that effect and no court shall have authority to extend or renew the Service of copies of bonds; the party filing a bond in shall forthwith serve a copy
same on the same ground for which it was issued. of such bond on the other party, who may except to the sufficiency of the bond, or
of the surety or sureties thereon.
Note: when there is no resolution after the 72 hours or 20 days it
means that there is nothing to enjoined unless the parties agree to Effect of disapproval of the bond:
maintain status quo  Applicant’s bond - the injunction shall be dissolved
 the bond of the adverse party - the injunction shall be granted or
Preliminary restored
Temporary Restraining Order
Injunction
Specie of preliminary injunction to maintain When final injunction granted: If after the trial of the action it appears that the
status quo before the resolution of the writ of applicant is entitled to have the act or acts complained of permanently enjoined
preliminary injunction on the ground of
irreparable injury Gordillo vs. Del Rosario, 39 Phil 829: the prayer for injunction relief
Effective during Duration (non-extendible): should not be granted for the purpose of taking the property, the
the pendency of 1. If issued by RTC/MTC – 20days from legal title to which is in dispute, out of possession of one person and
the action unless notice to person restrained putting it to the hands of another before the right of ownership is
earlier dissolved 2. If issued by CA – 60 days from notice determined.
3. If issued by SC – until lifted
Q: May the CHR issue a writ of injunction? If not, what should it do?
Note: Prohibition against the renewal applies
only if the same is sought under and by reason A: No, the CHR is not a judicial or quasi-judicial body, hence
of the same ground for which it was originally without authority to issue injunction or restraining order. In that
issued case, its remedy is to seek assistance of proper courts for injunctive
remedies.
Note: TRO is deemed automatically lifted
after the expiration of the effectivity period Q: A with use of force entered into the premises belonging to B. The
Notice and GR: Notice and hearing required latter demanded the vacation of the premises but the former refused
hearing always to vacate. Your services were engaged by B to enforce his right. What
required EX: ex parte TRO action would you file?

A: I would file an action for forcible entry with prayer for the
Can be issued to Cannot be issued to compel the performance
issuance of preliminary mandatory injunction in order to compel A
compel the of an act
to vacate the premises. Under the rule, PMI may be granted when it
performance of an
is established that a person refuses to perform an act complained of
act
during the litigation which would probably work injustice to the
applicant, in this case, A refused to vacate the premises which he
Grounds for objection to, or for motion of dissolution of, injunction or
occupied without the knowledge and consent of B, thus, resulting to
restraining order:
injustice to B as he was deprived of the right to use his property.
1. upon a showing of its insufficiency
2. upon affidavits of the party or person enjoined, which may be opposed by
Instances when an injunction is proper
the applicant also by affidavits.
1. In a petition for certiorari, prohibition, mandamus
3. if it appears that although the applicant is entitled to the injunction or
2. In a petition for relief from judgment
restraining order, the issuance or continuance thereof, as the case may be,
3. In an action for annulment of judgment, or to enjoin the enforcement of
would cause irreparable damage to the party or person enjoined while
the same on the grounds of fraud, collusion or lack of jurisdiction of the
the applicant can be fully compensated for such damages as he may suffer
court rendering it
4. To restrain the threatened enforcement of an invalid law
Bond: Theparty enjoined files a bond in an amount fixed by the court conditioned
5. To restrain continued breach of valid negative obligation;
that he will pay all damages which the applicant may suffer by the denial or the
6. To enjoin repeated trespass on land;
dissolution of the injunction or restraining order.

© Gironella – Macadatar 2017 | Provisional Remedies 74


7. To restrain city from proceeding with abatement of nuisance per between the City of Mandaue and MALAYAN. However, that
accidens before it has been judicially declared as such; transaction appeared to be unauthorized. After sometime a
8. To restrain voting of disputed shares of stocks; confirmatory agreement was entered by the parties whereby
9. To restrain sheriff from selling property on execution not belonging to MALAYAN bound itself to undertake the project at its own
judgment debtor; expense. After the People power, the plan was resubmitted to the
10. To restrain criminal prosecutions as an exception, in the following cases: President for approval, the City of Mandaue however started
a. To afford adequate protection to constitutional rights of negotiated and contracted with FF Cruz & Co. for the reclamation
accused; project. MALAYAN filed a protest with the OP. The Executive
b. When there is a prejudicial question which is sub judice; Secretaery disapproved the project with MALAYAN, this prompted
c. Prosecution under an invalid law; MALAYAN to file with the RTC a petition for prohibitory and
d. Double jeopardy is clearly apparent; mandatory preliminary injunction. RTC issued a TRO. Upon
e. Court without jurisdiction over the offense; posting a bond, injunction was issued. Whether or not a writ of
f. Case of persecution rather than prosecution; preliminary injunction may be issued against the government?
g. Charges manifestly false and motivated by lust for vengeance;
h. There is clearly no prima facie case against accused and motion A: Under PD 1818 and RA 8735, injunction is not available to stop
to quash on said ground is denied; and infrastructure projects of the government
i. Preliminary injunction issued by SC to prevent threatened
unlawful arrest of petitioners. May a writ issued by a judge be enforced outside of the judicial region? If not,
what is the remedy?
Instances when injunction is not proper
1. In action to compel a spouse to cohabit with the other No, if the act sought to be prevented is in another region, he can
2. Restraining consummated acts enforce the writ within the region and file another action in that
3. To enjoin a public officer from performing duties specifically imposed by region or apply for such writ from the CA or SC, if proper, so that the
law same can be enforced anywhere in the Philippines.
4. To transfer possession of property from another
5. Act/s perpetrated outside the inferior courts’ territorial jurisdiction Q: A is the owner of a property which he used to secure a loan by way of REM
6. Against judgments of coordinate courts and quasi-judicial bodies of equal
with a bank. For failure to pay the loan, the bank foreclosed the mortgage. For
rank
failure to redeem, the bank consolidated its ownership over the property where a
7. Issuance will effectively dispose of the main case without trial and/or due
title was issued under its name. The consolidation was made during the pendency
process
of an action to annul the foreclosure sale, hence, the action was amended with
8. Labor disputes
9. In issuance of licenses, concessions as to disposition, exploitation, prayer for preliminary prohibitory injunction. If you were the judge, would you
utilization, exploration and/or development of natural resources grant the injunction? Why?
10. Implementation of Comprehensive Agrarian Reform Program, collection
of taxes, criminal prosecutions A: If I were the judge, I would deny the prayer for PPI because the act
11. Mandatory foreclosure of a mortgage by a government financial complained of has already been consummated.
institution
12. When action for damages would adequately compensate injuries caused Q:Can the mortgagor argue that the consolidation of title during the pendency of
13. To prevent directors from discharging their offices and restoring former an action for annulment and reconveyance will cause irreparable injury to him?
directors; Explain.
14. To restrain criminal prosecution where the Ombudsman had authorized
the Special prosecutor to conduct a preliminary investigation or to file an A: No, because as a purchaser at a public auction, he becomes the
injunction. absolute owner of the Property Purchase if it is not redeemed during
15. Against Department of Public Works and Highways to stop government the period of one year after the registration of the sale. Consolidation
infrastructure projects (Secs. 3 & 4, RA8975) takes place as a matter of right.

Exceptions: Q: A title was fraudulently transferred under the name of the


a. Extreme urgency common law wife of the owner. When the heirs discovered it, they
b. Matter involves a constitutional issue filed an action to annul the title but later on they found out that the
c. Grave injustice and irreparable injury will arise transferee mortgaged it, the bank foreclosed the mortgage and so,
they amended the complaint to implead the bank and prayed for
Note: Only the SC may issue injunction against the government, officials or any injunction to stop it from proceeding with the foreclosure, the RTC
person or entity whether public or private acting under the government direction, denied it but the RTC overturned the order granting the injunction
to restrain, prohibit, or compel acts pursuant to the implementation and to prevent it from proceeding with the foreclosure and the
completion of infrastructure projects. consolidation of title over the property, as they have a clear and
unmistakable right to protect their title and possession. Before the
Q: During the Marcos regime, a reclamation contract was signed Supreme Court the petitioner contended that the injunction is not

© Gironella – Macadatar 2017 | Provisional Remedies 75


proper as the respondent merely have possession, whereas, it has the which shall be equal to the amount of the outstanding debt, and the time
title to the property. The respondents contended that they would limitation for its effectivity, shall apply as well to a status quo order.
suffer great irreparable damage if the writ is not granted as they
would lose their ancestral home. Are the respondents entitled to Receivership
injunctive relief? Why?
Nature: It may be the principal action itself or a mere provisional remedy
A: Yes. If indeed the deed of sale was a forgery, no parcel of land was
ever transferred to the purported buyer, who, not being the owner, Receiver: is a representative of the court, appointed for the purpose of preserving
could not have validly mortgaged the property. Consequently, and conserving the property in litigation and preventing its possible destruction or
neither has petitioner - the buyer and mortgaged of the same lot - dissipation.
even acquired any title thereto. Clearly then, respondents have the  He is not a representative of any of the parties but of all of them.
right to prevent petitioner from consolidating the title in its name.  He must be someone who is indifferent person between the parties and
(First requisite - existence of a right to be protected is present) should be impartial
 A clerk of court cannot be appointed as a receiver
(Urgent and paramount necessity - second requisite is also present)
as what was sought to be enjoined was the consolidation of the title Purpose: to preserve the property during the pendency of the litigation or to
of the subject property in petitioner's name. dispose of it according to the judgement or otherwise carry the judgement into
effect.
Q: May an injunction lie to require the payment of rent where no
such obligation existed before? Why? May a receiver be appointed even if the property is under custodialegis? Yes,
when justified by special circumstances as when the appointment is necessary to
A: No, because it would be premature pending a final determination secure and protect the rights of real owner of a property.
of who between the parties is the lawful possessor of the premises.
The most prudent way to preserve the rights of the parties is to When a receiver be appointed in a partition proceeding
deposit with the trial court all rentals on the premises. 1. Where the relations of the co-owners are strained
2. Where no satisfactory arrangement for administration can be
Q: The MTC decision was appealed to the RTC. In due time, the accomplished
RTC rendered a decision in the appealed case. After the decision had
become final, another RTC issued a writ of preliminary injunction to Appointment of receiver: How made: Upon a verified application
prevent the implementation of the decision of the MTC as affirmed
by the first RTC. In this problem, is the issuance of a writ of May a receiver be appointed ex parte?
preliminary injunction by another RTC to prevent the No there must be a hearing.
implementation of the decision of the MTC correct?
Where to file:
A: No. Although the writ is directed against the MTC, the same has  where the action is pending
the effect of preventing the execution of the decision on appeal of a  by the Court of Appeals
RTC which is a court of equal rank and jurisdiction.  by the Supreme Court, or a member thereof

OCA CIRCULAR NO. 25-2007 When issued:


1. Applicant has an interest in the property or fund subject of the action is
(1) No temporary restraining order or writ of preliminary injunction against the in danger of being lost, removed, or materially injured
extrajudicial foreclosure of real estate mortgage shall be issued on the 2. Mortgaged property is in danger of being dissipated or materially
allegation that the loan secured by the mortgage has been paid or is not injured and that its value is probably insufficient to discharge the
delinquent unless the application is verified and supported by evidence of mortgage debt or
payment. 3. Stipulation in the contract of mortgage
4. After judgment:
(2) No temporary restraining order or writ of preliminary injunction against the a. to preserve the property during the pendency of an appeal, or
extrajudicial foreclosure of real estate mortgage shall be issued on the
allegation that the interest on the loan is unconscionable, unless the debtor Note: filed in and decided by the court of origin and the receiver appointed to be
pays the mortgagee at least twelve percent per annum interest on the principal subject to the control of said court.
obligation as stated in the application for foreclosure sale, which shall be
updated monthly while the case is pending. b. to dispose of it according to the judgment, or
c. to aid execution when the execution has been returned
(3) Where a writ of preliminary injunction has been issued against a foreclosure of unsatisfied or the judgment obligor refuses to apply his
mortgage, the disposition of the case shall be speedily resolved. property in satisfaction of the judgment, or
d. otherwise to carry the judgment into effect;
(4) All requirements and restrictions prescribed for the issuance of a temporary 5. Judgment debtor refuses to apply his property in satisfaction of the
restraining order/writ of preliminary injunction, such as the posting of a bond, judgment or to carry on the judgment
© Gironella – Macadatar 2017 | Provisional Remedies 76
6. Appointment of receiver is most convenient and feasible means of Compensation of the receiver:reasonable compensation as the circumstances of
preserving, administering or disposing of the property in litigation the case warrant, to be taxed as costs against the defeated party, or apportioned, as
justice requires.
Requirement before issuance of the order:the applicant must file a bond executed
to the party against whom the application is presented, in an amount to be fixed by Q: X, the receiver of the properties subject of litigation between A and B entered
the court into a contract of sale over a portion of such properties. Rule on the validity of the
act of X.
Purpose:applicant will pay such party all damages he may sustain by reason of the
appointment of such receiver in case the applicant shall have procured such A: The sale is void because a receiver like X has no power to enter a
appointment without sufficient cause contract without the approval of the court.
 that he will faithfully discharge his duties in the action or proceeding and
obey the orders of the court
Replevin
Kinds of Bonds:
It is a proceeding by which the owner or one who has general or special property
1. Bond posted by the applicant
in the thing taken or detained seeks to recover possession in specie, the recovery of
2. Bond posted by receiver appointed
damages being only incidental.

In case the bond of the adverse party is found to be insufficient in amount: the
Nature:
receiver shall be appointed or re-appointed, as the case may be.
 both a form of principal remedy and a provisional relief.
o mixed action; partly in rem and partly in personam
General Powers of receiver:
o In rem - recovery of specific personal property
1. the power to bring and defend, in such capacity, actions in his own name;
o In personam - claim for damages
2. to take and keep possession of the property in controversy;
3. to receive rents;
 a provisional remedy in the nature of possessory action
4. to collect debts due to himself as receiver or to the fund, property, estate,
o the applicant need not be a holder of legal title
person, or corporation of which he is the receiver;
o It is sufficient the is entitled to the possession thereof
5. to compound for and compromise the same;
6. to make transfers;
Note: Replevin will not lie for property under custodia legis.
7. to pay outstanding debts;
8. to divide the money and other property that shall remain among the
Replevin vs. Preliminary Attachment:
persons legally entitled to receive the same;
Replevin Preliminary Attachment
9. generally to do such acts respecting the property as the court may
Recovery of possession of Available even if recovery of
authorize.
personal property is the principal personal property is only an
relief and damages are incidental incidental relief
Liability for refusal or neglect to deliver property to receiver:
This is available before defendant Available from commencement
 may be punished for contempt
files an answer but before entry of judgment
 shall be liable to the receiver for the money or the value of the property
Available only where defendant is May be resorted to even if
and other things so refused or neglected to be surrendered
in actual or constructive personal property is in the
 together with all damages that may have been sustained by the party or
possession of personal property custody of a third person
parties entitled thereto as a consequence of such refusal or neglect
involved
Extends only to personal Extends to all kinds of property
Grounds to discharge receiver:
property capable of manual whether real, personal or
1. Posting of counterbond by adverse party
delivery incorporeal
Used to recover personal Recover property being
Note: Where counterbond is insufficient or defective, receiver may be re-appointed
property even if not being concealed, removed or disposed
concealed, removed or disposed
2. Appointment of receiver was made without sufficient cause
3. Insufficient or defective applicant’s bond Cannot be availed of when Can be resorted to even if
4. Insufficient or defective receiver’s bond property is in custodialegis(under property is in custodialegis
5. Receiver no longer necessary attachment) or seized under
search warrant
Termination of receivership; Property of GOCCs cannot be Properties of GOCCs may be
1. By court motupropio or on motion by either party reached reached if utilized in its
2. Based on the following grounds: proprietary function.
a. Necessity for receiver no longer exists Sheriff takes possession of the Sheriff does not take possession
b. Receiver asserts ownership over the property property subject of the replevin of the property attached except
3. After due notice and hearing to all interested party and hold the same for a period of contructively placing it under
5 days after which said property custodia legis.

© Gironella – Macadatar 2017 | Provisional Remedies 77


will be delivered to the party 3. if the adverse party requires the return of the property but his bond is
who obtained the writ. objected to and found insufficient and he does not forthwith file an
approved bond

Bond to be posted is double the Bond amount is fixed by court


Effect: the property shall be delivered to the applicant.
value of the property sought to be and does not exceed the claim
recovered or value of the property to be
If for any reason the property is not delivered to the applicant, the sheriff must
attached
return it to the adverse party.
Purpose:
Judgment: After trial of the issues the court shall determine who has the right of
1. Protect plaintiff’s right of possession to property
possession to and the value of the property and shall render judgment in the
2. Prevent defendant from destroying, damaging or disposing of the property
alternative for:
 The delivery thereof to the party entitled to the same, or
How: through affidavit under oath
 for its value in case delivery cannot be made, and
 Also for such damages as either party may prove, with costs.
Who may avail: the plaintiff and the defendant

Upon the dismissal of the complaint for replevin the court may direct the plaintiff
Subject matter: personal property but it cannot be incorporeal property
to release the property to the defendant despite the appeal by defendant from the
dismissal of his counterclaim.
When to file: at the commencement of the action or at any time before answer is
served
When shall an application for damages be applied? Before judgment is
executory
Jurisdictional Requirements:
(a) That the applicant is the owner of the property claimed
Note: the writ of replevin is addressed to the sheriff
(b) Detailed description of the personal property
(c) That the property is wrongfully detained by the adverse party, alleging the
cause of detention thereof according to the best of his knowledge, May a property seized by a search warrant be the subject of replevin?
information, and belief ;
(d) That the property has not been distrained or taken for a tax assessment or a It depends. No if it illegally possessed. Yes if legally possessed.
fine pursuant to law, or seized under a writ of execution or preliminary
attachment, or otherwise placed under custodialegis, or if so seized, that it May the issue of ownership be resolved in a replevin suit?
is exempt from such seizure or custody;
(e) The actual market value of the property. Yes, if issue of ownership is raised.

Bond:The applicant must also give a bond, executed to the adverse party May a motion to discharge the writ of replevin on the ground that it was
improperly issued be allowed?
Amount of the bond:in double the value of the property
No. The remedy of the defendant is under Section 5 (Return of
Return of property: If the adverse party objects to the: property) and Section 6 (Disposition of property by sheriff)
1. sufficiency of the applicant's bond
2. of the surety or sureties thereon What is the remedy of the defendant where a complaint for replevin was dismissed,
but the plaintiff refused to return the property seized?
BUT: he cannot immediately require the return of the property
The dismissal of a replevin case after seizure carries with it the
Remedy for the return of property seized:
return of seized property enforceable by execution.
The defendant must, within 5 days from the date the sheriff took possession of the
property
During the pendency of a replevin suit filed by X against Y, the later filed an
1. Put up a bond in double the value of the chattel (Redelivery Bond)
action for damages against X due to the seizure of the property. Is the action
2. Furnish the plaintiff with a copy of the undertaking
proper? Why?
Note: both requirements are mandatory.
No, any claim for damages due to seizure of property in replevin
Disposition of property by sheriff: If within five (5) days after the taking of the while the action is pending must be litigated in the replevin suit and
property by the sheriff, the adverse party does not object to the: not by independent action. This is so because a court of coordinate
1. sufficiency of the bond, or of the surety or sureties thereon; or jurisdiction cannot interfere with the affairs of a coordinate court.
2. if the adverse party so objects and the court affirms its approval of the
applicant's bond or approves a new bond, or Q: X filed a replevin suit against Y, who filed a motion to dismiss with a
counterclaim for damages caused by plaintiff's alleged bad faith in the filing of the

© Gironella – Macadatar 2017 | Provisional Remedies 78


complaint. Is this sufficient to recover damages on the replevin bond? Third person; Reimbursement:
When the person ordered to give support pendente lite refuses or fails to do so,
A: No, because the damages referred to must arise out of the any third person who furnished that support to the applicant may, after due notice
wrongful seizure of the defendant's property. and hearing in the same case obtain a writ of execution to enforce his right of
reimbursement against the person ordered to provide such support.
Q: Plaintiff obtained a writ of replevin for the seizure of machines placed by the
Support in criminal cases: In criminal actions where the civil liability includes
defendant in the factory built on defendant's land. Is the issuance of the writ of
support for the offspring as a consequence of the crime and the civil aspect thereof
replevin correct?
has not been waived, reserved and instituted prior to its filing
 the accused may be ordered to provide support pendente lite to the
A: No. Although the machines are movable on their own, they have
child born to the offended party allegedly because of the crime.
become immobilized by destination because they are essentials and
principal elects in the industry. Thus, the machines are real
The application therefor may be filed successively by the offended party, her
properties and cannot be seized by replevin, except if the parties
parents, grandparents or guardian and the State in the corresponding criminal case
have agreed to treat them as personal or movable properties.
during its pendency, in accordance with the procedure established under this
Rule.
Support / Alimony Pendente Lite
Restitution: the person who has been providing support pendente lite is not liable
Support: anything that is indispensable for sustenance, dwelling, clothing and therefor
medical attendance, according to the social position of the family.  the recipient must return to the former the amounts already paid with
legal interest from the dates of actual payment
Support pendente lite: it is an allowance made to the wife or family for her/their  without prejudice to the right of the recipient to obtain reimbursement
maintenance during the pendency of the action. in a separate action from the person legally obliged to give the support.

When to file: At the commencement of the proper action or proceeding, or at any Failure to reimburse: the person who provided the same may likewise seek
time prior to the judgment or final order reimbursement thereof in a separate action from the person legally obliged to give
such support.
What to file: a verified application

What is the effect if the defendant in an action for support with support pendente
Who files: by any party
lite denies the right of the plaintiff?

Contents: stating the grounds for the claim and the financial conditions of both
The court cannot grant the support pendente lite. Likewise, if the
parties, and accompanied by affidavits, depositions or other authentic documents in
existence of the fact upon which the right to support depends is put
support thereof.
in issue by the pleadings, it cannot be presumed to exist for the
purpose of granting alimony.
Comment: adverse party shall have 5 days to comment thereon unless a different
period is fixed by the court upon his motion.
Possible Defenses:
Adultery of the wife is a good defense in action for support. As to the child, such
Contents of the comment: shall be verified and shall be accompanied by affidavits,
defense is valid proof that the child is the fruit of such adulterous relationship
depositions or other authentic documents in support thereof.
must be shown.

Hearing, when: After the comment is filed, or after the expiration of the period for
Invalidity of a marriage is also a defense in an action for support although support
its filing,
pendente lite may still be achieved during the proceedings for annulment of
marriage.
Duration of the hearing: not more than 3 days

A repeated illicit relation with women outside the martial home is sufficient to
If the application is granted, the court shall fix the amount of money to be
entitle the wife to maintain a separate home and to have a separate support.
provisionally paid or such other forms of support as should be provided, taking into
account the necessities of the applicant and the resources or means of the adverse
Contempt of court: disobedience to an order granting support pendente lite.
party, and the terms of payment or mode for providing the support.

THIRD PARTY CLAIM


If the application is denied, the principal case shall be tried and decided as early as
possible.
Remedies that are available if property is being claimed by a third person:
1. File a Third Party Complaint or terceria
Enforcement of order: If the adverse party fails to comply with an order granting
2. File a Motion for Intervention
support pendente lite, the court shall, motuproprio or upon motion; issue an order
3. File an independent action to recover property
of execution against him, without prejudice to his liability for contempt.

© Gironella – Macadatar 2017 | Provisional Remedies 79


Note: The remedies are cumulative and may be resorted to by the third party 2. any officer duly representing it,
claimant independently of or separately from the others.
In case the sheriff is sued for damages as a result of the attachment:
PROCEEDINGS WHEN PROPERTY IS CLAIMED BY THIRD PERSONS - he shall be represented by the Solicitor General
- if held liable therefor, the actual damages adjudged by the court shall be
Effect of levy on execution as to third person: The levy on execution shall create a paid by the National Treasurer out of the funds to be appropriated for
lien in favor of the judgment obligee over the right, title and interest of the the purpose.
judgment obligor in such property at the time of the levy, subject to liens and
encumbrances then existing. Requisites for the recovery of damages against the replevin bond:
1. Application showing right to damages
Q:Aiza obtained a judgment for money against Bert. The sheriff 2. Notice given to plaintiff and his surety
enforcing the corresponding writ went to Celywho, is the pledgee 3. There must be a hearing in case recover is opposed: except if under the
of a ring Bert had given as security for a loan and insisted on taking contract, the surety promised to abide by the judgement of the court
possession of the ring for the purpose of eventually selling it at the 4. Award of damages must be included in the judgement of the court
execution sale to satisfy the judgment debt of Bert to Aiza. Does
Cely have the obligation to surrender the ring to the sheriff? Q: A obtained a money judgment against B. After the finality of the
Explain. decision, the court issued a writ of execution for the enforcement
thereof. Conformably with the said writ, the sheriff levied upon
A: No, because Cely has the right to retain the ring in his possession certain properties under B's name. C filed a third-party claim over
until the loan is paid. If the sheriff should take possession of the said properties claiming that B had already transferred the same to
ring, Cely may file a third-party claim. (1987 Bar Question) him. A moved to deny the third-party claim and to hold B and C
jointly and severally liable to him. After due hearing, the court
When to file: At any time, so long as the sheriff has the possession of the property denied the third-party claim and rendered an amended decision
levied upon, or before the property is sold under execution. declaring B and C jointly and severally liable to A for the money
judgment. Is the ruling of the court correct'?
Requisites for a claim by a third person:
1. The property is levied; A: No, C has not been impleaded as a party defendant. He cannot be
2. The claimant is a person other than the judgment obligor or his agent; held liable for the judgment against B without a trial. In fact, since
3. Makes an affidavit of his title thereto or right to the possession thereof no bond was filed by A, the sheriff is liable to C for damages. C can
stating the grounds of such right or title; and file a separate action to enforce his third-party claim. It is in that
4. Serves the same upon the officer making the levy and the judgment suit that A can raise the ground of fraud against C. However, the
obligee. execution may proceed where there is a finding that the claim is
fraudulent
Bond:
The sheriff shall not be bound to keep the property unless the attaching party or his Special Civil Actions
agent, on demand of the sheriff, shall file a bond approved by the court to indemnify
the third-party claimant
Ordinary Civil Action Special Civil Action
Must be based on a cause of Cause of action not necessarily
Amount:
action needed
Attachment: not less than the value of the property levied upon
Example:
Replevin: not less than the value of the property under replevin
Declaratory relief – action is brought
before there is any breach
Disagreement as to value: decided by the court issuing the writ of attachment.
Venue is determined either Not necessarily true as in quo
by the residences of the warranto, the venue is where the
Claim for damages: parties where the action is Supreme Court or Court of Appeals
GR: No claim for damages for the taking or keeping of the property may be enforced personal or by the location if the petition is commenced in any
against the bond of the property where the of these courts without taking into
Unless: the action therefor is filed within 120 days from the date of the filing of the action is real consideration the residences of the
bond.
parties
May be filed in MTC or Some actions may be filed only in
The sheriff shall not be liable for damages for the taking or keeping of such property
the RTC depending upon the MTC, some cannot be
to any such third-party claimant, if such bond shall be filed.
the jurisdictional amount commenced therein
or nature of the action
Exception; filing of bond:
May be commenced only May be commenced by the filing of
When the writ of attachment is issued in favor of:
by the filing of complaint a complaint or petition
1. the Republic of the Philippines, or

© Gironella – Macadatar 2017 | Special Civil Actions 80


How Initiated: brought in a RTC in the City of
By Complaint - PIFFE Manila, in the CA, or in the SC
a. partition
b. interpleader
c. foreclosure of real estate mortgage
d. forcible entry and unlawful detainer
Contempt
e. expropriation
MTC, RTC, CA, SC Where the charge for indirect
By Petition – PRC MCQ D
contempt has been committed
a. Prohibition
against RTC or a court of
b. review of judgments and final orders or resolutions of the
equivalent or higher rank, or against
COMELEC / COA
an officer appointed by it, the
c. Certiorari
charge may be filed with such
d. Mandamus
court.
e. Contempt
f. Quo Warranto
Where such contempt has been
g. declaratory relief
committed against a lower court,
the charge may be filed with the
Jurisdiction and Venue:
RTC of the place in which the
Jurisdiction Venue lower court is sitting; but the
Interpleader proceedings may also be instituted
MTC – where the value of Where the plaintiff or any of the in such lower court subject to
the claim or the personal principal plaintiff resides or where appeal to the RTC of such place
property does not exceed the defendant or any of the Unlawful Detainer /Forcible Entry
P300,000 or P400,000 in principal defendants resides
Metropolitan Trial Courts; Where the property is located
MM or where the value of
covered by Rule on
the real property does not
Summary Procedure.
exceed P20,000 or P50,000
in MM Partition
RTC 1. Real property – where the
RTC – if the value exceeds (incapable of pecuniary property is located
the above amounts or if the estimation) 2. Personal property – the place
subject matter is where the plaintiff or defendant
exclusively within the resides (Sec. 13, Rule 69)
jurisdiction of the RTC
Declaratory Relief
RTC Where the petitioner or the Foreclure of REM
respondent resides RTC (incapable of Where the land or any part thereof
Expropriation pecuniary estimation) is located
RTC Land: where the property is located

Personal property: the place where


the plaintiff or defendant resides Interpleader
Certiorari, Prohibition, Mandamus
RTC, CA, SC, SB General rule on venue When interpleader proper: Whenever conflicting claims upon the same subject
COMELEC in aid of its matter are or may be made against a person who claims no interest whatever in the
appellate jurisdiction subject matter, or an interest which in whole or in part is not disputed by the
claimants, he may bring an action against the conflicting claimants to compel them
to interplead and litigate their several claims among themselves.
Quo Warranto
RTC, CA, SC, SB in aid of With the SC, CA, or in the RTC Interpleader vs. Intervention:
its appellate jurisdiction exercising jurisdiction over the
territorial area where the INTERPLEADER INTERVENTION
respondent or any of the Special civil action, Not an original action but mere ancillary
respondents resides. independent and and depends upon the existence of a
original precious pending action.
When the Solicitor General Commenced by the Commenced by a motion to intervention
commences the action, it may be filing of a complaint. filed in a pending case attaching thereto

© Gironella – Macadatar 2017 | Special Civil Actions 81


the pleading- in- intervention. Declaration of default: If any claimant fails to plead within the time herein fixed

Filed by a person who Filed by a person who has a legal interest If there are more than one claimant – partial declaration of default
has no interest in the in any of the following:
subject matter of the a. The subject matter of the litigation; How: on motion
action or if he has an b. The success of either of the parties; or
interest, the same is not c. The success of both of the parties; or Effect: the court will render judgment barring him from any claim in respect to the
disputed by the d. He may be adversely affected by the subject matter
claimants. disposition or distribution of property in
the judgment. Allowed pleadings: The parties in an interpleader action may file counterclaims,
The defendants are If a complaint- in- intervention is filed, cross-claims, third-party complaints and responsive pleadings thereto
brought into the action the defendants are already parties to an
only because they are existing suit not because of the  after issues are joined proceed to trial
impleaded as such in the intervention but because of the original
complaint. suit. Docket and other lawful fees, costs and litigation expenses as liens: The docket
and other lawful fees paid by the party who filed a complaint, as well as the costs
Requisites: and litigation expenses, shall constitute a lien or charge upon the subject matter of
1. Plaintiff claims no interest in the subject matter or his claim is not the action, unless the court shall order otherwise.
disputed  From the defendant who loses the action and is found by the court to
2. Two or more claimants asserting conflicting claims have caused the unnecessary litigation
3. The subject matter must be one and the same for the conflicting
claimants Q: May an interpleader be availed of the resolve breach of
4. Person in possession or obliged files a complaint. undertaking?
5. The parties to be interpleaded must make effective claims.
6. Payment of docket and other lawful fees. A: No. Such issue should be resolved in an ordinary civil action for
specific performance or other relief
When must an action for interpleader be filed:
 Within a reasonable time after a dispute has arisen without waiting to be Q: if there is a pending interpleader case filed before a replevin suit,
sued by claimants may the court taking cognizance of the replevin case effect the
 before such is barred from laches. seizure of the vehicles subject of the suit?

Which court has jurisdiction over an interpleader: Inferior courts have A: no. A court taking cognizance of a replevin suit cannot effect
jurisdiction so long as the amount involved is within their jurisdiction seizure of the subject vehicle unless clear right to possession has
been established and determined in the interpleader case filed prior
Summons: served upon the conflicting claimants, together with a copy of the thereto and pending the court of co-equal and coordinate
complaint and order. jurisdiction. To bestow recognition to an alleged right of possession
of a party despite notice of an earlier interpleader case pending ,
Motion to dismiss: amounts to manifest gross abuse of discretion and glaring disregard
of respect and comity due to co-equal court.
When to file: Within the time for filing an answer
Declaratory Relief and Similar Remedies
Who files: each claimant may file a motion to dismiss
This is an exception to the general rule that cases brought to the court are ripe for
Grounds: adjudication.
 impropriety of the interpleader action
 on other appropriate grounds specified in Rule 16. Two Types of Action:
1. Declaratory relief
Effects: The period to file the answer shall be tolled 2. Other similar remedies

If the motion is denied:the movant may file his answer within the remaining period Declaratory Relief
 but which shall not be less than 5 days in any event, reckoned from
notice of denial. Requisites:
1. Filing of Petition before there is a breach or violation
Answer: 2. Subject matter is a deed, will, contract, written instrument, statute,
executive order, regulation or ordinance
When to file: within 15 days from service of the summons upon him 3. There is justiciable controversy

© Gironella – Macadatar 2017 | Special Civil Actions 82


4. Issue is ripe for judicial determination i.e. litigation is imminent and Intended to determine any Intended to remedy or
inevitable question of construction or compensate injuries already
5. Adequate relief is not available through other means or other forms of validity suffered
action or proceedings prior to breach or violation After breach
6. The controversy is between persons whose interests are adverse;

Nature of the proceedings: To whom shall notices be given?


 the court is given the discretion to act or not to act on the petition  Solicitor General: In any action which involves the validity of a:
 non adversarial  statute
 preventive and anticipatory remedy  executive order or regulation, or
 any other governmental regulation
Exercise of Discretion:
 A refusal of the court to declare rights or construe an instrument is  Prosecutor or attorney of the local government unit if subject matter
actually the functional equivalent of the dismissal of the petition. involves validity of ordinance
 On the other hand, the court does not have the discretion to refuse to act
with respect to actions described as similar remedies.  All persons who have or claim any interest

Who may file petition: If such ordinance is alleged to be unconstitutional, the Solicitor General shall also
A. Any person interested under a: (COWD) be notified and entitled to be heard.
o Contract
o other written instrument When may a court refuse to make a judicial declaration / additional ground for
o Will motion to dismiss:
o Deed 1. A decision will not terminate the uncertainty or controversy which gave
rise to the action
B. whose rights are affected by a: 2. Declaration or construction is not necessary and proper under the
o statute circumstances
o executive order or regulation
o ordinance, or Note: Discretion to refuse does not extend to actions for reformation of an
o any other governmental regulation instrument quiet title or remove clouds or to consolidated ownership in a pacto de
retro sale.
Note: The enumeration of the subject matter is exclusive; hence, an action not
based on any of the enumerated subject matters cannot be the proper subject of Conversion into ordinary action:
declaratory relief.
When:before the final termination of the case
Parties: All persons who have or claim any interest which would be affected by the
declaration shall be made parties; What:a breach or violation of an instrument or a statute, executive order or
 no declaration shall, except as otherwise provided in the Rules, prejudice
regulation, ordinance, or any other governmental regulation takes place
the rights of persons not parties to the action.
The action may thereupon be converted into an ordinary action, and the parties
When to file: before breach or violation of one’s right shall be allowed to file such pleadings as may be necessary or proper.

Where to file: Regional Trial Court


Q: Is a third-party complaint proper in an action for declaratory
o Exception: far reaching implication – file it in the appropriate court relief?
o Treated as prohibition or mandamus
A: No. Because in a third-party complaint, such person seeks to
Purpose: obtain contribution, indemnity, subrogation or other reliefs and a
 to determine any question of construction or validity arising (for letter declaratory relief is confined merely to the interpretation of the
A) terms of a contract.
 For a declaration of his rights or duties (for letter B)
Instances wherein a declaratory relief is UNAVAILABLE:
Declaratory Judgment vs. Ordinary Judgment: 1. To obtain judicial declaration of citizenship;
2. To establish illegitimate filiation and determine hereditary rights;
Declaratory Judgment Ordinary Judgment 3. The subject of the action is a court decision;
Declaratory judgment stands by Ordinary judgment involves 4. Actions to resolve political questions;
itself and no executory process executor or coercive relief 5. Those determinative of the issues rather than a construction of definite
follows status, rights and relations;
6. Terms of assailed ordinances are not ambiguous or of doubtful meaning;

© Gironella – Macadatar 2017 | Special Civil Actions 83


7. In a petition to seek relief from a moot and academic question; but to file an action for annulment of the contract
8. Where the contract or statute on which action is based has been
breached; Matters that cannot be reform:
9. When the petition is based on the happening of a contingent event; 1. Simple donation inter vivos wherein no condition is imposed;
10. When the petitioner is not the real party in interest; and 2. Wills; or
11. Where the administrative remedies have not yet been exhausted. 3. When the agreement is void
4. Marriage contract
Similar Remedies
Reformation of instruments like contracts may not be appropriate subjects for
1. Reformation of an instrument arbitration if one of the parties assails the jurisdiction of the arbitrator like the
2. Quiet title to real property or to remove clouds HLURB. The jurisdiction is vested in the RTC. (Frabelle Fishing Corporation vs. Phil
3. Consolidation of ownership Am Life, GR no 158560, August 17, 2007)

Note: they can be ordinary or special civil actions QUIETING OF TITLE TO REAL PROPERTY

REFORMATION OF AN INTRUMENT: a) This action is brought to remove a cloud on title to real property or any
interest therein.
It is not an action brought to reform a contract but to reform the instrument
evidencing the contract. The action contemplates a situation where the instrument or a record is
apparently valid or effective but is in truth and in fact invalid, ineffective, voidable
It presupposes that there is nothing wrong with the contract itself because there is or unenforceable, and may be prejudicial to said title to real property.
a meeting of minds between the parties.
b) It may also be brought as a preventive remedy to prevent a cloud from
The contract is to be reformed because despite the meeting of minds of the parties being cast upon title to real property or any interest therein
as to the object and cause of the contract, the instrument which is supposed to embody the
agreement of the parties does not reflect their true agreement by reason of mistake, Possession: The plaintiff need not be in possession of the real property before he
inequitable conduct or accident. may bring the action as long as he can show that he has a legal or an equitable title
to the property which is the subject matter of the action
The action is brought so the true intention of the parties may be expressed in the
instrument CONSOLIDATION OF OWNERSHIP

When an instrument may be reformed: The action brought to consolidate ownership is not for the purpose of
consolidating the ownership of the property in the person of the vendee or buyer
The instrument may be reformed if it does not express the true intention of the but for the registration of the property.
parties because of lack of skill of the person drafting the instrument
The lapse of the redemption period without the seller a retro exercising his right of
Example: If the parties agree upon the mortgage or pledge of property, but the redemption, consolidates ownership or title upon the person of the vendee by
instrument states that the property is sold absolutely or with a right of repurchase, operation of law.
reformation of the instrument is proper.
Art. 1607 requires the filing of the petition to consolidate ownership because the
Equitable mortgage – Article 1602 – 1603; Pacto de Retro but the real agreement is law precludes the registration of the consolidated title without judicial order
mortgage
1. The price of the sale is unusually inadequate Q: May a counterclaim be set up in a petition for declaratory relief
2. The vendor retains possession as a lessee
3. After expiration of the period to repurchase – there is extension A: Yes. It is a rule that there is nothing in the nature of a special civil action for
4. Purchaser retains for himself part of the purchase price declaratory relief that proscribes the filing of a counterclaim based on the same
5. When the vendor binds himself to pay the taxes on the thing sold transaction, deed or contract subject to the complaint.
6. Other instances
Review on Judgement and Final Orders or Resolutions of the
Q: What is the remedy if the consent of a party to a contract has
COMELEC and the COA
been procured by fraud, inequitable conduct, or accident?

Rule 64 Rule 65
A: Where the consent of a party to a contract has been procured by
Directed only to the judgments, Directed to any tribunal, board
fraud, inequitable conduct or accident, and an instrument was
final orders or resolutions of the or officers exercising judicial or
executed by the parties in accordance with the contract, what is
COMELEC and COA; quasi-judicial functions;
defective is the contract itself because of vitiation of consent. The
Must be filed within 30 days Must be filed within 60 days
remedy is not to bring an action for reformation of the instrument
from notice of judgment or from notice of judgment or

© Gironella – Macadatar 2017 | Special Civil Actions 84


resolution resolution Interruption of the period to file: The filing of a motion for new trial or
If MR is denied, the aggrieved If MR is denied, the aggrieved reconsideration, IF ALLOWED under the procedural rules of the Commission
party may file the petition party will have another 60 days concerned
within the remaining period, within which to file the petition
but which shall not be less than counted from the notice of When the motion is denied:the aggrieved party may file the petition within the
5 days. denial. remaining period
- but which shall not be less than 5 days in any event, reckoned from
Distinguish the mode of review of judgment, final orders or resolutions of notice of denial.
COMELEC and COA from other tribunals, persons and officers
Docket and other lawful fees: pay to the clerk of court the docket and other
Review of judgment, final lawful fees and deposit the amount of P500.00 for costs.
Rule 64 for COMELEC and
orders or resolutions of other
COA Form of the petition:The petition shall be verified and filed in 18 legible copies.
tribunals, persons and officer
Petition is based on questions of Petition is based on questions of
law law Contents of the Petition:
It is a mode of appeal but the It is a mode of appeal  name the aggrieved party as petitioner
petition used is Rule 65  shall join as respondents the Commission concerned and the person or
Involves review of judgments, Involves the review of the persons interested in sustaining the judgment, final order or resolution a
final orders or resolutions of judgment final orders or quo.
COMELEC and COA resolutions of the CA,  The petition shall state the facts with certainty, present clearly the
Sandiganbayan, CTA, RTC or issues involved, set forth the grounds and brief arguments relied upon
other courts for review, and pray for judgment annulling or modifying the questioned
Filed within 30 days from notice Filed within 15 days from notice judgment, final order or resolution.
of judgment, final order or of judgment, final order or
resolution sought to be resolution appealed from Note:Findings of fact of the Commission supported by substantial evidence shall
reviewed be final and non-reviewable.
Does not stay the execution Stays the judgment or order
unless SC shall direct otherwise appealed from  state the specific material dates showing that it was filed within the
upon such terms as it may deem period fixed herein
just  shall contain a sworn certification against forum shopping
The COMELEC and COA shall The appellant and the appellee  accompanied by proof of service of a copy thereof on the Commission
be public respondents who are are the original parties to the concerned and on the adverse party, and of the timely payment of
impleaded in the action action, and the lower court or docket and other lawful fees.
quasi-judicial agency is not
impleaded GROUNDS TO DISMISS THE PETITION
The filing of MNT or MR, if Motion for reconsideration is not A. Failure to comply with the requirements
allowed under the procedural required B. if it was filed manifestly for delay
rules of the Commission, shall C. the questions raised are too unsubstantial to warrant further
interrupt period fixed proceedings
The court is in the exercise of its The court is in the exercise of its
appellate jurisdiction and appellate jurisdiction and power Order to comment: If the SC finds the petition sufficient in form and substance, it
power of review Petition for of review Petition for certiorari is shall order the respondents to file their comments on the petition
certiorari is to be filed before to be filed only with the Court of
the SC Appeals When to file comment:within 10 days from notice

Mode of review: A judgment or final order or resolution of the COMELEC and the Failure:the Court may dismiss the petition outright.
COA may be brought by the aggrieved party to the Supreme Court on certiorari
under Rule 65
Note: No other pleading may be filed by any party unless required or allowed by
How: throughverifiedpetition the Court.

Issues: question of law or want of jurisdiction Effect of filing petition for certiorari: shall not stay the execution of the
judgment or final order or resolution sought to be reviewed,
Time to file petition: within 30 days from notice of the judgment or final order or - Unless the SC shall direct otherwise upon such terms as it may deem
resolution sought to be reviewed. just.

© Gironella – Macadatar 2017 | Special Civil Actions 85


Submission for decision: the case shall be deemed submitted for decision upon the The petition shall likewise be accompanied by a certified true copy of the
filing of the comments on the petition, or of such other pleadings or papers as may judgment, order or resolution subject thereof, copies of all pleadings and
be required or allowed, or the expiration of the period to do so. documents relevant and pertinent thereto, and a sworn certification of non-forum
- Unless the Court sets the case for: shopping as provided in the third paragraph of section 3, Rule 46. (2a)
 oral argument,
 requires the parties to submit memoranda Section 3. Petition for mandamus. — When any tribunal, corporation, board,
officer or person unlawfully neglects the performance of an act which the law
Q: Where shall be a decision of the Civil Service Commission be specifically enjoins as a duty resulting from an office, trust, or station, or
appealed unlawfully excludes another from the use and enjoyment of a right or office to
which such other is entitled, and there is no other plain, speedy and adequate
A: It shall be appeals to the Court of Appeals which has exclusive remedy in the ordinary course of law, the person aggrieved thereby may file a
appellate jurisdiction over all judgments or final orders of such verified petition in the proper court, alleging the facts with certainty and praying
commission. that judgment be rendered commanding the respondent, immediately or at some
other time to be specified by the court, to do the act required to be done to protect
Q: May the prevailing party in an election protest file a motion for the rights of the petitioner, and to pay the damages sustained by the petitioner by
execution pending appeal? reason of the wrongful acts of the respondent.

A: YES because the filing of a petition for certiorari from a judgment The petition shall also contain a sworn certification of non-forum shopping as
or final order of the COMELEC shall not stay the execution of the provided in the third paragraph of section 3, Rule 46. (3a)
judgment or order sought to be reviewed, unless ordered otherwise
Section 4. When and where petition filed. — The petition shall be filed not later
The COMELEC can grant execution pending appeal in the exercise than sixty (60) days from notice of the judgment, order or resolution. In case a
of its appellate jurisdiction motion for reconsideration or new trial is timely filed, whether such motion is
required or not, the sixty (60) day period shall be counted from notice of the denial
of said motion.
Certiorari, Prohibition, Mandamus
The petition shall be filed in the Supreme Court or, if it relates to the acts or
Petition for certiorari:
omissions of a lower court or of a corporation, board, officer or person, in the
Regional Trial Court exercising jurisdiction over the territorial area as defined by
When any tribunal, board or officer exercising judicial or quasi-judicial functions
the Supreme Court. It may also be filed in the Court of Appeals whether or not the
has acted:
same is in aid of its appellate jurisdiction, or in the Sandiganbayan if it is in aid of
 without or in excess its or his jurisdiction, or
its appellate jurisdiction. If it involves the acts or omissions of a quasi-judicial
 with grave abuse of discretion amounting to lack or excess of
agency, unless otherwise provided by law or these Rules, the petition shall be filed
jurisdiction, and
in and cognizable only by the Court of Appeals.
 there is no appeal, or any plain, speedy, and adequate remedy in the
ordinary course of law
No extension of time to file the petition shall be granted except for compelling
reason and in no case exceeding fifteen (15) days. (4a) (Bar Matter No. 803, 21 July
a person aggrieved thereby may file a verified petition in the proper court, alleging
1998; A.M. No. 00-2-03-SC)
the facts with certainty and praying that judgment be rendered annulling or
modifying the proceedings of such tribunal, board or officer, and granting such
Section 5. Respondents and costs in certain cases. — When the petition filed
incidental reliefs as law and justice may require.
relates to the acts or omissions of a judge, court, quasi-judicial agency, tribunal,
corporation, board, officer or person, the petitioner shall join, as private
The petition shall be accompanied by a certified true copy of the judgment, order or
respondent or respondents with such public respondent or respondents, the
resolution subject thereof, copies of all pleadings and documents relevant and
person or persons interested in sustaining the proceedings in the court; and it shall
pertinent thereto, and a sworn certification of non-forum shopping as provided in
be the duty of such private respondents to appear and defend, both in his or their
the third paragraph of section 3, Rule 46. (1a)
own behalf and in behalf of the public respondent or respondents affected by the
proceedings, and the costs awarded in such proceedings in favor of the petitioner
Section 2. Petition for prohibition. — When the proceedings of any tribunal,
shall be against the private respondents only, and not against the judge, court,
corporation, board, officer or person, whether exercising judicial, quasi-judicial or
quasi-judicial agency, tribunal, corporation, board, officer or person impleaded as
ministerial functions, are without or in excess of its or his jurisdiction, or with
public respondent or respondents.
grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no
appeal or any other plain, speedy, and adequate remedy in the ordinary course of
Unless otherwise specifically directed by the court where the petition is pending,
law, a person aggrieved thereby may file a verified petition in the proper court,
the public respondents shall not appear in or file an answer or comment to the
alleging the facts with certainty and praying that judgment be rendered
petition or any pleading therein. If the case is elevated to a higher court by either
commanding the respondent to desist from further proceedings in the action or
party, the public respondents shall be included therein as nominal parties.
matter specified therein, or otherwise granting such incidental reliefs as law and
However, unless otherwise specifically directed by the court, they shall not appear
justice may require.
or participate in the proceedings therein. (5a)

© Gironella – Macadatar 2017 | Special Civil Actions 86


Section 6. Order to comment. — If the petition is sufficient in form and substance
to justify such process, the court shall issue an order requiring the respondent or Elective Office Appointive Office
respondents to comment on the petition within ten (10) days from receipt of a copy Issue: eligibility of the respondent Issue: validity of the
thereof. Such order shall be served on the respondents in such manner as the court appointment
may direct together with a copy of the petition and any annexes thereto. Occupant declared Court will oust the person
ineligible/disloyal will be illegally appointed and will
In petitions for certiorari before the Supreme Court and the Court of Appeals, the unseated but petitioner will not order the seating of the person
provisions of section 2, Rule 56, shall be observed. Before giving due course thereto, be declared the rightful occupant who was legally appointed and
the court may require the respondents to file their comment to, and not a motion to of the office. entitled to the office.
dismiss, the petition. Thereafter, the court may require the filing of a reply and such
other responsive or other pleadings as it may deem necessary and proper. (6a) Distinguish quo warranto under Rule 66 from quo warranto under Omnibus
Election Code:
Section 7. Expediting proceedings; injunctive relief. — The court in which the
petition is filed may issue orders expediting the proceedings, and it may also grant a Quo Warranto In
temporary restraining order or a writ of preliminary injunction for the preservation Quo Warranto Under Rule 66
Electoral Proceedings
of the rights of the parties pending such proceedings. The petition shall not
Prerogative writ by which the To contest the right of an
interrupt the course of the principal case unless a temporary restraining order or a
government can call upon any person elected public officer to
writ of preliminary injunction has been issued against the public respondent from
to show by what title he holds a hold public office.
further proceeding in the case. (7a)
public office or exercises a public
franchise.
Section 8. Proceedings after comment is filed. — After the comment or other
Grounds: Grounds:
pleadings required by the court are filed, or the time for the filing thereof has
1. usurpation ineligibility or
expired, the court may hear the case or require the parties to submit memoranda. If
2. forfeiture disqualification to hold the
after such hearing or submission of memoranda or the expiration of the period for
3. illegal association office
the filing thereof the court finds that the allegations of the petition are true, it shall
Presupposes that the respondent is Petition must be filed
render judgment for the relief prayed for or to which the petitioner is entitled.
already actually holding office and within 10 days from the
action must be commenced within 1 proclamation of the
The court, however, may dismiss the petition if it finds the same to be patently
year from cause of ouster or from the candidate.
without merit, prosecuted manifestly for delay, or that the questions raised therein
time the right of petitioner to hold
are too unsubstantial to require consideration. (8a)
office arose.
The petitioner must be the May be filed by any voter
Section 9. Service and enforcement of order or judgment. — A certified copy of the
government or the person entitled to even if he is not entitled to
judgment rendered in accordance with the last preceding section shall be served
the office and who would assume the the office.
upon the court, quasi-judicial agency, tribunal, corporation, board, officer or person
same if his action succeeds.
concerned in such manner as the court may direct, and disobedience thereto shall
be punished as contempt. An execution may issue for any damages or costs awarded Person adjudged entitled to the office Actual or compensatory
in accordance with section 1 of Rule 39. (9a) may bring a separate action against damages are recoverable in
the respondent to recover damages. quo warrantoproceedings
under the OEC.
Quo Warranto

Who files:
A proceeding or writ issued by the court to determine:
1. Solicitor General or Public Prosecutor
 the right to use an office, position or franchise and
2. A person claiming to be entitled to public office
 to oust the person holding or exercising such office, position or franchise
if his right is unfounded or if a person performed acts considered as
 Leave of court is sine quo non
grounds for forfeiture of said exercise of position, office or franchise.
 Must be set for hearing
 The respondent must be duly notified
How to commence the action: by a verified petition brought in the name of the
Republic of the Philippines
Classification of quo warranto:
1. Mandatory
Against who:
2. Discretionary
a. A person who usurps, intrudes into, or unlawfully holds or exercises a public
office, position or franchise;
When Solicitor General or public prosecutor must commence action:
b. A public officer who does or suffers an act which, by the provision of law,
(MANDATORY)
constitutes a ground for the forfeiture of his office; or
1. When directed by the President of the Philippines
c. An association which acts as a corporation within the Philippines without
2. When upon complaint
being legally incorporated or without lawful authority so to act.
3. when he has good reason to believe that any case specified in the
preceding section can be established by proof
Distinguish quo warranto in elective office from an appointive office.

© Gironella – Macadatar 2017 | Special Civil Actions 87


3. Such further judgment may be rendered determining the respective
When Solicitor General or public prosecutor may commence action with rights in and to the public office, position or franchise of all the parties
permission of court: (DISCRETIONARY) to the action as justice requires.
 At the request and upon the relation of another person;
 but the officer bringing it may first require an indemnity for the expenses Judgment in favor of the complaint to be entitled to the public office: he may,
and costs of the action after taking the oath of office and executing any official bond required by law,
o Amount: approved by and to be deposited in the court by the 1. Take upon himself the execution of the office
person at whose request and upon whose relation the same is 2. may immediately thereafter demand of the respondent all the books and
brought. papers in the respondent's custody or control appertaining to the office
to which the judgment relates.
What Court: the court in which the action is to be commenced
Respondent refuses or neglects to deliver any book or paper pursuant to such demand, he may be
Hearing: the court shall direct that notice be given to the respondent so that he may punished for contempt as having disobeyed a lawful order of the court.
be heard in opposition thereto
3. The person adjudged entitled to the office may also bring action against
When an individual may commence such an action: A person claiming to be the respondent to recover the damages sustained by such person by
entitled to a public office or position usurped or unlawfully held or exercised by reason of the usurpation.
another may bring an action therefor in his own name.
Prescriptive period of the action: must be commenced within 1 year after the
Contentsof petition against usurpation: cause of such ouster, or the right of the petitioner to hold such office or position,
 set forth the name of the person who claim to be entitled thereto, if any arose
 with an averment of his right to the same
 that the respondent is unlawfully in possession thereof. Prescriptive period of an action for damages: must be commenced within 1 year
after the entry of the judgment establishing the petitioner's right to the office in
Parties: All persons who claim to be entitled to the public office, position or question.
franchise may be made parties, and their respective rights to such public office,
position or franchise determined, in the same action. Expropriation

Venue:only in the: It is the procedure in enforcing the right of eminent domain.


1. Supreme Court When proper:
2. the Court of Appeals 1. The owner refuses to sell
3. in the RTC exercising jurisdiction over the territorial area where the 2. When the latter agrees, agreement to the price cannot be reached.
respondent or any of the respondents resides
4. But when the Solicitor General commences the action, it may be brought Requisites of a valid expropriation:
in a RTC in the City of Manila, in CA, or in the SC. 1. Due process of law
2. Payment of just compensation
Priority: the action may be given precedence over any other civil matter pending in 3. Taking must be for public use
the court.
How to commence: by the filing of a verified complaint
Q: A group of businessmen formed an association in Cebu City
calling itself Cars Co. to distribute/sell cars in said city. It did not Note: it is the actual filing of the complaint which binds the land
incorporate itself under the law nor did it have any government  However the owner of the land may still dispose the property
permit or license to conduct its business as such. The Solicitor  The grantee would merely be substituted in his place and holds the land
General filed before the RTC in Manila a verified petition for quo subject of the result of the action
warranto questioning and seeking to stop the operations of Cars Co.
The latter filed a motion to dismiss the petition on the ground of Contents:
improper venue claiming that its main office and operations are in 1. shall state with certainty the right and purpose of expropriation
Cebu City and not in Manila. Is the contention of Cars Co. correct? 2. describe the real or personal property sought to be expropriated
Why? 3. join as defendants all persons owning or claiming to own, or occupying,
any part thereof or interest therein, showing, so far as practicable, the
A: No. As expressly provided in the Rules, when the Solicitor separate interest of each defendant.
General commences the action for quo warranto, it may be brought 4. Averment shall be made in the complaint for the following
in a Regional Trial Court in the City of Manila, as in the case, in the a. If the title to any property sought to be expropriated appears
CA or in the SC (Sec. 7, Rule 66). (2001 Bar Question) to be in the Republic of the Philippines, although occupied by
private individuals; or
Judgment where usurpation found: b. If the title is otherwise obscure or doubtful so that the
1. Respondent be ousted and altogether excluded therefrom plaintiff cannot with accuracy or certainty specify who are
2. That the petitioner or relator, as the case may be, recover his costs. the real owners.
© Gironella – Macadatar 2017 | Special Civil Actions 88
shall deliver its 5-hectare lot in Sta. Rosa, Laguna originally
Properties that are subject to expropriation: intended as a residential subdivision for the Manila City Hall
All properties can be expropriated, except money and choses of action. employees. Explain.

Choses of action – right to personal things of which the owner has not the possession, A: Yes, Congress may enact a law to expropriate property but it
but merely a right of action for their possession cannot limit just compensation. The determination of just
compensation is a judicial function and Congress may not supplant
Jurisdiction: RTC or prevent the exercise of judicial discretion to determine just
compensation. Under Sec. 5, Rule 67 of the Rules of Court, the
TWO STAGES ascertainment of just compensation requires the evaluation of 3
commissioners. (2006 Bar Question)
1. Determination of the authority of the plaintiff to exercise the power of
eminent domain and the propriety of the exercise in the context of the Entry of plaintiff:
facts involved. 1. Upon the filing of the complaint or at any time thereafter
2. after due notice to the defendant
It will end at the order of issuance of expropriation 3. he deposits with the authorized government depositary
4. tender, or payment with legal interest from taking of possession of the
2. Determination of just compensation though the court appointed property, of compensation fixed by the judgment and payment of costs
commissioners by plaintiff.

Q: City of Iloilo (petitioner) represented by Mayor Treñas filed a See: RA 8974


complaint for eminent domain against Javellana seeking to
expropriate two parcels of land. Mayor Treñas filed a motion for Form of deposit:Such deposit shall be in:
issuance of writ of possession alleging that it had deposited 10% of  money,
the amount of compensation of which the court issued. A writ of  certificate of deposit of a government bank of the Republic of the
possession was subsequently issued, and petitioner was able to take Philippines payable on demand to the authorized government
physical possession of the properties. After which, the depositary.
expropriation proceedings remained dormant. 16 years later,
Javellana filed an ex parte motion/manifestation, where he alleged Note: once the preliminary deposit has been made, the expropriator is entitled to a
that when he sought to withdraw the money, he discovered that no writ of possession as a matter of right
deposit was made. Thus, Javellana filed a complaint for recovery of
possession, fixing and recovery of rental and damages. The City of Amount of deposit:
Iloilo argues that Javellana could no longer bring an action for  Real Property – tax return
recovery since the subject property was already taken for public  Personal Property - fixed by the court
use. The trial court in its orders and amended orders maintained
that the assailed orders issued by it were interlocutory in character Note: the preliminary deposit is necessary if the petitioner desires to enter the
and as such are always subject to modification and revision by the land upon its institution of action
court anytime. Is the order of expropriation final?
Defenses and objections:
A: Expropriation proceedings have two stages. The first phase ends NO objections: the defendant may file and serve a notice of appearance and a
with an order of dismissal, or a determination that the property is to manifestation to that effect, specifically designating or identifying the property in
be acquired for a public purpose. The second phase consists of the which he claims to be interested, within the time stated in the summons.
determination of just compensation. Both orders, being final, are - Thereafter, he shall be entitled to notice of all proceedings affecting the
appealable. same.

An order of condemnation or dismissal is final, resolving the


There are objections:he shall serve his answer within the time stated in the summons.
question of whether or not the plaintiff has properly and legally
exercised its power of eminent domain. Once the first order
Contents of the Answer:
becomes final and no appeal thereto is taken, the authority to
1. Shall specifically designate or identify the property in which he claims
expropriate and its public use can no longer be questioned. Thus, it
to have an interest
has become final, and the petitioner’s right to expropriate the
2. state the nature and extent of the interest claimed
property for a public use is no longer subject to review.
3. adduce all his objections and defenses to the taking of his property

Q: May Congress enact a law providing that a 5,000 square meter Prohibited:No counterclaim, cross-claim or third-party complaint shall be alleged
lot, a part of the UST compound in Sampaloc, Manila, be or allowed in the answer or any subsequent pleading.
expropriated for the construction of a park in honor of former City
Mayor ArsenioLacson? As compensation to UST, the City of Manila Note: A defendant waives all defenses and objections not so alleged

© Gironella – Macadatar 2017 | Special Civil Actions 89


Remedy of the defendant if the answer omits some defenses: Ascertainment of compensation: the court shall appoint not more than 3
 Amendment to the answer competent and disinterested persons as commissioners
 to be made not later than 10 days from the filing thereof.  To ascertain and report to the court the just compensation for the
property sought to be taken.
Exception:at the trial of the issue of just compensation whether or not a defendant
has previously appeared or answered, he may present evidence as to the amount of Contents of the order of appointment: it shall:
the compensation to be paid for his property, and he may share in the distribution 1. Designate the time
of the award. 2. place of the first session of the hearing to be held by the commissioners
3. specify the time within which their report shall be submitted to the
Order of Default: defendant cannot be declared in default. Failure to fle an answer court.
would not bar the court from rendering judgment on the right of expropriation
without prejudice to the defendant’s right to present evidence on just compensation Objections to the appointment: shall be filed with the court within 10 days from service
and to share in the distribution of the award - shall be resolved within 30 days after all the commissioners shall have
received copies of the objections.
ORDER OF EXPROPRIATION
Proceedings by commissioners:
When:  Before entering upon the performance of their duties
1. If the objections to and the defenses against the right of the plaintiff to o the commissioners shall take and subscribe an oath that they
expropriate the property are overruled, or will faithfully perform their duties as commissioners
2. when no party appears to defend as required by this Rule
The oath shall be filed in court with the other proceedings in the case.
Action against the order:may be appealed by any party aggrieved by record on
appeal  Evidence may be introduced by either party before the commissioners
who are authorized to administer oaths on hearings before them
Effect of the appeal:Such appeal, however, shall not prevent the court from  The commissioners shall, unless the parties consent to the contrary,
determining the just compensation to be paid. after due notice to the parties, to attend, view and examine the property
sought to be expropriated and its surroundings, and may measure the
Note: After the rendition of such an order, the plaintiff shall not be permitted to same,
dismiss or discontinue the proceeding except on such terms as the court deems just o after which either party may, by himself or counsel, argue the
and equitable. case.
 The commissioners shall assess the consequential damages to the
Reversal of the decision on appeal:if the appellate court determines that plaintiff property not taken and deduct from such consequential damages the
has no right of expropriation, judgment shall be rendered ordering the RTC to consequential benefits to be derived by the owner from the public use or
forthwith: purpose of the property taken, the operation of its franchise by the
 enforce the restoration to the defendant of the possession of the corporation or the carrying on of the business of the corporation or
property, and person taking the property.
 to determine the damages which the defendant sustained and may o But in no case shall the consequential benefits assessed
recover by reason of the possession taken by the plaintiff exceed the consequential damages assessed, or the owner be
deprived of the actual value of his property so taken.
JUST COMPENSATION
Report by commissioners and judgment thereupon:
It is the full and equivalent of the property sought to be expropriated.  The court may order the commissioners to report when any particular
 The measure is not the taker’s gain but the owner’s loss portion of the real estate shall have been passed upon by them, and may
 To be just, it must be fair not only to the owner but also to the taker render judgment upon such partial report,
 Direct the commissioners to proceed with their work as to subsequent
The payment of just compensation to be determined as of the date of: portions of the property sought to be expropriated, and may from time
1. the taking of the property or to time so deal with such property.
2. the filing of the complaint, whichever came first.  The commissioners shall make a full and accurate report to the court of
all their proceedings, and such proceedings shall not be effectual until
How to determine just compensation: first ascertain the market value of the the court shall have accepted their report and rendered judgment in
property then add consequential damages less consequential benefits accordance with their recommendations.
When to file the report:within 60 days from the date the commissioners were notified
Effect of nonpayment of just compensation: of their appointment
 does not entitled the private owner to recover possession - which time may be extended in the discretion of the court.
 except non Payment within 5 years

APPOINTMENT OF COMMISSIONERS
© Gironella – Macadatar 2017 | Special Civil Actions 90
Objections to the finding of the report:Upon the filing of such report, the clerk of the court 4. date of the note or other documentary evidence of the obligation secured
shall serve copies thereof on all interested parties, with notice that they are allowed by the mortgage, the amount claimed to be unpaid thereon; and
10 days within which to file objections to the findings of the report 5. the names and residences of all persons having or claiming an interest in
the property subordinate in right to that of the holder of the mortgage
Action upon commissioners' report:
Causes of Action in a Foreclosure Suit:
When: Upon the expiration of the period of 10 day period to file objection, or even  non-payment of the mortgage loan
before the expiration of such period but after all the interested parties have filed  violation of some of the conditions therein
their objections to the report or their statement of agreement therewith
Defendants that must be joined:
Court’s Action: 1. the persons obligated to pay the mortgage debt
1. The court may, after hearing, accept the report and render judgment in 2. the persons who won, occupy, or control the mortgage premises
accordance therewith, 3. the transferee or grantee of the property
2. for cause shown, it may recommit the same to the commissioners for 4. the second mortgagee or junior encumbrancer, or any person claiming a
further report of facts, or right or interest in the property subordinate to the mortgage sought to
3. it may set aside the report and appoint new commissioners; or be foreclosed
4. it may accept the report in part and reject it in part and it may make such
order or render such judgment But if the action is by junior encumbrancer – the first mortgagee may also be joined
as defendant
Uncertain ownership; conflicting claims:
1. If the ownership of the property taken is uncertain, or Effect if the junior encumbrancer is not impleaded: His equity or right of
2. there are conflicting claims to any part thereof redemption is not affected or barred by the judgment of the court
- only a necessary party not an indispensable party
The court may order any sum or sums awarded as compensation for the property to
be paid to the court for the benefit of the person adjudged in the same proceeding to Judgment on foreclosure: It is the judgment of the court ordering the debtor to
be entitled thereto. pay
 within a period not less than 90 days nor more than 120 days from the
But the judgment shall require the payment of the sum or sums awarded to either entry of judgment after ascertaining the amount due to the plaintiff
the defendant or the court before the plaintiff can enter upon the property, or retain
it for the public use or purpose if entry has already been made. Foreclosure sale: When the defendant fails to pay the amount of the judgment
within the period specified therein, the court, upon motion, shall order the
Rights of plaintiff upon judgement and payment: property to be sold in the manner and under the provisions of Rule 39 and other
1. enter upon the property expropriated and to appropriate the same for regulations governing sales of real estate under executions
public use or purpose
2. to retain possession already previously made Effect of sale of mortgaged property: the purchaser in a foreclosure sale is
entitled to a writ of possession – ministerial upon the court
When defendant refuse to received the amount tendered:  he is not required to bring a separate action for possession after the
 deposited in court redemption period has expired
 effect as actual payment
Right to Notice of Sale of mortgage:
Foreclosure of Real Estate Mortgage
The mortgagor does not have the right to a notice of sale after his failure to pay the
Real Estate Mortgage: debt
 An accessory contract executed by a debtor in favor of a creditor as
security for principal obligation However: he is entitled to the notice of confirmation of sale

Foreclosure of REM: The order of confirmation is appealable.


It is the remedy used for the satisfaction of any monetary obligation, which a person
owes to another, by proceeding against the property used to secure said obligation. Effect of order of confirmation: it shall operate to divest the rights in the
property of all the parties to the action and to vest their rights in the purchaser,
Jurisdiction: RTC of the province where the land or any part thereof is located subject to such rights of redemption as may be allowed by law
 title retroacts to the date of the sale
Contents of a complaint for foreclosure of REM:
1. date and due execution of the mortgage; Remedy if the mortgagor refuses to vacate: ask for a writ of possession
2. the names and residences of the mortgagor and the mortgagee;
3. a description of the mortgaged property; Disposition of the proceeds of the sale done:
1. The proceeds of the sale of the mortgaged property shall, after deducting
the costs of the sale, be paid to the person foreclosing the mortgage

© Gironella – Macadatar 2017 | Special Civil Actions 91


2. When there shall be any balance or residue after paying off the mortgage 1. Judicial Foreclosure
debt due, the same shall be paid to junior encumbrances in the order of 2. Extra Judicial Foreclosure
their priority.
3. If there be any further balance after paying them or if there be no junior Judicial Foreclosure Extrajudicial Foreclosure
encumbrances, the same shall be paid to the mortgagor or any person Governed by Rule 68 Governed by Act 3135
entitled thereto There is only an equity of Right of redemption exists
redemption except when the
Delinquency Judgement: mortgagee is a bank
Requires court intervention No court intervention necessary
It is the judgment rendered by the court holding the defendant liable for any unpaid Mortgagee need not be given Mortgagee is given a special power
balance due to the mortgagee if the proceeds from the foreclosure sale do not satisfy a special power of attorney. of attorney in the mortgage
the entire debt. contract to foreclose the mortgaged
property in case of default.
Instances when the court cannot render deficiency judgment:
1. Where the debtor-mortgagor is a non-resident and who at the time of the A mortgagee may bring a personal action for the amount due, instead of a
filing of the action for foreclosure and during the pendency of the foreclosure suit, in which case, he will be deemed to have waived his right to
proceedings was outside the Philippines, unless there is attachment proceed against the property in a foreclosure proceeding. (Movido v. RFC, G.R.
2. Mortgagor dies, mortgagee may file his claim with the probate court No. L-11990, May 29, 1959)
3. Mortgagee is a third person but not solidarily liable with the debtor
4. Case is covered by the Recto Law Equity of Redemption Right of Redemption
Right of the defendant Right of the debtor, his successor in
Q: Arlene borrowed P1 million from GAP Bank (GAP) secured by mortgagor to extinguish interest or any judicial creditor or
the titled land of her friend Gretchen who, however, did not the mortgage and retain judgment creditor of said debtor or
assume personal liability for the loan. Arlene defaulted and GAP ownership of the property any person having a lien on the
filed an action for judicial foreclosure of the real estate mortgage by paying the debt within property subsequent to the mortgage
impleading Arlene and Gretchen as defendants. The court 90-120 days after the entry of or deed of trust under which the
rendered judgment directing Arlene to pay the outstanding property is sold to redeem the
judgment or even after the
account of P1.5 million (principal plus interest) to GAP. No property within 1 year from the
foreclosure sale but prior to
appeal was taken by Arlene. Arlene failed to pay the judgment
confirmation registration of the Sheriff’s certificate of
debt within the period specified in the decision. At the
foreclosure sale
foreclosure sale, the land was sold to GAP for P1.2 million. The
Governed by Rule 68 Governed by Secs. 29-31, Rule 39
sale was confirmed by the court, and the confirmation of the sale
was registered with the Registy of Deeds on January 5, 2002. On
There is no right of redemption in judicial foreclosure sale after the confirmation of
January 10, 2003, GAP filed an ex-parte motion with the court for
sale except those granted by banks or banking institutions in favor of non-judicial
the issuance of a writ of possession to oust Gretchen from the
persons as provided by the General Banking Act (Government Insurance System v.
land. It also filed a deficiency claim for P800,000 against Arlene
CFI of Iloilo, G.R. No. 45322, July 5, 1989).
and Gretchen. The deficiency claim was opposed by Arlene and
Gretchen.
In extrajudicial foreclosure, the mortgagor has the right to redeem the property
1. Resolve the motion for the issuance of a writ of possession.
within one year from the registration of the deed of sale. However, Sec. 47 of the
2. Resolve the deficiency claim of the bank.
General Banking Act provides that in case of extrajudicial foreclosure, juridical
persons shall have the right to redeem the property until, but not after, the
A:
registration of the certificate of foreclosure sale which in no case shall be more
1. In judicial foreclosure by banks such as GAP, the mortgagor or
than 3 months after foreclosure, whichever is earlier
debtor whose real property has been sold on foreclosure has the
right to redeem the property within 1 year after the sale (or
registration of the sale). However, under Sec. 47 of the General Partition / ActioCommuniDividendo
Banking Law of 2000, the purchaser at the auction sale has the
right to obtain a writ of possession after the finality of the order It is a process of dividing and assigning property owned in common among the
confirming sale. The motion for writ of possession, however, various co-owners thereof in proportion to their respective interests in said
cannot be filed ex parte. There must be a notice of hearing. property.

2. The deficiency claim of the bank may be enforced against the It presupposes the existence of a co-ownership over a property between two or
mortgage debtor Arlene, but it cannot be enforced against more persons.
Gretchen, the owner of the mortgaged property, who did not
assume personal liability of the loan. (2003 Bar Question) How initiated: through complaint

Modes of Foreclosure: Requisites:


1. Right to compel the partition;

© Gironella – Macadatar 2017 | Special Civil Actions 92


2. Complaint must state the nature and extent of plaintiff's title and a
description of the real estate of which partition is demanded; and The parties may make the partition among themselves by proper instruments of
3. All other persons interested in the property must be joined as defendants conveyance, if they agree among themselves.
 the court shall then confirm the partition so agreed upon by all of the
Instances when a co-owner may not demand partition: parties,
1. There is an agreement among the co-owners to keep the property  such partition, together with the order of the court confirming the same,
undivided for a certain period of time but not exceeding 10 years shall be recorded in the registry of deeds of the place in which the
2. When the partition is prohibited by the donor or testator for a period not property is situated
exceeding 20 years
3. When partition is prohibited by law 2. By judicial proceedings under Rule 69
4. When property is not subject to physical division and to do so would
render it unserviceable for the use for which it is intended Order of Partition: it is an order to directs the parties or co-owners to partition
5. When the condition imposed upon voluntary heirs before they can the property
demand partition has not yet been fulfilled
When court can issue the order of partition: the court shall determine whether
Who file: The plaintiff is a person who is supposed to be a co-owner of the or not the plaintiff is truly a co-owner and there is co-ownership and that partition
property or estate sought to be partitioned. is not legally proscribed, the court will issue an order of partition.

Who should be the defendant: The defendants are all the co-owners. PARTITION BY COMMISSIONERS;

Effect of non-inclusion of a co-owner in an action for partition: Nature of appointment: The appointment of commissioners is mandatory unless
1. Before judgment – not a ground for a motion to dismiss. there is an extrajudicial partition between the parties
 The remedy is to file a motion to include the party.
2. After judgment – makes the judgment therein void because co-owners Appointment of Commissioners: the court shall appoint not more than 3
are indispensable parties. commissioners of competent and disinterested persons to make partition.

Who may intervene: Duties of the Commissioners:


Creditors or assignees of co-owners may intervene and object to a partition affected a. They shall make full and accurate report to the court of all their
without their concurrence. proceedings as to the partition.
 But they cannot impugn a partition already executed unless there has b. The assignment of real estate to one of the parties
been fraud or in case it was made notwithstanding a formal opposition c. The sale of the same
presented to prevent it.
Assignment or sale of real estate by commissioners:
Jurisdictional Facts:
1. the nature and extent of his title When it is made to appear to the commissioners that the real state, or a portion
2. an adequate description of the real estate of which partition is demanded thereof, cannot be divided without prejudice to the interests of the parties: the court
3. shall join as defendants all other persons interested in the property may order it assigned to one of the parties willing to take the same
4. He must also include a demand for the accounting of the rents, profits  provided he pays to the other parties such amount as the commissioners
and other income from the property which he may be entitled to. deem equitable

Note: These cannot be demanded in another action because they are parts of the Unless one of the interested parties asks that the property be sold instead of being
cause of action for partition. so assigned
 in which case the court shall order the commissioners to sell the real
When allegations of the complaint allege that the plaintiff asserts exclusive estate at public sale under such conditions and within such time as the
ownership: the nature of the action is not one for partition court may determine
 It is an action for recovery of property
Commissioner’s Report:
TWO STAGES They shall make full and accurate report to the court of all their proceedings as to
the partition.
First Stage: proprietary of the partition  Upon the filing of such report, copies of which shall be served to the
 Whether co-ownership exists clerk of court upon all interested parties with notice that they are
allowed 10 days within which to file objections to the findings of the
Second Stage: Partition proper report, if they so desire.
 How to actually partition of the property and accounting
Action to the report: The court may upon hearing:
Modes of partition:  Accept the report and render judgment in accordance with the same
 may recommit to the commissioners for further proceedings, or
1. By agreement of the parties

© Gironella – Macadatar 2017 | Special Civil Actions 93


 reject the report and render judgment that shall effectuate a fair and just How initiated: by a verified complaint
partition
Requisites of a valid unlawful detainer
Judgment: 1. Possession of any land or building is unlawfully withheld from a lessor,
vendor, vendee, or other person after the expiration or termination of
1. if actual partition of property is made, the judgment shall state definitely the right to hold possession by virtue of any contract express or implied;
a. the metes and bounds and adequate description and 2. Action is brought within 1 year after such unlawful deprivation or
b. the particular portion of the real estate assigned to each party withholding of possession; and
2. if the whole property is assigned to one of the parties upon his paying to 3. Demand to pay or comply with the conditions of the lease and to vacate
the others the sum or sums ordered by the court, the judgment shall state is made upon the lessee.
the fact of such payment, and of the assignment of the real estate to the
party making the payments NOTE: formal contract is not a prerequisite
3. and if the property is sold and the sale confirmed by the court, the  Implied contracts are covered by ejectment proceedings
judgement shall estate  Possession by tolerance creates an implied promise to vacate the
a. the name of the purchaser premises upon the demand of the owner
b. a definite description of the parcels of real estate sold to each
purchaser Forcible Entry (Detentacion) Unlawful Detainer
(Desahucio)
Stages of the partition that are subject to appeal: Possession of the land by the Possession is inceptively lawful
1. order determining the proprietary of the partition defendant is unlawful from the but it becomes illegal by reason
2. judgment as to the fruits and income of the property beginning as he acquires of the termination of his right to
3. judgment of partition possession by FISTS the possession of the property
under his contract with the
Mode of appeal: record on appeal plaintiff.
No previous demand for the Demand is jurisdictional if the
PRECRIPTION OF ACTION defendant to vacate the premises is ground is non-payment of
necessary. rentals or failure to comply
General Rule: action does not prescribed with the lease contract.
The plaintiff must prove that he The plaintiff must prove that he
Exception: where there exist a clear repudiation of the co-ownership and the co- was in prior physical possession of was in prior physical possession
owners are apprised of the claim of adverse and exclusive ownership the premises until he was deprived of the premises until he was
thereof by the defendant. deprived thereof by the
defendant.
Forcible Entry and Unlawful Detainer The 1 year period is generally Period is counted from the date
counted from the date of actual of last demand or last letter of
FORCIBLE ENTRY entry on the land. demand.

It is entry effected by force, intimidation, threat, strategy, or stealth; the action is to Exception: when entry is by stealth,
recover possession founded upon illegal possession from the beginning. the period must be counted from
the demand to vacate upon
How initiated: by a verified complaint learning of the stealth

Requisites: ACTIONS AVAILABLE TO RECOVER POSSESSION OF REAL PROPERTY


1. A person is deprived of possession of any land or building
2. by force, intimidation, threat, strategy, or stealth (FISTS) 1. Accioninterdictal
3. Action is brought within 1 year from the unlawful deprivation. 2. AccionPubliciana
3. AccionReinvidicatoria
Questions to be resolved
1. Who has actual possession over the real property; Accion Accion Accion
2. Was the possessor ousted therefrom within one year from the filing of Interdictal Publiciana Reinvindicatoria
the complaint by force, intimidation, strategy, threat or stealth; and Summary action for A plenary action for An action for the
3. Does the plaintiff ask for the restoration of his possession the recovery of physical the recovery of the real recovery of
possession where the right of possession ownership, which
UNLAWFUL DETAINER dispossession has not when the necessarily
lasted for more than 1 dispossession has includes the
It is unlawful detention by a person who has acquired possession rightfully, but year. lasted for more than 1 recovery of
who detains the property after the right to keep possession has ended. year. possession.

© Gironella – Macadatar 2017 | Special Civil Actions 94


All cases of forcible RTC has jurisdiction Same with  It has been ruled, however, that the demand upon a tenant may be oral
entry and unlawful if the value of the publiciana (Jakihaca vs. Aquino, 181 SCRA 67).
detainer irrespective property exceeds  Sufficient evidence must be adduced to show that there was indeed a
of the amount of P20,000 or P50,000 demand like testimonies from disinterested and unbiased witnesses.
damages or unpaid in MM.
rentals sought to be Effect non-compliance with the demand:
recovered should be MTC - value of the  After 15 days in case of land or 5 days in the case of building
brought to the MTC. property does not  The lessor may now proceed against the lessee
exceed the above
amounts. When prior demand in unlawful detainer is not required:
1. Where the purpose of the action is to terminate the lease by reason of
Ejectment cases: are summary proceedings expiry of its term
2. Where the purpose of the suit is not for ejectment but for the
Note: the amount of rents and damages claimed does not affect jurisdiction of the reinforcement of the terms of the contract
MTCs because the same are only incidental or accessory to the main action 3. When the defendant is not a tenant but a mere intruder
4. When there is stipulation dispensing with a demand
Effect of the pendency of an action involving ownership on an action for FEUD:
TACITA RECONDUCCION
It does not bar the filing of ejectment suit, nor suspend the proceedings. If at the end of the contract the lessee should continue enjoying the thing leased for
fifteen days with the acquiescence of the lessor, and unless a notice to the contrary
Who may institute the action: by either party has previously been given, it is understood that there is an implied
1. a person deprived of the possession of any land or building by FISTS, or new lease
2. a lessor, vendor, vendee, or other person against whom the possession of
any land or building is unlawfully withheld after the expiration or  When there is tacitareconduccion, the lessee cannot be deemed as
termination of the right to hold possession, by virtue of any contract, unlawfully withholding the property
express or implied, or
3. the legal representatives or assigns of any such lessor, vendor, vendee, or Can the court grant injunction while the case is pending? YES. To prevent the
other person defendant from committing further acts of dispossession against the plaintiff

Pleadings allowed: When to file: within 5 Days from the filing of the complain
 complaint  The court shall decide the motion within thirty (30) days from the filing
 compulsory counterclaim thereof
 cross claim
 and the answers thereto Instances may the court resolve issue of ownership:

Note: all pleadings must be verified (1) When the issue of possession cannot be resolved without resolving the issue
of ownership; and
Action on the Complaint:the court may: (2) The issue of ownership shall be resolved only to determine the issue of
 dismiss the case outright on any grounds for dismissal of a civil action possession
 if no ground for dismissal is found, issue summons
Note: the only issue involved in ejectment cases is as to who is entitled to the
When is demand necessary: physical and material possession of the premises – possession de facto and not de
jure
The requirement for a demand implies that the mere failure of the occupant to pay
rentals or his failure to comply with the conditions of the lease does not ipso facto Judgment: conclusive only as to the possession of the property. Does not bind the
render his possession of the premises unlawful. title or affect the ownership of the land or building
 It is the failure to comply with the demand that vests upon the lessor a
cause of action. Binding of Judgment:

What constitute demand: General Rule: binding only upon the parties properly impleaded and given
1. To pay and to vacate – based on defendant’s failure to pay rentals opportunity to be heard
2. To comply and to vacate – defendant’s noncompliance with the terms
and conditions Exceptions:
1. A sublessee is bound by the judgment against the lessee – right to the
Form of demand: premises is merely subsidiary
 Written notice served upon the person found in the premises. 2. A guest or successor in interest, the members of the family of the lessee
 By posting a written notice on the premises if no person can be found or his servants or employees
thereon 3. Trespassers, squatters or agents of the defendant
© Gironella – Macadatar 2017 | Special Civil Actions 95
4. Transferees pendente lite nad other privies of the defendant 2. Civil or Criminal, depending on the nature and effect of the
contemptuous act.
Amount of Monetary award:
 It is immaterial to the court’s jurisdiction Direct Contempt Indirect Contempt
Committed in the presence Not committed in the presence of
Damages caused by his loss of the use and possession of the premises – entitled to of or so near a court. the court.
damages. Summary in nature Punished after being charged and
heard
Damages caused on the land or building - claim it in an ordinary civil action. If committed against: IF COMMITTED AGAINST:
1. RTC – fine not exceeding 1. RTC – FINE NOT EXCEEDING
Stay of the execution of Judgement: P2,000 or imprisonment not P30,000 OR IMPRISONMENT
1. Perfect an appeal; exceeding 10 days or both. NOT EXCEEDING 6 MONTHS
2. File a supersedeas bond to pay for the rents, damages and costs accruing 2. MTC – fine not exceeding OR BOTH
down to the time of the judgment appealed from; When not required P200 or imprisonment not 2. MTC – fine not exceeding P5,000
a. Monetary award in the judgment of the inferior court has been exceeding 1 day, or both. or imprisonment not exceeding 1
deposited with the court month or both
b. Judgment if the lower court did not make findings with
respect to any amount in arrears, damages or cost against the Remedy:Certiorarior Remedy: Appeal (by notice of appeal)
defandant prohibition
3. Deposit periodically with the RTC, during the pendency of the appeal, Constructive contempt
Contempt in facie curiae
the adjudged amount of rent due under the contract or if there be no
contract, the reasonable value of the use and occupation of the premises
DIRECT CONTEMPT

Prohibited pleadings and motion under Rule 70:


Grounds:
1. Motion to dismiss the complaint except on the ground of lack of
1. A person guilty of misbehavior in the presence of or so near a court as to
jurisdiction over the subject matter, or failure to comply with section 12;
obstruct or interrupt the proceedings before the same:
2. Motion for a bill of particulars;
2. disrespect toward the court
3. Motion for new trial, or for reconsideration of a judgment, or for
3. offensive personalities toward others,
reopening of trial;
4. refusal to be sworn or to answer as a witness, or to subscribe an affidavit
4. Petition for relief from judgment;
or deposition when lawfully required to do so,
5. Motion for extension of time to file pleadings, affidavits or any other
paper;
INDIRECT CONTEMPT
6. Memoranda;
7. Petition for certiorari, mandamus, or prohibition against any
Grounds:
interlocutory order issued by the court;
a. Misbehavior of an officer of a court in the performance of his official duties or
8. Motion to declare the defendant in default;
in his official transactions;
9. Dilatory motions for postponement;
10. Reply;
b. Disobedience of or resistance to a lawful writ, process, order, or judgment of a
11. Third-party complaints;
court, including the act of a person who, after being dispossessed or ejected
12. Interventions
from any real property by the judgment or process of any court of competent
jurisdiction, enters or attempts or induces another to enter into or upon such
Contempt real property, for the purpose of executing acts of ownership or possession, or
in any manner disturbs the possession given to the person adjudged to be
It is a defiance of the authority, justice or dignity of the court; such conduct as tends entitled thereto;
to bring the authority and administration of the law into disrespect or to interfere
with, or prejudice litigant or their witnesses during litigation c. Any abuse of or any unlawful interference with the processes or proceedings
of a court not constituting direct contempt
Nature of contempt power: The power to punish for contempt is inherent in all
courts d. Any improper conduct tending, directly or indirectly, to impede, obstruct, or
degrade the administration of justice;
Dual Aspects:
1. Primarily, the proper punishment of the guilty party for his disrespect to e. Assuming to be an attorney or an officer of a court, and acting as such
the courts; and without authority;
2. Secondarily, his compulsory performance of some act or duty required of
him by the court and which he refuses to perform. f. Failure to obey a subpoena duly served;

Kinds of Contempt:
1. Direct or indirect, according to the manner of commission.

© Gironella – Macadatar 2017 | Special Civil Actions 96


g. The rescue, or attempted rescue, of a person or property in the custody of an
officer by virtue of an order or process of a court held by him. Amount:fixed by the court from which the appeal is taken
 conditioned that if the appeal be decided against him he will abide by
Note: Failure by counsel to inform the court of the death of his client constitutes and perform the judgment or final order.
indirect contempt
Q: Lawyer Mendoza, counsel for the accused in a criminal case, was
How initiated: cited for direct contempt by Judge Tagle and was sentenced to 10
 motupropio by the court against which the contempt was days imprisonment. Lawyer Mendoza was placed in prison
o requiring the respondent to show cause why he should not be immediately. Lawyer Mendoza manifested his readiness to post a
punished for contempt. bond and to appeal the order by certiorari to stay its execution but
 Verified petition with supporting particulars Judge Tagle said that the order is immediately executory. Is Judge
Tagle correct?
Procedural requisites:
1. A charge in writing to be filed; A: No. An order of direct contempt is not immediately executory or
2. An opportunity for the person charged to appear and explain his enforceable. The contemner must be afforded a reasonable remedy
conduct; and to extricate or purge himself of the contempt. Under Sec. 2, Rule 71,
3. To be heard by himself or counsel. of the Rules of Court, a person adjudged in direct contempt by any
court may not appeal therefrom, but may avail himself of the
Where charge to be filed: remedies of certiorari or prohibition. The execution of the judgment
 Against a RTC or a court of equivalent or higher rank, or against an shall be suspended pending resolution of such petition, provided
officer appointed by it such person files a bond fixed by the court which rendered the
o The charge may be filed with such court. judgment and conditioned that he will abide by and perform the
 against a lower court judgment should the petition be decided against him
o with the RTC of the place in which the lower court is sitting;
o but the proceedings may also be instituted in such lower court Q: May a non-party be held for contempt?
subject to appeal to the RTC of such place
A: No, unless he is guilty of conspiracy with any one of the parties
Penalties: in violating the court’s orders
If the contempt consists in the violation of a writ of injunction, temporary
restraining order or status quo order, he may also be ordered to make complete Criminal Contempt vs. Civil Contempt:
restitution to the party injured by such violation of the property involved or such
amount as may be alleged and proved. Criminal Contempt Civil Contempt
Punitive in nature Remedial in nature
Imprisonment until order obeyed — When the contempt consists in the refusal Purpose is to preserve the Purpose is to provide a remedy for
or omission to do an act which is yet in the power of the respondent to perform, he court’s authority and to an injured suitor and to coerce
may be imprisoned by order of the court concerned until he performs it. punish disobedience of its compliance with an order for the
orders preservation of the rights of
Indefinite incarceration may be resorted to where the attendant circumstances are private persons
such that the non-compliance with the court order is an utter disregard of the
Intent is necessary Intent is not necessary
authority of the court which has then no other recourse but to use its coercive
State is the real prosecutor Instituted by the aggrieved party
power.
or his successor or someone who
has pecuniary interest in the right
Proceeding when party released on bail fails to answer — When a respondent
to be protected
released on bail fails to appear on the day fixed for the hearing, the court may:
Proof required is proof Proof required is more than mere
 issue another order of arrest or
beyond reasonable doubt. preponderance of evidence
 may order the bond for his appearance to be forfeited and confiscated, or
If accused is acquitted, there If judgment is for respondent,
both;
can be no appeal. there can be an appeal

Measure of damages shall be the extent of the loss or injury sustained by the
Q: Ray, through Atty. Velasco, filed a complaint for quieting of title
aggrieved party by reason of the misconduct for which the contempt charge was
against Chiz. Chiz, however, interposed the defense that the
prosecuted, with the costs of the proceedings, and such recovery shall be for the
documents relied upon by Ray and Atty. Velasco were forged and
benefit of the party injured.
falsified. Finding that the said documents were indeed forged and
falsified, Judge Victoria cited Ray and Atty. Velasco for direct
Court may release respondent —when it appears that public interest will not be
contempt and ordered them to serve 10 days of detention at the
prejudiced by his release.
Municipal Jail. Ray and Atty. Velasco filed a motion for bail and a
motion to lift the order of arrest. But they were denied outright by
Suspension of the execution of the judgment: filing a bond is filed by the person
Judge Victoria. Is Judge Victoria correct?
adjudged in contempt

© Gironella – Macadatar 2017 | Special Civil Actions 97


A: No. Direct contempt is a contumacious act done facie curiae and
may be punished summarily without hearing. Indirect or
constructive contempt, in turn, is one perpetrated outside of the
sitting of the court.

Here the use of falsified and forged documents is a contumacious


act. However, it constitutes indirect contempt not direct contempt.
The imputed use of a falsified document, more so where the falsity
of the document is not apparent on its face, merely constitutes
indirect contempt, and as such is subject to such defenses as the
accused may raise in the proper proceedings.

© Gironella – Macadatar 2017 | Special Civil Actions 98


8. Habeas corpus;
Special Proceedings 9. Change of name;
10. Voluntary dissolution of corporations;
General provisions 11. Judicial approval of voluntary recognition of minor natural children;
12. Constitution of family home;
Special proceedings: it is an application to establish the status or right of a party or 13. Declaration of absence and death;
a particular fact or any remedy other than an ordinary suit in a country of Justice 14. Cancellation of correction of entries in the civil registry.

Civil action vs. special proceedings The list of subject matters under section 1 of Rule 72 is not exclusive.
Special Proceedings Civil action - any petition which has for its Main purpose the establishment of a
Seeks to establish a status, a one by which a party sues status, right or a particular fact may be included as special proceedings
right or a particular fact another for the enforcement or
protection of a right, or the Example: petition for declaration of nullity of marriage
prevention or redress of a wrong
Generally commenced by Commence by a complaint Note: change of first name is not a special proceeding
application, petition or special
form of pleading Is liquidation proceeding an ordinary action or a special proceedings: A
petition for liquidation of an insolvent corporation should be classified as a special
It does not pray for affirmative proceeding and not an ordinary action. Such petition does not seek the enforce
relief for injury arising from a lemon or protection of a right nor the prevention or redress of a wrong against a
party's wrongful act or omission party.
nor state a cause of action that
can be enforced against any Note: A proceeding before the Shari'a district court for the settlement of the estate
person is deemed a special proceeding
It has no definite adverse party It has a definite adverse party
Are the rules in civil actions applicable in special proceedings?
- yes, in the absence of special provisions, the rules provided for in
Rule 72 - Subject Matter and Applicability of General Rules
ordinary actions shall be, as far as practicable, applicable in special
proceedings
Subject matter of special proceedings
1. Settlement of estate of deceased persons;
Provisions of the Rules of Court requiring a certification of non-forum shopping
2. Escheat;
for complaints and initiatory pleadings, a written explanation for non-personal
3. Guardianship and custody of children;
service and filing, and the payment of filing fees for money claims against an estate
4. Trustees;
would not in any way obstruct probate proceedings, thus, they are applicable to
5. Adoption;
special proceedings.
6. Rescission and revocation of adoption;
7. Hospitalization of insane persons;

SUMMARY:
Special Proceedings Jurisdiction Venue
Settlement of estate  In Metro Manila: Where the decease last resided at the time of death
o MTC: if the value of the estate does not
exceed Php 400,000 Nonresident - province in which he has estate
o RTC: if the value of the estate exceed
Php 400,000
 Outside metro Manila:
o MTC: if the value of the estate does not
exceed Php 300,000
o RTC: if the value of the estate exceed
Php 300,000
Escheat RTC Ordinary Escheat Proceeding: RTC

Resident: where the deceased last resided

Nonresident: where he had estate

Reversion of land to the State for violation of the

© Gironella – Macadatar 2017 | Special Proceedings 99


constitution: RTC where the land lie in whole or in part

Unclaimed deposits for 10 years – RTC of the province or


city where the bank is located
Guardianship
Rule in guardianship of Family court – in case of minors Family court or RTC of province or city where the minor
minors or incompetent actually resides

Guardianship over RTC of the province or city where incompetent


If the minor or incompetent resides in foreign country: in the
incompetent persons person last resided
family court or RTC of the province or city where his
who are not minors
property or any part thereof is situated
If resides in foreign country - in the family court of the
province or city where his property or any part
thereof is situated.
The rules of adoption
Under domestic adoption Family court of province or city where prospective
adoptive parents reside

If the petition is for rescission of adoption of the adoptee -


family court of the city or province where the
adoptee resides
Inter country adoption Family court having jurisdiction over. Place where
act the child resides or may be found

It may be filed directly with the intercountry


adoption board
Habeas corpus
For illegal confinement RTC RTC - where the person is detained (enforceable only
or detention within its territorial jurisdiction)
SC, CA, RTC have concurrent jurisdiction

MTC in case no RTC judge in the city or province

SB – in aid only of its appellate jurisdiction


Custody of minors Family courts have exclusive jurisdiction Where the petitioner resides or where the minor may be
found
A.M. 03-04-04-SC the petition may be filed with SC,
CA, or any of its members, and if so granted, the writ
shall be enforceable anywhere in the Philippines

Amparo SC, CA and Sandiganbayan, RTC If with RTC - the place where the threat, act or omission
was committed or any of its elements occurred

Habeas data SC, CA, and Sandiganbayan when the action If with the RTC
concerns public data or files of government offices 1. Where the petitioner resides
2. Where the respondent resides
3. That which has jurisdiction over the place
where data or information is gathered, collected
or stored, at the option of the petitioner

Change of name RTC of the province where the petitioner resides


Absentees RTC of place where absentee resided before his
disappearance
Cancellation or RTC of the provinces where the corresponding Local
correction of entries Civil Registrar of Place is located

© Gironella – Macadatar 2017 | Rule 72 - Subject Matter and Applicability of General Rules 100
Clerical error 1. Local civil registry office of the city or 4.
municipality where the record being sought to
be corrected or changed is kept
2. Local civil registrar of the place where the
interested party is presently residing or
domiciled
3. Philippine consulate

Settlement of Estate of Deceased Persons Exceptions: estoppel by laches

Rule 73 - Venue and Process When two proceedings were filed


1. The probate of will is mandatory. It will be anomalous if the estate of
Special proceeding relative to the settlement of the estate of deceased person may person who died testate should be settled in intestate proceedings. The
either be testate or intestate. intestate case should be CONSOLIDATED with testate proceedings
(Roberts vs. Leonidas)
If the proceeding is testate - probate of a will is mandatory 2. Testate proceeding takes precedence over intestate proceeding. If in The
course of intestate proceeding, it is found that the decedent left a will,
When to file claims against the deceased person: should be filed during the proceeding for probable of the will should REPLACE intestate
settlement proceedings of their estate. proceeding (Uriarte vs. CFI)
3. First court, upon learning that petition for probate has been presented
Jurisdiction over probate proceeding: depends on the gross value of the estate of in another court, may DECLINE TO TAKE COGNIZANCE of and
the decedent HOLD IN ABEYANCE petition before it, and instead DEFER to second
 In Metro Manila: court.if the will is admitted to probate, it will definitely DECLINE to
o MTC: if the value of the estate does not exceed Php 400,000 take cognizance (Cuenco vs. CA)
o RTC: if the value of the estate exceed Php 400,000
Note: the difference between Uriarte and Cuenco is that in Uriarte, there was a
 Outside metro Manila:
showing that petitioner the probate proceeding knew before filing of petition in
o MTC: if the value of the estate does not exceed Php 300,000
the second court that there was already an intestate proceeding in the first court.
o RTC: if the value of the estate exceed Php 300,000

Extent of jurisdiction of probate court: the court, in the exercise of its probate
Resides: the personal, actual or physical habitation of a person, actual residence of
jurisdiction, may issue warrants and processes to compel e attendance of witnesses
place of abode
or to carry into effect their orders and judgments and all other powers granted
- it signifies physical presence in a place and actual stay thereat them by law.

Venue of settlement of estate proceeding: the resident of the decedent at the time Issuance is writ of execution
of his death
- if the decedent is a nonresident of the Philippines - in any province in General rule: the probate court cannot issue a writ of execution because it's orders
which he had estate usually refer to the adjudication of claims against the estate which the executor or
administrator may satisfy without the necessity of resorting to a writ of executions
Wrong venue is a waivable procedural defect, and such waiver may occur by laches
where a party had been served notice of the filing of the probate petition for a year Exceptions
and allowed the proceedings to continue for such time before filing a motion to 1. To satisfy the distributive shares of the devisees, legatees and heirs
dismiss when the latter had entry prior possession over the estate
2. To enforce payment of expenses of partition
Principle of preferential jurisdiction 3. To satisfy the costs when a person cited for examination in probate
proceedings
General rule: the probate court first taking cognizance of the settlement of the estate
of the decedent shall exercise jurisdiction to the exclusion of all other courts Declaration of heirship

It cannot be divested of such jurisdiction by the subsequent acts of the parties as by 1. if the special proceedings are pending, or if there are no special
entering into extrajudicial partition of the estate or by filing another petition for proceedings filed but there is, under the circumstances of the case, a
settlement in a proper court of concurrent jurisdiction need to file one, then the determination of, among other issues, heirship
should be raised and settled in said special proceedings.
Note: the rule does not include foreign courts 2. Where special proceedings had been instituted but had been finally
- the rules applies to both testate and intestate proceedings closed and terminated, however, or if a putative heir has lost the right to

© Gironella – Macadatar 2017 | Rule 73 - Venue and Process 101


have himself declared in the special proceedings as co-heir and he can no g. Whether property in the inventory is conjugal or exclusive
longer ask for its re-opening, then an ordinary civil action can be filed for property of deceased spouse
his declaration as heir in order to bring about the annulment of the h. Matters incidental or collateral to the settlement and
partition or distribution or adjudication of a property or properties distribution of the estate
belonging to the estate of the deceased.
Rule 74 - Summary Settlement of Estate
Issues of ownership
Modes of settlement of estate
General rule: the probate court cannot determine issues of ownership in a proceeding
for the settlement of estate of decedent because probate courts are courts of limited 1. Extra judicial settlement - where the decedent left no will and no debts
jurisdiction and heirs are all of age, or the minors are represented by their
representatives duly authorized for the purpose, court proceedings are
Exceptions no longer necessary, but the formal requisites must be complied with
1. Provisionally, for the sole purpose of including the property in the 2. Judicial settlement - where the proceedings in court is necessary, and
inventory, without prejudice to tie final determination in a separate includes the following:
action
2. When all the parties agreed to submit the issue of ownership to the Summary settlement of estate of small value - whenever the gross value of the
probate court, provided no rights of third person is prejudiced estate of a deceased person p, whether he dies testate of intestate, does not exceed
3. If the question is one of collation or advancement Php 10,000, the court may proceed summarily, without an appointment of
executor or administrator
Settlement of estate if the marriage is dissolved by death of either spouse or
both Testate proceedings - where the decedent left a last will and testament

The community property shall be inventoried, administered and liquidated, and the Instate proceedings - when the decedent died without a will, or died with a will
debts thereof paid, in the testate or intestate proceedings of the deceased spouse. but found invalid or disallowed

If both spouses have died, the conjugal partnership shall be liquidated in the testate Partition - when there is no will and the parties entitled to the estate would agree
or intestate proceedings of either. on the project of partition

If separate proceedings have been instituted for each estate, both proceedings may Substantial requisites for Extrajudicial settlement by agreement between the
be consolidated if they were filed in the same court. heirs
1. The decedent left no will
General power and duties of the probate court 2. The decedent left no debts - no creditors files a petition for letters of
1. Orders the probate of the will of the decedent administration within two years after the death of the decedent
2. Grants letters of administration 3. The heirs are all of age
3. Supervises and controls all acts of administration 4. The minor are represented by their judicial or legal representatives duly
4. Hears and approves claims against the estate of the deceased authorized for the purpose
5. Orders payment of lawful debts
6. Authorizes sale, mortgage or any encumbrance of real estate Procedural requisites for making an extrajudicial settlement of Estate
7. Orders the payment of taxes and other charges 1. Settlement is made in a public instrument (not constitutive of the
8. Directs the delivery of the estate to those entitled thereto validity of extra judicial settlement but is merely evidentiary in nature)
or by affidavit of adjudication in the case of sole heir
Specific powers and duties of a probate court 2. Filed with the register of deeds
1. To pass upon the issue regarding the validity of the will 3. Fact of settlement must be published in a newspaper of general
2. Distribute shares circulation once a week for 3 consecutive weeks
3. Determine who are the legal heirs 4. Bond filed with the register of deeds equivalent to the value of personal
4. Issue rants and processes to secure attendance of witnesses property
5. Determine and rule upon issue relating to settlement of the estate, such
administration, liquidation, and distribution of estate Real properties - no bond is required
6. Determine the following
- it will be subjected to a lien in favor of creditors, heirs or other persons
a. Heirs of the decedent
for a period of 2 years from distribution
b. Recognition of illegitimate child
c. Validity of disinheritance effected by the testator - Such lien cannot be substituted by a bond
d. Status of a person who claims to be the lawful spouse of the
decedent Effect of an extrajudicial partition executed without the knowledge and
e. Validity of waiver of heredity heirs consent of the other co heirs: it shall not prejudice the co heirs
f. Status of each heir - He shall have the right to vindicate his inheritance

© Gironella – Macadatar 2017 | Rule 74 - Summary Settlement of Estate 102


- Such heir or such other person deprived of his lawful participation
payable in money may compel the settlement of the estate inc outs for the Value of the gross estate involved: when it does not exceed Php 10,000,
purpose of satisfying such lawful participation irrespective whether there is a will or none.
- such amount is jurisdictional
Note: it applies to compulsory heirs
Extrajudicial settlement vs. summary settlement of estate of small value
Purpose of publication: to notify and bind the whole world of the extrajudicial
settlement and give the concerned parties a chance to come forward and challenged Extra judicial settlement Summary settlement of estate
the same No court intervention. Requires summary adjudication filed
with the MTC
Note: publication alone does not suffice to bind the excluded heirs tit he There is compliance by the
extrajudicial settlement unless he participated in the proceedings filing of the public
instrument with the Registry
The procedure outlined in Section 1 of Rule 74 is an ex parte proceeding. The rule of Deeds
plainly states, however, that persons who do not participate or had no notice of an
The value of the estate is Gross value of the estate must not
extrajudicial settlement will not be bound thereby
immaterial exceed Php 10,000
Allowed only in intestate Allowed in both testate and intestate
The publication of the settlement does not constitute constructive notice to the
succession succession
heirs who had no knowledge or did not take part in it because the same was notice
The must be no outstanding Available even if there are debts.
after the fact of execution.
debts of the estate at the time
of settlement It is the court which will make
Effect if the provisions on notice and participation have been strictly complied
provision for the payment
with: it bars the distributees or heirs from objecting to an extra judicial partition
after the expiration of two years from such extra judicial partition Resorted at the instance and May be instituted by any interested
by agreement of all heirs party even a creditor of the estate
without the consent of all the heirs
Two year prescriptive period
Amount of bond is equal to Amount of bond is to be determined
General rule:distributees or heirs from objecting to an extra judicial partition after the value of personal by the court irrespective of whether
property. the estate consist of real or personal
the expiration of two years from such extra judicial partition